This CREATIVE AND TECHNICAL SERVICES AGREEMENT (“Agreement”) is an agreement between Joshua Priddle, (“Developer”) and the party set forth in the Project Estimate (“Customer” or “you” or “your”) incorporated herein by this reference and applies to the purchase of all services ordered by Customer (collectively, the “Services”). The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Services.
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND DEVELOPER, AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT. YOUR PAYMENT OF THE DEPOSIT (AS DEFINED BELOW) CONSTITUTES ACCEPTANCE OF AND YOUR CONSENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT YOU HAVE THE ABILITY TO BIND THE ENTITY RECEIVING THE SERVICE.
1. TERM AND TERMINATION. This Agreement shall be effective on the date on which Customer accepts the terms and conditions of this Agreement by (i) payment of the Deposit (defined in Section 7(e) below) or (ii) acceptance of this Agreement on the Developer’s website or otherwise. 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 seven (7) days of receipt of the notice. This Agreement may be terminated by Developer immediately, and all amounts due to Developer for services rendered pursuant to this Agreement shall become due and payable (i) if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Developer or hinders Developer’s ability to perform the Services hereunder.
2. SCOPE OF WORK. Developer will provide the Services in a commercially reasonable manner as requested by the Customer. Developer will take commercially reasonable steps to keep Customer informed of progress and to respond to Customer’s inquiries in a timely fashion.
3. CUSTOMER’S DUTIES. Customer agrees to cooperate with Developer, to abide by this Agreement, to pay Developer’s bills on time and to keep Developer advised of Customer’s current address, telephone number, and e-mail. Customer shall also immediately notify Developer of any of the following: (i) any change of the Customer’s name; (ii) any change in the type of entity of Customer; (iii) any change in management of the Customer; and (iv) any sale of all or substantially all of the Customer’s assets or any merger or other reorganization of Customer. Customer agrees to perform all tasks assigned to Customer by the Developer, and to provide all assistance and cooperation to Developer in order to complete timely and efficiently the Services, including without limitation providing reasonable and appropriate access to Customer’s computer systems, software and source code necessary for Developer to perform the Services. Customer acknowledges and agrees that failure to provide Developer complete access to any of the aforementioned systems may increase the cost of the Services.
4. 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, financial information and anything else that is marked as confidential. 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, Developer and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for five (5) years from the termination of this Agreement.
5. 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.
6. RELATIONSHIP OF PARTIES. Developer, 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. Customer does not undertake by this Agreement or otherwise to perform any obligation of Developer, whether by regulation or contract. In no way is Developer 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.
7. SERVICE FEES AND BILLING PRACTICES.
a. Estimate. Customer acknowledges and agrees that any estimate for the Services provided to Customer by Developer is an estimate only, and the actual cost for the Services may be less or more. Customer acknowledges that Developer has made no promises about the total amount of fees to be charged to Customer under this Agreement, and the total amount of fees will be calculated in accordance with paragraph 7(b) below. It is the Customer’s responsibility to review the invoices sent by the Developer to determine whether the Services will exceed any estimate given by the Developer. No refunds will be given, and Customer is obligated to pay for all time spent by the Developer in providing Services to Customer.
b. Fees. Developer charges $175 per hour for the Services. Customer agrees to pay by the hour at Developer’s negotiated rate as set forth in this Agreement for all time spent on the Services by Developer, whether or not any particular project is completed prior to the termination of this Agreement. The hourly rate is subject to change upon 90 days written notice to Customer. If Customer declines to pay any increased rates, Developer will have the right to terminate this Agreement.
c. Billing Practices. Developer reserves the right to enforce the following billing policies: (i) the invoice will include time spent on research, documentation, design, alternate concepts, prototyping, production, animation, copywriting, system administration and website and software development, including but not limited to feature creation, testing, browser and platform compatibility, refactoring, migrations, server provisioning and configuration and any additional time required by Developer arising from abnormal usage patterns, new environments and any other bug, problem, defect, malfunction or deficiency which causes an incorrect functioning or non-functioning of any Service, or any portion thereof; (ii) the invoice will include time spent by Developer communicating about the Services, including without limitation meetings with Customer and other parties and service providers; (iii) time is charged in minimum increments of one-quarter (.25) of an hour; and (iv) the minimum time charged for any particular activity will be one-quarter of an hour, rounded off for each particular activity to the nearest one-quarter of an hour. Developer may delegate to other independent contractors or employees the Services to be provided to Customer. Any such delegation will not affect Customer’s obligation to pay Developer fees as provided herein.
d. Costs and Other Charges. Developer may incur various costs and expenses in connection with the Services. Customer agrees to pay for all costs, disbursements and expenses in addition to the hourly fee. Costs may include, but are not limited to, hosting subscriptions, bandwidth charges, digital storage space, domain name registrations and renewals, SSL certificates, stock photography and third party application fees and/or subscriptions.
e. Deposit and Payments. For new customers, an initial deposit is required in the amount specified within the Project Estimate (the “Deposit”). The Deposit will be applied to the first invoice and must be received by Developer prior to the performance of any Service. If, at the termination of this Agreement, the amount remaining owing by Customer for Developer fees is less than the amount of the Deposit, the difference will be refunded to Customer upon request, or held (without interest) to be credited to future work. If Developer fees and costs exceed the amount of the Deposit, Customer will pay any additional balance due on receipt of Developer’s bi-monthly invoice.
f. Invoices. Developer invoices customers for its work twice per month. Each such billing cycle is referred to as a 15-day billing period, even though the period may be less or more than 15 days. Developer will e-mail Customer a 15-day invoice for the fees and costs incurred during the preceding 15-day billing period. Each invoice is payable within 15 calendar days of its e-mailing date. Customer is obligated to update its e-mail address with Developer. Sending an e-mail to a Customer’s e-mail address on the Developer’s records, with no bounce-back, is conclusive proof of simultaneous actual receipt by Customer. The invoices shall include the amount, rate, basis of calculation or other method of determination of the fees and costs, which costs will be clearly identified by item and amount. At Developer’s discretion, it may require an advance from Customer, to cover billed items representing services performed by Developer, and any costs advanced or otherwise chargeable to the Customer’s account. The amount and frequency of such advances shall be negotiated between Customer and Developer, but should approximately equal the estimated fee for the hours Developer would expect to bill, or amounts Developer expects to charge for services rendered for the relevant period. As Developer bills Customer for services rendered, the advance may be debited for the amount billed for actual services rendered.
g. Place of Payments. Payments are to be submitted by check at the following location: 114 Sandhill Rd, Greenfield Center, New York 12833
h. Non-Payment of Fees. It is expressly acknowledged that any amount billed to the Customer is due within 15 calendar days of the date on which the statement or invoice is e-mailed to Customer. To the extent payment is not made by the end of such 15-day period, (i) the Customer’s outstanding balance shall immediately begin accruing interest at the rate of one percent (1%) per 15-day billing period, for each and every month there exists an outstanding balance and (ii) Developer may cease providing Services and may, in its discretion, terminate this Agreement. Additionally, in Developer’s sole discretion, Developer may submit any outstanding overdue balance to a collection agency if it remains unpaid for over 60 days. The prevailing party in any action or proceeding to enforce any provision of this Agreement will be awarded reasonable attorney fees and costs incurred in that action or proceeding or in efforts to negotiate the matter.
8. DESIGN OF SERVICES.
a. Design. Developer will perform the Services in a commercially reasonable manner with respect to design direction, branding and all creative and technical services. Customer acknowledges and agrees that Developer has an expertise in providing the Services, and will perform the Services in a manner it deems in the best interests of Customer, as determined by it in its sole discretion. If the Customer disagrees with Developer regarding certain Services, Developer may either choose to perform the Services as per the Customer’s request or terminate this Agreement if Developer determines that Customer’s request cannot be accomplished successfully. Developer is not responsible or liable for any failures or consequences related to performing the Services as requested by Customer, and Customer agrees that it is responsible for all charges incurred by Developer in providing any Service to Customer.
b. Refused Content. Developer may, in its sole discretion, refuse to perform any Service or refuse to include 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 Developer (the “Customer Content”) in any Service.
9. OWNERSHIP.
a. Outside Content. Customer acknowledges, understands and agrees that Developer may use its own and/or may purchase third party licenses for products or services that are necessary for Developer to perform the Services. Such products or services may include, but are not limited to open source code, illustrations, precompiled applications, music, photography, video or any other copyrighted work (“Outside Content”) which Developer deems necessary to purchase or utilize on behalf of Customer in the performance of the Services. Customer further acknowledges and understands that any Outside Content used to complete the Services is owned by Developer 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 Developer and/or such third parties. Outside Content which is owned and/or purchased by Developer may be used in the design and/or development of other projects separate from Customer, regardless of whether such other project is for a customer in competition with Customer.
b. Custom Programming. Customer and Developer agree that upon payment in full of the fees associated with the Services, Customer shall own a worldwide right, title, and interest in and to the Services (including its source code and documentation), other than components of the Services which are Outside Content or Code Content (as defined below) (the “Custom Programming”) solely for Customer’s own internal business purposes. Customer 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, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom Programming. Notwithstanding the foregoing, Customer specifically agrees that it will not take, or allow any unauthorized third party to take, any steps to commercially exploit, sell or market the Custom Programming, or any other tangible or intangible asset or intellectual property developed or derived therefrom, in any manner. Any decompilation or reverse engineering of the Custom Programming is prohibited without the express written consent of Developer. Developer and its subcontractors retain the right to display graphics and other web design elements of the Services as examples of their work in their respective portfolios. Even if such display involves the name of the Customer or other of its trademarked assets.
c. Code Content. Customer and Developer also agree that the design and development of the Services may include source code, documentation, and/or application programs that were previously written or developed by Developer and modified to meet Customer’s specific requirements (the “Code Content”). Developer 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 Services) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content solely as provided by the Developer in a Service. Nothing in this paragraph gives the Customer the right to decompile or reverse engineer the Code Content, use the Code Content in any other way except as used in the Service, or license or sell any Code Content.
d. Attribution. As an integral part of the consideration for the Agreement, Customer acknowledges that Developer may include an Attribution (as defined below) identifying Developer on any of the Custom Programming. Customer agrees to continue and allow such Attribution for a minimum of eighteen (18) months after termination of this Agreement. For the purposes hereof, “Attribution” refers to Developer’s inclusion of text or of a logo in the Custom Programming giving Developer credit for creation and design of the Services.
9. INDEMNIFICATION.
a. Developer Indemnity. In performing services under this Agreement, Developer agrees not to knowingly 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 Developer becomes aware of any such possible infringement in the course of performing any work hereunder, Developer shall immediately notify Customer in writing. Developer 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 the Agreement, other than Customer’s responsibilities and Customer Content to the extent the infringement is the fault of the Developer. Developer’s total liability under this Agreement shall not exceed the amount paid by Customer under this Agreement.
b. Customer Indemnity. Customer shall indemnify and hold harmless Developer (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, subcontractors, 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 Developer as a result of any claim, judgment, or adjudication against Developer related to or arising from any Customer Content, or a claim that any element of any Customer Content furnished to Developer for inclusion in the Services infringes the intellectual property rights of a third party.
10. REPRESENTATIONS AND WARRANTIES.
a. Developer Representations. Developer makes the following representations and warranties for the benefit of Customer:
i. No Conflict. Developer 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 Developer under this Agreement. Customer understands that Developer may be currently working on one or more similar projects for other customers. Provided that those projects do not interfere or conflict with Developer’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
ii. Disclaimer of All Other Warranties. DEVELOPER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES 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 EACH PARTY DISCLAIMS ALL 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.
iii. 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. DEVELOPER 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 Representations. Customer makes the following representations and warranties for the benefit of Developer:
i. Customer Content. Customer represents to Developer and unconditionally guarantees that any elements of the Customer Content furnished to Developer for inclusion in the Services 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 Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
ii. Compliance with Laws. 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 Developer and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
11. NOTICE. Any notice required to be given under this Agreement shall be in writing and delivered (i) personally to the other designated party at the address provided to the other party mailed by certified, registered or express mail, return receipt requested or by Federal Express or (ii) by electronic mail or facsimile. 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.
12. GOVERNING LAW. This Agreement shall be governed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of laws.
13. VENUE AND JURISDICTION. The parties hereto agree that all actions or proceedings arising in connection with this Agreement, whether arising out of contractual, tort or otherwise, shall be tried and litigated exclusively in the State courts located in the County of Saratoga, State of New York, or the federal courts sitting in Albany, State of New York. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. Each party hereby waives any right it may have to object to venue with respect to any proceeding brought in accordance with this paragraph. Each party stipulates and expressly submits to the personal jurisdiction of the State courts located in the County of Saratoga, State of New York, and federal courts sitting in Albany, State of New York for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement.
14. 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.
15. ASSIGNABILITY. Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Developer. Developer reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
16. 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.
17. WAIVER. No waiver by either party of any default of any provision of this Agreement shall be deemed a waiver of any prior or subsequent default of such provision or any other provision of this Agreement.
18. 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.
19. 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.
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. MODIFICATION TO TERMS. Developer reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the Developer’s website. You are responsible for regularly reviewing this Agreement. Continued use of the Developer’s Services after any such changes shall constitute your consent to such changes.
Creative and Technical Services Agreement by New Leaders is licensed under a Creative Commons Attribution 3.0 United States License. Based on a work at newleaders.com.
http://newleaders.com/pages/53-agreement