- (i) perform the Services set forth in Exhibit A. However, if a conflict exists between this agreement and any term in Exhibit A, the terms in this agreement will control;
- (ii) devote as much productive time, energy, and ability to the performance of its duties under this agreement as may be necessary to provide the required Services in a timely and productive manner;
- (iii) perform the Services in a safe, good, and workmanlike manner by fully trained, skilled, competent, and experienced personnel using at all times adequate equipment in good working order;
- (iv) supply all tools, equipment, and supplies required to perform the Services, except if the Developer's work must be performed on or with the Owner's equipment;
- (v) ensure that all materials and equipment furnished to its personnel is of good and merchantable quality, unless otherwise agreed by the Owner;
- (v) (vi) provide services (including the Services) and end products that are satisfactory and acceptable to the Owner and free of defects;
- (vi) (vii) remove, replace, or correct all or any portion of the work or end products found defective or unsuitable, without additional cost or risk to the Owner; and
- (vii) (viii) design a Website "look and feel," subject to the Owner's approval;
- (vii) (viii) (viii) (ix) on completion of the content and design, assist the Owner in installation of the Website to its final location, which will include helping the Owner upload the finished files to the Owner's selected web hosting company;
- (vii) (viii) (viii) (ix) (viii) (ix) (ix) (x) provide all HTML files and code to the Owner; and
- (viii) (ix) (ix) (x) (ix) (x) (x) (xi) communicate with the Owner about progress it has in performing the Services.
- (i) make timely payments of amounts earned by the Developer under this agreement;
- (ii) notify the Developer of any changes to its procedures affecting the Developer's obligations under this agreement at least 30 days before implementing those changes;
- (iii) provide initial information, maintain any databases on the Website, and supply all content for the Website;
- (iv) register the Website's domain name, select the web hosting company, and pay any fees associated with these activities; and
- (v) make any changes or additions to the Owner's current systems, software, or hardware, at the Owner's own expense, that may be required to support the operation of the Website.
2. TERM AND TERMINATION.
- (a) Term. This agreement will become effective as described in section . Unless it is terminated earlier in accordance with subsection 2(b), this agreement will continue until the Services have been satisfactorily completed and the Developer has been paid in full for those Services (the "Term") or on the expiration of the Warranty Period as defined in subsection (a) below . However, this agreement may not remain effective for more than years.
- (b) Termination. This agreement may be terminated:
- (i) by either party on provision of days' written notice to the other party, with or without cause;
- (ii) 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 days of receipt of written notice of the breach; or
- (iii) by the Owner at any time and without prior notice, if the Developer is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Owner, or is guilty of serious misconduct in connection with performance under this agreement . ; or
- (iv) automatically, on the death of the Developer.
3. COMPENSATION.
- (a) Terms and Conditions. The Owner shall pay the Developer in accordance with Exhibit A.
- (b) No Payments in Certain Circumstances. No payment will be payable to the Developer under any of the following circumstances:
- (i) if prohibited under applicable government law, regulation, or policy;
- (ii) if the Developer did not directly perform or complete the Services described in Exhibit A;
- (iii) if the Developer did not perform the Services to the reasonable satisfaction of the Owner; or
- (iv) if the Services performed occurred after the expiration or termination of the Term, unless otherwise agreed in writing.
4. NATURE OF RELATIONSHIP; INVENTIONS
- (a) Independent Contractor Status.
- (i) The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf and neither party may take any action that creates the appearance of such authority.
- (ii) The Developer has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. The Developer or the Developer's staff shall perform the Services, and the Owner is not required to hire, supervise, or pay any assistants to help the Developer perform those Services. The Developer shall provide insurance coverage for itself and its staff.
5. CONFIDENTIAL INFORMATION.
- (a) Confidentiality. During the Term, the Developer may have access to or receive certain information of or about the Owner that the Owner designates as confidential or that, under the circumstances surrounding disclosure, ought to be treated as confidential by the Developer ("Confidential Information"). Confidential Information includes information relating to the Owner or its current or proposed business, financial statements, budgets and projections, customer identifying information, potential and intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media. The Developer will treat the Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill its obligations in this agreement. In addition, the Developer shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
- (b) Exceptions. The obligations and restrictions in subsection (a) do not apply to that part of the Confidential Information:
- (i) was or becomes publicly available other than as a result of a disclosure by the Developer in violation of this agreement;
- (ii) was or becomes available to the Developer on a nonconfidential basis before its disclosure to the Developer by the Owner, but only if:
- A. the source of such information is not bound by a confidentiality agreement with the Owner or is not otherwise prohibited from transmitting the information to the Developer by a contractual, legal, fiduciary, or other obligation; and
- B. the Developer provides the Owner with written notice of its prior possession either (I) before the effective date of this
- agreement or (II) if the Developer later becomes aware (through disclosure to the Developer) of any aspect of the Confidential
- Information as to which the Developer had prior possession, promptly on the Developer so becoming aware;
- A. provide the Owner with prompt notice of these requests or requirements before making a disclosure so that the Owner may
- seek an appropriate protective order or other appropriate remedy; and
- B. provide reasonable assistance to the Owner in obtaining any protective order.
- (i) Confidentiality. At all times during its work with the Owner, the Developer shall hold in strictest confidence, and not use, except for the benefit of the Owner, or disclose to any person, firm, or corporation without the prior written authorization of the Owner, any of the Owner's Confidential Information.
6. MAINTENANCE.
The Developer may access Website pages for minor maintenance for a day period (the "Maintenance Period"). The Maintenance Period begins on the date the Website is published to the Owner's hosting service or days from the Effective Date, whichever comes first. This assumes an average of one half hour per regular web page, including updating links and making minor changes to a sentence or paragraph. The Developer shall provide this maintenance to the Owner at the Developer's standard professional rate of compensation, as listed in Exhibit A. Maintenance does not include replacing nearly all text from a page with new text, major page reconstruction, new pages, guest books, discussion webs, navigation structure changes, attempted updates by Owner repairs or web design projects delivered to the Owner via FTP, CD, or diskette. Very minor page code changes are included under this section, but major page code or database structural changes will be charged at the Developer's applicable hourly rates.7. WEBSITE WARRANTY.
- (a) Performance. For a period of days after the delivery of the Website to the Owner (the "Warranty Period"), the Developer warrants that the Website will be free from programming errors and defects in workmanship and materials, and will conform to the specifications of Exhibit A. If programming errors or other defects are discovered during the Warranty Period, the Developer shall promptly remedy those errors or defects at its own expense. The Developer is not obligated to remedy these errors or defects unless the Owner notifies the Developer of the existence and nature of those errors or defects promptly after their discovery.
- (b) No Disablement. The Developer warrants that the Website, when delivered or accessed by the Owner, will be free from viruses, logic locks, and other disabling devices or codes, and will contain no virus, Trojan horse, worm, drop-dead devices, trap doors, time bombs, or other software routines or other hardware components that could permit unauthorized access, disable, erase, or otherwise harm the Website or any software, hardware, or data, cause the Website or any software or hardware to perform functions other than those specified in this agreement, halt, disrupt, or degrade the operation of the Website or any software or hardware, or perform any other such actions.
8. TIMING AND DELAYS.
The Developer shall inform the Owner immediately of any anticipated delays in the delivery schedule and of any remedial actions being taken to ensure completion of the Website according to schedule. If a delivery date is missed, the Owner may, in its sole discretion, declare that delay a material breach of the agreement under subsection 2(b)(ii) and pursue all of its legal and equitable remedies. The Owner may not declare a breach and the Developer cannot be held in breach of this section if the delay is caused by an action or failure of action of the Owner. In that case, the Developer shall provide the Owner with written notice of the delay and will not continue to work on the Website until the reason for the delay has been resolved by the Owner and the Owner has provided written notice of the resolution to the Developer.
9. INTELLECTUAL PROPERTY.
- (a) No Intellectual Property Infringement by Developer. The Developer represents that the use and proposed use of the Website by the Owner or any third party does not and will not infringe, and the Developer has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party in the Website, and the use of the Website will not include any activity that may constitute "passing off." To the extent the Website infringes on the rights of any third party, the Developer shall obtain a license or consent from that third party permitting the use of the Website.
- (b) No Intellectual Property Infringement by Owner. The Owner represents to the Developer 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 Owner, or that the Owner has permission from the rightful owner to use each of these elements, and will indemnify the Developer and its subcontractors against 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 Owner.
- (c) Continuing Ownership of Existing Trademarks. The Developer recognizes the Owner's interest in all service marks, trademarks, and trade names used by the Owner and agrees not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Owner's right, title, and interest therein, nor shall the Developer cause diminishment of value of those trademarks or trade names through any act or representation. The Developer may not apply for, acquire, or claim any interest in those 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 will stop using all of the Owner's trademarks, marks, and trade names.
10. AUTHORSHIP CREDIT.The Developer may include a byline and link on the bottom of the Website establishing authorship credit. This byline is on agreement by both the Owner and the Developer and must be removed at any time on written request by the Developer the Owner either party .
11. OTHER ACTIVITIES.
During the Term, the Developer may engage in other independent contracting activities, except that the Developer may not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Developer's obligations or the scope of Services to be rendered for the Owner under this agreement.
12. RETURN OF PROPERTY.
Within days of the expiration or earlier termination of this agreement, the Developer shall return to the Owner, retaining no copies or notes, all Owner products, samples, models, property, and documents relating to the Owner's business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by the Developer during and in connection with its work with the Owner. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork or creative work, notebooks, and similar items relating to the Owner's business,whether prepared by the Developer or by others, remain the Owner's exclusive property.
13. INDEMNIFICATION.
- (a) Of Owner by Developer. At all times after the effective date of this agreement, the Developer shall indemnify the Owner against all damages, liabilities, expenses, claims, or judgments (including interest, penalties, reasonable attorneys' fees, accounting fees, and expert witness fees) (collectively, the "Claims") that the Owner may incur and that arise from:
- (i) the Developer's negligence or willful misconduct arising from the Developer's carrying out of its obligations under this agreement;
- (ii) the Developer's breach of any of its obligations or representations under this agreement; or
- (iii) the Developer's breach of its express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If a regulatory body or court of competent jurisdiction finds that the Developer is not an independent contractor or is not in compliance with applicable laws related to work as an independent contractor, based on the Developer's own actions, the Developer will assume full responsibility and liability for all taxes, assessments, and penalties imposed against the Developer or the Owner resulting from that contrary interpretation, including taxes, assessments, and penalties that would have been deducted from the Developer's earnings if the Developer had been on the Owner's payroll and employed as a Owner employee.
- (i) the Owner's operation of its business;
- (ii) the Owner's breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or
- (iii) the Owner's breach of any of its obligations or representations under this agreement. However, the Owner is not obligated to indemnify the Developer if any of these Claims result from the Developer's own actions or inactions.
14. FORCE MAJEURE.
A party will not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement 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"). 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 under this agreement.
15. GOVERNING LAW.
- (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in , .
16. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party.
17. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. The Developer may not delegate any performance under this agreement, except with the prior written consent of the Owner.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
18. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
19. SEVERABILITY.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
20. NOTICES.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Owner:
- If to the Developer:
21. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
22. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented,or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
23. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
24. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
25. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
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Each party is signing this agreement on the date stated opposite that party's signature.
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EXHIBIT A
SPECIFICATION SHEET1. Required Elements. The website design will include the following sections and subsections:
2. Owner Requirements. The Owner shall provide the following items to the Developer:
3. Fees. The Owner shall pay a total amount of $ for the services, which includes:
- (a) $ down payment.
- (b) $ after Owner approval of the layout.
- (c) $ after Owner acceptance of final Website.
If additional services are required, the Owner shall pay the Developer its rate of $ per hour for those services.
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EXHIBIT B
LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP1. Except as listed in section 2 below, the following is a complete list of all prior inventions that were made, conceived, or first reduced to practice by the Developer, alone or jointly with others, before his or her employment by the Owner:
add border Title Date Identifying Number or Brief Description 2. Because of an existing confidentiality agreement and the duties of confidentiality that the Developer owes to the parties listed below, the Developer cannot complete the disclosure in section 1 above with respect to the inventions or improvements listed generally below:
add border Invention or Improvement Party Names Relationship 