Services Terms and Conditions
A client (“Client”) of The Nerdery, LLC (“Nerdery”) is bound to these Terms and Conditions (“Terms and Conditions”) when it executes a Statement of Work, as defined below, that has authorized Nerdery to provide services and expressly agreed to the terms and conditions set forth at this URL (nerdery.com/terms). Nerdery and Client may be referred to hereunder individually as a “Party” and collectively as the “Parties”. The “Effective Date” will be the date of the applicable Statement of Work.
In consideration of the mutual covenants and promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS; INTERPRETATION. Capitalized terms used herein will have the meanings ascribed to them in these Terms and Conditions. Words other than those defined herein will be given their plain English meaning, except for terms of art having specialized meanings in the software development and consulting industry, which will be construed in accordance with industry standards. Unless the context otherwise requires, words importing the singular include the plural and words importing the masculine include the feminine and vice versa.
1.1. Affiliate. “Affiliate” means any person or entity controlled by, controlling, or under common control of a Party. “Control” means the legal, beneficial, or equitable ownership, directly or indirectly, of more than 50% of the aggregate of all voting equity interests in the entity.
1.2. Agreement. “Agreement” means: (a) these Terms and Conditions and (b) any Statement(s) of Work, now or hereafter existing, which are hereby incorporated by reference.
1.3 Client Deliverables. “Client Deliverables” means anything that is designed, developed, and/or customized for a Client as specifically set forth in a Statement of Work, but excludes all Third Party Software, Tools and Delivered Tools.
1.4. Confidential Information. “Confidential Information” includes any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed deliverables and services, and includes, without limitation, information concerning current, future, and proposed Client Deliverables, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, marketing plans and information, rates, estimates, proposals, statements of work, statements of work, and communications between the Parties.
1.6. Deliverables. “Deliverables” means collectively, the Client Deliverables and Delivered Tools.
1.7. Delivered Tools. “Delivered Tools” are Tools, whether or not modified by Nerdery pursuant to this Agreement, where copies of such Tools are delivered to the Client as part of the Deliverables.
1.8. Disclosing Party. “Disclosing Party” is the Party to this Agreement that discloses Confidential Information to Receiving Party.
1.9. Expenses. “Expenses” includes costs related to: travel that Client has approved in writing; licenses; software; any sales, use, excise, or similar tax on products or services purchased on Client’s behalf by Nerdery; shipping costs incurred to ship materials to Client; and any third-party fees, including but not limited to those resulting from credit card payments, wire transfers, or bounced checks of Client. Other than travel costs, Expenses do not require Client approval.
1.10. Receiving Party. “Receiving Party” is the Party to this Agreement to whom Confidential Information is disclosed by Disclosing Party.
1.11. Scope Change. “Scope Change” means a written request by either Party to change any individual Statement of Work.
1.12. Services. “Services” means all services performed by Nerdery pursuant to this Agreement.
1.13. Statement of Work. “Statement of Work” is a detailed document describing the services, functions, responsibilities, and projects to be performed thereunder, expressly referencing Nerdery’s Terms and Conditions, or any similar document signed by the Parties’ authorized representatives that does not include a reference to any master services agreement, terms and conditions or similar agreement. Work authorizations, proposals, estimates, scopes of work, letters of intent and similar documents shall each be treated as a “Statement of Work” hereunder, unless or until superseded by a subsequent Statement of Work.
1.14. Third Party Software. “Third Party Software” means any code or software, including libraries, or other intellectual property, developed by a third-party. Third Party Software includes any software, programming or other intellectual property that: (a) contains or is derived in any manner (in whole or in part) from any software that is distributed as free software, open source software, shareware or similar licensing or distribution models; or (b) is subject to any agreement with terms requiring that such intellectual property be (i) disclosed or distributed in source code or object code form; (ii) licensed for the purpose of making derivative works; and/or (iii) freely redistributable by end users to third parties without payment of compensation.
1.15. Tools. “Tools” means any tools or software used by Nerdery to create, debug, maintain, or otherwise support, programs, software, and applications and includes material of a general abstract character that is used in, enhanced, or developed in the course of providing Services including: methodologies; delivery strategies, approaches, and practices; generic software tools, routines, and components; generic code libraries and code snippets, both open source and proprietary to Nerdery; generic content, research and background materials; training materials; application building blocks; templates; analytical models; project tools; inventions; solutions and descriptions thereof; know-how; and ideas.
1.16. Order of Precedence. The provisions of these Terms and Conditions will control over any conflicting provisions in a Statement of Work, unless the Statement of Work indicates the clear intent of the Parties that such conflicting provision prevail over a term or condition of these Terms and Conditions for that particular Statement of Work. A Statement of Work may also contain additional terms. The provisions of these Terms and Conditions will control over any standard or boilerplate terms and conditions included on any document provided by Client to Nerdery, including but not limited to purchase orders. Any such terms are unacceptable to and expressly rejected by Nerdery, are hereby waived by Client, and are not part of this Agreement.
1.17. Interpretation. The use of the terms “including,” “include”, or “includes” will in all cases herein mean “including without limitation,” “include without limitation”, or “includes without limitation,” respectively.
1.18. No Primary Drafter. The Parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises will not be construed to the detriment of the drafter on the basis that such Party or its professional advisor was the drafter, but will be construed according to the intent of the Parties as evidenced by the entire Agreement.
2. SERVICES. Subject to the terms of payment set forth herein, Nerdery agrees to provide Services and/or deliver Deliverables for Client as described in this Agreement.
2.1. Work by Nerdery. All Services performed and Deliverables provided under this Agreement will be performed under an individual Statement of Work, except as set forth in Section 2.6 below. Each Statement of Work will provide a description of the Services. Client acknowledges that features and functionality, including, but not limited to, wireframes, designs, descriptions, and itemized functionality, set forth in any documents other than the executed Statement of Work, will not be part of this Agreement unless expressly included in a Statement of Work. Client shall verify that the Statement(s) of Work provide a complete and unambiguous description of the requirements and specifications that it requires in the Services and/or Deliverables. Services may be billed at one of the following methods or such other method as the Parties may agree in the Statement of Work:
a. Fixed Price. Services completed for a fixed price are designated as “Fixed Price” projects. The Fixed Price does not include Expenses incurred by Nerdery. Client shall be responsible for all Expenses incurred. Fixed Price projects are limited to the Services described in the applicable Statement of Work; if additional Services are requested and agreed to by the Parties, the Fixed Price will be adjusted.
b. Time and Materials. Services completed at an hourly rate are designated as “Time and Materials” projects. Effort to complete Time and Materials projects is based on an estimated number of hours, which estimate shall be made in good faith. Client will be billed for every hour worked. Client shall be responsible for all Expenses incurred.
2.2. Cooperation. Client shall assist Nerdery in the performance of its obligations under this Agreement and shall undertake the responsibilities specified for Client in the Statement of Work.
2.3. Client Representative. Client shall assign and make available to Nerdery a designated representative who will be authorized to make binding decisions for Client regarding the obligations which are the subject of this Agreement, and shall perform or have performed other duties and requirements of Client as set forth in this Agreement or in an applicable Statement of Work. Client understands that Nerdery will rely upon Client Representative as having the authority specified in this Section.
2.4. Location of Performance. Unless otherwise agreed to in advance by the Parties, Nerdery shall perform all Services in the United States at Nerdery office location selected by Nerdery. For purposes of this Agreement, employees of Nerdery based out of their home office are considered to be working from an office location of Nerdery. If Client, expressly, or impliedly by the nature of work required, requires Nerdery to complete the Services at any location other than an office location of Nerdery, Client shall be responsible for fees for travel time and all travel, lodging, and food expenses incurred by Nerdery in providing Services at the alternate location.
2.5. Change Requests. Either Party may request changes to any individual Statement of Work by submitting a written Scope Change to the other Party, which such Party may accept or reject in its sole discretion. If the Parties agree to a Scope Change, Nerdery shall provide a good faith estimate of the cost and Expenses for the Scope Change. Upon signed acceptance of the Scope Change, Client shall be responsible for any additional time and Expenses for any changes to the Services. Unless otherwise directed in writing by Client and agreed by Nerdery, during the consideration by Client of a Scope Change, Nerdery shall continue to work pursuant to the existing Statement of Work. Notwithstanding the foregoing, Nerdery retains the right in its discretion and without liability to Client, to change the methods, processes, and/or the suppliers by which Nerdery provides Services to Client, provided that the Services continue to comply with all requirements set forth in the applicable Statement of Work.
2.6. Services Not Covered by Statement of Work. In the event Nerdery performs Services for Client not covered by a valid Statement of Work and Client accepts those Services and/or Deliverables, Nerdery will be compensated for those Services and/or Deliverables at the current rate of Nerdery for such Services.
3. INVOICES; PAYMENTS.
3.1. Invoicing of Fees and Expenses. Client acknowledges and agrees that the timing of payments owed to Nerdery reflects the timing of Services provided. As such, Nerdery reserves sole discretion in determining to extend any credit to Client based on a credit review. Payment terms will be determined accordingly. Unless agreed otherwise in writing, Client shall pay all invoiced amounts due to Nerdery within 15 days from the date of Nerdery’s invoice. Client shall make all payments hereunder in US dollars. If the Parties agree to a down payment in a Statement of Work, then Nerdery may invoice the down payment upon execution of the applicable document by Client, unless the Parties expressly agree otherwise. Invoices for Time and Materials projects will provide a general description of the tasks completed as set forth on the internal work order title under which the task was assigned by Nerdery and time-accrued for each task; invoices for Fixed Price projects will not include any information other than the amount owed. If Client requests information in addition to that included on their invoice, Client shall pay Nerdery the reasonable fees and costs incurred in gathering requested information.
3.2. Past-Due Invoices. All past-due invoices are reviewed and Nerdery reserves the right to take any or all of the following actions in the event an undisputed invoice is not paid within the specified time period:
a. Notify Client of the delinquent payment by phone and/or email and request payment;
b. Immediately discontinue, delay, or place on hold its Services without regard or liability for any project deadlines or other provisions of this Agreement or applicable Statement(s) of Work; and/or
c. Cancel its Services for pending and/or future projects.
3.3. Late Payments. Any payment not received within the specified time period set forth hereunder, or on the invoice, except with respect to charges then under a reasonable and good faith dispute, will accrue interest at the lesser of (a) a rate of 1.5% per month, or (b) the highest rate allowed by applicable law. Client shall also pay to Nerdery all costs and Expenses incurred by Nerdery in exercising any of its rights under this Agreement or applicable law with respect to recovering any amount owed to Nerdery hereunder, including, but not limited to, reasonable attorneys’ fees and costs.
3.4. Changes to Payment Terms. Following a payment default by Client, billing terms and service fees may be adjusted from time to time at the sole discretion of Nerdery and upon 30 day written notice to Client. Nerdery also reserves the right to change its billing practices, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.
3.5. Client Acting on Behalf of End-Client. In the event that Client is acting as a designated and authorized agent of an end-client in this Agreement, Client remains responsible for all payment obligations incurred pursuant to this Agreement, regardless of the fiscal status of said end-client.
4. RECORDS AND AUDIT.
4.1. Records. Nerdery will maintain records of invoices and third-party expense receipts for all fees and Expenses for which Nerdery seeks reimbursement by Client. These records exclude any documentation that contains Nerdery’s Confidential Information related to its employees’ individual salaries, time sheets, and non-billable expenses. These records will be reduced to electronic files and be maintained for a minimum of 2 years from the end of the year in which they were incurred.
4.2. Audit. Client may request access to the records described in Section 4.1, “Records”, for purposes of audit, either through its own employees or through its duly authorized representative, selected and paid by Client, upon 10 business days prior written notice to Nerdery. The notice of audit must state the scope of the audit and identify the information needed, and propose sampling methodologies. All auditors will be required to sign confidentiality agreements provided by Nerdery prior to the release of any information by Nerdery. Nerdery will be entitled to receive copies of the draft and final audit reports, and will have the right to review and comment on audit findings prior to or simultaneous with the release to Client. Nerdery’s comments will be noted in the final report. Audits requested by Client will be limited to 1 every 2 years and conducted on such days as are reasonably acceptable to Nerdery, during normal business hours. Client will bear any expenses incurred by Client or its auditor. Client will also reimburse Nerdery for any reasonable expenses directly attributable to any audits conducted under this Section 4.2 that exceed 2 business days. Any data and results gathered from the audit may not be stored in a data warehouse for purposes of aggregation or analysis.
5. OWNERSHIP OF SOFTWARE.
5.1. Client Ownership of Client Deliverables. All of Nerdery’s right, title and interest in and to the Client Deliverables that are the subject of the applicable Statement of Work are hereby automatically assigned to Client upon payment in full of all amounts owed by Client to Nerdery.
5.2. Client License to Delivered Tools; Perpetual License. To the extent Delivered Tools are provided with or reflected in the Deliverables, and to the extent of Nerdery’s rights, Nerdery hereby grants Client a perpetual, nonexclusive, transferable, irrevocable, royalty-free, fully paid up right and license to use, copy, modify, and prepare derivative works of the Delivered Tools.
5.3. Third Party Software. Client acknowledges and agrees that certain software developed by Nerdery may contain Third Party Software and, notwithstanding anything to the contrary in this Agreement, the use and disclosure of Third Party Software is at all times subject to the terms and conditions set forth in their respective licenses. Nerdery makes no representations or warranties of any kind with respect to the Third Party Software. For any Third Party Software, Client shall: (a) procure all Third Party Software licenses described in a Statement of Work as required for the Services and/or Deliverables in that Statement of Work; and (b) comply with all Third Party Software license terms and acceptable use policies.
5.4. Tools and Delivered Tools. Nerdery is and will remain the owner and/or licensee of all right, title and interest in and to any Tools, including Delivered Tools. Client acknowledges and agrees that neither these Terms and Conditions nor any Statement of Work transfers or grants Client any rights, title, or interest in and to the Tools. Client’s only rights to the Delivered Tools are as specified in Section 5.2 and no other rights to the Delivered Tools are provided by implication, estoppel or any other legal theory.
5.5. Perfecting Client Ownership of Client Deliverables. Nerdery, at its standard rate, will provide reasonable and timely assistance and execute all documents necessary to enable Client to perfect, preserve, register, or record its rights, as set forth herein, in the Deliverables.
6. SCHEDULE. Client hereby acknowledges and agrees that the development of Services and/or Deliverables under this Agreement is an endeavor for which anticipated time, effort, and Expenses can only be estimated. Client further acknowledges that any statements by Nerdery of anticipated start and completion dates, effort, and Expenses are estimates only and Nerdery cannot and does not make any guarantee as to start and completion dates, effort, and Expenses.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Nerdery and Client each represent and warrant that:
a. it has the full power and authority to enter into and perform its respective obligations pursuant to this Agreement in full accordance with the terms hereof;
b. this Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against such Party in accordance with its terms; and
c. entering into and performing its respective obligations pursuant to this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party.
7.2. Nerdery represents and warrants that:
a. the Services and Deliverables will be provided by personnel in a workmanlike and professional manner; and
b. in providing the Services and Deliverables hereunder, it shall comply with all applicable U.S. federal, state, and local laws, ordinances, rules and regulations, and agrees to procure and maintain, at its own expense unless otherwise agreed, all necessary permits and licenses, except that unless otherwise set forth in the Statement of Work, Nerdery makes no certifications, representations, or warranties that the Services and Deliverables comply with the Children’s Online Privacy Protection Act of 1998, Health Insurance Portability and Accountability Act of 1996, Gramm-Leach-Bliley Act (also known as the Financial Services Modernization Act of 1999), Payment Card Industry Data Security Standard, Sarbanes-Oxley Act of 2002, and Americans with Disabilities Act of 1990, in all cases as amended from time to time.
7.3. Client represents and warrants that:
a. if it conceives, provides, develops, requests Nerdery to use and/or develop, reduces to practice, writes, designs, implements or delivers any intellectual property in connection with or related to the Services at any time (the “Client Inputs”), then any such Client Inputs will not, nor cause any of the Deliverables, or other material, data, information, or Services to: (i) infringe upon any intellectual property rights of any person, business, or entity; (ii) violate any law, statute, ordinance, or regulation, governmental or otherwise; (iii) result in product liability, tort, breach of contract, personal injury, death or property damage; (iv) constitute misappropriation of any intellectual property rights, trade secret or proprietary know-how; or (v) constitute a disclosure of any confidential information owned by a third party;
b. it has full and legal right to disclose, transfer, assign, convey, and/or authorization to use such intellectual property rights or information referenced in this Section 7.3; and
c. it will not export or re-export, either directly or indirectly, the Services or Deliverables, or related technology in violation of U.S. export control laws, including but not limited to the Export Administration Act of 1979, 50 U.S.C. App. §§ 2401-2420, the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1707, the Arms Export Control Act, 22 U.S.C. 2778, and any regulations, orders or rule issued pursuant thereto (“U.S. Export Controls“) and will obtain any and all licenses, filings, registration and approvals required for export or re-export of the Services or Deliverables under U.S. Export Controls. Client further covenants that it will not export or re-export the Services or Deliverables to a party listed on any of the lists maintained by the U.S. Department of Commerce, the U.S. Department of the Treasury or the U.S. Department of State, found at www.bis.doc.gov/images/consolidated_list/consolidated_party_list.txt, to any person owned or controlled by such person or to any embargoed country in violation of U.S. export control laws.
8. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, NERDERY AND ITS AGENTS, OFFICERS, MANAGERS, DIRECTORS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SERVICES AND DELIVERABLES “AS IS, WITH ALL FAULTS,” AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NERDERY DOES NOT WARRANT THAT ANY SOFTWARE DEVELOPED BY NERDERY WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, THAT THE FUNCTIONS CONTAINED IN SUCH SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. UNLESS MEMORIALIZED IN A STATEMENT OF WORK, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NERDERY OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
- Indemnification by Nerdery. Nerdery agrees to defend and indemnify Client and its Affiliates, from and against any and all damages, costs, and expenses (including reasonable attorneys’ fees, expenses, and costs) solely arising from any suit filed by a third party, alleging that the Services used in the creation of the Deliverable hereunder, directly or indirectly, infringes any intellectual property rights of that third party.
- The indemnification obligations in this Section will not apply to any suit for which the Service and/or Deliverable: (i) is a component of or utilized in a process, work product, or third-party deliverable; (ii) is created pursuant to designs, ideas, instructions, materials, requirements, or specifications of Client; (iii) was modified by any party other than Nerdery; or (iv) cannot reasonably be considered to infringe, directly, contributorily, or by active inducement.
- In connection with its obligations in this Section, if a Service and/or Deliverable is alleged or Nerdery reasonably believes may be alleged to infringe, Nerdery, in its sole discretion, may: (i) procure for Client and its customer(s) the right to continue all acts in relation to the Service and/or Deliverable; or (ii) replace the Service and/or Deliverable with a non-infringing alternative with performance and pricing that is at least equal to the performance and pricing of the Service and/or Deliverable.
- The total liability of Nerdery to Client under this Section will be limited to the amounts paid by Client under the applicable Statement(s) of Work under which the allegedly infringing Service and/or Deliverable was developed.
- This Section states the entire liability of Nerdery and the sole and exclusive remedy for Client with respect to any third party claim of infringement or misappropriation of intellectual property rights.
9.2. Indemnification by Client. Client agrees to defend and indemnify Nerdery, its Affiliates, agents, officers, directors, employees, successors, and assigns from and against any and all damages, costs, and expenses (including reasonable attorneys’ fees, expenses, and costs) solely arising from:
a. Any suit filed by any third party, arising from a breach by Client, its officers, its employees, or its agents, of any warranty or representation contained in this Agreement; or
- Any suit filed by any third party, arising from or relating in any way to Nerdery having followed or implemented designs, instructions, requirements, or specifications in the Service and/or Deliverable provided by Client, and Nerdery thereby infringed, breached, or violated an intellectual property right, right of privacy, or any common law rights.
9.3. Indemnification Requirements. With respect to any indemnification obligations in this Section, the indemnitee shall:
a. Notify the indemnifying party in writing promptly after the indemnitee becomes aware of the claim for which the indemnification obligation applies;
b. Subject to the terms set forth in Section 9.4, “Assumption of Defense”, allow the indemnifying party control of the investigation, defense, and settlement of the claim; and
c. Cooperate with the indemnifying party in the defense of the claim (at the reasonable expense of indemnifying party).
For all actions under this Section, the indemnifying party shall defend the indemnitee with counsel that is reasonably acceptable to the indemnitee.
9.4. Assumption of Defense. If the indemnifying party assumes the defense of a claim under this Section, it shall keep indemnitee reasonably informed of the progress of the defense, compromise, or settlement and permit indemnitee to participate in the suit in an advisory capacity. If indemnifying party fails to assume the defense of any claim within 15 calendar days after receipt of notice of the claim, indemnitee will (upon notice to indemnifying party) have the right to undertake, at expense of indemnifying party, the defense, compromise, or settlement of the claim, subject to the limitations set forth in Section 9.1, “Indemnification by Nerdery”.
10. LIMITATION OF LIABILITY. SUBJECT TO THE LIMITATIONS SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF WHAT CAUSE OF ACTION (INCLUDING NEGLIGENCE) OR CLAIM FOR RELIEF IS ASSERTED, IN NO EVENT WILL EITHER PARTY OR ITS AGENTS, OFFICERS, DIRECTORS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOST TIME, LOST SAVINGS, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, OR FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITH THE EXCEPTION OF THE AMOUNT THAT CLIENT OWES NERDERY FOR SERVICES RENDERED, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO NERDERY EITHER FOR THE 3 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM OR UNDER THE STATEMENT OF WORK UNDER WHICH THE CLAIM AROSE, WHICHEVER IS LESS.
11. EXCLUSIVE REMEDIES. Any and all claims arising out of or relating to this Agreement, except for any claim against Client for the amount the Client owes Nerdery for Services rendered, will expire unless filed within 1 year after the first date of performance or breach, which in whole or in part gives rise to the claim. These remedies will be determined in accordance with Minnesota law, and are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with this Agreement or for any breach of this Agreement whether brought under a theory of tort liability, contract liability, or any other theory.
12.1. If the Parties have entered into a non-disclosure agreement prior to the Effective Date (a “Separate NDA”), then the Parties agree that such Separate NDA shall be incorporated into this Agreement by reference, and the subsequent Section 12.2 is not a part of this Agreement. To the extent that there is a conflict between that non-disclosure agreement and the other terms of this Agreement, this Agreement shall take precedence. If the Parties have not entered into a Separate NDA as of the Effective Date, then the terms of Section 12.2 shall govern each Party’s confidentiality and non-disclosure obligations.
12.2. If the Parties have not entered a Separate NDA, then the following terms will apply:
a. Nondisclosure Obligation. Receiving Party agrees: (a) to hold Confidential Information in confidence and not disclose it to any third party; (b) to protect Confidential Information in accordance with the same degree of care with which it protects its own Confidential Information; (c) not to disclose any Confidential Information to any person, firm or business, except to the extent necessary for internal evaluations in connection with matters authorized under this Agreement, and for any other purpose Disclosing Party may authorize in writing.
b. Exclusions from Nondisclosure Obligation. The obligations under Section 12.2(a), “Nondisclosure Obligation”, of each of the Parties with respect to any portion of the Confidential Information of the other Party shall not apply to such portion that: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving Party, through no fault of Receiving Party; (b) was rightfully in the possession of Receiving Party, to the best of Receiving Party’s knowledge, free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party; (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party; (d) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence; or (e) is approved (via written authorization) by Disclosing Party for release by Receiving Party. A disclosure of the Confidential Information of Disclosing Party either: (x) in response to a valid order by a court or other governmental body, (y) as is otherwise required by law, or (z) as necessary to establish the rights of either Party under this Agreement, shall not be considered to be a breach of this Agreement by Receiving Party or a waiver of confidentiality for other purposes. If Receiving Party is required by law to disclose Confidential Information (pursuant to a subpoena, discovery, warrant, or similar legal process), Receiving Party shall, to the extent allowed by law, promptly notify Disclosing Party upon receipt of such demand and reasonably cooperate with Disclosing Party (at the expense of Disclosing Party) in any attempt to quash such legal process or to seek a protective order or other appropriate relief requested by Disclosing Party.
c. Ownership and Return of Confidential Information and Other Materials. All Confidential Information of each of the Parties shall remain the property of Disclosing Party, and no license or other rights to such Confidential Information is granted or implied hereby. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs, lists and all other tangible media of expression) furnished by Disclosing Party to Receiving Party, and which are designated in writing to be the property of Disclosing Party, shall remain the property of Disclosing Party. Upon written request of Disclosing Party, Receiving Party shall destroy or return to Disclosing Party all Confidential Information, except that Receiving Party may (i) retain copies of Confidential Information that it is required by law or regulation to retain and (ii) retain copies of Confidential Information in accordance with legal, disaster, data recovery or records retention purposes as part of archival back-up systems maintained by Receiving Party in the ordinary course of business.
13. NON-SOLICITATION. During the term of any Statement of Work and for a period of 1 year thereafter, neither Party shall, without the prior written consent of the other Party: (a) directly solicit, induce, recruit, encourage, request, or attempt to influence any employee of the other Party to terminate their employment; or (b) employ, hire, or take away any employee of the other Party, either for itself or for any other person or entity. The foregoing limitation is only applicable to personnel of each Party that are materially involved in the project governed by the applicable Statement of Work. Notwithstanding the foregoing, nothing shall prevent either Party from employing an employee of the other Party who: (x) responds to a general employment advertisement when such solicitation is not specifically directed at that individual; (y) is directed to the other Party by employment search firms where such employment search firms are not directed by the hiring Party to initiate discussions with respect to the prospective employment of that individual; or (z) contacts the other Party on his or her own initiative without any direct or indirect solicitation by the hiring Party.
14. TERM. The term of this Agreement will commence on the Effective Date and will remain in force during all times at which there is an active Statement of Work between the Parties. Termination of an individual Statement of Work will not constitute termination of this Agreement.
15.1. Termination for Cause.
a. For Material Breach. Either Party may terminate this Agreement in the event of a material breach by the other Party of its obligations under these Terms and Conditions or any applicable Statement of Work, if the Party in breach fails to cure the condition of breach within 10 days after receipt of written notice of breach.
b. For Insolvency. This Agreement will terminate automatically, without notice: (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the debt of either Party; (ii) upon either Party making an assignment for the benefit of creditors; or (iii) upon the dissolution of or ceasing to do business by either Party.
c. For Anticipatory Infringement. Nerdery reserves the right to terminate this Agreement or any Statement of Work with immediate effect at any time if Nerdery reasonably believes that the Services and/or Deliverables that are the subject of any applicable Statement of Work could potentially infringe on the intellectual property rights of a third party, and Client has not provided reasonable assurances to the contrary.
15.2. Termination for Convenience. Either Party may terminate this Agreement at any time for its convenience in whole or in part, with or without cause, by giving 60 days written notice to the other Party.
15.3. Effect of Termination. As of the effective date of termination of this Agreement or Statement of Work, Nerdery will stop work on the Services and/or Deliverables and Client will be liable for: (a) effort incurred prior to the effective date of such termination; (b) Expenses that have been incurred and that are not cancellable; (c) the time and materials necessary to transfer any Services and/or Deliverables; (d) any costs owed to Nerdery pursuant to Section 3 hereof; and (e) any additional charges as mutually agreed in writing to be essential for terminating said Services and/or Deliverables. If Client terminates a Statement of Work pursuant to Section 15.2, Nerdery reserves the right, to apply a cancellation fee to account for resources that were reserved for the terminated Statement of Work.
15.4. Survival of Terms. In the event of termination of this Agreement or any Statement of Work, for any reason or upon the expiration of the term of this Agreement, the provisions and obligations of Sections 1, 3 through 5, 7 through 13, 15.4, 20, 23 and the obligation of Client for payment of Services rendered prior to, or on the date of expiration or termination, will survive any such termination, and will be enforceable after termination.
16. FORCE MAJEURE. No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. A change in economic circumstances will not be considered a Force Majeure Event. The Impacted Party shall give prompt notice to the other Party, as determined by the scope of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section, either Party may thereafter terminate this Agreement upon 5 days’ written notice.
17. ASSIGNABILITY. This Agreement is binding upon and will inure to the benefit of the Parties, their legal representatives, successors, and assigns. Except as otherwise expressly provided in this Agreement, neither Party may assign, transfer, convey or encumber this Agreement or any rights granted in it, either voluntarily or by operation of law, without the prior written consent of the other Party. Any attempt to do so is null and void. Notwithstanding the foregoing, any successor in interest by merger, operation of law, or purchase of the entire or substantially all of the business or assets of either Party may acquire all interest hereunder, provided such successor is subject to all obligations hereunder.
18. NOTICES. All notices and other communications required by this Agreement must be in writing and sent to the Parties at the addresses set forth below via hand delivery or overnight courier service. Notices are effective only: (a) upon receipt; and (b) if the Party giving the notice has complied with the requirements of this Section.
If to Client:
The address set forth in the Client’s most recent Statement of Work, or if none, the Client’s most recent billing address on file with Nerdery.
If to Nerdery: The Nerdery, LLC Attn: General Counsel
9555 James Ave. S., Suite 245
Bloomington, Minnesota 55431
19. AFFILIATES. The Parties acknowledge and agree that Statements of Work made under this Agreement may be entered into by an Affiliate of either Party. In the event that an Affiliate of a Party enters into a Statement of Work, such Affiliate shall be subject to all of the respective obligations of the applicable Party under this Agreement, and each Party agrees to be held fully responsible for the performance of this Agreement by its Affiliate.
20. GOVERNING LAW. This Agreement will only be governed by and construed in accordance with the laws of Minnesota, except for its conflicts of law rules and principles. The Parties agree that, in the event of any suit or proceeding arising out of or related to this Agreement, the courts of Minnesota will have exclusive jurisdiction and the Parties shall submit to the jurisdiction of such courts.
21. NO WAIVER. No failure of either Party to exercise, and no delay in exercising, any right, power, or privilege under this Agreement is a waiver of that right, power, or privilege. Any single or partial exercise of any right under this Agreement does not preclude any other or further exercise of that right or the exercise of any other right. Any waiver of any provision of this Agreement is effective only in the specific instance and for the specific purpose for which the waiver is given.
22. RELATIONSHIP OF THE PARTIES. Nerdery is an independent contractor. Nothing in this Agreement will be construed as creating any joint venture, partnership, employment or agency relationship between the Parties.
23. PUBLICITY. Client expressly consents to Nerdery identifying Client to third parties as a client of Nerdery, including reproducing and publicizing its trading name, trademarks, and logos, on the corporate website of Nerdery and in company presentations. Nerdery expressly gives Client its consent to use the name, trademarks, and logos of Nerdery, similarly. In addition, Client expressly consent to Nerdery describing the Services and Deliverables created pursuant to this Agreement on the corporate website of Nerdery, in presentations, and in other marketing materials, so long as Nerdery first provides it to Client for review and approval, which approval will not be unreasonable withheld. Each Party retains the right to revoke this consent by providing said request to the other Party in writing.
24. APPROVAL. Wherever this Agreement requires either Party’s approval, consent or satisfaction, such approval, consent or satisfaction may not be unreasonably or arbitrarily withheld or delayed.
25. HEADINGS. Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement.
26. NO THIRD PARTY BENEFICIARY. This Agreement is solely for the benefit of the Parties hereto and does not confer any rights to any other person or business entity as a third party beneficiary or otherwise.
27. SEVERABILITY. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective to the extent of such prohibition or unenforceability in that jurisdiction alone. The validity, enforceability, or legality of the remaining provisions will not be affected.
28. COUNTERPARTS. Any Statement of Work or other document executed in connection with these Terms and Conditions may be executed in any number of counterparts. Each counterpart is an original and all of which when taken together constitute one and the same instrument. One or more counterparts may be delivered electronically in PDF format; these formats have the same effect as an original executed counterpart.
29. ENTIRE AGREEMENT. This Agreement constitutes and expresses the entire agreement and understanding between the Parties superseding any prior communications, understanding, commitments, or agreements, oral or written, with respect to the subject matter hereof. The Parties are not relying on any representations or warranties other than those expressly provided herein. Any changes or modifications to this Agreement must be in writing and signed by an authorized representative of both Parties before taking effect. Notwithstanding the foregoing, each Statement of Work executed pursuant to this Agreement, together with these Terms and Conditions as incorporated therein, will be considered a separate agreement, and no Statement of Work will be deemed to amend or replace any other Statement of Work unless expressly provided therein.