Terms

NimblePros (ASPSmith, Ltd. dba NimblePros) provides software development, consulting, and training services to its Clients.  Such services are generally subject to the following terms, which shall be presented to clients in the form of a Master Services Agreement.

These terms are presented for informational purposes only and are not a contract.  Specific project details including the precise nature of the services to be provided, the term of the engagement, and other details which are necessarily unique to the engagement will be determined upon discussion between the Client and NimblePros, and shall be incorporated into the actual contract between the Parties. 

Whereas the Client and NimblePros have agreed to enter into this Master Services Agreement detailing the terms and conditions by which NimblePros will provide software development and other services to the Client, the parties agree as follows:

The Client hereby retains and appoints NimblePros effective as of the date of this Agreement to provide software development and related services to the Client for use in the Client’s business. 

Services to be provided by NimblePros shall be set out in Statements of Work (hereinafter “SOW”) to be agreed upon by NimblePros and the Client on a monthly or other basis. The SOW shall set forth the particular services or content to be created and delivered to the Client, the compensation for such services and content, and the deadline by which NimblePros must deliver the services to the Client. The SOW will also define any criteria by which the Client will approve the work, if applicable.  

The services provided may vary from those proposed in the SOW based upon further discussion and agreement with the Client during the course of the project. Additional requests and changes specified by the client throughout the course of the project may result in actual costs for services that vary from the original SOW, and these requests and changes may be communicated between the parties verbally or in writing.  Every effort shall be made to inform the Client of such changes as they occur, but any failure to do so shall not relieve the Client of the responsibility to pay for those services. 

The Parties understand that this Agreement is intended as a Master Agreement as to the general relationship between Client and NimblePros, and that the specific terms of the services NimblePros is to provide, the term for that engagement and NimblePros’ compensation for said services and expenses are to be provided in periodically submitted SOWs, and that said SOWs are to be considered and regarded by the parties as being a part of this Agreement and binding upon the parties as a part of their contractual relationship.

The term of NimblePros’ engagement shall commence with the effective date of this Agreement and shall continue until either party communicates in writing, electronic or otherwise, to the other that it desires to terminate this Agreement. Upon termination by Client, NimblePros shall be entitled to payment for any services it provided to Client under any SOW then accepted by Client as set out above. Upon termination by NimblePros, Client shall be entitled to delivery of any deliverables created by NimblePros under any SOW then accepted by Client as set out above, and for which Client has made payment to NimblePros.

NimblePros warrants that completed software projects will be substantially free of bugs and other defects, provided that the Client adheres to NimblePros’ recommendations for architecture, testing, source control and other standard procedures and project requirements. In the event that defects in the code are present, beyond the level deemed acceptable by current industry standards, NimblePros will work with the Client to address the issues within a reasonable period of time. For engagements involving training and mentoring, NimblePros warrants that it shall present generally accepted best practices and recommendations in line with current industry standards.  However, specific recommendations are inherently limited by the details of the project as disclosed by the Client, and the Client is responsible for any implementation thereof.  In any case, the liability of NimblePros is limited to the amount paid by the Client to NimblePros for the engagement in question.

Invoices:  NimblePros will send periodic invoices to the Client for work performed. Client shall make payment to NimblePros of the full amount of any invoice within 10 days of NimblePros’ presentation of said invoice to Client. All amounts shall be paid to NimblePros in lawful United States currency and the Client is responsible for any fees associated with payment, including wire transfer fees or other bank fees.

Overdue Accounts: NimblePros shall be entitled to assess a finance charge of 1.5% per month on the unpaid amount of any invoice, up to the maximum amount allowed by law, for any invoice overdue by 10 days or more. Payments by Client will thereafter be applied first to accrued finance charges and then to the principal unpaid balance. Client shall pay NimblePros’ attorney fees, court costs, or other costs incurred in collection of delinquent amounts. If payment of invoices is not current, NimblePros may suspend further work without notice.

Expenses: NimblePros shall be reimbursed by the Client for all expenses reasonably or necessarily incurred by the company in the course of providing the services outlined to the Client. These include but are not limited to transportation, meals, lodging, travel, business entertainment, equipment and supplies. The Client may reasonably require presentation of statements, receipts, or other supporting documentation, and such expenses should comply with the Client’s travel and business expense policies, including preapproval requirements. 

The parties recognize that NimblePros is an independent contractor and not an employee, agent, co-venturer, or representative of the Client. The Client shall not withhold any funds from NimblePros for tax or other governmental purposes, and NimblePros shall be responsible for the payment of same. NimblePros and its employees shall not be entitled to receive any employment benefits offered to employees of the Client, including but not limited to: workers' compensation coverage; savings or profit-sharing plans; stock option, incentive or other bonus plans; health, dental or life insurance coverage; and paid vacations. The Client shall not exercise control over NimblePros or its employees. 

The Client, including its employees and subcontractors, shall not solicit for employment, hire, or engage as an independent contractor, any individual employee or contractor of NimblePros at any time during which NimblePros is providing services for the Client (including during negotiations for such services), or for a period of two years following the termination of any agreement for the performance of services between NimblePros and the Client. If specific state or federal laws deem that this application is too broad, then the broadest interpretation of this clause which is deemed to be enforceable by such law shall apply. The intent of this provision is to reasonably protect the interests of NimblePros against the loss of employee and contractor resources, which would cause significant damages to NimblePros and its ability to continue operations.

The Parties acknowledge that in the course of the services, certain confidential and proprietary technical, financial and business information may be disclosed between the Parties. Each Party agrees to hold in strictest confidence all Confidential Information and shall not disclose the Information to any other Party, except as may be required by law.  However, the Receiving Party shall not be liable for disclosure of any Confidential Information which is at any time available in the public domain absent the breach of this Agreement or any information which is developed independently of and without reference to any Confidential Information.

The Parties acknowledge that any work created by NimblePros in connection with the performance of consulting services for the Client pursuant hereto is being created at the insistence of the Client and shall be deemed "work made for hire" under the United States copyright laws. The Client shall have the right to use the whole work, any part or parts thereof, or none of the work, as it sees fit. The Client may alter the work, add to it, or combine it with any other work or works, at its sole discretion. Notwithstanding the foregoing, all original material submitted by NimblePros as part of the work or as part of the process of creating the work, including but not limited to programs, listings, printouts, documentation, notes, flow charts, and programming aids, shall be the property of the Client whether or not the Client uses such material, provided that the Client has paid, in full, for the work done by NimblePros. The Client understands that NimblePros may use certain modules, routines, subroutines or other such standard code in developing work for the Client and that NimblePros reserves the rights to such modules, routines, subroutines or other such standard code and to reuse or otherwise incorporate the same into future works for other Clients. Similarly, Client understands that NimblePros may have utilized certain modules, routines, subroutines or other such standard code in works for other clients in the past. Nothing in this Agreement shall be construed to grant the Client an exclusive right or license in the modules, routines, subroutines or other such standard code that NimblePros utilizes in creating any work for the Client.  Notwithstanding the foregoing, any materials created by NimblePros for use in training services shall be considered the sole property of NimblePros and the Client shall not duplicate, replicate, or otherwise use the materials unless explicit permission to do so is given by NimblePros. 

Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be given by prepaid first-class mail, or by email or other means of electronic communication. Any such notice or other communication, if mailed by prepaid first-class mail shall be deemed to have been received on the fourth business day after the post-marked date thereof, or if mailed by registered mail, shall be deemed to have been received on the day such mail is delivered by the post office, or if sent by email or other means of electronic communication, shall be deemed to have been received on the business day following the sending. Notice of change of address shall also be governed by this section. Notices and other communications shall be addressed as follows:

(a) If to the Client: Client Provided Address

(b) If to NimblePros:  NimblePros, 7676 Ferguson Road, Kent OH 44240

The inclusion of headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation hereof.  This Agreement is severable. If any provision of this Agreement is declared void or invalid by any court, all other provisions of this Agreement are still binding.

This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio.