THIS AGREEMENT is made this day of echo date("F j, Y"); ?> by and between Fencl Web Design.Com, LLC ("Developers") The Customer Submitting this Agreement ("Customer").
A. Developers have experience and expertise in the development of web sites.
B. Customer desires to have Developers to perform development on the current web site.
C. Developers desire to develop the Customers web site on the terms and conditions set forth herein (the "Web Site").
In consideration of the mutual covenants set forth in this Agreement, Customer and Developers hereby agree as follows:
1. Development of Web Site. Developers agree to develop the Web Site according to the terms listed here.
2. Specifications. Developers agree to develop the Web Site pursuant to the payments made by the Customer on an hourly rate basis. (the "Specifications").
3. Delivery of Web Site.
Developers will use reasonable diligence in the development of the Web Site. Customer acknowledges, however, that this delivery deadline, and the other payment milestones listed, are estimates, and are not required delivery dates. The customer must not do anything to hold up the development of the web site, and such delays may cause extra charges to the customer. If the Customer does not provide information in a timely manner, the web site may be incomplete when finished, and therefore need later updating at the Customers expense.
4. Ownership Rights.
Customer shall retain all of its intellectual property rights in any text, images or other components it owns and transmits to Developers for use in the Web Site. Developer shall hold all right, title, and interest in the following supplied by the Developer (1) digital components of the Web Site (the "Content"), (2) all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, and all other components of any source or object computer code that comprises the Web Site, (3) all literal and nonliteral expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Content, and (4) all copyrights, patents, trade secrets, and other intellectual or industrial property rights in the Web Site or any component or characteristic thereof. Developer may also use copyrighted scripts and programs of other programmers in the development. All copyrights and trademarks must remain intact. The Customer owns the site after the final payment is made and is not restricted in its use. The content and site is the Customers to move and display as the Customer pleases. This clause simply protects the copyrights of the author(s) and creators of the code.
For all of Developers services under this Agreement, Customer shall compensate Developers, in cash, credit card, check, or PayPal. In the event Customer fails to make any of the payments, Developers have the right, but are not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) pull the Web Site, (3) bring legal action.
Customer and Developers acknowledge and agree that the Specifications and all other documents and information related to the development of the Web Site (the "Confidential Information") will constitute valuable trade secrets of Developers. Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Developers prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the "Confidential Information" definition is anything that can be seen by the public on the Web Site when each page of the Web Site is first accessed.
7. No Warranty and Limitation on Damages.
There is no warranty expressed or implied. Developers do not warranty the work, because the site was not created by the Developers. If the Customer finds an issue they can ask the Developers to fix it at the standard hourly rate. Developers reserve the right to decline taking requested work from the Customer. Most web sites will need future updates, due to, but not limited to, the following: browser changes, server security updates, and outdated information. There is no guarantee against hackers, virus, acts of God, or network outages. This warranty shall be the exclusive warranty available to the Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Developers do not warrant that the Web Site will work on all platforms. Customer acknowledges that Developers are not responsible for the results obtained by the Customer on the Web Site. Developers do not guarantee Customer placement in search engine results. Customer waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Developers in the last 30 days.
8. Independent Contractor.
Developers are retained as independent contractors. Developers will be fully responsible for payment of their own income taxes on all compensation earned under this Agreement. Customer will not withhold or pay any income tax, social security tax, or any other payroll taxes on Developers behalf.
Customer agrees to make available to Developers, for Developers use in performing the services required by this Agreement, such items as web site FTP and the web sites server access as are necessary for such purpose.
10. General Provisions
10.1 Entire Agreement.
This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both of the parties hereto.
10.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Exclusive jurisdiction and venue shall by in the Brevard County, Florida superior courts.
10.3 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Customer and the Developers and their respective successors and assigns, provided that Developers may not assign any of his obligations under this Agreement without Customers prior written consent.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such partys right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
10.5 Good Faith.
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
10.6 Right to Remove Web Site.
In the event Customer fails to make any of the payments within the time prescribed, Developers have the right to remove the web site until payment in full is paid, plus accrued late charges of 1 1/2% per month.
Customer warrants that everything it gives Developers to put on the Web Site is legally owned or licensed to Customer. Customer agrees to indemnify and hold Developers harmless from any and all claims brought by any third party relating to any aspect of the Web Site, including, but without limitation, any and all demands, liabilities, losses, costs and claims including attorneys fees arising out of injury caused by Customers products/services, material supplied by Customer, copyright infringement, and services sold via the Web Site.
10.8 Use of Web Site for Promotional Purposes.
Customer grants Developers the right to use the Web Site for promotional purposes, such as showing past work.
10.9 No Responsibility for Theft.
Developers have no responsibility for any third party taking all or any part of the Web Site.
10.10 Attorneys Fees.
In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorneys fees and costs, including expert witness fees.
10.11 Identification of Developers.
Customer agrees that Developers link will be placed on the bottom of the pages of the Web Site near the copyright notice.
10.12 No responsibility for loss.
Developers are not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of the Web Site. Due to the unpredictable nature of search engines there are no guarantees as to the outcome in search engine rankings, inclusion and placement.
If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
11. Development and Development Costs
11.1 Updating Pages of the Web Site.
11.2 Updates and Changes to the Web Site.
Any updates or changes to the web site requested by the Customer and completed by the Developers in the future, or during the development phase will be billed to the Customer at $29 for 20 minute segments. Technical support and phone support is billed at the same rate. The price of this service is guaranteed not to increase in price for 2 months. Some updates maybe quoted and billed on a flat rate, for instance $250 for installing a script may be a flat rate job. However, flat rate jobs must be quoted by the Developers in advance, and accepted by the Customer before work is performed.
11.3 Additional Text from Professional Writer
1,000 words of professional text to add to the pages of the web site is $295 per each 1,000 words. Two sets of changes are available at no extra charge. The writer is not in the Customers industry so the text many only be 90 percent accurate and may require some additional edits on the Customers part.
11.4 Payment Terms.
Down payment of one half of the estimated cost due at start. The final balance will be due immediately at web site launch, or completion, whichever comes first. Customer must not delay completion to avoid making the final payment. If so they amount of work performed to that point will be due immediately.
11.5 Payment Disclaimer
At Fencl Web Design.Com, LLC we accept Visa, MasterCard, Discover and American Express as our preferred payment methods. Your payment information will be handled securely and will not be shared with others. For your safety your credit card information is not stored on this web site. I authorize Fencl Web Design.Com, LLC to charge my purchases on the above referenced credit card. I agree that there are no refunds on labor based products and services, and that I realize you cannot give back the time spent. I also agree that no "charge-backs" will be issued, prior to making contact with Fencl Web Design.Com, LLC to settle any disputes and acquiring written agreement to perform a "charge-back".