Consulting and Development Agreement This Web Site Development Agreement ("Agreement") is made and entered into on this enter date here by and between Developer Name ("Consultant"), and Client Name ("Customer"). Customer desires to receive the services of Consultant, acting as an independent contractor and not as an employee, joint venturer, partner or any other legal relationship, to perform certain services in connection with the development of the Customer’s software and web site. For good and valuable consideration, including the mutual agreements and covenants contained in this Agreement, the Consultant and the Customer hereby agree to the following terms, covenants and conditions: ARTICLE I SERVICE TO BE PROVIDED BY CONSULTANT 1.1 Customer hereby appoints and retains the services of the Consultant, and Consultant accepts such appointment, to perform the services described in Exhibit “A” attached hereto and made a part hereof, in connection with the design and development of the Customer’s web site and accompanying software (the Site and/or Software) (collectively the "Consulting Services"). This Agreement shall only cover the specific services described in Exhibit “A” and shall not include any other services that may be performed or provided by the Consultant. Any services beyond those described in Exhibit “A” shall be subject to separate agreement between the parties and a separate schedule of compensation to be paid by Customer for such services. Notwithstanding the above, the parties by written and or electronic agreement between them may expand the scope of services to be performed subject to this Agreement. Consultant shall promptly perform the services described herein and meet any delivery dates or project deadlines agreed to by the parties and provide services that are in compliance with agreed specifications and project parameters. All services shall be provided in a professional and workmanlike manner and in compliance with standard industry standards and by qualified and experienced personnel secured by the Consultant. Consultant shall continually communicate with the Customer regarding progress made by the Consultant in performing the services. Consultant represents and warrants that it has no current commitments or obligations that will conflict with or otherwise interfere with or impede the performance of the services called for under this Agreement. In addition, Consultant represents and warrants to Customer that: (i) the Site and Software when delivered or accessed by the Customer will be free from material defects, and from viruses, logic locks and other disabling devices or code, and in particular will not contain any virus, Trojan horse, worm or other software routine or hardware component which could permit unauthorized access, disable, erase or otherwise harm the Site and/or Software or any other software, hardware or data, cause the Software or Site or any other software or hardware to perform any functions other than those specified in this Agreement, halt, disrupt or degrade the operation of the software or site or any other software or hardware; or perform any other such actions, (ii) the documentation will be free from material defects and will support the use of the site and software, (iii) the use and proposed use of the Software or Site by Customer or any third party does not and will not infringe, and Consultant has not received any notice, complaint, threat or claim alleging infringement of, any patent, trade mark, trade name, copyright, industrial design, trade secret relating to the Software or Site or proprietary right of any other person in the Software or Site, and the use of the Software or Site will not include any activity which may constitute passing off, (iv) all Services provided by Consultant shall be performed in a competent, professional and timely manner by qualified and property trained personnel and shall be provided in a manner consistent with industry practice and in accordance with the terms of this Agreement and (vii) for a period of twelve months from the date of acceptance of the Site and Software by
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Customer, the Software and Site will operate in all material respects in accordance with the Specifications set out in Exhibit “A” attached hereto. ARTICLE II SCHEDULE OF COMPENSATION Customer shall compensate the Consultant at the rates set forth in the Compensation Schedule attached hereto as Exhibit “B” or as agreed between the parties in any written amendment hereto. ARTICLE III OWNERSHIP AND USE OF PROPRIETARY PROPERTY 3.1 Consultant expressly acknowledges and agrees that any and all proprietary materials created by Consultant in the scope of providing service hereunder shall be created as “works made for hire” as defined in the United States Copyright Act and that Customer shall be the true and lawful owner of all copyrights and other proprietary rights in and to such items and shall be considered to be the sole and exclusive author of such materials within the meaning of the United States Copyright Act. These items shall include, but shall not be limited to any and all deliverables resulting from the Consultant’s services or contemplated by this Agreement, all tangible results and proceeds of the Consultant’s services, work in progress, records, diagrams, notes, drawings, specifications, schematics, documents, designs, improvements, inventions, discoveries, developments, trademarks, trade secrets, customer lists, databases, software, programs, middleware, applications, solutions, (collectively referred to as "Proprietary Products") conceived, made or discovered by Consultant, solely or in collaboration with others, during the period of this Agreement which relate in any manner to the service provided by the Consultant to the customer. Furthermore, Consultant agrees to execute any and all documents and take all other actions necessary to vest full rights and ownership of such materials and the copyrights, patents, or other proprietary rights therefore in the Customer, including but not limited to executing confirmations of the work for hire status of the Consultant, executing copyright assignments irrevocably and fully assigning all copyrights to the Customer. Consultant hereby waives any other rights in and to such Proprietary Products that may attach or arise under any federal, state, local, international laws or the laws of any other country or jurisdiction, including but not limited to so-called "moral rights." In the event that Consultant intends or plans to integrate any work that was previously created by the Consultant into any work product to be created in furtherance of the performance of services hereunder, the Consultant shall first provide written notice to the Customer and seek customers written approval of the incorporation of such items. In the event that Customer consents, in its reasonable discretion, to the incorporation of such items into the work product to be created for the Customer, the Customer is hereby granted a worldwide, royalty free, perpetual, irrevocable license to use, distribute, modify, publish, and otherwise exploit the incorporated items in connection with the work product that is developed for the Customer. Consultants will not include any reference to his/her company or website on the Customer’s website. ARTICLE IV CONFIDENTIAL INFORMATION 4.1 Consultant will not, during or subsequent to the term of this Agreement, use Customer's Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of Customer or disclose Customer's Confidential Information to any third party, without the advanced written authorization of the Customer. Consultant further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, limiting access to such information to individuals within its
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organization that have a bona fide need to know of such information, having each employee of Consultant, if any, with access to any Confidential Information execute a nondisclosure agreement containing provisions and restrictions substantially similar to those contained in this Agreement. Consultant agrees that during and subsequent to the term of this Agreement any oral or written confidential information including, but not limited to, all source code developed for Customer, information related to data, figures, sales figures, projections, estimates, customer lists, cooperative agreements, inventions, trade or other secrets or any other information related to or arising from this affiliation SHALL BE CONSIDERED AND KEPT AS PRIVATE AND PRIVILEGED INFORMATION OF THE CUSTOMER AND WILL NOT BE DIVULGED TO, USED BY OR SOLD TO ANY FIRM, INDIVIDUAL, INSTITUTION OR OTHER ENTITY. 4.2 Consultant shall not be permitted to make any press releases or disclose to any other party, in any marketing or advertising material or any other means of communication, the existence of the relationship between Customer and Consultant or the existence or any terms of conditions of this Agreement without prior written authorization from the customer, which may be withheld for any reason. For purposes of this Agreement, the term "Confidential Information" means and includes: any and all proprietary information of any nature or kind, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas. technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by Customer either directly or indirectly in writing or orally. Confidential Information does not include information which (i) is known to Consultant at the time of disclosure to Consultant by Customer as evidenced by written records of Consultant, (ii) has become publicly known and made generally available through no wrongful act of Consultant or (iii) has been rightfully received by Consultant from a third party who is authorized to make such disclosure. Upon the termination or expiration of this Agreement, or upon Customer's earlier request, Consultant will deliver to Customer all of Customer's property or Confidential Information in tangible form that Consultant may have in Consultant's possession or control. Injunctive Relief. The Parties acknowledge that breach of this Section 4, including disclosure of any Confidential information, or disclosure of other information which, by law, must remain confidential, will give rise to irreparable injury to the other Party or the owner of such information, inadequately compensable in damages. Accordingly, the non-disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. The Parties acknowledge and agree that the covenants contained herein are necessary for the protection of legitimate business interests of the other Party and are reasonable in scope and content Compliance with Laws. Consultant shall observe and comply with all present and future laws, ordinances, orders, rules, and regulations of all governmental or other agencies, departments, authorities, boards, or commission having jurisdiction over or related to this Agreement and the use of any information obtained as a result thereof. ARTICLE V INDEMNIFICATION 5.1.1 Indemnification: Consultant will defend, indemnify, save and hold harmless Customer and the officers, directors, agents, affiliates, distributors, franchisees and employees of Customer from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ legal fees (“Liabilities”), resulting from the Consultant’s material breach or alleged material breach of any covenant, agreement, representation, or warranty of this Agreement.
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ARTICLE VI TERM AND TERMINATION 6.1 This Agreement shall commence on the effective date hereof and shall remain in effect until the earlier of the completion of all services called for hereunder to be performed by the Consultant, or the earlier termination of this Agreement as provided in this Article VI. This Agreement may be terminated by the customer or consultant, with or without cause, by giving 30 days written or electronic notice of such termination. During such 30 day period, Consultant must continue to meet all obligations incurred under this Agreement. Customer may terminate this Agreement immediately upon notice to the Consultant in the event that the Consultant substantially breaches or defaults under any of Consultant’s obligations contained in this Agreement or if the Consultant is unable to or refuses to perform services hereunder. Upon the effective date of any termination of this Agreement, all legal obligation, rights and duties arising out of this Agreement shall terminate except that: (i) the Confidentiality Restrictions, Ownership of Proprietary Rights Provisions, Indemnification, and Independent Contractor provisions of this Agreement shall continue to apply and shall survive the termination of this Agreement as ongoing covenants between the parties; (ii) Consultant shall have the continuing obligation to return to the Customer all tangible and intangible property of the customer and all versions of any Proprietary Products of the customer or developed for the Customer during the effectiveness of this Agreement; and (iii) Consultant shall have the ongoing duty and obligation to confirm in writing and take all reasonable steps to secure proprietary right in the Proprietary Products developed pursuant to this Agreement in the name and exclusive ownership of the Customer. ARTICLE VII MISCELLANEOUS PROVISIONS 7.1 Notices. Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall deemed to be delivered if transmitted via Email at the Email addresses listed below. Addresses and Email addresses for such notices shall be: If To Consultant: consultant’s email address If To Customer: client’s email address
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7.2 Governing Law and Jurisdiction. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the state of California. Each Party consents to the exclusive jurisdiction of the federal and state courts located in California, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement or otherwise arising under or by reason of this Agreement. 7.3 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior discussions or agreements between them, including without limitation the License Agreement. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by the Parties. 7.4 Assignment: Except as hereinafter provided, neither Consultant nor Customer shall have the right to assign this Agreement without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. Customer shall have the right to assign this Agreement in connection with a merger of Customer into or with any other entity or a sale of all or substantially all of the assets of Customer. Any purported assignment not in accordance with this Section 7.4shall be void
and not merely voidable. When assigned as permitted above, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto.
7.4 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will be deemed an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Further each party agrees to accept telefax signature pages as originals.
By signing below, I acknowledge reading, understanding, and accepting the statements herein.
_____________________________________ Developer Name
_________________________________ Client Name
Client Name
Exhibit A
EXHIBIT B Consultant will be paid on an hourly basis for all work performed for Customer. As a condition precedent to Customer’s obligation to make payment under this Agreement, Consultant must keep full, accurate and detailed records of all time spent on Customer’s project. Consultant will deliver via email to the address specified hereinabove, a weekly summary of all tasks performed and the precise amount of time spent on each task. If all conditions to payment are met, Consultant will receive the following compensation: A. Dollar Amount Here B. Any Equity Consideration Here