Last modified: July 10, 2023
Parties:
Nimble Technology, Known as "Company"
and
The "Client"
Collectively, all of the above people or businesses entering this Agreement will be referred to as the "Parties."
This contract (the “Agreement”) is entered into by and between the above named parties (the “Parties”).
Purpose of agreement
The best work comes out of great relationships. Honesty, respect and gratitude are the keys to a great relationship and therefore we have an interest in treating each other with these values at all times. As much as legal documents are important, what truly binds us is our drive to do great work with great people and to develop a relationship of mutual respect and trust.
Cost, Fees and Payment
Client shall pay the Total Cost as quoted to Company.
Changes. Any material changes to the Services, including work to be performed and related fees must be approved by the prior written consent of both parties.
Deposit. The deposit is synonymous with our retainer fee, and is nonrefundable.
Expense Reimbursement. Client shall reimburse all expenses that are reasonable and that have been authorized in writing by Client in advance; payable within 15 days of itemized invoice.
Cancellation Fee. If the Client terminates this Agreement earlier without cause, Company will charge a cancellation fee assessed in fair percentage of the outstanding balance on the contract.
Late Payment. In the event an invoice is not paid on time, to the maximum extent allowable by law, Company may at its discretion charge 10% of the total contract cost as a late payment fee for the first 30 days of lateness, and up to 20% of the total thereafter.
Company's acceptance of such service charges does not waive its rights to any remedies for Client’s breach of this Agreement. All payment obligations are non-cancelable and fees paid are non-refundable.
Collaboration
Acceptances. The undersigned representative of Client has the authority to enter into this Agreement on behalf of Client. Client agrees to cooperate and to provide Company with everything needed to complete the Services as, when and in the format requested by Company.
Company has the experience and ability to do everything Company agreed to for Client and will do it all in a professional and timely manner. Company will endeavor to meet every deadline that’s set and to meet the expectation for Services to the best of its abilities.
Confidentiality & Non-Disclosure. Each party shall maintain, in the strictest confidence, all Confidential Information (as defined in the next sentence) of the other party. “Confidential Information” means all (i) nonpublic information (at the time of disclosure) disclosed by one party to the other party under this Agreement, provided such information is marked or indicated by the disclosing party to be confidential; (ii) and any information which ought reasonably be considered confidential with regard to the circumstances surrounding disclosure, whether or not such information is marked “Confidential”.
In the event a party is required to disclose Confidential Information pursuant to a judicial or other governmental order, such party shall, to the maximum extent permitted by law or opinion of counsel, provide the other party with prompt notice prior to any disclosure so that the party or its client may seek other legal remedies to maintain the confidentiality of such Confidential Information.
Each party receiving Confidential Information shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents and such party agrees to indemnify and hold harmless the other party from and against any liabilities, claims, damages, losses, costs and expenses resulting, directly or indirectly, from any breach by a party, or any of its employees or independent contractors, of any provision of this Agreement. The obligations of this Section shall survive termination of this Agreement for a period of 3 years.
Delivery of Services. Company will provide all Services in a timely manner and in keeping with the timeline outlined when quoting services, barring covered events.
Exclusivity. Client understands and agrees that he or she has hired Company exclusive of any other service provider. In order to provide a high level of satisfaction and quality of service, no other service providers, other than any assistant or third party that Company hires to complete the Services outlined in this Agreement, are permitted to provide the same or similar services or products, paid or unpaid, at the locations and dates specified in this Agreement.
Governing Law and Dispute Resolution. This Agreement and any dispute arising hereunder shall be governed by the laws of the jurisdiction of Company's primary business location (the “Company's Jurisdiction”), without regard to the conflicts of law provisions thereof. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in the Company's jurisdiction.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
Payment Terms. Client understands the importance of paying Company in a timely manner and wants to maintain a positive working relationship with Company to keep the project moving forward.
Payments for each invoice delivered by Company to Client are due within 7 days of receipt. In case of overdue payments, Company reserves the right to stop work until payment is received.
Relationship of Parties. Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between Company and Client. Both Parties agree that Company is, and at all times during this Agreement shall remain, an independent entity and its employees independent contractors.
Right to Authorship Credit. Both Parties agree that when asked, Client must properly identify Company as the creator of the deliverables. Client does not have a proactive duty to display Company's name together with the deliverables, but Client may not seek to mislead others that the deliverables were created by anyone other than Company.
Client hereby agrees Company may use the work product as part of Company's portfolio and websites, galleries and other media solely for the purpose of showcasing Company's work but not for any other purpose.
Company will not publish any confidential or non-public work without Client’s prior written consent.
Term & Termination
Either Party may terminate this Agreement at any time, with or without cause, upon 7 days written notice. In the case of ongoing support subscription service, notice of termination must be given by Client in writing, to support@thenomadsway.net, 30 days prior to termination date.
If this Agreement is terminated earlier by Client without cause, Client agrees to pay Company any and all sums which are due and payable for: (i) services provided as of the date of termination; and (ii) expenses already incurred, including those from documented non-cancelable commitments (including work already assigned with the contractor bearing reasonable expectation of payment, or for 30 days thereafter of subscription support). Company agrees to use the best efforts to minimize such costs and expenses.
Termination for any reason shall not affect the rights granted to Client by Company hereunder. Upon termination, Client shall pay to Company all undisputed amounts due and payable. If upon termination Client has not paid undisputed fees owed for the material, deliverables or Services provided by Company as of the date of termination, Client agrees not to use any such material or the product of such Service, until Client has paid Company in full. Any provisions or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary in this Agreement, Company shall retain a perfected security interest in the deliverable or material until Client has made payment in full for all undisputed amounts as of the termination date. Company hereby agrees to release and waive its security interest in the deliverable and material upon receipt of full payment for all undisputed amounts.
Warrants
Company warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Company may have to others; (ii) none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe or violate any intellectual property or other right of any person or entity (including, without limitation, Company); (iii) Company has the full right to provide Client with the assignments and rights provided for herein; (iv) Company shall comply with all applicable laws in the course of performing the Services and (v) if Company's work requires a license, Company has obtained that license and the license is in full force and effect.
EXCEPT AS SET FORTH IN THIS ATTACHMENT B, COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, COMPLETENESS OR RESULTS TO BE DERIVED FROM THE WORK.
EXCEPT AS SET FORTH HEREIN, ALL DELIVERABLES ARE DELIVERED ON AN “AS-IS” BASIS.
Intellectual Property
Copyright Ownership. In the event that any copyrighted work(s) are created as a result of the Services provided by Company in accordance with this Agreement, Company owns all copyrights in any and all work(s) it creates or produces pursuant to federal copyright law (Title 17, Chapter 2, Section 201-02 of the United States Code), whether registered or unregistered. Any and all products, whether tangible or intangible, produced or created in connection with, or in the process of fulfilling this Agreement, are expressly and solely owned by Company and may be used in the reasonable course of Company business.
Permitted Uses of Product(s). Company grants to Client a non-exclusive license of product(s) produced with and for Client for personal use only so long as Client provides Company with attribution each time Client uses Company's property. Personal use includes, but is not limited to, use within the following contexts:
In photos on Client’s personal social media pages or profiles; or
In personal creations, such as a scrapbook or personal gift; or
In personal communications, such as a family newsletter or email or holiday card.
Artistic Release
Style. Client has spent a satisfactory amount of time reviewing Company's work and has a reasonable expectation that Company will perform the Services in a similar manner and style unless otherwise specified in this Agreement.
Consistency. Company will use reasonable efforts to ensure Client's desired Services are produced in a style and manner consistent with Company current portfolio and Company will try to incorporate any reasonable suggestion made by Client. However, Client understands and agrees that:
Appropriate Conduct/ Safe Working Environment.
Appropriate Conduct. Client and Company will seek to maintain a professional relationship that is free from harassment of any kind and from any other offensive or disrespectful conduct. The Client(s) expressly agree(s) to take best efforts to provide Company and Company's staff with safe and appropriate working conditions. If at any time during the term of this Agreement Company or its representatives or its independent contractors or a bystander believe that he/she/it/they has been subjected to harassing behavior, threat, or implied threat of injury or harm to Company staff or equipment on the part of Client or Client’s staff, the Company reserves the right to cancel all services remaining under this Agreement and leave if performing services on-location. Such behavior will constitute a breach of this Agreement and entitle Company to terminate this Agreement in accordance with the Agreement’s Term and Termination Clause, and be paid in full for the ordered project or for the planned monthly service hours, as applicable, without limiting any other right or remedy available to Company by law.
At its discretion, Company will notify Client immediately and demand that appropriate actions will be taken to correct the matter. In the event that the reported behavior continues following Company's second notice, such behavior will constitute a breach of this Agreement and entitle Company to terminate this Agreement in accordance with the Agreement’s Term and Termination Clause, and be paid in full for the ordered project or for the planned monthly service hours, as applicable, without limiting any other right or remedy available to Company by law.
General Provisions
Governing Law. The laws of Washington State govern all matters arising out of or relating to this Agreement, including torts.
Severability. If any portion of this Agreement is deemed to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force.
Notice. Parties shall provide effective notice (“Notice”) to each other via email, which must be received within 24 hours of sending.
Merger. This Agreement constitutes the final, exclusive agreement between the parties relating to the Services contained in this Agreement. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.
Amendment. The parties may amend this Agreement only by the parties’ written consent via proper Notice.
Limit of Liability
Maximum Damages. Client agrees that the maximum amount of damages he or she is entitled to in any claim relating to this Agreement or Services provided in this Agreement are not to exceed 40% of the Total Cost of Services provided by Company. In the case of ongoing Support Services, they are not to exceed 30% of the most recent 30 Day's payment.
Loss of Product. In the event that any or all product(s) are lost, such as damage to or loss of a component of the product necessary for final delivery, Company shall refund Client a pro-rated portion of the Total Cost based on the amount of Services that were completed/provided against the amount of Services that were agreed to be completed/provided.
Indemnification. Client agrees to indemnify, defend and hold harmless Company and its affiliates, employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action arising out of or related to Services and/or product(s) Company provides to Client.
Cancellation, Rescheduling and No-Shows
Cancellation, Rescheduling of Services or No-Show Client. If Client desires to cancel Services, reschedule Services, or if it becomes impossible for Company to render Services due to the fault of the Client or parties related to Client, such as failure of one or more essential parties to show up in a timely manner, Client shall provide notice to Company as soon as possible via written email or other messenger communication. Company has no obligation to attempt to re-book further Services to fill the void created by Client’s cancellation, rescheduling, no-show or if it becomes impossible for Company to provide the Services due to the fault of Client (or parties related to Client), and Company will not be obligated to refund any monies Client has previously paid towards the Total Cost. Client is not relieved of any payment obligations for cancelled Services, rescheduled Services, failing to show up for the project, or should it become impossible for Company to provide the services due to the fault of Client (or parties related to Client) unless the Parties otherwise agree in writing. For instance, if Company is able to secure another, unrelated client to replace the Client for the duration of the project term, then Company may choose, at its sole discretion, to excuse all (or a portion of) Client's outstanding balance of the Total Cost.
Impossibility
Force Majeure. Notwithstanding the above, either party may choose to be excused of any further performance obligations in the event of a disastrous occurrence outside the control of either party, such as, but not limited to:
Failure to Perform Services. In the event Company cannot or will not perform its obligations in any or all parts of this Agreement, it (or a responsible party) will:
Miscellaneous
The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.
Entire Agreement
This Agreement, and any exhibits, schedules or attachments, between the Parties supersedes any previous arrangements, oral or written, and may not be modified in any respect except by a future written agreement signed by both Parties.
Signatures
In accepting these Terms of Service, the Parties have executed this Agreement, as of the date of submission of the service agreement / subscription form (the “Effective Date”).