Agreement means the Client AGENCY Website or "digital Storefront" Project description as discussed in our Scope of Work
AGENCY Website Project means the scope and purpose of the Client’s identified usage of the Website work product as described here;
Services means all services and the work product to be provided to Client by Company as described and otherwise further defined in the AGENCY Website Project scope of work;
Final Deliverables means the final versions of AGENCY Website Project provided by Company within the scope of work and accepted by Client;
Deliverables means the services and work product specified in the AGENCY Website Project to be delivered by Company to the Client;
Client Content means all materials, writing, images or other creative content provided by Client to be used in preparing or creating the Deliverables and limited to the Scope of work agreed to by the Company;
Company and Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration owned by or licensed to the Company;
Website and SEO Tools means all tools developed and/or used by Company or third parties hired by the Company in performing the Services under the scope of work, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.These tools remain the property of the Company or third party providers;
Company shall perform the services listed the Scope of Work according to the Work Plan;
Fees: No Fees for 6 months post public release . Building of the Client’s website, within the scope of work, is to the account of the Company, including purchase of a domain for the Client, website hosting provision, maintenance of hosting and technical stability as well as third party licenses.
Additional Costs: The Client hereby agrees and understands that a fee will be charged for any changes request by the Client after public release of the Client Agency Website;
Hosting Final Deliverables: The Company will host the Final Deliverables on Company web space while the Project is under construction and for the first (6) six month after completion and release of the Client website.
OWNERSHIP OF DOMAIN NAMES AND WEB HOSTING
We will supply to you account credentials for domain name registration that we purchased on your behalf when you reimburse us for any expenses that we have incurred. You will have full ownership of your domain and you will be free to move your domain name. Failure to pay your domain renewal, will result in the cancellation of your domain name.
The Company hosts Client websites with 3 main hosting companies. For all WP Engine Hosted Sites, you will not have administration access to the SQL database for security reasons.
If you no longer require Company services for hosting, we will supply you with a copy of your theme [HTML ART AND CONTENT] files. The Company does not provide access to the plugins, core WordPress Files or the SQL database. These are the property of the Company and cannot be exported by a client.
CROSS BROWSER COMPATIBILITY
By using current versions of well supported content management systems such as “Wordpress”, we endeavor to ensure that the web sites we create are compatible with all current modern web browsers such as the most recent versions of Internet Explorer, Firefox, Google Chrome and Safari. Third party extensions, where used, may not have the same level of support for all browsers. Where appropriate we will substitute alternative extensions or implement other solutions, on a best effort basis, where any incompatibilities are found.
You are responsible for complying with all relevant laws relating to e-commerce, and to the full extent permitted by law will hold harmless, protect, and defend and indemnify the Company and its subcontractors from any claim, penalty, tax, tariff loss or damage arising from your or your clients’ use of Internet electronic commerce.
You authorize Company to perform services which may include, but is not limited to, accessing your domain control panels, email hosting, DNS, hosting account and disk space, creating databases and applications, and submitting the project to search engines.
You have ownership of the website supplied by Company for six (6) months and for as long as your account(s) with the Company are fully paid. The Company will at all times be and remain the sole and exclusive owner of any custom web development or software created in any format used or made part of the website which is not provided by you or a third party (open source). 3rd Party software such as plugins remain the property of Company, and may not be transferred without approval from Company. Except as expressly authorized by Company , you will not copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile or disassemble Company’s properties.
Once you have paid us in full for our work we grant to you a license to use the website and contents for the life of the website.
At the end of the Six (6) months, the Client is required to pay for hosting, domain renewals, maintenance, SEO marketing and associated taxes where application.
License: The Company and its contractors retain all licenses to any intellectual property rights under this Agreement;
CHANGES TO AGENCY WEBSITE AND SEO PROJECT SCOPE
Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall submit to the Company Help Desk a written Change Order [TICKET] describing the requested changes in detail. Within no more than 48hrs of receiving a Change Order, the Company Website builders will respond with a statement proposing availability to complete the change, additional fees if any, changes to delivery dates. The Company will evaluate each Client Change Order. Additional FEES if any, shall be at the rate and charges valid at the time of the Client’s Change ORDER;
Major Change: If Client requests are at or near 20% percent of the time required to produce Deliverables, or the value of the Scope of Services, as determined by Company Website Builders and technician, the Company will then be entitled to not begin work on the revised Client services until the Company receives any additional fees.
During Free Period
The Client shall be permitted a maximum of 5 Change Orders during the 180 day FREE PERIOD. The Company may extend or modify any delivery schedule or deadlines as may be required by such changes.
AFTER FREE PERIOD
If Client requests are not Major Changes, the Client will be billed on a time and materials basis at a Company hourly rate of $85 per hour. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. The Company may extend or modify any delivery schedule or deadlines as may be required by such changes.
Acceptance/Rejection: Client will have 16 days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, the Company will not be obligated to perform any services beyond those in the original Agreement.
Delivery Delays: The Company shall use all reasonable efforts to meet the Scope of Work Plan and delivery schedule. The Company may at its discretion extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed 60 days.
Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals.Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
General Delays: Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions,force majeure, beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
EVALUATION AND ACCEPTANCE
Testing: The Company is responsible to correct errors, omission or defects in the Deliverables using commercially reasonable efforts before providing Deliverables to Client.
Approval Periods: Client shall, within 7 business days after receiving each Deliverable, notify Company in writing of any errors, omission or defects or failure to comply with the specification of the Scope of Work or of any other objections, corrections or changes required. The Company shall, within 16 business days of receiving Clients notification, correct and submit a revised Deliverable to Client.
Client shall, within 7 business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
EVALUATION AND ACCEPTANCE
Client shall, within 5 business days after completion of the website, notify the Company in writing of acceptance and will pay the Company any fees due for services outside the scope of work. If Client fails to provide approval or comments during any approval period, the Client website will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Company Web builders and technicians, unless otherwise specified in the Project Scope of Work; (b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable;
ACCREDITATION AND PROMOTION
Accreditation: The Company or its third party services providers shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by them in the Deliverables on each page of the Final Deliverables.
Promotion: The Company or its third party services providers retain the right to reproduce, publish and display the Deliverables in Company portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the creation of the Client’s Agency website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Client’s “Confidential Information” includes information that Company should reasonably believe to be confidential.
The Company or its third party services providers “Confidential Information” includes the source code of any programmer Tools including but not limited to proprietary SEO technologies.
All material considered confidential by either party shall be designated as confidential.
Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform under this Agreement.
Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
RELATIONSHIP OF THE PARTIES
The Company or its third party services providers shall determine, at their sole discretion, the manner and means by which the Services to the Client are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Company and the work product or Deliverables prepared by Company shall not be deemed a work for hire as defined under Copyright Law . All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
The Company shall be allowed to use third parties as independent contractors in connection with the Services (“Agents”). The Company shall remain fully responsible for Design Agents’ compliance with this Agreement.
This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Company, and Company shall be entitled to offer and provide design services to others clients and agencies, to solicit other clients and otherwise advertise the services offered by Company.
REPRESENTATIONS AND WARRANTIES
By Client: Client represents and warrants to Company that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Company to use Third Party Materials.
By Company: Company represents and warranty to Client that: (a) Company will provide the Services identified in the Scope of Work; (b) Company shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Company Tools, sufficient for Company to grant the intellectual property rights provided in this Agreement; (c) To the best of Company’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Company shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER. COMPANY EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
INDEMNIFICATION AND LIABILITY
By Client: Client shall indemnify Company from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Company shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
By Developer: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Company may at its own expense, replace any infringing content with non-infringing content.
Limitation of Liability
THE SERVICES AND THE WORK PRODUCT OF COMPANY ARE PROVIDED “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“COMPANY PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NO MORE THAN $500. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM AND TERMINATION
Term: This agreement shall begin when both parties sign and shall continue until all Services are complete and delivered, or until the Agreement is terminated.
Termination after Time: this Agreement shall end six (6) months after Client accepts the Deliverables or the Client Agency website is publicly released, whichever comes last;
Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.
Termination for Convenience: Either party may terminate this agreement at any time and for any reason on 21 days prior written notice to the other party. If Client terminates the Agreement under this section, Company shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
Termination Fees: In the event of termination, Client shall pay Company for the Services performed through the date of termination in the amount of a prorated portion of the fees due.
Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
Intellectual Property: As of the date of any cause for termination, the Company having retained ownership of all intellectual property, proprietary technologies and methods and to protect said same, DOES NOT GRANT to the Client any right and title with respect to those Deliverables provided the Client;
Confidential Information: On expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) all rights and obligations regarding Confidential Information shall survive.
RIGHTS TO FINAL ART
License: Company grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables without the express consent of the Company.
Liquidation for unlicensed use: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees. Company shall be entitled to further compensation unless otherwise agreed in writing by both parties. In the event of non-payment, Company shall be entitled to pursue all remedies under law and equity.
RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
Client Content: Client Content is the exclusive property of the Client. Client grants Company a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Company’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
Preliminary Works: Company retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Company within thirty (30) days of completion of the Services.
Company Tools: All Company Tools are and shall remain the exclusive property of Company. Company grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Company Tools solely to the extent necessary with the Final Deliverable for the Project.
Warranty Period: During the first 6 months FREE period under this Agreement, the Company shall provide up to 3 hours of Support Services at no additional cost to Client. Support Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies.
Requests for additional support will be billed on a time and materials basis at Company’s standard rate of $85.00 an hour.
Maintenance Period: After the FREE Period expires and at Client’s option, Company will provide Support Services for the following 3 months for Company’s hourly fees of $85.
No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.
During the Maintenance Period, Client may request that Company develop enhancements to the Deliverables. Company shall exercise commercially reasonable efforts to prioritize Company’s resources to create such enhancements. Client understands Company may have preexisting obligations that may delay requested enhancements. Company shall provide any enhancements shall be provided on a time and materials basis at Company’s standard rate of $85 per hour.
Alterations: Alteration of any Deliverable is prohibited without the express permission of Company. Company will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.
Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of California. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
Notices. All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.
No Assignment. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
Governing Law. This Agreement shall be governed by the laws of Florida.
Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.
Complete Agreement: This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of the website and search engine optimization services scope of work under this Agreement.