Agreement for the Design of a Web Site

Agreement for the Design of a Web Site

Agreement made on the day of , , (the Effective Date)

between of , referred to herein as Designer, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Owner.

Owner and Designer are sometimes referred to collectively in this Agreement as the Parties.

Whereas, Owner desires to engage Designer to develop, create, test, and deliver electronic documents implemented in the latest version of Hypertext Markup Language (HTML) for the purpose of establishing a site for Owner on the World Wide Web (the Web Site);

Now, therefore, in order to carry out these purposes, the Parties agree as follows:

I. Definitions

A. Browser.

The term Browser refers to a program used to provide interactive, graphic access to sites on the World Wide Web.

B. Excluded Material.

See Subparagraph C of Paragraph V of this Agreement.

C. Internet.

The term Internet refers to the global network of computers using the TCP/IP protocol for communication.

D. Owner's Material.

See Subparagraph A of Paragraph II of this Agreement.

E. Web.

The term Web refers to the World Wide Web. The Web is a graphic interface used to access sites on the Internet.

F. Web Site Material.

See Paragraph V of this Agreement.

II. Development of Web Site

A. Material to be Supplied by Owner.

Owner will supply to Designer all text, graphics, and other content to be included in the Web Site (Owner's Material). Textual material may be supplied in format. Graphic material may be provided in any of the following formats: GIF, JPEG, BMP, or MPEG format. Owner's Material may be delivered to Designer by any of the following means: floppy disk; e-mail attachment; or File Transfer Protocol (FTP).

B. Designer's Adaptation of Material.

Designer will translate and adapt Owner's Material into the latest version HTML format to substantially conform to the mock-up Web pages attached as Exhibit A.

C. Use of Hidden Text.

Without prior written permission from Owner, Designer will not include any hidden or invisible text, commands, code, programming, or other material in the Web Site. Hidden text used for purposes of Web indexing (such as Meta Tags) will contain the following keywords: .

D. Access to Site during Construction.

During development of the Web Site, Designer will make the site available for review by Owner at: . Designer will assign a password to the site to prevent unauthorized persons from reviewing its contents. Designer will provide Owner with the password. Designer will not disclose the password to any other person unless directed to do so in writing by Owner. Designer will periodically monitor access to the Web Site during development and promptly notify Owner if it appears there has been unauthorized access. Designer will not remove the password from the Web Site until directed to do so in writing by Owner.

E. Schedule for Completion of Web Site.

Development of the Web Site will proceed according to the milestones set forth in Exhibit B.

F. Delivery of Web Site.

Within days of completion of the final milestone in Exhibit B, Designer will deliver the Web Site in both printed and electronic format to Owner. The electronic version of the Web Site will be delivered on floppy disk or via e-mail or FTP, at Owner's sole option. At the time of delivery, Designer will provide Owner with a list of all hypertext links included in the Web Site along with a written confirmation that the links have been confirmed as current and accurate.

G. Final Acceptance.

Within days of receipt of the printed and electronic versions of the Web Site, Owner will notify Designer of any changes required to bring the Web Site into conformance with the specifications set forth in Exhibit A. Designer will have days from the date of notification of the changes to implement the changes. Within days of receipt of the revised Web Site, Owner will notify Designer of any problems with the changes. Designer will have days from the date of notification of the problems to correct the problems. This process will continue in -day intervals until Owner gives written notification to Designer of final acceptance of the Web Site or the Agreement is terminated.

H. Retention of Backup Copy.

Designer will maintain a backup copy of the entire Web Site for a period of from the date of final acceptance of the Web Site by Owner. At the expiration of the or upon termination of this Agreement prior to final approval, Designer will destroy all of its copies of the Web Site, including electronic and printed formats and all backup copies.

III. Compensation

A. Total Price.

The total price for all work done in connection with this Agreement is $ (the Total Price). The Total Price will be paid in installments as set forth in Exhibit B. As each installment becomes due, Designer will submit an invoice to Owner. Invoices will be paid within of receipt. In the event of a dispute regarding whether a milestone was reached and whether a payment became due, Owner will not be under an obligation to pay the amount purportedly due until the dispute is resolved.

B. Termination before Final Acceptance.

If this Agreement is terminated before final acceptance of the Web Site, Designer will be paid for all work completed up to the date of termination that conforms to the specifications in Exhibit A.

IV. Publicity

A. Site Publicity.

Within days of the date of final completion of the Web Site, Designer will provide Owner with a list and description of at least Internet search engines and directories that may be appropriate for the Web Site. Owner, in Owner's sole discretion, may select any or all of the search engines and directories identified by Designer for submission of the Web Site. Designer will submit the Web Site to the search engines and directories selected by Owner within days of receipt of the selection list.

B. Designer Credit.

For a period of from the date of final acceptance of the Web Site, Owner will include an acknowledgments page on the Web Site. The acknowledgment page will credit Designer as the developer of the Web Site and provide a link to Designer's home page on the Web. Owner will have full discretion as to the format of the credit. Designer will be responsible for providing Owner with information for the credit and for updating that information as reasonably needed. Including a credit for Designer on the Web Site does not confer on Designer any copyright, trademark, or other proprietary interest or right in the Web Site or any portion of it.

V. Ownership of Web Site and Rights

A. The term Web Site Material includes, but is not limited to, all text, graphics, video, audio, programming, code, algorithms, scripts, and applets constituting the Web Site. Designer agrees and understands that its creation and authorship of the Web Site Material constitutes a work made for hire, as that term is defined in Section 101 of Title 17 of the United States Code (the Copyright Act).

B. Assignment of Copyrights.

If all or part of the Web Site Material is, for any reason, deemed not to be a work made for hire, Designer agrees to execute all documents necessary to transfer to Owner the ownership of any and all rights, including but not limited to copyrights, that Designer may have in the Web Site Material.

C. Waiver of Moral Rights.

To the extent that Designer has any moral rights or similar rights in the Web Site Material under the law of any jurisdiction, Designer expressly waives those rights. Except as provided in Subparagraph B of Paragraph IV of this Agreement, Designer waives any right to have the Web Site Material attributed to Designer or to prevent the Web Site Material from being modified, edited, transformed, or otherwise adapted as Owner may deem necessary.

D. Ownership of Web Site Material.

Except for the material specifically identified in Subparagraph E of Paragraph V of this Agreement, Owner will own the exclusive rights to and in the Web Site Material, including, but not limited to, all United States and International copyrights and other intellectual property rights. In the event that this Agreement is terminated before final acceptance, Owner will own the exclusive rights including, but not limited to, all United States and International copyrights and other intellectual property rights, in the portion of the Web Site Material actually completed.

E. Excluded Material.

If Designer is unable to grant or assign to Owner the exclusive rights to any portion of the Web Site Material, that portion of the Web Site Material will be referred to as Excluded Material. Designer shall specifically identify all Excluded Material in Exhibit C to this Agreement. Designer's identification will include, at minimum, the following information: (1) the nature of the Excluded Material; (2) the owner of the Excluded Material; (3) Designer's authority to include the Excluded Material in the Web Site; and (4) any restrictions or royalty terms applicable to the use of the Excluded Material in the Web Site. The only Excluded Material that may be included in the Web Site is the material specifically identified in Exhibit C. No other Excluded Material can be used in the Web Site.

F. License To Use Excluded Material.

Designer will obtain at Designer's own expense an irrevocable, nonexclusive, worldwide, perpetual, royalty-free license for Owner, and Owner's agents and assigns, to exploit the Excluded Material identified in Exhibit C for, among other things, the right to reproduce the Excluded Material, to distribute the Excluded Material, to create derivative materials based on the Excluded Material, to publicly display the Excluded Material, to publicly perform the Excluded Material, and to transmit the Excluded Material digitally or by any other means.

VI. Warranties

A. Ownership Rights

With the exception of Owner's Material and Excluded Material, Designer represents and warrants as follows:

1. That Designer is the sole author/creator of all of the Web Site Material;

2. That Designer has authority to grant, assign, and license the Web Site Material to Owner;

3. That the Web Site Material is not subject to any liens or other security interests; and

4. That the Web Site Material does not infringe the copyrights, trademarks, or any other intellectual property or proprietary rights of any third person.

B. Quality and Performance of Web Site

Designer represents and warrants as follows:

1. That the Web Site will be developed in a workmanlike, professional manner;

2. That the Web Site will conform to the specifications set forth in Exhibit A; and

3. That the Web Site will perform properly when browsed with the latest versions of the following browsers: .

C. Compliance with Applicable Laws

Designer represents and warrants that Designer has complied with all applicable local, state, and federal laws in carrying out its obligations under this Agreement.

VII. Indemnity

With the exception of Owner's Material and Excluded Material, Designer agrees to indemnify and hold Owner harmless from the claims of any third party relating to the Web Site Material, including, but not limited to, claims of copyright infringement, violation of trade secrets, invasion of privacy, defamation, and right of publicity.

VIII. Confidentiality Information Defined

For purposes of this Agreement, Confidential Information includes, but is not limited to, business plans, marketing plans, advertising material, customer lists, business records, projections, product information, financial information, and any other information designated as confidential by Owner.

IX. Nonconfidential Information

Information is not confidential if it is generally available or known within the Internet industry, it is in the public domain, it was known to Designer before this Agreement was entered into, it was independently received by Designer from a third party, or it was developed independently by Designer.

X. Designer’s Obligation of Nondisclosure

Designer promises and agrees:

A. To hold the Confidential Information in strict confidence;

B. To use the Confidential Information only for purposes of carrying out Designer's obligations under this Agreement;

C. To only disclose the Confidential Information to those of Designer's officers, employees, and agents as are necessary to carry out the purpose of this Agreement; and

D. Not to disclose the Confidential Information to unnecessary third parties.

XI. Term of Agreement

This Agreement will take effect on the Effective Date and remain in effect for a period of years (until the day of , ).

XII. Termination

If at any time Owner becomes dissatisfied with Designer's performance of its obligations under this Agreement, Owner may immediately terminate this Agreement by providing written notice to Designer. Designer may not terminate this Agreement without the prior written consent of Owner.

XIII. Assignment

A. No Assignment of Obligations

Neither Party may assign any of its respective obligations under this Agreement without the express written consent of the other Party.

B. Assignment of Owner's Rights

Owner may assign or sublicense all or any portion of Owner's rights under this Agreement to any third party, without the permission of Designer.

XIV. Modifications

This Agreement may be amended at any time and from time to time, but any amendment must be in writing and signed by each Party.

XV. Undefined Terms

Terms that are not specifically defined in this Agreement are used as set forth in the Uniform Commercial Code of the State of .

XVI. Joint Drafting and Neutral Considerations

This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties. This Agreement shall be construed and interpreted in a neutral manner.

XVII. Validity of Agreement

If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.

XVIII. Entire Agreement

This Agreement, including all Exhibits, Appendices, and Attachments, contains the entire agreement of the Parties relating to the rights granted and obligations assumed in this Agreement. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the Party to be charged.

XIX. Venue and Applicable Law

This Agreement shall be governed, construed, and interpreted in accordance with the laws of the State of (without respect to principles of conflicts of law), and the Parties submit to the jurisdiction of and venue in said State in any legal proceeding necessary to interpret or enforce this Agreement or any part of this Agreement.

XX. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

WITNESS our signatures as of the day and date first above stated.

Attach Exhibits