Web Development Terms and Conditions
The purpose of this agreement is to establish terms and conditions between AVATAR Computing Inc “AVATAR” of 67 Millbrook St., Worcester, Ma 01606 (“AVATAR”), and the party set forth("Client").
WHEREAS, Client desires to have a website either developed or refreshed by AVATAR ; and
WHEREAS, AVATAR represents that it has the expertise to develop such a website; and
WHEREAS, AVATAR desires to develop website for Client upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth, the parties hereby agree as follows:
1. The following capitalized terms, when used in this Agreement, shall have the meanings ascribed to them in this Section 1:
1.1. “Product” shall mean the website to be developed by AVATAR pursuant to this Agreement in accordance with the Specifications, together with user manuals, other documentation and any other ancillary materials to be developed by AVATAR pursuant hereto.
1.2. “Specifications” shall mean the specifications for the Product as directed by Client, together with any additional specifications or modifications to the specifications that may be agreed to in writing by the parties during the term of this Agreement.
1.3. “Intellectual Property” shall mean all intellectual property other than the Technology owned by AVATAR prior to the Effective Date or licensed to AVATAR by a third party, and used in the development of the Product.
Other capitalized terms shall have the meanings ascribed to them in the body of this Agreement.
2. TERMS AND CONDITIONS:
2.1. DEVELOPMENT OF THE PRODUCT: Client hereby retains AVATAR to design and develop, and AVATAR hereby agrees to design and develop the Product in accordance with (1) the project outline set forth on the Scope of Work (Exhibit A) and/or (2) the Product Specifications (Exhibit B) developed jointly by Client and AVATAR . The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Product Specifications. AVATAR shall be responsible for delivering and performing only those professional services specifically identified in the Product Specifications. Any modifications to the Product Specifications shall be pursuant to the Change Order process set forth below.
2.2. CHANGE ORDERS: In the event Client desires to make any modifications to the Product Specifications or a deliverable, Client must provide a detailed change order in writing. This may be provided in the form of email, certified letter, or via technologies and/or tools provided by AVATAR . In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
2.3. SUPPORT AND MAINTENANCE: Any support and maintenance services, updates, versions, or new releases shall be contracted under a separate agreement between AVATAR and Client. AVATAR shall not use any intellectual property of any third-party in the Product without Client’s written consent.
2.4. CLIENT RESPONSIBILITIES: Client agrees to perform all tasks assigned to Client as set forth in this Agreement, the Product Specifications, or a Change Order, and to provide all assistance and cooperation to AVATAR in order to complete timely and efficiently the Product. AVATAR shall not be deemed in breach of this Agreement, the Product Specifications, a Change Order, or any milestone in the event AVATAR ‘s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth in the Product Specifications, a Change Order, or this Agreement. In the event of any such failure or delay by Client, (i) all of AVATAR ‘s time frames, milestones, and/or deadlines shall be extended by the number of days of Client’s failure multiplied by two (2); and (ii) Client shall continue to make timely payments to AVATAR as set forth in this Agreement, the Product Specifications, and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by AVATAR . Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support operation of the Product. Unless otherwise contracted with AVATAR or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on the Product as well as populating content for the Product.
2.5. PROJECT MANAGERS: Client and AVATAR shall assign a Project Manager for managing the implementation of the Product. The Project Managers shall be responsible for: (i) managing the day-to-day activities under this Agreement, (ii) serving as liaisons between the parties, (iii) assigning and scheduling the appropriate personnel to perform all of the required services under this Agreement, and (iv) authorizing and executing any and all Change Order(s). Client hereby acknowledges and agrees that the Client Project Manager shall have the proper authority and power to execute and perform the duties and responsibilities set forth in this Section. AVATAR hereby acknowledges and agrees that the AVATAR Project Manager shall have the proper authority and power to execute and perform the duties and responsibilities set forth in this Section.
2.6. ASSIGNMENT OF PROJECT: AVATAR reserves the right, and Client hereby agrees, to dedicate time from Client’s employees to this project to insure that the terms of this agreement are met as well as on-time completion.
2.7. MARKETING: Client hereby grants AVATAR the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of AVATAR and a brief scope of services provided. Any use of AVATAR logos or links on Client’s Product must be approved in writing by Client. Either party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other party and such approval shall not be unreasonably withheld.
2.8. COMPATIBILITY: Compatible with all major browsers and responsive to all devices unless otherwise specifically identified in the system specifications or a change order,
3. FEES, EXPENSES, AND PAYMENT.
3.1 EXPENSES: Client shall reimburse AVATAR for reasonable out-of-pocket travel expenses (collectively, “Expenses”), including transportation, lodging, mileage, and meals incurred in rendering AVATAR ‘s professional services. AVATAR shall obtain Client’s prior written authorization before incurring any individual expense. All Expenses not paid directly by Client shall be paid within fourteen (14) days of receipt of AVATAR ‘s invoice. All Expense reimbursements shall be made at AVATAR ‘s direct out-of-pocket costs, without any markup for overhead, administrative costs, or otherwise.
3.2 FEES: Client agrees to pay AVATAR for the completion of the Scope of Work and the fee schedule set forth in accordance with the Proposal.
3.3. TAXES: Client shall pay, reimburse, and/or hold AVATAR harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income taxes, which are levied or imposed by reason of the performance of the professional services under this Agreement or by use of the Product, except income taxes.
3.4. OTHER FEES: Unless otherwise provided in this Agreement or in a Change Order, payment for all other services rendered by AVATAR shall be contracted under a separate agreement between AVATAR and Client.
3.5. FORM OF PAYMENT: All payments made to AVATAR under this Agreement shall be in United States currency in the form of company check or Credit Card.
4. INTELLECTUAL PROPERTY RIGHTS AND LICENSE:
4.1 PRODUCT: All materials, including, but not limited to, graphics, illustrations, photos, logos, software, programs, source code and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof (collectively, the “Products”) developed by AVATAR in connection with the provision of the Services to Client, or jointly by Client and AVATAR , or by AVATAR pursuant to specifications or instructions provided by Client, shall belong exclusively to Client. AVATAR acknowledges that the Products shall be deemed “works made for hire” by AVATAR for Client, and, therefore, shall be the exclusive property of Client. To the extent the Products are not deemed “works made for hire” under applicable law, AVATAR hereby irrevocably assigns and transfers to Client all right, title and interest in and to the Products, including, without limitation, all patent and copyright interests, and agrees to execute all documents reasonably requested by Client for the purpose of applying for and obtaining domestic and foreign patent and copyright registrations.
4.2 PRE-EXISTING INTELLECTUAL PROPERTY: Notwithstanding any provision of this Agreement to the contrary, any routines, methodologies, processes, libraries, tools or technologies created, adapted or used by AVATAR in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the sole property of AVATAR , and Customer shall have no interest in or claim to the Development Tools, except as necessary to exercise its rights in the Products. In addition, notwithstanding any provision of this Agreement to the contrary, AVATAR shall be free to use any ideas, concepts, or know-how developed or acquired by AVATAR during the performance of this Agreement to the extent obtained and retained by AVATAR ’s personnel as impression and general learning. Subject to and limited by Client’s intellectual property rights described in Section 4.1 above, nothing in this Agreement shall be construed to preclude AVATAR from using the Development Tools for use with third parties for the benefit of AVATAR .
4.3 THIRD PARTY LICENSES: In addition to any other fees set forth in this Agreement, Client shall be required to purchase any applicable third party licenses for any third party products that are necessary for
AVATAR to design and develop the Product. Such third party products may include, but are not limited to: server-side applications, clip art, “back-end” applications, music, stock images, hosting fees, or any other copyrighted work which AVATAR deems necessary to purchase on behalf of Client to design and develop the Product. AVATAR shall obtain Client’s prior written consent before incorporating such third party product into the Product. AVATAR shall provide Client with a list of all third party products upon launch of the Product.
5. TERM AND TERMINATION:
5.1 TERM: This Agreement shall be effective as of the Effective Date and shall continue in effect until complete payment of the Development Price or until earlier terminated as provided in this Agreement or until the contracted services as outlined in Exhibit A have been completed.
5.2 TERMINATION FOR CAUSE: 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 thirty (30) days of receipt of the notice.
5.2.1 EFFECT OF TERMINATION: Client shall pay AVATAR for all services rendered and work performed up to the effective date of termination for any reason subject to Client’s rights to only pay fair value if Client terminates for cause. AVATAR shall provide Client with an invoice for the foregoing fees within thirty (30) days of the effective date of the termination. Client shall pay the invoice within fourteen (30) days of receipt.
5.3 RETURN OF PROPRIETARY OR CONFIDENTIAL INFORMATION: Within ten (10) days after the termination or expiration of this Agreement, each party shall return to the other all Proprietary or Confidential Information of the other party (and any copies thereof) in the party’s possession or, with the approval of the party, destroy all such Proprietary or Confidential Information. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts (other thanthe contracts by and between theparties hereto), 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.
6. LIMITED WARRANTIES:
6.1 PRODUCT: AVATAR warrants that for a period of ninety (90) days from launch of the Product, the Product will operate in accordance with all the material terms of the Product Specifications. All warranty claims not made in writing within such period shall be deemed waived. As the sole and exclusive remedy of Client for breach of the foregoing warranty, AVATAR shall, at its option, either correct the nonconformity or refund to Client the dollar amount attributable to the number of actual hours AVATAR spent developing the defective portion of the Product. AVATAR shall not be liable for failures caused by third party hardware or software (including Client’s own systems), misuse of the Product, or the negligence or willful misconduct of Client.
6.2 PERFORMANCE OF PROFESSIONAL SERVICES: AVATAR warrants that the professional services will be performed in a workmanlike and professional manner by appropriately qualified personnel.
6.3. Notwithstanding the above, Client’s exclusive remedies for all damages, losses, and causes of actions whether in contract including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement.
7. LIMITATION OF LIABILITY:
Under no circumstances shall AVATAR , its contracted providers, officers, agents, or anyone else involved in creating, producing, or distributing Client’s Product be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Product; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Client’s records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on said Hosting Service. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE (AS DEFINED IN SECTION 0). THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
8. THIRD PARTY DISCLAIMER:
AVATAR 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.
9. INDEMNIFICATION OBLIGATIONS:
9.1 CLIENT INDEMNITY: Client agrees that it shall defend, indemnify, save and hold AVATAR harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys’ fees, (collectively “Liabilities”) asserted against AVATAR , its contracted providers, agents, Clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to the performance of any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless AVATAR against Liabilities arising out of (i) any injury to any person or property caused by any products sold or otherwise distributed in connection with the Product;
(ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; or (iii) copyright infringement and/or litigation regarding content-related disputes.
9.2 AVATAR INDEMNITY: AVATAR shall indemnify and hold harmless Client (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 Client as a result of any successful claim, judgment, or adjudication against Client arising from a claim that Client’s use of the AVATAR Content, as permitted under this Agreement, infringes Intellectual Property rights of a third party or arising from a claim which results from AVATAR ’s breach of the warranties and agreements contained in this Agreement. To qualify for such defense and payment, Client must: (i) give AVATAR prompt written notice of a claim; and (ii) allow AVATAR to control, and fully cooperate with AVATAR in, the defense and all related negotiations. AVATAR shall have no obligation to indemnify Client under this Section to the extent the infringement arises from (i) the Client Content, (ii) specifications provided by Client or its agents; (iii) derivative works of the Product created by Client, (iv) use of the Product in combination with non-AVATAR approved third party products, including hardware and software, (v) modifications or maintenance of the Product by a party other than AVATAR , (vi) misuse of the Product, and (vii) failure of Client to implement any improvement or updates to the Product, if the infringement claim would have been avoided by the use of the improvement or updates.
9.3 Promptly after receipt by a person entitled to indemnification pursuant to the foregoing Section 9.1 or 9.2 (the “Indemnified Party”) of notice of the commencement of any action, the Indemnified Party will, if a claim in respect thereof is to be or has been made against a party who has agreed to provide indemnification under Section 9.1 or 9.2 (an “Indemnifying Party”), promptly notify in writing the Indemnifying Party of the commencement thereof; but the omission to so notify the Indemnifying Party will not relieve it from any liability which it may have to the Indemnified Party except to the extent the Indemnifying Party is prejudiced by the delay or failure to notify it. In case any such action is brought against an Indemnified Party, and it notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate in, and, to the extent that it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense thereof, subject to the provisions herein stated, with counsel reasonably satisfactory to the Indemnified Party, and after notice from the
Indemnifying Party to the Indemnified Party of its election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party under this Section 9 for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party if the Indemnifying Party has assumed the defense of the action with counsel reasonably satisfactory to the Indemnified Party; provided that the fees and expenses of such counsel shall be at the expense of the Indemnifying Party if (i) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to any such action (including any impleaded parties) include both the Indemnified Party or parties and the Indemnifying Party and, in the judgement of counsel for the Indemnified Party, it is advisable for the Indemnified Party or parties to be represented by separate counsel (in which case the Indemnifying Party shall not have the right to assume the defense of such action on behalf of the Indemnified Party or parties, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the Indemnified Party or parties. No settlement of any action against an Indemnified Part shall be made without the consent of the Indemnifying Party and no Indemnifying Party, in the defense of any such claim or action, shall, except with the consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. If the Indemnified Party fails to execute a release or other settlement agreement under circumstances where all of the conditions of the preceding sentence have been met, the Indemnifying Party shall have no further obligation to the Indemnified Party pursuant to this Agreement or otherwise.
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. 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, AVATAR and Client 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. FORCE MAJEURE:
Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
12. CHOICE OF LAW; VENUE; LIMITATION OF ACTIONS:
This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts and the parties consent to the sole and exclusive jurisdiction of the state courts and U.S. federal courts for any dispute arising out of this Agreement. No action by AVATAR or Client arising under this Agreement may be brought at any time more than two (2) years after the facts occurred upon which the cause of action arose.
13. INDEPENDENT CONTRACTOR STATUS:
The relationship of AVATAR to Client will be that of an independent contractor, and neither AVATAR nor any employee of AVATAR will be deemed to be an agent or employee of Client. It is expressly understood that this undertaking is not a joint venture.
Any written notice or demand required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, and (b) as of five
(5) days after the date of posting if the notice is transmitted by registered or certified mail.
15. ENTIRE AGREEMENT:
This Agreement and all exhibits, schedules, and Change Order(s) set forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. This Agreement may be amended only by a written agreement signed by both parties.
Client and AVATAR 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 Worcester County, Massachusetts 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 Massachusetts 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 Massachusetts 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. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
The following provisions shall survive termination or expiration of this Agreement: Sections 10 (Fees, Expenses, and Payment), 11 (Intellectual Property Rights and License), 12 (Term and Termination), 14 (Disclaimer of Warranties), 15 (Limitation of Liability), 16 (Third Party Disclaimer), 17 (Indemnification obligations) 18 (Confidentiality), 20 (Choice of Law; Venue; Limitation of Actions), 24 (Disputes), and 27 (Survival).
Unless indicated otherwise, all references to “days” shall mean calendar days.
This Agreement shall not be binding upon AVATAR until it has been signed by an officer of AVATAR .