All of our services under this agreement are month-to-month including our web maintenance which includes security, hosting, backups, etc. This includes both production and staging environments. We provide server resources and ongoing security while we are building the website and require the web maintenance fee to be paid once the staging URL is active and continually paid going forward each month. Since services are month to month they can be cancelled at any time with a 30-day written notice.
7. CONFIDENTIAL INFORMATION
The Developer, during the Term and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. “Confidential Information” means any of the Company’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Developer by the Company either directly or indirectly. The Developer may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Company personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing.
8. PARTIES’ REPRESENTATIONS AND WARRANTIES
The Parties each represent and warrant as follows:
- Each Party has full power, authority, and right to perform its obligations under the Agreement.
- This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
- Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
The Developer hereby represents and warrants as follows:
- The Developer has the sole right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed.
- The Developer has the experience and ability to perform the Services required by this Agreement.
- The Developer has the right to perform the Services required by this Agreement at any place or location, and at such times as the Developer shall determine.
- The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and the Developer shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
- The Services required by this Agreement shall be performed by the Developer and the Developer’s staff, and the Company shall not be required to hire, supervise, or pay any assistants to help the Developer perform such services.
- The Developer is responsible for paying all ordinary and necessary expenses of its staff.
The Company hereby represents and warrants as follows:
- The Company will make timely payments of invoiced amounts earned by the Developer under this Agreement and as detailed in Exhibit A hereto.
- The Company shall notify the Developer of any changes to its procedures affecting the Developer’s obligations under this Agreement at least forty-eight hours prior to implementing such changes.
- The Company shall provide such other assistance to the Developer as it deems reasonable and appropriate.
9. TIMING AND DELAYS
The Developer recognizes and agrees that failure to deliver the Website in accordance with the delivery schedule detailed in Exhibit A to this Agreement will result in expense and damage to the Company. The Developer shall inform the Company immediately of any anticipated delays in the delivery schedule and of any remedial actions being taken to ensure completion of the Website according to such schedule.
10. NATURE OF RELATIONSHIP
Independent Contractor Status: The Developer agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Developer is and will remain an independent contractor in its relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Developer’s compensation hereunder. The Developer shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party or a third party.
11. WORK FOR HIRE
Work for Hire: The Developer expressly acknowledges and agrees that any and all proprietary materials prepared by the Developer under this Agreement shall be considered “works for hire” and the exclusive property of the Company unless otherwise specified. These items shall include, but shall not be limited to, any and all deliverables resulting from the Developer’s Services or contemplated by this Agreement, all tangible results, and proceeds of the Services, work in progress, records, diagrams, notes, drawings, specifications, schematics, documents, designs, improvements, inventions, discoveries, developments, trademarks, trade secrets, customer lists, databases, software, programs, middleware, applications, and solutions conceived, made, or discovered by the Developer, solely or in collaboration with others, during the Term of this Agreement relating in any manner to the Developer’s Services.
Additional Action to Assign Interest: To the extent, such work may not be deemed a “work for hire” under applicable law, the Developer hereby assigns to the Company all of its right, title, and interest in and to such work. The Developer shall execute and deliver to the Company any instruments of transfer and take such other action that the Company may reasonably request, including, without limitation, executing and filing, at the Company’s expense, copyright applications, assignments, and other documents required for the protection of the Company’s rights to such materials.
12. NO CONFLICT OF INTEREST; OTHER ACTIVITIES
The Developer hereby warrants to the Company that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, the Developer is free to engage in other website development activities.
13. RETURN OF PROPERTY
Within five (5) days of the termination of this Agreement, whether by expiration or otherwise, the Developer agrees to return to the Company all Company products, samples, models, or other property and all documents, retaining no copies or notes, relating to the Company’s business including, but not limited to, reports, abstracts, lists, correspondence, information, computer files, computer disks, and all other materials and all copies of such material obtained by the Developer during and in connection with its representation of the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creative, notebooks, and similar items relating to the Company’s business, whether prepared by the Developer or otherwise coming into its possession, shall remain the Company’s exclusive property.
14. INDEMNIFICATION
Of Company by Developer: The Developer shall indemnify and hold harmless the Company and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Developer or programmer arising from or connected with the Developer’s carrying out of its duties under this Agreement, or (ii) the Developer’s breach of any of its obligations, agreements, or duties under this Agreement.
Of Developer by Company: The Company shall indemnify and hold harmless Developer (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from or resulting primarily from (i) the Company’s operation of its business, (ii) the Company’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party, (iii) the Company’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of the Developer, (iv) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Company to Developer (the “Company Content”), (v) a claim that Developer’s use of the Company Content infringes the intellectual property rights of a third party, or (vi) a claim that the Company website fails to meet ADA compliance. The Developer will provide ADA compliance services upon request at the hourly rate of $150, unless otherwise stipulated, and will assist the Company in achieving level AA accessibility following WCAG2.1 guidelines.
15. INTELLECTUAL PROPERTY
No Intellectual Property Infringement by Company. The Company represents to the Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Developer for inclusion in the Website are owned by the Company, or that the Company has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Developer and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Company. The Developer must give prompt notice to The Company of any such claim or cause of action and the right to control the defense and settlement of the claim or cause of action and must cooperate with the Company and in the defense and settlement thereof. In the event that The Company or any third party, not an affiliate, employee or subcontractor of The Company is also at fault or responsible for the claim, action or breach, then the costs of the indemnification, defense, hold harmless and other costs will be shared and allocated on a comparative basis, i.e., The Company will only be responsible for its share of allocation of the costs. Continuing Ownership of Existing Trademarks: The Developer recognizes the Company’s right, title, and interest in and to all service marks, trademarks, and trade names used by the Company and agrees not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s right, title, and interest therein, nor shall the Developer cause diminishment of value of said trademarks or trade names through any act or representation. The Developer shall not apply for, acquire, or claim any right, title, or interest in or to any such service marks, trademarks, or trade names, or others that may be confusingly similar to any of them, through advertising or otherwise. Effective as of the termination of this Agreement, the Developer shall cease to use all of the Company’s trademarks, marks, and trade names.
16. PORTFOLIO PIECE
The Developer may include the design in Developer’s portfolio and to display artwork in a portfolio, website, printed piece, advertisement, or any other media Developer deems willful. In addition, Developer may include a copyright in the footer of the website linking back to the Developer’s website.
17. TAXES
Any sales, use or withholding taxes or other taxes or government assessments or duties or tariffs relating to this Agreement or to payments or services to be rendered under this Agreement shall be paid by the Company in addition to all other payments set forth in this Agreement. This Section does not apply to federal or state or local income taxes payable by The Developer.
18. AMENDMENTS
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
19. ASSIGNMENT
The Company may assign this Agreement freely, in whole or in part. The Developer may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by the Company of written notice of such assignment or transfer.
20. SUCCESSORS AND ASSIGNS
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
21. FORCE MAJEURE
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
(a) notify the other Party of the Force Majeure Event and its impact on performance under this Agreement, and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
22. NO IMPLIED WAIVER
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
23. STOCK PHOTOS
Company agrees they will not upload or request the Developer to upload any images for which they do not explicitly own the copyright, in this context copyright means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law. Furthermore, the Company shall hold harmless the Developer from and against all Claims that it may suffer from or incur and that arise or result from a copyright breach whether that be in the form of text or images.
24. NOTICE
Any notice or other communication provided for herein or given hereunder shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return receipt requested) to the Developer as follows:
