By submitting your information through the client sign up form, you agree (and on behalf of the company you represent) agree to be bound by these terms.
1. Each party agrees to inform and receive acknowledgment from the other of all anticipated fees before commencement of any exchange of products or services. Some services or products come at differing fees, and there must be a documented exchange in which both parties agree to the value of their product/service before execution of services or delivery of products. This shall not be verbal, but will be required to be a signed addendum or agreed upon in email.
2. Both parties attest that they are freely/legally entering into this agreement and will abide by its directives and requirements.
3. Both parties represent their price(s) as reasonable and fair market value, all things considered and to the best of their knowledge, within their industry. The nature of the barter agreement is that each party shall provide their specified service(s) and/or product(s) in exchange for the other party’s service(s) and/or product(s), and not for any monetary exchange. Any actual monetary costs incurred shall either be for 3rd party costs, or costs that were acknowledged in a signed addendum, or via email agreement, and shall be made payable to the appropriate party as the email exchange or signed addendum directs.
4. Each party shall indemnify, defend and hold harmless the other, its officers, trustees, agents assigns, and employees, from and against any and all claims, demands, suits, losses, liabilities and costs, including attorneys’ fees, arising out of any alleged breach of warranty, and that the products or services do not infringe upon any statutory copyright or upon any common law rights, or other proprietary rights.
5. Both parties shall document via email or signed addendum, the delivery and schedule and/or deliver-ability requirements of each party.
6. If a party opts to terminate the barter agreement, ceases communication, fails to perform their barter responsibilities without satisfactory explanation, that party agrees to compensate the other party fairly for any products or services provided to date of termination notice, including any costs incurred from expecting an agreed product or service by a particular date. If one party goes out of business, or is unable to render credit owed for reasons listed above or otherwise, then 100% of outstanding barter credit must be converted to cash, and paid within 90 days. Failure to do so will result in that party losing private meeting, mediation, and arbitration privileges detailed in Section 7 of this agreement.
6B. Both parties agree that when a client or partner defaults on an agreement and resolution or collection efforts are necessary, this adds a significant administrative time, effort, and resource burden to the party that must affect resolution or collections. Thus, if a party simply chooses not honor its obligations to Loaded Bases Marketing or it’s representative(s) in barter or other consideration without substantially sound reasons, and Loaded Bases Marketing or it’s representative(s) are forced to take resolution (including, but not limited to steps in Section 7) or collection efforts after 30 days notice of a party being delinquent, that party agrees to a $1,250 USD fee for the administrative effort of collection/resolutions. This fee would be reduced to $250 if the non-performing party demonstrates both good faith in resolving the matter before legal action is necessary, compliance with Section 7 of this agreement, as well as reasonably strong justification for non-performance. In the case of a disagreement as to a “reasonably strong justification for non-performance”, a mediator, arbitrator, judge, or notary public (for notary publics, their fee must be split/paid by both parties and the entity must be one that neither party knows or has current or prior social/business connections to) may determine if the non-performance justification is “reasonable”, only for the purposes of this administrative fee reduction. Should it be necessary to hire the services of a skip tracer, private investigator, process server, or collector to ascertain the whereabouts, ascertain correct physical addresses, ascertain contact information, to serve documents, ascertain the health of that party, ascertain ability to perform, or ability to satisfy a debt, or investigate claims/conduct that turns out to be fraudulent; both parties agree that Loaded Bases Marketing would be entitled to receive additional re-imbursement for those costs. Costs will be documented with receipt and could be added to a total claim amount.
6C. In the event that either party believes the contract should be terminated due to poor quality of deliverables, both parties will follow Section 7 & 7A of this agreement. Should there be no resolution, both parties may select a mutually agreed upon industry peer, to mutually solicit (to comply with Section 8) that entity to provide a written or otherwise recorded assessment as to whether the work delivered was unacceptably below industry standards or not. Should this not be agreed upon within 7 days of either party requesting, or should this not provide resolution, or should the solicited entity not be responsive within 14 days, both parties agree to progress to Section 7B for potential resolution.
7. Any disputes arising between these two parties, other than disputes related to non-payment as covered in Section 6 of this agreement, shall be handled in a manner that avoids legal cost, promotes good will, and civility, and cooperation in the following succession.
7A. Each representative Principal agrees to a face-to-face meeting of not less than 30 minutes, to settle claims, within 45 days of either party requesting this.
7B. Should there be no resolution, it is hereby agreed that the dispute shall be referred to a professional and recognized Mediator, with not less than 8 years of experience in Conflict Resolution, and should take place within Orange County, California. Both parties agree to split the cost of Mediation. (This shall not apply in cases that are clear and unambiguously involving non-performance or non-payment by one party.)
7C. Should Mediation fail to bring about a resolution, it is hereby agreed that the dispute shall be determined in finality through Expedited Arbitration by a recognized Arbitration organization within Orange County, California. The cost of Arbitration (not including any judgments or settlements) shall be split by both parties. (This shall not apply in cases where a party simply and unambiguously does not perform/pay their part of any debt, and/or the deciding arbitrator determines a party severely and grossly underperformed to meet the letter of this agreement but not the spirit.) If one party refuses to pay their Arbitration fee, yet still prevails in arbitration, parties agree the judgement/award will deduct the amount of the outstanding arbitration fee that was paid by the other party. Likewise, should a party refuse to pay the arbitration fee and not prevail, all parties agree now that the arbitration fee would be added to the judgement/award.
7D. Both parties recognize the jurisdiction of the business relationship to be in California, and will abide by the California Laws.
7E. If either party has used this section (Section 7) of ADR at least 2 times for issues that ultimately revolves around performance owed via barter or payments owed, the third time shall be the last time that party can rely on or invoke Section 7. Both parties agree that any future disputes may go directly to arbitration or court.
8. Both parties agree to maintain confidentiality as to the nature of the barter relationship. Each party, it’s offices, employees, assignees, agents, contractors or board members shall not disclose that each business has engaged in payment via barter, unless written permission is obtained from each Principal/Business.
9. Should this agreement conflict with other agreements required by either Business, each party agrees that the terms of this agreement shall take precedence above all other agreements, as it should be executed at the beginning of a working relationship, and pre-date other agreements. This clause does not include signed addendum or email exchanges that reference matters specifically addressed in this agreement (such as prices, deliver-ability dates, warranties, etc)
10. Specific indemnifications:
A. Loaded Bases Marketing & it’s Principals, Officers, Shareholders, Representatives or Agents, does not and can not make any specific marketing performance guarantees, and can not be held liable or as negligent should the marketplace not respond to any design, campaign, or strategy delivered. While goodwill estimates of performance may be provided, the service being offered is the earnest work and execution of strategy and talents, and can not be held responsible for any monetary or other damages from the results of work products provided.
B. A party shall not be held liable for failure of or delay in performing its obligations under this Agreement if such failure or delay is the direct result of an Act of God, such as earthquake, hurricane, tornado, epidemic, flooding, or other natural disaster, or in the case of war, action of foreign enemies, terrorist activities, internet outage, verified 3rd party service integral to delivery, government sanction, blockage, embargo, or prolonged failure of electrical service. The non-performing party must make every reasonable attempt to minimize delay or lack of performance.
11. Each party shall perform services or provide products as an independent contractor. Nothing contained in this agreement, or any other discussion shall create a partnership, joint venture, employer/employee, principal/agent, or similar relationship between the two parties. Neither party has the authority to, and shall not, act as an agent for or on behalf of each other, and shall not bind or represent it in any manner. Neither party will be entitled to any of the benefits afforded to Company employees.
12. Both parties agree that jurisdiction of this agreement is Orange County, California. Both parties will abide by, and respect the laws of this jurisdiction. Should a mediation agreement, arbitration decision, or court decision be issued on a matter between these two parties where one of those parties is located, operates out of, or requires enforcement in a different jurisdiction, both parties agree that such decisions should immediately, effectively, and without delay be domesticated to any other jurisdiction.
13. The parties agree and would want a court to interpret this agreement to maintain severability. Thus, any provision that holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding only that provision. Similarly, if an unenforceable provision is modified or disregarded, that the rest of this agreement should and will remain in effect as written.