Developer and Client agree as follows:
RETENTION OF DEVELOPER.
Client hereby retains the services of Developer for the Web Project to be published on Client’s account on an Internet Service Provider (ISP)/Web Presence Provider (WPP) computer (Hosting Service), or provided on disk at Client’s option.
Client understands and agrees that any web hosting services require a separate contract with a web hosting service. Weismann Web can optionally be this web hosting service. Client agrees to select a web hosting service which allows Developer full access to the website or to use Developer’s web hosting services.
RELATIONSHIP OF PARTIES.
It is understood by the parties that Developer is an independent contractor with respect to Client, and not an employee of Client. Client will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of Developer.
WORK PRODUCT OWNERSHIP.
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively, the “Work Product”) developed in whole or in part by Developer in connection with the Services shall be the exclusive property of Client. Client agrees that until Client pays Developer in full, Client will not acquire the rights or license to use or transfer ownership of any Work Product that Developer creates for Client under this Agreement. Upon request, Developer shall sign all documents necessary to confirm or perfect the exclusive ownership of Client to the Work Product.
All displays or publications of the Work Product shall bear accreditation notice in Developer’s name in the form, size and location as incorporated by Developer in the Work Product, or as otherwise directed by Developer. Developer retains the nonexclusive, perpetual and worldwide right to display, reproduce and distribute the Work Product in Developer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits, solely for the purpose of promoting or exemplifying Developer’s work, and the right to be credited with authorship of the Work Product in connection with such use.
LAWS AFFECTING ELECTRONIC COMMERCE.
Client agrees that Client is solely responsible for complying with laws, taxes, and tariffs that governments enact and fix from time to time in connection with Internet electronic commerce, and shall indemnify, hold harmless, protect, and defend Developer and its subcontractors from any cost, claim, suit, penalty, tar, or tariff, including attorneys’ fees, costs, and expenses, arising from Client’s exercise of Internet electronic commerce.
Developer will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Developer, or divulge, disclose, or communicate in any manner any information that is proprietary to Client. Developer will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement. Upon termination of this Agreement, Developer will return to Client all records, notes, documentation and other items that were used, created, or controlled by Developer during the term of this Agreement.
Term and Termination.
Unless terminated as provided herein, this Agreement will extend to and terminate upon completion of the Services. Client may terminate this Agreement without cause upon ten (10) days written notice. In the event of termination without cause, Client agrees to pay Developer for all Services performed up to the date of termination. Either party may terminate this agreement for material breach, provided, however, that the terminating party has given the other party at least twenty (20) days written notice of and the opportunity to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that 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.
No amendment, waiver, or discharge of any provision of this Agreement shall be effective against Client or Developer without the written consent of both Client and Developer.
Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, to the addresses mentioned above.
Client and Developer agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Albany County, New York and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of New York sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of New York or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees and shall include a written record of the arbitration.
Client may not assign this Agreement or the rights and obligations the re under 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.
FEEDBACK AND ACCEPTANCE.
Client agrees, that Developer cannot complete work for Client or meet agreed upon milestones unless Client gives timely feedback. Client agrees to provide timely feedback so that Developer can understand Client concerns, objections or corrections, and Client promises not to unreasonably withhold acceptance of the deliverable Developer will provide Client at each milestone. Developer and Client agree to the following acceptance process: Developer will test the website that Developer creates for Client to make sure that it’s working properly. In turn, Client promises that Client will evaluate the deliverable Developer provided to Client at each milestone listed in Description of Services and let Developer know in writing, within forty eight (48) hours after Client receives each deliverable, whether Client accepts or rejects it. If Client rejects a deliverable, Developer will correct any errors and again ask Client to accept or reject the corrected deliverable – which Client promises to do within forty eight (48) hours after Client receives the corrected deliverable. When Developer delivers the final files to Client and completes work for Client under this Agreement, Client agrees that Client will test the website in its entirety to determine if Developer completed the work promised Client. Client promises to let Developer know in writing within seven (7) calendar days after Developer delivers the final files whether Client accepts or rejects the final files. If Client rejects the final files, Developer will correct any errors and again ask Client to accept or reject the corrected deliverable – which Client promises to do within seven (7) calendar days after Client receives the corrected deliverable. This process shall continue until Client accepts the deliverable or seven (7) calendar days have passed and Client has not accepted or rejected a deliverable (at which point it will be deemed accepted). Finally, Client agrees that Developer work on this project will be complete and the Agreement will end after Client has approved the final files.
Client shall indemnify and hold harmless Developer (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, 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 (a) 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 Client to Developer (the “Client Content”), or (b) a claim that Developer’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Developer must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
LIMITATIONS OF REMEDIES.
Developer shall not, under any circumstances, be liable to Client for consequential, indirect, incidental, special, punitive, or exemplary damages or losses arising out of or related to this agreement, even if Developer is advised of the likelihood of such damages occurring. Developer’s cumulative liability for any damages arising out of or in any manner related to this agreement including, but not limited to, claims for breach of contract, breach of warranty, negligence, strict liability, or tort, shall be limited to the amount of the fee paid by Client to Developer under this agreement.
This Agreement shall be governed by the laws of the State of New York.