WEB SITE DEVELOPMENT AGREEMENT
This
WEB SITE DEVELOPMENT AGREEMENT ("Agreement") is an
agreement between InfoMarketer.com, DBA: BizBlueprint ("Company")
and the party set forth in the related order form ("Customer"
or "you") incorporated herein by this reference (together
with any subsequent order forms submitted by Customer, the "Order")
and applies to the purchase of all services ordered by Customer on
the Order (collectively, the "Services"). The parties
understand, acknowledge and agree that this is an online agreement
which is being entered into in conjunction with the Order.
InfoMarketer.com
LLC
Legal Department
19455 Gulf Blvd
Suite 7
Indian Shores,
FL 33785
Phone: (855) 455-1888 (M-F 9am - 5pm EST)
Fax: (855)
455-1888
E-mail: legal@infomarketer.com
PLEASE
READ THIS AGREEMENT CAREFULLY.
BY
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND
COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION
AND THIS AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF
THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE
IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICIES. YOUR USE OF
THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. YOUR AGREEMENT
TO THE TERMS HEREOF ALSO CONSTITUTES YOUR AGREEMENT TO THE USER
AGREEMENT AND OTHER "TERMS OF SERVICE" LOCATED AT:
http://www.bizblueprint.com/bizblueprint_legal
1.
TERM AND TERMINATION
A.
Term of Agreement. This Agreement shall be effective as of the date
set forth on the Order and shall remain in force until seven (7) days
after the last Coordination Step known as (“Going Live”) as set
forth in the applicable Order, which shall take place not later than
three hundred and sixty five days (365) after the Order ("Delivery
Date"). Company cannot guarantee the Delivery Date but will use
commercially reasonable efforts to perform the Services in an
efficient and timely manner. In the event customer requests items out
of scope and company begins to fulfill on these items delivery date
is null and void.
B.
Termination. This Agreement may be terminated by either party upon
written notice to the other, if the other party breaches any material
obligation provided hereunder and the breaching party fails to cure
such breach within thirty (30) days of receipt of the notice. This
Agreement may be terminated by Company (i) immediately if Customer
fails to pay any fees hereunder; or (ii) if Customer fails to
cooperate with Company or hinders Company's ability to perform the
Services hereunder.
2.
COMPANY'S AND CUSTOMER'S RESPONSIBILITIES
A.
Scope of Work. Customer hereby retains the services of Company to
design the Web Site for Customer in accordance with the Order.
B.
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 Customer and Company
("Change Order"). Company agrees to notify Customer
promptly of any factor, occurrence, or event coming to its attention
that may affect Company'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.
C.Customer's
Responsibilities. Customer agrees to perform all tasks assigned to
Customer as set forth in this Agreement or a Change Order, and to
provide all assistance and cooperation to Company in order to
complete timely and efficiently the Web Site. Company shall not be
deemed in breach of this Agreement, the Services, a Change Order, or
any milestone in the event Company's failure to meet its
responsibilities and time schedules is caused by Customer'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 Customer (i) all of Company's time frames,
milestones, and/or deadlines shall be extended as necessary; and (ii)
Customer shall continue to make timely payments to Company as set
forth in this Agreement and any Change Order(s) as if all time
frames, schedules, or deadlines had been completed by Company.
Customer shall be responsible for making, at its own expense, any
changes or additions to Customer's current systems, software, and
hardware that may be required to support operation of the Web Site.
Unless otherwise contracted with Company or reflected in a Change
Order, Customer 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 Company to assesses the Customer's systems,
software and hardware from time to time, Company may agree to perform
this function at normal Company rates.
3.
WEB SITE DESIGN
A.
Design. The design of the Web Site shall be in substantial conformity
with the material provided to Company by Customer. Web Site
consultation will be provided according to the number of coordination
steps outlined for the plan purchased in the Order. Customer will
provide direction to Company by completing data forms on the
Company's Customer Relationship Management system ("CRM")
and delivering content for Web site construction within Dropbox.com.
Web Site text will be supplied by the Customer unless copywriting
services have been purchased. Development of web pages, modules,
applications and all other components will take place on the
Company’s Cloud based web hosting service referred to as
BizBlueprint with Company who is partnered with Adobe MicroSystems
for website systems. All server technical issues are to be handled
by Company 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. Company shall not
include, as determined in its sole discretion, any of the following
in the Web Site or in Customer's directory on Company's Web Server:
text, graphics, sound, or animations that might be viewed as obscene
or any illegal activities; links to other sites that might be viewed
as obscene or related in any way to any illegal activities;
impressionistic or cartoon-like graphics (unless provided by
Customer); invisible text, metatags (i.e., text that is present only
when a "Webcrawler" 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.
B.
Coordination Steps. Customer understands that submissions for Web
Site development are limited to the number of coordination steps as
provided in the Order. Customer is encouraged to provide as much
instruction and direction as possible with each submission. These
steps include the following phases: 1 Define, 2 Design, 3 Develop, 4
Deployment, 5 Deliver. Companies objective is to moves the project
through each phase timely and efficiently. Customer is responsible
for delays due to technical “Education” or “Instruction”
submissions which are ultimately the factor that determines the final
development timeline.
C.
Accessibility of Web Site During Construction. Throughout the
construction of the prototype and the final Web Site, the Web Site
shall not be accessible to Customer through the CRM. Until Customer
has approved the final Web Site, none of the Web Pages for Customer's
Web Site will be accessible to end users.
D.
Completion Date. Company and the Customer shall work together to
complete the Web Site in a commercially reasonable manner. Customer
must supply Company complete text and graphics content all web pages
contracted for within two (2) weeks of the date of the Order unless
otherwise approved by Company or specified within scope. If Customer
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.
F.
Copyright to Web Site. Customer acknowledges, understands and agrees
that Company may use its own and/or may purchase third party licenses
for products or services that are necessary for Company 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 Company deems necessary to
purchase on behalf of Customer to design and develop the Web Site.
Customer further acknowledges and understands that any Outside
Content used to design and develop the Web Site is owned by Company
and/or such third parties and cannot be transferred to Customer and
is hereby specifically not transferred to Customer and shall remain
the property of Company and/or such third parties. Outside Content
which is owned and/or purchased by Company may be used in the design
and/or development of other web sites separate from Customer.
Customer and Company agree that upon payment in full of the fees
associated with the design and development of the Web Site, Customer
shall own a worldwide right, title, and interest in and to the Web
Site Front End (including, its HTML code and documentation) (the
"Custom Design Configuration). Customer also fully acknowledges
that underlying CRM and cloud or hosted services are not part of any
ownership. Company licenses the underlying website hosted platform to
Customer monthly for a fee which is defined in the scope based on the
version of platform selected. Including but not limited to,
“Instant”, “Starter”, “Biz”, “Pro” and “VIP”
service levels. Customer and Company agree that Company shall retain
a worldwide, royalty-free, non-exclusive, transferable, and perpetual
right and license to the Custom Programming or platform 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. Customer and Company 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 Company and modified to meet Customer's
specific requirements (the "Code Content"). Company shall
own all worldwide right, title, and interest in and to the Code
Content, but shall provide Customer (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 Front End Code Content. Company 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.
4.
MAINTENANCE
This
Agreement does not provide Web Site maintenance unless a Web Site
maintenance plan is purchased. If the Customer or an agent other
than Company attempts updating Customer's pages, time to repair web
pages will be assessed at an hourly rate. Changes requested by the
Customer 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.
5.
FEES
A.
Development Fee. The total price for all of the work set forth in the
Agreement (excluding post-approval modifications not implemented by
Customer) 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 Customer). Unless
otherwise stated in the Order, the Development Fee to Company is due
and payable upon placing the Order and Company shall have no
obligation to perform any work until payment is received in full and
such funds are cleared from the relevant financial institution.
Company's services are "AS-IS, WHERE-IS, WITH ALL FAULTS"
and refunds may not be provided for Company's services hereunder.
B.
Project abandonment. If after repeated attempts to begin, continue,
or finalize the delivery of services, Customer fails to participate,
or becomes otherwise unresponsive to Company requests for a period of
thirty (30) days, the project may be considered abandoned, and
Company may reduce any refund the Customer may otherwise be entitled
to hereunder to zero, and Customer will have forfeited all rights to
receive any refund for services purchased online or as described in
the original Order Form.
6.
INDEMNIFICATION
A.
Company Indemnity. In performing services under this Agreement,
Company agrees not to design, develop, or provide to Customer 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 Company becomes
aware of any such possible infringement in the course of performing
any work hereunder, Company shall immediately so notify Customer in
writing. Company agrees to indemnify, defend, and hold Customer, 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 Customer's
responsibilities and Customer Content. This indemnification shall
include attorney's fees and expenses, unless Company defends against
the allegations using counsel reasonably acceptable to Customer.
Company's total liability under this Agreement shall not exceed the
amount of the Development Fee derived by Company under this
Agreement.
B.
Customer Indemnity. Customer shall indemnify and hold harmless
Company (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 (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 Customer to
Company (the "Customer Content"), or (b) a claim that
Company's use of the Customer Content infringes the intellectual
property rights of a third party. To qualify for such defense and
payment, Company must: (i) give Customer prompt written notice of a
claim; and (ii) allow Customer to control, and fully cooperate with
Customer in, the defense and all related negotiations.
7.
REPRESENTATIONS AND WARRANTIES
A.
Company makes the following representations and warranties for the
benefit of Customer:
1.
No Conflict. Company 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 Company under this Agreement and the
Order. Customer understands that Company is currently working on one
or more similar projects for other Customers. Provided that those
projects do not interfere or conflict with Company's obligations
under this Agreement, those projects shall not constitute a violation
of this provision of the Agreement.
2.
Conformity, Performance, and Compliance. Company 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) Company will perform all work called
for by this Agreement in compliance with applicable laws. Company
will repair any Deliverable that does not meet this warranty within a
reasonable period of time if the defect affects the usability of
Customer's Web Site, and otherwise will repair the defect within 72
hours, said repairs to be free of charge to Customer. 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 Company.
3.
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.
4.
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.
Customer makes the following representations and warranties for the
benefit of Company:
1.
Customer represents to Company and unconditionally guarantees that
any elements of text, graphics, photos, designs, trademarks, or other
artwork furnished to Company for inclusion in the Web Site are owned
by Customer, or that Customer has permission from the rightful owner
to use each of these elements, and will hold harmless, protect, and
defend Company and its subcontractors from any claim or suit arising
from the use of such elements furnished by Customer.
2.
From time to time governments enact laws and levy taxes and tariffs
affecting Internet electronic commerce. Customer agrees that the
Customer is solely responsible for complying with such laws, taxes,
and tariffs, and will hold harmless, protect, and defend Company and
its subcontractors from any claim, suit, penalty, tax, or tariff
arising from Customer's exercise of Internet electronic commerce.
C.
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, Company
and Customer acknowledge and agree that their obligations of
confidentiality with respect to Proprietary or Confidential
Information shall continue in effect for a total period of two (2)
years from the Effective Date.
8.
FORCE MAJEURE
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
A.
Independent Contractor. Company, 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. Company shall be solely
responsible for and shall hold Customer harmless for any and all
claims for taxes, fees, or costs, including but not limited to
withholding, income tax, FICA, and workers' compensation.
B.
No Agency. Customer does not undertake by this Agreement, the Order
or otherwise to perform any obligation of Company, whether by
regulation or contract. In no way is Company to be construed as the
agent or to be acting as the agent of Customer in any respect, any
other provisions of this Agreement notwithstanding.
10.
NOTICE AND PAYMENT
A.
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.
B.
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.
C.
Customer and Company agree that by transaction of payment in any
format; Cash, Credit, Debit, Check, Money Order, ACH, Paypal or Wire
this agreement becomes active and in full force immediately and
adheres to the specific scope of the order.
11.
JURISDICTION/DISPUTES
This
Agreement shall be governed in accordance with the laws of the State
of Florida. All disputes under this Agreement shall be resolved by
litigation in the courts of Pinellas County in the State of Florida
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 defenses
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.
13.
ASSIGNABILITY
Customer
may not assign this Agreement or the rights and obligations
thereunder to any third party without the prior express written
approval of Company. Company reserves the right to assign
subcontractors as needed to this project to ensure timely production.
14.
WAIVER
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.
15.
SEVERABILITY
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.
16.
INTEGRATION
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.
18.
DISPUTES
Customer
and Company 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 Pinellas County, Florida and in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitration shall be conducted by one arbitrator,
who shall be (a) selected in the sole discretion of the American
Arbitration Association administrator and (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 state courts of Florida 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 State of
Florida 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.
READ AND UNDERSTOOD
Each
Party acknowledges that it has read and understands this Agreement
and agrees to be bound by its terms and conditions.
20.
DULY AUTHORIZED REPRESENTATIVE
If
this Agreement is executed electronically, acceptance by payment or
physically signed then each Party warrants that their representative
whose name appears on such agreement pages is the duly authorized by
all necessary and appropriate corporate actions to execute this
Agreement.
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2009-2014 InfoMarketer / BizBlueprint - All Rights Reserved.
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