Professional Services Agreement

  1. 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.
  2. Term and Termination.
    1. 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 satisfied.
    2. 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.
    3. 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.
    4. 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.
  3. Independent Contractor; Use of Subcontractors. nickgreene.com is an independent 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.
  4. Pricing and Payment Terms.
    1. Services. Client shall pay nickgreene.com for Services in accordance with the fees established in the relevant SOW.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
  5. Warranty and Acceptance of Deliverables.
    1. 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.
    2. 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 Section.
    3. 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.
    4. 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.
  6. Disclaimers.
    1. 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.
    2. 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.
    3. 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.
  7. 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.
  8. 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.
  9. Confidential Information.
    1. 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.
  10. Proprietary Rights.
    1. 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).
    2. 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.
    3. 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.
    4. 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.
  11. 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.
  12. Client Obligations Regarding Maintenance.
    1. 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.
  13. General.
    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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 principles.
    6. 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.
    7. 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.
    8. 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 or entity.
    9. Construction.
      1. All references in this Agreement to "Articles," "Sections" and "Exhibits" refer to the articles, sections and exhibits of this Agreement.
      2. 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.
      3. 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.
      4. The word "including" when used herein is not intended to be exclusive and means "including, but not limited to."
      5. 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.
      6. 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.
    10. 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.
    11. 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.
    12. 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.
    13. 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 conditions.