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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 41221
Experience:  Run my own successful business/contract law practice.
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Got into a service contract, seems like one sided contract.

Customer Question

Got into a service contract, seems like one sided contract. There is no significant value for the fees that I have paid for. Not much of the agreed services have been performed by service provider. The contract was signed by non-corporate officer. There
are no termination or default clauses under contract performance. there isn’t even a clause for timely performance. I want to know how I can break this contract in a legal manner per state of california LAW. Please advise. Social Media Marketing | Content
Marketing | Web Development | Creative Design Prepared for: Crystal (sales manager) Client: CR This INTERNET MARKETING & DEVELOPMENT AGREEMENT (“Agreement”) is entered into by and between IncredibleMarketing, Inc. a California Corporation (“Incredible Marketing”)
and the undersigned Company or individual (“Client”). This Agreement is effective as of the date both Parties have executed this Agreement (“Effective Date”). WHEREAS, Client is in the business of micro needling device and products ; WHEREAS, Incredible Marketing
is an Internet marketing agency which generally provides, among other things, custom design, website development, search engine optimization, social media marketing, content marketing and internet marketing consulting; and WHEREAS, both Parties desire to enter
into this Agreement in order for Incredible Marketing to provide those certain services outlined below. The Client and Incredible Marketing hereby agree as follows: TERM AND TERMINATION. This agreement shall commence on the Effective Date and continue over
the duration of 12 months. During this time, Incredible Marketing shall prepare and perform certain services in exchange for adequate consideration. It is understood that this agreement is for term, and any attempt to cancel this agreement before the entire
term has run, will cause the entire amounts due upon breach. This term shall renew automatically in one‐year increments, unless writing is provided 60 days prior to the end of this agreement. CONTENT MARKETING . Client shall hereby pay Incredible Marketing
a monthly fee of $5995 (discounted from $6995) as a consulting fee (“Incredible Fee”) for the services described below for the duration of the Agreement Term. Incredible Marketing shall bill the Client in accordance with section (PAYMENT AND FEES) below.Incredible
marketing shall get permission to incur these charges prior to performing any additional work. *Any and all rights in the website do not vest with Client until the full term has run or all payments made. If client does not make all payments, Client shall have
all rights to website and development. PAYMENT AND FEES. As of the commencement of this Agreement: WEBSITE ($16,995) ● $1416.25/month (for 12 months) or ● $8497.50 (50%) upfront & $8497.50 (50%) upon completion MONTHLY CHARGES ● $5995/month for International
Content Marketing Campaign For all monthly ongoing services, client shall pay all invoices via Credit Card or digital echeck that shall be kept on file. Should Client decide to cancel this agreement during the contractual term, Client shall be responsible
for the entire amount of this contract and give a minimum of 60‐day notice. Incredible Marketing shall bill the Client on a monthly basis and Client agrees to pay such invoices immediately via credit card or digital echeck. Due to upfront costs of all marketing
and creative services, if, for any reason, Client decides to break or cancel this Agreement after commencement of the Term, Client shall be liable for the entire Incredible Fee. Rights to all works shall only vest with Client when all payments have been made.
RELATIONSHIP OF THE PARTIES. Incredible Marketing and Client are independent contractors and nothing in this Agreement shall be construed to constitute the Parties as principal and agent, employer or employee, joint ventures, co‐owners, or otherwise as participants
in any form of joint undertaking. NOTICES. Any notice or communication required or permitted to be given hereunder may be e‐mailed. If to Incredible Marketing, notice via email should go to***@******.*** . If to Client, notice should be emailed
to crystal@.com . MISCELLANEOUS . This Agreement will be governed by and construed in accordance with the laws of California, without regard to its conflict of law provisions
Submitted: 1 year ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your post. Please permit me to assist you with your concerns.
Just to be clear, what you posted is the whole agreement, correct? How long has the contract been in place, and what specifically are you alleging they failed to provide you under the contract?
Customer: replied 1 year ago.
Some are not included,, but I included some details of the agreed service as below...The contract was entered in January 29th, 2015. the services written below have not been provided properly..for instance they are supposed to create all the social media including instagram, blog, websites but none of those has been done and for the website, all I have at the moment is 4 jpeg and 1 mock up graphic design with no coded links on the website...CONTENT MARKETING .
Client shall hereby pay Incredible Marketing a monthly fee of $5995 (discounted from $6995) as a consulting fee (“Incredible
Fee”) for the services described below for the duration of the Agreement Term. Incredible Marketing shall bill the Client in
accordance with section (PAYMENT AND FEES) below.
Incredible Marketing shall provide the following to Client as part of the Content Marketing.
● Full Service Search Engine Optimization
● Consultation
○ Analysis and implementation of current Internet Marketing Strategies
○ Analysis and implementation of Search Engine Optimization Efforts
○ Analysis and implementation of Pay Per Click Strategies and Efforts
○ Consultation on link building campaigns
● Management
○ Website management and development
○ Management of Internet marketing budget (PPC) with Google (10%
management fee)
● Reporting
○ Monthly web site statistical analysis and reports
○ Monthly pay per click effectiveness reporting
○ Quarterly referral analysis and ROI tracking
● Maintenance
○ Monthly website updates (up to 3 hours a month)
○ Maintenance of other outside accounts/profiles
Page 1 of 4● Full Service Social Media Marketing
○ Creation and optimization of social media profiles
○ Customer service, e.g. direct response to customers (Broadcasting updates,
announcements, news, etc.)
○ Educate potential patients with behind the scenes look at the practice
○ Posts of relevant industry developments
○ Posts of relevant office and patient information/developments
○ Friend/follower acquisitions and continued profile growth
○ Monthly specials and contest to promote services and engage patients
○ Focus highly on generating return patients via the SMM campaigns
○ Assistance and marketing efforts focused on driving potential patients to your
website
○ Assistance in converting friends/followers into in office consultations and
patient acquisitions
○ Email marketing blast twice a month
○ Full Reputation Management
○ Design of 1 set of 500 reputation management cards
○ Nine languages to be used in marketing content. (English, Spanish, Mandarin,
Cantonese, Italian, Arabic, Russian, German, Farsi)
● Blogging
○ Submit unique blog article topics that are newsworthy and relevant to patient services.
○ Incredible Marketing will write content articles on topics approved by Client.
○ Content articles will be sent to Client for approval.
○ Content articles will be optimized and then promoted via social sharing.
○ Keyword, Link, #Hashtag optimization
○ Post 1 article every week on website to help with rankings, fan engagement & Google
recognizing patient as a leader in the industry.
● Google+
○ Creation and optimization of profile with full branding applied.
○ Optimized posting
○ Website, Facebook, Twitter, YouTube implementation
● Twitter
○ Tweet indexing for Google
○ Blog sharing with targeted #hashtag optimization
Customer: replied 1 year ago.
WEBSITE DEVELOPMENT.
Client shall hereby pay Incredible Marketing $16,995 as a development fee for theservices described below. IncredibleMarketing shall
bill the Client in accordance with Section (PAYMENT AND FEES) of this Agreement.
Incredible Marketing shall provide the following to Client as part of the Website Development project.
● Customized Website from ground up in both English and Spanish
● 2 custom designs offered in round 1
● Up to 3 revisions of chosen design
● Focus on multi‐media design combining sleek design with ease of use.
● Focus on needs, demographic, design, content
● Newsletter and call to action sign up included
● Email capture and auto responded included
● Tailor site to match needs, focus on your credentials and knowledge in the field
● Highlight how you are significantly more adept than others in your industryPage 3 of 4
o We will add Facebook, Twitter, Share, and Google Plus buttons to your website.
o Depending on your campaign, we may implement automatic Facebook or twitter status updates into
your websites home page.
• Reputation Management
o Main profiles affected: Google+, Yelp, Vitals, RateMD, Google Local, Facebook, etc.
o Custom Reputation Management Cards designed with your branding for office‐patient engagement.
o IM staff will consult/train your staff on best use.
o Custom Facebook tab with direct profile links
o Email Newsletter will include direct profile links
• Reporting & TrackingSEARCH ENGINE OPTIMIZATION (SEO):
Implementation of 'on page SEO' for all current and future pages of the website, including:
• Content Optimization
• Title Tag Optimization
• H‐Tag (header tags) Optimization
• Meta Keyword Tag Optimization
• Meta Description Tag Optimization
• Internal Website Linking (Optimized)
• XML Site Map Creation and Routine Submissions to Google, Yahoo and Bing
• External Linking and Implementation (Including no‐follow tags)
• Keyword Density Analysis
• Keyword Research, Analysis and Creation
• Geo Meta Tags
• Image Optimization, Alt Tags
• Call to Action Implementation and tracking
• Includes campaign A/B Campaign Result Testing to drive a stronger ROI (return on Investment)
• Implementation of Analytics (You will have full access to this and can view updates in Real Time)
Implementation of 'off page SEO' for all current and future pages of the website, including:
• Social Media Marketing Creation and Optimization
• Monthly Consulting of your Social Media Campaigns, coaching on how to convert more leads into actual patients
via these networks
• Blog Creation and Optimization
• Quarterly Press Releases (Content, publishing and optimization)
• Implementation of all Outside Directory Accounts
• Implementation of a strategic 'back‐link' campaign in which other relevant, and highly ranked sites link back to
you in a specific and 'optimized manner' (using keywords)
• The Optional Purchase of 1 new and strategic SEO Friendly Domain Name
• ROI Traffic Statistics including:
o Lead management database for all leads captured via their website
o Consulting on calculating a precise number on patient consults/quarterly ROI tracking
• Monthly reporting:
o Detailed past and current rankings
o Detailed past and current traffic
o Detailed breakdown of all other SEO/ROI (Return on Investment) related matters
o Social Media Monitoring and Consulting
o 30 Day Summary Reports
CONTENT MARKETING:
● Blogging
○ Submit unique blog article topics that are newsworthy and relevant to patient services.
○ Incredible Marketing will write content articles on topics approved by Client.
○ Content articles will be sent to Client for approval.
○ Content articles will be optimized and then promoted via social sharing.
○ Keyword, Link, #Hashtag optimization
○ Establish and maintain Google authorship
○ Implement and maintain microdata
○ Post 1 article every week on website to help with rankings, fan engagement & Google recognizing
doctor/practice as a leader in the industry.
○ Custom creation, optimization, & design of a Google+ business page, with daily posts & updates.
● Google+
○ Creation and optimization of profile with full branding applied.
○ Optimized posting
○ Website, Facebook, Twitter, YouTube implementation
● Twitter
○ Tweet indexing for Google
○ Blog sharing with targeted #hashtag optimization
● YouTube
○ Creation and optimization of channel with full branding applied
○ Website, Facebook, Twitter, YouTube implementation
○ Social sharing
Expert:  Dimitry K., Esq. replied 1 year ago.
Hi,
Thank you for your follow-up. The first point I have to make will not be favorable so I ask that you do not blame the messenger. This appears to be a legal contract under state law, and if you agreed to it, barring breach or bad faith, the contract survives. Such contracts do not automatically get voided under law, and instead they are treated as valid absent any evidence that they are violate state laws (and nothing here violates state law as written today).
Notice, however, that I mentioned breach or bad faith. Breach occurs when they fail to perform their portion of the contract, and likewise bad faith occurs is if they knew they wouldn't perform and misled you to that fact. To claim 'breach' you need to send them formal written notice of violations or issues they failed to provide, and give them a deadline, in writing, to perform (or begin performing) those items. Typically 14 days is sufficient although you can give less or more time. Then, if that time goes by and they do not respond with a legitimate response, do not address concerns, and do not perform or start to perform those items you can claim breach (as you now have a paper trail), and demand a refund up to the date of termination. If they fail to provide, threaten to contact the California Department of Consumer Affairs or sue them outright for fraud and material misrepresentation as well as bad faith.
Hope that helps.
Sincerely,
Dimitry, Esq.
Customer: replied 1 year ago.
our sales manager signed on the contract. is there any possibility that I can breach the contract with this? is there any case for invalid or unauthorized signature, thereby terminating the contract like this? possible to claim for fair consideration for the value of the service and money that I paid for?
Expert:  Dimitry K., Esq. replied 1 year ago.
Hi,
I am sorry but your sales manager acted as the agent for the company. And as such, unless he had no authority to sign AND the other side knew he had no authority, his signature is valid. This would come under standard 'agency' law where the employer is responsible for the contracts that his employees make on behalf of the employer. My answer would differ if a janitor signed this, but generally a sales manager is presumed to be able to sign off, and especially 6 months down the line it is hard to argue that this was an invalid agreement. I do not see this as an 'unauthorized' signature. As far as 'fair consideration', my apologies but the courts for the most part do not care if the contract is fair unless it is blatantly one-sided and shocks the court's conscience (which is the standard)...and this agreement, while potentially unfavorable to you, is not so blatantly one-sided or unfair.
Sincerely,
Dimitry, Esq.
Customer: replied 1 year ago.
Quoting your response, "If they fail to provide, threaten to contact the California Department of Consumer Affairs or sue them outright for fraud and material misrepresentation as well as bad faith.", Provided that I send them 14 days of written notice requesting for the agreed work to be done but they don't do anything, then on the 15th day, can I file a suit against them for material misrepresentation as well as bad faith? In such case, what would be the possible ending consequence (what I can gain) and how long do you think will this case last realistically?
Customer: replied 1 year ago.
what if they respond to such request only via email in a very sluggish manner without actual tangible work done during such 14 days? can this be considered to be like they are still working on my request?
Expert:  Dimitry K., Esq. replied 1 year ago.
Hi,
In theory you can claim that if they failed to perform, or at least give notice of a schedule as to when those conditions would be performed, then they are in breach of contract which would allow you to terminate without penalty. All you are seeking is out of the contract unless you would have to bring in someone else to fix their errors and take over. Then you can sue them for the difference you will end up paying out of pocket. For example if you paid them $30,000 up that point of a $60,000 agreement, and you bring in someone else who charges you $50,000 to complete the work, you can sue them for $20,000 (difference in what you were expected to pay versus what you paid) for the reimbursement and repairs. Such a case can last from 9 months to a few years depending on how much they struggle and how litigious you become. Going to court should be the last step, not the first, and hopefully you could then negotiate a release that would be cheaper then court and legal fees (as you can still lose in court).
Sincerely,
Dimitry, Esq.
Customer: replied 1 year ago.
What if I give them a notice of discontinuing the contract by blocking monthly recurring credit card charge? What are the possible scinarios that you think they will take and what will be the most likely ending case for such? I appreciate your kind reply.
Expert:  Dimitry K., Esq. replied 1 year ago.
Hello,
That would then be you breaching in bad faith, not them. And they could sue you for the full balance under the contract plus court costs, filing fees, and whatever costs their incurred once they were unable to run your credit. And here I see that as the strongest and likeliest scenario, as blocking payment, even with notice, is not how under the terms of the contract you can terminate service. Under state law there are only a few ways to legally terminate the contract. Those are:
1. If a contract violates state law (not the case here)
2. If the type of contract has a law in place permitting early termination (think of a 3 day right to rescind a mortgage payment, and likewise not in this case)
3. If there are terms in the agreement itself that permit early termination.
4. Mutual consent of parties.
5. Court order.
So far none of those fit here, so the contract remains in place. Notice I did not put down 'breach' of contract as a reason, because that really goes under the final condition, as the reason for terminating would need to be upheld by the courts as valid and otherwise it is deemed invalid and you owe them value for the agreement.
Sincerely,
Dimitry, Esq.

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