1. Services. Designer will perform the website services as described in “My Services” above. Any changes or additions to the Statement of Work shall be made in writing and will be governed by the payment terms of paragraph 3 below.
2. Feedback and Acceptance. Client agrees to review any deliverables created as described in “My Services” above within three (3) days of receipt of each Deliverable, and to either approve and accept the Deliverables in writing, or to provide written comments or corrections to Designer sufficient to identify Client’s concerns, objections, or corrections. In the absence of such notice from Client within the required time period, the Deliverables shall be deemed accepted.
3. Compensation. Client agrees to pay Designer the fees described in “Fee Summary” above, according to the payment schedule as specified in “Payment Schedule” above. Client will pay Designer via PayPal or another form of payment mutually agreed upon by the parties. Any work requested by Client that changes or goes beyond the scope of “My Services” will be billed at $100.00 per hour, and Client will pay any such additional fees within fifteen (15) days of an invoice by Designer. Outstanding invoices and unpaid payments will be subject to a late charge of 1.5% per month (18% per year).
4. Expenses. If Client requests Designer to use third-party content, such as stock photography, stock illustrations, or third party software, Client will pay directly for any necessary license fees for the third-party content, or shall reimburse Designer for the license fees within fifteen (15) days of an invoice by Designer.
5. Term. This Agreement shall commence on the effective date specified below and shall continue until the services are completed, or the Agreement is terminated under this section. If either party materially breaches a material provision of this Agreement, the other party may terminate this Agreement upon five (5) days written notice unless the breach is cured within the notice period. The parties may terminate this Agreement at any time upon mutual written agreement. Upon termination, the terms of paragraphs 6-23 shall survive termination and remain in effect.
6. Client’s Intellectual Property. All pre-existing trademarks, copyrighted works, intellectual property, writings, photography, videos, illustrations, graphics, and other materials provided by Client (“Client Content”) shall remain the sole property of Client, and Client shall retain all intellectual property rights over such Client Content. Client is solely responsible for obtaining all necessary rights and licenses over Client Content. Client grants Designer a non-exclusive, non-transferable, worldwide license to use, reproduce, and modify Client Content in conjunction with the performance of services delivered under this Agreement.
7. Third-Party Materials. Work and deliverables created under this Agreement may contain third-party software and other such third-party materials, including themes, frameworks, tools, and plugins (“Third-Party Materials”). Third-Party Materials are the intellectual property of such third-parties. Unless noted, Designer has and will maintain a developer license to use such Third-Party Materials in any work or deliverables created under this Agreement. However, if Client wishes to have independent access to such Third-Party Materials, including independent support, development, maintenance, and use of such Third-Party Materials, without going through Developer, Client must obtain a license directly from the owners of such Third-Party Materials.
8. Intellectual Property Created Under This Agreement. Designer retains all intellectual property rights over any and all work or deliverables created under this Agreement, until completion of the services as described in “My Services” and full payment of all fees, costs, and expenses as described in “Fee Summary” and in paragraphs 3 and 4 (“Final Completion”). Upon Final Completion, Designer shall assign to Client all ownership and intellectual property rights over the works, art, deliverables, and intellectual property created by Designer under this Agreement. Upon Final Completion, Designer shall transfer physical custody of all work and deliverables created by Designer under this Agreement to Client or to a server of Client’s choosing. Designer shall execute and deliver any and all additional documents and instruments and shall do any and all acts reasonably necessary to give effect to the provisions of this Agreement and the intent of the parties.
9. Recognition. Client grants Designer a non-exclusive, non-transferable, world-wide license to display and link to the project as part of its portfolio and to discuss the project in its marketing or advertising materials, or in industry or professional publications, as an example of its work. Designer will receive design credit on all work created under this Agreement, and a live link to a page on Designer’s website as specified by Designer, from the home page of the website created under this Agreement (such as a link from the footer of the website), as long as the Designer’s work is being used.
10. Warranties. Designer represents and warrants that work shall be performed in a professional and workmanlike manner, and that work delivered under this Agreement will not contain material defects. The parties represent and warranty that the work and materials that they provide under this Agreement do not infringe upon the copyright, trademark, trade secret, publicity rights, trademarks, or interests of any other person or property. Except as otherwise set forth in this Agreement, any work provided under this Agreement is provided “as is,” at Client’s own risk, without express or implied warranty or condition of any kind. Except as otherwise set forth in this Agreement, Designer disclaims any warranties of merchantability, fitness for a particular purpose or non-infringement.
11. Indemnification. The parties indemnify each other against all claims, suits, and damages arising out of breach or alleged breach of any representations, warranties, or agreements made by it, under this Agreement. Parties shall notify each other in writing of any such claims or suits.
12. Damages. To the extent allowed by law, under this agreement Designer will not be liable for indirect, special, incidental, punitive, exemplary or consequential damages, regardless of legal theory, whether or not Client has been warned of such damages, and even if all other remedies would fail.
13. Not an Employee. Designer is an independent contractor, and is not the employee of Client. Designer has full discretion to set its own work hours, have work performed by Designer’s staff or subcontractors, and perform work at any location, as long as such work performance complies with the other terms of this Agreement. This work created under this Agreement is not “work-for-hire” as defined by U.S. Copyright Law.
14. No Joint Venture. The parties are not engaged in a partnership or joint venture. Nothing in this agreement shall be construed to place the parties in a partnership or joint venture. The parties are not authorized to obligate or bind each other, and are not agents of each other.
15. No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
16. Confidentiality. Client may communicate confidential information to Designer, including technical information, business information, passwords, login information, or business plans (“Confidential Information”). Confidential Information does not include information that is in the public domain, that is in the lawful and unrestricted possession of Designer prior to disclosure, or that was independently derived by Designer without use of the Confidential Information. Designer will not disclose any such Confidential Information to any third parties, except those designated by Client, or as required by law. Designer shall take all measures reasonably necessary to protect such Confidential Information.
17. No Waiver. None of the terms of this Agreement can be waived or modified except by an express agreement in writing signed by all of the parties.
18. Entire Agreement. This Agreement, along with any Exhibit(s), constitutes the entire agreement between the parties and supersedes all prior or contemporaneous written or oral agreements between them or any of their affiliates, with respect to the subject matter contained herein.
19. Section Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.
20. Assignment. No party will assign this Agreement to any other party without the other party’s written consent.
21. Choice of Law and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida. Any and all disputes, controversies, claims, or differences arising out of, relating to, or having any connection with this Agreement, shall exclusively be brought and heard in Lake County, the State of Florida, and both parties consent to jurisdiction in the Lake County, the State of Florida.
22. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remainder of this Agreement shall not in any way be affected or impaired.
23. Corporate Authority and Signatures. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement on behalf of the parties and that in so executing this Agreement the parties are formally bound to the provisions of this Agreement. The parties agree that electronic signatures and those communicated by electronic mail or facsimile constitute valid acknowledgement of this Agreement.