This Agreement is dated and in effect immediately between CLIENT hereafter referred to as “Client,” and John Wolfe Compton. This Agreement is with respect to the redesign of the Client’s website, hereafter referred to as the “Work.” Whereas, John Wolfe Compton is a professional web design company of good standing; Whereas, Client wishes John Wolfe Compton to create certain Work described more fully herein; and Whereas, John Wolfe Compton wishes to create such Work; Now, therefore, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereto agree as follows:
During the term of this Agreement, each party may have access to confidential and/or proprietary information concerning the other, including all business and operating information, whether oral or written and whether or not marked as confidential and proprietary. Client agrees that the terms of this Agreement are confidential and proprietary information of John Wolfe Compton. Each party shall limit disclosure of the other party’s confidential information to employees and contractors with a need to know. During the term of this Agreement and for a period of two (2) years thereafter, neither party shall disclose confidential information of the party to any third party, and shall not use the confidential information of the other party for any purposes other than as outlined in this Agreement.
3. Statement of Work
A separate Proposal or invoice will describe the Work that is required of John Wolfe Compton for the Client.
4. Completion of Work
4.1 Work Completion
John Wolfe Compton warrants completing the Work in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client in the Proposal or invoice. John Wolfe Compton will not charge more than the amount previously agreed unless the Client has varied the specifications of the Work since this Agreement. John Wolfe Compton will not undertake changes to the specifications of the Work which would increase the cost, without prior written or verbal authorization from the Client.
4.2 Supply of Materials
The Client is to supply all materials and information required for John Wolfe Compton to complete the Work in accordance with the agreed specifications. Such materials may include, but are not limited to, photographs, written copy, logos and other printed materials. Where the Client’s failure to supply such materials leads to a delay in completion of work, John Wolfe Compton has the right to extend previously agreed deadlines for the completion of the Work by a reasonable amount. Where the Client’s failure to supply materials prevents progress on the Work for more than 21 days, John Wolfe Compton has the right to invoice the Client for any part or parts of the Work already completed.
4.3 Assignment of Work
John Wolfe Compton reserves the right to assign other designers or subcontractors to the Work to ensure quality and on-time completion.
4.4 Design Phase
John Wolfe Compton will submit a site outline for the Client’s review prior to coding. The Client should notify John Wolfe Compton of any changes within 7 days. Should 7 days pass without a response from the Client, John Wolfe Compton will assume approval and commence work on the Coding Phase. The Client may request up to two design revisions, after which point John Wolfe Compton will consider additional revisions outside the scope of this Agreement, and charge additional fees on an hourly basis. Should the Client request additional design revisions after approval, additional fees shall also be applied.
4.5 Coding Phase and Completion
On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify John Wolfe Compton, in writing, of any unsatisfactory points within 7 days of receipt of such notification. Any of the Work which has not been reported in writing to John Wolfe Compton as unsatisfactory within the 7 day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected without incurring additional fees.
4.6 Rejected Work
If the Client rejects the Work more than twice within the allotted 7 day review periods, or will not approve subsequent Work performed by John Wolfe Compton to remedy any points reported by the Client as unsatisfactory, and John Wolfe Compton considers that the Client is unreasonable in his or her repeated rejection of the Work, the agreement will be deemed to have expired and John Wolfe Compton can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
Once the Work has been completed, approved, and posted to the Client’s web server, John Wolfe Compton will provide the Client with up to two (2) hours of instruction on the usage of the Website. This shall be conducted in person or over the telephone.
5. Payment Schedule
5.1 Fee Payable
The starting date for this agreement is stated in the initial invoice.
Client shall pay John Wolfe Compton one-half the total project, as a non-refundable deposit for project commencement.
The remaining balance is due on completion date, and prior to file relinquishment, or upload and/or assembly of website on Client’s web server.
The Client agrees to reimburse John Wolfe Compton for any of the following expenses necessary in completion of the Work: (e.g. Fonts, Proofs, Props, Research, Shipping, Software, Stock Photography, Travel, Telephone Consultation).
5.3 Remedies for Overdue Payment
If payment has not been received by the due date, John Wolfe Compton has the right to suspend ongoing work for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 21 days after the due date, John Wolfe Compton has the right to replace, modify or remove the Website and revoke the Client’s license of the Work until full payment has been received. By revoking the Client’s license of the Work or removing the site from the Internet, John Wolfe Compton does not remove the Client’s obligation to pay any outstanding monies owing.
6. Fees & Additional Services
Changes in Client input or direction or excessive changes will be charged at $100 per hour. Any work the Client wishes John Wolfe Compton to create, which is not specified in this Agreement or the attached Proposal will be considered an additional service. Such Work shall require a separate Agreement and payment separate from and above that specified in this Agreement.
7. Intellectual Property
7.1 Offers and Proposals
Offers and proposals made by John Wolfe Compton to potential clients should be treated as trade secrets and remain the property of John Wolfe Compton. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from John Wolfe Compton. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
7.2 Warranty by Client as to Ownership of Intellectual Property Rights
The Client will obtain all the necessary permissions and authorities in respect to the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to John Wolfe Compton for inclusion on the Website. The conclusion of a agreement between John Wolfe Compton and the Client shall be regarded as a guarantee by the Client to John Wolfe Compton that all such permissions and authorities have been obtained and that the inclusion of such material on the Website would not constitute a criminal offence or civil delict. By agreeing to these terms and conditions, the Client removes the legal responsibility of John Wolfe Compton and indemnifies the same from any claims or legal actions however related to the content of the Client’s site.
7.3 Domain Name
Any Domain Name obtained will belong to the Client. The Client agrees to indemnify John Wolfe Compton, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
7.4 Copyright and Licensing
Once John Wolfe Compton has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with this Agreement hereof, John Wolfe Compton will transfer to the Client copyright ownership of all graphics, text and HTML and CSS files used in the final design. John Wolfe Compton will retain ownership of all application source code that is not publicly available, while the Client will be granted a license to use the application. Any code that is not freely accessible to third parties and not in the public domain, and to which John Wolfe Compton or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from John Wolfe Compton. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which John Wolfe Compton or their suppliers owns the copyright.
7.5 Reservation of Rights
All rights not expressly granted in this Agreement are reserved to John Wolfe Compton, including but not limited to all rights in sketches, comps, Photoshop files, or other preliminary materials.
8.1 Third Parties
John Wolfe Compton can take no responsibility for services provided by third parties through us or otherwise, including the Hosting of the Client’s Website, although John Wolfe Compton will endeavor to ensure that Website downtime is kept to a minimum.
8.2 Maintenance and Correction of Errors
John Wolfe Compton takes no responsibility for the functionality or maintenance (unless a maintenance agreement is in place) of the Website after the Work has been completed. Errors (both technical and typographical) attributable to John Wolfe Compton will be corrected free of charge, but John Wolfe Compton reserves the right to charge a reasonable fee for correction of errors for which John Wolfe Compton is not responsible, including, but not limited to malicious modification of the Website by a third party and typographical errors contained in materials provided to John Wolfe Compton by the Client.
8.3 Consequential Loss
Under no circumstances will John Wolfe Compton be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its software. The Client should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software failure.
8.4 Exclusion of Warranties
All services are provided as is without warranty or condition of any kind. John Wolfe Compton disclaims any and all warranties or representations, express or implied, including, without limitation, the implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose.
8.5 Limitation of Liability
John Wolfe Compton Liability for damages of any nature arising from errors, mistakes, omissions, interruptions or delays of John Wolfe Compton in the course of providing the Services will not exceed an amount equal to the charges under this Agreement for the period during which such error occurred. John Wolfe Compton shall have no liability for any direct, indirect, special, incidental or consequential damages of any kind (including lost profits or lost revenues) arising from any act or omission under this Agreement regardless of whether such damages are foreseeable by John Wolfe Compton.
Client agrees to indemnify, defend and hold harmless John Wolfe Compton and its affiliates and their respective officers, directors, agents, employees, subsidiaries, partners, members and controlling persons (each, an “Indemnified Party”) to the fullest extent permitted by law from and against any and all damages, expenses (including reasonable fees, disbursements and other charges of counsel incurred by the Indemnified Party in any action between the Client and the Indemnified Party or between the Indemnified Party and any third party or otherwise) or other liabilities resulting from or arising out of (i) the conduct or operation of the Client’s business, or (ii) any allegation that the content provided and approved by the Client on the John Wolfe Compton Website contained material misrepresentations or omitted material information necessary to make the statements there, in light of the circumstances in which they were given, not misleading.
8.7 Events Beyond the Control of John Wolfe Compton
John Wolfe Compton will not be liable for breach of agreement where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of John Wolfe Compton.
Either party may terminate the Agreement by giving 30 days’ written notice to the other of such termination. In the event that Work is postponed or terminated at the request of the Client, John Wolfe Compton shall have the right to bill pro rata for work completed through the date of that request, while reserving the rights under this Agreement. If additional payment is due, this shall be payable within 30 days of the Client’s written notification to stop work. In the event of termination, the Client shall also pay any expenses incurred by John Wolfe Compton and John Wolfe Compton shall own all rights to the Work. The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
The Client and John Wolfe Compton are independent parties and nothing in this Agreement shall construe either party as the employer, principal or partner of or joint venture with the other party. Neither the Client nor John Wolfe Compton has any authority to assume or create any obligation of liability, either express of implied, on behalf of the other.
This Agreement shall be governed by and construed in accordance with the laws of California applicable therein.