Date: Day Of Electronic Signature Once You Have Signed Electronic Signature, You Have approved The Below TOS
This Statement of Service & Agreement is made by and between "us", CAPOR, LLC DBA Ask8.com (“We” or “Us” or “Designer”), and ClientDomain.com (“You” or “Client”). You, ClientDomain.com, are hiring CAPOR, LLC DBA Ask8.com to Design and Develop a web site (“Deliverables”) for the estimated total price of That Can Be Found In Estimate or Proposal as outlined in our previous correspondence.
WHEREAS, Client requested a proposal from Designer for such Services;
WHEREAS, Designer has experience and expertise in the business of providing such Services;
WHEREAS, based on Designer’s superior knowledge and experience relating to such Services, Client has selected Designer to provide and manage the Services;
WHEREAS, Designer has agreed to provide the Services to Client, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:
1.0 Services Rendered
Designer creates look-and-feel designs, and flexible layouts that adapt to the capabilities of many devices and screen sizes. Designer creates designs iteratively and uses predominantly HTML and CSS so we won’t waste time mocking up every template as a static visual. Designer may use static visuals to indicate a look-and-feel direction (color, texture and typography.)
Client will have the opportunity to review Designer’s work every week for the duration of the project. Client shall, within five (5) business days after the Deliverables specified above complete, notify Designer in writing of any failure to comply with the specification of the Scope of Services or of any other objections, corrections or changes required. Designer shall, within five (5) business days after receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within five (5) business days after receiving a revised Deliverable, either approve the corrected version or make further changes. If after 2 corrections by Designer, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement.
1.2 TEXT CONTENT
Writing any text copy is not included in this Agreement. If Client want designer to write new content, Designer have included the price of this work within this proposal. If Client would like Designer to input the text, Designer will do so for the client.
Client will need to supply graphic files to Designer in an editable, PNG, JPG, SVG or vector format. Photographs must be in a high-resolution digital format. If Client chooses to buy stock photographs, Designer can suggest stock libraries and style of photography/images. If Client would like Designer to search for photographs for him, Designer may provide royalty free images of stock photographs.
1.5 WORDPRESS INTEGRATION
Designer will setup, install and configure WordPress on Client’s hosting server as described in the Scope of Services section of this proposal. WordPress is a third-party tool, and therefore we can't be responsible for any bugs associated with WordPress, or its plugins. If any bugs are found during the development phase or 30 days after launch, Designer will fix it (if possible) or update WordPress or the faulty plugin if it's available, but after the 30 days, Designer will charge at hourly rate of $100.
1.6 BROWSER TESTING
Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.
1.7 DESKTOP BROWSER TESTING
Designer test his work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), and Mozilla Firefox. Designer will also test to ensure Microsoft Internet Explorer 8 for Windows users get an appropriate, possibly different, experience. Designer will implement a single column design for Internet Explorer 7 and below for Windows but Designer will not test in other older browsers unless Client specify otherwise. If Client needs an enhanced design for an older browser, Designer will provide a separate estimate for that.
1.8 MOBILE BROWSER TESTING
Testing popular small-screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using.
Designer currently don’t test Blackberry OS or Blackberry QNX, Opera Mobile, Symbian or other mobile browsers. If Client needs Designer to test using these, Designer will provide a separate estimate for that.
1.9 TECHNICAL SUPPORT
Designer is not Client’s website hosting company so Designer doesn’t offer support for website hosting, email or other services relating to Client’s hosting. Client already has professional hosting and Client might even manage that hosting in-house; if Client does, great. If Client doesn't, Designer can set up an account for Client at one of its preferred hosting providers. Designer can set up Client’s site on a server, plus any statistics software such as Google Analytics and Designer will provide a separate estimate for that. After that, any updates to, and management of that server will be up to the Client.
1.10 CHANGES AND REVISIONS
Designer knows from experience that fixed-price agreements are rarely beneficial to the Client, as they often limit Client to its earliest ideas. Designer doesn’t want to limit Client ability to change its mind or make decisions later when Client might be better informed. The price at the beginning of this agreement is based on the Scope of Services listed in this Agreement. If Client wants to change its mind or add anything new, outside the Scope defined herein, a new estimate may be provided for such Services.
Designer can’t guarantee that its work will be error-free (we’re human!) so designer can’t be liable to Client or any third-party for lost profits, lost savings or other incidental, consequential or special damages, even if Client has advised us.
2.0 Mutual Cooperation
Designer agrees to use its best efforts to fulfill and exceed Client’s expectation on the deliverables listed above. Client agrees to aid Designer in doing so by making available needed information pertaining to its website and to cooperate with Designer in expediting the work.
3.0 Charges for Services Performed
Designer will Charge Fee that is outlined in Proposal or Estimate for its services. Functionality or feature requests above and beyond those listed in the budget and/or the functionality specs may be considered out-of-scope and an amendment to the budget will be recommended. Projects that go dormant for longer than 45 days will incur fee to resume work at the discretion of CAPOR, LLC DBA Ask8.com.
4.0 Terms of Payment
4.1 BILLING SCHEDULE
Designer is sure about Client’s understanding on importance of invoices which Designer sends him promptly. Designer is also sure Client wants to maintain a positive working relationship and keep the project moving forward, so Client agrees to stick tight to the following payment schedule.
The total budget for this project: Please See Proposal & Estimate
For Custom Designs:
CAPOR, LLC DBA Ask8.com will invoice ClientDomain.com for fifty percent (50%) of the initial fees at the point of signed agreement which will act as the deposit. The remaining 50% will be billed when the WEBSITE is launched. If the Client approves the use of any addition services that are noted in this proposal, Designer will add those additional service fee(s) to the invoice total of the 1st 50% deposit.
For Pre-Made Designs:
CAPOR, LLC DBA Ask8.com will invoice ClientDomain.com for 100% of pre-made design Estimate/Proposed service fee’s. If the Client approves the use of any addition services that are noted in this proposal, Designer will add those additional service fee(s) to the invoice total of the 1st invoice.
ClientDomain.com will supply CAPOR, LLC DBA Ask8.com with all necessary Documents and other internal information required for invoice processing before the close of the month of work (if applicable).
4.2 CLIENT AGREEMENT TO PAY
Client agrees to pay Designer’s initial (1st) invoice upon receipt, which will act as a deposit for the project. Every invoice after that will have 15 day payment terms. In the event payment is not made within 30 days, CAPOR, LLC DBA Ask8.com will charge a late payment fee of 1% per month on any overdue and unpaid balance not in dispute, to cover the manpower, interest, and other costs CAPOR, LLC DBA Ask8.com pays for carrying overdue invoices from ClientDomain.com. In addition, CAPOR, LLC DBA Ask8.com reserves the right to stop work until payment is received.
4.3 COLLECTION COSTS
In the event that Designer incurs legal fees, costs and disbursements in an effort to collect its invoices amount from client, in addition to interest on the unpaid balance, Client agree to reimburse Designer for all those expenses.
5.0 Cancellation of Plans
Client has the right to modify, reject, cancel or stop any and all plans or work in process subject to this Agreement. However, Client agree to reimburse Designer for all costs and expenses Designer incurred prior to Client’s change in instructions, and which relate to non-cancelable commitments. Designer agrees to use its best efforts to minimize such costs and expenses.
6.0 Intellectual Property
6.1 Client Rights in Deliverables
Client’s data (“Client’s Data,” which shall also be known and treated by Service Provider as Confidential Information) shall include: (a) Client’s data collected, used, processed, stored, or generated as the result of the use of the Services; and, (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein. Client Data is and shall remain the sole and exclusive property of Client and all right, title, and interest in the same is reserved by Client. This Section shall survive the termination of this Agreement.
Company grants to Client and Client accepts a non-exclusive, perpetual, non-sub-licensable, worldwide license, to publicly perform, publicly display and digitally perform the Deliverables on the Internet.
Third Party Properties
Except as otherwise set forth herein, nothing shall cause or imply any sale, license, or other transfer of proprietary rights of or in any third party software or products from one party to this Agreement to the other party.
6.2 Company Rights in Deliverables
As between Company and Client, Company will at all times be and remain the sole and exclusive owner of the Company Properties, defined herein as any property, in any format used in or made part of the Deliverables which is not provided by the Client or a third party. Except as expressly authorized in this Agreement, Client will not copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile or disassemble the Company Properties.
IP License for Client Properties
Client grants Company a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Client Properties solely in connection with Company’s performance of the Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
7.0 Accreditation and Promotion
Designer shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Designer in the Deliverables on each page of the Deliverables.
Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
7.3 Promotional Approval
Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Designer includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Designer to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
9.1 Ownership Rights.
With the exception of Client Properties and Third-Party Properties, Designer represents and warrants as follows:
That Designer has authority to grant, assign, and license the Deliverables to Client;That the Deliverables are not subject to any liens or other security interests; and that the Deliverables do not infringe the copyrights, trademarks, or any other intellectual property or proprietary rights of any third person. HOWEVER, DESIGNER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND DESIGNER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9.2 Quality and Performance of Deliverables.
Designer represents and warrants as follows:
That the Deliverables will be developed in a workmanlike, professional manner; that the Deliverables will conform to the specifications set forth in the Scope of Services; and the website will perform properly when browsed with the latest versions of the following browsers, subject to proper performance being in the Designer’s control: Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), and Mozilla Firefox. Mobile Browsers: all android and appledevices.
9.3 Compliance with Applicable Laws.
Designer represents and warrants that Designer has complied with all applicable local,state, and federal laws in carrying out its obligations under this Agreement.
9.4 Client Warranties
Client represents and warrants as follows:
Client owns sufficient right, title, and interest in the Client Content and Data to permit Designer’s use of the Client Content and Data in performing its obligations under this Agreement and to the best of Client’s knowledge, Designer’s use of the Client Content will not infringe the rights of any third party; and Client’s information regarding its products and services will be accurate and complete.
10.1 Designer Indemnity.
Designer agrees to indemnify and hold Client harmless from the claims of any third party relating to the Deliverables, including, but not limited to, claims of copyright infringement, violation of trade secrets, invasion of privacy, defamation, and right of publicity.
10.2 Client Indemnity.
Client shall indemnify, save and hold harmless Designer from the claims of any third party relating to Client Properties, including, but not limited to, claims of copyright infringement, violation of trade secrets, invasion of privacy, defamation, and right of publicity.
11.0 Term and Termination
11.1 PERIOD OF AGREEMENT AND NOTICE OF TERMINATION
This Agreement shall become effective as of Signed Date of Contract and shall continue until terminated by either party upon not less than ten (10) days’ prior notice in writing given by either party to the other. Upon the termination of this agreement, neither Party shall have any further rights or obligations under this agreement except under the provisions of sections 6,8,10 and 12.8, which shall survive such termination.
11.2 TERMINATION FOR CAUSE
Either party to this Agreement may terminate the Agreement if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default.
In addition, either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client, if the Client materially breaches its obligations to make payment pursuant to this Agreement.
11.3 PAYMENT FOR NON-CANCELABLE MATERIALS
Any non-cancelable materials, services, etc., Designer has properly committed itself to purchase for Client’s account, (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid by Client, in accordance with the provisions of this Agreement. Designer agrees to use its best efforts to minimize such liabilities immediately upon written notification from Client. Designer will provide written proof, upon request of the ClientDomain.com, that any such materials and services are non-cancelable.
11.4 Paid Deliverables and Unpaid Deliverables
Upon termination or expiration of this Agreement Designer agrees to furnish all Deliverables paid by Client in the manner described in Clause 11.5. Client is entitled to all Deliverables created and paid for, until the point of termination or expiration, in any stage of completion. On all paid Deliverables Designer grants the license to client described in Clause 6.0. Any Deliverables not paid by Client shall remain the sole property of Designer and no rights are licensed to the Client on not paid Deliverables.
11.5 DELIVERY OF PAID DELIVERABLES
Upon expiration or termination of this Agreement, CAPOR LLC DBA ASK8 shall deliver all Deliverables paid by ClientDomain.com by delivering to Client all source files, finished files and working files related to the Deliverables. ClientDomain.com agrees to pay for all costs associated with the transfer of materials.
12.0 General Provisions
12.1 Relationship of Parties
The relationship between Client and Designer is and shall be that of independent contractors, and nothing in this agreement shall be construed to establish an agency relationship, an employer-employee relationship, a partnership or a joint venture between the Parties. Designer shall have no power or authority to bind Client to any obligation or liability without Client’s express prior written consent, and Designer shall not hold itself out as having any such authority. All rights granted to Designer under this agreement are non-exclusive, and Client shall have the right to enter into agreements with other parties to perform similar services, some of whom may compete with Designer, and to perform similar services on its own behalf.
12.2 No Third-Party Benefit
This agreement is intended for the exclusive benefit of the Parties and their respective successors and assigns, and nothing contained in this agreement shall be construed as creating any rights or benefits in or to any third party.
Neither Party may assign any of its respective obligations under this Agreement without the express written consent of the other Party. Client may assign or sublicense all or any portion of Client's rights under this Agreement to any third party, without the permission of Designer.
This Agreement may be amended at any time and from time to time, but any amendment must be in writing and signed by each Party to be bound.
12.5 Joint Drafting and Neutral Construction.
This Agreement is a negotiated document and will be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation will apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties. This Agreement will be construed and interpreted in a neutral manner.
If any term, provision, covenant, or condition of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, the rest of the Agreement will remain in full force and effect and will in no way be affected or invalidated.
12.7 Entire Agreement.
This Agreement, including all Exhibits, Appendices, and Attachments, contains the entire agreement of the Parties relating to the rights granted and obligations assumed herein. Any oral representations or modifications concerning this instrument will be of no force or effect unless contained in a subsequent written modification signed by the Party to be charged.
12.8 Venue and Applicable Law.
This Agreement will be governed, construed, and interpreted in accordance with the laws of New York (without respect to principles of conflicts of law), and the Parties submit to the jurisdiction of and venue in New York in any legal proceeding necessary to interpret or enforce this Agreement or any part of this Agreement.
All notices under this Agreement shall be given in writing either by: (a) Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email, on confirmation of receipt.
Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder.
Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control.
The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
All rights and remedies of Client herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Service Provider for the enforcement of this Agreement, and temporary and permanent injunctive relief.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This Section shall survive the termination of this Agreement.
Form of Signatures
This Agreement may be executed by the parties in electronic counterparts.