WEBSITE DEVELOPMENT AND USER AGREEMENT
“Client” means you (and all members the company/organization you represent) as requester(s) or user(s) of Services defined below.
“Developer” means the company performing Services on behalf of Client.
This agreement is entered into by and between Client and Rodonick LLC, DBA Small Biz Up (“Developer”), (together, the “Parties”).
The effective date of this agreement is 9/1/2020 (“Effective Date”).
WHEREAS, Developer offers the following Services and related services: Web site design and development, web site hosting, web site maintenance, photography and photo editing, logo design and development, computer graphics design and development.
WHEREAS, Client wishes to have Developer provide services for compensation.
NOW, THEREFORE, in consideration of the promises and mutual covenants and agreements set forth herein, Client and Developer agree as follows:
“Client Content” means the material (copy-writing, photos, videos, agendas, meeting minutes, PDF, etc) provided by Client that may be incorporated into the Product.
“Developer Tools” means the software tools of general application, whether owned or licensed to Developer, which are used to develop the Product.
“Development Schedule” shall be, only when applicable, set forth in a separate schedule to this Agreement on a project by project basis, and shall lists the deliverable items contracted for (“Deliverables”) and the deadlines for their delivery.
“Error” means, only when applicable, any failure of a Deliverable or Product to (i) meet the Specifications, if any, or (ii) to properly operate.
“Excusable Delay” means a delay due to forces beyond the control of the party charged hereunder with the obligation to perform, such as due to strikes, lockouts or other labor or industrial disturbance, civil disturbance, future order of any government, court or regulatory body claiming jurisdiction; act of the public enemy; war, riot, sabotage, blockade or embargo; failure or inability to secure materials, supplies or labor through ordinary sources by reason of shortages or priority or similar regulation or order of any government or regulatory body; outages of systems or tools controlled by third-party or subcontracted providers; an act of God such as lightning, earthquake, fire, storm, hurricane, tornado, flood, washout or explosion.
“Payment Schedule” shall be, only when applicable, set forth in a separate schedule to this Agreement on a project by project basis and is the schedule by which payments under this agreement shall be made.
“Product” means the material that is the subject of this agreement, as further described in paragraph 1.1, below.
“Specifications” for the product, shall be, only when applicable, set forth in a separate schedule to this Agreement on a project by project basis.
DEVELOPMENT AND DELIVERY OF DELIVERABLES, PAYMENT
1.1. Developer agrees to develop, host and/or maintain on behalf of Client, a fully accessible and functional website (the “Product”).
1.2. Developer shall use his best efforts to develop each Deliverable and/or Product in accordance with the Specifications, if any.
1.3. All development work will be performed by Developer or its employees or by approved independent contractors who have executed confidentiality agreements, where appropriate.
1.4. Developer shall deliver all Deliverables and/or Product within the times specified in the Development Schedule, unless modified in accordance with paragraph 1.7, and in accordance with the Specifications, if any.
1.5. Developer agrees to comply with all reasonable requests of Client as to the manner of delivery of all Deliverables, which may include delivery by electronic means.
1.6. Client agrees to pay according to the Payment Schedule.
1.7. If the Client, following the execution of this Agreement, alters the Specifications, or alters the nature and/or scope of the project as described in paragraph 1.1, or requests additional work, Developer reserves the right, upon notification to the Client, to (i) modify the Payment Schedule or (ii) charge Client for the additional work according to Developer’s fee schedule.
1.8. Except as expressly provided in this Agreement or in a later writing signed by the Client, Developer shall bear all expenses arising from the performance of its obligations under this Agreement.
TESTING AND ACCEPTANCE
2.1. All Deliverables shall be thoroughly tested by Developer (if applicable) and all necessary corrections as a result of such testing shall be made, prior to delivery to Client.
2.2. When applicable, in the event that a Deliverable or Product delivered to Client has an Error, Client shall notify Developer within 7 days of delivery or shall waive its objections. Upon notification to Developer, Developer shall have 7 days to make a correction to the Deliverable or Product and present the repaired Deliverable or Product to Client at no additional cost to Client.
2.3. All web site changes after final approval of web site will incur additional costs based at a rate of $75 per hour unless covered by a Maintenance Plan.
HOSTING, MAINTENANCE AND UPGRADES
3.1. Upon acceptance of the Deliverables or Product, Developer may provide on-going maintenance in accordance with the Specifications.
3.2. Client is responsible for providing Developer with the content which the Client wishes to update the website. All content updates shall be provided to the Developer at the following email address: email@example.com
3.3. Non-routine maintenance (e.g. photo editing, video development, plugin integration, etc) is not covered by the maintenance agreement.
3.4. Developer retains the right to establish practices and/or limits in connection with the Service, including but not limited to establishing maximum disk space allotted to Client’s information and files stored on servers used by Developer.
3.5. Developer does not guarantee or warrant that any part of the Service is free of viruses or other harmful code. Client must take appropriate precautions, such as use of an anti-virus software package, to protect his or her computer hardware and software.
3.6. Client acknowledges and agrees that Developer does not monitor or police communications or data transmitted through the Service and that Developer shall not be responsible for the content of any such communications or transmissions.
3.7. Client has obtained all necessary authorizations and consents required by law, if any, to upload any data to the Developer Service. Client shall comply with applicable law at all times when using the Developer Service.
3.8. Any unlawful, harassing or other inappropriate behavior may result in the suspension or termination of Client’s subscription at Developer’s sole discretion.
3.9. Client is responsible for obtaining his or her own hardware, software and services (such as computers, web browsers and Internet access service) necessary to access and use the Service and for payment of all fees involved in obtaining such hardware, software and services.
3.10. Client shall be solely responsible for safeguarding his or her login credentials such as Client Name and Password. Client must immediately notify the Developer if his or her login credentials are compromised. Developer has no liability for any loss, claim, or other damages that result from unreported, unauthorized use of Client’s login credentials.
3.11. Client shall be responsible for backing up all Client Content on a regular basis, especially Content considered essential to Client’s operations.
4.1. Client will retain copyright ownership of existing and newly created Client Content.
4.2. Client Content is the property of the Client and will be made available on disk or by electronic means upon request.
4.3 Web site design is the property of Developer and cannot be duplicated without written authorization. Developer reserves the right to charge a fee of $500.00 for the release of all original designs.
4.4. Developer will retain copyright ownership of any copyrights not specifically granted to either party by this Agreement (“Non-specified Components”).
4.5. Client, however, grants to Developer a royalty-free, worldwide, perpetual, irrevocable, non-exclusive license, to use, reproduce, distribute, modify, publicly perform, and publicly display its Existing Client Content and Client’s Components (if any) for the sole and limited purpose of use in Developer’s portfolio as self-promotion and not for direct commercial sale.
4.6. For the purposes of this agreement, “copyright” shall be deemed to include copyrights, trade secrets, patents, trademarks, and other intellectual property rights.
4.7. If any third-party Developer Tools are used in the development of the Product, Developer shall be responsible for obtaining and/or paying for any necessary licenses to use third party content.
4.8. If any third-party content or software (plug-ins, apps, etc) is used in the development of the Product, Client shall be responsible for obtaining and/or paying for any necessary licenses to use third party content.
4.9. All custom art, photos and logos to be supplied by the Client must be in an acceptable digital format. Client will not provide content that it does not have the right to use.
4.10. It is expressly understood by Client that web sites for businesses of the same kind or type as the Client’s may be developed and that the Client does not have exclusive rights in this regard.
5.1. Developer and Client agree, except as authorized in writing, or otherwise required by law not to disclose to any Client, Developer or third party confidential information.
WARRANTIES, COVENANTS, AND INDEMNIFICATION
6.1. Developer represents and warrants to Client the following: (i) Developer has the full power to enter into this agreement without restriction, (ii) except with respect to existing Client Content, and properly licensed materials, the performance, distribution, or use of the Product will not violate the rights of any third parties, and (iii) Developer agrees to defend, hold harmless, and indemnify Client and its representatives from and against all claims, defense costs, judgments, and other expenses arising out of the breach of the foregoing warranties.
6.2. Client represents and warrants to Developer the following: (i) Client has the full power to enter into this agreement without restriction, (ii) the performance of this Agreement will not violate the rights of any third parties, and (iii) Client agrees to defend, hold harmless, and indemnify Developer and its representatives from and against all claims, defense costs, judgments, and other expenses arising out of the breach of the foregoing warranties.
7.1. Either party may without cause terminate this Agreement at any time upon thirty (30) days prior written notice by delivering to the other party written notice via U.S. Mail, facsimile, or personal delivery (but not by electronic mail transmission) expressing a desire to terminate this Agreement (a “Termination Notice”).
7.2 Where either party terminates this Agreement, Client shall not be liable for service fees to Developer under this Agreement except to the extent (determined on a pro-rata basis) that Client receives and accepts the work, code or materials produced by Developer under this Agreement.
7.3 Once Client has terminated use of the Service, Client will have no further access to the Service and all files retained in the file storage will not be accessible by Client.
7.4. Project abandonment. If after repeated attempts to begin, continue, or finalize the delivery of services, Client fails to participate, or becomes otherwise unresponsive to Developer requests for a period of three (3) months, the project may be considered abandoned, and Developer 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.
8.1. This Agreement contains the entire understanding and agreement of the parties, supersedes all prior written or oral understandings or agreements, and may not be altered, modified, or waived except in a signed writing.
8.2. EXCEPT AS PROVIDED ABOVE WITH RESPECT TO THIRD PARTY INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN WARNED OR WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
8.3 Except with respect to the obligation to make a payment of money under this Agreement, whenever a party hereto is required by the provisions of this Agreement to perform an obligation and such party is prevented beyond its control from doing so by reason of an Excusable Delay, such party shall be temporarily relieved of its obligation to perform, provided it exercises due diligence to remove or overcome it.
8.4 If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, (i) the remaining provisions shall continue to be valid and enforceable; or (ii) if by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
8.5 This Agreement shall be governed by the laws of the State of New York. This Agreement is to be performed in (and venue shall lie exclusively in) Orange County, New York. This Agreement shall not be strictly construed against any party to this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be resolved by either (i) adjudication in a small claims court (subject to jurisdictional limitations) or Orange County Supreme Court or (ii) in binding arbitration administered under the rules of the American Arbitration Association in accordance with its applicable rules and the parties shall share equally the cost of the arbitration. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in any manner provided by law.