Last Updated: July 21, 2016
This WEB SITE DEVELOPMENT AGREEMENT (“Agreement”) is an agreement between Aaron Fagan (“Agent”) and the party set forth in the related order form (“Client” or “you”) incorporated herein by this reference (together with any subsequent order forms submitted by Client, the “Order”) and applies to the purchase of all services ordered by Client on the Order (collectively, the “Services”). The parties understand, acknowledge and agree that this is an agreement which is being entered into in conjunction with the Order.
PLEASE READ THIS AGREEMENT CAREFULLY.
1. TERM OF AGREEMENT
This Agreement shall be effective as of the date set forth on the Order and shall remain in force until fourteen (14) days after the last Coordination Step as set forth in the applicable Order, which shall take place not later than three hundred sixty five days (365) after the Order (“Delivery Date”). Agent cannot guarantee the Delivery Date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner.
2. COMPANY’S AND CUSTOMER’S RESPONSIBILITIES
- Scope of Work. Client hereby retains the services of Agent to design the Web Site for Client in accordance with the Order.
- Changes. Changes to this Agreement, the Order or to any of the specifications of the Web Site shall become effective only when a written change request is executed by the Client and Agent (“Change Order”). Agent agrees to notify Client promptly of any factor, occurrence, or event coming to its attention that may affect Agent’s ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in the Services. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
- Client’s Responsibilities. Client agrees to perform all tasks assigned to Client as set forth in this Agreement or a Change Order, and to provide all assistance and cooperation to Agent in order to complete timely and efficiently the Web Site. Agent shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event Agent’s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth herein, a Change Order, or this Agreement. In the event of any such failure or delay by Client (i) all of Agent’s time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Client shall continue to make timely payments to Agent as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Agent. Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support operation of the Web Site. Unless otherwise contracted with Agent or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on the Web Site as well as providing all content for the Web Site. With the execution of a Change Order specifically asking Agent to assesses the Client’s systems, software and hardware from time to time, Agent may agree to perform this function at normal Agent rates.
3. WEB SITE DESIGN
- Design. The design of the Web Site shall be in substantial conformity with the material provided to Agent by Client. Web Site consultation will be provided according to the number of coordination steps outlined for the plan purchased in the Order. Client will provide direction to Agent by accessing the Agent’s Client Relationship Management system (“CRM”) and delivering content for Web site construction within. Web Site text will be supplied by the Client unless copywriting services have been purchased. Development of web pages will take place on the Client’s established web hosting service with Agent. All server technical issues are to be handled by Agent unless otherwise noted amongst all parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. This does not include adding features beyond the scope of the Order. Agent shall not include, as determined in its sole discretion, any of the following in the Web Site or in Client’s directory on Agent’s Web Server: text, graphics, sound, or animations that might be viewed as obscene or any illegal activities; links to other we sites that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by Client); invisible text, meta-tags (i.e., text that is present only when a “Web-crawler” or other Web indexing tool accesses the Web Site), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.
- Coordination Steps. Client understands that submissions for Web Site development are limited to the number of coordination steps as provided in the Order. Client is encouraged to provide as much instruction and direction as possible with each submission.
- Accessibility of Web Site During Construction. Throughout the construction of the prototype and the final Web Site, the Web Site shall be accessible to Client through the CRM. Until Client has approved the final Web Site, none of the Web Pages for Client’s Web Site will be accessible to end users.
- CompletionDate. Agent and the Client shall work together to complete the Web Site in a commercially reasonable manner. Client must supply Agent complete text and graphics content all web pages contracted for within two (2) weeks of the date of the Order unless otherwise noted. If Client has not submitted complete text and graphics content within three (3) weeks after the Order, an additional continuation fee of ten percent (10%) of the total Order price will also be assessed each month until the Web Site is published.
- Copyright to Web Site. Client acknowledges, understands and agrees that Agent may use its own and/or may purchase third party licenses for products or services that are necessary for Agent to design and develop the Web Site. Such products may include, but are not limited to server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work (“Outside Content”) which Agent deems necessary to purchase on behalf of Client to design and develop the Web Site. Client further acknowledges and understands that any Outside Content used to design and develop the Web Site is owned by Agent and/or such third parties and cannot be transferred to Client and is hereby specifically not transferred to Client and shall remain the property of Agent and/or such third parties. Outside Content which is owned and/or purchased by Agent may be used in the design and/or development of other web sites separate from Client. Client and Agent agree that upon payment in full of the fees associated with the design and development of the Web Site, Client shall own a worldwide right, title, and interest in and to the Web Site (including, its source code and documentation) (the “Custom Programming”). Client and Agent agree that Agent shall retain a worldwide, royalty-free, non-exclusive, transferable, and perpetual right and license to the Custom Programming including, but not limited to, the right to modify, amend, create derivative works, rent, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom Programming. Client and Agent also agree that the design and development of the Web Site may include source code, documentation, and/or application programs that were previously written or developed by Agent and modified to meet Client’s specific requirements (the “Code Content”). Agent shall own all worldwide right, title, and interest in and to the Code Content, but shall provide Client (upon payment in full of the fees associated with the design and development of the Web Site) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content. Agent and its subcontractors retain the right to display graphics and other web design elements of the Web Site as examples of their work in their respective portfolios.
This Agreement does not provide Web Site maintenance unless a Web Site maintenance plan is purchased. If the Client or an agent other than Agent attempts updating Client’s pages, time to repair web pages will be assessed at an hourly rate. Changes requested by the Client beyond those limits will be billed at the hourly rates set forth in the Order. This rate shall also govern additional work authorized beyond the maximums specified in the Order for such services as webpage design, editing, modifying product pages and databases in an online store, and art, photo, graphics, or any other services.
- Development Fee. The total price for all of the work set forth in the Agreement (excluding post-approval modifications not implemented by Client) shall be set forth in the Order (the “Development Fee”). This price covers all work for the Order (excluding post-approval modifications not implemented by Client). Unless otherwise stated in the Order, the Development Fee to Agent is due and payable upon placing the Order and Agent shall have no obligation to perform or release any work or deliverables until payment is received and such funds are cleared from the relevant financial institution. Agent’s services are “AS-IS, WHERE-IS, WITH ALL FAULTS” and refunds may not be provided for Agent’s services hereunder.
- Missed/Late Payments. If thirty (30) days have elapsed since last payment was due, or payments previously received no longer cover the actual costs of maintaining client project and/or deliverables, Agent reserves the right to disable and/or refuse delivery/access to any project and/or deliverables at Agents discretion, until such time as any past due balances and a prorated payment for the next payment period is received in full. Otherwise, business agreement may be considered terminated, and therefore any condition and/or fees outlined in section 19 (“Agreement Termination/ Cancellation”) will apply to any future or final billings, at Agents discretion.
- Project Abandonment. If after repeated attempts to begin, continue, or finalize the delivery of services, Client fails to participate, or becomes otherwise unresponsive to Agent requests for a period of thirty (30) days, the project may be considered abandoned, and Agent may reduce any refund the Client may otherwise be entitled to hereunder to zero, and Client will have forfeited all rights to receive any refund for services purchased online or as described in the original Order. In addition, any business agreement may be considered terminated and therefore any conditions and/or fees outlined in section 19 (“Agreement Termination/Cancellation”) will apply to any future or final billings, at Agents discretion.
- Agent Indemnity. In performing services under this Agreement, Agent agrees not to design, develop, or provide to Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If Agent becomes aware of any such possible infringement in the course of performing any work hereunder, Agent shall immediately so notify Client in writing. Agent agrees to indemnify, defend, and hold Client, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables, other than Client’s responsibilities and Client Content. This indemnification shall include attorney’s fees and expenses, unless Agent defends against the allegations using counsel reasonably acceptable to Client. Agent’s total liability under this Agreement shall not exceed the amount of the Development Fee derived by Agent under this Agreement.
- Client Indemnity. Client shall indemnify and hold harmless Agent (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 Agent as a result of any claim, judgment, or adjudication against Agent related to or arising from (a) 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 Client to Agent (the “Client Content”), or (b) a claim that Agent’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defence and payment, Agent must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defence and all related negotiations.
7. REPRESENTATIONS AND WARRANTIES
A. Agent makes the following representations and warranties for the benefit of Client:
- No Conflict. Agent represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by Agent under this Agreement and the Order. Client understands that Agent is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with Agent’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
- Conformity, Performance, and Compliance. Agent represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML conventions; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) Agent will perform all work called for by this Agreement in compliance with applicable laws. Agent will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of Client’s Web Site, and otherwise will repair the defect within 24 hours, said repairs to be free of charge to Client. This warranty shall extend for the life of this Agreement. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of Agent.
- Disclaimer of All Other Warranties. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE WEB SITE WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE WEB PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT PAID BY CUSTOMER HEREUNDER. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
B. Client makes the following representations and warranties for the benefit of Agent:
- Client represents to Agent and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Agent for inclusion in the Web Site are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Agent and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
- From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Agent and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
- Confidentiality. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know- how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non- disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Agent and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
8. FORCE MA JEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
9. RELATIONSHIP OF PARTIES
- Independent Contractor. Agent, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Agent shall be solely responsible for and shall hold Client harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers’ compensation.
- No Agency. Client does not undertake by this Agreement, the Order or otherwise to perform any obligation of Agent, whether by regulation or contract. In no way is Agent to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
10. NOTICE AND PAYMENT
- Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the addresses listed in the Order mailed by certified, registered or express mail, return receipt requested or by Federal Express.
- Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the Province of Alberta. All disputes under this Agreement shall be resolved by litigation in the courts of the Province of Alberta including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defences otherwise available to it.
12. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Agent. Agent reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
17. NO INFERENCE AGAINST AUTHOR
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
Client and Agent agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Calgary, Alberta and in accordance with provincial law. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the courts of the province of Alberta (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the provincial courts of Alberta sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the Province of Alberta or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
19. AGREEMENT TERMINATION/CANCELLATION
- Client Termination (Balance Owing). Client is permitted to terminate any agreement or contract at any time with a minimum of thirty (30) days written notice provided to Agent. Upon written notice being received by Agent, 50% of any remaining balance as outlined on Clients most recent invoice are due to Agent within the above outlined time period. If payment is not received by Agent within the above outlined time period, Agent reserves the right to disable and/or refuse delivery/ access of any project and/or deliverables, at Agents discretion.
- Client Termination (No Balance Owed). Client may terminate any remaining agreement at any time with a minimum of thirty (30) days written notice, unless agreement or contract naturally expires within the above outlined time period. Client is absolved on any further financial or other responsibilities to Agent upon expiry of the above outlined time period.
- Agent Termination. Agent is permitted to terminate any agreement or contract at anytime with a minimum of thirty (30) days written notice provided to Client. Upon written notice being sent by Agent, Client project/deliverables will remain live & in production for a period not exceeding the above outlined time period. Client is absolved of any further financial or other responsibilities to Agent upon expiry of the above outlined time period.
- DomainName(s). If Client wishes to retain ownership of any domain name(s) associated with their project(s), Client is responsible for a one time, $100 release fee per domain name. Upon payment being received by Agent, Agent will initiate domain name transfer to Client, or Client representative(s) in a timely fashion within a period not exceeding thirty (30) days, unless Client fails to meet conditions required to execute the above timeline.
- Project Archiving. Upon completion of any applicable terms outlined in the above sections (A thru D), Agent will make available any & all project assets created during the course of Agent/Client agreement or contract within a period not exceeding thirty (30) days. Project archive will be stored on a secure server available for client to retrieve by download or request for a minimum period of ninety (90) days from the date project is initially made available to client.
20. READ AND UNDERSTOOD
Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
21. DULY AUTHORIZED REPRESENTATIVE
If this Agreement is executed then each Party warrants that their representative whose signature appears on such signature pages is the duly authorized by all necessary and appropriate corporate actions to execute this Agreement.