A. Developer has experience and expertise in the development and hosting of web sites.
B. Customer desires to have Developer produce and/or host a web site to meet its needs.
C. Developer desires to develop and/or host the Customer’s web site (the “Web Site”) on the terms and conditions set forth herein.
Agreements In consideration of the mutual covenants set forth in this Agreement, Customer and Developer hereby agree as follows:
1. Development. Developer agrees to develop the Web Site according to the terms specified herein and listed on Exhibit A attached hereto (the “Specifications”).
2. Hosting. Developer agrees to host the Web Site according to the terms set forth herein and in Exhibit B attached hereto.
3. Compensation. Customer shall pay Developer the fees (the “Fee”) for the development and hosting services in accordance with the terms set forth in Exhibit A and Exhibit B, respectively. Customer shall provide Developer with Customer’s payment information prior to Developer commencing services (which may be in the form of the authorization form set forth on Exhibit C attached hereto). In the event Customer fails to make any of the payments when due, and does not cure such failure within fifteen (15) days after receiving written notice of such failure, Developer has the right, but is not obligated, to pursue any or all of the
following remedies: (1) terminate the Agreement, (2) remove content from servers owned by Developer, and/or (3) bring legal action. Refunds. There shall be no refunds of the Fee unless otherwise provided herein.
4. Term. This agreement shall commence on the Effective Date and shall expire when the development and/or hosting services have been completed and Customer has paid the Fee in full. Notwithstanding the foregoing, this Agreement may be terminated by either party upon fifteen (15) days written notice to the other party in the event of a breach of a material provision of this Agreement by the other party, provided that the breaching party fails to cure such breach during within the 15-day period following receipt of written notice of the breach.
5. Website Delivery and Ownership Rights. If Customer is requesting development services hereunder, Developer will use reasonable diligence in the development of the Web Site and its commercially reasonable efforts to deliver to Customer an operational Web Site no later than the date set forth on Exhibit A. Customer acknowledges, however, that this delivery deadline is an estimate and is not a required delivery date. Customer shall retain all of its intellectual property rights in any text, images or other components or ideas it owns and transmits to Developer for use in the Web Site. Subject to Customer’s payment of the Fee in full,
Customer shall (i) hold the copyright for the version of the Web Site as delivered, together with any subsequent modifications to the Web Site, and (ii) retain the right to move the Web Site to other host servers not owned by Developer. Customer agrees not to copy or multiply the Web Site code or other content owned by Developer, nor create other web sites based in whole or substantial part on code or content owned by Developer, except as expressly provided for in this Agreement. Subject to the preceding provisions, Developer shall hold all right, title, and interest, including copyrights, in and to the source code, object code, programming, and original artwork created for the Web Site.
6. Confidentiality. Customer acknowledges and agrees that the Specifications and all other documents and information
related to the development of the Web Site, other than any such Specifications, documents and information provided by Customer (the
“Confidential Information”) will constitute valuable trade secrets of Developer. Developer acknowledges and agrees that all nonpublic
information pertaining to any of Customer’s customers or Customer’s business shall constitute the valuable trade secrets of
Customer and shall be deemed “Confidential Information” herein. Each party shall keep the other party’s Confidential Information in
confidence and shall not, at any time during or after the term of this Agreement, without the other party’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded
from the “Confidential Information” definition is anything that can be seen by the public on the Web Site when each page of the Web Site is first accessed and any other information that is publicly available or known.
7. Limited Warranty and Limitation on Damages. Developer warrants that the Web Site will conform to the
Specifications. If the Web Site does not conform to the Specifications, Developer shall be responsible to correct the Web Site without unreasonable delay, at Developer’s sole expense and without charge to Customer, to bring the Web Site into conformance with the Specifications. This warranty shall be the exclusive warranty available to the Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Developer does not warrant that the Web Site will work on all platforms. Customer
acknowledges that Developer is not responsible for the results obtained by the Customer on the Web Site. Company also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by the Customer, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Customer. Except in connection with any of Developer’s indemnification or confidentiality obligations, Customer waives any claim for damages, whether direct, indirect, consequential, or remote, except that Customer’s sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Developer as set forth in Exhibit A and Exhibit B attached hereto.
8. General Provisions
(A) Entire Agreement. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both of the parties hereto.
(B) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Exclusive jurisdiction and venue shall be in the Los Angeles County, California superior courts or, if applicable, in the Federal courts located in Los Angeles County, California.
(C) Binding Effect. This Agreement shall be binding upon and inure to the benefit of Customer and Developer and their respective successors and assigns, provided that neither party may assign any of its obligations under this Agreement without the other
party’s prior written consent.
(D) Waiver. The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
(E) Good Faith. Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
(F) Right to Remove Web Site. Without limiting any of Developer’s remedies hereunder, in the event Customer fails to pay the Fee within the time prescribed in Exhibit A, upon expiration of the 15-day cure period set forth above, Developer has the right to remove the Web Site until payment in full is paid.
(G) Indemnification. Each party warrants that all content provided for use on the Web Site is legally owned or licensed to such party. Each party (the “Indemnifying Party”) agrees to indemnify and hold the other (the “Indemnified Party”) harmless from any and all claims brought by any third party relating to any aspect of the Web Site provided or caused by the Indemnifying Party, including, but without limitation, any and all demands, liabilities, losses, costs and claims including reasonable attorney’s fees arising out of injury caused by Customer’s products/services, material supplied by Customer or Developer, copyright infringement, and
defective products sold via the Web Site. Further, each Indemnifying Party agrees to indemnify, subject to any applicable provisions herein, the Indemnified Party from responsibility for problems/disruptions caused by 3rd party services that the Indemnifying Party may use, such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of the Web Site or multimedia project.
(H) Use of Web Site for Promotional Purposes. Customer grants Developer the right to use the Web Site for promotional purposes and/or to cross-link it with other web sites developed by Developer, provided that Developer first obtains Customer’s prior written consent with respect to each such use, which consent shall not be unreasonably withheld.
(I) Right to Make Derivative Works. Developer has the exclusive rights in making any derivative works of the Web Site while the Web Site is hosted by Developer.
(J) Attorney’s Fees. In the event any party to this Agreement employs an attorney to enforce any of the terms of the agreement, the prevailing party shall be entitled to recover its actual and reasonable attorney’s fees and costs, including expert witness fees.
(K) Identification of Developer. Customer agrees that Developer’s identification may be annotated within the code or, to the extent approved by Customer, on the Web Site as the authors. Customer consents to the placement of Developer’s copyright notices on the Web Site code as necessary to protect Developer’s copyrights in the code and other protected content owned by Developer.
(L) No responsibility for loss. Developer is not responsible for any down time, lost files, improper links, or any other losses that may occur in the operation of the Web Site, except to the extent caused by Developer’s failure to comply with industry standard practices, nor shall Developer be held liable for any remote, consequential, or special damages resulting from downtime, lost files, or the inability to access or operate Customer’s Web Site.
(M) Domain Name. Customer shall maintain ownership of any domain name(s) owned by Customer and supplied to developer for development of Web Site. Any domain name(s) registered on Customer’s behalf will be made in Customer’s name for both the billing and administrative contacts. The technical contact is generally required to be the hosting ISP. Developer will not register domain names in Developer’s name. Customer shall retain the right to move domain name(s) owned by Customer to other host servers not owned by Developer after the expiration of hosting agreement between Developer and Customer. Customer shall
retain the right to establish other domain names that, when accessed by users, will redirect web traffic to the Web Site.
(N) All provisions in this Agreement regarding the protection of confidential information or regarding any indemnification
obligations shall survive any termination or expiration of this Agreement.