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This WEB SITE DEVELOPMENT AGREEMENT ("Agreement") is an agreement
between AFRISERVER. ("Company") and the party set forth in the related
order form ("Customer" or "you") incorporated herein by this reference
(together with any subsequent order forms submitted by Customer, the
"Order") and applies to the purchase of all services ordered by
Customer on the Order (collectively, the "Services"). The parties
understand, acknowledge and agree that this is an online agreement
which is being entered into in conjunction with the Order.
PLEASE READ THIS AGREEMENT CAREFULLY.
BY
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND
COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION
AND THIS AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF
THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE
IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICIES. YOUR USE OF THE
SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. TERM AND TERMINATION
A. Term of Agreement. This
Agreement shall be effective as of the date set forth on the Order and
shall remain in force until seven (7) days after the last Coordination
Step as set forth in the applicable Order, which shall take place not
later than one hundred twenty days (120) after the Order ("Delivery
Date"). Company cannot guarantee the Delivery Date but will use
commercially reasonable efforts to perform the Services in an efficient
and timely manner.
B. Termination. 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. This Agreement may be
terminated by Company (i) immediately if Customer fails to pay any fees
hereunder; or (ii) if Customer fails to cooperate with Company or
hinders Company's ability to perform the Services hereunder.
2. COMPANY'S AND CUSTOMER'S RESPONSIBILITIES
A. Scope of Work. Customer hereby retains the services of Company to design the Web Site for Customer in accordance with the Order.
B. Changes. Changes
to this Agreement, the Order or to any of the specifications of the Web
Site shall become effective only when a written change request is
executed by the Customer and Company ("Change Order"). Company agrees
to notify Customer promptly of any factor, occurrence, or event coming
to its attention that may affect Company's ability to meet the
requirements of this Agreement, or that is likely to occasion any
material delay in the Services. In the event of a conflict between the
terms of this Agreement and a Change Order, the terms of this Agreement
shall govern.
C. Customer's
Responsibilities. Customer agrees to perform all tasks assigned to
Customer as set forth in this Agreement or a Change Order, and to
provide all assistance and cooperation to Company in order to complete
timely and efficiently the Web Site. Company shall not be deemed in
breach of this Agreement, the Services, a Change Order, or any
milestone in the event Company's failure to meet its responsibilities
and time schedules is caused by Customer's failure to meet (or delay
in) its responsibilities and time schedules set forth herein, a Change
Order, or this Agreement. In the event of any such failure or delay by
Customer (i) all of Company's time frames, milestones, and/or deadlines
shall be extended as necessary; and (ii) Customer shall continue to
make timely payments to Company as set forth in this Agreement and any
Change Order(s) as if all time frames, schedules, or deadlines had been
completed by Company. Customer shall be responsible for making, at its
own expense, any changes or additions to Customer's current systems,
software, and hardware that may be required to support operation of the
Web Site. Unless otherwise contracted with Company or reflected in a
Change Order, Customer shall be responsible for initially populating
and then maintaining any databases on the Web Site as well as providing
all content for the Web Site. With the execution of a Change Order
specifically asking Company to assesses the Customer's systems,
software and hardware from time to time, Company may agree to perform
this function at normal Company rates.
3. WEB SITE DESIGN
A. Design. The
design of the Web Site shall be in substantial conformity with the
material provided to Company by Customer. Web Site consultation will
be provided according to the number of coordination steps outlined for
the plan purchased in the Order. Customer will provide direction to
Company by accessing the Company's Customer Relationship Management
system ("CRM") and delivering content for Web site construction
within. Web Site text will be supplied by the Customer unless
copywriting services have been purchased. Development of web pages
will take place on the Customer's established web hosting service with
Company. All server technical issues are to be handled by Company
unless otherwise noted amongst all parties. Minor updates and changes
include any minor modifications and modifications to work out backend
database issues and functionality. This does not include adding
features beyond the scope of the Order. Company shall not include, as
determined in its sole discretion, any of the following in the Web Site
or in Customer's directory on Company's Web Server: text, graphics,
sound, or animations that might be viewed as obscene or any illegal
activities; links to other we sites that might be viewed as obscene or
related in any way to any illegal activities; impressionistic or
cartoon-like graphics (unless provided by Customer); invisible text,
metatags (i.e., text that is present only when a "Webcrawler" or other
Web indexing tool accesses the Web Site), or any other type of hidden
text, hidden information, hidden graphics, or other hidden materials;
or destructive elements or destructive programming of any type.
B. Coordination Steps.
Customer understands that submissions for Web Site development are
limited to the number of coordination steps as provided in the Order.
Customer is encouraged to provide as much instruction and direction as
possible with each submission.
C. Accessibility of Web Site During Construction. Throughout
the construction of the prototype and the final Web Site, the Web Site
shall be accessible to Customer through the CRM. Until Customer has
approved the final Web Site, none of the Web Pages for Customer's Web
Site will be accessible to end users.
D. Completion Date.
Company and the Customer shall work together to complete the Web Site
in a commercially reasonable manner. Customer must supply Company
complete text and graphics content all web pages contracted for within
two (2) weeks of the date of the Order unless otherwise noted. If
Customer has not submitted complete text and graphics content within
three (3) weeks after the Order, an additional continuation fee of ten
percent (10%) of the total Order price will also be assessed each month
until the Web Site is published.
F. Copyright to Web Site. Customer
acknowledges, understands and agrees that Company may use its own
and/or may purchase third party licenses for products or services that
are necessary for Company to design and develop the Web Site. Such
products may include, but are not limited to server-side applications,
clip art, "back-end" applications, music, stock images, or any other
copyrighted work ("Outside Content") which Company deems necessary to
purchase on behalf of Customer to design and develop the Web Site.
Customer further acknowledges and understands that any Outside Content
used to design and develop the Web Site is owned by Company and/or such
third parties and cannot be transferred to Customer and is hereby
specifically not transferred to Customer and shall remain the property
of Company and/or such third parties. Outside Content which is owned
and/or purchased by Company may be used in the design and/or
development of other web sites separate from Customer. Customer and
Company agree that upon payment in full of the fees associated with the
design and development of the Web Site, Customer shall own a worldwide
right, title, and interest in and to the Web Site (including, its
source code and documentation) (the "Custom Programming"). Customer
and Company agree that Company shall retain a worldwide, royalty-free,
non-exclusive, transferable, and perpetual right and license to the
Custom Programming including, but not limited to, the right to modify,
amend, create derivative works, rent, sell, assign, lease, sublicense,
or otherwise alter or transfer the Custom Programming. Customer and
Company also agree that the design and development of the Web Site may
include source code, documentation, and/or application programs that
were previously written or developed by Company and modified to meet
Customer's specific requirements (the "Code Content"). Customer shall
own all worldwide right, title, and interest in and to the Code
Content, but shall provide Customer (upon payment in full of the fees
associated with the design and development of the Web Site) a
worldwide, royalty-free, non-exclusive, transferable and perpetual
right and license to use the Code Content. Company and its
subcontractors retain the right to display graphics and other web
design elements of the Web Site as examples of their work in their
respective portfolios.
4. MAINTENANCE
This
Agreement does not provide Web Site maintenance unless a Web Site
maintenance plan is purchased. If the Customer or an agent other than
Company attempts updating Customer's pages, time to repair web pages
will be assessed at an hourly rate. Changes requested by the Customer
beyond those limits will be billed at the hourly rates set forth in the
Order. This rate shall also govern additional work authorized beyond
the maximums specified in the Order for such services as webpage
design, editing, modifying product pages and databases in an online
store, and art, photo, graphics, or any other services.
5. FEES
The
total price for all of the work set forth in the Agreement (excluding
post-approval modifications not implemented by Customer) shall be set
forth in the Order (the "Development Fee"). This price covers all work
for the Order (excluding post-approval modifications not implemented by
Customer). Unless otherwise stated in the Order, the Development Fee
to Company is due and payable upon placing the Order and Company shall
have no obligation to perform any work until payment is received and
such funds are cleared from the relevant financial institution.
Company's services are "AS-IS, WHERE-IS, WITH ALL FAULTS" and no
refunds shall be provided for Company's services hereunder.
6. INDEMNIFICATION
A. Company Indemnity. In
performing services under this Agreement, Company agrees not to design,
develop, or provide to Customer any items that infringe one or more
patents, copyrights, trademarks or other intellectual property rights
(including trade secrets), privacy, or other rights of any person or
entity. If Company becomes aware of any such possible infringement in
the course of performing any work hereunder, Company shall immediately
so notify Customer in writing. Company agrees to indemnify, defend, and
hold Customer, its officers, directors, members, employees,
representatives, agents, and the like harmless for any such alleged or
actual infringement and for any liability, debt, or other obligation
arising out of or as a result of or relating to (a) the Agreement, (b)
the performance of the Agreement, or (c) the Deliverables, other than
Customer's responsibilities and Customer Content. This indemnification
shall include attorney's fees and expenses, unless Company defends
against the allegations using counsel reasonably acceptable to
Customer. Company's total liability under this Agreement shall not
exceed the amount of the Development Fee derived by Company under this
Agreement.
B. Customer Indemnity.
Customer shall indemnify and hold harmless Company (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 Company
as a result of any claim, judgment, or adjudication against Company
related to or arising from (a) any photographs, illustrations,
graphics, audio clips, video clips, text, data or any other
information, content, display, or material (whether written, graphic,
sound, or otherwise) provided by Customer to Company (the "Customer
Content"), or (b) a claim that Company's use of the Customer Content
infringes the intellectual property rights of a third party. To qualify
for such defense and payment, Company must: (i) give Customer prompt
written notice of a claim; and (ii) allow Customer to control, and
fully cooperate with Customer in, the defense and all related
negotiations.
7. REPRESENTATIONS AND WARRANTIES
A. Company makes the following representations and warranties for the benefit of Customer:
1. No Conflict. Company
represents and warrants that it is under no obligation or restriction
that would in any way interfere or conflict with the work to be
performed by Company under this Agreement and the Order. Customer
understands that Company is currently working on one or more similar
projects for other clients. Provided that those projects do not
interfere or conflict with Company's obligations under this Agreement,
those projects shall not constitute a violation of this provision of
the Agreement.
2. Conformity, Performance, and Compliance. Company
represents and warrants that (1) all Deliverables shall be prepared in
a workmanlike manner and with professional diligence and skill; (2) all
Deliverables will function under standard HTML conventions; (3) all
Deliverables will conform to the specifications and functions set forth
in this Agreement; and (4) Company will perform all work called for by
this Agreement in compliance with applicable laws. Company will repair
any Deliverable that does not meet this warranty within a reasonable
period of time if the defect affects the usability of Customer's Web
Site, and otherwise will repair the defect within 24 hours, said
repairs to be free of charge to Customer. This warranty shall extend
for the life of this Agreement. This warranty does not cover links that
change over time, pages that become obsolete over time, content that
becomes outdated over time, or other changes that do not result from
any error on the part of Company.
3. Disclaimer of All Other Warranties. COMPANY
DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE
WEB SITE WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF
THE WEB PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS
TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE IS WITH
CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER
PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE
PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION
ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B)
EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT,
PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT,
AND EACH PARTY'S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION
OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON
UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS
AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY
REMAINING PROVISIONS.
4. Limitation of Liability. IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE
BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY,
ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER
THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY PROVIDED HEREIN. THE MAXIMUM REMEDY AVAILABLE TO
EITHER PARTY IS ANY AMOUNT PAID BY CUSTOMER HEREUNDER. COMPANY 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.
B. Customer makes the following representations and warranties for the benefit of Company:
1.
Customer represents to Company and unconditionally guarantees that any
elements of text, graphics, photos, designs, trademarks, or other
artwork furnished to Company for inclusion in the Web Site are owned by
Customer, or that Customer has permission from the rightful owner to
use each of these elements, and will hold harmless, protect, and defend
Company and its subcontractors from any claim or suit arising from the
use of such elements furnished by Customer.
2.
From time to time governments enact laws and levy taxes and tariffs
affecting Internet electronic commerce. Customer agrees that the
client is solely responsible for complying with such laws, taxes, and
tariffs, and will hold harmless, protect, and defend Company and its
subcontractors from any claim, suit, penalty, tax, or tariff arising
from Customer's exercise of Internet electronic commerce.
C. Confidentiality.
The parties agree to hold each other's Proprietary or Confidential
Information in strict confidence. "Proprietary or Confidential
Information" shall include, but is not limited to, written or oral
contracts, 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.
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,
Company and Customer 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.
8. FORCE MAJEURE
Neither
party will be liable for, or will be considered to be in breach of or
default under this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of any causes or
conditions that are beyond such Party's reasonable control and that
such Party is unable to overcome through the exercise of commercially
reasonable diligence. If any force majeure event occurs, the affected
Party will give prompt written notice to the other Party and will use
commercially reasonable efforts to minimize the impact of the event.
9. RELATIONSHIP OF PARTIES
A. Independent Contractor. Company,
in rendering performance under this Agreement, shall be deemed an
independent contractor and nothing contained herein shall constitute
this arrangement to be employment, a joint venture, or a partnership.
Company shall be solely responsible for and shall hold Customer
harmless for any and all claims for taxes, fees, or costs, including
but not limited to withholding, income tax, FICA, and workers'
compensation.
B. No Agency. Customer
does not undertake by this Agreement, the Order or otherwise to perform
any obligation of Company, whether by regulation or contract. In no way
is Company to be construed as the agent or to be acting as the agent of
Customer in any respect, any other provisions of this Agreement
notwithstanding.
10. NOTICE AND PAYMENT
A.
Any notice required to be given under this Agreement shall be in
writing and delivered personally to the other designated party at the
addresses listed in the Order mailed by certified, registered or
express mail, return receipt requested or by Federal Express.
B.
Either party may change its address to which notice or payment is to be
sent by written notice to the other under any provision of this
paragraph.
11. JURISDICTION/DISPUTES
This
Agreement shall be governed in accordance with the laws of the State of
Arizona. All disputes under this Agreement shall be resolved by
litigation in the courts of the State of Arizona including the federal
courts therein and the Parties all consent to the jurisdiction of such
courts, agree to accept service of process by mail, and hereby waive
any jurisdictional or venue defenses otherwise available to it.
12. AGREEMENT BINDING ON SUCCESSORS
The
provisions of the Agreement shall be binding upon and shall inure to
the benefit of the Parties hereto, their heirs, administrators,
successors and assigns.
13. ASSIGNABILITY
Customer
may not assign this Agreement or the rights and obligations thereunder
to any third party without the prior express written approval of
Company. Company reserves the right to assign subcontractors as needed
to this project to ensure on-time completion.
14. WAIVER
No
waiver by either party of any default shall be deemed as a waiver of
prior or subsequent default of the same of other provisions of this
Agreement.
15. SEVERABILITY
If
any term, clause or provision hereof is held invalid or unenforceable
by a court of competent jurisdiction, such invalidity shall not affect
the validity or operation of any other term, clause or provision and
such invalid term, clause or provision shall be deemed to be severed
from the Agreement.
16. INTEGRATION
This
Agreement constitutes the entire understanding of the Parties, and
revokes and supersedes all prior agreements between the Parties and is
intended as a final expression of their Agreement. It shall not be
modified or amended except in writing signed by the Parties hereto and
specifically referring to this Agreement. This Agreement shall take
precedence over any other documents which may conflict with this
Agreement.
17. NO INFERENCE AGAINST AUTHOR
No
provision of this Agreement shall be interpreted against any Party
because such Party or its legal representative drafted such provision.
18. DISPUTES
Customer
and Company 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 Maricopa County, Arizona 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 Arizona
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 Arizona 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.
19. READ AND UNDERSTOOD
Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
20. DULY AUTHORIZED REPRESENTATIVE
If
this Agreement is executed then each Party warrants that their
representative whose signature appears on such signature pages is the
duly authorized by all necessary and appropriate corporate actions to
execute this Agreement.
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