This Agreement is entered into by and between (“Client”) and Tiger Team Solutions , LLC (“Developer”) on the date of signing (the “Effective Date”) that appears on the cost estimate from which these terms and conditions are referred.
WHEREAS, Developer has experience in developing and maintaining Web Sites for third parties; and
WHEREAS, Developer has experience in developing and maintaining Internet Marketing Programs for Web Sites developed for or by third parties; and
WHEREAS, Client wishes to have Developer create a Web Site and or Internet Marketing Program for Client and maintain such Web Site and or Internet Marketing Program for Client, and Developer is interested in undertaking such work; and
WHEREAS, Client shall employ Developer to host its Web Site and or develop and maintain an Internet Marketing Program;
NOW, THEREFORE, in consideration of the promises and mutual covenants and agreements set forth herein, Client and Developer agree as follows:
ARTICLE I - DEF INIT IONS
“Client Content” means the material provided by Client to be incorporated into the Web Site.
“Developer Tools” means the software tools of general application, whether owned or licensed to Developer, which are used to develop the Web Site.
“Development Schedule” shall be as set forth in the cost estimate provided to Client which lists the deliverable items contracted for (“Deliverables”) and the deadlines for their delivery. Payment Schedule shall be as also set forth in the cost estimate.
“Enhancements” means any improvements to the Web Site to implement new features or add new material. Enhancements shall include modifications to the Web Site Content to make the Web Site operate on a Web Hosting Server System.
“Error” means any failure of the Web Site (i) to meet the Specifications and/or (ii) to operate with the Server System.
“Final Version” means a non-copy protected and unencrypted disk master of the final version of the Web Site, recorded in executable form on the specified medium with any necessary supporting software and data, as to which all development work hereunder, and corrections to the Beta Version, have been completed and which meets Specifications.
“ISP” means an Internet Service Provider, which provides access to the Web Site on the World Wide Web portion of the Internet.
“Server System” means the hardware and software owned or licensed by the Web Site Hosting Company.
“Specifications” for the Web Site shall be as set forth in the cost estimate to this Agreement.
“Web Site” means the site to be developed for Client on the graphic portion of the Internet known as the World Wide Web, which is described in the Specifications.
“Web Site Content” shall mean (i) the graphic user interface, text, images, music and other material of the Web Site developed by the Developer under this Agreement which is visible to World Wide Web browsers; and (ii) software developed by Developer under this Agreement to implement the Web Site. Web Site Content shall not include Developer Tools.
“Web Site Hosting Company” means the company that maintains the Server System and provides access to the Web Site via the portion of the Internet known as the World Wide Web.
ARTICLE II - DEVELOPMENT AND DELIVERY OF DELIVERABLES
2.01. Design and Implementation. Developer shall use commercially reasonable efforts, to design and implement the Web Site in accordance with the Development Schedule and Specifications set forth in the cost estimate. Developer, its employees or independent contractors, will perform all design and development work at Developer’s approved offices. Approved independent contractors have executed “confidentiality” and “work-for-hire/assignment” agreements. Those agreements are deemed acceptable to Client.
2.02. Delivery. Developer shall, in good faith, attempt to deliver all Deliverables for the Web Site within the times specified in the cost estimate and in accordance with the Specifications. All Deliverables shall comply with the cost estimate. If Developer determines that a Deliverable cannot be delivered by a specific time, Developer will provide Client with the stated reason for delay of delivery and as much advance notice as possible. Sections 2.03. Manner of Delivery. Developer agrees to comply with all reasonable requests of Client as to the manner of delivery of all Deliverables within the times specified in the cost estimate, which may include delivery by electronic means.
ARTICLE III -TESTING AND ACCEPTANCE; EFFECT OF REJECTION
Section 3.01. Testing and Acceptance Procedure. All Deliverables shall be thoroughly tested by Developer and all necessary corrections as a result of such testing shall be made, prior to delivery to Client. Upon receipt of a Deliverable the milestone payment for that Deliverable is then due according to the cost estimate. Client shall have a period of ten (10) days within which to test the Deliverable and notify Developer in writing of any errors discovered. Upon notification the Developer will correct the errors. If Client has not given notice of errors within ten (10) days the Deliverable is deemed to be accepted by the Client. Any further modification of the Deliverable will be made by written agreement between the parties.
Section 3.02 Additional Quality Assurance. Developer will correct errors in the Deliverable upon notification. Developer shall within thirty (30) days of such notice, or such longer period as Client may allow, submit at no additional charge a revised Deliverable in which notified errors have been corrected. Client shall have an additional ten (10) days to test the Deliverable upon receipt of the corrected Deliverable, and either (a) accept it or (b) notify Developer of further errors to the Deliverable to meet the Specifications and repeat the correction and review procedure set forth in this Section 3.01. In the event Client determines, in its sole discretion, that the Deliverable is still not acceptable after three attempts at correction by Developer, Client may terminate this Agreement pursuant to the termination procedures defined in Article IX, Paragraph 9.01 "Termination of Convenience".
ARTICLE IV - OTHER OBLIGATIONS OF DEVELOPER
Section 4.01. Web Site Warranty. Developer represents and warrants that the Web Site (a) will be free of defects in in all material respects; and (b) will conform to the functional and other descriptions contained in the Specifications. EXCEPT AS STATED IN SECTION 8.01, DEVELOPER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE.
Section 4.02 Website Maintenance. Developer also agrees to provide Client with reasonable technical support and assistance to maintain and update the Web Site on the World Wide Web during the Warranty Period, as set forth in the Cost Estimate. Such assistance shall not exceed four (4) hours during the Warranty Period. Developer agrees to negotiate with Client a reasonable technical support and assistance contract to maintain and update the Web Site on the World Wide Web after expiration of the Warranty Period. Maintenance shall not include the development of Enhancements at the time of the request for Web Site Enhancements.
4.03. Enhancements. Should the Client desire Website Maintenance or to modify the Web Site, the Client may request that Developer provide a bid to provide such Enhancements. Client shall provide Developer a first priority on its resources to create the Enhancements over any other third party with the exception of obligations under contracts with third parties existing on the date of the notice. Such services shall be provided on a time and materials basis at the most favored price under which Developer provides such services to third parties.
ARTICLE V - PROPRIETARY RIGHTS
Section 5.01. Client’s Ownership Rights. Developer acknowledges and agrees that, except as stated in Section 5.03, the Web Site Content and Documentation comprising the design of the Web Site, including but not limited to images, graphic user interface, source and object code and any documentation and notes associated with the Web Site are and shall be the property of Client. Title to all intellectual property rights including but not limited to copyrights, trademarks, patents and trade secrets in the Web Site Content and Documentation is with, and shall remain with Client.
Section 5.02. Assignment of Rights. Except as provided in Section 5.03, Developer hereby irrevocably assigns, conveys and otherwise transfers to Client, and its respective successors and assigns, all rights, title and interests worldwide in and to the Web Site Content and Documentation and all copyrights, trade secrets, patents, trademarks and other intellectual property rights and all contract and licensing rights and all claims and causes of actions of any kind with respect to any of the foregoing, whether now known or hereafter to become known. In the event Developer has any rights in and to the Web Site Content or Documentation that cannot be assigned to Client, Developer hereby unconditionally and irrevocably waives the enforcement of all such rights, and all claims and causes of action of any kind with respect to any of the foregoing against Client, its distributors and customers, whether now known or hereafter to become known and agrees, at the request and expense of Client and its respective successors and assigns, to consent to and join in any action to enforce such rights and to procure a waiver of such rights from the holders of such rights. In the event Developer has any rights in and to the Web Site Content or Documentation that cannot be assigned to Client and cannot be waived, Developer hereby grants to Client, and its respective successors and assigns, an exclusive, worldwide, royalty-free license during the term of the rights to reproduce, distribute, modify, publicly perform and publicly display, with the right to sublicense through multiple tiers of sublicensees and assign such right in and to the Web Site Content and the Documentation including, without limitation, the right to use in any way whatsoever the Web Site Content and Documentation except as stated in Section 5.03 and agrees not to challenge the validity of the copyright ownership by Client in the Web Site Content and Documentation.
Section 5.03. Ownership of Components. Developer will retain copyright ownership of the following material: All custom artwork images, and all original source code encompassing all of the components that comprise the Web Site design and content(“Retained Components”). However, Developer grants to Client a royalty-free, worldwide, perpetual, irrevocable, nonexclusive license, with the right to sublicense through multiple tiers of sublicensees, to use, reproduce, distribute, modify, publicly perform and publicly display, the Retained Components on the Web Site or any Web Site operated by or for Client and related marketing material. Further, Developer does not and cannot confer, title, license, or intellectual property rights, to Client for information, material, artwork, or designs used in the website design that are public domain.
Section 5.04. License to Web Site Content and Client Content. Client grants to Developer a nonexclusive, worldwide license to reproduce and modify Client Content and the Web Site Content to develop and maintain the Web Site.
Section 5.05. Internet Access. Client shall be responsible for obtaining access to the Internet through an ISP. Developer shall not be responsible for such access and shall not be considered a party to the agreement between ISP and Client, unless otherwise provided for in a separate agreement between the parties. Although ISP will provide access to the Web Site, the ISP will not be a party to this Agreement nor will it be a third party beneficiary of the Agreement.
Section 5.06. Licenses to Third-Party Content. Developer shall be responsible for obtaining and paying for any necessary licenses to use third-party content other than the third-party content listed on Cost Estimate as Client Content. Client shall be responsible for obtaining and paying for any necessary licenses to use third-party content listed on Cost Estimate.
Section 5.07. Licenses to Developer Tools. Developer shall be responsible for obtaining licenses for and paying license fees for any Developer Tools used in this project that are not owned by Developer.
Section 5.08. Client’s Domain Name. Client’s domain name shall remain the sole property of Client. Developer acknowledges that Developer has no right to use Client’s domain name other than in connection with the Web Site development and maintenance project covered in this Agreement.
Section 5.09. Web Site Hosting Provider. Developer shall be responsible for obtaining web site hosting services on behalf of the Client for the purpose of storing and making the Web Site available to the portion of the internet known as the World Wide Web. Developer shall not be responsible for Web Site hosting server availability and does not warrant or imply the availability at any level of the web site hosting servers. Although the Web Site hosting provider will provide access to the Web Site, the web site hosting provider will not be a party to this Agreement nor will it be a third party beneficiary of the Agreement.
ARTICLE VI - PAYMENT
Section 6.01. Payment Schedule. The fees set forth in the Cost Estimate shall be paid as provided.
Section 6.02. Maintenance. If Client chooses to have Developer perform maintenance and support service exceeding any Maintenance provided in the Cost Estimate, such support shall be determined by mutual agreement of the parties.
Section 6.03. Expenses. Except as expressly stated in this Agreement or in a later writing signed by Client, Developer shall bear all expenses arising from the performance of its obligations under this Agreement.
Section 6.04 Security Interest. Developer retains a Security Interest in the Deliverable and may enforce its interest against the amounts due in the Cost Estimate and the Customer Agreement.
Section 6.05 Security Provided by Credit Card. Client gives express consent to charge the Client’s Credit or Debit Card provided for payment of the Cost Estimate including any additional fees incurred by the Client at the time they become due.
ARTICLE VII - CONFIDENTIALITY
Section 7.01. Confidential Information. The terms of this Agreement, the Source Materials and technical and marketing plans or other sensitive business information, including all materials containing said information, which are supplied by Client to Developer or developed by Developer in the course of developing the Web Site are the confidential information (“Confidential Information”) of Client.
Section 7.02. Restrictions on Use. Developer agrees that except as authorized in writing by Client: (a) Developer will preserve and protect the confidentiality of all Confidential Information; (b) Developer will not disclose to any third party, the existence, source, content or substance of the Confidential Information or make unauthorized copies of Confidential Information; (c) Developer will not deliver Confidential Information to any third party, or permit the Confidential Information to be removed from Developer’s premises; (d) Developer will not use Confidential Information in any way other than to develop the Web Site as provided in this Agreement; (e) Developer will not disclose, use or copy any third party information or materials received in confidence by Developer for purposes of work performed under this Agreement; and (f) Developer shall require that each of its employees who work on or have access to the Confidential Information sign a suitable confidentiality and assignment agreement and be advised of the confidentiality and other applicable provisions of this Agreement.
Section 7.03. Limitations. Information shall not be considered to be Confidential Information if Developer can demonstrate that it: (a) is already or otherwise becomes publicly known through no act of Developer; (b) is lawfully received from third parties subject to no restriction of confidentiality; (c) can be shown by Developer to have been independently developed by it without use of the Confidential Information; or (d) is authorized in writing by Client to be disclosed, copied or used.
Section 7.04. Return of Source Materials. Not later than seven (7) days after the termination of this Agreement for any reason, or if requested sooner by Client, Developer will return to Client all originals and copies of the Confidential Information, Client Content and Source Materials, as well as any other materials provided to Developer under this Agreement, except that Developer may retain one copy of the Web Site Content and Source Materials, which will remain the Confidential Information of Client, for the sole purpose of assisting Developer in maintaining the Web Site. Developer shall return said copy to Client promptly upon request by Client.
Section 7.05. Return of Web Site Content. If requested by Client, Developer will provide a copy of the Web Site contents and a Web Site Database backup (if applicable) on CD ROM for a one-time charge of $250. Alternatively and at the sole discretion of Developer, Client may be provided a File Transfer Protocol (FTP) URL with a secure userid and password through which Client may download the entire Web Site contents from the Web Site Hosting Server.
ARTICLE VIII - WARRANTIES COVENANTS AND IDEMNIFICATION
Section 8.01. Warranties and Covenants of Developer. Developer represents, warrants and covenants to Client the following:
Developer is the owner of all right, title and interest in tangible forms of the Web Site Content and Documentation and the intellectual property rights protecting them. The Web Site Content and Documentation and the intellectual property rights protecting them are free and clear of all encumbrances, including, without limitation, security interests, licenses, liens, charges or other restrictions.
Section 8.02. Developer’s Indemnity. Developer agrees to defend, indemnify and hold harmless Client and its directors, officers, employees, sublicensees and agents from and against all claims, defense costs (including reasonable attorneys’ fees), judgments and other expenses arising out of or on account of such claims, including with limitation claims of:
Section 8.03. Obligations Relating to Indemnity. Developer’s obligation to indemnify requires that Client notify Developer promptly of any claim as to which indemnification will be sought and provide Developer reasonable cooperation in the defense and settlement thereof.
Section 8.04. Client’s Indemnification. Client agrees to defend, indemnify and hold harmless Developer and its directors, officers, employees and agents from and against all claims, defense costs (including reasonable attorneys’ fees), judgments and other expenses arising out of the breach of the following covenants and warranties:
Section 8.05. Obligations Relating to Indemnity. Client’s obligation to indemnify requires that Developer notify Client promptly of any claim as to which indemnification will be sought and provide Client reasonable cooperation in the defense and settlement thereof.
ARTICLE IX - TERMINATION
Section 9.01. Termination of Convenience. Client or Developer shall have the right at any time to terminate this Agreement upon fifteen (15) days’ notice by giving written notice of termination to the other party. Developer shall immediately cease all work on the Web Site and / or any additional services agreed to and accepted by the Client as referred to in the Cost Estimate. In the event of such a termination, Client’s entire financial obligation to Developer shall be for then accrued payments due under the Cost Estimate, plus the prorated portion of the next payment, if any, due with respect to items being worked on but not yet delivered at the time of termination. The pro rata payment shall be calculated by determining what percentage of the total work required for the next milestone has been completed by the date of Developer’s or Client’s receipt of the termination notice. Web site hosting services are purchased in advance by Developer on Client's behalf. Pre-purchased web site hosting services are non-refundable.
Section 9.02. Automatic Termination. This Agreement will be terminated automatically, without notice: (a) upon the institution by or against Developer or Client of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Developer’s or Client’s debts; (b) upon Developer or Client making an assignment for the benefit of creditors; or (c) upon Developer or Client’s dissolution; or (d) upon Client’s failure to remit payment of invoice for services rendered as defined in the cost proposal(s) incorporated herein as Exhibit A within sixty days of receipt of the invoice.
ARTICLE X - GOVERNING LAW
Section 10.01. Law of the Agreement. This agreement and all its provisions, references, and the Cost Estimate from which this document is referred, shall be governed by the laws of the State of Arkansas. The parties agree that any dispute arising out of this agreement shall be subject to the jurisdiction and venue of the Courts of Pulaski County, Arkansas. In the event a lawsuit is filed in a jurisdiction or venue other than that of Pulaski County, Arkansas, the parties waive any objection to transfer or removal of the action to the Courts of Pulaski County, Arkansas. The Uniform Commercial Code shall supplement any term, provision, or event not expressly provided for in this agreement.
ARTICLE XI - MISCELLANEOUS PROVISIONS
Section 11.01Notices. For purposes of all notices and other communications required or permitted to be given hereunder, the addresses of the parties hereto shall be as indicated below. All notices shall be in writing and shall be deemed to have been duly given if sent by facsimile, the receipt of which is confirmed by return facsimile, or sent by first class registered or certified mail or equivalent, return receipt requested, addressed to the parties at their addresses set forth below:
If to Developer:
Tiger Team Solutions, LLC
9712 Temple Drive
Little Rock, Arkansas 72205-2160
If to Client: All client information provided in the Cost Estimate.
Section 11.02. Entire Agreement. This Agreement, including the attached Schedules which are incorporated herein by reference as though fully set out, contains the entire understanding and agreement of the parties with respect to the subject matter contained herein, supersedes all prior oral or written understandings and agreements relating thereto except as expressly otherwise provided, and may not be altered, modified or waived in whole or part, except in writing, signed by duly authorized representatives of the parties.
Section 11.03. Force Majeure. Neither party shall be held responsible for damages caused by any delay or default due to any contingency beyond its control preventing or interfering with performance hereunder.
Section 11.04. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect as if said provision never existed.
Section 11.05 Assignment. This Agreement is personal to Developer. Developer may not sell, transfer, sublicense, hypothecate or assign its rights and duties under this Agreement without the written consent of Client. No rights of Developer hereunder shall devolve by operation of law or otherwise upon any receiver, liquidator, trustee or other party. This Agreement shall inure to the benefit of Client, its successors and assigns.
Section 11.06. Agency. The parties are separate and independent legal entities. Developer is performing services for Client as an independent contractor. Nothing contained in the Agreement shall be deemed to constitute either Developer or Client an agent, representative, partner, joint venturer or employee of the other party for any purpose. Neither party has the authority to bind the other or to incur any liability on behalf of the other, nor to direct the employees of the other. Developer is an independent contractor, not an employee of Client. No employment relationship is created by this Agreement. Developer shall retain independent professional status throughout this Agreement and shall use his/her own discretion in performing the tasks assigned.
Section 11.07. Limitation of Liability; Remedies. Except as provided in Article VIII above with respect to third party indemnification, neither party shall be liable to the other party for any incidental, consequential, special or punitive damages of any kind or nature, including, without limitation, the breach of this Agreement or any termination of this Agreement, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability) or otherwise, even if either party has warned or been warned of the possibility of any such loss or damage.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date set forth in the Cost Estimate between the parties.