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This
WEB SITE DEVELOPMENT AGREEMENT ("Agreement") is an agreement between
GM NetWorks. ("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.
W I T N E S S E T H:
WHEREAS,
Customer desires to engage Company to design, develop, create, test,
and deliver a web site as more specifically set forth in the Order
(“Web Site”), as a work made for hire and to host the Web Site on
Company’s Web Server and make the Web Site available for browsing on
the Internet; and
WHEREAS, Company is interested in undertaking such work; and
WHEREAS, Customer and Company mutually desire to set forth the terms applicable to such work;
NOW,
THEREFORE, for the mutual consideration set forth herein, the adequacy
of which is hereby acknowledged, Customer and Company, intending to be
legally bound, hereby agree as follows:
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”). GM NetWorks 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 GM NetWorks (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
four (4) weeks of the date of the Order unless otherwise noted.
If Customer has not submitted complete text and graphics content within
six (6) 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. 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
Company makes the following representations and warranties for the benefit of Customer:
A. 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.
B. 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.
C. 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.
D. 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.
Customer makes the following representations and warranties for the benefit of Company:
E.
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.
F.
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.
G.
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
Each
Party warrants that their representative whose signature appears below
is duly authorized by all necessary and appropriate corporate actions
to execute this Agreement.
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