This WEBSITE DEVELOPMENT AGREEMENT (“Agreement”) is an agreement between Hip Citizen Creative, LLC (“Company”) and the party set forth in the related order document (“Customer” or “you”) incorporated herein by this reference (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.
BY CONTACTING THE COMPANY AND STIPULATING THAT YOU WOULD LIKE TO PURCHASE 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. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. TERM AND TERMINATION
1.1. Term of Agreement. This Agreement shall be effective as of the date set forth on the Order and shall remain in force until the Services are completed and delivered. Company cannot guarantee the Delivery Date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner.
1.2. 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
2.1. Scope of Work. Customer hereby retains the services of Company to design the Website for Customer and publish it to the World Wide Web (collectively, the “Deliverables”) in accordance with the Order.
2.2. Changes. Changes to this Agreement, the Order or to any of the specifications of the Website 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.
2.3. 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 Website. 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 providing all text for the Website.
3. WEBSITE DESIGN, DEVELOPMENT AND MAINTENANCE
3.1. Design. The design of the Website shall be in substantial conformity with the material provided to Company by Customer. Website text will be supplied by the Customer.
3.2 Development. The development of web pages will take place on a WordPress platform on the Customer’s web hosting service. It is the responsibility of Customer to install the WordPress platform on their web hosting service unless arrangements with Company are made in writing to do so.
3.3. Completion Date. Company and the Customer shall work together to complete the Website in a commercially reasonable manner. Customer must supply Company graphics content (photographs), if applicable, for all web pages contracted for within two (2) weeks of the date of the Order unless otherwise noted. If Customer has not submitted graphics content within three (3) weeks after the Order, an additional continuation fee of ten percent (10%) of the total Order price may also be assessed each month until the Website is published.
3.4. Copyright to Website. 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 Website. 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 Website. Customer further acknowledges and understands that any Outside Content used to design and develop the Website 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 websites separate from Customer. Customer and Company agree that upon payment in full of the fees associated with the design and development of the Website, Customer shall own a worldwide right, title, and interest in and to the Website (including, its source code and documentation) (the “Custom Programming”). Customer and Company agree that Company 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. Customer and Company also agree that the design and development of the Website 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 Website) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content. Company and its subcontractors retain the right to display graphics and other web design elements of the Website as examples of their work in their respective portfolios.
3.5 Website maintenance. This Agreement does not provide website maintenance or “webmaster” services. Company does not offer these services.
3.6 Website hosting and URL. This Agreement does not provide website hosting or web address (“URL”). Company does not offer these services or products.
4. FEES, REFUNDS, EXCHANGE GUARANTEE
4.1 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 Fee to Company is due and payable upon receipt of the invoice emailed to Customer. Company shall have no obligation to deliver login information for Customer’s website’s content management system to Customer until payment is received and such funds are cleared from the relevant financial institution.
4.2 Customer is responsible for all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the Order.
4.3 Company’s services are “AS-IS, WHERE-IS, WITH ALL FAULTS” and no refunds shall be provided for Company’s services hereunder unless the services appear to be not-as-described on a case by case basis in agreement of the parties concerned. The deadline for any refund claim is one week after the website has been published to the World Wide Web.
The Customer guarantees that the phrase “Om Sites” remains in the Customer’s website footer as delivered, and that it remains linked to Company’s website.
6. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
7. RELATIONSHIP OF THE PARTIES
7.1 Independent Contractor. Company is an independent contractor, not an employee of Customer or any company affiliated with Customer. Company shall provide the Services under the general direction of Customer, but Company shall determine, in Company’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Company and the work product or Deliverables prepared by Company shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Customer are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
7.2 Company Agents. Company shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Company shall remain fully responsible for such Company Agents’ compliance with the various terms and conditions of this Agreement.
7.3 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Customer is free to engage others to perform services of the same or similar nature to those provided by Company, and Company shall be entitled to offer and provide design services to others, solicit other Customers and otherwise advertise the services offered by Company.
8. WARRANTIES AND REPRESENTATIONS
8.1 By Customer. Customer represents, warrants and covenants to Company that (a) Customer owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Customer Content, (b) to the best of Customer’s knowledge, the Customer Content does not infringe the rights of any third party, and use of the Customer Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Customer shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Customer shall comply with all laws and regulations as they relate to the Services and Deliverables.
8.2 By Company
(a) Company hereby represents, warrants and covenants to Customer that Company will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) Company further represents, warrants and covenants to Customer that (i) except for Third Party Materials and Customer Content, the Deliverables shall be the original work of Company and/or its independent contractors, (ii) in the event that the Deliverables includes the work of independent contractors commissioned for the Project by Company, Company shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Deliverables sufficient for Company to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Company’s knowledge, the Deliverables provided by Company and Company’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. Company makes no warranties regarding WordPress, third party plugins, or any other third party program. In the event Customer or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Company shall be void. (c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER. COMPANY EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
9.1 By Customer. Customer agrees to indemnify, save and hold harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Customer’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Company shall promptly notify Customer in writing of any claim or suit; (a) Customer has sole control of the defense and all related settlement negotiations; and (b) Company provides Customer with commercially reasonable assistance, information and authority necessary to perform Customer’s obligations under this section. Customer will reimburse the reasonable out-of-pocket expenses incurred by Company in providing such assistance.
9.2 By Company. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Company agrees to indemnify, save and hold harmless Customer from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Company’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Customer provided that (a) Customer promptly notifies Company in writing of the claim; (b) Company shall have sole control of the defense and all related settlement negotiations; and (c) Customer shall provide Company with the assistance, information and authority necessary to perform Company’s obligations under this section. Notwithstanding the foregoing, Company shall have no obligation to defend or otherwise indemnify Customer for any claim or adverse finding of fact arising out of or due to Customer Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Company.
9.3 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.
10.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Company’s invoices may include, and Customer shall pay, expenses or costs that Customer authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
10.2 Notices. All notices to be given hereunder shall be transmitted in writing by electronic mail with return confirmation of receipt. Notice shall be effective upon receipt or in the case of e-mail, upon confirmation of receipt.
10.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
10.4 Force Majeure. Company shall not be deemed in breach of this Agreement if Company is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Company or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Company’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Company shall, to the best of its ability, give notice to Customer of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
10.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Oregon without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Oregon. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Customer acknowledges that Company will have no adequate remedy at law in the event Customer uses the Deliverables in any way not permitted hereunder, and hereby agrees that Company shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
10.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
10.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
10.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.