The following Terms and Conditions document is a legal agreement between Temple Development Corporation, hereafter “the Developer or Consultant”, and “the Client” for the purposes of website design, development and digital marketing consulting. These Terms and Conditions set forth the provisions under which the Client may use the services supplied.
Notwithstanding any different or additional terms in Client’s documents, the Consultant offers service expressly conditioned upon these terms:
“The Site” means a series of linked Web pages under common control and developed by Consultant for Client under this Agreement and attached web development proposal.
“Client Content” means all data, page text, photos, logos, graphics, code, trademarks and copyrighted content provided by Client for use by Consultant on the Site.
“Consultant Content” means all data, code, trade secrets, patents, designs, drawings, text created by Consultant for use on the Site, including any modifications or enhancements provided by Consultant.
Consultant will perform the development services described in Attachment 1. There are four stages of development services: Concept, Design, Initial Development and Final Development. Consultant will complete the four stages on or before the dates listed in Attachment 1. Before delivering the Site to Client, Consultant will test its components to make sure the Site and its components work as intended.
A 50% non-refundable deposit on the total project will be invoiced before project start date and remaining balance will be billed the following month or payment in full upon project completion, whichever comes first. All invoices are due upon receipt, invoices are considered late at 30 days from date of invoice and subject to late fees and interest in item 4.
Late payments by Client shall be subject to late fee of $35 per month and penalty fees of 10% per month or the maximum allowed under state law from the due date until the amount is paid.
Payment of Consultant’s Costs
Client shall reimburse Consultant for all out-of-pocket expenses incurred by Consultant in performing services under this Agreement. Such expenses include, but are not limited, to:
· All communication charges
· Travel expenses other than normal commuting, including airfares, rental vehicles, and highway mileage in company or personal vehicles at .41 cents per mile.
· Other expenses resulting from the work performed under this Agreement.
· Third party technical support for products or services.
· License fees for third party plugins or software used to build the site.
Consultant shall submit an itemized statement of Consultant’s expenses. Client shall pay Consultant within 30 days from the date of each statement.
If Client wishes to implement major revisions after Client has already accepted Consultant’s work product following completion of any stage of development, Client shall submit to Consultant a written proposal specifying the desired changes.
Consultant will evaluate each such proposal at its standard rates and charges. Consultant shall submit to Client a written response to each such proposal within 10 working days following receipt thereof. Consultant’s written response shall include a statement of the availability of Consultant’s personnel and resources, as well as any impact the proposed changes will have on the contract price, delivery dates or warranty provisions of this Agreement.
Client shall have 10 business days from receipt of Consultant’s response to its proposal to accept or reject it in writing. If Client accepts Consultant’s response, Consultant shall draft a written Contract Amendment Agreement to reflect the desired changes and acknowledge any effect of such changes on the provisions of this Agreement. The Contract Amendment Agreement shall be signed by authorized representatives of Client and Consultant, whereupon Consultant shall commence performance in accordance with it.
Should Client reject Consultant’s response to its proposal, Client will so notify Consultant within 10 working days of Client’s receipt of the response. Consultant will not be obligated to perform any services beyond those called for in this original Agreement
Client has selected an Internet service provider to host its completed Site. While the Site is under construction and until final payment is received by Consultant, Consultant will host the Site pages as they are constructed in a special directory on its web space at no cost during site construction. If the Site is not completed by the completion date set forth in Attachment 1, and if the cause of the delay is not attributable to Consultant, Client agrees to pay Consultant $ 25.00 per month for hosting the Site on Consultant’s web space. Client will continue to pay Consultant for hosting the Site at this rate until the Site is installed on Client’s own web space. This monthly rate shall be prorated if the Site is installed on Client’s web space before the end of any monthly period.
· State on the Site that Consultant developed the Site
· Place hypertext links on Client’s Site to Consultant’s website
· Place hypertext links on Consultant’s website to Client’s Site as an example of Consultant’s services.
Consultant has full rights to remove these references at any time and can require Client to do so upon written request of Consultant.
If Client elects to use Consultant to write custom code or configure software, Consultant guarantees the software to perform in accordance with the requirements outlined in the proposal or other functional specification for a period of thirty (30) days from the Client’s acceptance date or after the site is live on Internet, whichever comes first. This warranty does not apply to or supersede warranties pertaining to software packages and operating systems; nor does this warranty apply to or supersede warranties pertaining to hardware.
Consultant warrants the work done by its WARRANTY employees and contractors to be free from defects in workmanship for a period of thirty (30) days after start-up date. There are no other warranties, express or implied. If any portion of the work proves to be defective within such thirty (30) day period and prompt notification is made in writing, Consultant will, at his own expense, supply the necessary technical direction or consultation to correct the defect. The foregoing shall constitute the sole remedy of the Client and the sole liability of the Consultant, whether in warranty or otherwise
c. Parts and Material
Consultant expressly warrants that upon shipment, equipment manufactured by the Consultant will be free from defects in material, workmanship, and title. This warranty is exclusive and is offered IN LIEU OF ALL IMPLIED OR STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR ANY OTHER EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS. If any item manufactured by the Consultant shall prove defective in material and/or workmanship, within thirty (30) days, Client shall notify Consultant in writing of such defect or noncompliance within thirty (30) days of discovery of such defect or noncompliance.
The Consultant shall pursue whatever warranty exists on material used in the construction of equipment manufactured for the Client, or at its option, modify, repair, or replace said item or refund the purchase price of said item. The Consultant shall have the option to have the item returned to its factory, or to make such adjustment at the point of installation. The Consultant shall have no responsibility if such item has been improperly stored, installed, operated or maintained, or if the Client has permitted unauthorized modifications, adjustments, and/or repairs to the item. Adjustments for items of equipment not manufactured by the Consultant shall be made to the extent of any warranty of the manufacturer or supplier thereof. The foregoing shall be the Consultant’s sole and exclusive liability and the Client’s sole and exclusive remedy for any action, whether based on breach of contract or, in tort (including negligence).
d. Disclaimer of Damages
THE CONSULTANT SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, including, but not limited to, damage or loss resulting from inability to use the equipment, increased operating costs, loss of production, loss of anticipated profits, cost of replacement power, or other special, incidental, or consequential damages, whether similar or dissimilar, of any nature arising from any cause whatsoever, whether based in contract, tort (including negligence), or any other theory of law.
e. Force Majeure
Neither party shall be considered in default in performance of its obligations hereunder to the extent that performance of such obligations, or any of them, is delayed by Force Majeure. Force Majeure shall include, but not be limited to, hostilities, restraint of rulers or peoples, revolution, civil commotion, strike, epidemic, accident, fire, flood, wind, earthquake, explosion, blockade or embargo, lack of or failure of transportation facilities, or any law, proclamation regulation or ordinance, demand or requirement of any government or governmental agency having or claiming to have jurisdiction over the work, or any cause, whether of the same or different nature, existing or future, which is beyond the control and without fault or negligence of the parties hereto.
Consultant shall use all reasonable efforts to meet the delivery schedule set forth in Attachment 1. However, at its option, Consultant can extend the due date for any deliverable by giving written notice to Client. The total of all such extensions shall not exceed 120 days.
Delays that are not the fault of Consultant for items such as, but not limited to failure to receive client content or feedback are not subject to this clause and such delays can exist into perpetuity. If this delay reaches or exceeds 21 days in time the Consultant reserves the right to charge a one time $200 “restart” fee and revise the project timetable and delivery schedule to fit in with the Consultant’s workload.
The Consultant’s maximum liability hereunder arising from any cause whatsoever, whether based in contract, tort (including negligence), or any other theory of law, shall not exceed the contract price. Any above-mentioned cause of action must be commenced within one year from the date of which that action accrues.
It is understood that the Client will provide adequate field office facilities and normal personal conveniences at no charge to the Consultant.
Consultant shall retain all copyright, patent, trade secret and other intellectual property rights Consultant may have in Consultant Content. Subject to payment of all compensation due under this Agreement, Consultant grants Client a nonexclusive, nontransferable, royalty-free license to use Consultant Content. This license shall authorize Client to:
· Operate the Site on its host server
· Update, revise or republish the Site
· Advertise and promote the Site.
Client acknowledges that Consultant owns or holds a license to use and sublicense various development or authoring tools it uses to create websites for its clients. By way of example, such tools may include, but are not limited to, such items as: HTML code, Java code, Java applets, WordPress, subroutines, WordPress Plugins, search engines and toolbars for maneuvering between pages. Such material shall be referred to as “Consultant’s Tools.” Consultant Tools include, but are not limited to, those items identified in Exhibit 2, attached to and made a part of this Agreement.
Consultant retains all right, title and interest, including all copyright, patent rights and trade secret rights in Consultant Tools. Subject to full payment of the fees due under this Agreement, Consultant grants Client a nonexclusive, perpetual worldwide license to use the Consultant Tools to operate the Site and for all updates and revisions thereto. However, Client shall make no other commercial use of Consultant Tools without Consultant’s written consent.
If a dispute arises, the parties will try in good faith to settle it through mediation conducted by: Brady, Coyle & Schmidt OR a mediator to be mutually selected.
The parties will share the costs of the mediator equally. Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute.
If a satisfactory compromise to the dispute cannot be reached through mediation, then both parties agree to settle the matter with binding arbitration with an arbiter that is mutually acceptable to both parties.
The parties hereby agree to the venue in the courts of Lucas County Ohio.
The validity, construction and interpretation of these conditions or of any contract of sale including these conditions, and the rights and duties of the parties thereto, shall be governed by the laws of the state of Ohio. Any offering or contract of which these conditions are a part constitutes the final, complete and exclusive statement of representations made by the Consultant and the Consultant shall not be bound by any representation, promise or inducement of any kind unless set forth herein, nor shall it be bound as to any representations made herein, except to the designated recipient of any offering. No waiver, alteration or modification of any of the provisions herein or of the provisions of any contract arising here from shall be binding to the Consultant unless in writing, signed by client.
The following items are considered tools of the consultant in developing and maintaining web sites…