Fill and Sign the Website Agreement Template Form

Website Design and Programming Agreement Website Design and Programming Agreement, hereinafter called the Agreement, is made effective as of the       day of       , 20       , hereinafter called the Effective Date , by and between       , a corporation (Name of Customer) organized and existing under the laws of the state of       , with (Name of State) its principal office located at       , referred to herein as (Street Address, City, County, State, Zip Code) Customer, and       , a corporation organized and existing under (Name of Consultant) the laws of the state of       , with its principal office located at (Name of State)       , referred to herein as the Consultant. (Street Address, City, County, State, Zip Code) For and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows: 1. Description of the Services. Consultant will design software, hereinafter called the Software, for Customer by timely providing the design and programming services listed on Exhibit A, attached hereto and made a part hereof, hereinafter called the Services, in a professional and timely manner. All programming and documentation shall comply with standards currently employed by Customer . 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. 2. Design Team. Consultant will use only qualified personnel to provide the Services, hereinafter called the Design Team. Consultant reserves the right to make changes to the Design Team in its sole discretion and will provide prior written notice of any anticipated change and a reasonable explanation for the change. Orientation of replacement personnel shall be at the Consultant's expense. 3. Term and Scheduling. The Services will be completed timely in accordance with the schedule set forth on Exhibit A. Consultant will begin the Services on the designated date and continue until the satisfactory completion of the Services. The term satisfactory completion of the Services means when the software and documentation developed for the Software performs to the specifications set forth on Exhibit A. 4. Payments . In consideration for the Services, Customer will pay the Consultant in accordance with the terms and the payment schedule set forth below. Website Design and Programming Agreement Page 1 of 8 A. $       to initiate contract and architect web site. B. $       to with the delivery of database design. C. $       with the delivery of user interface design. D. $       with the de l ivery with first two programs . E. $       with the delivery of the t hird and fourt h progra m s. F. $       w i th the delivery of t h e fift h program . G. $       with implementation and Customer’s signoff on the project . H. Other activities bi l led separately li ke web hosting , web site enhancements , and office consultation services wi l l be bi l led separately with payment due upon receipt . Web hosting will be at the published price for req u ested service as listed by Consultant . Billing rates for other as needed services will be hour l y using the following Standard Fee Schedule: Job Descrip tion Hourly Web Design, Graphic Arts, Content Author, Flash, Front Page $       Client Side Programmer; HTML, Java Script; Jscript; CSS $       Server Side Programmer; Java Script; Access; SOL; VB; ASP; Net $       Help Desk; Network Support or System Technician $       System Architect or Object Programmer; Java C++ or C# $       Application System Specialist $       Project Manager $       The prices listed on the Standard Fee Schedule are bil l ing rates for services performed at our offices . Time is bil l ed in quarter hour increments. There is a one-hour minimum for all on-site service, and a quarter-hour minimum for telephone support. On-site work runs       % higher than work done off-site. Travel time from our office to your office is billable for on call (non-scheduled) and out-of-town assignments. Travel, lodg i ng and meal expenses are extra and Website Design and Programming Agreement Page 2 of 8 will be billed separately on out-of-town assignments. 5. Refundable Deposit Retainer. A deposit retainer in the amount of $       has been paid by Customer to Consultant. This retainer shall be held by the Consultant in escrow as a security deposit for future service fees. In addition to holding the deposit retainer, Consultant shall, on or after the first of each month following the date of this Agreement submit a bill to Customer, which will be paid as set out in this Agreement . Until or before payment of this bill , Consultant has the option to draw against the deposit and then replenish the deposit when monthly payment is received . The deposit is refundable and any unused portion , after payment of fees and expenses due , shall be refunded to Customer after the project is concluded . Consultant may , in lieu of sending a final bill to Customer and awaiting payment, deduct the final bill from the deposit and refund the balance to Customer . In the event that the total bill in a month, due to expenses advanced and the time spent in that particular month, exceeds the amount of the deposit retainer , then the Consultant shall notify Customer of that fact and Customer will, within       days of the notice , tender an additional amount equal to the amount of the deposit (Number) retainer towards payment of the monthly fee. This payment shall be deducted from the next bill to Customer. It is the intent of this paragraph that at no time should the amount due to the Consultant exceeds the retainer. 6. Hourly Rate and Billing. Customer agrees to pay Consultant according to the fee schedule set forth above for fixed price and per hour services for all time expended in the project outlined in this Agreement. Consultant will provide Customer with monthly statements for services rendered and time spent for the preceding month . Customer will pay all bills within       days of receipt of same . Bills not paid within       days, as provided herein, shall (Number) (Number) accrue interest at the rate of       % per month, and in the event that a bill is unpaid beyond       days, Consultant may terminate the Agreement and discontinue providing service . (Number) 7. Billable Time. The hours expended by Consultant will be itemized in each billing statement by quarter hour . The time shall be rounded up or down to the nearest quarter of an hour , provided , however , that the minimum time spent for rendering any programming service under this Agreement shall be billed at quarter hours. Programming services include, unless otherwise provided herein, all document preparation , telephone calls, travel time, meetings, consultations , technical research , office visits and other services that may be necessary to represent Customer with its vendor and tool suppliers. 8. Expenses. In addition to the service fees, Customer will pay, or reimburse Consultant , as the case may be, all costs and out-of-pocket expenses. Costs include long distance telephone charges, express mail costs , Consultant's out-of-town automobile mileage at $       per mile , and any other travel and lodging expenses that may be necessary to complete the assignment . Consultant has the option to require that costs be paid directly to third parties by Customer , or may advance such cost on behalf of Customer , in which case the Cost will be itemized on the billing statements and reimbursed to Consultant . 9. Ownership Rights. Customer will own all of i t s proprietary information a s Website Design and Programming Agreement Page 3 of 8 included in the Services , as w ell as all source code , object code , screen s, d ocum e ntation , digital programming , operating instructions , design concepts , . content , graphic s, domain names , and characters. All Ser v ice s provided b y the Consultant , including sy s tem s , c omputer programs , operating instructions , unique design concepts , other documentation developed for or specifically relating to the Customer’s i nformation processing, all of the Customer's source documents, stored data and other information of any kind , and repo r ts and notes prepared b y the Consult a nt , will be works for hire under applicable United States cop y right law s, and therefo r e the propert y of the Customer. Upon request b y the Customer , the Designer will furnish to the Customer with a CD-ROM copy of the site for the customary $       copying fee. The Consult a nt reserves the right to use such works for the purpose of demonstration and promotion . Any and all such property shall be delivered to the Customer on request by the Customer. Upon request, the Consultant shall sign all documents necessary to confirm or perfect the exclusive ownership interests of the Customer. 10. Consultant the Ownership Rights and Grant of License. Notwithstanding any other provision of this Agreement , the Services may include some programming code that the Consultant has previousl y developed for its own use (the Consultant's Prior Code). Consultant e x pressl y retains full Ownership of s uch Code , including all associated rights to use such Code. However , the Consultant also grants to the Customer and its users a perpetual , non-exclusive license to use the Consultant's Prior Code . A copy of a listing of the specific computer files that comprise the Consultant's Prior Code will be provided to the Customer upon completion of the Services . Any programming that in c ludes the Consultant's Prior Code shall include such copyright notices regarding the Consultant's Prior Code as the Consultant may require. 11. Copyright Notice. Consultant shall in c lude the following copyright notice (or an y other notices requested by the Customer) to be in the software or displayed on each page of the Website that can be viewed by a user: "Copyright       . All (Customers Name) Rights Reserved." 12. Confidentiality. Consultant will not at any time or in an y manner , either directl y or indirectly , use for the personal benefit of Consultant , or divulge , disclose , or communicate in any manner any information that is prop r ietary to the Customer (e . g. , trade secrets, know-how and confidential information) . Consultant will protect such information and treat it as strictly confidential . This provision shall continue to be effective after the termination o f this Agreement . Upon termination of this Agreement , Consultant will return to the Customer all record s , notes , documentation and other items that were used, created, or controlled by the Consultant during the term of this Agreement . The Customer or may seek and obtain injunctive relief against the release or threatened release of such information in addition to any other legal remedies which ma y be available. 13. Working Hours, Office Space and Testing Time. The Consultant's employees, when working on the premises of the Customer, shall observe the Customer's working hour s , working rules and policies . The Customer shall provide adequate office space and testing time for the Consultant . 14. Independent Contractor. Consultant is an independent contractor with respect Website Design and Programming Agreement Page 4 of 8 to its relationship to the Customer. Neither the Consultant nor the Consultant's emplo y ee s are or shall be deemed for any purpose to be employees of the Customer . The Customer shall not be responsible to the Consultant, the Consultant's employees , or an y governing body for any payroll taxes related to the performance of the Services. Upon request , the Consultant will provide evidence of appropriate insurance coverage for workers compensation and general liability insurance . 15. Promotion. The Consultant will not use the names , trademarks , s ervice marks , symbols or an y abbreviations of the Customer , without the ' prior written consent of the Customer . 16. Warranty - Consultant. Consultant warrants to the Customer that all software programming , web pages , CD-ROMs , diskettes , and materials delivered to the Customer 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 widel y used web browsers. During the Consultant's recomm e nded beta testing period and for a       day period following completion of beta testing , the Consultant will correct any software anomalies ("bugs") that occur because of defects in the source code included in the software. After such time , the Consultant will make changes on a fixed hourly rate or a negotiated fixed quote basis. While no website design process is able to guarantee bu g- free results , the Services will be provided in a workmanlike manner , w ithin local indu s tr y standards and tolerances for commercial applications. This warranty doe s not cover item s damaged , modified or misused after delivery to the Customer. 17. Warranty – Intellectual Property Rights. The Consultant represents and warrant s t hat it has the unencumbered right and power to ent e r into a nd perform this Agreement and that the Consultant is not aware of any claims or basis for claims of infringement o f an y patent , trademark , copyright , trade secret , or contractual or other proprietary rights of third parties in or to any programming or materials in c luded by the Consultant 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 Customer alleging such infringement , the Consultant shall defend such claim , charge , suit or proceeding . The Consultant shall indemnify and hold Customer harmless from and against an y loss , cost , damage or expense (including attorne y fees and legal expense s ) incurred by the Customer that may result by reason of any such claim , charge , suit or proceeding . The Cu s tomer s hall 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 Consultant in the Services becomes the subject of an infringement suit , the Customer ma y terminate thi s Agreement and shall be entitled to a refund of an y pa y ments that it ha s made to the Consultant under this Agreement. This indemnit y shall not appl y to materials provided b y the Customer as contemplated by the following paragraph. 18. Warranty - Customer. The Customer represent s and warrants to the Consultant that the Customer owns (or has a legal license to use) all photos , text , artwork , graphics , designs , trademarks , and other materials pro v ided b y the Customer for inclusion in the Website , and that the Customer h a s obtained all waiver s, authorization s, and other d ocumentation that ma y be appropriate to evidence such Ownership . The Customer sh a ll indemnify and hold Consultant harmless from all losses and claims , including attorney fees and legal expenses that may result Website Design and Programming Agreement Page 5 of 8 by reason of claims by third parties related to such materials. 19. DISCLAIMER OF WARRANTIES. EX CE PT AS EXPRESSLY SET FORTH IN THIS AGREEMENT , THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTA TIONS OR WARRANTIES , EXPRESS OR IMPLIED , REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLI E D WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE . 20. 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 POSSIBILI T Y 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 LIABILITI E S TO THIRD PARTIES ARISING FROM ANY SOURCE. 21. 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 . 22. Termination. Either party may terminate this Agreement at any time by providing       days advance written notice. In the event of such termination, the Customer shall be (Number) obligated to pay only for actual services provided by the Consultant and for expenditures incurred with the Customer's approval . Unless otherwise terminated, this Agreement will terminate upon completion of the Services. 23 . 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       business days from the effective date of (Number) 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 . 24. Taxes. The Customer 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 Customer shall provide the Consultant with a certificate acceptable to the taxing authorities exempting the Customer from payment of such taxes. Website Design and Programming Agreement Page 6 of 8 25. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. 26. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 27. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of       . (Name of State) 28. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 29. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 30. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, 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. 31. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 32. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 33. Assignment of Rights. The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. 34. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 35. Compliance with Laws. In performing under this Agreement, all applicableWebsite Design and Programming Agreement Page 7 of 8 governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. WITNESS our signatures as of the day and date first above stated.             (Name of Consultant) (Name of Customer) (Signature of Officer) (Signature of Officer)             (P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation) Website Design and Programming Agreement Page 8 of 8