THIS WEBSITE DEVELOPMENT AGREEMENT (the “Agreement”) is made by and between the “Company” and the “Customer”.
WHEREAS, the Company is engaged in the business of providing Website Development and Designing Services and the Customer wants to hire the Company to perform website design and/or development work;
THEREFORE, the parties hereto agree as follows:
1.1 The following definitions apply in this Agreement:
|Company||Means ILMIGO LLC, a Florida Limited Liability Company ;|
|Services||Means the Website Design/ Development Services to be provided by the Company under this Agreement;|
|Customer||Means the organization or the person Services will be purchased for;|
|Project(s)||Means the different Web Development/Design projects ordered by the Customer from time to time under this Agreement;|
|Source Code||Means the readable forms together with make and build files;|
|Effective Date||Means the date of execution of this Agreement;|
2. SCOPE OF AGREEMENT
2.1 The Customer appoints the Company to provide the Services for different Projects as per the terms and conditions set forth in this Agreement.
2.2 The Customer shall assign the Project(s) of designing and/or development of custom Websites to the Company from time to time.
2.3 The Customer shall provide the detailed Specifications for each Project at the time of assigning that particular Project to the Company.
2.4 The Company shall prepare a Quotation of Fees for the Project on the basis of the Specifications provided by the Customer to the Company.
2.5 The Company reserves the right to change the Quotation if the Customer has not provided the complete details of the Specifications or other necessary elements of the Project.
2.6 The Customer shall confirm the Project by accepting the Quotation and issuing a Purchase Order. The Purchase Order shall clearly state the detailed Specifications, other necessary elements, and details of all the Fees stated in the Quotation accepted by the Customer.
2.7 The Company represents and warrants that the Company shall perform the Services as per the Specifications described in the Purchase Order for each Project confirmed by the Customer.
2.8 The Company shall have the right to subcontract any of its obligations or duties under this agreement, without the prior written consent of the Customer.
3. QUOTATION: PRICE FOR THE SERVICES
3.1 On receiving the detailed Specification for a Project, the Company shall calculate the total Fees and Charges and prepare the Quotation according to the Specifications and other relevant information provided by the Customer.
3.2 The Quotation shall state all the Fees payable to the Company by the Customer for providing the Services and shall include:
- DEVELOPMENT FEE: This is the total price for the Design/Development of the Website(s) as per the Specifications and other relevant information provided by the Customer.
- SERVICE FEE: Means the recurring fee paid by the Customer to the Company as compensation for receiving the third party services purchased through the Company.
- Any other applicable fee specific to each Project.
3.3 All amounts and Fee stated or referred to in this Agreement and the Quotations shall be payable in US Dollars and shall be non-cancellable and non-refundable.
3.4 ADDITIONAL CHARGES: If the Customer has not provided the complete and accurate Specifications and/or other necessary elements at the time of requesting the Quotation for a Project, the Company shall charge the Customer an additional fee at the standard rates of Company for all the additional work required to be done in order to complete that particular Project.
4. PAYMENT OF FEE
4.1 The Customer shall pay the Fees for a Project as per the terms and conditions set forth in the Purchase Order issued by the Customer for that particular Project.
4.2 LATE FEE: If the Customer fails to make any payment in full on the Due Date, the Company shall charge interest on the outstanding amount at the rate of 1.5% per month or the maximum rate of interest allowable under applicable law, whichever is lower, commencing on the due date and continuing until the date of payment.
5.1 The Company shall use all reasonable efforts to perform the Services on schedule. However, at its option the Company can extend the due date for the completion of the Services by giving written notice to the Customer.
5.2 The Customer shall carry out all the Customer’s responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provisions of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary.
5.3 PROJECT ABANDONMENT: If after repeated attempts to begin, continue, or finalize the delivery of Services, the Customer fails to participate, or becomes otherwise unresponsive to the Company’s requests for a period of three (3) months, the Project may be considered abandoned, and the Customer shall have no right to claim any refund of the Fees paid to the Company under this Agreement.
6. REFUND IN CASE OF NON-DELIVERY OF SERVICES
6.1 The Company shall use all commercially reasonable efforts to develop/produce all the elements, specification etc set forth in the Purchase Order. But, in case the Company is not able to complete or deliver any particular element (completely or partially), then the Company will determine the applicable fee for that particular element and issue a refund for that particular element only. For the avoidance of doubt, it is made clear here that the Customer shall not be entitled to a refund for whole of the Project.
7. CHANGES IN PROJECT SCOPE
7.1 If at any time, the Customer desires to make changes to the accepted Specifications or other elements of a Project, the Customer shall submit, to the Company, a written proposal specifying the changes.
7.2 The Company shall evaluate each proposal at its standard rates and submit to the Customer a written response to each such proposal. The Company’s written response shall state the impact that the proposed changes will have on the price, delivery dates or warranty provisions of this Agreement.
7.3 In case the Company does not approve the changes proposed by the Customer, the Company will notify the Customer regarding the disapproval of the changes within 14 days of receiving the proposed changes in writing. The Company shall not be obligated to perform any services beyond those specified in the Purchase Order for a Project.
7.4 ADDITIONAL CHARGES: If, at any time, the Customer requests to make additional enhancements to the Website or to fix bugs which are not specified in the Specifications, the Company shall charge the Customer a fee at the standard rates of the Company for all the additional work required to be done.
8. ACCEPTANCE TESTING
8.1 Upon the completion of the Project, acceptance testing shall be performed on the Project (Website) in its entirety to determine whether it satisfies the acceptance criteria established by the Company and approved by the Customer prior to testing and operates with consistency. The Customer shall have 15 business days from the date of deployment to perform the acceptance testing.
8.2 If the Project (Website) does not satisfy the acceptance criteria, the Customer shall give the Company written notice stating why the Project (Website) is unacceptable.
8.3 If the Company does not accept the reasons stated in the Notice, the Customer shall have the option of Terminating this Agreement as per the terms of this Agreement.
8.4 If the Company accepts the reasons stated in the Notice then the Company shall work to correct the deficiencies.
8.5 After corrections, the Customer shall have 15 business days to inspect & test the Website. If the Customer believes that the Website still does not satisfy the acceptance criteria, the Customer shall have the option of either (a) Repeating the procedure set forth above; OR (b) terminating this Agreement pursuant to provisions of this Agreement:
8.6 If the Customer does not give the above said written notice to the Company within the initial 15 days of inspection and testing period or any extension of that period, the Customer shall be deemed to have accepted the Website upon expiration of such period.
8.7 The termination of the Agreement under this section shall not entitle the Customer to get the refund of fees already paid or entitle him to withhold any fee already payable to the Company. The fees once paid shall be non-refundable.
9. PROPRIETARY RIGHTS / OWNERSHIP
9.1 Subject to the full payment of all the applicable Fee pertaining to a particular Project, the terms and conditions of any open-source tool used to develop the Project, and other terms and conditions of this Agreement, the Customer shall own a worldwide, royalty-free, non-exclusive, and perpetual right, title and interest in the Website(s) developed under that particular Project. The Company and its subcontractors retain the right to display graphics and other web design elements of the Website(s) developed under his Agreement as examples of their work in their respective portfolios.
9.2 The Customer agrees that this Agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, source code, application programs or Website(s) and/or services which are similar to those used or provided under this agreement.
10. OWNERSHIP OF BACKGROUND TECHNOLOGY
10.1 The Customer acknowledges that the Company owns or holds a license to use and sublicense various pre-existing development tools, routines, subroutines and other programs, data and materials that Company may include in the Software or application programs developed or modified under this Agreement. This material shall be referred to as “Background Technology.” The Company shall retain all rights, title, and interest, including all copyright, patent, rights and trade secret rights in the Background Technology.
10.2 Subject to full payment of the Development Fee and other applicable Fees under this Agreement, the Company grants the Customer a nonexclusive license to use the Background Technology in the Website(s) provided to Customer under this Agreement, and all updates and revisions thereto. However, the Customer shall make no other commercial use of the Background Technology without the Company’s written consent.
11. TERM AND TERMINATION
11.1 This Agreement shall commence from the effective date and shall continue unless terminated by either party in accordance with the terms of this Agreement.
11.2 Each party may terminate this Agreement for any material breach of this Agreement that continues, without waiver or remedy, for thirty (30) days after written notice of the breach is provided to the other party. Such written notice shall describe the breach in detail.
11.3 In case of termination of this Agreement before the final acceptance of a Project for any reason, including non-payment of any applicable Fee;
- The Company reserves the right to stop all further deliverables.
- The Customer shall possess all rights, title, interest in the Source Code developed before the date of termination subject to the payment of all the applicable fees.
11.4 The termination of this Agreement for any reason shall not affect any right and/obligation accrued before the date of termination or expiry, or expressed or intended to continue in force after and despite termination.
12.1 Confidential Information means all technical, commercial & financial information, product information, customer list, trade secrets, know-how and all information relating to the plans, intentions, transactions, affairs and/or business of a party.
12.2 Each party shall keep secret all Confidential Information of the other and shall not (and shall procure that its employees, officers shall not) copy, use or disclose any such information to any third party, other than as may be necessary to comply with its obligations under these Terms.
12.3 The obligation of confidentiality shall not apply to the Confidential Information which is i) publicly available through authorized disclosure; ii) is known to the receiving party at the time of disclosure; iii) is required by law to be disclosed, iv) or is subsequently rightfully acquired from a third party who has the right to disclose it, v) or is disclosed on a confidential basis for the purposes of obtaining professional advice.
12.4 This clause shall continue in force notwithstanding the expiry or termination of these Terms, whatever the reason for such termination.
13.1 The Customer represents and warrants that while this Agreement is in effect and for a period of nine  months following the date of termination of this Agreement, the Customer shall not, other than through Company, either alone or in conjunction with any individual, firm, corporation, association or other entity or in any other manner whatsoever, directly or indirectly:
- Solicit or influence, by mail, phone, electronic communication, personal meeting, social media (including Social Networking website, blogs, etc) or any other means, any contractor, or employee, or trade partner, of the Company whose name became known to the Customer during the term of this Agreement, to provide similar services as provided by the Company, or to cease doing business with the Company, or to transfer its business from the Company to the Customer or to any other person, firm, corporation or other entity in competition with the business of the Company.
- Offer employment to or solicit for employment any person employed or engaged by the Company who became known to the Customer during the term of this Agreement.
13.2 The Customer acknowledges that the foregoing covenants are given due to the fact that the Customer has or will have specific knowledge of the affairs and Confidential Information of the Company and its employees and business.
13.3 The Customer acknowledges and agrees that the above restrictions are considered fair and reasonable for the legitimate protection of the business of the Company, but in the event that such restriction shall be found to be void, but would be valid if some part thereof was deleted or the scope, period or area of application were reduced, the above restrictions shall apply with the deletion of such words or such reduction of scope, period or area of application as may be required to make the restrictions contained in this Clause valid and enforceable.
14. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
14.1 The Company warrants that the Projects developed and provided under this Agreement will not knowingly infringe any Intellectual Property Rights including the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party or constitute a misuse or misappropriation of a trade secret.
14.2 In case the Company uses any material which contains matter proprietary to any third party, the Company warrants and represents that the Company shall obtain a license from the owner permitting the use of such material and granting the Company the right to sub-license its use.
14.3 The Company shall defend, indemnify and hold the Customer harmless against any loss, damage, expense or cost, including reasonable attorney fee, arising out of a Claim that is based on the allegation that the Customer’s use of the Website under this Agreement infringes any patent, trademark, copyright, or infringes any right of a third party.
15. CUSTOMER’S OBLIGATIONS AND WARRANTIES
15.1 The Customer shall provide the Company with (i) all necessary cooperation in relation to this agreement; and (ii) all necessary access to such information as may be required by the Company; in order to develop the Website(s) and provide the Services, including but not limited to content, text, images, and Customer Data.
15.2 The Customer shall comply with all applicable laws and regulations with respect to the hosting & uploading of Website(s), online e-commerce conducted through Website(s) developed under this Agreement as well all its activities under this agreement.
15.3 The Customer represents and warrants that the Customer is the owner, or have the consent of the owner, for any content, text, photographs etc provided to the Company for the purposes of developing/designing the Website and that the use of such content, text, descriptions, photographs or images will not infringe any Intellectual Property Rights including the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party.
15.4 The Customer warrants and represents that there are no claims, demands or any form of litigation pending, or threatened, to the best of the Customer’s knowledge, with respect to any of the content, text or photograph provided by the Customer to the Company.
16. COMPANY’S LIMITED WARRANTY AND RIGHTS
16.1 The Company warrants and undertakes that for a period of forty five (45) days, from the date of final acceptance of the Website, the Website will operate in accordance with all the material terms of the Specifications set out in the Purchase Order for that Website.
16.2 The undertaking in the preceding clause 15.1 shall not apply to the extent of any non-conformance which is caused by use of the Website contrary to the Company’s instructions, or modifications or alteration or hacking of the Website by any party other than the Company. If the Website does not confirm with the foregoing undertaking, the Company will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in the clause 15.1.
16.3 Except as expressly stated in this Clause, the Company makes no express or implied warranty with respect to the Projects (Websites) developed under this Agreement, including but not limited to any warranty (1) of merchantability, fitness for a particular purpose, performance, suitability, or non-infringement; (2) relating to third-party products, software, or services; (3) relating to the performance of Website(s); or (4) regarding the results to be obtained from the Services, or the results of any recommendation by the Company.
17. LIMITATION OF LIABILITY.
17.1 EXCEPT IN CONNECTION WITH ANY BREACH OF SECTION 14.1 (INTELLECTUAL PROPERTY INFRINGEMENT), IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
17.2 IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE SERVICES PROVIDED FOR A PROJECT EXCEED THE AMOUNTS PAID TO THE COMPANY BY THE CUSTOMER FOR THAT PARTICULAR PROJECT.
18. CUSTOMER’S INDEMNIFICATION
18.1 The Customer agree to indemnify and hold the Company harmless from and against any and all claims, lawsuits, costs (including reasonable attorney Fee and expenses), liabilities, damages, fines, settlements or any other expense that may be incurred or asserted against the Company, arising out of any breach by the Customer of any term or representation or warranty given by Customer in this Agreement, or Customer’s own negligence or the negligence of Customer’s employees, agents, or representatives or subcontractors.
19. JURISDICTION AND VENUE
19.1 This Agreement shall be governed by and construed in accordance with the internal substantive and procedural laws of the State of Florida without regard to conflict of laws principles. The sole and exclusive venue for all disputes arising out of or relating in any way to this Agreement shall be the Courts of the State of Florida only. The parties consent to the personal jurisdiction and venue of such courts. Both Parties shall attempt to settle any dispute by Mediation prior to filing a lawsuit.
20. BINDING ARBITRATION
20.1 In the event of a conflict that cannot be resolved by the parties, the Company and the Customer agree that at the written request of either of them the dispute will be submitted to binding arbitration under the most expeditious arbitration method then proposed by the American Arbitration Association or by any other arbitration body on which they may both agree, with each party to pay its own legal fees and with the cost of the arbitration itself to be paid by the parties in the proportion determined by the arbitrator(s). The decision of the arbitrator(s) may be entered as a judgment at the request of either party in any court of competent jurisdiction.
21.1 All the Notices and other communications given under these Terms shall be in writing and delivered through Mail, Courier at the registered office of the parties or via electronic mail at the designated Email Addresses of the parties.
22.1 The Relationship between the Company and the Customer shall at all the times be that of Independent Contracting Parties.
23.1 This Agreement constitutes and contains the entire understanding between the parties and supersedes all other prior agreements, whether oral or written, with respect to its subject matter. No representation or affirmation of fact, course of prior dealings, promise or usage of the trade will be binding on the parties, except as explicitly provided herein.
23.2 The Company shall have the right to assign or transfer any of the rights or obligation under this Agreement to any third party. The Customer shall not assign or transfer any of the rights or obligations under this Agreement without the prior written consent of the Company (such consent not be unreasonably withheld or delayed).
23.3 Any delay or nonperformance of any provisions of this Agreement caused by conditions beyond the reasonable control of the performing party, including delay due to acts of God, war, natural disasters, riots, shall not constitute a breach of this Agreement.
23.4 No waiver of a breach of any part of this Agreement shall affect a party’s right to enforce that part or any other part of the Agreement for a later breach. The failure of a party to insist upon strict performance of any part of this Agreement shall not be construed as a waiver of any prior or later default of the same or similar nature.