Scope of Agreement. This Agreement is intended to be the master agreement
under which Client may request professional services to be performed by nickgreene.com (the "Services").
nickgreene.com will provide only those Services outlined on one or more written Statements of Work ("SOW")
signed by both Parties. Each SOW shall be governed exclusively by the terms of this Agreement, whether or not this
Agreement is specifically mentioned.
Term and Termination.
Term. This Agreement shall commence on the Effective Date and shall remain in effect for
twenty four (24) months thereafter unless terminated earlier pursuant to this Agreement; provided, however,
that if there is an SOW for which the Parties have obligations that extend beyond such termination date, the
terms of this Agreement shall continue to apply to such SOW until all obligations in such SOW have been
Termination for Cause. Either Party may immediately terminate this Agreement or any SOW for
"cause" if: (i) the other Party fails to perform its material obligations under this Agreement and
such failure is not corrected within thirty (30) days after receipt of written notice of the breach from the
non-breaching Party, or (ii) the other Party has appointed a trustee for the benefit of its creditors, becomes
insolvent, bankrupt or initiates a voluntary dissolution.
Termination for Convenience. Either Party may terminate this Agreement by providing written
notice to the other Party at least ninety (90) days prior to the effective date of termination.
Effects of Termination. Client shall remain obligated to pay for all Services provided
prior to any termination of this Agreement or any SOW. Upon termination of this Agreement by nickgreene.com
for cause or by Client for any reason, all licenses granted to Client hereunder shall immediately terminate.
Termination of this Agreement or any license by either Party shall not limit either Party from pursuing any
other remedies available to it, including injunctive relief, nor shall such termination release Client from
any obligation to pay all fees that have accrued or that Client has agreed to pay under any SOW under this
Agreement up to the date of termination. The Parties' rights and obligations under
Sections 2.4, 3, 4, 5.4, 6,
7, 8, 9, 10 (subject to the first
sentence of this Section 2.4), 11, 12 and 13 shall
survive termination of this Agreement. If any license granted under this Agreement expires or otherwise
terminates, Client shall (a) immediately cease using the licensed materials, and (b) certify to nickgreene.com
within thirty (30) days of expiration or termination that Client has destroyed or returned to nickgreene.com
such materials and all copies thereof remaining in Client's possession. This requirement applies to copies in
all forms, partial and complete, in all types of media and computer memory, and whether or not modified or
merged into other materials.
Independent Contractor; Use of Subcontractors. nickgreene.com is an
contractor and nothing in this Agreement or related to nickgreene.com's performance under any SOW shall be
construed to create an employee relationship between Client and nickgreene.com or any nickgreene.com consultant or
subcontractor. nickgreene.com may, in its discretion, utilize subcontractors to provide the Services hereunder.
Pricing and Payment Terms.
Services. Client shall pay nickgreene.com for Services in accordance with the fees
established in the relevant SOW.
Expenses. Client shall reimburse nickgreene.com for actual expenses incurred by
nickgreene.com in performing the Services. A summary of expenses sorted by major category shall be included in
the invoice for the associated Services.
Payment Terms. Fees and expenses for Services shall be
periodically invoiced by nickgreene.com and payment is due upon receipt of invoice. Client agrees to pay a
late charge of one and one half percent (1.5%) per month or the maximum lawful rate, whichever is less, for
all amounts not paid within thirty (30) days of the date of invoice. Client shall also reimburse
nickgreene.com for all expenses incurred by nickgreene.com in exercising any of its rights under this
Agreement or applicable law with respect to a default in payment or other breach of this Agreement by Client,
including reasonable attorneys' fees and the fees of any collection agency retained by nickgreene.com.
Taxes. Amounts payable by Client hereunder do not include local, state, or federal sales,
use, value-added, or other taxes or tariffs of the United States of America or other countries based on the
licenses or services provided under this Agreement or Client's use thereof. Client shall pay all such taxes or
tariffs as may be imposed upon nickgreene.com or Client, except income taxes imposed on nickgreene.com by the
United States of America or any state or local government therein. Client shall be invoiced for, and Client
shall pay, any such taxes and tariffs if nickgreene.com is required to pay them on Client's behalf.
Failure to Pay. Client acknowledges that its failure to pay
timely any of the fees payable hereunder, or any portion thereof, shall be a material breach of this Agreement
for which nickgreene.com may, in addition to pursuing all other remedies, withhold Services and/or terminate
both this Agreement and any licenses granted hereunder.
Warranty and Acceptance of Deliverables.
Deliverables Warranty. nickgreene.com warrants that it shall provide the specific
deliverables identified in each SOW (the "Deliverables") and that the Deliverables shall conform
substantially to the requirements specified in the applicable SOW. Each Deliverable shall be subject to
Acceptance by Client in accordance with Section 5.2 to verify that such
Deliverable satisfies the foregoing warranty. If Client does not provide written notice to nickgreene.com that
Client has a claim for breach under this Section 5.1 within ninety (90) days after Acceptance of a particular
Deliverable, then its right to make any such claim shall terminate.
Acceptance Procedures. Client shall have fifteen (15) calendar
days after notice from nickgreene.com of a completed Deliverable (the "Acceptance Period") to either
(i) notify nickgreene.com in writing of its acceptance of the Deliverable ("Acceptance"), or (ii) if
Client reasonably believes that any Deliverable fails to conform substantially to the requirements set forth
in the applicable SOW, notify nickgreene.com in writing specifying in reasonable detail such non-conformance ("Rejection").
Any failure by Client to notify nickgreene.com in writing of its Acceptance or Rejection of a Deliverable
within the Acceptance Period shall be automatically treated as Acceptance of such Deliverable, and any actual
or deemed Acceptance of a Deliverable by Client shall be conclusive and irrevocable. Upon receipt by
nickgreene.com of a written notice of Rejection specifying the nonconformance, nickgreene.com shall attempt to
substantially conform the Deliverable to the applicable requirements. If nickgreene.com concludes that such
conformance is impracticable, then nickgreene.com shall refund the fees paid by Client to nickgreene.com
hereunder, if any, allocable to the nonconforming Deliverable, provided that Client first returns to
nickgreene.com all copies of such Deliverable. The Parties understand and agree that Client shall have no
rights whatsoever with respect to any Deliverable for which it has a received a refund in accordance with this
Third Party Products. Product warranties for third party products, if any, are provided by
the manufacturers thereof and not by nickgreene.com. nickgreene.com's sole obligation is to act on behalf of
Client to assist in the satisfaction of any such warranty.
Exclusive Remedies. The express remedies set forth in this
Section 5 shall constitute Client's exclusive remedies, and nickgreene.com's sole
obligation and liability, for any claim (i) that a Service or Deliverable provided hereunder does not conform
to specifications or is otherwise defective, or (ii) that the Services were performed improperly.
NICKGREENE.COM DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CLIENT REQUIREMENTS NOT
SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT
THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
IF PRE-PRODUCTION (E.G., "ALPHA" OR "BETA") RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT,
SUCH COPIES ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5, WHICH ARE LIMITED WARRANTIES
AND THE ONLY WARRANTIES MADE BY NICKGREENE.COM, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY "AS
IS," AND NICKGREENE.COM MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING
OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER
WHATSOEVER. IN PARTICULAR, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED BY nickgreene.com AND ARE EXCLUDED
BY THE PARTIES.
Except as may be done in accordance with Section 13.12, no statement by any
nickgreene.com employee or agent, orally or in writing, shall serve to create any warranty or obligation not
set forth herein or to otherwise modify this Agreement in any way whatsoever.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUE,
USE, DAMAGED OR LOST FILES OR DATA, OR BUSINESS INTERRUPTION, THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT,
ANY SERVICES OR DELIVERABLES PROVIDED BY NICKGREENE.COM, OR ANY MATTER WHATSOEVER, REGARDLESS OF WHETHER SUCH
CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE,
EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
NICKGREENE.COM BE LIABLE FOR ANY DAMAGES FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR AGGREGATE
LIABILITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES OR DELIVERABLES PROVIDED BY NICKGREENE.COM, OR
ANY MATTER WHATSOEVER, REGARDLESS OF WHETHER THE CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEEDING THE AMOUNT OF FEES PAID BY CLIENT UNDER THIS
AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS
OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT, AND
SHALL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES SPECIFIED HEREIN.
Essential Basis of Bargain. Client acknowledges and agrees that the
fees charged by nickgreene.com in this Agreement reflect the overall allocation of risk between the Parties,
including by means of the provisions for limitation of liability and exclusive remedies described in this
Agreement. Such provisions are an essential basis of the bargain between the Parties and a modification of such
provisions would affect substantially the fees charged by nickgreene.com hereunder. In consideration of such fees,
Client agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or
otherwise, to subsequently seek a modification of such provisions or allocation of risk.
In the course of providing the Services, either Party (a "Disclosing Party") may provide certain
of its Confidential Information to the other Party (a "Receiving Party"). For purposes of this
Agreement, "Confidential Information" shall mean written, confidential and proprietary information
of a Disclosing Party that is not available in the public domain. A Receiving Party agrees that it shall not
disclose Confidential Information to any third party and shall use the Confidential Information only in
connection with the Services. All Disclosing Party Confidential Information shall remain the property of the
Disclosing Party. For purposes of the Agreement, software, documentation, other materials or tools used by
nickgreene.com in the performance of the Services, including nickgreene.com Intellectual Property (as defined
in Section 10) shall be considered nickgreene.com's Confidential Information.
Confidential Information shall not include information that is (i) previously known by a Receiving Party; (ii)
acquired by a Receiving Party without continuing restriction on use; (iii) becomes or is publicly available
through no breach by the Receiving Party under this Agreement.
The Receiving Party agrees and acknowledges that Confidential Information of the Disclosing Party is
entrusted to it in confidence, and the reputation and success of the Disclosing Party depends on maintaining
and safeguarding the secrecy of its Confidential Information. The Receiving Party agrees that during the term
of this Agreement and at any time thereafter, it (a) shall use the same level of care to protect the
confidentiality of the Disclosing Party's Confidential Information as it does to protect its own Confidential
Information, but in no event less than a reasonable degree of care, (b) shall not use any Confidential
Information of the Disclosing Party except for the purpose of fulfilling its obligations under this Agreement,
(c) shall not, and shall not permit others to, disclose, duplicate, transfer, sell, lease, or otherwise make
any Confidential Information of the Disclosing Party available to others without the prior written consent of
the Disclosing Party, and (d) shall not remove, or permit to be removed, any notice indicating the
confidential nature of, or the proprietary rights of the Disclosing Party in, the Disclosing Party's
Confidential Information. The Receiving Party shall return all Confidential Information at the earlier of the
termination of the Agreement or upon the request of the Disclosing Party. The foregoing obligations regarding
Confidential Information shall survive the termination or expiration of this Agreement.
Client Applications. Client shall own all right, title and interest in the components of
the Deliverables specifically and exclusively developed by nickgreene.com for Client pursuant to an SOW
(referred to herein as the "Client Applications"), excluding any components or modules thereof that
are nickgreene.com Intellectual Property (as defined below).
nickgreene.com Intellectual Property. The Parties acknowledge and agree that nickgreene.com
may use preexisting proprietary computer software, methodology, techniques, software libraries, tools,
algorithms, materials, products, ideas, skills, designs, know-how or other intellectual property owned by
nickgreene.com or its licensors, and nickgreene.com may also create additional intellectual property, in the
performance of the Services (all of the foregoing, the "nickgreene.com Intellectual Property").
Client agrees that any and all proprietary rights to the nickgreene.com Intellectual Property, as it existed
as of the date hereof and as it may be modified or created in the course of providing the Services, including
patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and
exclusive property of nickgreene.com, free from any claim or retention of rights thereto on the part of
Client, and Client hereby assigns to nickgreene.com any rights it may have in any of the foregoing.
Client Rights to Deliverables. Subject to Client's compliance with this Agreement,
nickgreene.com hereby grants to Client a perpetual, worldwide, royalty-free, non-exclusive, non-transferable
right and license to use, execute, reproduce, transmit, display, perform, create derivative works from, make,
have made, sell and import the Deliverables, including such nickgreene.com Intellectual Property as may be
incorporated therein, only for its own internal business purposes and to provide services to its Clients
consistent with the purposes of the Services.
Restrictions. Client shall not copy, use, modify, or
distribute any nickgreene.com Intellectual Property except as expressly licensed in this Agreement. Client
shall not cause or permit the modification, distribution, reverse engineering, decompilation, disassembly or
other translation of the nickgreene.com Intellectual Property. Client shall not alter, change, or remove from
the nickgreene.com Intellectual Property any identification, including copyright and trademark notices, and
further agrees to place all such markings on any copies thereof.
Dispute Resolution. In the event of any controversy or claim arising
from or related to this Agreement, its performance or its interpretation, nickgreene.com and Client will in good
faith attempt to resolve the dispute within a reasonable period among themselves. Failing such attempt, any
controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by an
arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Neither Party shall be obligated under this Section for breaches of Sections 9 or
10.4 hereof or for any other breach as to which injunctive relief is sought.
Client Obligations Regarding Maintenance.
Software Installation or Replication. If nickgreene.com is required to install or replicate
software as part of the Services, Client shall independently verify that all such software is properly
licensed. Client's act of providing any software to nickgreene.com shall be deemed Client's affirmative
acknowledgment to nickgreene.com that Client has a valid license that permits nickgreene.com to perform the
Services related thereto. In addition, Client shall retain the duty and obligation to monitor Client's
equipment for the installation of unlicensed software unless nickgreene.com in a written SOW expressly agrees
to conduct such monitoring.
Suitable Environment; Access. Client shall provide a suitable working environment for any
equipment for which nickgreene.com provides maintenance services hereunder ("Covered Equipment").
Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity
controls and properly conditioned electrical supply for each piece of equipment covered under this Agreement.
nickgreene.com personnel shall have free access to Client's equipment and premises for the purpose of
providing Services hereunder, provided that nickgreene.com complies with Client's security regulations.
Export. Client shall comply fully with all relevant export
laws and regulations of the United States of America ("Export Laws") to assure that any Deliverable
is not (a) exported, directly or indirectly, in violation of Export Laws; or (b) intended to be used for any
purposes prohibited by the Export Laws, including nuclear, chemical, or biological weapons proliferation.
Notice. All notices under this Agreement, including notices
of address change, shall be in writing and shall be deemed to have been given when sent by (i) registered
mail, return receipt requested, or (ii) a nationally recognized overnight delivery service (such as Federal
Express), to the General Counsel of the appropriate Party at the relevant address first listed above, or to a
Party's address as changed in accord with this Section 13.2, or (iii) electronic mail.
Legal Expenses. In the event legal action is taken by either Party to enforce its rights
under this Agreement, all costs and expenses incurred by the prevailing Party, including reasonable attorneys'
fees and court costs, shall be paid by the other Party.
Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local
government, the validity of the remaining portions or provisions shall remain in full force and effect.
Governing Law. This Agreement, and all matters arising under or related hereto, shall be
governed according to the laws of the State of North Carolina, without respect to its conflict of law
No Waiver. No failure on the part of either Party to exercise, and no delay in exercising,
any right, power, or privilege shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The
waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other
or subsequent default or breach.
Assignment. Neither Party may assign, by operation of law or otherwise, this Agreement or
any right or duty arising hereunder to a third party without the other Party's prior written consent. Any
purported assignment in violation of this Section 13.7 shall be void. Notwithstanding the foregoing,
nickgreene.com may assign this Agreement and its rights and obligations hereunder in its sole discretion to a
successor entity in the event of an acquisition of nickgreene.com, corporate restructuring, or the like.
No Third-Party Beneficiaries. This Agreement is an agreement between the Parties, and
confers no rights upon any of the Parties' employees, agents, contractors or Clients, or upon any other person
All references in this Agreement to "Articles," "Sections" and "Exhibits"
refer to the articles, sections and exhibits of this Agreement.
As used in this Agreement, neutral pronouns and any variations thereof shall be deemed to include the
feminine and masculine and all terms used in the singular shall be deemed to include the plural, and vice
versa, as the context may require.
The words "hereof", "herein" and "hereunder" and other words of similar
import refer to this Agreement as a whole, as the same may from time to time be amended or supplemented,
and not to any subdivision contained in this Agreement.
The word "including" when used herein is not intended to be exclusive and means "including,
but not limited to."
Each of the Parties and their counsel have carefully reviewed this Agreement, and, accordingly, no rule
of construction to the effect that any ambiguities in this Agreement are to be construed against the
drafting Party shall apply in the interpretation of this Agreement.
The article and section headings and titles appearing in this Agreement are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or extent of such section or in
any way affect this Agreement or the interpretation hereof.
Force Majeure. Except with regard to any obligation to pay money hereunder, neither Party
hereto shall be held responsible for any delay or failure in performance hereunder caused in whole or in part
by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, telecommunications
failure, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with
any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other
cause beyond such Party's control. If any such contingency does occur, the time to perform an obligation under
this Agreement affected thereby shall be deemed extended by the length of time such contingency continues.
Entire Agreement. This Agreement together with the SOW, which are hereby incorporated
herein by this reference, contain all the agreements, representations, and understandings of the Parties and
supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the
subject matter of this Agreement. To the extent there is any inconsistency between a term of this Agreement
and a term of any SOW, the term in this Agreement shall govern the performance of Services thereunder.
Modification. This Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each Party (including an SOW) that expressly states the sections of this
Agreement to be modified; no other act, usage, or custom shall be deemed to amend or modify this Agreement.
Each Party hereby waives any right it may have to claim that this Agreement was subsequently modified other
than in accordance with this Section 13.12.
Purchase Orders. Client may, for purposes of administrative convenience, use Client's
standard form of purchase order to order Services. The Parties understand and agree that any terms or
conditions on any such purchase order in any way different from or in addition to the terms and conditions of
this Agreement shall have no effect whatsoever and nickgreene.com hereby rejects all such terms and
No Refunds. Because digital services include non-tangible services, along with consulting
and expertise in web marketing and web development, no refunds are provided after payments are given.
Completion of Services and Approval of Services Rendered. Client shall sign off on work
after completion of services, may can include either actual signatures to paper form or via email
communications. Such approval confirms that Client believes the services given are full, complete and without
error, and exonerates nickgreene.com from any issues, circumstances, or otherwise implications thereafter.
Font Usage. If used, fonts used in artwork are not provided to Client for any reason. Fonts
are purchased by and for nickgreene.com for purposes of its uses exclusively.
Web Browser Clauses. nickgreene.com supports the latest versions of web browsers: Internet
Explorer, FireFox, Safari, & Chrome.
Design Size. nickgreene.com designs and builds all desktop website projects to fit the 1024
pixels by 768 pixels browser window size. This is the size most compatible with all desktop users. The default
size for mobile device screens is 320 pixels by 326 pixels.
Footer Tag/Link. nickgreene.com will place small tag at bottom of Client's website to state
it has either designed or is hosting (or both) the Client's website. nickgreene.com will not use a font size
larger than 12 (twelve) pixels. Colors are set to the disgretion of the nickgreene.com.
Termination/End of nickgreene.com Business. In the event the nickgreene.com ceases to exist
as a fully operational business entity, and when nickgreene.com no longer maintains an active status with the
Department of the Secretary of the State of North Carolina, the Client is entitled to full access to the
source code and master files used for the Client Project.
Search Engine Placement. Unless this project is specifically pertaining to Search Engine
Optimization services as outlined in the SOW, no claims are being made about the placement of Client's website
in the search engines. Google, Yahoo, Bing and other search engine may or may crawl and index the website, and
such actions are at the sole discretion of the search engines.
Monthly Hosting and Maintenance Fees. Though rare, in the event a monthly/quarterly invoice
is mailed to Client, Client is liable for the correct payment as agreed upon in this statement of work,
regardless of the error made by nickgreene.com.
Extensive Project Delay Clause. In the event the Client delays the project, which exceeds a
ninty (90) day period starting on day initial down payment and signed paperwork is received by nickgreene.com,
the final payment will be due after a period of ninty (90) days to resume the project.
NC Sales Tax. As of January 1, 2010 the state of North Carolina requires service agencies
(marketing, web, etc.) to charge sales tax on certain aspects of work and digital property (more info at
www.dornc.com.) Certain taxes may apply to the services
outlined in this contract, but are not actually included in this agreement. Client will be responsible for any
and all such sales tax if applicable.
Source Code. The code developed by nickgreene.com for the applications needed for this
project is exclusively intellectual property of nickgreene.com, and is not for sale or access. Client is
purchasing the non-exclusive rights to use such code and applications for purposes of website management and