Website Development Agreement

Website Development Agreement

This Website Development Agreement is made on [EFFECTIVE DATE] between [DEVELOPER NAME], [whose principal place of residence is at/a [CORPORATE JURISDICTION] corporation with its principal place of business located at] [DEVELOPER ADDRESS] (the "Developer"), and [CUSTOMER NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business located at [CUSTOMER ADDRESS] (the "Customer").

The parties agree as follows (the capitalized terms used in this agreement, in addition to those above, being defined in section 19 (Definitions):

1. Website Development

1.1. Engagement of Developer. The Customer hereby engages the Developer to develop, and the Developer shall design, develop, and implement, the Website in accordance with this agreement.

1.2. Definition of "Specifications." In this agreement, "Specifications" means the specifications detailed in Exhibit A.

1.3. Definition of "Website." In this agreement, "Website" means all components of the website that is built according to the Specifications.

2.  Developer's Duties and Responsibilities

2.1. Delivery. The Developer shall[ use reasonable efforts to] complete the Website [on OR no later than [DELIVERY DEADLINE DAYS] days after] [TARGETED LAUNCH DATE] (the "Launch Date") in accordance with the Specifications.

2.2. Project Milestones. The Customer and the Developer agree that the Developer will complete the Website in phases as shown in Exhibit A.

2.3. Final Deliverables. The Developer shall provide the Deliverables for the Website in a form appropriate for the Customer's use.

2.4. No Malware. The Developer shall ensure that the Deliverables will not contain any virus, worm, trap door, back door, or Trojan horse that would cause the software to become inoperable in any way.

2.5. Accessibility of Website During Construction. The Developer shall ensure that, during the construction and testing phase, the Website will remain accessible to end users.

2.6. Domain Names. The Developer shall register the domain name(s) designated by the Customer in the Specifications and note the Customer as the registrant. The Customer shall reimburse the Developer for any related expenses reasonably incurred.

2.7. Web Hosting. From and after the Launch Date, the Developer shall provide web hosting services to the Customer in accordance with the Web Hosting Agreement attached as Exhibit 1.

2.8. Definition of "Deliverables." In this agreement, "Deliverables" means the deliverables detailed in the Specifications, including the Software.

2.9. Definition of "Software." In this agreement, "Software" means any software that the Developer includes in any Deliverable.

3.  Customer's Responsibilities

3.1. Provide Content in a Suitable Format. The Customer shall deliver to the Developer all necessary content in a format suitable to be included in the Website.

3.2. Coordination with Third Parties. The Customer shall coordinate in a timely manner any necessary decision-making involving third parties.

3.3. Final Proofreading. The Customer shall proofread all Website text for typographical errors and the like. The Customer shall pay to fix any errors after its initial proofreading.

4.  Training

4.1. Scope. The Developer shall provide the Customer with [[TRAINING HOURS] hours of training OR such training as the Customer may reasonably request].

4.2. Dates and Locations. The Developer shall conduct the training on the dates and at the locations that the parties agree upon.

4.3. Costs. The training Developer shall provide the training at [the cost detailed in Schedule B, Fees and Expenses OR $[TRAINING COST] per session OR no additional cost].

5. Fees and Expenses. The Customer shall pay the Developer the development fees, and reimburse the Developer for the reasonable expenses, detailed in Schedule B, Fees and Expenses.

6.  Payment Obligations

6.1. Invoices. The Developer shall invoice the Customer monthly for all fees and other amounts that the Customer owes under this agreement. The Customer shall pay the invoice amounts within [30] days of the invoice date.

6.2. Payment Net of Taxes. All payments owed by the Customer are exclusive of taxes. The Customer shall pay, and the Developer shall collect and remit, any taxes payable.

6.3. Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by law, whichever is less.

7. Testing and Acceptance. Upon receiving any portion of the Website, the Customer will have [five] business days to test that portion to ensure that it meets the Specifications. The Customer shall detail in writing any objection with sufficient specificity to enable the Developer to identify and remedy any problems. The Developer will then make changes in a commercially reasonable manner.

8. Changes

8.1. General Changes. The Customer shall pay the Developer for any changes to the Specifications that it requests, other than changes described in section 8.2 (Substantive Changes) on a time and materials basis, at the Developer's hourly rate specified in Exhibit B, Fees and Expenses. Any such fees will be in addition to any previously agreed-upon fees or budgets. The Developer shall advise the Customer in writing in advance if the Developer consider that the requested changes may modify any timelines or delivery schedules detailed in the Specifications.

8.2. Substantive Changes. If a proposed change to the Specifications would amount to at least [15]% of the total amount payable to the Developer for its services under this agreement, the Developer may submit a new, revised proposal. The Developer shall not begin work on the revised proposal until the Customer has agreed in writing to pay any additional fees required under the revised proposal and, if applicable, to modify any timelines or delivery schedules detailed in the Specifications.

9.  Customer's Representations

9.1. Rights to Website Materials. The Customer has the rights to use all materials that it provides to the Developer. None of those materials infringe upon the intellectual property or other rights of any third party.

10.  Developer's Representations

10.1. No Infringement. The Developer has the rights to use all materials provided to Customer. None of those materials infringe upon the intellectual property or other rights of any third party.

10.2. Right to Assign. The Developer has and will have the legal authority to assign rights to the Website, the Deliverables, and the Software to the Customer under this agreement. 

11.  Developer's Warranties

11.1. Workmanship Warranty. The Developer warrants that Website will be delivered according to professional standards and conform with the Specifications.

11.2. Disclaimer. Beyond the warranties provided in this agreement, the Developer makes no other warranty of any kind, whether express, implied, statutory, or otherwise. The Developer will not be liable for any implied warranties (including, to the maximum extent permitted by applicable Law, any warranties of merchantability or fitness for a particular purpose).

12.  Acknowledgements

12.1. Timing. The Customer acknowledges that the Developer's ability to complete the Website in a timely manner depends upon the Customer's prompt performance of its obligations under this agreement.

12.2. Maintenance. Except for the web hosting services referred to in section 2.7 (Web Hosting), this agreement does not provide for any maintenance after the Website has been delivered. The Customer shall pay the Developer for any requested changes to the Website after delivery at the Developer's then-current hourly basis.

13. Ownership and Rights

13.1. Customer License. Upon the Customer's acceptance of the Website and final payment of all amounts due under this agreement, the Developer agrees to grant and assign, and hereby grants to the Customer an irrevocable, fully-paid, and worldwide license to use the materials provided as part of the Website. The Customer will not, however, acquires any such rights in the event of early termination or abandonment by Customer.

13.2. Credit

(a) Developer Credit. The Customer shall, [for a period of [CREDIT ACKNOWLEDGEMENT PERIOD] years OR so long as the Developer provides the web hosting services referred to in section 2.7 (Web Hosting)], keep the following credit in the footer of each page of the Website: [CREDIT LINE], which will include a link to the Developer's Website.

(b) Developer Promotion. The Developer may include images of the Website in its promotional and marketing materials.

13.3. Rights to Customer Content. The Developer will have no right to use any content provided by the Customer except in connection with providing its services under this agreement.

14.  Confidentiality

14.1. Confidentiality Obligations. During the term of this agreement and for [RESTRICTED PERIOD] afterward, the Developer shall hold all Confidential Information in confidence in accordance with the terms of this agreement.

14.2. Use Solely for Purpose. The Developer shall use the Confidential Information in accordance with, and solely for the purpose of providing its services under, the terms of this agreement.

14.3. Definition of “Confidential Information.” In this agreement, “Confidential Information” means all [material] [non-public] [business-related] information, written or oral[, whether or not it is marked as confidential], disclosed or made available to the Developer,[ directly or indirectly,] through any means of communication by the Customer, but does not include information that

(a) is or becomes publicly known through no wrongful act of the Developer,

(b) the Developer received in good faith on a non-confidential basis from a source other than the Customer,

(c) was in the Developer’s possession before its disclosure by the Customer,

(d) the Developer developed independently without breach of this agreement, or

(e) the Customer has explicitly approved, by Notice to the Developer, for release to a third party.

15. Termination

15.1. Termination upon Notice. Either party may terminate this agreement for any reason upon [TERMINATION FOR CONVENIENCE NOTICE] days' Notice to the other party.

15.2. Termination for Cause. If either party

(a) commits a material breach or material default in the performance or observance of any of its obligations under this agreement, and

(b) the breach or default continues for a period of [CURE PERIOD] after delivery by the other party of Notice reasonably detailing such breach or default, then

the non-breaching or non-defaulting party may terminate this agreement, with immediate effect, upon Notice to the breaching or defaulting party. 

15.3. Termination upon Insolvency. This agreement will terminate immediately upon the Developer's insolvency, bankruptcy, receivership, dissolution, or liquidation.

16.  Effect of Termination. In the event of termination of this agreement for any reason,

(a) the Customer will not be required to make payment for any Deliverables that the Customer had not accepted,

(b) the Customer will continue to exercise all rights to the Software that it has acquired under this agreement,

(c) the Developer shall immediately deliver to the Customer all Software, documentation, source code, and other Customer property in its possession relating to the Software and then destroy all copies in its possession or control, and

(d) the Customer shall pay the Developer for all services rendered and work performed up to the effective date of termination, unless the Customer has terminated for cause, in which case it will only be required to pay fair value. The Developer shall provide the Customer with an invoice for its fees within [30] days of the effective date of the termination, and the Client shall pay the invoice within [14] days of receipt.

17.  Liability for Damages

17.1. Foreseeability. Neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entering into this agreement.[ In no event will the [PARTY ONE] be liable to the [PARTY TWO] for any compensation arising from the expiration or termination of this agreement.]

17.2. Limitation of Liability. Other than as set forth in section 18 (Indemnification), neither party's liability in connection with any single incident arising out of or related to this agreement will exceed the amount that the Developer has paid in the [12] months preceding the incident, but in no event will either party's aggregate liability arising out of or related to this agreement exceed the total amount that the Developer has paid under this agreement. The terms of this section 17.2 (Limitation of Liability) will not limit any of the Developer’s payment obligations under section 6 (Payment Obligations).

18. Indemnification

18.1. Developer's Indemnity. The Developer shall indemnify the Customer[ and its officers, directors, employees, agents, and affiliates,] against all claims, liability, costs, and expenses (including attorneys' fees) arising from any third party claim or proceeding against the Customer

(a) based on any claim that the Software or any services performed under this agreement infringes or violates any intellectual or other property right, or

(b) that alleges any negligent act or omission or willful conduct of the Developer[ or its directors, officers, employees, agents, or affiliates].

18.2. Notice of Claim. The Customer shall give prompt Notice to the Developer of any claim or potential claim for indemnification under this agreement.

18.3. Exclusive Remedies. The rights granted under this section 18 (Indemnification) are the exclusive remedies available under this agreement in connection with the claims and losses that this section addresses.

19. Definitions. In addition to the terms at the top of the first page of this agreement, the following definitions apply:

19.1. "Confidential Information" is defined in section 14.3 (Definition of "Confidential Information").

19.2. "Deliverables" is defined in section 2.8 (Definition of "Deliverables").

19.3. "Launch Date" is defined in section 2.1 (Delivery).

19.4. "Selected Courts" is defined in section 20.12 (Consent to Jurisdiction).

19.5. "Software" is defined in section 2.9 (Definition of "Software").

19.6. "Specifications" is defined in section 1.2 (Definition of "Specifications").

19.7. Notice” means any notice, request, direction, or other document that a party can or must make or give under this agreement.

19.8. "Website" is defined in section 1.3 (Definition of "Website").

20.  General Provisions

20.1. Entire Agreement. This agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.

20.2. Amendment. This agreement may only be amended by a written document signed by both parties.

20.3. Assignment. The Developer may not assign this agreement or any of its rights under it. The Customer may assign this agreement or any of its rights without Notice or the need for the Developer's consent.

20.4. Remedies Cumulative. Except for section section 18.3 (Exclusive Remedies), the rights and remedies available to a party under this agreement are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party.

20.5. Survival. Sections 14 (Confidentiality), 16 (Effect of Termination), 17.2 (Limitation of Liability), and 18 (Indemnification) survive the termination or expiration of this agreement.

20.6. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

20.7. Waiver. A party's failure or neglect to enforce any of rights under this agreement will not be deemed to be a waiver of that party's rights.

20.8. Governing Law. This agreement will be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.

20.9. Dispute Resolution

(a) Arbitration. Any dispute or controversy arising under or in connection with this agreement will be settled exclusively by arbitration in [STATE], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrator(s).

(b) No Punitive Damages. The arbitrator(s) will not have the power to award punitive damages.

(c) Judgment. The successful party may enter the arbitral judgment in any court having jurisdiction.

20.10. Waiver of Jury Trial. The parties waive their respective rights to trial by jury in any action or proceeding involving this agreement or the transactions relating to its subject matter.

20.11. Attorney Fees. If either party brings legal action to enforce its rights under this agreement, the prevailing party will be entitled to recover its expenses (including reasonable attorneys' fees) incurred in connection with the action and any appeal.

20.12. Consent to Jurisdiction. The parties hereby irrevocably and unconditionally

(a) consent to submit to the exclusive jurisdiction of the federal and state courts located in the State of [SELECTED STATE] in [SELECTED COUNTY] County (collectively, the "Selected Courts") for any action or proceeding arising out of or relating to this agreement, and agree not to commence any action or proceeding relating to this agreement except in the Selected Courts, although a party may commence an action or proceeding in a court other than a Selected Court but only for the purpose of enforcing an order or judgment issued by one of the Selected Courts,

(b) consent to service of any process or other document in any action or proceeding made by registered first-class mail, postage prepaid, return receipt requested or by nationally recognized courier guaranteeing overnight delivery and agree that service of the process or other document will be effective service for any action or proceeding brought against it in a Selected Court, although this does not affect either party’s right to serve process in any other manner permitted by law,

(c) waive any objection to the laying of venue of any action or proceeding arising out of this agreement in the Selected Courts, and

(d) waive and agree not to plead or claim in any Selected Court that an action or proceeding brought in any Selected Court has been brought in an inconvenient forum.

20.13. Interpretation

(a) Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.

(b) Headings. The headings used in this agreement and its division into sections and other subdivisions do not affect its interpretation.

(c) Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.

20.14. Schedules and Exhibits. The following are attached to and form part of this agreement:

(a) Schedule A: Website Specifications

(b) Schedule BFees and Expenses

(c) Exhibit 1Web Hosting Agreement

20.15. Counterparts. This agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document.

20.16. Effectiveness of Agreement. This agreement is effective as of the date shown at the top of the first page, even if any signatures are made after that date.

This agreement has been signed by the parties.

[PARTY ONE NAME]

By:   ___________________________________

Name:

Title:

Date

[PARTY TWO NAME]

By:   ___________________________________

Name:

[Title:]

Date

Schedule A - Website Specifications

Schedule B - Fees and Expenses