- Supplemental Services. The Contractor may provide other services to the Client during the course of this agreement. Any additional work must be agreed to by the parties in writing prior to the commencement of any additional work. Should the Client desire additional work to be performed, the parties will enter into a supplemental contract for any additional scope of services requested. The supplemental agreement may include, amongst other matters, additional terms specifying the Services to be provided to the Client, additional terms and obligations between the parties, including the start and completion dates, and the compensation payable to the Contractor for the Services to be rendered by Contractor. The Parties agree that the terms and provisions of this Agreement shall apply to and control the overall relationship between the parties and the provisions of this agreement will be in addition to any terms set forth in any supplemental agreement. In the event of any conflict between the provisions of this agreement and any supplemental agreement, the supplemental agreement shall control.
1.2 Approval of Work. Pursuant to any request by Contractor for approval from Client of any including, but not limited to art work, web page, graphic design, content or blog, Client must notify Contractor within ten (10) days of said request, whether the item for which Contractor is seeking approval for is approved or not. If Contractor receives no response by the tenth (10th) day, Contractor may at its own discretion presume that the Client has approved the request and continue to the next phase of the project. Should Client subsequently seek a correction of said work or work already approved, Client is responsible for the additional fees for the changes pursuant to the fees set forth in Exhibit A and agrees to extend any deadlines for which Contractor is responsible for under the parties agreement, by the same amount of time in which the change subsequently requested takes to complete.
- Ownership of Information, Software Data and Materials; Confidentiality.
2.1. Ownership. Unless otherwise mutually agreed to by the parties, all right, title and interest in and to all work produced by Contractor pursuant to this agreement (including, without limitation, all revisions, modifications and other alterations to the website or database systems or any of Client’s confidential information, and all software installed on the Application Server or operating as part of Client’s (web site), as well as all of the Client’s Proprietary Rights of each of the foregoing, shall remain in and be the sole and exclusive property of Client and/or its licensees.
2.2. Client Data and Confidential Information. Contractor agrees that all Client’s data and information used and/or exchanged during the course of this agreement are proprietary to Client and title thereto will remain the sole and exclusive property of Client. Contractor acknowledges and agrees that Confidential Information disclosed by Client to Contractor, including, but not limited to Client’s Customer List, (collectively, “Client Confidential Information”) shall be held as confidential by Contractor and Contractor shall not, except as specifically provided in this Agreement, disclose or use such Client Confidential Information for any purpose. Contractor shall safeguard the Client Confidential Information using the same standard of care that Contractor uses for its confidential information, but in no event less than reasonable care.
2.3 Contractor’s Confidential information. Client acknowledges and agrees that unless otherwise set forth in writing by the parties, Confidential Information disclosed by Contractor to Client including, without limitation, the Licensed Software, Contractor’s Proprietary Rights to the Licensed Software and the software installed on the Application Server (and Contractor’s Proprietary Rights therein) embodies logic, design, coding, methodology and other trade secrets (collectively, “Contractor’s Confidential Information”) and shall be held as confidential by the Client and Client shall not except as specifically provided in this Agreement, disclose or use such Contractor’s Confidential Information for any purpose. Client shall safeguard Contractor’s Confidential Information using the same standard of care that Client uses for its confidential information, but in no event less than reasonable care.
- Termination. Default.
3.1 Failure to make payment when due. Failure to make any one of the required payments due pursuant to the Terms of the agreement is considered a default. In the event of a default due to failure to make payment, Contractor is relieved from all future obligations until payment is received, unless Contractor terminates this agreement in writing prior. In the event of termination by Contractor, Client remains responsible for all sums due for services rendered.
3.2 This Agreement and/or any supplemental agreement may also be terminated fifteen (l5) days after the delivery of written notice to a defaulting Party specifying with particularity the provisions of this Agreement or any supplemental agreement that the defaulting Party is failing to adhere to, unless such Defaulting Party cures such default within such fifteen (15) day period. Upon termination of this Agreement or any supplemental agreement, Contractor will be relieved from all obligations it would otherwise have with respect to this or any supplemental agreement for periods from and after the effective date of such termination and any compensation owed to the Contractor with respect to this Agreement and/or supplemental agreement shall terminate as of that date. Upon the termination of this Agreement, Contractor will l›e relieved from all obligations it would have with respect to any future Services contemplated to be provided by Contractor to the Client and all rights of the Contractor to receive compensation for the period from and after the effective date of such termination shall cease and be null, void and of no further force or effect, but notwithstanding the foregoing, the termination of a supplemental agreement or this Agreement shall have no effect on the provisions of this Agreement relating to ownership of materials, products, ideas and the like, confidentiality, non-competition, non-solicitation and the like, all of which shall survive the termination of this Agreement and shall remain in full force and binding on the Parties and their Agents as specified in this Agreement.
- Representations and Warranties by the Parties.
4.1. The Parties agree that Contractor has not made any representations, warranties or guarantees, whether oral or written as to its ability to guarantee results, which include, but is not limited to any guarantee of retention of clients, number of visitors to Client’s website, amount of business that will be generated or specific placement on any internet search engine (i.e. Google, Bing, Yahoo). The only representations that have been made by Contractor are to provide the services set forth in Exhibit A and those otherwise listed in this Agreement. Client agrees and understands that there is no guarantee of results and that the results are dependent on numerous factors set and continuously changing by third parties beyond Contractor’s control.
Client agrees that all content and information provided to Contractor is lawfully obtained and that Client has the authority and/or permission of all third parties to use said information and content given to Contractor. Client also agrees that prompt attention to requests by Contractor for information and/or approvals is an integral part of Contractor’s services and ability to render said services.
5.2 Limit of Liability. In no event shall either party be liable to the other party for any indirect, special, incidental, punitive, exemplary or consequential damages (including, without limitation damages or costs relating to the loss of profits, business, goodwill or data) arising out of, related to, or in connection with this Agreement, even if an employee, agent or other representative of the Party claimed to have caused such damage had been advised of the possibility of such damages. In addition, except with respect to the payment obligations of client, the aggregate liability of Contractor and Client for all claims and damages arising out of, related to, or in connection with this agreement shall not exceed the net amounts any specific Client’s paid to Contractor and in no event shall the aggregate liability to Contractor exceed the net amounts paid by Client to Contractor under this agreement. Furthermore, Contractor will have no liability in connection with the functionality or consent of any including, but not limited to any third party provider, search provider, internet publisher, hosting company or website not owned by Contractor.
- Contractor’s Relationship to Client.
6.1 Contractor shall be an Independent Contractor with respect to the Client, and nothing contained herein shall be construed to create an employer/employee, partnership, joint venture or agency relationship between Contractor and the Client. Contractor shall be solely responsible for, and shall pay any and all federal and state employment taxes as well as federal and ante income taxes, including withholding and estimated tax payments, which may be attributable to any payments made by the Client to Contractor hereunder. Contractor shall likewise be responsible for insuring that all of its employees are covered by worker’s compensation insurance and that it complies with all employment and other laws applicable to its performance of Services hereunder. In no event shall Contractor be deemed a partner, agent or joint venture of the Client and in no event shall the Contractor acquire or have any rights in or to any of the assets of the Client. Likewise, in no event shall the Client acquire or have any rights in or to any of the assets of the Contractor. Contractor shall have no authority to enter into any contract binding upon the Client or to create any obligations on the part of the Client shall have no authority to enter into any contacts binding upon the Contractor or to create any obligations on the part of the Contractor other than those terns that are expressly outlined in this Agreement.
- Notices. Any notice required or permitted to be given pursuant to the provisions of this Agreement shall be sufficient if in writing and if personally delivered to the Party to be notified (including by fax) or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties.
52 Tuscan Way #202
St Augustine, FL 32092, USA
The addresses may be changed by the applicable Party to this Agreement as to such Party by providing the other Party hereto with notice of any such address change in the same manner provided above, which address change shall be effective upon receipt of such notice by the other Party hereto. All notices shall be effective upon receipt; provided, however, in the event any such notice properly sent is returned to the sender as undeliverable, or delivery refused, etc., the same shall be deemed received by the Party to whom it was addressed on the date the same was originally transmitted by the sender.
- Binding Effect. Subject to compliance with the provisions of this Agreement regarding assignment, this Agreement shall inure to the benefit of and be binding upon Contractor and the Client, and their respective heirs, personal representatives, successors and assigns.
- Governing Law; Venue; Remedies This Agreement shall be construed and interpreted in accordance with the laws of the State of Florida as applicable to contracts executed and to be performed entirely within the State of Florida and without reference to conflicts of law. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Duval County, Florida, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Florida, such personal jurisdiction shall be nonexclusive.
- Injunctive Relief for Breach. The Parties agree that each of their obligations under this Agreement are of a unique character that gives each of them particular value and insight to the other’s protected business information. The Parties agree that in the event of any breach of the restrictive covenants or of the other party’s confidential information, said breach will result in irreparable and continuing damage to the other Party, for which there will be no adequate remedy at law; and, in the event of such breach, the non breaching party will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate). The Parties agree that the use and/or request for injunctive relief is not the only exclusive remedy available to the non-defaulting party and that the non-defaulting party may use any and all remedies available under this Agreement and/or as provided by law.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but in the event that any of the provisions, or portions thereof this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining precisions, or portions thereof shall not be affected thereby and shall be enforced to the greatest extent permitted by law, and there shall be inserted, in lieu of the invalid or unenforceable provision, a provision which is valid and enforceable and which as nearly as practicable carries out the intent of the provision held to be invalid or unenforceable
- Attorneys’ Fees. Should either Party be required to retain counsel for the purpose of conforming or preventing the breach of any provision hereof or to commence any action or proceeding to enforce any provision hereof, for damages by reason of any alleged breach of any provision hereof, for a declaration of such Party’s rights or obligations hereunder or for any other judicial remedy, the prevailing Party shall be entitled, in addition to such other reliefs may be granted in such action or proceeding (whether in arbitration, trial or on appeal) to be reimbursed by the non prevailing party for including, without limitation, reasonable attorneys’ fees and costs for services rendered to such prevailing Party in connection therewith.
- Trial by jury. The parties hereby waive trial by jury in any action, preceding or counterclaim brought by any party against any other party in any matter arising out of or in connection with the subject matter of this agreement.
- Entire Agreement. This Agreement and any supplemental agreement issued in connection herewith, contains the entire understanding between the Parties hereto concerning the subject matter addressed herein. There arc no representations, agreements, arrangements, or understandings, oral or written, between or among the Parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein or in an applicable supplement agreement. This Agreement may only be changed in writing signed by the Party against whom enforcement of any waiver, change, modification, extension or discharge is sought. The terns and provisions of this Agreement shall apply to all future engagements or services rendered by Contractor to the Client including pursuant to the supplemental agreements issued from time to time.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which counterparts taken together shall constitute one and the same agreement In addition, this Agreement may contain more than one counterpart of the signature page, and this Agreement may be executed by the affixing of the signatures of each of the Parties to one of such counterpart signature pages, all of such counterpart signature pages shall be read as one, and they shall have the same force and effect as though all of the signers have signed a single signature page. The Parties agree any Xerox and/or Fax copies of this Agreement containing a copy of the signature of the Parties shall be deemed an original for all purposes, and the production of an original shall not be required.