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This Design and Media Services Agreement is made between a client and a service provider for designing, developing, hosting and/or marketing the client's web page. This document contains the material terms and conditions of the agreement including the services to be provided, the payment details and an independent contractor provision. The agreement also includes additional standard contract terms which can be used or modified to fit the specific needs of the contracting parties. This document should be used by a company or service provider when entering into an agreement for design and media services.
This Design and Media Services Agreement is made between a client and a service provider for designing, developing, hosting and/or marketing the client's web page. This document contains the material terms and conditions of the agreement including the services to be provided, the payment details and an independent contractor provision. The agreement also includes additional standard contract terms which can be used or modified to fit the specific needs of the contracting parties. This document should be used by a company or service provider when entering into an agreement for design and media services. Service Agreement I. Licensing You, ________________________ [Instruction: insert client’s name] (hereinafter “You” or “Client”) must sign up for a web hosting package. Your web hosting package includes software leasing with ________________________ [Instruction: insert name of Service Provider that is leasing the software] (“Service Provider” or “we”). The Client does not own such software and cannot transfer the software to another service provider. The Client may purchase a full license. Please call for pricing. Service Provider reserves the right to change the price of the service in accordance with pricing on its website, or to discontinue service for any reason. In the event the Client is a store and requires an overwhelming amount of server resources, Service Provider can provide dedicated hosting services and a smooth transfer at a competitive rate. II. Terms of Agreement The above-named Client is engaging Service Provider, located at ______________________ [Instruction: insert address of Service Provider], as an independent contractor for the specific project of hosting, designing, updating, developing, and/or marketing web pages [Comment: user may edit these services to reflect the mutual agreement of the parties]. Service Provider will host, design, update, develop, and/or market these pages, for a dollar amount mentioned in this contract. The Client shall own all rights to any graphic art files and text-based files ("native files") developed for the Client's use in this project to generate HTML pages, Web-optimized text or graphics, PDFs, and Web-ready files of a similar nature. Native files include MS Word docs, as well as BBEdit, Photoshop, Illustrator, and Fireworks files and other files in a similar, customary format intended for the development of websites. These files will be made available to the Client upon request within the contract period and for a period of within ____ [three (3)] [Comment: this number is not provided for by law, but can be any number the user chooses] years after the end date of the contract's term. III. Additional Standard Contract Terms 1. No Search Engine Guarantee: Due to continuing changes in search engine technology and the vast differences in the way each search engine works, Service Provider is unable to guarantee exact placement in any search engine, nor can we predict with certainty how long your web site may retain its placement. The Client understands and agrees that internet marketing, as with all forms of marketing, entails an element of risk, and that through this contract there is no guarantee, express or implied, that any marketing work performed on the Client's behalf by Service Provider will result in a higher Google page rank quotient, better search result rankings for targeted keywords, improved visitor traffic to the Client's website, or increased revenues. 2. Additional Expenses: The Client agrees to reimburse Service Provider for any additional expenses necessary for the completion of the work, including, but not limited to purchase of special fonts, stock photography, and _______________________ [Comment: user may add additional expenses to reflect the mutual agreement of the parties]. Service Provider will inform Client prior to purchasing any additional expense items, and will purchase said expense items only upon the express written or verbal approval of the Client. 3. Additional Services: Any revisions, additions, or redesign Client wishes Service Provider to perform not specified in this document shall be considered "additional" and will be billed at our standard rate for the particular service. 4. Copyrights and Trademarks: The Client represents to Service Provider and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Service Provider for inclusion in Web pages are wholly owned by the Client, or that the Client has written permission from the rightful owner to use each of these elements. Client will hold harmless, protect, and defend Service Provider and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client. 5. Limited Liability: Client hereby agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the web hosting service or host server. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassing and harmful material or uses, illegal activity, material advocating illegal activity, and infringement of privacy or libel. Client hereby agrees to indemnify and hold harmless Service Provider from any claim resulting from Client's publication of material or use of any materials. Service Provider may or may not give notice before deactivating the use of an account that we, in our sole discretion, decide is an abusive or unethical use of, or a potentially illegal use of the account or host server. Client hereby agrees to indemnify and hold harmless Service Provider in any claim resulting from the submission of illegal materials. Under no circumstances, including negligence, shall Service Provider, its offices, agents or anyone else involved in creating, producing or distributing its services, be liable for any direct, indirect, incidental, special or consequential damages resulting from Client’s use of or inability to use Service Provider's services, mistakes, omissions, interruptions, deletion, loss of files or data, errors, defects, delays in operation or of performance, communication failure, theft, destruction, unauthorized access to Service Provider's records, programs, or services. Notwithstanding the above, Client's exclusive remedies for all damages, losses, and causes of actions, whether in contract, tort, including negligence, or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this agreement (the “Agreement”). 6. Indemnification: Client agrees that it shall defend, indemnify, save, and hold Service Provider harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney's fees ("Liabilities") asserted against Service Provider, its agents, Clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employees, or assigns. Client agrees to defend, indemnify, and hold Service Provider harmless against Liabilities arising out of any injury to persons or property caused by any products or services sold or otherwise distributed in connection with Service Provider's services, any material supplied by Client infringing on the proprietary rights of a third party, copyright infringement, and any defective product which Client has sold. © Copyright 2013 Docstoc Inc. 3 7. Laws Affecting Electronic Commerce: The Client agrees that the Client is solely responsible for complying with all laws, taxes, and tariffs that affect electronic commerce. Client shall hold harmless, protect, and defend Service Provider and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client's use of internet electronic commerce. 8. Authorship Credit: Client agrees that Service Provider may put a byline link on the bottom of Client's Home Web page with wording that accurately states the true extent of Service Provider's contribution to developing the site, e.g., "___________________." [Instruction: insert sample language that may be inserted on website] [Comment: user may alter or remove this section to reflect the mutual agreement of the parties] 9. Server Access: Clients may add, update, and delete content via the administrative tools. A site contains no Client serviceable components other then what can be accessed through the administrative tools. Due to payment card industry (PCI) security compliance the Client will not be granted FTP access to commerce servers in Service Provider's data center. SFTP access will be granted to Clients who have dedicated hosting services provided by Service Provider. 10. Software Ownership: The software is the intellectual property of Service Provider. Unless the Client specifically purchases a perpetual use license, the Client has no right to migrate any content or code from Service Provider's data center. Should the Client wish to discontinue the use of Service Provider’s hosting services, native graphic design files will be available to the Client upon request. Service Provider shall store native art files for a period of ____ [one (1)] [Comment: this number is not provided for by law, but can be any number the user chooses] year for in active Clients. Clients also have access to download their content via the administrative tools. 11. Confidentiality: Client and Service Provider acknowledge and agree that the Specifications, including programming and other information related to the development of custom applications created for the Client (the "Confidential Information"), will constitute a valuable trade secret of the Service Provider. Client shall keep the Confidential Information in confidence and shall not, at any time during the term of this Agreement, or for a period of ____ [three (3)] [Comment: this number is not provided for by law, but can be any number the user chooses] years after the term of the Agreement, without Service Provider's prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Mutually, the Client shall not discuss confidential information, such as pricing, with any other person. Excluded from the "Confidential Information" definition is anything that can be seen by the public on the Website when each page of the Website is first accessed and ____________________ [Instruction: insert any additional information that will not be deemed confidential]. 12. Use of Website for Promotional Purposes: Service Provider agrees not to use the Client's Website for promotional purposes and/or to cross-link it with other sites developed by Service Provider, without the express written permission of Client; except that Service Provider may include a byline link as well as a small logo graphic on the bottom of Client's Web pages with wording that accurately states the true extent of Service Provider's contribution to developing the © Copyright 2013 Docstoc Inc. 4 Client's Website, as well as wording and links similar to the following: ____________________ [Instruction: insert any additional language]. 13. No Responsibility for Loss: Be assured that the Service Provider data center takes protective measures that are considered standard and reasonable in the industry against hackers and other malicious parties, as well as against fire, theft, water damage, power loss, electrical power surge, and other perils that might affect a data center. However, the Service Provider is not responsible for any costs associated with downtime, improper links, or any other loss to the Client that may occur in the operation of their website, including loss of data. Specifically, if any hardware or software in the Service Provider data center, for which the Service Provider has exclusive responsibility and that is under the Service Provider's direct control, experiences a crash or other type of outage or failure causing the Client's Website to go offline temporarily, the Service Provider will be responsible for making every reasonable effort within its power to bring the site back online as quickly as possible and restore full functionality to the site. The Client will hold Service Provider harmless for any such outage or failure, and the resulting financial and operational consequences. Nevertheless, if ____ [three (3)] [Comment: this number is not provided for by law, but can be any number the user chooses] or more such outages or failures occur within a ____ [thirty (30)] [Comment: this number is not provided for by law, but can be any number the user chooses] day period, with each such outage lasting ____ [eight (8)] [Comment: this number is not provided for by law, but can be any number the user chooses] or more consecutive hours, Client has the right to terminate this contract without penalty; and, if they do terminate the contract, they will be reimbursed a pro-rated portion of the total hosting fee for the remaining period of the contract. In addition, in the case of cancellation of this contract for any reason due to the Service Provider's failure to act responsibly to maintain the functionality of the Client's site, it will be the Service Provider's responsibility to provide all reasonable assistance to the Client to help them migrate the files composing their Website to a new data center of the Client's choice. Note that this provision of the contract does not extend to any upstream bandwidth or "backbone" provider (e.g., Sprint, Time Warner, etc.) that Service Provider may rely on now or in the future for connectivity from its data center in Saratoga Springs to the Internet. Like the Service Provider's data center, this component of the Service Provider's web hosting capabilities are very reliable; however, the Service Provider is not responsible for temporary website outages stemming from third-party hardware or software failures. 14. Non-Disclosure: Service Provider, its employees, and subcontractors, agree that, except as directed by Client, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever. 15. Cancellation or Work Postponement: In the event that work is postponed by lack of response from the Client for ____ [thirty (30)] [Comment: this number is not provided for by law, but can be any number the user chooses] days or more or a postponement is requested by the Client for other circumstances or work is cancelled at the request of the Client by letter, Service Provider shall have the right to bill pro rata for work completed through the date of that request or postponement at the Service Provider's then current standard hourly rate, while still reserving all rights under this Agreement. If additional payment is due, this additional money © Copyright 2013 Docstoc Inc. 5 shall be payable within ____ [thirty (30)] [Comment: this number is not provided for by law, but can be any number the user chooses] days of the Client’s notification to stop work. When work is postponed, Service Provider bears additional burdens of restarting a project, reinstating and reassigning resources, and resurrecting previously determined plans and project objectives. Because of this additional burden, Service Provider requires a ______________ [five hundred ($500.00)] [Instruction: insert amount that reasonably reflects the costs to Service Provider] “Reinstatement Fee” to restart work that has been postponed by the Client due to unresponsiveness or due to a postponement request from the Client. In the event of cancellation in writing, the Client shall pay any expenses incurred by Service Provider, and Service Provider shall own all rights to the Work. The Client shall assume responsibility for all collection of legal fees necessitated by default in payment. 16. Hosting Account Cancellation: This Agreement shall apply to all Service Provider hosting services including, but not limited to, ________________________________ [Instruction: insert names of all relevant hosting services]. 17. Refund Policy: If the Client applies by letter for a refund within ____ [fifteen (15)] [Comment: this number is not provided for by law, but can be any number the user chooses] days of signing this contract, work already completed shall be billed at Service Provider's standard hourly rate for the services rendered and deducted from the initial payment. If the work that has been completed is beyond the amount covered in the initial payment, the Client shall be liable to pay for all work completed at Service Provider's standard hourly rate for the services rendered. 18. Arbitration: Any disputes in excess of the maximum limit for small claims court arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or a mutually agreed upon Arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator's award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney's fees, and legal interest on any award or judgment in favor of Service Provider. 19. Payment of Fees: In order for Service Provider to remain in business, payments must be made promptly. Payment terms are NET ____ [thirty (30)] unless otherwise noted on your invoice. Delinquent bills will be assessed a ____ [one and a half (1.5%)] percent finance charge if payment is not received within ____ [thirty (30)] days of the due date. If an amount remains delinquent beyond ____ [thirty (30)] days after its due date, an additional ____ [one and a half (1.5%)] penalty will be added for each ____ [thirty (30)] days of delinquency. Service Provider reserves the right to remove Client’s web pages from viewing on the Internet until final payment is made. If Website is moved off the hosting platform there will be a ______________ [fifty dollar ($50.00)] [Instruction: insert amount that reasonably reflects the costs to Service Provider] re-setup fee added. In case collection proves necessary, the Client agrees to pay all fees incurred by that process. This Agreement becomes effective only when signed by Service Provider. Regardless of the place of signing of this Agreement, the Client agrees that for purposes of venue, this contract was entered into in ____________ County, ________________ [Instruction: insert county and state], and any dispute will be litigated or arbitrated in © Copyright 2013 Docstoc Inc. 6 ____________ County, ________________ [Instruction: insert county and state]. Please pay on time. [Comment: the numbers in this section are not provided for by law, but can be any number the user chooses] In Service Provider's ongoing initiative to "Go Green", all invoicing is automatically performed electronically. This allows us to reduce paper resources. Upon a Client's request, paper invoicing can be arranged. An administrative fee of ______________ [fifty cents ($0.50)] per paper invoice distributed will be applied. We apologize for any inconvenience this may cause but have adopted this policy in efforts to do "our part" in conserving resources and the environment. We encourage our Client's to embrace similar "green" practices within their own organization. 20. Jurisdiction: This contract constitutes the sole agreement between Service Provider and Client regarding Client's Website. It becomes effective only when signed by both parties. This Agreement shall be governed and construed in accordance with the laws of ____________ County, ________________ [Instruction: insert county and state]. 21. Merchant Services Disclaimer: Except as otherwise provided in this Agreement, you expressly agree that Service Provider shall not be liable for any loss, however occurring, (including negligence) arising from or related to: 1) Your failure to properly activate, integrate or secure your Merchant Account(s); 2) Fraudulent transactions processed through your payment gateway account(s); 3) Disruption of Service Provider or your merchant bank’s services, systems, server or website by any means; 4) Actions or inactions by any third party, including a Merchant Service Provider, Payment Processor or Bank; or 5) Unauthorized access to data, customer data (including credit card numbers and other personally identifiable information) or transaction data. 22. Compliance: You will comply with all laws, policies, guidelines, regulations, ordinances or rules applicable to you, this Agreement, your business or the transactions, including (i) the credit card association rules and regulations, expressly including the Payment Card Industry (PCI) Data Security Standard, (ii) Any regulatory body having jurisdiction over the subject matter hereof, and (iii) ________________. [Instruction: insert any additional laws that need to be followed] 23. Press Announcement: As an experienced marketing solution provider, Service Provider has an in-depth understanding of public relations strategy and online media placement. The benefits of a strategically worded and distributed press announcement can be enormous and can drive both traffic and awareness for an organization. Service Provider reserves the right to announce the nature of our relationship/project in a mutually beneficial, joint-press announcement. This announcement shall not disclose any confidential, proprietary or specific "deal term" information and Client shall have the right to review and approve the content of said press announcement as well as to participate and contribute to its drafting and scheduling. [SIGNATURE PAGE TO FOLLOW] © Copyright 2013 Docstoc Inc. 7 Client By ________________________ Its ________________________ Date ________________________ Service Provider By ________________________ Its ________________________ Date ________________________ © Copyright 2013 Docstoc Inc. 8
"Design and Media Services Agreement"