Website Development Agreement
This Agreement is made between (the "Client") with a principal place of business at and (the "Developer") with a principal place of business at .
"The Site" means a series of linked Web pages under common control and developed by Developer for Client under this Agreement.
"Client Content" means all data, code, trademarks, and copyrighted content provided by Client for use by Developer on the Site.
"Developer Content" means all data, code, trade secrets, patents, designs, drawings, text created by Developer for use on the Site, including any modifications or enhancements provided by Developer.
Developer will perform the development services described below. There are four stages of development services: Concept, Design, Initial Development, and Final Development. Developer will complete the four stages on or before the dates listed below. Before delivering the Site to Client, Developer will test its components to make sure the Site and its components work as intended.
- Concept. (Due Date: Within days of the effective date.) The parties will discuss and agree upon the basic concept for the Client website and Developer shall prepare a written summary of the basic elements of the website's functionality and appearance.
- Design. (Due Date: Within days of the approval of the Concept Stage.) The parties will discuss and agree upon the design of the Client website and Developer shall prepare a detailed summary of the proposed appearance, operation, and functionality, including a list of all necessary software and materials necessary to launch the Site.
- Initial Development. (Due Date: Within days of the approval of the Design Stage.) During Initial Development, Developer shall prepare the following Web pages for the Site: Developer shall demonstrate the following functionality for the Site.
- Final Development. (Due Date:Within days of the approval of the Initial Development Stage.) Developer will complete all requirements for the Site and host it in a manner that Client can view it for a period of at least days.
Evaluation and Acceptance
As Developer completes each stage, Developer will submit the completed materials to Client for approval. Client will have days to approve the completed materials or provide corrections and comments.
Developer will have days after receiving Client's comments and corrections to submit a revised version of the materials to Client. Client will review the revised version within days of receipt and either approve the corrected version or make further changes.
If Client determines, in its reasonable discretion, that the materials are not acceptable after two attempts at correction by Developer, Client can terminate this Agreement. If Client fails to provide approval or comments during any of the approval periods, those materials will be considered to be approved.
If Client terminates this Agreement under this provision, Developer shall be entitled to compensation on a time and materials basis at an hourly rate of $ plus expenses to the date of termination. Developer shall submit an invoice detailing its time and expenses. If the invoice amount is less than the amounts paid to Developer prior to termination, Developer shall promptly return the excess to Client. If the invoice amount exceeds the amounts paid to Developer prior to termination, Client shall pay Developer the difference within 30 days of the date of the invoice.
|fixed price agreement||
Client shall pay Developer according to the following schedule:
$ Within days of the effective date.
$ Upon approval of the Design Stage.
$ Upon approval of the Initial Development Stage.
$ Upon approval of the Final Development Stage.
|"time and materials" agreement||
Developer shall be compensated at the rate of $ per . Payment will be made within
|client's maximum liability||
Unless otherwise agreed upon in writing by Client, Client's maximum liability for all services performed during the term of this Agreement shall not exceed $.
Payment of Developer's Costs
Client shall reimburse Developer for all out-of-pocket expenses incurred by Developer in performing services under this Agreement. Such expenses include, but are not limited, to
(a) all communications charges;
(b) travel expenses other than normal commuting, including airfares, rental vehicles, and highway mileage in company or personal vehicles at cents per mile; and
(c) other expenses resulting from the work performed under this Agreement.
Developer shall submit an itemized statement of Developer's expenses. Client shall pay Developer within 30 days from the date of each statement.
|developer pays expenses||
Developer shall be responsible for all expenses incurred while performing services under this Agreement.
|late fees option||
Client shall make available to Developer, at Client's expense, the following materials, facilities, and equipment: . These items will be provided to Developer by . If the materials are not available as of the date specified, Developer's obligations and due dates shall be extended by the number of days of the delay.
Changes in Project Scope
If Client wishes to implement major revisions after Client has already accepted Developer's work product following completion of any stage of development, Client shall submit to Developer a written proposal specifying the desired changes.
Developer will evaluate each such proposal at its standard rates and charges. Developer shall submit to Client a written response to each such proposal within ten working days following receipt. Developer's written response shall include a statement of the availability of Developer's personnel and resources, as well as any impact the proposed changes will have on the contract price, delivery dates, or warranty provisions of this Agreement.
Client shall have ten business days from receipt of Developer's response to its proposal to accept or reject it in writing. If Client accepts Developer's response, Developer shall draft a written Contract Amendment Agreement to reflect the desired changes and acknowledge any effect of such changes on the provisions of this Agreement. Developer shall commence work on the desired changes once the Contract Amendment Agreement is signed by authorized representatives of Client and Developer.
Should Client reject Developer's response to its proposal, Client will so notify Developer within ten working days of Client's receipt of the response. Developer will not be obligated to perform any services beyond those called for in this original Agreement.
Developer shall use all reasonable efforts to meet the delivery schedule set. However, at its option, Developer can extend the due date for any deliverable by giving written notice to Client. The total of all such extensions shall not exceed days.
Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notify the other of the delay in writing. The delayed party's time for performance shall be deemed to be extended for a period equal to the duration of the conditions beyond its control.
Conditions beyond a party's reasonable control include, but are not limited to, natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war or terrorism, and epidemics. Failure of subcontractors and inability to obtain materials shall not be considered a condition beyond a party's reasonable control.
Ownership of Developer Content
|ownership by client||
Developer assigns to Client all right, title, and interest in the copyrights in Developer Content, including copyright in the Site's compilation or collective work and in the derivative copyrights of such works. Developer will sign any further documents reasonably requested by Client to put into effect the assignment of these rights.
|ownership by developer||
Developer shall retain all copyright, patent, trade secret, and other intellectual property rights Developer may have in Developer Content. Subject to payment of all compensation due under this Agreement, Developer grants Client a perpetual, nonexclusive, nontransferable, royalty-free license to use Developer Content. This license shall authorize Client to:
Ownership of Developer Tools
Client acknowledges that Developer owns or holds a license to use and sublicense various development or authoring tools it uses to create websites for its clients. By way of example, such tools may include, but are not limited to, such items as: HTML code, Java code, Java applets, subroutines, search engines, and toolbars for maneuvering between pages. Such material shall be referred to as "Developer's Tools."
Developer Tools include, but are not limited to, the following: .
Developer retains all right, title, and interest, including all copyright, patent rights and trade secret rights in Developer Tools. Subject to full payment of the fees due under this Agreement, Developer grants Client a nonexclusive, perpetual, worldwide license to use the Developer Tools to operate the Site and for all updates and revisions thereto. However, Client shall make no other commercial use of Developer Tools without Developer's written consent.
Website Credits and Links
Developer may take the following actions:
Developer can state on the Site that Developer developed the Site.
|hypertext link to developer's website||
Developer can place hypertext links on Client's Site to Developer's website.
|hypertext link from developer's website||
Developer can place hypertext links on Developer's website to Client's Site as an example of Developer's services.
Client has selected an Internet service provider to host its completed Site. While the Site is under construction and until final payment is received by Developer, Developer will host the Site pages as they are constructed in a special directory on its Web space at: . If the Site is not completed by the completion date set forth in this Agreement, and if the cause of the delay is not attributable to Developer, Client agrees to pay Developer $ per month for hosting the Site on Developer's Web space. Client will continue to pay Developer for hosting the Site at this rate until the Site is installed on Client's own Web space. This monthly rate shall be prorated if the Site is installed on Client's Web space before the end of any monthly period.
Developer has no legal or financial interest in the domain name chosen by Client for the site.
|developer will register domain name||
If requested by Client, Developer will cooperate with Client in registering the domain name with a domain name registry chosen by Client. Client shall bear all expenses incurred in registering the domain name.
Developer Representations and Warranties
|disclaimer of warranties||
THE DEVELOPER CONTENT FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. DEVELOPER DOES NOT WARRANT THAT THE OPERATION OF THE SITE WILL BE CONTINUAL, UNINTERRUPTED, OR ERROR FREE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR DEVELOPER CONTENT.
Developer represents and warrants to Client that:
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES GRANTED BY DEVELOPER. DEVELOPER DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Intellectual Property Infringement Claims
|limited warranty against infringement||
Developer warrants that Developer will not knowingly infringe on the copyright or trade secrets of any third party in performing services under this Agreement. To the extent any material used by Developer contains matter proprietary to a third party, Developer shall obtain a license from the owner permitting the use of such matter and granting Developer the right to sublicense its use. Developer will not knowingly infringe upon any existing patents of third parties in the performance of services required by this Agreement, but Developer MAKES NO WARRANTY OF NONINFRINGEMENT of any United States or foreign patent.
Developer represents, BUT DOES NOT WARRANT, that to the best of its knowledge the Developer Content delivered to Client under this Agreement will not infringe any valid and existing intellectual property right of any third party.
|no warranties or representations||
THE DEVELOPER CONTENT FURNISHED UNDER THIS AGREEMENT IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS AGAINST INFRINGEMENT, AND DEVELOPER SHALL NOT INDEMNIFY CLIENT AGAINST INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPRIETARY RIGHTS.
|limitation of developer's liability||
Limitation of Developer's Liability to Client
(a) In no event shall Developer be liable to Client for lost profits of Client, or special or consequential damages, even if Developer has been advised of the possibility of such damages.
(b) Developer's total liability under this Agreement for damages, costs, and expenses, regardless of cause, shall not exceed the total amount of fees paid to Developer by Client under this Agreement or $, whichever is greater.
(c) Developer shall not be liable for any claim or demand made against Client by any third party except to the extent such claim or demand relates to copyright, trade secret, or other proprietary rights, and then only as provided in the section of this Agreement entitled Intellectual Property Infringement Claims.
(d) Client shall indemnify Developer against all claims, liabilities, and costs, including reasonable attorney fees, of defending any third-party claim or suit arising out of the use of the Developer Content provided under this Agreement, other than for infringement of intellectual property rights. Developer shall promptly notify Client in writing of any third-party claim or suit and Client shall have the right to fully control the defense and any settlement of such claim or suit.
Client Representations and Warranties
Client represents and warrants to Developer as follows:
- Client has the authority to enter into and perform its obligations under this Agreement;
- Client has or will obtain all necessary and appropriate rights and licenses to grant the license to Developer to use Client Content for the Site; and
- Client has or will obtain any authorizations necessary for hypertext links from the Site to any other third-party websites.
Client will indemnify Developer from any third-party claims resulting in losses, damages, liabilities, costs, charges, and expenses, including reasonable attorney fees, arising out of any breach of any of Client's representations and warranties contained in this Agreement. For such indemnification to be effective, however, Developer must give Client prompt written notice of any such claim and provide Client such reasonable cooperation and assistance as Client may request in the defense of such suit. Client will have sole control over any such suit or proceeding.
Confidentiality: During the term of this Agreement and for afterward, Developer will use reasonable care to prevent the unauthorized use or dissemination of Client's confidential information. Reasonable care means at least the same degree of care Developer uses to protect its own confidential information from unauthorized disclosure.
Confidential information is limited to information clearly marked as confidential, or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in a writing delivered to Developer within 15 days of disclosure.
Confidential information does not include information that:
- the Developer knew before Client disclosed it;
- is or becomes public knowledge through no fault of Developer;
- Developer obtains from sources other than Client who owe no duty of confidentiality to Client; or
- Developer develops independently.
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.
Termination of Agreement
Each party shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of 30 days after written notice of such breach is sent to the other party.
If Developer terminates this Agreement because of Client's default, all of the following shall apply:
- Client shall immediately cease use of the Developer Content;
- Client shall, within ten days of such termination, deliver to Developer all copies and portions of the Developer Content and related materials and documentation in its possession furnished by Developer under this Agreement;
- All amounts payable or accrued to Developer under this Agreement shall become immediately due and payable; and
- All rights and licenses granted to Client under this Agreement shall immediately terminate.
|client convenience termination||
This Agreement may be terminated by Client for its convenience upon thirty (30) days' prior written notice to Developer. Upon such termination, all amounts owed to Developer under this Agreement for accepted work shall immediately become due and payable and all rights and licenses granted by Developer to Client under this Agreement shall immediately terminate.
The charges included here do not include taxes. If Developer is required to pay any federal, state, or local sales, use, property, or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to Client. Developer shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by Client.
Developer an Independent Contractor
Developer is an independent contractor, and neither Developer nor Developer's staff is, or shall be deemed, Client's employees. In its capacity as an independent contractor, Developer agrees and represents, and Client agrees, as follows:
|right to perform services for others||
Developer has the right to perform services for others during the term of this Agreement subject to noncompetition provisions set out in this Agreement, if any.
|right to control and direct means, manner, method||
Developer has the sole right to control and direct the means, manner, and method by which the services required by this Agreement will be performed.
|right to perform services for at any place, location, time||
Developer has the right to perform the services required by this Agreement at any place or location and at such times as Developer may determine.
|furnish all equipment, materials||
Developer will furnish all equipment and materials used to provide the services required by this Agreement.
|services performed by the developer, or developer's staff||
The services required by this Agreement shall be performed by Developer, or Developer's staff, and Client shall not be required to hire, supervise, or pay any assistants to help Developer.
|responsible for paying all ordinary, necessary expenses of staff||
Developer is responsible for paying all ordinary and necessary expenses of its staff
|no training from the client||
Neither Developer nor Developer's staff shall receive any training from Client in the professional skills necessary to perform the services required by this Agreement.
|full-time not required||
Neither Developer nor Developer's staff shall be required to devote themselves full time to the performance of the services required by this Agreement.
|client shall not provide insurance||
Client shall not provide insurance coverage of any kind for Developer or Developer's staff.
|client shall not withhold developer's compensation normally withheld from an employee's pay||
Client shall not withhold from Developer's compensation any amount that would normally be withheld from an employee's pay.
|nonsolicitation of developer's employees||
Nonsolicitation of Developer's Employees
Client agrees not to knowingly hire or solicit Developer's employees during performance of this Agreement and for a period of after termination of this Agreement without Developer's written consent.
Each party will designate a representative to receive and send materials, approvals, comments, invoices, and other materials discussed in this agreement.
Developer's Representative will be , who can be contacted by email at and by telephone at .
Client's Representative will be , who can be contacted by email at and by telephone at .
|maintenance and new development||
Website Maintenance and New Development
Developer will maintain the Site or provide additional development after its launch according to the terms stated below:
Client will pay Developer within 30 days of receiving Developer's invoice. Client grants to Developer a license to reproduce and modify the Site content to provide these services.
|private dispute resolution||
Attorney Fees and Expenses
If there is litigation, the prevailing party may collect from the other party its reasonable costs and attorney fees incurred in enforcing this Agreement.
The provisions of Sections 16 through 18 will survive any termination of this Agreement.
(a) Complete Agreement: This Agreement, together with all exhibits, appendixes, or other attachments, which are incorporated by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements, and documentation relating to such subject matter.
(b) Modifications to Agreement: Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
(c) Applicable Law: This Agreement will be governed by the laws of the State of .
(d) Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
- When delivered personally to the recipient's address as appearing in the introductory paragraph to this Agreement;
- Three days after being deposited in the United States mails, postage prepaid to the recipient's address as appearing in the introductory paragraph to this Agreement; or
- When sent by fax or electronic mail. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt.
(e) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise between the parties.
(f) Assignment: The rights and obligations under this Agreement are freely assignable by either party. Client shall retain the obligation to pay if the assignee fails to pay as required by this Agreement.
(g) Successors and Assigns: This agreement binds and benefits the heirs, successors, and assigns of the parties.
(h) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement will be interpreted so as best to carry out the parties' intent.
Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures below.
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