Website Design and Marketing Services
Last Updated: Thursday, 28 July 2016 00:38
This Agreement (this “Agreement”) is entered into by and between Thirsty Solutions, LLC DBA Web Page Tech ("Web Page Tech") and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Web Page Tech’s services (the “Services”), and represents the entire agreement between you and Web Page Tech concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our other Terms of Service Agreements at https://webpagetech.com/index.php/en/terms-of-service, which are incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.
The terms "Consultant", "Host", "Parent", "Registrar". "Designer", "we", "us" or "our" shall refer to Web Page Tech. The terms "Client", "customer", "you", "your", "Registrant" or "User" shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
This Agreement between you and the Registrar of the Domain Name, or .NAME Defensive Registration, or .NAME Mail Forward (the "Order") that you have registered/reserved through or transferred to Registrar, sets forth the terms and conditions of Registrar's domain name registration service and other associated services as described herein.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
1. Description of the Services. The Designer will design a website (the “Website”) for the Client by providing the design and programming services listed on the Client’s initial Quote (the “Services”) in a professional and timely manner. The Client may modify the scope of the Services by requesting a additional quote for the desired changes. The quote will explains the changes and the adjustment to the payment of the Services that will result from such changes. Such change order shall become effective when the Client excepts the Quote or an invoice is posted.
The Designer shall perform the following services:
a) Setup any hosting services required for the website
b) Design the website as specified by the Client
c) Update the website content and third party website content as specified by the Client
d) Project duties as specified in the Client’s Quotes/Invoices.
(a) Labor Fee.
The Client and Designer will agree upon project scope and payment milestones/schedule before the project start. Quotes and/or invoices will be made specifying the work to be done and the payment schedule.
The Project work will start when the first invoice is paid.
The Designer’s fee is payable in accordance with the Designer’s billing invoice.
(b) Late Fee.
A late fee may apply if a customers invoice payment exceeds the due date.
4. Ownership Rights. The Client 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 Designer, including systems, computer programs, operating instructions, unique design concepts, other documentation developed for or specifically relating to the Client, information processing, all of the Client’s source documents, stored data and other information of any kind, and reports and notes prepared by the Designer, will be “works for hire” under applicable United States copyright laws, and therefore the property of the Client. Such work may not be used by the designer for any other purpose except for the benefit of the Client. Upon request, any and all such property shall be delivered to the Client. Upon request, the Designer shall sign all documents necessary to confirm or perfect the exclusive ownership interests of the Client.
5. Designer Ownership Rights and Grant of License. Notwithstanding any other provision of this Agreement, the Services will/may include some programming code that the Designer has previously developed for its own use (the “Designers Prior Code”). The Designer expressly retains full ownership of such code, including all associated rights to use such code. However, the Designer also grants to the Client and its users a perpetual, nonexclusive license to use the Designer’s Prior Code. A copy of a listing of the specific computer files that comprise the Designers Prior Code will be provided to the Client upon request after completion of the Services. Any programming that includes the Designer’s Prior Code shall include such copyright notices regarding the Designers Prior Code as the Designer may require.
6. Confidentiality. The Designer will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Designer, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know how and confidential information). The Designer will protect such information and treat it as strictly confidential. This provision shall continue to be effective until after the termination of this Agreement. Upon request, the Designer will return to the Client all records, notes, documentation, and other items that were used, created, or controlled by the Designer during the term of this Agreement. The Client or Designer may seek and obtain injunctive relief against the release or threatened release of such information in addition to any other legal remedies which may be available.
7. Independent Contractor. The Designer is an independent contractor with respect to its relationship to the Client. Neither the Designer nor the Designer’s employees are or shall be deemed for any purpose to be employees of the Client. The Client shall not be responsible to the Designer, the Designer’s employees, or any governing body for any payroll taxes related to the performance of the Services.
8. Promotion. The Designer will not use the names, trademarks, service marks, symbols or any abbreviations of the Client, without the prior written consent of the Client.
9. Warranty - Designer. The Designer warrants to the Client that all software programming, web pages, CD-ROMS, Flash Drives, and materials delivered to the Client in connection with the Services are free from defects in materials and faulty workmanship under normal use, and that the Website will operate properly with all widely used web browsers. During the Designer’s recommended beta testing period and for a 30 day period following completion of beta testing, the Designer will correct any software anomalies (“Bugs”) that occur because of defects in the source code included in the software. After such time, the Designer will make changes on a fixed hourly rate or a negotiated fixed quote basis. While no website is able to guarantee bugfree results, the Services will be provided in a workmanlike manner within local industry standards and tolerances for commercial applications. This warranty does not cover items damaged, modified or misused after delivery to the Client.
10. Design Team. The Designer will use only qualified personnel to provide the Services (the “Design Team”). The Designer reserves the right to make changes to the Design Team at its sole discretion and will provide notice of any anticipated change and a reasonable explanation for the change. Orientation of replacement personnel shall be at the Designer’s expense.
11. Warranty - Intellectual Property Rights. The Designer represents and warrants that it has the unencumbered right and power to enter into and perform the Agreement and that the Designer is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of the third parties in or to any programming or materials included by the Designer in the Services or trade names related to the Services. In the event of any claim, charge, suit or proceeding by any third party against the Client alleging such infringement, the Designer shall defend such claim, charge, suit or proceeding. The Designer shall indemnify and hold the Client harmless from and against any loss, cost, damage or expense (including attorney fees and legal expenses) incurred by the Client that may result by reason of any such claim, charge, suit or proceeding. The Client shall have the right, if it so desires, to be represented in any such claim, charge, suit or proceeding by counsel. If any of the programming or materials included by the Designer in the Services becomes subject of an infringement suit, the Client may terminate this Agreement and shall be entitled to a refund of any payments that it has made to the Designer under this Agreement. This indemnity shall not apply to materials provided by the Client as contemplated by the following paragraph.
12. Warranty - Client. The Client represents and warrants to the Designer that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion in the Website, and the the Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Client shall indemnify and hold the Designer harmless from all losses and claims, including attorney fees and legal expenses, that may result by reason of claims by third parties related to such materials.
13. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
14. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
15. Indemnity. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorneys fees, costs and expenses resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement.
16. Termination. This Agreement and the contracting of the Designer may be terminated:
a. By the Designer at any time after 30 days following the beta testing period. The Designer may terminate this Agreement at its sole discretion upon the occurrence of one or more of the following events:
i. failure to comply with any provisions of the Agreement upon receipt of written notice from the Designer of said failure,
ii. appointment of Receiver or upon the filing of any application by Client seeking relief from creditors,
iii. upon mutual agreement in writing of Designer and Client. In the event of such termination, the Client shall be obligated to pay only for services provided by the Designer and for expenditures incurred.
b. By the Client at any time by providing Sixty (60) days advance notice. In the event of such termination, the Client shall be obligated to pay only for services provided by the Designer and for expenditures incurred.
17. Termination on Default. If a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 14 business days from the effective date of such notice to cure the default(s). 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.
18. Attorneys Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs.
19. Taxes. The Client 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 Client shall provide the Designer with a certificate acceptable to the taxing authorities exempting the Client from payment of such taxes.
20. Severability. If any provision of the Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
21. Governing Law / Forum. This Agreement shall be construed in accordance with the internal laws of the State of Texas, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of Texas, and both parties expressly consent to jurisdiction on such courts.