Website Design & Development Agreement
This Website DEVELOPMENT AGREEMENT ("Agreement") is an agreement between Expobusiness Graphic Center, Corp. ("The Company" ) and the party set forth in the related order form ("The Owner" or "you") incorporated herein by this reference (together with any subsequent order forms submitted by the Owner, the "Order") and applies to the purchase of all services ordered by the Owner 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.
Please read this agreement carefull
BY PURCHASING SERVICES YOU CREATE A CONTRACT BETWEEN THE OWNER AND THE COMPANY, CONSISTING OF THE ORDER (THE APPLICABLE SERVICE DESCRIPTION) AND THIS AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING THE COMPANY'S USAGE POLICIES. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
A. Description of the Services. The Company will design a Website ("the Website") for the Owner by providing the design and programming services listed on the Order in a professional and timely manner. The parties may at any time modify the scope of the Services by including desired changes in a written "Change Order" that explains the changes and the adjustment to the payment for the Services that will result from such changes. Such change order shall become effective when signed and dated by both parties.
B. Design Team. The Company will use only qualified personnel to provide the Services (the "DesignTeam"). The Company reserves the right to make changes to the DesignTeam in its sole discretion.
2. THE COMPANY'S RESPONSIBILITIES
A. Scope of Work. The Owner hereby retains the services of The Company to design The Website for The Owner in accordance with the Order.
B. 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 The Owner and The Company ("Change Order"). The Company agrees to notify The Owner promptly of any factor, occurrence, or event coming to its attention that may affect The 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.
3. THE OWNER'S RESPONSIBILITIES
The Owner agrees to perform all tasks assigned to The Owner as set forth in this Agreement or a Change Order, and to provide all assistance and cooperation to The Company in order to complete The Website in a timely and efficient manner. The Company shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event The Company's failure to meet its responsibilities and time schedules is caused by The Owner'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 The Owner (i) all of The Company's time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) The Owner shall continue to make timely payments to The Company as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by The Company. The Owner shall be responsible for making, at its own expense, any changes or additions to The Owner's current systems, software, and hardware that may be required to support operation of the Website. Unless otherwise contracted with The Company or reflected in a Change Order, The Owner shall be responsible for initially populating and then maintaining any databases on the Website as well as providing all content for the Website. With the execution of a Change Order specifically asking The Company to assesses the The Owner's systems, software and hardware from time to time, The Company may agree to perform this function at normal The Company rates.
4. TERM / SCHEDULING AND TERMINATION
A. Term of Agreement. This Agreement shall be effective as of the date set forth on the Order and shall remain in force until seven (7) days after completion of the last Stage as set forth in the applicable Order. The Company cannot guarantee the Delivery Date but will use commercially reasonable efforts to satisfactorily complete the Services in an efficient and timely manner. The term "satisfactory completion" of the Services means when the software and documentation developed for The Website performs to the specifications set forth on the Order.
B. Termination. Either party may terminate this Agreement at any time by providing fourteen (14) days advance written notice. In the event of such termination, the Owner shall be obligated to pay only for actual services provided by The Company and for expenditures incurred with the Owner's approval. Unless otherwise terminated, this Agreement will terminate upon completion of the Services.
C. Termination on Default. 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 fourteen (14) days of receipt of the notice. Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement. This Agreement may be terminated by The Company immediately if: (i) The Owner fails to pay any fees hereunder; or (ii) if The Owner fails to cooperate with The Company or hinders The Company's ability to perform the Services hereunder.
5. FORCE MAJEURE
Neither party will be liable for, nor 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. Website DESIGN
A. Design. The design of the Website shall be in substantial conformity with the material provided to The Company by The Owner. Website consultation will be provided according to the number of Stages outlined for the plan purchased in the Order. The Owner will provide direction to The Company by accessing the The Company's email address and delivering content for Website construction thereby. Website text will be supplied by the The Owner unless copywriting services have been purchased. Development of web pages will take place on the The Owner's established web hosting service with The Company. All server technical issues are to be handled by The Company unless otherwise noted amongst all parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. This does not include adding features beyond the scope of the Order. The Company shall not include, as determined in its sole discretion, any of the following in the Website or in The Owner's directory on The Company's Web Server: text, graphics, sound, or animations that might be viewed as obscene or related in any way to any illegal activities; links to other we sites that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by The Owner); invisible text, metatags (i.e., text that is present only when a "Webcrawler" or other Web indexing tool accesses the Website), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.
B. Stages. The Owner understands that submissions for Website development are limited to the number of stages as provided in the Order. The Owner is encouraged to provide as much instruction and direction as possible with each submission.
C. Accessibility of Website During Construction. Throughout the construction of the prototype and the final Website, the Website shall be accessible to The Owner through a temporary URL.
D. Completion Date. The Company and the The Owner shall work together to complete the Website in a commercially reasonable manner. The Owner must supply The Company complete text and graphics content all web pages contracted for within two (2) weeks of the date of the Order unless otherwise noted. If The Owner has not submitted complete text and graphics content within three (3) weeks after the Order, an additional continuation fee of ten percent (10%) of the total Order price will also be assessed each month until the Website is published.
E. Copyright to Website & Ownership Rights
i. Owner's Ownership Rights. Owner will own all of its proprietary information as included in the Services, as well as all source code, object code, screens, documentation, digital programming, operating instructions, design concepts, content, graphics, domain names, and characters. All Services provided by The Company, including systems, computer programs, operating instructions, unique design concepts, other documentation developed for or specifically relating to the Owner' information processing, all of the Owner' source documents, stored data and other information of any kind, and reports and notes prepared by The Company, will be "works for hire" under applicable Canada copyright laws, and therefore the property of the Owner. Such work may not be used by The Company for any other purpose except for the benefit of the Owner. Any and all such property shall be delivered to the Owner on request by the Owner. Upon request, The Company shall sign all documents necessary to confirm or perfect the exclusive ownership interests of the Owner.
ii. Designer's Ownership Rights and Grant of License.
Notwithstanding any other provision of this Agreement, the Services will/may include some programming code that The Company has previously developed for its own use (the "Designer's Prior Code"). The Company expressly retains full ownership of such code, including all associated rights to use such code. The 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. However, The Company also grants to the Owner and its users a perpetual, non-exclusive license to use The Company's Prior Code. A copy of a listing of the specific computer files that comprise The Company's Prior Code will be provided to the Owner upon completion of the Services. Any programming that includes The Company's Prior Code shall include such copyright notices regarding The Company's Prior Code as The Company may require.
The 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.
This Agreement does not provide Website maintenance unless a Website maintenance plan is purchased. If the The Owner or an agent other than The Company attempts updating The Owner's pages, THEN time to repair web pages will be assessed at an hourly rate. Changes requested by the The Owner beyond those limits will be billed at the hourly rates set forth in the Order. This rate shall also govern additional work authorized beyond the maximums specified in the Order for such services as web page design, editing, modifying product pages and databases in an online store, and art, photo, graphics, or any other services.
8. FEES / TAXES
A. Development Fee. The total price for all of the work set forth in the Agreement (excluding post-approval modifications not implemented by The Owner) shall be set forth in the Order (the "Development Fee"). This price covers all work for the Order. Unless otherwise stated in the Order, the Development Fee to The Company is due and payable upon placing the Order and The Company shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution.
B. Taxes. The Owner shall pay the amount of any sales, use, excise or similar taxes applicable to the performance of the Services, if any, or, in lieu of such payment, the Owner shall provide The Company with a certificate acceptable to the taxing authorities exempting the Owner from payment of such taxes.
A. Company Indemnity. In performing services under this Agreement, The Company agrees not to design, develop, or provide to The Owner 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 The Company becomes aware of any such possible infringement in the course of performing any work hereunder, The Company shall immediately so notify The Owner in writing. The Company agrees to indemnify, defend, and hold The Owner, 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 (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables, other than The Owner's responsibilities and The Owner Content. This indemnification shall include attorney's fees and expenses, unless The Company defends against the allegations using counsel reasonably acceptable to The Owner. The Company's total liability under this Agreement shall not exceed the amount of the Development Fee derived by The Company under this Agreement.
B. Owner Indemnity. The Owner shall indemnify and hold harmless The Company (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 The Company as a result of any claim, judgment, or adjudication against The Company 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 The Owner to The Company (the "The Owner Content"), or (b) a claim that The Company's use of the The Owner Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, The Company must: (i) give The Owner prompt written notice of a claim; and (ii) allow The Owner to control, and fully cooperate with The Owner in, the defense and all related negotiations.
10. REPRESENTATIONS AND WARRANTIES
A. The Company makes the following representations and warranties for the benefit of The Owner:
i. No Conflict. The Company 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 The Company under this Agreement and the Order. The Owner understands that The Company may be currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with The Company's obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
ii. Conformity, Performance, and Compliance. The Company represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML conventions; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) The Company will perform all work called for by this Agreement in compliance with applicable laws. The Company will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of The Owner's Website, and otherwise will repair the defect within 24 hours, said repairs to be free of charge to The Owner. This warranty shall extend for the life of this Agreement. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of The Company.
iii. Disclaimer of All Other Warranties. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE Website WILL MEET THE The Owner'S REQUIREMENTS OR THAT THE OPERATION OF THE WEB PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND Website IS WITH The Owner. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER 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. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
iv. 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 The Owner HEREUNDER. The 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.
B. The Owner makes the following representations and warranties for the benefit of The Company:
iv. Indemnification. The Owner represents to The Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to The Company for inclusion in the Website are owned by The Owner, or that The Owner has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend The Company and its subcontractors from any claim or suit arising from the use of such elements furnished by The Owner.
ii. Tax Compliance. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Owner agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend The Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from The Owner's exercise of Internet electronic commerce.
iii. 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, or financial information. 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, The Company and The Owner acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
11. RELATIONSHIP OF PARTIES
A. Independent Contractor. The Company, 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. The Company shall be solely responsible for and shall hold The Owner harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers' compensation.
B. No Agency. The Owner does not undertake by this Agreement, the Order or otherwise to perform any obligation of The Company, whether by regulation or contract. In no way is The Company to be construed as the agent or to be acting as the agent of The Owner in any respect, any other provisions of this Agreement notwithstanding.
12. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the addresses listed in the Order mailed by certified, registered or express mail, return receipt requested or by Federal Express.
B. 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.
13. JURISDICTION / DISPUTES
A. Arbitration. The Owner and The Company 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 Edmonton, Alberta and in accordance with the Commercial Arbitration Rules of the Alberta Arbitration and Mediation Society. The Parties all consent to the jurisdiction of such arbitration, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the Alberta Arbitration and Mediation Socieyt 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 provincial courts of Alberta 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 Province of Alberta 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.
B. Secondary Legal Remedy. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court in the Province of Alberta. Venue shall be in a court of competent jurisdiction in the Province of Alberta and both parties expressly consent to jurisdiction in such courts
C. Attorney Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.
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.
The Owner may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of The Company. The Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
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.
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. RIGHT TO REFUSE SERVICE
The Company, in its sole discretion, reserves the right to refuse web design & development services to anyone, with or without stated cause.
20. READ AND UNDERSTOOD
The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Order. Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions. The Owner warrants that their representative who purchases the Order is the duly authorized by all necessary and appropriate corporate actions to execute this Agreement.