In some rare cases, Company’s programmers will find a main site that cannot be converted or cannot be converted at the price agreed upon. In such case, Company will notify owner and either refund the entire price paid or will submit a revised cost to complete the project subject to Owner’s written approval.
3. Changes / Modifications. Should the owner desire more than 2 sets of changes to the mobile site, additional sets of changes are charged at $50/change order with full payment for each such change order due upfront.
4. Subscription/Hosting for Mobile Website. Owner agrees to pay Company a monthly recurring fee for the Mobile Website in the amount of $16/month, in advance, as outlined in paragraph 3 above. The monthly fee will begin immediately after the client signing the "Acceptance Form" to indicate cusotmer safisfaction with site and subsequent live publication of the mobile website; it will re-bill each month on the same date thereafter. The monthly fee will be charged against a valid credit card provided by the Owner to the Company. Failure to pay the monthly fee or to provide Company updated information for an expired or canceled credit card will result in the Mobile Website being shut down within 5 days of non-payment or failure to cure.
5. Owner - Ownership Rights. The Owner shall continue to own all of its proprietary information for its main website including all source code, object code, screens, documentation, digital programming, operating instructions, design concepts, content, graphics, domain names, hosting (unless owner desires to move hosting of main site to Company), characters, stored data, and reports.
6. Company - Ownership Rights and Grant of License. Notwithstanding any other provision of this Agreement, the Services includes programming code that the Company and or the Design Team has previously developed for its own use (the "Company's Prior Code"). The Company and or the Design Team expressly retain full ownership of such code, including all associated rights to use such code for future projects. The code for the Owners Mobile Website stays with the Company.
7. Confidentiality. The Company will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Company, divulge, disclose, or communicate in any manner any information that is proprietary to the Owner (e.g., trade secrets, know-how and confidential information). The Company will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement. The Owner may seek and obtain injunctive relief against the release or threatened release of such information in addition to any other legal remedies which may be available.
8. Promotion. The Company will not use the names, trademarks, service marks, symbols or any abbreviations of the Owner on any of Company’s promotional or other marketing materials, without the prior written consent of the Owner. However the Company may feature the Owner’s mobile website in Company’s portfolio to show other prospects Companys work without any additional consent by Owner.
9. Warranty - Company. The Company warrants to the Owner that all software programming, web pages, and materials in connection with the Mobile Website are free from defects in materials and faulty workmanship and that the Mobile Website will operate properly with standard-compliant mobile web browsers as long as the Owner’s main web site is performing correctly with regard to the sync of data and that additional features that may be added by owner to owner’s main website in the future are compliant with mobile website standards.
(ie If FLASH is added to the main website, those features generally do not sync over.) All Services will be provided in a workmanlike manner within industry standards & tolerances for commercial applications.
10. Warranty - Intellectual Property Rights. The Company represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that the Company is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any programming or materials included by the Company in the Services or trade names related to the Services.
11. Warranty - Owner. The Owner represents and warrants to the Company that the Owner owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Owner for inclusion in the Website, and that the Owner has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Owner shall indemnify and hold the Company harmless from all losses and claims, including attorney fees and legal expenses, which may result by reason of claims by third parties related to such materials.
12. Disclaimer of Warranties and Legal Rights. Because Company’s Mobile Websites are based off of and synced to Owner’s main website, Company cannot warrant the mobile website to perform correctly should there be glitches or problems with the Owner’s main site after the mobile website goes live. Due to this, all Mobile websites products and services are provided "as-is" without warranty of any kind, either express or implied including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Our company does not warrant, guarantee, or make any representations regarding the use, or the results of the use, of the websites, products, services or written materials in terms of correctness, accuracy, reliability or otherwise. The entire risk as to the results and performance of the websites, products or services are assumed by you the Owner. If the web sites, products, services or written materials become non responsive or fail to work due to a change in Owner’s website, then Owner and not our company, assume the entire cost of all necessary servicing, repair or correction. This is the only warranty of any kind either express or implied that is made by our company. No oral or written information or advice given by our company or independent contractors shall create a warranty or in any way increase the scope of this warranty and you may not rely on such information or advice to do so.
14. Limitation & Exclusion of Liability. Under no circumstance shall either party be liable to the other party or any third party for indirect, incidental, consequential, special or exemplary damages (even if that party has been advised of the possibility of such damages), arising from any provision of this agreement such as, but not limited to, loss of revenue, loss of business information, business interruption, anticipated profit or lost business, costs of delay, failure of delivery, other pecuniary loss, or liabilities to third parties arising from any source. Some states do not allow the exclusion of limitation of liability, so the above may not apply to you.
14. Customer Remedy. The Company’s entire liability and the Owner’s exclusive remedy shall be a refund of the price paid or replacement or repair of our products, all at Company’s option (as long as the defect is not due to main site becoming incompatible with mobile platforms). Should it be determined that our mobile website coding and not Owner’s main site be the source of the problem we will fix or repair the problem within two weeks of notification of an issue as long as we are notified within 5 days of final sign off by Owner of the project. All remedies are limited to the United States. Some states do not follow the exclusion or limitation of liability, so the above limitations may not apply to you.
15. Indemnity. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorney’s fees, costs and expenses resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement.
16. Assignment. This Agreement is not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment shall be void.
17. Attorney’s Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
18. Termination. Either party may terminate this Agreement at any time by providing 10 days advance written notice. In the event of such termination by Owner, the deposit is non-refundable and Owner shall be obligated to pay for actual services provided by the Company and for expenditures incurred which exceeded the amount of the deposit. Unless otherwise terminated, this Agreement will terminate upon completion of the Services. If Company terminates the contract (other than for reasons stipulated in paragraph 19), Company shall refund all monies paid by Owner in connection with this contract.
19. Termination on Default. If a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 5 days from the effective date of such notice to cure the default(s). Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
20. Taxes. The Owner shall pay the amount of any sales, use, excise or similar taxes applicable to the performance of the Services, if any, or, in lieu of such payment, the Owner shall provide the Company with a certificate acceptable to the taxing authorities exempting the Owner from payment of such taxes.
21. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
22.Governing Law / Forum. This Agreement shall be construed in accordance with the internal laws of the State of Washington, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of Illinois, and both parties expressly consent to jurisdiction in such courts.
23. Complete Contract / Amendment. This Agreement supersedes all prior agreements and understandings between the parties for performance of the Services, and constitutes the complete agreement and understanding between the parties. The parties may amend this Agreement in a written document signed by both parties.