Client Agreement
CLIENT DESIRES TO RETAIN THE SERVICES OF NOBLE WISE MARKETING (“NWM”), AND NWM DESIRES TO PROVIDE SUCH SERVICES AND BOTH PARTIES AGREE TO THE TERMS AND CONDITIONS OF THEIR AGREEMENT AND THEIR UNDERSTANDINGS.
IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS, PROMISES, AND AGREEMENTS HEREIN CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATIONS, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES, INTENDING TO BE LEGALLY BOUND HEREBY, AGREE AS FOLLOWS:
1. Services. NWM agrees to perform for Client the services listed in the Scope of Services as set forth in the Proposal document, which is incorporated herein by reference (the "Services"). NWM shall have access to Client's staff and resources as deemed necessary by NWM, in NWM's sole and absolute discretion, to perform the Services provided for by this Agreement.
2. Service Fees. Clients must stay in the program for a minimum of 90 days. Client agrees to pay NWM for Services in accordance with the schedule contained in Exhibit A attached hereto and incorporated herein by reference. Any “Engagement Initiation Fee” listed in Exhibit A is due immediately upon signing of contract. No work will commence until such fees are paid. The initiation fee will be subtracted from the final invoice at the end of the engagement.
3. Expenses. Since NWM is providing virtual / remote done for you lead generation services, the expense terms should be not applicable. However, the normal expense terms are:
(a) Expenses will be direct billed to Client wherever possible. Client agrees to reimburse NWM for all reasonable out of pocket expenses, including but not limited to airfare, hotel, rental car, telephone calls, fax, and courier expenses. Client will be billed at a reduced rate for travel time over one (1) hour per trip. Client travel service and / or vendor agreements will be utilized wherever possible.
(b) In case of international assignments: Client agrees to provide business class tickets for airfare and to pay a per diem per person equivalent to $50 USD based on the conversion rate at the start of the engagement. This per diem is in addition to actual expense reimbursement.
4. Payment Terms. Client agrees to pay, as specified in Exhibit A, in advance of the delivery of services by NWM. If client choses to pay via check, check payments must be received by NWM at least 15 days prior to the commencement of services. In the event that Client’s account is turned over to a collection agency, Client will be responsible for any collection fees (33.33%), reasonable attorney fees, court costs, etc. Any NSF (non sufficient funds) or returned checks will be assessed a $30.00 USD fee.
5. Confidential Information.
(a) In the course of performing the Services referenced herein, NWM and Client may come into possession of the other parties' financial and/or other business information pertaining to such other parties' business that is not published or readily available to the public, including, but not limited to, trade secrets, research, development, marketing concepts and plans, training, pricing information, sales techniques, lists of customers and vendors and other information pertaining to the business conducted by either NWM or Client that is received from the agents or employees of either party ("Confidential Information"). Confidential Information shall not include information that is generally known or easily ascertainable by third parties of ordinary skill and competence in computer system design and programming, nor shall it include information already known to the receiving party or disclosed to the receiving party by a third party without violation of a duty of confidentiality to the disclosing party.
(b) NWM and Client each acknowledge and agree that Confidential Information is important to, and greatly affects the success of, both parties in a competitive marketplace. NWM and Client agree that during the course of their relationship and at all times thereafter, NWM and Client shall hold in the strictest confidence, and shall not use for either parties' personal benefit, or disclose, duplicate or communicate to or use for the direct or indirect benefit of any other person, firm, NWM or entity, any Confidential Information without the prior written consent of the other party, or unless NWM is required to do so in order to perform the Services, or pursuant to a court order or by operation of law.
6. Staff. NWM is an independent contractor company working in conjunction with Mojo Global. Any references to NWM staff, also include Mojo Global contractors and employees.
(a) Neither NWM nor NWM's staff is or shall be deemed to be employed by Client. Client is hereby contracting with NWM for the Services described the Proposal document and NWM reserves the right to determine the method, manner and mean by which the Services will be performed. NWM is not required to perform the Services during a fixed hourly or daily time and if the Services are performed at the Client's premises, then NWM’s time spent at the premises is to be at the discretion of the NWM; subject to the Client's normal business hours and security requirements.
(b) NWM hereby confirms to Client that Client will not be required to furnish or provide any training to NWM to enable NWM to perform Services required hereunder. However, client will make resources available to provide whatever information NWM needs to provide the services in the Proposal document. The Services shall be performed by NWM or NWM's staff, and Client shall not be required to hire, supervise or pay any assistants to help NWM perform the Services under this Agreement. NWM shall not be required to devote NWM's full time nor the full time of NWM's staff to the performance of the services required hereunder, and it is acknowledged that NWM has other clients and NWM offers services to the general public.
(c) The order or sequence in which the work is to be performed shall be under the control of NWM. Except to the extent that the NWM's work must be performed on or with Client's computers or Client's existing software, all materials used in providing the Services shall be provided by NWM. NWM's Services hereunder cannot be terminated or cancelled short of completion of the Services agreed upon except for NWM's failure to perform the Agreement's specification as required hereunder and conversely, subject to Client's obligation to make full and timely payment(s) for NWM's Services as set forth in the Proposal document. There are no guarantees of Client results other than any that may be specified in the Proposal document. However, NWM shall be obligated to complete the Services agreed upon and shall be liable for non‑performance of the Services to the extent and as provided in Paragraph 10 hereof.
(d) Client shall not provide any insurance coverage of any kind for NWM or NWM's staff, and Client will not withhold any amount that would normally be withheld from an employee's pay. NWM shall take appropriate measures to ensure that NWM's staff is competent and that they do not breach Section 5 hereof.
(e) Each of the parties hereto agrees that while NWM is performing Services under this Agreement and for a period six (6) months following the performance of such Services or the termination of this Agreement, whichever is later, neither party will, except with the other party's written approval, solicit or offer employment as an employee, consultant, independent contractor, or in any other capacity to the other party's employees or staff engaged in any efforts under this Agreement.
7. Use of Work Product. Except as specifically set forth in writing and signed by both Client and NWM, NWM shall have all copyright and patent rights with respect to all materials developed in the course of performing the Services under this Agreement, and Client is hereby granted a non-exclusive license to use and employ such materials within the Client's business.
(a) The rights granted here are an expansion of the rights granted under the Copyright Act and do not include any rights to reproduce in its entirety any portion of the information or materials contained therein. No part of the information may be duplicated in any medium or format beyond the express terms of this Agreement without prior written authorization from NWM. Any use not authorized by the Agreement is prohibited and is not a fair use under the U.S. copyright law.
(b) Client acknowledge that the information (and the licensed materials contained therein) is highly proprietary in nature and that unauthorized copying, transfer or use may cause NWM and/or NWM’s suppliers irreparable injury that cannot be adequately compensated for by means of monetary damages. Client agree that any breach of this provision by Client, or any subscriber or end-user, may be enforced by NWM, and/or any of Mojo Video Marketing’s suppliers, by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies.
(c) Client agree that any supplier of any portion of the licensed materials may enforce its rights against Client, even though that supplier is not a party to the Agreement.
(d) Client may not and may not permit others to: reproduce, publish, distribute, sell, or otherwise access or use any material retrieved from or contained in or on this Site in any manner whatsoever that may infringe any copyright or proprietary interest of NWM; distribute the information contained in and / or on this Site to other users not duly authorized to Access the Site; distribute, rent, sublicense, lease, transfer or assign the information or Agreement; decompile, disassemble, or otherwise reverse-engineer this Site or information contained in or on this Site or any software contained therein, or alter, translate, modify, or adapt it to create derivative works. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.
(e) Client are expressly prohibited from placing or installing any portion of the information on any electronic media, including, but not limited to, local or wide area networks, timesharing services, multiple processing units, multiple site arrangements, service or software rental bureaus, list servers, online services, electronic bulletin boards or forums, World Wide Web sites or any other server that is Internet-enabled, without written authorization by Noble Wise Marketing.
(f) If Client breaches any provision of this Agreement, NWM may immediately terminate this Agreement and all licenses granted hereunder without prior notice and in addition to any other available rights and remedies.
8. Disputes. Any disputes that arise between the parties with respect to the performance of this Agreement shall be submitted to binding arbitration in the United States metropolitan Atlanta, Georgia area by the American Arbitration Association, to be determined and resolved by said Association under its rules and procedures in effect at the time of submission and the parties hereby agree to share equally in the costs of said arbitration.
9. Taxes. Any and all taxes, except income taxes, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes, shall be paid by the Client.
LIMITED WARRANTY
10. LIABILITY. NWM WARRANTS TO CLIENT THAT THE MATERIAL, ANALYSIS, DATA PROGRAMS AND SERVICES TO BE DELIVERED OR RENDERED HEREUNDER, WILL BE OF THE KIND AND QUALITY DESIGNATED AND WILL BE PERFORMED BY QUALIFIED PERSONNEL. SPECIAL REQUIREMENTS FOR FORMAT OR STANDARDS TO BE FOLLOWED SHALL BE ATTACHED AS AN ADDITIONAL EXHIBIT AND EXECUTED BY BOTH CLIENT AND NWM. NWM MAKES NO OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. IN NO EVENT SHALL NWM BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, DATA, OR USE BY CLIENT OR ANY THIRD PARTY, REGARDLESS OF WHETHER A CLAIM OR ACTION IS ASSERTED IN CONTRACT OR TORT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO NWM IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY NWM, AND IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE THEN THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY IN FORESEEING POSSIBLE DAMAGES ALL LIABILITY TO CLIENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
11. Complete Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of NWM by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Client acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. In the event of a conflict in the provisions of any attachments hereto and the provisions set forth in this Agreement, the provisions of such attachments shall govern.
12. Applicable Law. NWM shall comply with all applicable laws in performing Services but shall be held harmless for violation of any governmental procurement regulation to which it may be subject but to which reference is not made in the Proposal document. This Agreement shall be construed in accordance with the laws of the State indicated by the NWM's address.
13. Scope of Agreement. If the scope of any of the provisions of this Agreement is too broad in any respect whatsoever to permit enforcement to its full extent, then such provisions shall be enforced to the maximum extent permitted by law, and the parties hereto consent and agree that such scope may be judicially modified accordingly and that the whole of such provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to conform to law.
14. Additional Work. After receipt of an order that adds to the Services initially provided for as set forth in the Proposal document associated with this Agreement, NWM may, at its discretion, take reasonable action and expend reasonable amounts of time and money based on such order. In the event NWM provides such additional Services requested by Client, Client agrees to pay NWM for such action and expenditure as set forth in Exhibit A of this Agreement for payments related to those Services.
15. Amendments. NWM may change the provisions of this Agreement. Client will be notified by email, if and when changes to the terms of this Agreement have been made.
16. Entire Agreement; Severability; No Waiver. This Agreement (including all documents incorporated by reference) is the entire agreement between the parties for its subject matter and supersedes all prior and contemporaneous communications between the parties. No term of this Agreement may be waived by NWM except in a signed, non-electronic writing signed by an authorized representative of NWM.
17. General. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that its remaining provisions will remain in full force and effect, provided that the allocation of risks described herein is given effect to the fullest extent possible. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that no joint venture, partnership, employment or agency relationship exists between you and NWM or its affiliates as a result of this Agreement or your use of the Site.
18. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to the benefits of the heirs, successors and assigns of the parties hereto.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
Responsible Party. All notices, requests, demands and other communications to NWM shall be, addressed as follows:
Sandra Noble
President
Noble Wise Marketing
4355 Cobb Pkwy, Suite J-217
Atlanta, GA 30339
404-374-3384
