The Agreement is by and between:
Nacke Media, LLC
WHEREAS, NACKE MEDIA is in the business of DIGITAL MARKETING CONSULTING; and,
WHEREAS, CLIENT desires to engage NACKE MEDIA to provide the services described herein to CLIENT, and NACKE MEDIA desires to accept such engagement under the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises, the mutual promises, covenants, terms, and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Engagement and Term. CLIENT hereby engages NACKE MEDIA under the terms and conditions set forth herein and for the Term herein defined.
2. Scope of Services. It is contemplated and agreed by the Parties that the scope of services to be provided by NACKE MEDIA under this Agreement shall be limited to the services described here:
3. Fees for Services. CLIENT agrees to pay to NACKE MEDIA for the services provided as follows:
(c) For services that fall outside the scope described herein, CLIENT agrees to pay NACKE MEDIA for the services provided a fee based upon NACKE MEDIA’s usual hourly rate in accordance with the Fee Schedule set forth below.
Hourly Rate: $125/hour
NACKE MEDIA’s hourly rates set forth within this agreement are subject to change from time to time, and at any time, upon fourteen- (14-) days notice to CLIENT.
All payments due hereunder are due immediately upon receipt of billing statement, without any requirement of notice or demand and without any setoff or deduction. Any payment not actually received by NACKE MEDIA within fifteen (15) days of the invoice date shall incur a late charge equal to five percent (5%) of the payment due. It is acknowledged and agreed between the Parties that such late charge is not a penalty but, rather, an administrative fee to offset the additional costs and expenses incurred as a result of the untimely payment. Additionally any installment not received by NACKE MEDIA within said fifteen (15) day period shall bear interest from the date due until the date paid at the rate of Eighteen percent (18.0%) per annum, based on a 360-day year, and the actual number of days elapsed.
4. Costs and Expenses. In addition to the fees for service agreed upon, CLIENT will be responsible for and agrees to pay all reasonable expenses incurred by NACKE MEDIA related to the performance of its obligations under this Agreement. Such expenses may include, but shall not be limited to, items such as filing and recordation fees, postage, airfare, hotel accommodations, rental car expenses, other travel related expenses, licensing fees, franchise fees, and any and all other fees, costs and expenses incurred by NACKE MEDIA in the performance of its duties. Expenses may be, but need not be, advanced by NACKE MEDIA, and NACKE MEDIA reserves the right to demand payment of same prior to incurring such expenses. Where expenses are advanced by NACKE MEDIA, such will be shown on the regular billing statement and will be due and payable in the same manner as Fees for Service.
5. Confidentiality Covenant of Nacke Media, LLC. NACKE MEDIA acknowledges that this Confidentiality Covenant is a material inducement to CLIENT to enter into this Agreement. NACKE MEDIA further acknowledges that its relationship with CLIENT may place it in a position of confidence, trust, and responsibility with information, employees, customers, clients, and suppliers of CLIENT. NACKE MEDIA further acknowledges that, because of its relationship with CLIENT, it will gain access to certain proprietary and confidential information of CLIENT and its customers and clients including, but not limited to, contemplated new products and services, marketing campaigns and strategies, sales projections, financial information, and specialized computer and record-keeping systems of CLIENT. NACKE MEDIA agrees to keep such information confidential and to not disclose such information for a period of one (1) year after the effective date of this Agreement other than in performing services expressly authorized in writing by CLIENT or as such disclosure may be reasonably necessary to fulfill NACKE MEDIA’s obligations to CLIENT under this Agreement or as such disclosure may be reasonably necessary to be disclosed to NACKE MEDIA’s attorney(s) and accountant(s) or by court order or operation of law.
6. Termination. Neither party hereto shall have the right to unilaterally terminate this Agreement except for good cause. Where termination for cause is warranted, the terminating party shall terminate this Agreement by giving notice to the other party of its intention to so terminate. Termination shall be effective as of 5:00 pm on the date which is thirty (30) days after the date of said notice.
In the event that NACKE MEDIA or CLIENT should exercise its right to terminate, then all fees for service due to NACKE MEDIA shall be calculated through effective date of termination, all incurred expenses shall be added thereto, all credits for payments received shall be applied, and the total outstanding amounts shall be immediately due and payable to NACKE MEDIA. Further, NACKE MEDIA shall be released from any and all further liability and obligation under this Agreement.
In the event CLIENT should terminate this Agreement without good cause, then all fees for service due to NACKE MEDIA through the entire term of this Agreement shall become immediately due and payable by client, all incurred expenses shall be added thereto, all credits for payments received shall be applied, and the total outstanding amounts shall be immediately due and payable to NACKE MEDIA. Further, NACKE MEDIA shall be released from any and all further liability and obligation under this Agreement.
Notwithstanding the foregoing, NACKE MEDIA shall not be deemed to be in default or breach of this Agreement where its performance is made impossible for a reason beyond its control including, but not limited to, strikes, work stoppages, lockouts, or other labor unrest, war, civil commotions, or direct governmental intervention, fire, flood, other weather-related reasons, equipment failures, defective materials, acts of God, or CLIENT’s failure to provide materials, documents, or other information necessary to permit NACKE MEDIA to fulfill its obligations (a “Force Majeure Event”). In the event a Force Majeure Event occurs and continues uninterrupted for a period in excess thirty (30) consecutive days, NACKE MEDIA shall have the right to terminate this Agreement upon ten (10) days written notice to CLIENT. In the event this Agreement is terminated under this provision, then all fees for service due to NACKE MEDIA shall be calculated through effective date of termination, all incurred expenses shall be added thereto, all credits for payments received shall be applied, and the total outstanding amounts shall be immediately due and payable to NACKE MEDIA. Further, NACKE MEDIA shall be released from any and all further liability and obligation under this Agreement.
For purposes of this section, “good cause” shall be defined as: (a) CLIENT’s failure to make timely payment of all fees and reimbursable expenses and disbursements due and owing to NACKE MEDIA; (b) CLIENT’s failure to cooperate with NACKE MEDIA in any or all ways necessary for NACKE MEDIA to effectively fulfill its obligations to CLIENT; (c) an impasse is reached between NACKE MEDIA and CLIENT in which CLIENT’s desires with regard to the services provided by NACKE MEDIA is in irreconcilable conflict with NACKE MEDIA’s opinion regarding the proper methods and means of providing such services; or, (d) NACKE MEDIA’s failure to diligently pursue completion of the project or provision of the services NACKE MEDIA is obligated to provide.
7. Additional Terms and Conditions.
(a) All elements of text, graphics, photos, contents, trademarks, or other artwork or intellectual property furnished to CLIENT by NACKE MEDIA for inclusion in any website or other visual media shall be deemed the property of CLIENT.
(b) CLIENT represents and warrants to NACKE MEDIA that CLIENT owns or has obtained all requisite permissions and licenses for use of all text, graphics, photos, contents, trademarks, and other artwork or intellectual property furnished to NACKE MEDIA for inclusion in CLIENT’s website and that the use of same will not violate any law, statute, ordinance, rule, regulation or private agreement. To that end CLIENT hereby agrees to indemnify and hold harmless NACKE MEDIA from any and all claims, demands, rights, obligations, liabilities, damages, and causes of action of any kind or nature, including, without limitation, attorney fees, whether known or unknown, disclosed or undisclosed, whether such arise in contract, tort, or otherwise, which are in any way related to the services provided to CLIENT by NACKE MEDIA and this Agreement.
(c) NACKE MEDIA retains the right to display graphics and other Web content elements created for CLIENT and/or used in CLIENT’s website or other visual media in NACKE MEDIA’s portfolio and marketing materials as examples of NACKE MEDIA’s work.
8. Assignment. This Agreement may not be assigned, in whole or in part, by either party without the express written consent of the non-assigning party, which consent may be granted or withheld in the non-assigning party’s sole and absolute discretion.
Notwithstanding the foregoing, NACKE MEDIA shall have the right to assign this Agreement without the consent of CLIENT to a corporation, limited liability company, partnership or other entity or business association in which NACKE MEDIA or Mike Nacke, individually, shall have any ownership interest, or to a sole proprietorship owned and controlled by Mike Nacke.
9. Remedies. If, for any reason, CLIENT fails to perform, or otherwise breaches or defaults on, any of the obligations required to be performed by it pursuant to this Agreement, and such failure is not expressly excused herein or the result of a prior material default or breach by NACKE MEDIA, then NACKE MEDIA shall have the right, in its sole and absolute discretion, to terminate this Agreement. Additionally, NACKE MEDIA shall have such remedies as are available at law or in equity, including, without limitation, an action for specific performance of this Agreement, and all remedies provided for herein shall be cumulative. If NACKE MEDIA prevails against CLIENT in any legal action concerning any part of this Agreement, NACKE MEDIA shall be entitled to recover its reasonable attorneys’ fees, expenses, and costs in connection with such action, in addition to all other recovery or relief.
If, for any reason, NACKE MEDIA fails to perform, or otherwise breaches or defaults on, any of the obligations required to be performed by it pursuant to this Agreement, and such failure is not expressly excused herein or the result of a prior default or breach by CLIENT, then CLIENT shall have the right, in its sole and absolute discretion, to terminate this Agreement. Notwithstanding the foregoing, no right to terminate shall arise in CLIENT unless and until CLIENT first provides NACKE MEDIA with written notice of its failure to perform and NACKE MEDIA fails to cure such breach or default within thirty (30) days after the date of such notice. In the event the breach or default cannot be cured within such thirty (30) day period, and NACKE MEDIA is diligently working to cure such breach or default, the said cure period shall automatically be extended for a reasonable amount of time to permit NACKE MEDIA to cure said breach or default. If NACKE MEDIA fails to cure such breach or default, CLIENT’s sole remedy shall be to immediately terminate this Agreement in the same manner and upon the same terms as a termination for good cause set forth hereinabove.
10. No Waiver. The failure of either party hereto to exercise any right or remedy at any time shall not be a waiver of that party’s right or rights to exercise any such right or remedy upon any subsequent default or breach hereunder.
(a) This Agreement constitutes the entire agreement between and understandings of the Parties and fully supersedes any and all prior agreements, representations, and understandings, whether written or otherwise, between the Parties with respect to the subject matter of this Agreement.
(b) This Agreement shall inure to the benefit of NACKE MEDIA’s successors and assigns and shall bind CLIENT’s heirs, representatives, successors and assigns, including any corporation or other legal entity resulting from a merger, consolidation, or other restructuring of Borrower.
(c) This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee. Venue for any legal action related to this Agreement shall be in a court of competent jurisdiction located in Sumner County, Tennessee.
(d) The captions or section headings used in this Agreement are for convenience only and shall not be construed to expand, limit or otherwise define the terms of this Agreement.
(e) The terms and provisions of this Agreement are severable. Should any term or provision be properly determined to be invalid, illegal or unenforceable, it shall not affect the validity, legality or enforceability of the remaining terms and provisions, which shall remain valid, legal and enforceable.
(f) The failure of NACKE MEDIA to insist upon a strict performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that NACKE MEDIA may have and shall not be deemed a waiver of any subsequent breach of such term or condition.
(g) The Parties acknowledge and agree that none of the Parties are entitled to any presumption with respect to the terms contained in this Agreement.
(h) Nothing in this Agreement shall be construed as creating any partnership or principle-agent relationship between NACKE MEDIA and CLIENT. Each party warrants to the other that it will not represent itself to be an agent of the other party.
(i) Each party acknowledges and agrees that they, or the person executing this Agreement on their behalf, have full right, power, and authority to execute this Agreement and to bind such party to its terms, and that all necessary or desirable corporate, limited liability company, or other company action has been taken.
(j) This Agreement may be executed in as many counterparts as there are Parties hereto, all of which together shall be deemed one and the same instrument; and, scanned, emailed, electronically signed or other copies of signatures shall be as binding as original signatures.
(k) This Agreement may not be altered or amended except by a writing executed by all of the Parties hereto.
(l) The Effective Date of this Agreement shall be the last date signed by a party below. Notwithstanding anything contained in this Agreement to the contrary, this Agreement shall not become effective until it is signed by both Parties and CLIENT pays to NACKE MEDIA the initial deposit set forth in this Agreement.
(m) Time is of the essence in this Agreement and all of its parts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
By: Mike Nacke
Nacke Media, LLC
A Tennessee limited liability company
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