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This Agreement is made as of the date of registration, between (“CLIENT”) a corporation, and Conroy Consults (also known as Jarvis Site Builder). (“Conroy Consults”).
WHEREAS CLIENT desires to establish a website to promote and sell its [products and/or services] to the public on the Internet;
AND WHEREAS Conroy Consults is in the business of and has substantial expertise in providing design and development services in connection with creating sites on the Internet;
AND WHEREAS Conroy Consults desires to design, develop and assist in the implementation of a website for Client under the terms and conditions set forth in this Agreement;NOW THEREFORE, in consideration of the respective covenants set forth herein, the parties agree as provided herein.
Terms used in this Agreement and not otherwise defined shall have the following meanings:
“Agreement” means this agreement herein, together with any future written and executed amendments.
“Client Content” means all of the materials supplied by Client to Conroy Consults for display or use in connection with website, including text, audio and/or visual works, photos, and brand materials such as trade names, service marks, or logos owned or licensed by Client, including all copyrights, and trademark, patent, and trade secret rights vested therein.
“Website” means the website designed and maintained by Conroy Consults for Client.
“Developer Materials” means any computer software, tools, HTML script, know-how, techniques, concepts, or ideas related to the design, development, or implementation of the website and any text, visual displays, audio recordings, video, or other works of authorship related to the display of the website that are owned by Conroy Consults as of the date of this Agreement or that are licensed by Conroy Consults from a third party.
“Documentation” means the user documents that fully explain to Client the design and the operation of the website.
“Host Server” means the hosting computer environment that has been designated by Client to host the website.
“website” means the branded site on the Internet that will be designed, developed, and implemented for Client by Conroy Consults under this Agreement.
Nature of Services
Website. Subject to the terms and conditions of this Agreement, Conroy Consults shall install the website to the Client within ten (20) business days of the Client providing Conroy Consults of written confirmation of their choice of website design. Client shall have ultimate artistic and editorial control of the website, including its branding, displays, integration, and look and feel.
Website Installation. Conroy Consults shall install or assist Client in installing the website on a computer server operated by Conroy Consults and approved in advance by the Client.
Initial Payment. Upon the execution of this Agreement, Client shall pay to Conroy Consults the sum of the initial set up fee agreed upon. The initial setup fee is non-refundable.
Website Services. In consideration for the services rendered by Conroy Consults under this Agreement, including but not limited to support and maintenance of the website, Client shall pay to Conroy Consults the fixed price agreed upon per month, plus applicable taxes, payable every 30 days from the initial registration throughout the term of this Agreement.
Expenses. Expenses incurred by Conroy Consults in the course of delivering the Services hereunder shall be for the account of Conroy Consults.
Late Payments. Interest may be charged by Conroy Consults on amounts payable to it which are not paid within 30 days from the date such amount becomes payable to Conroy Consults hereunder at the rate of TWENTY-EIGHT percent (28%) per month commencing with the date payment was due.
Re-Design. Should the client wish to change or alter the design of the website Conroy Consults will be entitled to a fee of $995.00. A Re-Design does not include adding pages or typing up copy.
Term and Termination
Term Commencement. This Agreement shall become effective when client registers to have site built.
Term. If a term contract was signed this Agreement shall remain in effect for twelve (12) months after Conroy Consults receives initial registration. Following the twelve month term the agreement shall renew on annual basis and remain in effect until Conroy Consults receives written notice of termination from the Client twenty (20) days prior to the next renewal, or there is a termination for default or termination for non-payment. Following termination, (a) client will be responsible to pay the remaining term b) after which no amount not then payable under this Agreement will become payable nor will any amount paid be reimbursable, and (b) Conroy Consults shall own all work product produced up to such time and Conroy Consults.
Clients may cancel their service at anytime. If the cancellation date occurs in the middle of a payment period, no proration or credit thereof will be applied the account.
Transfer of website. Upon a terminating event within the first 12 months of service, Conroy Consults can supply all of your website files for use in a migration by a third party for a fee of $495. Upon a terminating event following the first 12 months of paid service, Conroy Consults can supply all of your website files for use in a migration by a third party for a fee of $295.
Termination for Default. Either party may provide written notice to the other of any default to any term or obligation contained in this Agreement. The defaulting party will have ten (10) days to cure that default, failing which the non-defaulting party may terminate this Agreement.
Domain Names. Upon the terminating event, Conroy Consults agrees to transfer, assign or make available to the Client the domain name of every website which is the subject of this agreement for a fee of $99.
Termination for Non-Payment. If any part of Client’s account remains outstanding for a period of thirty (30) days or more from the date the initial payment was due, Conroy Consults, may remove the website from the host server and terminate this Agreement immediately. Should Client wish to reinstate this Agreement, Conroy Consults will be entitled to a fee of two hundred dollars ($200.00) associated with the reactivation of the website, in addition to amounts already owing.
Duty to Cooperate. The parties hereby acknowledge and agree that the successful completion of the services hereunder shall require the full and mutual good faith and cooperation of the parties. In the event Client has delayed in providing, or failed to provide, Conroy Consults with information that is required to proceed with the development or installation of the website, then Conroy Consults’ obligations, which are dependent upon such information or approval, shall be extended to reflect such delay.
Client Content. Client shall be solely responsible for the accuracy and content of Client Content, including any claims or liability that may arise therefrom.
Confidential Information. Confidential Information shall mean all unpublished technical information (such as computer programs, tools, or technical processes), all artistic information (such as product design) and all unpublished business and financial information (such as product promotion or business plans, advertising revenues and relationships, marketing data and projections) disclosed by either party to the other in the course of designing, developing, or implementing the website which information is in writing, except such information which (i) was previously known to the information recipient as of the time of its disclosure, (ii) thereafter becomes part of the public domain through a source other than the receiving party or (iii) is subsequently disclosed by a third party not under a confidentiality agreement with the providing party.
Standard of Care. The parties shall not disclose Confidential Information to anyone other than their employees who have a need to know in connection with the performance of Services under this Agreement, and as has been authorized in writing in advance by the providing party.
Return of Confidential Information. Upon completion of the services hereunder, the parties shall deliver to each other all materials containing the Confidential Information of the other, or make such other reasonable disposition as the providing party may direct. However, the confidentiality obligations of each party shall survive the expiration or termination of this Agreement.
Client Content. All right, title, and interest to Client Content shall remain the sole and exclusive property of the Client. All Client Content shall be promptly returned to Client upon request. Nothing in this Agreement shall be construed to grant to Conroy Consults any ownership or licensing rights to the Client Content. Client hereby grants to Conroy Consults a non-transferable limited license during the term of this Agreement to use Client Content, including the making of copies, solely for the benefit of the Client in accordance with the terms and conditions of this Agreement.
Developer Materials. Conroy Consults shall at all times be and remain the sole and exclusive owner of all Developer Materials. To the extent the website utilizes Developer Materials, whether specially adopted for use by Client or not, Conroy Consults grants to Client a non-exclusive license to use the same for the sole and exclusive purpose of enabling Client to transmit, use and display the website. Client hereby acknowledges that Conroy Consults is in the business of designing and developing websites and accordingly Conroy Consults will be providing to third parties services similar to the services provided to Client and will be using Developer Materials in providing such services. Therefore, nothing in this Agreement shall be construed so as to preclude Conroy Consults from developing, using, or marketing Developer Materials to other prospects and clients.
Conroy Consults Representations, Warranties and Covenants
Performance of Services. Conroy Consults services hereunder will be rendered using sound professional practices by knowledgeable, trained, and qualified personnel in appropriate numbers to perform this Agreement in a timely fashion.
Developer Materials. Conroy Consults hereby represents and warrants that to its best knowledge the Developer Materials do not infringe a copyright, trademark or patent, nor any trade secret arising under applicable law.
Authority. Conroy Consults hereby represents and warrants that it has the power and authority to enter into this Agreement and that to its best knowledge there is no outstanding contract or commitment or legal impediment of any kind that conflicts with this Agreement or that may limit or impair the rights granted hereunder.
Viruses. Conroy Consults hereby represents and warrants that the website will not contain any viruses, defects, clocks, timers, counters, or other limiting or disabling codes, designs or routines or any obscene, threatening or malicious content.
Client Content. Client hereby represents and warrants that to its best knowledge the Client Content does not infringe a copyright, trademark or patent, nor any trade secret arising under applicable law.
Authority. Client hereby represents and warrants that it has the power and authority to enter into this Agreement and that to its best knowledge there is no outstanding contract or commitment or legal impediment of any kind that conflicts with this Agreement or that may limit or impair the rights granted hereunder.
Indemnification Against Third Party Claims
Mutual Indemnifications. Each party shall indemnify, defend, and hold harmless the other and its directors, officers, employees, and agents with respect to any claim, demand, cause of action, debt or liability (the “Claims”) and pay any costs or damages including reasonable attorneys fees that may be finally awarded against the Claimant to the extent the Claims if true, would constitute a breach of the warranties and representations made hereunder by the warrantor regarding the Developer Materials and the Client Content to the other party, or arise out of the gross negligence or wilful misconduct of the indemnifying party.
Notice. In claiming any indemnification hereunder, the claimant shall promptly provide the indemnifying party with a written notice describing the claim that the indemnified party believes falls within the scope of the indemnifications made hereunder.
Control. The indemnified party shall at its own expense defend any such claim and shall control such defense and all negotiations to settle any such claim provided that a binding settlement shall not be made without the indemnified party’s written consent, which shall not be unreasonably withheld.
Limitation of Liability
Indirect or Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Time Limitation. No action, regardless of the form, arising out of the undertakings under this Agreement, may be brought by either party more than two years after the cause of action has occurred.
Amendments. No amendment, change, or waiver under this Agreement shall be valid unless in writing and signed by the party against which such amendment, change, or waiver is sought to be enforced.
Assignment. This Agreement may not be assigned by either party other than with the consent of the other party, provided that this Agreement may be assigned or otherwise transferred by Client to any person or entity related to Client or its shareholders. Upon such consent the terms and conditions of this Agreement shall extend to and bind any permitted successor or assign.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all oral or written communications between the parties.
Force Majeure. If the performance of this Agreement by either party is prevented or delayed or otherwise made impracticable by reason of any cause beyond the control of either party, that party shall be excused therefrom.
Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada without regard to its conflict of laws rules and Conroy Consults and Client agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the courts of the Province of Ontario, and the parties hereby submit to the jurisdiction of such courts.
Notices. All notices made under this Agreement shall be by way of email: if to Conroy Consults, to email@example.com, and if to client by way of email. Notice is effective the day it is sent.
Relationship of Parties. In the performance of this Agreement, Conroy Consults and its project staff are acting solely as independent contractors of Client. This Agreement shall not be interpreted to create a partnership or joint venture; neither party is the other’s partner, employee, or agent.
Currency. All references to dollars in this Agreement refer to the lawful currency the United States.
Vendor Marketing. Conroy Consults may identify Client as a Conroy Consults client in advertising, publicity, or similar materials distributed or displayed to prospective clients, and Conroy Consults may display pre-approved portions of the website for the purpose of marketing and advertising its services to others.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date stated above.
The parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of California with respect to any matter arising under or related to this Agreement. The parties hereby irrevocably consent to any litigation arising out of this agreement being in the court in Orange County, California.