Confidential Information

Scope of Services

A.Client hereby engages Designer as an independent Designer to provide the services set forth in the attached Exhibit A (the “Services”). The Client will provide information, access and data as reasonably necessary to complete the Services, including, but not limited to access to web accounts and image data. The Client is responsible for choosing, paying for, and maintaining any required hosting solutions and associated services. Designer is not responsible for down time, poor performance, or loss of data caused by Client’s hosting provider.

B.Upon full delivery of the Services, the Client is solely responsible for the backup and restoration of the content provided by the Services and any associated data.

C.The Designer shall make every effort to provide a secured finished product. Although, the Designer does not guarantee that the product will not be subject to security breaches.

D.Designer will not test the product in old or abandoned browsers. The Designer fee includes the initial installation of the product to the Client’s site or server.

2. Payment Terms:

A.Designer will be paid [ENTER TOTAL FEE FOR ENTIRE PROJECT OR AGREEMENT]

OR

[MILESTONE PAYMENTS TO BE MADE IN WHAT AMOUNTS AND ON WHICH DATES]

OR

[XX per hour].

[Additionally, Client will reimburse Designer for all reasonable out-of-pocket expenses which are necessary for Designer to complete Services related to this Agreement, so long as the Designer submits appropriate supporting documentation. Expenses in excess of [AMOUNT] individually or [AMOUNT] in total must be approved in advance.]

All prices are in [EURO / DOLLAR / OTHER CURRENCY] and [EXCLUSIVE / INCLUSIVE] of VAT (if applicable).

B.Invoices detailing hours worked and out-of-pocket expenses or any milestone payments, and containing any other information requested by Client, need to be submitted monthly to Client for approval. Client will pay Designer on a monthly basis for approved invoices within [TIME PERIOD] after receipt of bill. The assignment of any Materials to the Client is dependent upon receipt of the entire payment and/or any outstanding invoices.

C.Designer is solely responsible for (i) any real or personal property taxes, assessments, or levies on property owed by Designer, (ii) any franchise or privilege taxes on Designer’s business, (iii) any taxes measured or based on Designer’s gross net income, (iv) employment taxes for Designer’s personnel, and (v) any sales, use, excise, value-added, services, consumption, or other taxes or duties on any goods or services used or consumed by Designer in providing the Services.

D.If the Client requests that the scope of the project change materially after the onset of the Services, the Parties will work together in good faith to adjust the total fee or the agreed upon amount of hours needed to complete the Services.

3. Independent Designer:

Designer understands that it is acting as an independent Designer, that Designer is solely responsible for its actions or inactions, and that nothing in this Agreement shall be understood to create an agency or employment relationship between Client and Designer for any purpose.

Confidential Information

A.Each Party is likely to disclose information (“Disclosing Party”) to the other (“Receiving Party”) from time to time during the term of this Agreement, which is marked or designated as confidential or proprietary at, or prior to disclosure, or which would appear to be confidential and/or proprietary in nature (“Confidential Information”). The Receiving Party will not disclose such Confidential Information to any person other than as provided for in this Agreement or as necessary to carry out that Party’s obligations under this Agreement. This restriction does not apply to information that (i) the Receiving Party must disclose by law or legal process, (ii) is either already public or enters the public through no fault of the Receiving Party, (iii) is available to the Receiving Party from a third party who is not under any non-disclosure obligation to the Disclosing Party, or (iv) is independently developed by or for the Receiving Party without reference to any Confidential Information of the Disclosing Party

B.The confidentiality obligations for the Parties under Section 4 shall survive for a period of ten (10) years from the date of termination of this Agreement or for a longer time if required by law, except that any trade secrets disclosed to the Receiving Party shall be kept in confidence in perpetuity or until such time as they are no longer reasonably considered to be trade secrets by the Disclosing Party.

Title To Material

A.All rights in and to all work and work products developed or produced specifically and exclusively by the Designer for the Client under this Agreement, in whatever form, and in all patents, trademarks, copyrights, trade secrets and the like derived from such work and work products (“Materials”), are hereby assigned and transferred by Designer to Client. Client accepts the assignment and transferal.

B.Any content created or prepared by Designer prior to the effective date of this Agreement, whether used in the performance of this Agreement or not, will be owned exclusively by Designer. To the extent Designer uses any content they created or prepared prior to the effective date of this Agreement in the performance of Designer’s obligations under this Agreement, Designer grants Client a non-exclusive, non-transferable, royalty-free, perpetual right to use such content during the term of this Agreement and thereafter.

6. Duration and Termination of this Agreement:

This Agreement will continue until terminated as provided in this Section. This Agreement may be terminated (i) by either Party upon ninety (90) days’ prior written notice to the other Party or (ii) by either Party upon material breach by the other Party, which breach is not cured within thirty (30) days after receipt of written notice thereof. After the termination of this Agreement, Sections 3, 4, 5, 6 and 7 will survive in full force and effect.

7. Additional Terms:

A. Waiver - The failure by either Party to insist upon strict performance of any provision of this Agreement shall in no way constitute a waiver of rights under this Agreement, at law or in equity.

B. Assignment - Neither Party may assign this Agreement without the prior written consent of the other.

C. Indemnification - Party agrees to indemnify, hold harmless and defend the other from any third-party claims brought against such Party due to the other Party’s infringement of a third-party’s intellectual property rights in relation to the Services offered under this Agreement.

D. Insurance –Client will not provide insurance of any type (liability, commercial or otherwise) and Designer acknowledges and agrees that Designer will obtain insurance if Client deems it necessary and prudent and that Designer will do so at its own expense.

E. Scope of Work Change - Client agrees and acknowledges that any alterations or additions to the Materials above and beyond those contemplated in Exhibit A, may increase the timeline and cost of the Services. Should a change be requested, the Parties will work in good faith to adjust the timeline and costs accordingly.

F. Representations and Warranties - Designer promises that all Services: (i) will be performed in line with the Client’s reasonable written instructions; (ii) will be performed to the best of Designer’s ability and in an effective, timely and professional manner and (iii) will comply with all applicable laws, rules, regulations, orders of any governmental agency, and will not violate the terms of any contracts between Designer and any third parties.

G. Governing Law and Jurisdiction - Any and all actions or proceedings arising out of, or relating to this Agreement will be governed by, and interpreted in accordance with, the law of [JURISDICTION].

H. Severability – It is the intent of the Parties that the provisions of this Agreement shall be enforced to the fullest extent permitted by applicable law. To the extent that the terms set forth in this Agreement or any word, phrase, clause or sentence is found to be illegal or unenforceable for any reason, such word, phrase, clause or sentence shall be modified, deleted or interpreted in such a manner so as to afford the Party for whose benefit it was intended the fullest benefit commensurate with making this Agreement as modified, enforceable and the balance of this Agreement shall not be affected thereby, the balance being construed as severable and independent.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives:

[CLIENT’S NAME]

CLIENT

By: _____________________________________

Name: _____________________________________ Date: _______________

(Please Print)

Title: ______________________________________

ACCEPTED AND AGREED

[DESIGNER’S NAME]
DESIGNER

By: _____________________________________

Name: _____________________________________ Date: _______________

(Please Print)

Title: ______________________________________

Exhibit A – Scope of Services Further Defined

[INCLUDE FURTHER DETAILS HERE REGARDING EXACTLY WHAT THE DESIGNER SHOULD PROVIDE AND OVER WHAT TIME FRAME. YOU SHOULD BE AS SPECIFIC AS POSSIBLE].

NOTES (REMOVE THIS SECTION UPON COMPLETION OF THE AGREEMENT DRAFT)

Section 2.A – In regards to milestone payments, typically a point is chosen within the project when a certain hurdle has been passed (such as the development of a draft or the completion of a prototype). A percentage of the total fee is then paid upon delivery of this portion of the work. This is up to negotiation between the Parties and as much flexibility as needed can be used when determining the milestones specifics and the corresponding percentage payments.

Section 2.B – The length of time for the Client to pay the bill is up to negotiation between the Designer and the Client. The standard length of time is 30 days.

Section 5.A - This Section puts the Client, for which the Designer is producing Content, on notice that only items developed specifically and exclusively for the Client shall be considered the property of the Client and that the Client shall have all of the intellectual property rights in such materials.

Section 5.B - This Section allows the Designer to keep all ownership of any intellectual property the Designer has created before the relationship began with the Client, which may need to be used to produce any of the materials for the Client. For instance, if Designer uses a custom template to create a specific web page for the Client, the underlying template will remain the property of the Designer.

Section 7.C – This indemnification protects each Party in case the other Party to this Agreement uses content or work it does not own and/or does not have permission to use. This is a very important clause to include in case the other Party is found to have infringed a third-party’s intellectual property rights and such third-party is able to collect damages due to that use.

Section 7.H – Typically, the party drafting the contract chooses which jurisdiction (often their own jurisdiction) the governing law should be based on. Unless the other Party has a good reason for this to switch to another jurisdiction, the drafting party should keep the jurisdiction as the drafting party sees fit.

Date: 2016-04-22; view: 945