, the developer is engaged in website development; and WHEREAS
, the Developer is engaged in the business of developing and designing websites on the Internet; and WHEREAS
, the Company wishes to engage the Developer as an independent contractor for the Company for the purpose of designing the Company’s website on the terms and conditions set forth below; and WHEREAS
, the Developer wishes to develop the Website and agrees to do so under the terms and conditions of this Agreement; and WHEREAS
, each Party is duly authorized and capable of entering into this Agreement. NOW THEREFORE
, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows:
The Company hereby appoints and engages the Developer, and the Developer hereby is a part hereof, in connection with the design and development of the Website (collectively, the “Services”).
The total compensation for the development of the Website shall be as set forth in Exhibit A hereto.
This Agreement shall become effective as of the Effective Date and, unless otherwise terminated in accordance with the provisions of Section 4 of this Agreement, will continue until the Services have been satisfactorily completed and the Developer has been paid in full for such Services (the “Term”)
(a) Types of Termination. This Agreement may be terminated:
- By either Party on the provision of two (2) days written notice to the other Party after installation of completed Website to its final location.
- By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within five (5) days of receipt of written notice thereof.
(b) Responsibilities after Termination. Following the termination of this Agreement for any reason, the Company shall promptly pay the Developer according to the terms of Exhibit A for all Services. Completed work shall be delivered to the Company within 3 days of the Termination Date.
Of the Developer: The Developer agrees to do each of the following:
- Create the Website as detailed in Exhibit A to this Agreement, and extend its best efforts to ensure that the content and design of the Website meet the Company’s needs.
- Devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner.
- Design a Website “look and feel,” subject to the Company’s approval.
- Perform the Services in a workmanlike manner and with professional diligence and skill, using fully-trained, skilled, competent, and experienced personnel.
- On completion of the content and design, assist the Company in the installation of the Website to its final location, which assistance will include helping the Company with its upload of the finished files to the appropriate web server.
- Provide all HTML files, host and code to the Company.
- Provide Services and a Website that is satisfactory and acceptable to the Company and substantially free of defects.
- Communicate with the Company regarding the progress it has made.
Of the Company: The Company agrees to do each of the following:
- Engage the Developer as the creator of its Website as further detailed in Exhibit A to this Agreement.
- Provide reasonable assistance and cooperation to the Developer in order to complete the Website in a timely and efficient manner.
- Provide initial information, maintain any databases on the Website, and supply all necessary content for the Website.
- Pay for monthly maintenance at the rate outlined below.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
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.
14. 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.
15. 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.
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.
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
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.
19. 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.
20. 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.
21. 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.
22. 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.
Any notice or other communication provided for herein or given hereunder to a Party hereto 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 respective Parties as follows: If to the Developer: Lemon Head Design PO Box 23 Salem, UT 84653
If to the Company:
24. GOVERNING LAW
This Agreement shall be governed by the laws of the state of UTAH. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
25. COUNTERPARTS/ELECTRONIC SIGNATURES
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic media shall have the same force and effect as an original signature.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
The Developer makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. The Developer also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of Client. Connection speed represents the speed of an end-to-end connection. The Developer does not represent guarantees of speed or availability of end-to-end connections. The Developer is not liable for damages to Client for any non-accessibility time or other downtime or system unavailability. The Developer specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
28. ENTIRE AGREEMENT
This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. IN WITNESS WHEREOF
, the Parties have executed this Agreement as of the date first above written.
30. ATTORNEYS' FEES AND COLLECTION COSTS
In the event, the Company should breach or fail to perform any provision of this contract, Company agrees to pay to Developer all reasonable costs and expenses (including court costs and reasonable attorneys fees to the extent enforceable under the laws of the State of Utah) incurred by Developer in the enforcement hereof.
A. PURPOSE OF WEBSITE
The purpose of the Website is to create an online presence for
In exchange for the Design Fee, the Developer will provide the following services to design the Website, in accordance with the Schedule detailed below: