Nolte Care Service Terms

These Service Terms & Conditions (the “Terms”) govern the relationship between Moxie Media Group, Inc., a New York corporation dba Nolte (“Nolte” or “we” and “us”) and its clients (“you” or “Customer”), concerning the provision of services (the “Service”) by Nolte pursuant to Nolte Care Plan order forms or other Nolte Care Plan ordering documents executed by you and Nolte (each, a “Plan”). These Terms are incorporated and made part of each such Plan. Capitalized terms not defined in context shall have the meaning ascribed in Section 16.

Service. Nolte will perform the Service described in the applicable Plan, in accordance with the terms thereof.
Fees.
1. ACH Debit. Nolte will periodically process payment via ACH debit from Customer’s designated bank account for the amounts due pursuant to the Plan; provided, that, where a Customer does not have access to ACH processing, fees will be due and payable in advance, unless otherwise specified in the applicable Plan.
2. Late Fees. Any payments not received by Nolte within 30 days after the issuance date of the invoice will incur interest at the lesser of 16% per annum or the greatest amount permitted under applicable law (calculated and applied daily).
3. Suspension for Non-Payment. If payment in full is not received by Nolte within 30 days of the issuance date of the invoice, Nolte shall have the right to suspend the Service until such time as Customer has paid all amounts due, including interest. Following such payment, Nolte shall use its best efforts to promptly reinstate the Service. No suspension under this provision shall be deemed to be a breach of this Agreement by Nolte or shall relieve Customer from its obligations to pay for the Service provided through the date of suspension. Customer understands and agrees that failure to make timely payment may result in Customer’s websites or other web-based platforms or products (each a “Product”) being hosted by or through Nolte may result in such Product being taken offline.
4. Rush Fees. If Customer requires that Nolte team members work out of regular office hours (10:00am-6:00pm Eastern Monday through Friday, other than federally-observed holidays) in order to complete work faster than Nolte is otherwise obliged under the Plan and Service Level Agreement set out in Section 13, or if Customer requires that Nolte reprioritize Customer’s work above that of other customers, Nolte reserve the right to charge a “rush” fee of 1.5 times the regular fee. Nolte will always seek written approval from Customer before commencing any rush work.
5. Payment Dispute Process. If Customer disputes any amount invoiced, Customer must give Nolte written notice describing the dispute in reasonable detail within seven (7) days of the issuance date of the invoice. Customer may not dispute invoices after this date. Services provided outside the scope of the Plan will be billed at Nolte’s applicable hourly rates.
Customer Obligations. Customer shall (a) timely provide materials necessary for Nolte’s performance of its Service; (b) ensure that Customer stakeholders are available and responsive over the course of the Service; (c) ensure that all Customer feedback and approvals are provided through a single point of contact; and (d) provide any access necessary for Nolte to perform its Service (“Customer Obligations”). If Customer repeatedly or unreasonably fails to perform the Customer Obligations, Nolte may provide written notice specifying the failure and request that Customer correct the failure. If Customer does not correct the failure within five (5) days of its receipt of the notice, Nolte may, by written notice to Customer, suspend the Service, and invoice for Service provided through the date of suspension.
Independent Contractor. Nothing herein shall be construed to create an employer-employee relationship between the Customer and Nolte. Nolte is an independent contractor and not an employee of the Customer or any of its subsidiaries or affiliates. As such, the Customer shall not assume responsibility to provide health care benefits, worker’s compensation, unemployment insurance benefits and/or any other benefits that the Customer provides to its employees. Nolte will not represent to be or hold itself out as an employee of the Customer.
Subscription Terms & Renewals. Unless otherwise set forth in the applicable Plan, (a) the Plan requires an initial term of one-year (the “Initial Term”), and (b) automatically renews for additional one-year terms (each a “Renewal Term”), unless either party provides written notice at least thirty (30) days prior to the end of the Initial Term or Renewal Term, as applicable; provided, that Customer may terminate the Plan during the Initial Term or any Renewal Term by written notice and payment of an early termination fee equal to 25% of the fees that would be due during the remainder of the then-current Initial Term or Renewal Term, as applicable (the “Early Termination Fee”). (You acknowledge and agree that such Early Termination Fee is a reasonable estimate of the damages that would be suffered by Nolte for early termination, which would otherwise be difficult to quantify, and is not a penalty.) The expiration or termination of a Plan does not effect these Terms, which shall continue to apply to any other Plans and to the extent that the applicable provisions of these Terms by their nature continue after expiration or termination of the service relationship (including the right to enforce payment obligations incurred prior to termination or expiration of the Plan, and disclaimers and limitations on liability).
Confidential Information. Each Party (the “Discloser”) may disclose Confidential Information to the other Party (the “Recipient”) in connection with this Agreement. The Recipient agrees to (a) maintain the Confidential Information in confidence; (b) protect the Confidential Information with a reasonable degree of care, including employing industry standard security procedures to prevent unauthorized disclosure of Confidential Information; (c) not use the Confidential Information except in the performance of its obligations under this Agreement; and (d) disclose the Confidential Information only to those of its employees and agents who have a need to know the Confidential Information and who are bound by agreement or law to maintain the confidentiality of the information.
Intellectual Property. Subject to Nolte’s receipt of payment under the Plan, Nolte assigns to Customer all of Nolte’s rights in the Deliverables (other than Nolte’s Tools incorporated in the Deliverables). Upon assignment, Nolte grants Customer a nonexclusive, royalty-free, worldwide license to use, modify, display, and otherwise take full lawful advantage of Nolte’s Tools in connection with the Deliverables. Nolte shall provide Customer with a copy of any licenses applicable to any Third-Party Materials included in the Deliverables (the “Third-Party Licenses”). Customer shall comply with the terms of such licenses. Customer grants Nolte a license to use the Customer Materials as contemplated by this Agreement.
Promotional Rights. Upon Customer’s publication of any Deliverable, Nolte may publicize depictions of the Deliverables, link to any online content containing the Deliverables, and describe its role in creating of the Deliverables. Nolte may (i) publicize the fact that Customer is Nolte’s customer; (ii) describe the nature of its work for the Customer; and (iii) subject to any reasonable restrictions imposed by Customer, utilize Customer’s trade name(s) and trademark(s) in connection with its publicity.
Warranties.
1. Mutual Warranties. Each Party warrants that (i) it is authorized to enter into and perform this Agreement; and (ii) it will perform under this Agreement in accordance with applicable law.
2. Nolte Warranties. Nolte warrants that (i) it will perform its Service in a professional manner and in accordance with industry standards; (ii) it will assign personnel who are reasonably experienced and qualified to perform its Service; and (iii) to its knowledge, the Deliverables will not, if used by Customer as contemplated and in accordance with any Third-Party Licenses, infringe any third-party intellectual property rights.
3. Customer Warranties. Customer warrants that, (i) to its knowledge, the Customer Materials will not, if used by Nolte as contemplated, infringe any third-party intellectual property rights; and (ii) entering into and performing this Agreement will not conflict with any other agreement to which Customer is bound.
4. Disclaimer. Except as provided in this Section, each Party’s performance under this Agreement is provided “AS IS” and without other warranty, including without limitation any warranties arising from the course of performance, course of dealing, or usage of trade.
Indemnity & Limit on Liability.
1. Indemnity. Subject to Section 9(c), Nolte shall indemnify and defend Customer and its employees, officers, directors, shareholders, members, and managers (collectively, the “Indemnitees”) from any damages, expenses, fees, fines, penalties, expenses (including reasonable attorney’s fees) and costs incurred by the Indemnitees in connection with any third-party claim arising out of Nolte’s breach of this Agreement, negligence, or intentional wrongdoing (a “Claim”). As a condition to Nolte’s indemnification obligation, the Indemnitees shall give Nolte prompt written notice of any Claim or potential Claim. In any defense, (i) Nolte has the sole right to defend and settle the Claim using counsel of its choosing; and (ii) the Indemnitees shall reasonably cooperate with Nolte in the defense and settlement of the Claim.
2. Exclusions. Nolte is not liable under Section 9(a) to the extent that Claims result from: (i) the negligent or willful acts of an Indemnitee; (ii) Nolte’s compliance with the instructions of Customer; or (iii) a claim that a Deliverable is infringing where the alleged infringement is due to modifications made by (or on behalf of) Customer.
3. Limit on Liability. Each Party’s maximum liability in any action relating to the subject of this Agreement is limited to the total fixed recurring fees payable by Customer pursuant to one month of the Plan. This limitation does not apply to damages arising from a Party’s gross negligence or intentional wrongdoing, the Conversion Fee, or to attorney’s fees and costs payable pursuant to Section 16(b). Neither Party is liable for any claim for lost profits or similar damages, even if foreseeable and regardless of the form of action.
Non-Solicitation. The Parties shall not, while services are being performed by Nolte and for two (2) years after the last day on which services were provided, solicit, induce, or recruit, directly or indirectly, for itself or for any other Party, the other Party’s employees or independent contractors (unless written permission is given by the other Party). The Parties agree that damages resulting from a breach of this Section would be difficult to quantify, but that a reasonable estimate of such damages is 50% of the total compensation paid to the subject employee or independent contractor in the twelve (12) months preceding the breach (the “Conversion Fee”). As liquidated damages for breach of this provision, the breaching Party shall pay the Conversion Fee to the other Party.
Governing Law; Jurisdiction; Venue. New York State law governs this Agreement, exclusive of its conflict of laws principles. The state and federal courts of the Courts of New York, New York, and the United States District Court for the Southern District of New York are the exclusive venue for resolving any disputes under this Agreement. The Parties consent to the personal jurisdiction of such courts, and waive defenses concerning venue and convenience of forum.
Changes to these Terms. Nolte may update or modify these Terms from time to time, including any referenced policies and other documents. Upon such modification or update, we will provide written notice (via email) to the email you have provided us, and the modifications will be effective 30 days after your receipt of such notice; provided, that, if you do not accept such modifications, as your exclusive remedy, you may choose to cancel any outstanding Plans upon written notice to us.
Service Level Agreement.
1. Availability of Hosting Services. Subject to the terms of this Agreement, Nolte guarantees a percentage monthly average of Availability of the Product managed under the Plan, where the percentage is defined in the Plan definition document. “Availability” means a percentage calculated by dividing the total time during which the Product is available to use by the total time in a given period, less the time of the Exclusions listed in Section 13(g) below. To verify that the Service is available, Nolte will ping the HTTP service on the Product by retrieving HTTP headers every 5 minutes with a 30-second threshold. If an HTTP service does not respond, the Product is considered non-operational and is immediately escalated to the support center. In cases where two or more consecutive HTTP tests fail, the Product downtime will be registered as the number of minutes between the first and the last failed tests. Nolte calculates Availability uptime based on this type of monitoring.
2. Ticket Response Times. Subject to the terms of this Agreement, Nolte guarantees to respond and resolve some tickets within an agreed timeframe. The timeframe is specified in the Plan definition document.
3. Service Credit. If Availability falls below the guaranteed level, as Customer’s sole remedy for such failure, Nolte will credit to Customer $250 for the next month of Service. If Ticket Response Time falls below the guaranteed level, as Customer’s sole remedy for such failure, Nolte will credit to Customer $250 of the monthly fees charged for the month during which such failure occurred, per incident.
4. Request for Credit. To receive the credit, Customer must specifically request it during the month following the month for which the credit is requested. Customer must provide all dates and times of issue(s) along with Customer’s account information. Nolte will compare information provided by Customer to Nolte’s own records. A credit will be issued if the unavailability warranting the credit is confirmed. The Parties agree to work together in good faith to resolve any dispute arising from this SLA.
5. Maximum Total Penalty. The total credit to Customer shall not exceed $500 per month.
6. Limitations. Credits may not be issued if the Customer account is past due, suspended, or pending suspension.
7. Exceptions. Customer shall not receive any credits in connection with any failure or deficiency of Service Availability or Ticket Response Time to the extent caused by: (i) an event outside the reasonable control of Nolte; (ii) maintenance and upgrades; (iii) any causes attributable to Customer or its contractors, (iv) software or hardware not provided or controlled by Nolte; (v) outages elsewhere on the internet, including but not limited to interruptions at any Company or third party data center or ISP; or (vi) acts or omissions of other customers (or of those authorized by other customers) sharing the affected Service(s) with Customer.
Notices. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be in writing (email suffices) and are effective upon receipt. Any notice to Nolte shall be sent to the Customer’s primary point of contact and to jnolte@wearenolte.com.
Definitions. The following terms have the meanings given:
1. “Agreement” means the applicable Plan and these Terms collectively.
2. “Customer Materials” means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials provided by or on behalf of Customer to be used by Nolte in connection with the preparation of or incorporated into the Deliverables.
3. “Confidential Information” means information that, either, is identified as confidential upon disclosure, or that the Recipient should understand to be confidential under the circumstances; provided, Confidential Information does not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient; (ii) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided, such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any contractual obligation; (iii) was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser pursuant to this Agreement; or (iv) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Discloser’s Confidential Information.
4. “Deliverables” means the final versions of the materials produced and delivered by Nolte pursuant to this Agreement. Deliverables may include Customer Materials, Nolte’s Tools, Third-Party Materials, and Work Product.
5. “Nolte’s Tools” means Nolte’s intellectual property (including its designs, methods, software, and trade secrets) that either preexist this Agreement or are developed by Nolte other than in providing services for Customer under this Agreement. Nolte’s Tools includes any improvements that are not uniquely applicable to the Deliverables.
6. “Party” means each of Nolte and Customer, as applicable.
7. “Parties” means both Nolte and Customer, collectively.
8. “Third-Party Materials” means materials belonging to third parties that are incorporated into the Deliverables, including without limitation open source software, fonts, and stock images.
9. “Work Product” means the materials first created by Nolte for Customer in the course of performing the services pursuant to this Agreement.
Miscellaneous.
1. Taxes. Nolte shall pay all taxes on its income and employment taxes for its personnel. Customer shall pay any sales, use and value added taxes.
2. Attorney’s Fees. The prevailing Party in any dispute regarding the subject of this Agreement is entitled to recover its reasonable attorney’s fees, expert’s fees, and costs.
3. This Agreement. This Agreement is the entire agreement of the Parties with respect to Nolte Care Plans. All prior and contemporaneous agreements concerning Nolte Care Plans are superseded. This Agreement may only be amended by a writing signed by both Parties. If any term of this Agreement is determined to be unenforceable, the remainder of this Agreement will not be affected. This Agreement was negotiated by sophisticated parties and will not be construed in favor of or against either Party.
4. Force Majeure. Nolte will make reasonable efforts to observe the dates that it indicates for delivery and performance of the Services. However, Nolte shall not be liable in any way for delays due to acts of God, labor disputes, fires, wars, acts of terrorism, accidents, failures or breakdowns of necessary components, subcontractor or supplier delays, Customer delays (for example, failure to pay on time or supply needed information on the order), inability to obtain or substantial rises in the price of labor, materials or facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, compliance with any laws, regulations or orders, whether valid or invalid, from any governmental body or instrumentality, or any other circumstance or causes beyond Nolte’s reasonable control. If such delay is not indefinite, Nolte’s performance will be suspended during the delay and extended for the duration of the delay, and thereafter Company shall accept Nolte’s performance of the Services. No penalty of any kind shall be effective against Nolte for delays in performance.
5. Customer’s Use. Customer assumes total responsibility and risk for Customer’s use and its end users’ use of the Deliverables and other results and proceeds of the Service provided by Nolte. Customer acknowledges and agrees, and will cause its end users to acknowledge and agree, that (a) the Internet is accessible by persons who may attempt to breach the security of Nolte and/or Customer’s network facilities; and (b) Customer and its end users access the Services and resulting products at their own risk. Nolte has no control over and expressly disclaims any liability or responsibility whatsoever for service interruptions, equipment failures, service failures and any other such cause or failure attributable to Customer and/or any third party.
6. Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either Party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.
7. Expenses. Expenses may be incurred by Nolte during the course of providing the Service. Nolte will seek explicit written sign-off from Customer before incurring said expense and will invoice Customer at the end of the month in which the expense is incurred. All expenses will be invoiced to the Customer at actual cost, without markup. Receipts or other satisfactory documentation will be presented upon request.
8. Third Party Dependencies. Nolte is not responsible for any delays or diminished functionality caused by any third parties. In this case Nolte may invoice additional time at the standard rate and/or deliver different functionality to that agreed.
9. Bind and Inure; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors in interest, heirs, executors, legal representatives, administrators and permitted assigns. This Agreement may not be assigned by Customer, in whole or in part, without the written consent of Nolte.
10. Subcontractor. Any work that is to be done by Nolte under this Agreement may be subcontracted to a third party working under Nolte’s direction and supervision without the prior written consent of Customer.
11. Respect. Neither Party make any disparaging remarks, orally or in writing, to any person or entity regarding the other Party, its business practices or any of its members, directors, officers, employees or agents at any time for any reason whatsoever.

Effective from May 7th, 2018.