Web Site Design, Development, and Managed Cloud Hosting Agreement (this “Agreement”) is made and entered into upon date of receipt of initial payment (“Effective Date”) by and between “Client” and “Vendor”. Client and Vendor are collectively referred to as the “parties.” Vendor desires to provide to Client, and Client desires to receive from Vendor, certain services subject to the terms of this Agreement.
The parties agree as follows:
1. Vendor Services
- Definitions. The following terms used in this Agreement shall have the following meanings:
“Vendor Incorporated Content” means (i) any materials developed by Vendor which are intended to be incorporated into the content of the Site and (ii) any third-party audio/visual materials or content (collectively, “Incorporated Content”).
“Client Content” means the materials, if any, provided by Client, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, metatags, domain names, software and/or text. Client shall be solely responsible for providing, updating, uploading and maintaining the Site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Site, including all Client Content. The Client Content shall also include any registered domain names provided by Client or registered on behalf of Client in connection with the Services.
- Web Site Development Services. Vendor agrees to perform and provide to Client, services for development of a web site as a work made for hire (the “Site”) that Client desires to make available on the Internet. Vendor shall design and develop the Site in accordance with the specifications and the customary industry standards. The Site may incorporate Vendor Incorporated Content and Client Content.
- Hosting Services. If Managed Hosting Services are included in the statement of work, Vendor agrees to perform and provide to Client, through an acceptable, based on customary industry standards, third-party provider, hosting services to make the Site available on demand by users of the Internet.
2. Client Responsibilities
Client responsibilities includes providing all content, forms, documents, media, payment gateways, account(s) access, and conducting reviews in a reasonable timeframe to meet project timeframe.
- Client License. Client grants to Vendor, and Vendor accepts from Client, a nonexclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet the Client Content, solely for the benefit of Client and in accordance with Vendor’s performance or enforcement of this Agreement.
- Privacy. It is the policy of Vendor to respect Client’s privacy. Vendor will not disclose any personal information about Client, information in connection with Client’s use of the Services or Client Content apart from reasonably publicizing, displaying, showing, or referencing completed work under Vendor’s portfolio, without Client’s prior consent, unless Vendor has a good faith belief that such action is necessary to: (i) comply with legal process or other legal requirements of any court, governmental authority or agency; (ii) protect or defend rights, interests or property of Vendor; or (iii) enforce this Agreement.
- Ownership of Client Content. Client shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Client Content and all legally protectable elements, derivative works, modifications and enhancements thereto, whether or not developed by Vendor, Client or any contractor, subcontractor or agent for Vendor or Client.
- Ownership of Works. Except for third-party materials, graphics, designs, code or software, the Site and Vendor Incorporated Content (“Works”) shall be works made for hire and the property of Client shall own all rights, title and interest (including copyright and other proprietary or intellectual property rights) in the Works and all legally protectable elements, contributions, collective works thereof or derivative works thereto.
- Credit to Developer. Design & Development fee includes 10% discount in consideration of Vendor’s right to reasonably publicize its affiliation as the Site developer and maintain visible & legible developer credit to 1230MEDIA in the footer of every page of the web site. This credit to the Vendor may be removed upon request by Client and payment of discounted amount.
5. Hosting Services Terms and Obligations
- Availability of Services. Subject to the terms and conditions of this Agreement, Vendor shall contract with an acceptable, based on customary industry standards, third-party provider to provide on-going hosting services, for the Site, 24 hours a day, 7 days a week, on a monthly basis (“Uptime”). Client acknowledges that any terms and policies of the third-party provider are applicable to the Site and Client. Client agrees that from time to time the Services may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Vendor or the third-party provider may undertake from time to time; or (iii) causes beyond the control of Vendor or the third-party provider or which are not reasonably foreseeable by Vendor or the third-party provider, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). Vendor shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Services in connection with Downtime, whether scheduled or not. In the event of any Downtime greater than 1% of monthly Uptime, Client shall be entitled to a pro rata reduction of any payments due and payable to Vendor, if any, for such period. All hosting related support service request must be submitted to the email@example.com email address and are based on standard response time of two-business days or less; typically, 24 hours. Managed Cloud Hosting services may be terminated if fee is not received by monthly or annual payment due date.
- Backups. Vendor shall arrange through the third-party provider for backup servers and telecommunications connections and maintain daily backups of Site content on the third-party provider backup servers. Vendor may deploy backups to address any error or disruption of services. Client may request deployment of such backup (fee-based service), to alleviate any disruption of services, to be completed within 48 hours of the request.
Client agrees to indemnify, hold harmless and defend Vendor and its directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorney’s fees and costs, arising from or relating to any allegation that the Client Content infringes a third-person’s copyright or trademark right, or misappropriates a third person’s trade secrets. Client agrees that Vendor shall have the right to participate in the defense of any such claim through counsel of its own choosing.
EXCLUSIVE OF LIABILITY UNDER INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Term and Termination
- Term. The term of this Agreement shall commence on the Effective Date and shall continue thereafter as long as Client complies with payment terms or until termination of this Agreement by either party.
- Termination. This Agreement may be terminated by either party upon 30 days’ notice to the other Termination of hosting services by Vendor requires, within a reasonable time, refund of any subscription fees for the remaining unfulfilled period of service beyond the final transfer date or removal of the Site access.
- Return. Upon termination of this Agreement, Vendor shall, in a reasonable time, deliver to Client copies of files of the Site (completed or in progress), in manner that is customary standard in the industry, or provide reasonable assistance to Client in transferring the operational responsibility of the Site to the third-party chosen by Client. Return shall include the administration right to any domains registered by the Vendor on behalf of the Client.
8. Confidential Information
Parties may provide to the other party, certain confidential proprietary information, trade secret, business, financial, or technical information in connection with performance of this Agreement (“Confidential Information”). All such information shared shall be deemed Confidential Information. Parties agree to preserve the confidentiality of all Confidential Information that is provided by the other party in connection with the Agreement. Parties shall not, without the prior written consent of the other party, disclose or make available to any person, or use for its own or any other person’s benefit, other than as necessary in performance of its obligations under this Agreement, any Confidential Information of the other party. At a minimum, parties shall exercise a reasonable level of care, at least the same degree of care as the party exercises for its own confidential information, to safeguard Confidential Information of the other party against improper disclosure or use.
In the event of any dispute arising out of this Agreement, the parties agree to use their best efforts to negotiate with each other in good faith for a period of 90 days, or a longer period on which they agree, to resolve the dispute amicably. If the parties cannot resolve the dispute through negotiation, they shall refer the dispute to binding arbitration proceedings. The panel shall be selected within 30 days in good faith for arbitration proceedings in Beaumont, Texas. The arbitration proceedings shall not exceed 180 days from the day a matter is referred to arbitration to the day the arbitration panel renders its judgment. The arbitration judgement shall be final and binding on the parties. The cost of arbitration shall be borne by either party or both parties, as the arbitration panel may determine.
- Independent Contractors. The parties are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- Assignment. Vendor may assign its duties or obligations under this Agreement to any person or entity, in whole or in part.
- Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
- Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
- Notice. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by e-mail to email address used for ordinary communication under this Agreement.
- Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
- Law. This Agreement shall be governed in all respects by the laws of the State of Texas, without regard to its conflicts of law and/or choice of law rules or provisions.
- Survival. The respective rights and obligations of the parties under this Agreement shall survive any termination or expiration of this Agreement.
- Time. The parties agree that time is of the essence in the performance of the respective obligations under this Agreement.
Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.