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This Website Development Agreement is made by and between Micrografx Limited ("Web Designer"), and (“Customer”). WHEREAS, Customer desires to retain Web Designer to develop the World Wide Website (the "Website") for Customer as described in The Work Plan (as defined in Section I below); WHEREAS, Web Designer desires to undertake the development of the Website and agrees to do so under the terms and conditions set forth in this Agreement; NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
Section 1 - The Work Plan.
Web Designer has prepared a step-by-step work plan for designing the Website, which includes the following:
(a) Web Designer will identify the scope of the project and determining a general design direction;
(b) Customer will pay all hosting and domain(s) fee annually commencing on a date to be determined.
(c) Customer will have ten (5) days from hire date to submit via email all text, images, and media to Web Designer at firstname.lastname@example.org; or otherwise noted.
(d) Web Designer will have ten (15) days to create a layout and general design direction of the website;
(e) Customer will have three (3) days to approve the layout and general design of the website;
(f) Web Designer will have fifteen (30) days to complete the website;
(g) Customer will have three (3) days to approve the completed website design;
(h) Web Designer will have three (3) days to publish the website on the Internet
(i) Web Designer will provide maintenance updates as defined in section 6 below.
Section 2 - Payment.
Initial orders can be cancelled within 24 hours of purchase. Written notice of cancellation is required. E-mail notice sent to
email@example.com is sufficient to satisfy the notice requirement. Both parties have agreed to the following terms to satisfy payment for the website project:
(a) Customer will pay all hosting, maintenance and domain(s) fees required to keep service on the website. Presently, some domain names and hosting fees are waived the first year of service. The fees must be paid annually, commencing the first date the website is launched in order to keep service on website.
(b) 50% down payment of the TOTAL AMOUNT due on the invoice will be require to start designing the website.
(c) The remaining balance is due prior to making the website live in the World Wide Web.
(d) Any extra work that is requested by the customer while the website is being design will require immediate payment. Same applies to any extra work requested after the website is completed.
Section 3 - Limitation on Revisions.
It is understood that this agreement can be terminated if customer does not approve the layout and general design of the website after three (3) revisions are made by Web Designer. Customer may request additional revisions. Web Designer will provide additional revisions at an hourly rate of $95. It is further understood that the initial 50% down payment is nonrefundable.
Section 4 - Hosting Fees.
Hosting fees are due annually. Hosting fees range in price depending on what package or products were purchased by the customer. If customer fails to pay the hosting fee, the Customers website will not be published on the Internet. If Customer desires to host their website independent of Web Designer they must provide written notice ninety (90) days prior to the renewal date of the hosting agreement. The renewal date of the hosting agreement is set by the date Customer initially purchased Web Designer’s services. Within ten (10) days upon receipt of notice Web Designer will provide Customer with a CD containing all files of Customer’s website.
Section 5 - Maintenance Fee.
Maintenance fees are generally covered along with the yearly renewal fees. However, a maintenance fee could be applied if the customer exceeds the limitations covered under the maintenance guideline noted on Section 6.
Section 6 - Scope of Maintenance.
Web Designer agrees to provide limited monthly maintenance to Customer’s website. This includes one maintenance session per month. A maintenance session is limited to Webmaster making minor changes on up to two (2) pages of Customer’s website. Maintenance is limited to textual content changes not exceeding 50 words per page and updates to three (2) images or videos supplied by the Customer. Maintenance does not include updates to the design or layout of the website. If Customer desires additional content updates and/or design modifications, Web Designer agrees to perform them at an hourly rate of $95.
Section 7 - Changes in Project Scope.
If at any time following the signing of this agreement, Customer should desire to change the specifications or other elements of the Work Order, Customer shall submit to Web Designer a written proposal specifying such changes. Web Designer shall evaluate each such proposal and shall submit to Customer a written response within five (5) business days following receipt thereof. Web Designer's response shall include a statement of the effect the proposed changes will have on the price, delivery dates or warranty provisions of this Agreement. Any changes to the Work Plan shall be evidenced by a "Work Order Amendment." The Work Order Amendment shall be signed by authorized representatives of the Web Designer and Customer, and shall be deemed a part of this Agreement. If Web Designer does not approve the Work Plan Amendment, he shall not be obligated to perform any additional services hereunder.
Section 8 - Delays.
(a) Web Designer recognizes and agrees that failure to deliver the Website according to the Work Order’s delivery schedule will result in expense and damage to Customer. Web Designer shall inform Customer immediately of any anticipated delays in the delivery schedule and of the actions being taken to assure completion of the Website within such schedule. If any delivery date is missed, Customer may, at its sole option, declare a default under this Agreement and may pursue all remedies set forth in Section 12; provided, however, that Customer shall provide Web Designer with thirty (30) days to cure the delay prior to declaring a default. Customer may not declare a default hereunder if such delay is caused by any action or failure to act of Customer.
(b) The Web Designer cannot be held in default of this Agreement in case of delays on the part of the Customer. In such case, the Web Designer will provide the Customer with written notice that such a delay has occurred. Work on the Website shall not resume until the reason for the delay has been resolved by the Customer and notice of its resolution has been provided to the Web Designer.
Section 9 - Authority.
Web Designer and Customer each hereby represent and warrant that the execution, delivery and performance of this Agreement has been duly authorized and that the Agreement is a legal, valid and binding agreement of Web Designer and Customer, enforceable in accordance with its terms. Web Designer and Customer further represent that this Agreement does not breach or violate any agreement to which it is a party or to which it is bound.
Section 10 - Rights to Work Product.
Web Designer hereby acknowledges that the Deliverables and any other documentation, materials or intellectual property hereunder (collectively, the "Work Product") are works which have been specially commissioned by Customer and are "work made for hire" for Customer and Customer shall own all right, title, and interest therein. Customer shall be considered the author of the Work Product for purposes of copyright and shall own all the rights in and to the copyright of the Work Product and, as between Customer and Web Designer, only Customer shall have the right to obtain a copyright registration on the same which Customer may do in its name, its trade name or the name of its nominee(s). Accordingly, among other things, Customer is the author and owner of the Work Product and shall have the sole and exclusive rights to do and authorize any and all of the acts set forth in Section 106 of the Copyright Act with respect to the Work Product and any derivatives thereof, and to secure any and all renewals and extensions of such copyrights. To the extent Web Designer does not own such Work Product as a work made for hire, Web Designer hereby assigns, transfers, releases and conveys to Customer all rights, title and interest to such
Work Product, including but not limited to all other patent rights, copyrights, trademarks, and trade secret rights.
Section 11–Access and Training.
(a) The Web Designer will not grant the Customer any access to the Website Portal.
(b) Web Designer shall provide no training in the use of the Website. Web Designer is not responsible to for providing software and/or technology to Customer.
Section 12 - Representations and Warranties.
(a) Warranty of Website Performance: Web Designer represents and warrants that, for thirty (30) days following acceptance of the Website by Customer, the Website will be free from programming errors and defects in workmanship and materials, and will conform to the specifications in the Work Order. If programming errors or other defects are discovered during the warranty period, Web Designer shall promptly remedy them at his expense.
(b) Warranty of Title: Web Designer represents and warrants that he owns and has the complete right to license, convey title without any encumbrances to the Website and Deliverables covered by this Agreement. Web Designer further represents and warrants that he has obtained all required registrations, permissions and consents from all third parties necessary to deliver the Website, Background Technology and Deliverables. Web Designer shall not grant any rights or licenses to any intellectual property or technology that would conflict with his obligations or Web Designer's rights under this Agreement.
(c) Warranty Against Disablement: Web Designer expressly represents and warrants that no portion of the Website contains or will contain any protection feature designed to prevent its use. This includes, without limitation, any computer virus, worm, software lock, drop dead device,Trojan-horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, delete, damage or disable the Website or computer system.
(d) Warranty of Compatibility: Web Designer represents and warrants that the Website shall be compatible with Customer's hardware and software as set forth in the specifications in the Work Order.
(e) Warranty Against Intellectual Property Infringement: Web Designer represents and warrants that the Website and Deliverables shall not infringe on the trademark, copyright, patent, trade secrets or any other rights of any third party. To the extent the Website or the Deliverables infringe upon the rights of any third party, Web Designer shall obtain a license or consent from such third party permitting the use of the Website and Deliverables.
Section 13 - Indemnity.
(a) Indemnity by Customer: Customer shall indemnify Web Designer and any of his employees or agents against all claims, liabilities, costs, damages, fees and expenses (including reasonable attorney's fees) arising from any action based upon any content on the Website that is solely provided by Customer.
Section 14 - Confidentiality.
(a) Confidential Information: For purposes of this Agreement, the term "Confidential Information" means all information that is not generally known by the public and that: (i) is obtained by Web Designer from Customer, or that is learned, discovered, developed, conceived, originated, or prepared by Web Designer during the process of performing this Agreement, and (ii) relates directly to the business or assets of Customer. The term "Confidential Information" shall include, but shall not be limited to: inventions, discoveries, trade secrets, and know-how; computer software code, designs, routines, algorithms, and structures; product information; research and development information; lists of clients and other information relating thereto; financial data and information; business plans and processes; and any other information of Customer that Customer informs Web Designer, or that Web Designer should know by virtue of its position, is to be kept confidential.
(b) Obligation of Confidentiality: During the term of this Agreement, and at all times thereafter, Web Designer agrees that he will not disclose to others, use for his own benefit or for the benefit of anyone other than Customer, or otherwise appropriate or copy, any Confidential Information, whether or not developed by Web Designer, except as required in the performance of its obligations to Customer hereunder. The obligations of Web Designer under this paragraph shall not apply to any information that becomes public knowledge through no fault of Web Designer.
Section 15 -Term of Agreement.
This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement.
Section 16 -Termination of Agreement.
This Agreement may be terminated by Customer at its sole election upon thirty (30) days prior written notice to Web Designer. Upon such termination, all amounts owed to Web Designer under this Agreement for completed work in accordance with the Work Order shall become due and payable. At such time, Web Designer shall deliver all completed work to Customer. If this Agreement is terminated by Customer because of Web Designer's default of his obligations hereunder, Customer may, after thirty (30) days written notice to Web Designer and a reasonable opportunity to cure:
(a) require Web Designer to immediately deliver to Customer all Work Product developed by Web Designer under this Agreement and pay Web Designer all amounts owed for the work performed under this Agreement and accepted by Customer, whereupon Customer shall have complete right, title and interest in such work and all rights, permissions and licenses granted to Customer by Web Designer under this Agreement shall continue, in perpetuity as royalty-free and fully paid rights; or
(b) pursue all legal and equitable remedies against Web Designer.
If Web Designer terminates this Agreement because of Customer's default, after a thirty (30) day written notice to Customer and an opportunity to cure, Web Designer may require:
(c) Customer to pay all amounts then due to Web Designer under this Agreement for any work which has been completed and accepted by Customer, whereupon Customer shall have complete right, title and interest in such work and all rights and licenses granted to Customer by Web Designer under this Agreement shall survive as royalty free and fully paid-up; and
(d) pursue all legal and equitable remedies against Customer.
Section 17 - Assignment.
Neither party may assign or subcontract its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld.
Section 18 - Relocation.
Web Designer shall also use his best good faith effort to assist the Customer in relocation of the Website if such relocation should occur within the Warranty period as defined in Section 8, paragraph (a).
Section 19 - General Provisions.
(a) Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, is the sole and entire Agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of this Agreement and any attached exhibits, appendices or other materials, this Agreement shall take precedence.
(b) Modification to Agreement: Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
(c) Waive: No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.
(d) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
(e) Independent Contractor: The parties acknowledge that Web Designer shall perform her obligations hereunder as an independent contractor. The manner and method of performing such obligations will be under Web Designer's sole control and discretion. Web Designer's sole interest is in the result of such services. It is also expressly understood that Web Designer's employees and agents, if any, are not Customer's employees or agents, and have no authority to bind Customer by contract or otherwise. Customer shall make no deduction from any payments due Web Designer hereunder for federal and state tax purposes. In the event that Customer is found liable for Social Security, withholding, insurance, or other such taxes, Customer shall have the right to immediately recover such amount from Web Designer.
(f) Notice: All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, or five (5) days after being deposited in the United States mail, postage prepaid.
(g) Reasonable Costs: In the event of any controversy concerning or related to this Agreement or the performance of this agreement, the prevailing party shall be entitled to recover its reasonable expenses (including reasonable attorneys' fees) incurred in resolving such controversy, in addition to any other relief that may be available.
(h) Applicable Law: This Agreement will be governed by the laws of the State of New York. Any litigation or arbitration regarding this Agreement shall be brought exclusively in Westchester County, New York.
(i) Severability: If any provision of this Agreement is held invalid, void or unenforceable under any applicable statute or rule of law, it shall to that extent be deemed omitted, and the balance of this Agreement shall be enforceable in accordance with its terms.
(j) Time of the Essence. Time is of the essence in the performance of the covenants of the parties hereunder, including without limitation delivery covenants to be performed by the Web Designer.
(k) Bankruptcy. If either party hereto (a) shall be adjudicated a bankrupt or an order appointing a receiver of it or of the major part of its property shall be made, or an order shall be made approving a petition or answer seeking its reorganization under any applicable bankruptcy law, and in any such case shall not be stayed within 10 days, or (b) shall institute proceedings for a voluntary bankruptcy or apply for or consent to the appointment of a receiver of itself or its property, or shall make an assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts generally as they become due, for the purpose of seeking a reorganization under the federal bankruptcy laws or otherwise, then in any one or more of such events listed in (a) or (b) above, the other party may terminate this agreement by giving at least 10 days prior notice.
TERMS OF AGREEMENT AND PRIVACY