These Terms & Conditions (“Agreement”) govern your access to and use of the services provided by PopNod, LLC and its affiliates ("POPNOD"), and any information, text, graphics, or other materials uploaded, provided, downloaded, or appearing on the Services (defined below). It is by and between POPNOD and you (“Client”). Each entity may be referred to herein as a “Party” and collectively as, the “Parties.” Your access to and use of the Services is conditioned on your acceptance of and compliance with this Agreement. By accessing or using the Services you agree to be bound by this Agreement.
1. DEFINITIONS
"Confidential Information" means all information furnished by either Party in oral, written or machine-readable form, which (a) has value because it is not generally known, or (b) the owner uses reasonable efforts to protect and identifies at the time of disclosure or in writing as confidential. Confidential Information also includes information that has been disclosed by a third party that is required to be treated as confidential. Confidential Information does not include any information that is (1) available to the general public; (2) rightfully and lawfully in the receiving Party’s possession prior to disclosure of the information; or (3) is independently developed by a Party without use of or reference to Confidential Information of the other Party.
“Statement of Work” or “SOW” means any work order, statement of work, schedule of services, or other statement of services referencing this Agreement.
2. SERVICES
POPNOD will provide "Services" under this agreement to Client as set forth in Statements of Work which references this Agreement and is executed by both Parties. The Services may include, but is not limited to, systems integrations, software, websites, professional services, consulting, events marketing, marketing campaigns, documentation, videos, and creative designs. Any Services outside the scope of the SOW(s) or changes to previously approved work requested by the Client shall be the subject of additional SOW(s) to be approved in writing by both parties.
2.1 Approval of Work. Work will not commence until the signed SOW has been received. Services and deliverables hereunder will be deemed accepted by the Client if, within five business days of its delivery to the Client, POPNOD does not receive a written notice with a list of reasonable modifications. POPNOD will not be obliged to commit to any expenditure on behalf of the Client without first receiving signed SOW and POPNOD will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation.
2.2 Change Management Process. During the course of this Agreement, either party may request, in writing, additions, deletions, or modifications to the SOW(s). For all change requests to the SOW, regardless of origin, POPNOD shall submit to Client an updated SOW, which shall describe the proposed change(s), including the impact of the change(s) on the project scope, schedule, fees, and expenses. POPNOD shall have no obligation to perform or commence work in connection with any proposed change until a SOW is approved and accepted by the designated Client Representative per Section 5.3.
3. FEES AND TERM
Any of the provisions of this Section 3 may be superseded by the terms of a SOW if expressly done so by and noted in the SOW, provided, however, that the superseding SOW terms will only apply to that SOW and not to previous or subsequent SOWs executed under this Agreement.
3.1 Term. The term of this Agreement will commence on the Effective Date and will continue for a period of time as defined in the SOW.
3.2 Expenses. In addition to any provisions provided for in any applicable SOW(s), Client agrees to pay all approved travel expenses incurred in connection with the provision of Services when any such travel exceeds twenty-five (25) miles one way. Travel expenses will be calculated using mileage times the current government rate for travel reimbursement approved by the IRS.
3.3 Payment Terms for Services. POPNOD will issue invoices under its then current standard billing practices for Services on a monthly basis and in advance, unless otherwise specified within the SOW. Payments of all invoices are due and payable in US dollars (unless specified in the SOW) within seven (7) days from the date of the invoice. All rights of the Client herein are conditioned on POPNOD’s receipt of full payment. In addition, POPNOD may suspend performance of services and withhold delivery of materials until payment in full of all amounts due. POPNOD shall not be liable for any damages, losses or liabilities that may arise out of POPNOD’s suspension of performance and/or withholding of materials due to Client’s non-payment. POPNOD shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.
3.4 Payment Dispute Resolution. All reasonable disputed charges will not be deemed due until the dispute is resolved, and will be due and payable within seven (7) days from the resolution of the dispute. Both Parties agree to use commercially reasonable efforts to resolve the disputed charges, and if unable to reach resolution on their own, the parties shall proceed to resolve the dispute under the terms of Section 10 hereof. Interest shall not accrue on any charges disputed in good faith by the Client until seven (7) days from the resolution of the dispute.
3.5 Taxes. The fees set forth in any applicable SOW(s) will not include any present or future sales, use, value added, excise, withholding or similar taxes applicable to the Services or any associated expenses. POPNOD will separately itemize any such applicable taxes, if any, on each invoice, and it will be Client’s responsibility to pay for any such taxes.
3.6 Interest. If Client does not pay the invoices when due, POPNOD, may charge interest on the unpaid amounts at the rate of one and one half percent (1.5%) per month.
4. PROPRIETARY RIGHTS
4.1 POPNOD may use and distribute work as part of its portfolio for promotional purposes upon written approval by the Client.
4.2 POPNOD shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials which have been presented to the Client but not included in the final deliverables.
4.3 Subject to the payment provisions hereof, POPNOD grants a perpetual license to the Client, without representation or warranty, the work specifically created by POPNOD that POPNOD leaves with Client during the performance of the Services.
4.4 If the Client desires to utilize any of the work created by POPNOD, whether accepted or rejected by the Client hereunder, for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement, then the Client shall hire POPNOD to design, create, develop, market and otherwise implement such work. The Client may solicit or hire a third party to implement such work if, and only if, POPNOD declines to do so and such third party is hired on terms in no way more beneficial than the terms first offered to POPNOD.
4.5 All rights not expressly granted in Section 4 are reserved by POPNOD.
5. WARRANTIES
5.1 POPNOD Warranty. POPNOD warrants that (a) it and its subcontractors will perform the Services in accordance with the generally accepted industry standards for such services, and (b) it owns or has the right to provide the Confidential Information disclosed or provided by POPNOD hereunder. If POPNOD breaches the warranty provided in this section, Client's sole and exclusive remedy will be for POPNOD to correct such breach by redoing the non-conforming Services, at no additional cost to Client.
Unless otherwise stated in this Agreement or agreed by the parties in writing, POPNOD’s contracts with suppliers in respect to the Services shall be made in accordance with suppliers’ standard terms or such other terms as POPNOD is able to negotiate with the relevant supplier. POPNOD shall act as principal in all such contracts, but all rights and liabilities as between the Client and POPNOD shall correspond to those between POPNOD and the various suppliers under such conditions, including in particular any service levels and any rights of amendment, omission and cancellation.
5.2 Client Warranty. Client warrants that it owns or has the right to provide to POPNOD the Confidential Information. Client will provide accurate information regarding its business to POPNOD in connection with the Services. Client is responsible for making any and all decisions based on information provided by POPNOD in connection with the Services.
POPNOD’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. POPNOD shall not be liable for any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfill its obligations under this Agreement. Client warrants that it will make every reasonable effort to ensure the success of POPNOD’s Services and, should problems arise, will immediately notify POPNOD’s project and executive leadership, and will work in good faith with POPNOD to timely correct the problem(s) as specified herein.
5.3 Client Representative. In order to avoid miscommunication, the Client shall appoint a sole representative with full authority to provide or maintain any necessary information and approvals that may be required by POPNOD (“Client Representative”). The Client Representative shall be responsible for coordination and review of the POPNOD’s Services and notifying POPNOD of Client instructions, change orders and approvals. The signature or e-mail approval of the Client Representative shall be final and binding on Client. If after the Client Representative has approved a design, the Client or any authorized person alters the SOW or requires additional Services, the Client shall pay all fees and expenses arising from such changes and additional Services as set forth in Section 2 above.
5.4 DISCLAIMERS. OTHER THAN THE WARRANTIES STATED IN THIS SECTION 5, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, CONDITIONS, AND UNDERTAKINGS, WHETHER EXPRESS OR IMPLIED AND INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES (WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE) EXCEPT IN THE CASE OF EITHER PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID BY CLIENT TO POPNOD FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THAT GAVE RISE TO SUCH LIABILITY.
7. CONFIDENTIALITY
7.1 Confidential Information. All Confidential Information disclosed to either Party is and will remain the sole and exclusive property of the discloser or its licensors.
7.2 Disclosures. Disclosures of Confidential Information by either Party may be made only to: (a) employees, agents or independent contractors of the receiving Party who are directly involved in performing or receiving the Services and have a specific need to know such Confidential Information; and (b) only to agents and independent contractors whom the receiving Party has obligated under a confidentiality agreement acceptable to the disclosing Party to use no less than a reasonable standard of care to prevent unauthorized access to or disclosure of the Confidential Information, and to use the Confidential Information solely to perform their responsibilities in a manner consistent with and no less restrictive than the terms of this Agreement.
7.3 Mutual Cooperation. Each Party will notify and cooperate with the other party in enforcing the disclosing Party's rights if it becomes aware of a threatened or actual violation of the disclosing Party's confidentiality requirements by a third party. Upon reasonable request by the disclosing Party, the receiving Party will provide copies of the confidentiality agreements entered into with its agents or independent contractors.
7.4 Residuals. POPNOD is free to use and incorporate into its products and services any general ideas, know-how, and or techniques that are inherently disclosed to POPNOD in the course of POPNOD's provision of the Services or that are developed in the performance of the Services, provided POPNOD does not disclose or otherwise use or make available any Client’s Confidential Information in the process.
8. INDEMNITIES
8.1 Indemnification. POPNOD will indemnify, defend and hold harmless Client, its officers, directors, employees, consultants, and affiliates, from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’ and expert witnesses’ fees, litigation, settlement, judgment, interest and penalty costs) arising from or relating to any third party claim caused by: (a) acts or omissions constituting gross negligence or willful misconduct, committed by POPNOD or any of its employees in the performance of the Services; (b) the infringement of a third party's intellectual property rights under the copyright laws of the of the United States by the Services; or (c) the willful and knowing infringement of any third party’s United States patent or trademark rights by POPNOD or any of its employees. Client will indemnify, defend and hold harmless POPNOD, its officers, directors, employees, consultants, and affiliates, from all costs and expenses (including reasonable attorneys’ and expert witnesses’ fees, litigation, settlement, judgment, interest and penalty costs) arising from actual or alleged: (i) acts or omissions constituting gross negligence or willful misconduct, committed by Client or any of its employees, agents, or subcontractors; (ii) the alleged breach of any intellectual property right of a third party under the laws of the United States (other than patents) by any information or materials provided to POPNOD by Client, including, but not limited to, Client’s Confidential Information or design specifications; or (c) the willful and knowing infringement of any third party’s United States patent rights by Client or any of its employees, agents, or subcontractors. Notwithstanding anything to the contrary in the immediately foregoing, neither Party will be required to defend or indemnify any Party to the extent that Party‘s losses or expenses are caused by that Party’s own gross negligence or willful misconduct.
8.2 Indemnification Procedures. If either Party becomes aware of a claim that may require indemnification pursuant to Section 8.1 (the “Claim”), the affected Party (the “Indemnified Party”) will promptly notify the other Party in writing of the Claim and will allow the other Party to assume sole and full control of the defense and settlement of the Claim. The Indemnified Party will provide the other Party with the assistance and information necessary to defend and settle the Claim. The Indemnified Party's counsel will have the right to participate in the defense and settlement of the Claim, at such Party's own expense.
9. TERMINATION
9.1 Client’s Termination for Convenience. Client may terminate this Agreement for convenience by providing a written notice to POPNOD at least sixty (60) days in advance of the expiration of the Term. In the event the Client terminates for convenience under Section 9.1, Client shall pay POPNOD, in addition to all of the fees earned by POPNOD pursuant to the terms hereof, an early termination fee equal to 50% of the total remaining fees payable to POPNOD hereunder (as specified in the SOW), plus any and all expenses and third-party costs reasonably incurred by POPNOD through the effective date of cancellation.
9.2 Termination for Breach. Either Party may terminate this Agreement for a material breach of the Agreement. The non-breaching Party shall provide written notification to breaching Party and the breaching Party shall have fifteen (15) days to cure the material breach, if curable. If a material breach exists and is not cured within fifteen (15) days from written notice of such breach, then non-breaching Party may terminate the Agreement immediately upon written notice to the breaching Party.
9.3 Effect of Termination. On expiration or earlier termination of this Agreement, in whole or in part, the following will occur:
(a) Client will pay all amounts due and payable under this Agreement when due. If Client does not timely pay POPNOD as specified herein, any deliverables developed pursuant to the Services will not be delivered to Client, and POPNOD reserves the right to retain and not assign property rights to any and all deliverables created under this Agreement.
(b) The rights and obligations set forth in this Agreement which by their nature should survive shall survive, provided, however, that the confidentiality obligations in Section 7 will specifically survive for one (1) year after the termination date.
(c) Neither Party will be liable to the other for damages, losses, costs or expenses of any kind or character whatsoever on account of the termination of this Agreement arising from or in connection with the loss of prospective sales, or expenses incurred or investments made in connection with the establish¬ment, development or maintenance of either Party's business.
10. DISPUTES
10.1 Resolution of Disputes. The Parties agree that any dispute arising out of the terms and conditions of this Agreement (each a “Dispute”) shall be submitted to the senior management of Client and POPNOD for attempted resolution of the Dispute. Senior management shall discuss the problem and negotiate in good faith in an effort to resolve the Dispute without necessity of any formal proceeding relating thereto. If senior management, within fifteen (15) days of their first communication, has failed to amicably resolve the Dispute, the Parties shall immediately thereafter submit the Dispute to arbitration as set forth in Section 10.2.
10.2 Arbitration of Disputes. Any unresolved Dispute, claim or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration before a sole arbitrator, in accordance with the laws of the Commonwealth of Virginia. Judgment on the award may be entered in any court having jurisdiction in the Commonwealth of Virginia (the “Award”). The arbitrator shall, in the Award, allocate all of the costs of the arbitration (and the mediation, if applicable), including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing Party, against the Party who did not prevail.
11. GENERAL
11.1 No Hiring. Both Parties agree not to hire, or directly or indirectly solicit or employ, any employee of the other Party during the Term, or for a period of twelve (12) months after either the termination of this Agreement without the prior written consent of the other Party. In the event one Party breaches the provisions of this Section 11.1, then the breaching Party shall owe the other Party a one-time payment in the aggregate amount of twelve (12) months of the employee’s base salary immediately prior to their departure from the non-breaching Party. This one-time payment will be payable in full from the breaching Party to the non-breaching Party within 30 days of the breach.
11.2 Non-Circumvent. Client shall not, without the prior consent of POPNOD, for the term of this Agreement and for a period of twelve (12) months following termination of this Agreement, on its own behalf or on behalf of any other person or entity (whether directly or indirectly): (a) solicit any vendor or subcontractor of POPNOD performing services for Client to procure services directly from them; or (b) solicit or hire any employee of POPNOD’s vendors, subcontractors, or affiliates.
11.3 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party.
11.4 Independent Parties. Neither Client nor POPNOD is a legal representative or agent of the other, or is legally a partner of the other. POPNOD staff performing the Services will at all times remain under the direction and control of POPNOD. POPNOD will be responsible for all payroll taxes, unemployment insurance payments and other obligations of employers with respect to POPNOD employees performing the Services. No part of POPNOD’s compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. Client will regularly report amounts paid to POPNOD with the Internal Revenue Service as required by law.
11.5 Force Majeure. If either Party's performance of any part of this Agreement, except for the payment of money owed when due, is prevented or delayed by a Force Majeure Event, that party will be excused from such performance to the extent it is necessarily prevented or delayed thereby. "Force Majeure Event" means an event beyond a party's reasonable control, including, without limitation, fire, flood, war, riot or terrorism, acts of civil or military authority (including governmental priorities), severe weather, strikes or labor disputes or labor shortages.
11.6 Entirety. This Agreement and the Privacy Policy represent the entire and exclusive agreement of the Parties regarding the Services, superceding any prior agreements between POPNOD and Client regarding the Services. The Parties may agree to expressly waive some terms of this Agreement in a Statement of Work. In the event that there is an unintended conflict between a Statement of Work and this Agreement, the terms of this Agreement will control.
11.7 Waiver. No waiver by either Party of any default will operate as a waiver of any other default, or of a similar default on a future occasion. No waiver of any term or condition by either Party will be effective unless in writing and executed by both Parties. Other than members of the group of companies of which POPNOD is the parent, no other person or company will be third party beneficiaries to this Agreement.
11.8 Severability. In case one or more of the provisions of this Agreement should be held invalid, illegal or unenforceable in any respect for any reason, the same will not affect any other provision in this Agreement, which will be construed as if such invalid or illegal or unenforceable provision had never been contained therein.
11.9 Governing Law. The validity, construction and performance of this Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to conflict of laws principles.
11.10 Notice. We may revise this Agreement from time to time, the most current version will always be at https://www.popnod.com/tc. If the revision, in our sole discretion, is material we may notify you via e-mail to the email associated with your account. By continuing to access or use the Services after those revisions become effective, the Client agrees to be bound by the revised Agreement.
11.11 Headings. All section headings herein are inserted for convenience only and shall not modify or affect the meaning, construction or interpretation of any of the provisions of this Agreement.