By this agreement (“Agreement”), the party identified on the signature page under the heading Client (“Client”) desires West Hills Web, Inc. (“WHW”) (a California Corporation) to provide various Website Development services (collectively the “Services”). The effective date of this agreement is shall be the later of the two dates it was executed by the parties. In consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, accepted and agreed to, the Client and the WHW, intending to be legally bound, agree to the terms set forth below.
1. SCOPE OF WORK. The specific details of what end product (“Deliverable”) that WHW will deliver to Client (“Scope of Work”) will be determined by both parties, and shall contain the specifics of all Deliverables that WHW shall deliver to Client. The Scope of Work shall include benchmarks that will show the progress of the project (“Milestones”). The Scope of Work shall be contained in one or more writings between the parties, and shall be deemed to be incorporated herein by reference and shall be considered an integral part of this Agreement.
2. MAVENLINK PROJECT MANAGEMENT SOFTWARE. The parties agree that they will use Mavenlink Project Management Website (“Mavenlink”), which can be found at www.mavenlink.com, as a repository for all information and updates related to Services. The parties agree that any comments or other information posted by either party in Mavenlink shall be binding upon the party posting such comments or information, including but not limited to proposed budgets, budget approvals, invoices, receipts for payment, Scope of Work (including amendments thereof), approvals, milestones, and due dates (including extensions thereof). Comments and other information posted by a party on Mavenlink shall be deemed to be writings within the scope of this Agreement.
3. FEES. Subject to the agreement of the parties, Client shall pay WHW an agreed upon amount related to each Scope of Work & budget approved by Client. The terms of such payments as described below in Exhibit A. WHW shall have the right to include a link, with anchor text as “Site created by West Hills Web, websites for local businesses.”, or similar, in the footer of all pages of the website, for a period of at least 12 months, and it is agreed that the amount charged by WHW includes consideration for such right.
4. PAYMENTS. The agreed-upon Scope, including the budget for the Scope, is attached hereto and incorporated herein as Exhibit “A.” Any amendments to the Scope or the budget, or any Scopes and/or budgets for subsequent projects, may be submitted via Mavenlink, in accordance with Section 2 of this Agreement. WHW shall not be under any obligation to perform any Services until Client shall submit payment, in cleared funds, to WHW. For every day that any payment is late all due dates, including but not limited to Milestones, shall be extended by one day. If Client does not make any payment within two (2) business days of reaching a Milestone, WHW shall be under no obligation to continue work until all payments are current. If Client chooses to pay by credit card or check, Client authorizes WHW to initiate an electronic debit, to create and process a demand draft against Client’s bank account, or to charge Client’s credit card for each Payment due in accordance with the above. For payments by checking account (ACH or check), if any payments are returned unpaid, Client also authorizes WHW to collect a returned item fee of $25.00, or the maximum amount allowed by law, whichever is lower, by presenting a demand draft against Client’s account, by making a one-time electronic funds transfer from Client’s account. All amounts not paid by the due date thereof shall be subject to a service charge of the lower of 1½ % per month or the highest rate allowed under applicable law.
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6. OWNERSHIP. Client represents and warrants that it possesses all necessary right, title and interest in and to, and is the exclusive owner of, the ideas, data and content encompassed within the Scope of Work and that the Deliverables, if prepared in accordance with the Scope of work, will not infringe the intellectual property rights, including but not limited to copyrights or trademark, patent or trade secret rights, of any other person. Upon payment in full of all amounts due hereunder, including but not limited to all payments due for the Scope of Work plus any agreed upon changes to the Scope of Work, WHW agrees that all right, title, and interest in and to any copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by WHW, solely or in collaboration with others, arising out of, or in connection with, performing the Services under this Agreement and any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (collectively, “Inventions”), are the sole property of the Client, provided however that WHW shall have a non-exclusive, fully paid-up, royalty-free license to use the Inventions in perpetuity, so long as such use is not in competition with the use being made of the Inventions by Client. WHW also agrees to promptly make full written disclosure to the Client of any Inventions and to deliver and assign (or cause to be assigned) and hereby irrevocably assigns fully to the Client all right, title and interest in and to the Inventions, subject to the foregoing license.
7.CANCELLATION. In the event Client cancels an order for any reason whatsoever, Client agrees to promptly pay to WHW all amounts due and unpaid as of the date of cancellation, plus the entire amount due for the next Milestone, plus 50% of all remaining amounts due under the Scope of Work, which the parties understand and agree is reasonable under the circumstances existing at the time of this Agreement by virtue of the fact that it is impracticable and/or extremely difficult to fix the actual damages that would be suffered by WHW from such cancellation. In the event of cancellation, Client shall not receive nor be entitled to any of the Inventions.
8. WARRANTIES. Except as otherwise agreed in this agreement, WHW makes no warranties, express or implied, as to merchantability or fitness for a particular purpose with respect to the Deliverable created or Services performed for or provided to Client, nor is there any warranty that the Deliverable will be approved or accepted by any third party, and there are no warranties that extend beyond the description contained in this section of Agreement. Any oral representations made by any agents, employees, or staff of WHW are herewith declared null and void and the Client shall not be entitled to rely upon any such oral representation. WHW’s sole liability and Client’s sole remedy regardless of the form of legal action taken by Client, whether in tort or contract, shall be for repair or replacement of the Services. Client agrees that WHW shall not be liable for lost profits, or any indirect, incidental, special or consequential damages, even if advised of the possibility of such damages. This Section states WHW’S entire liability for breach of this Agreement. In the event that, notwithstanding the provisions of this Agreement WHW is found liable to Client for damages, such damages shall not exceed refund of one-half of the amounts paid hereunder by Client to WHW over the ninety (90) days preceding Client providing notice of a claimed breach of this Agreement. WHW warrants that upon completion of the Services, WHW will provide the Deliverable to Client for acceptance testing. WHW’s sole and exclusive warranty is that the Deliverable conforms to the terms of the Scope of Work, is free from defects, and is compatible with then-current versions of software with which the Deliverable was designed to interface (i.e. web browsers) as of the date of delivery. WHW also agrees to fix any bugs found with the Deliverable for 60 days after submission of a fully working version of Deliverable. Notwithstanding any of the foregoing, if Client makes any alteration to the Deliverable then the warranty set forth above shall be null and void, and WHW shall have no further responsibility whatsoever with respect to any Services or Deliverable as to which Client has made any modification.
9. CONFIDENTIAL INFORMATION. For the purposes of this Agreement, Confidential Information shall mean and collectively include: all information that is revealed or provided to WHW relating to the business, plans and/or technology of the Client, including but not limited to technical information including inventions, methods, plans, processes, specifications, characteristics, assays, raw data, scientific preclinical or clinical data, records, databases, formulations, clinical protocols, equipment design, know-how, experience, and trade secrets; developmental, marketing, sales, customer, supplier, consulting relationship information; operating, performance, and cost information; computer programming techniques whether in tangible or intangible form; and all record bearing media containing or disclosing the foregoing information and techniques, including written business plans, patent applications, grant applications, notes, and memoranda, whether in writing or presented, stored or maintained in or by electronic, magnetic, or other means. Notwithstanding the foregoing, Confidential Information shall not include any information which: (a) can be demonstrated to have been in the public domain or was publicly known or available prior to the date of the disclosure to WHW; (b) can be demonstrated to have been rightfully in the possession of WHW prior to the disclosure of such information to WHW by the Client; (c) becomes part of the public domain or publicly known or available by publication or otherwise, not due to any unauthorized act or omission on the part of WHW; or (d) is supplied to WHW by a third party without binder of secrecy, so long as such third party has no obligation to the Client or any of its affiliated companies to maintain such information in confidence. Except as required to perform its duties hereinunder, WHW shall not, at any time now or in the future, directly or indirectly, use, publish, disseminate or otherwise disclose any Confidential Information to any third party without the prior written consent of the Client.
10. MISCELLANEOUS PROVISIONS.
A. ENTIRE AGREEMENT. The terms of this Agreement and related written proposals, if any, constitute the complete and exclusive statement of the agreement between WHW and Client relating to the Services, and supersede any prior agreement, whether written or oral, between WHW and Client. Any terms and conditions contained on a purchase order or similar documentation issued by the Client shall not be part of this Agreement and shall be only for the internal administrative convenience of Client. If Client has entered into, or in the future enters into, any other written agreement with West Hills Web, including but not limited to any agreement made between the parties using Mavenlink, the terms of such written agreement(s) are hereby incorporated herein by reference. The terms of all agreements between Client and WHW shall be interpreted so as to make the agreements consistent to the fullest extent possible, but in the event of any unavoidable conflict between the agreements, the terms of the last written agreement entered into between the parties shall control, but expressly excluding any terms or conditions that are contained on a purchase order or similar documentation issued by the Client. This Agreement shall be applicable to any and all Scopes of Work hereafter agreed upon between Client and WHW
B. EXECUTION. This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument. Fax, scanned and emailed signatures shall be deemed as effective as original signatures for all purposes.
C. DISPUTE RESOLUTION. No action arising out or related to this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued. Any controversy or dispute between the parties, whether arising out of or in connection with this Agreement or otherwise, shall be resolved in an arbitration before the American Arbitration Association (“AAA”) in accordance with AAA’s then-applicable Commercial Arbitration Rules at the AAA location in (or nearest to) Los Angeles, CA. The administrative cost of the arbitration and the arbitrator’s fee shall be shared equally by the parties. In such arbitration, the arbitrator shall have no authority or power to amend, modify, or in any other way change any of the terms of this Agreement. All decisions of such arbitrator shall be final and binding upon both parties. The prevailing party in such Arbitration shall be awarded an amount equal to its attorney’s fees incurred in connection with such arbitration, in addition to any other relief as may be awarded. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to any conflicts of law principles thereof. Arbitration shall be the sole, exclusive, and final remedy for any dispute between the parties. Accordingly, neither WHW nor the Client will be permitted to pursue court action regarding claims that are subject to arbitration pursuant to this Agreement.
D. WAIVER. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce any provision of this Agreement.
E. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If an arbiter of facts finds that any provision is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
F. NON-EXCLUSIVITY AND INDEPENDENT CONTRACTOR. Client understands and agrees that the relationship between WHW and Client is non-exclusive, and that WHW shall be entitled to provide Services to, and perform any and all types of work for, other clients, whether or not the business of such other clients competes, directly or indirectly, with the business of Client. Further, nothing in this Agreement shall in any way be construed to constitute WHW as an agent, employee or representative of Client, but WHW shall perform the Services hereunder solely as an independent contractor.
G. NON-SOLICITATION. WHW and Client acknowledge that they will have access to and work directly with each other’s employees, independent contractors, and vendors (collectively “Employees”) in connection with performing Services pursuant to this Agreement, and that such Employees possess confidential, proprietary and trade secret information and know-how learned and developed during the course of their work for, and belonging to, the party retaining such Employee. Client and WHW agree to refrain from hiring or contracting with, or offering to hire or contract with, the other party’s Employees during the entire time that work is performed pursuant to this Agreement and for a period of one (1) year thereafter. In the event that either party breaches this provision, then the breaching party shall be obligated to pay to the non-breaching party an amount equal to the amount that is expected to be paid to the affected Employee for the following year. Said amount will be paid in a single payment due from the breaching party within ten (10) days of written notification by the non-breaching party.
Client shall indemnify, defend and hold WHW harmless against any claims or allegations brought against WHW based on Client’s negligent or intentional acts or omissions, or based on Client’s infringement of intellectual property rights or breach of this agreement. Likewise, WHW shall indemnify, defend and hold Client harmless against any claims or allegations brought against Client based on WHW’s negligent or intentional acts or omissions, or based on WHW’s infringement of intellectual property rights or breach of this agreement. Claims shall include losses, actions, liabilities, damages, expenses and reasonable attorney fees and court costs.
The indemnification obligations are conditioned upon (a) prompt notice, in writing, by the indemnified party to the indemnifying party of any claim, action, demand or allegation for which indemnity is claimed, (b) reasonable control of the defense and settlement by the indemnifying party, provided that no settlement of such claim shall be made without the consent of the indemnified party (consent not to be unreasonably withheld), and (c) reasonable cooperation by the indemnified party in the defense as the indemnifying party reasonably requests. If the indemnified party wishes to participate in the defense against the indemnified claims, it may do so with counsel of its choice at its own expense.
I. ASSIGNMENT. Neither Client nor WHW may assign its rights or obligations under this Agreement without the express written consent of the other party, which consent may be granted or denied in the sole and exclusive discretion of that party. Notwithstanding the foregoing, WHW may cause all, or any part or parts of the Scope of Work to be performed by any employee, independent contractor, consultant, affiliate, company or person at its sole discretion.
J. HEADINGS/CONSTRUCTION. The headings of the paragraphs of this Agreement are inserted solely for the convenience of reference. They shall in no way define, limit, extend, or aid in the construction of the scope, extent, or intent of this Agreement. Client agrees that it has had the opportunity to fully review and comment upon the terms of this Agreement, and that the Agreement shall not be interpreted or construed in favor of or in deference to either party.
K. NOTICES. Unless otherwise authorized under this agreement, any notice under this agreement shall be personally delivered or sent by recognized overnight courier or by certified mail, return receipt requested, and shall be effective when received, and shall be sent to the address listed for each party on the signature area of this agreement.