Website Development Agreement
This agreement is made between You (hereafter referred to as “Client”) and Molock Solutions Group (hereafter referred to as “Provider”).
A. “Website” or “Site” means a series of linked website pages under common control and developed by Provider for Client under this Agreement.
B. “Client Content” means all data, code, trademarks and copyrighted content provided by the Client for use by Provider on the website
C. “Developer Content” means all data, code, trade secrets, patents, designs, drawings, text created by Provider for use on the website, including any modifications of enhancements provided by the Provider.
D. “Proposal” outlines the current problem statement and Provider recommendations along with project deliverables.
Provider will perform development services described in the Proposal and in accordance with the project deliverables. Development states for development services include: Strategy, Design, Execution and Deployment. Before delivering the website to the Client, Provider will test its components to ensure the website and its components function as intended.
At each stage of completion, Provider will provide deliverables to Client as outlined in the project schedule. Client will have an identified number of days to approve the completed materials or provide corrections and comments as outlined in the project plan.
Provider will have a specified timeframe as outlined in the project plan after receiving the Client’s comments and corrections to submit revised materials to Client. Client will review the revised version within a specified time of receipt outlined in the project plan and approve the revised version or make further changes.
If Client determines, in its reasonable discretion, that the materials are not acceptable after five (5) attempts at correction by Provider, Client can terminate this Agreement. If Client fails to provide approval or comments during and of the approval periods, those materials will be accepted as approved by default.
If Client terminates this Agreement under this provision, Provider shall be entitled to compensation on a time and materials basis at an hourly rate of $95.00 plus expenses to the date of termination. Provider shall submit an invoice detailing the time and expenses accrued. If the termination amount is less than the amount paid to Provider prior to termination, Provider shall promptly return the excess balance to the Client. If the invoice amount exceeds the amount paid to Provider prior to termination, Client shall pay Provider the difference within 30 days of the invoice.
Provider shall be compensated at the agreed upon rates as outlined in the Proposal for development, analysis, design, and quality assurance.
Unless otherwise agreed upon in writing by Client, the Client’s maximum liability for all services performed during the term of this agreement shall not exceed the estimate total with a variance of +5%.
[ X ] Provider shall be responsible for all expenses incurred while performing services under this Agreement.
Client shall reimburse Provider for all out-of-pocket expenses incurred for the development and in performing services under this Agreement. Such expenses include but are not limited to:
(a) All communication charges. (b) Travel expenses other than normal commuting, including airfare, rental vehicles and highway mileage. (c) Other expenses resulting from the work performed under this Agreement
Provider shall submit an itemized statement of Provider’s expenses. Client shall pay Provider within 30 days from the date of each statement.
If Client wishes to implement major revisions after Client has already accepted Provider’s work product following completion of any stage of development, Client shall submit to Provider a written proposal specifying desired changes.
Provider will evaluate each proposal at its standard rates and charges. Provider shall submit to Client a written response to each proposal within ten (10) business days following receipt. Provider’s written response shall include a statement of the availability of Provider’s personnel and resources, as well as any impact the proposed changes will have on the contract price, project plan (delivery dates, etc.) or warranty provisions of this Agreement.
Client shall have three (3) business days from receipt of Provider’s response to their proposal to accept or reject in writing. If Client accepts Provider’s response, Provider shall provide a written Contract Amendment Agreement to reflect the desired changes and acknowledge an effect of the such changes on the provisions of this Agreement. Provider shall commence work on the desired changes once the Contract Amendment Agreement is signed by authorized representative(s) of the Client and Provider.
Should Client reject Provider’s response to the proposal, Client will notify Provider within five (5) business days of Client’s receipt of the response. Provider will not be obligated to perform any services beyond those called for in the original Agreement.
Provider shall use all reasonable efforts to meet the delivery schedule set in the Project Plan. However, at its option, Provider can extend the due date for any deliverable by giving written notice to Client. The total of such extensions shall not exceed 5 days/
Any delay or non-performance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notify the other of the delay in writing. The delayed party’s time for performance shall be deemed to be extended for period equal to the duration of the conditions beyond its control.
Conditions beyond a party’s reasonable control include, but are not limited to natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war or terrorism and epidemics. Failure of subcontractors and inability to obtain material shall not be considered a condition beyond a party’s reasonable control.
[ X ] Provider assigns to Client all rights, title and interest in the copyrights in Developer Content, including copyright in the website’s compilation or collective work and in the derivative copyrights of such works. Developer will sign any further documents reasonably requested by Client to put into effect the assignment of these rights.
Provider shall retain all copyright, patent, trade secret and other intellectual property rights Provider may have in Developer Content. Subject to payment of all compensation due under this Agreement, Provider grants Client a perpetual, non-exclusive, non-transferable, royalty-free license to user Developer Content. This license shall authorize Client to:
(a) Operate the website on its host server (b) Update, revise or republish the website (c) Advertise and promote the website
Client acknowledges that Provider owns or holds a license to use and sub-license various development and authoring tools it uses to create websites for its clients. By way of example, such tools may include, but are not limited to, such items as: HTML code, Java code, Java applets, subroutines, search engines and toolbars for maneuvering between pages. Such material shall be referred to “Developer Tools.”
Provider retains all rights, title and interest, including all copyright, patent rights and trade secret rights to Developer Tools. Subject to full payment of the fees due under this Agreement, Provider grants Client a non-exclusive, perpetual, worldwide license to use the Developer Tools to operate the website and for all the update and revision thereto. However, Client shall make no other commercial use of Developer Tools without Provider’s written consent.
Developer may take the following actions:
[ X ] Provider can state on the Client’s website that the Provider developed the site
[ X ] Provider can place hypertext links on Client’s website to Provider’s website.
[ X ] Provider can place hypertext links on Provider’s website to Client’s website as an example of the Provider’s service
Client has selected an Internet Service Provider to host its completed website. While the website is under construction and until final payment is received by Provider, Provider will host the website pages as they are constructed in a special directory on its web space at https://www.molock.com. If the website is not completed by the completion date set forth in the project plan and/or this Agreement, and if the cause of the delay is not attributable to Provider, Client agrees to pay Provider $100 per month for hosting the website on the Provider’s web space. Client will continue to pay Provider for hosting the website at this rate until the website is installed on Client’s own web space. This monthly rate shall be prorated if the website is installed on Client’s web space before the end of any monthly period.
Provider has no legal or financial interest in the domain name chosen by Client for the website. Client is responsible for securing and purchasing their domain name for their website. If requested by Client, Provider will cooperate and collaborate with Client in registering the domain name with the domain name registry chosen by Client. Client shall bear all expenses related to and incurred in registering the domain name.
Provider represents and warrants to Client that:
The warranties set forth in this agreement are the only warranties granted by Provider. Provider disclaims all other warranties express or implied, including but not limited to, any implied warranties or merchantability or fitness for a purpose.
[ X ] Provider warrants that the Provider will not knowingly infringe on the copyright or trade secrets of any third party in performing service under this Agreement. To the extent any material used by Provider contains matter proprietary to a third party, Provider shall obtain a license from the owner permitting the use of such matter and granting Provider the right to sub-license its use. Provider will not knowingly infringe upon existing patents of third parties in the performance of service required by this Agreement, but Provider makes no warranty of non-infringement of any United States or foreign patent.
Provider represents, but does not warrant, that to the best of its knowledge the Developer Content delivered to Client under this Agreement will not infringe any valid and existing intellectual property right of any third party.
The Developer Content furnished under this agreement is provided without any express or implied warranties or representations against infringement, and Provider shall not indemnify Client against infringement of any patents, copyrights, trade secrets or other proprietary rights.
If any third party brings lawsuit or proceeding against Client based upon a claim that Developer Content breaches a third party’s patent, copyright, or trade secrets rights and its determined that such infringement has occurred, Provider shall hold Client harmless against any loss, damage, expense or cost including reasonable attorney fees, arising from the claim.
This indemnification obligation shall be effective only if:
To reduce or mitigate damages, Provider may at its own expense replace the Developer Content with non-infringing content.
(a) In no event shall Provider be liable to Client for lost profits of Client, or special or consequential damages, even if Provider has been advised of the possibility of such damages.
(b) Provider’s total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total of fees paid to Provider by Client under this Agreement.
(c) Provider shall not liable for any claim or demand made against Client by any third party except to the extent such claim or demand relates to copyright, trade secret or the proprietary rights and then only as provided in the section of this Agreement entitled Intellectual Property Infringement Claims.
(d) Client shall indemnify Provider against all claims, liabilities, and costs including reasonable attorney fees, of defending third-party claim or suit arising out of the use of the Developer Content provided under this Agreement, other than for infringement of intellectual property rights. Developer shall promptly notify Client in writing of any third-party claim or suit and Client shall have the right to fully control the defense and any settlement of such claim or suit.
Client represents and warrants to Provider as follows:
Confidentiality: During the term of this Agreement and for three (3) months afterward, Provider will use reasonable care to prevent unauthorized use or dissemination of Client’s confidential information. Reasonable care means at least the same degree of care Provider users to protect its own confidential information from unauthorized disclosure.
Confidential information is limited to information clearly marked as confidential, or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in writing delivered to Provider with fifteen (15) days of disclosure.
Confidential information does not include information that:
This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement.
Each part shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the other party.
If Provider terminates this Agreement because of Client’s default, all of the following shall apply:
1. Client shall immediately cease use of the Developer Content2. Client shall, within ten (10) days of such termination, deliver to Provider all copies and portions of the Developer Content and related materials and documentation in its possession furnished by Provider under this Agreement.3. All amounts payable or accrued to Provider under this Agreement shall become immediately due and payable4. All rights and licenses granted to Client under this Agreement shall immediately terminate.
This Agreement may be terminated by Client for its convenience upon thirty (30) days’ prior written notice to Provider. Upon such termination, all amounts owed to Provider under this Agreement for accepted work shall immediately become due and payable and all rights and licenses granted by Provider to Client under this Agreement shall immediately terminate.
The charges included in this Agreement and Proposal do not include taxes. If Provider is required to pay any federal, state or local sales, use property or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to Client. Provider shall not pay any interest or penalties incurred due to late payment or non-payment of taxes by Client.
Provider is an independent contract, and neither Provider nor Provider’s staff is, or shall be deemed, Client’s employees. In its capacity as an independent contractor, Provider agrees and represents, and Client agrees, as follows:
[ X ] Provider has the right to perform services for others during the term of this Agreement subject to non-competition provisions set out in the Agreement, if any.
[ X ] Provider has the sole right to control and direct the means, manner, and method by which the services required by this Agreement will be performed.
[ X ] Provider has the right to perform the services required by this Agreement at any place or location and at such times as Provider may determine.
[ X ] Provider will furnish all equipment and materials used to provide the services required by this Agreement.
[ X ] The services required by this Agreement shall be performed by Provider, or Provider’s staff, and Client shall not be required to hire, supervise, or pay any assistants to help Provider.
[ X ] Provider is responsible for paying all ordinary and necessary expenses of its staff.
[ X ] Neither Provider nor Provider’s staff shall receive an training from Client in the professional skills necessary to perform the services required by this Agreement.
[ X ] Neither Provider nor Provider’s staff shall be required to devote themselves full time to the performance of the service required by this Agreement.
[ X ] Client shall not provide insurance coverage of any kind for Provider or Provider’s staff.
[ X ] Client shall not withhold from Provider’s compensation any amount that would normally be withheld from an employee’s pay.
Client agrees not to knowingly hire or solicit Provider’s employees during performance of this Agreement and for period of 12 months after the termination of this Agreement without Provider’s written consent.
Each party will designate a representative within the Proposal to receive and send materials, approvals, comments, invoices and other materials discussed in this Agreement.
Provider will maintain the website or provide additional development after its launching per the terms stated below:
Client will pay Provider within thirty (30) days of receiving the Provider’s invoice. Client grants to Provider a license to reproduce and modify the website content to provide these services.
[ X ] If a dispute arises, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected.
Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute. If the dispute is not resolved within thirty (30) days after its referred to the mediator, either party may take the matter to court
If a dispute arises, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected.
The parties will share the costs of the mediator equally. Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute.
If the dispute is not resolved within thirty (30) days after its referred to the mediator, it will be arbitrated by an arbitrator to be mutually selected. Any arbitration award shall include a written record explaining the decision, Judgment on the arbitration award may be entered in any court that has jurisdiction over the matter. The arbitrator will allocate costs of arbitration, including attorney fees.
If there is litigation, the prevailing party may collect from the other party its reasonable attorney fees incurred in enforcing this Agreement.
The provisions of Sections 14 through 16 will survive any termination of this Agreement.
(a) Complete Agreement: This Agreement, together with all exhibits, appendixes, or other attachments, which are incorporated by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter.(b) Modifications to Agreement: Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and signed by authorized representatives of both parties.(c) Applicable Law: This Agreement will be governed by the laws of the State of Texas.(d) Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
(e) No Agency: Nothing contained herein will be construed as creating an agency, partnership, joint venture, or other form of joint enterprise between parties.(f) Assignment: The rights and obligations under this Agreement are freely assignable by either party. Client shall retain the obligation to pay if the assignee fails to pay as required by Agreement.(g) Successors and Assigns: This Agreement binds and benefits heirs, successors and assigns of parties.(h) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement will be interpreted so as best to carry out the parties’ intent.
Each party represents and warrants that on this day they are duly authorized to bind their respective principals by their signature below.
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Signed by Angela Molock
Signed On: March 30, 2018
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Document Name: Website Development Agreement
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