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- How This Agreement Works. Client will be asked to sign a Statement of Work Agreement ("SOW") that describes the services he or she has chosen and the related fees. The SOW will incorporate this Master Services Agreement. It may also incorporate an addendum to this Master Services Agreement if Client is purchasing services for which nickgreene.com has special legal terms. When nickgreene.com uses the term "Agreement" in any of these documents, it is referring collectively to all of them. The Agreement is effective as of the time that Client signs the SOW prepared by nickgreene.com.
- Defined Terms. Some words used in the Agreement have particular meanings:
- "Acceptable Use Policy" or "AUP" means the nickgreene.com Acceptable Use Policy posted at http://www.nickgreene.com/legal/aup as of the date Client signs the SOW.
- "Business Day" or "Business Hours" means 10:00 a.m. - 5:00 p.m. Monday through Friday, United States eastern time, excluding federal public holidays in the United States.
- "Confidential Information" means all information disclosed by either Party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Client, all information transmitted to or from, or stored on, nickgreene.com servers or other devices, (ii) for nickgreene.com, unpublished prices and other terms of service, audit and security reports, data center designs (including non-graphic information Client may observe of a data center), and other proprietary technology, and (iii) for both Party, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by either Party on our own, without reference to the other's Confidential Information, or that becomes available to either Party other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.
- "Hosting Services" means the information technology used to host the content, website, otherwise, digital content. services described in the SOW or any agreements used by nickgreene.com.
- "Personally Identifiable Information" means: (i) any information that identifies an individual, such as name, social security number or other government issued number, date of birth, address, telephone number, biometric data, mother's maiden name, or other personally identifiable information; (ii) any "non-public personal information" as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, Section 6809(4), and (iii) "protected health information" as defined in the Health Insurance Portability and Accountability Act found at 45 CFR Section 160.103.
- "Service" or "Services" means the design services, programming services, coding services, cascade style sheeting services, interactive design or programming, marketing services, hosting services, logo design, print design services, and any additional or amended Services nickgreene.com may provide to Client, collectively.
- Our Obligations. nickgreene.com will provide the Services to the standards stated in the Service Level Agreement for the term of the Agreement.
- Client Obligations. Client must use reasonable security precautions in light of its use of the Services, including encrypting any Personally Identifiable Information transmitted to or from, or stored on, the nickgreene.com servers or storage devices Client uses. Client must comply with the laws applicable to its use of the Services and with nickgreene.com's Acceptable Use Policy. Client must cooperate with nickgreene.com's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. Client must provide nickgreene.com with accurate information to help nickgreene.com determine if any tax is due with respect to the provision of the Services. Client is responsible for keeping your billing and other account information up to date. Client must pay when due the fees for the Services stated in the SOW(s) or other agreement between nickgreene.com and Client.
- Non-Obligatory Terms.
- nickgreene.com does not guarantee the Services will be uninterrupted, error-free, or completely secure. Client acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Client's privacy, Confidential Information and property.
- nickgreene.com disclaims any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. Client is solely responsible for the suitability of the service chosen. Unless otherwise agreed, all Services are performed on an "AS IS, AS AVAILABLE" basis. nickgreene.com does not guarantee the back up of Client data unless Client has purchased related, separate back up services.
- nickgreene.com does not guarantee the retention of the data back up for longer than the agreed data retention period.
- Unauthorized Access to Client Data or Use of the Services. nickgreene.com is not responsible to Client for unauthorized access to Client's data or the unauthorized use of the Services unless the unauthorized access or use results from nickgreene.com's failure to meet its security obligations stated in the Agreement. Client is responsible for the use of the Services by any Client employee, any person to whom Client has given access to the Services, and any person who gains access to Client's data or the Services as a result of Client's failure to use reasonable security precautions, even if such use was not authorized by Client.
- Changes to the Acceptable Use Policy. nickgreene.com may change its Acceptable Use Policy to add restrictions on Client's use of the Services provided that any new restrictions are reasonable and consistent with hosting industry norms. Any changes to the AUP made during the term of Client's Agreement will become effective to Client upon the first to occur of: (i) renewal, (ii) Client's execution of a new/additional SOW for Client's configuration that incorporates the revised AUP by reference, or (iii) thirty days following nickgreene.com's notice to Client describing the change. If a change to the AUP materially and adversely affects Client, Client may terminate the Agreement by giving nickgreene.com written notice of termination on such grounds no later than thirty days following the date the change became effective as to Client. nickgreene.com will not charge Client an early termination fee for a termination on such grounds. If Client terminates its Service because nickgreene.com has modified its AUP in a way that adversely affects Client, nickgreene.com may decide to waive that change to Client and keep Client's Agreement in place for the remainder of the term.
- Suspension of Services. Client agrees that nickgreene.com may suspend Services without liability if: (i) nickgreene.com reasonably believes that the Services are being used in violation of the Agreement; (ii) Client does not cooperate with nickgreene.com's reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on Client's websites(s) or service(s), Client's website(s) is accessed or manipulated by a third party without Client's consent, or there is another event for which nickgreene.com reasonably believes that the suspension of Services is necessary to protect the nickgreene.com network or its other customers, or (iv) required by law. nickgreene.com will give Client advance notice of a suspension under this paragraph of at least twelve Business Hours unless it determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect nickgreene.com or its other customers from imminent and significant operational or security risk.
- Termination for Breach.
- Client may terminate the Agreement for breach if: (i) nickgreene.com materially fails to provide the Services as agreed and does not remedy that failure within ten days of Client's written notice describing the failure, or (ii) nickgreene.com materially fails to meet any other obligation stated in the Agreement and does not remedy that failure within thirty days of Client's written notice describing the failure.
- nickgreene.com may terminate the Agreement for breach if: (i) it discovers that the information Client provided for the purpose of establishing the Services is materially inaccurate or incomplete, (ii) the individual signing the Agreement did not have legal right or authority to enter into the Agreement on behalf of the person represented to be the Client, (iii) Client's payment of any invoiced amount is overdue and Client does not pay the overdue amount within five (5) Business Days of written notice by nickgreene.com, or (iv) Client fails to comply with any other provision of the Agreement and does not remedy the failure within thirty (30) days of notice from nickgreene.com to Client describing the failure. nickgreene.com may also terminate the Agreement for breach if Client violates the AUP more than once even if the Client cures each violation.
- Termination for Convenience. nickgreene.com may terminate the Agreement for convenience at any time on thirty (30) days advance written notice.
- Early Termination Fee. If Client terminates the Agreement for convenience or nickgreene.com terminates the Agreement for Client's breach, in addition to other amounts Client may owe, Client must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term.
- Confidential Information. Each Party agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each Party agrees not to disclose the other's Confidential Information to any third person except as follows:
- to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Master Services Agreement,
- to law enforcement or government agency if requested, or if either of us reasonably believes that the other's conduct may violate applicable criminal law;
- as required by law; or
- in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
- Publicity. Client agrees that nickgreene.com may publicly disclose that it is providing services to Client, and may include Client's name in promotional materials including press releases and on the nickgreene.com website. This may include the use of the Client's logo or identity. If Client does not wish for nickgreene.com to use its logo or identity for these stated reasons, then Client must provide written notice in the form of an agreement, signed by both parties.
- Limitation on Damages.
- nickgreene.com is not liable to Client for failing to provide the Services unless such failure results from a breach of the deployment guaranty stated in the SOW, a breach of the Service Level Agreement, or results from nickgreene.com's gross negligence, willful misconduct, or intentional breach of the Agreement. The dollar credits stated in the SOW Form and Service Level Agreement are Client's sole and exclusive remedy for our failure to meet those guaranties for which dollar credits are provided unless such failure is due to nickgreene.com's willful misconduct.
- Neither Party (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either Party be liable to the other for any punitive damages.
- nickgreene.com is not liable to Client for lost data unless and to the extent Client has purchased specific data back up services from nickgreene.com, and nickgreene.com fails to provide the back up services as agreed. Client releases nickgreene.com from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a back up.
- Notwithstanding anything in the Agreement to the contrary, except for claims based on its willful misconduct, the maximum aggregate monetary liability of nickgreene.com and any of its employees, agent, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed three times the monthly recurring fee payable under the SOW(s) in effect for the configuration at the time of the occurrence of the event(s) giving rise to the claim.
- If Client, Client's affiliates, or any of Client's or their respective employees, agents, or suppliers, is faced with: (i) a legal claim by a third party arising out of nickgreene.com's actual or alleged gross negligence, willful misconduct, violation of law, or failure to meet the security obligations required by the Agreement, or (ii) a legal claim by a third party alleging that the Hosting Service infringes on the United States patent or copyright of a third person, then, subject to the limitations stated in this agreement, nickgreene.com will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on you as a result of the claim.
- If nickgreene.com, its affiliates, or any of its or their respective employees, agents, or suppliers is faced with a legal claim by a third party arising out of Client's actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of Client's agreement with Client's customers or ends users, violation of Section 13.1 (Export) of the Professional Services Agreement, then Client will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on nickgreene.com as a result of the claim. Client's obligations under this subsection include claims arising out of the acts or omissions of Client's employees, any other person to whom Client has given access to the Services, and any person who gains access to the Services as a result of Client's failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Client.
- Client must also pay reasonable attorney fees and other expenses incurred by nickgreene.com in connection with any dispute between persons having a conflicting claim to control Client's account with nickgreene.com, or any claim by Client's customer or end user arising from an actual or alleged breach of Client's obligations to those persons.
- If either Party receives notice of a claim that is covered by this Section, the notice must be promptly forwarded to the financially responsible party. The party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible party. The party against whom the claim is made may not settle the claim without the consent of the financially responsible party, although such consent may not be unreasonably withheld. Notwithstanding anything to the contrary in this Section, if nickgreene.com are financially responsible under this Section for claims against multiple customers, nickgreene.com may elect to choose counsel to defend the claims and control the defense of the claims. Amounts due under this Section must be paid by the financially responsible party as they are incurred by the party against whom the claim is made.
- Software. Client may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for his or her use. Unless permitted by the terms of an open source software license, Client may not reverse engineer, decompile or disassemble any software nickgreene.com provide for Client use except and to the extent that Client is expressly permitted by applicable law to do this, and then following at least ten days advance written notice to nickgreene.com. In addition to the terms of the Agreement between both Parties, Client use of any Microsoft® software is governed by Microsoft's license terms, available via the Microsoft website. Any website being hosted by a party other than nickgreene.com requires the hosting party to install source code protection software known as loaders. These loaders and the associated source code protection software to be used is at the sole discretion of nickgreene.com.
- Other People's Products and Services. nickgreene.com may from time to time arrange for Client to purchase or license third party software, services or other products that are not included as part of the Hosting Service. NICKGREENE.COM MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN CLIENT AND NICKGREENE.COM, SUCH SERVICES ARE PROVIDED "AS IS." Clients use of any third party software, services, and other products is governed by the terms of his or her agreement with the third party.
- Who May Use the Service. Client is responsible for use of the Service by any third party to the same extent as if he or she were using the Service himself or herself. nickgreene.com will provide support only to the Client, not to any other person he or she has has not authorized to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either Party under the Agreement.
- Notices. Client's routine communications regarding the Services should be sent to nickgreene.com via US Postal Mail service or by phone at 828-754-6425. If Client wants to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, he or she should send it by electronic mail and first class United States mail to:
565 Harper Ave SW, Suite A
Lenoir, NC 28645
nickgreene.com's routine communications regarding the Services and legal notices will be sent to the individual(s) designate by the Client as his or her contact(s) on his or her account either by United States mail, or overnight courier, except that nickgreene.com may give notice of an amendment to the AUP. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you send the notice via US Mail after the time that the notice is received. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
- Ownership of Other Property. Client does not acquire any ownership interest in or right to possess the servers or other hardware we provide for your use, and Client has no right of physical access to the hardware. nickgreene.com does not acquire any ownership interest in or right to the information Client transmits to or from or store on your website, extranet, portal, etc. or other devices. On termination of the Agreement Client must promptly release any Internet protocol numbers, addresses or address blocks assigned to Client in connection with the Service (but not any URL or top level domain or domain name) and agrees that nickgreene.com may take steps to change or remove any such IP addresses.
- Assignment. Client may not assign the Agreement without nickgreene.com's prior written consent. nickgreene.com may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business.
- Governing Law, Lawsuit. The Agreement is governed by the laws of the State of North Carolina, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Caldwell County, North Carolina, and both Parties agree not to bring an action in any other venue. Client waives all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. Client agrees that he or she will not bring or participate in any class action lawsuit against nickgreene.com or any of its employees or affiliates. Each Party agrees that he/she will not bring a claim under the Agreement more than two years after the time that the claim accrued.
- Some Agreement Mechanics. If Client signs multiple SOW's for any given project - for example, designing multiple websites, multiple applications, or hosting multiple websites, portals or extranets - then this Master Services Agreement referenced in the last signed SOW will govern the entire project.
A SOW may be amended by a formal written agreement signed by both Parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each Party. Any such correspondence that adds or modifies services in connection with a configuration established by a SOW shall be deemed to be an amendment to that SOW, notwithstanding the fact that the correspondence does not expressly refer to the SOW.
If there is a conflict between the terms of any of the documents that comprise the Agreement, all legal documents will govern, including any addendum to any agreement. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect. Each Party may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." Sections 8, 14, 15, 16, 17, 18, and 28, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If Client has made any change to the Agreement documents that he or she did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
The Agreement is the complete and exclusive agreement between Client and nickgreene.com regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.