1.
Description of the Services. The Designer will design a website
(the "Website") for the Owner by timely providing
the design and programming services listed on Schedule A (the
"Services") in a professional and timely manner.
The parties may at any time modify the scope of the Services by
including desired changes in a written "change order" that
explains the changes and the adjustment to the payment for the
Services that will result from such changes. Such change order shall
become effective when signed and dated by both parties.
2.
Design Team. The Designer will use only qualified personnel to
provide the Services (the "Design Team"). The
Designer reserves the right to make changes to the Design Team in
its sole discretion and will provide prior written notice of any
anticipated change and a reasonable explanation for the change.
Orientation of replacement personnel shall be at the Designer’s
expense.
3.
Term / Scheduling. The Services will be completed timely in
accordance with the schedule set forth on Schedule A. The
Designer will begin the Services according to the Phase schedule and
continue until the satisfactory completion of the Services. The term
"satisfactory completion" of the Services means
when the software and documentation developed for the Website
performs to the specifications set forth on Schedule A.
4.
Payments. In consideration for the Services, the Owner will pay
the Designer in accordance with the payment schedule and terms set
forth on Schedule B.
5.
Ownership Rights. Once Phase II of Schedule A is
initiated, the Owner will own all of its proprietary information as
included in the Services, as well as all content, graphics, domain
names, and characters. All Services provided by the Designer,
including systems, computer programs, operating instructions, unique
design concepts, other documentation developed for or specifically
relating to the Owner’s information processing, all of the Owner’s
source documents, stored data and other information of any kind, and
reports and notes prepared by the Designer, will be "works for
hire" under applicable United States copyright laws, and
therefore the property of the Owner. Such work may not be used by
the Designer for any other purpose except for the benefit of the
Owner. Any and all such property shall be delivered to the Owner on
request by the Owner. If Phase II is not initiated, then
ownership of code, development, and design will be retained by the
Designer. Owner will retain ownership of any provided artwork,
graphics and written content, as well as any domain registration and
hosting previously paid for.
6.
Confidentiality. The Designer will not at any time or in any
manner, either directly or indirectly, use for the personal benefit
of the Designer, or divulge, disclose, or communicate in any manner
any information that is proprietary to the Owner (e.g., trade
secrets, know-how and confidential information). The Designer will
protect such information and treat it as strictly confidential. This
provision shall continue to be effective after the termination of
this Agreement. Upon termination of this Agreement, the Designer
will return to the Owner all records, notes, documentation and other
items that were used, created, or controlled by the Designer during
the term of this Agreement. The Owner may seek and obtain injunctive
relief against the release or threatened release of such information
in addition to any other legal remedies which may be available.
This
Agreement is in compliance with the Defend Trade Secrets Act and
provides civil or criminal immunity to any individual for the
disclosure of trade secrets: (i) made in confidence to a federal,
state, or local government official, or to an attorney when the
disclosure is to report suspected violations of the law; or (ii) in
a complaint or other document filed in a lawsuit if made under seal.
7.
Non-Solicitation of Employees. The Owner and the Designer agree
to refrain from soliciting for employment, without the prior written
consent of the other, their respective employees during the term of
this Agreement and for a period of two (2) years following the
termination of this Agreement.
8.
Independent Contractor. The Designer is an independent
contractor with respect to its relationship to the Owner. Neither
the Designer nor the Designer’s employees are or shall be deemed for
any purpose to be employees of the Owner. The Owner shall not be
responsible to the Designer, the Designer’s employees, or any
governing body for any payroll taxes related to the performance of
the Services.
9.
Promotion. The Designer will not use the names, trademarks,
service marks, symbols or any abbreviations of the Owner, without
the prior written consent of the Owner.
10.
Warranty – Designer. The Designer warrants to the Owner that all
software programming, web pages, and materials delivered to the
Owner in connection with the Services are free from defects in
materials and faulty workmanship under normal use, and that the
Website will operate properly with widely used web browsers. During
the Designer’s recommended beta testing period and for a 30 day
period following completion of beta testing, the Designer will
correct any software anomalies ("bugs") that occur because
of defects in the source code included in the software. After such
time, the Designer will make changes on a fixed hourly rate or a
negotiated fixed quote basis. While no website design process is
able to guarantee bug-free results, the Services will be provided in
a workmanlike manner, within local industry standards and tolerances
for commercial applications. This warranty does not cover items
damaged, modified or misused after delivery to the Owner.
11.
Warranty – Intellectual Property Rights. The Designer represents
and warrants that it has the unencumbered right and power to enter
into and perform this Agreement and that the Designer is not aware
of any claims or basis for claims of infringement of any patent,
trademark, copyright, trade secret, or contractual or other
proprietary rights of third parties in or to any programming or
materials included by the Designer in the Services or trade names
related to the Services. In the event of any claim, charge, suit or
proceeding by any third party against the Owner alleging such
infringement, the Designer shall defend such claim, charge, suit or
proceeding. The Designer shall indemnify and hold the Owner harmless
from and against any loss, cost, damage or expense (including
attorney’s fees and legal expenses) incurred by the Owner that may
result by reason of any such claim, charge, suit or proceeding. The
Owner shall have the right, if it so desires, to be represented in
any such claim, charge, suit or proceeding by counsel. If any of the
programming or materials included by the Designer in the Services
becomes the subject of an infringement suit, the Owner may terminate
this Agreement and shall be entitled to a refund of any payments
that it has made to the Designer under this Agreement. This
indemnity shall not apply to materials provided by the Owner as
contemplated by the following paragraph.
12.
Warranty – Owner. The Owner represents and warrants to the
Designer that the Owner owns (or has a legal license to use) all
photos, text, artwork, graphics, designs, trademarks, and other
materials provided by the Owner for inclusion in the Website, and
that the Owner has obtained all waivers, authorizations, and other
documentation that may be appropriate to evidence such ownership.
The Owner shall indemnify and hold the Designer harmless from all
losses and claims, including attorney’s fees and legal expenses,
that may result by reason of claims by third parties related to such
materials
13.
Disclaimer of Warranties. Except as expressly set forth in this
agreement, the parties hereby specifically disclaim any
representations or warranties, express or implied, regarding the
services, including any implied warranty of merchantability or
fitness for a particular purpose or implied warranties arising from
course of dealing or course of performance.
14.
Limitation of Liability. Under no circumstances shall either
party be liable to the other party or any third party for indirect,
incidental, consequential, special or exemplary damages (even if
that party has been advised of the possibility of such damages),
arising from any provision of this agreement such as, but not
limited to, loss of revenue or anticipated profit or lost business,
costs of delay or failure of delivery, or liabilities to third
parties arising from any source.
15.
Indemnity. Each party agrees to defend, indemnify, and hold
harmless the other party and its officers, directors, agents,
affiliates, distributors, representatives, and employees from any
and all third party claims, demands, liabilities, costs and
expenses, including reasonable attorney’s fees, costs and expenses
resulting from the indemnifying party’s material breach of any duty,
representation, or warranty under this Agreement.
16.
Assignment. This Agreement is not assignable, in whole or in
part, by either party without the prior written consent of the other
party. Any attempt to make such assignment shall be void.
17.
Attorney’s Fees. In any legal action between the parties
concerning this Agreement, the prevailing party shall be entitled to
recover reasonable attorney’s fees and costs.
18.
Termination. This Agreement shall terminate automatically upon
the completion of the Services described herein. In the event of
such termination, the Owner shall be obligated to pay only for
actual services provided by the Designer and for expenditures
incurred with the Owner’s approval.
19.
Termination on Default. If a party defaults by failing to
substantially perform any provision, term or condition of this
Agreement (including without limitation the failure to make a
monetary payment when due), the other party may terminate this
Agreement by providing written notice to the defaulting party. The
notice shall describe with sufficient detail the nature of the
default. The party in default shall have 14 business days from the
effective date of such notice to cure the default(s). Unless waived
by the party providing the notice, the failure to cure the
default(s) within such time period shall result in the automatic
termination of this Agreement.
20.
Taxes. The Owner shall pay the amount of any sales, use, excise
or similar taxes applicable to the performance of the Services, if
any, or, in lieu of such payment, the Owner shall provide the
Designer with a certificate acceptable to the taxing authorities
exempting the Owner from payment of such taxes.
21.
Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the remaining portions of this
Agreement shall remain in full force and effect and construed so as
to best effectuate the original intent and purpose of this
Agreement.
22.
Governing Law / Forum. This Agreement shall be construed in
accordance with the internal laws of the State of California,
without regard to conflict of laws rules. Venue shall be in a court
of competent jurisdiction in the State of California, and both
parties expressly consent to jurisdiction in such courts.
23.
Complete Contract / Amendment. This Agreement supersedes all
prior agreements and understandings between the parties for
performance of the Services, and constitutes the complete agreement
and understanding between the parties. The parties may amend this
Agreement in a written document signed by both parties.
24.
SIGNATORIES. After
signing by both parties, this Agreement is effective as of
the date first written above.
