CORNISH HERITAGE VENTURES GENERAL WEB DEVELOPMENT AND HOSTING AGREEMENT
This Web Site Development and Hosting Agreement (”Agreement”) is entered into as of the date of acceptance (“Effective Date”) by Cornish Heritage Ventures, LLC (“Developer”) of a purchase order or other formal request for Web Development and Hosting services (“Customer Order”) from a person or entity wishing to receive these services (“Customer”) and payment of the full fee for deployment of Web site and the first month of Hosting and related services. This agreement is available on the Developer’s website and Customer’s acceptance of the terms herein is implied by the payment for services, full or partial, whether in advance or retrospect.
When used in this Agreement, the capitalized terms listed in this Section shall have the following meanings:
1.1 Agreement — this document and any supplemental emails agreeing to changes, prices and clarifications to this document.
1.2 Code — HTML computer programming/formatting code, any files necessary to make image maps function, and any server code necessary to make forms, buttons, check-boxes, and the like function, and any server code necessary to integrate enhanced or interactive features, interact with computer databases, and provide additional features as specified.
1.3 Deliverables — all Code, Documentation, Reports, Internet Domain names, and other materials developed by Developer in the course of its performance under this Agreement, and any other items necessary for the operation of Customer’s Web site (other than third-party operating system software, third-party networking software, Web Browsers, hardware, and code not specifically developed for Customer), including all Enhancements thereto.
1.4 Internet — the world-wide network of computers commonly understood to provide some or all of the following features, among others: electronic mail, file transfers through File Transfer Protocol (“FTP”), Telnet access to local and remote computers and World Wide Web access.
1.5 Proprietary Materials — all Code, Documentation, Reports, and other materials developed by Developer that was not specifically developed for Customer under this Agreement.
1.6 Web Page — a document or file that is formatted using HTML & CSS and that is intended to be accessible by Internet users with a Web Browser.
1.7 Web Server — the computer or computers that Developer uses to make Web sites accessible to Internet users approximately 24 hours per day.
1.8 Web Site — a series of interconnected Web pages residing in a single directory on a single Web Server.
2.1 Web Site Design — The design of Customer’s Web site shall be as selected by Customer at the time of issuance and according to the specifications contained in Customer Order (“Additional Specifications”). There shall be no variation from the standard Web Site Design selected by Customer without such specification being included in Customer Order or as provided for otherwise in Agreement. As there will be no development of code or materials specific to customer without Additional Specifications, there will be no Deliverables associated with Web Site in the absence of Additional Specifications. The Customer has the option of allowing the Developer total control over the design of the Web site, in which case the Developer is free to provide whatever layout of the Website they deem fit for the purpose the Customer needs. The Customer has the right to approve any Web site created by the Developer and ask for changes or a complete re-write if necessary. The Developer has the right to terminate the development project and refund all payments received from the Customer if the Developer believes that the Customer’s requirements may be better served by a different company. Once approved, the Customer will pay for modifications to the Web site as per the individual agreement, usually specified via email.
2.2 Timing For Delivery Of The Web Site — Developer shall provide Customer with on-line access to Web Site in generally functional condition within Fifteen (15) days of Effective Date at which time customer will review and begin to populate Web Site with Customer information and materials. Final delivery and operation of Web site will be considered to have taken place either when Customer accepts Web Site or Thirty (30) days after Effective Date, whichever is earlier (“Delivery Date”). Customer must notify Developer in writing of any desire to delay final delivery prior to that time and final delivery may only be delayed as a result of identification of a significant defect or at the discretion of Developer.
2.3 Delivery Of Deliverables — Upon termination of this Agreement, Customer may request that Developer deliver all Deliverables to Customer and Developer shall deliver all such requested Deliverables within Thirty (30) days of termination in a form consistent with common good practices for exchange of such information and materials as determined by Developer. This usually consists of simple compressed files for the Code and Databases.
2.4 Availability of Proprietary Materials – There shall be no availability to Customer of Developer’s Proprietary Materials or software licenses associated with Agreement. A separate formal written agreement may be executed at the discretion of Developer to deliver Proprietary Materials to Customer.
2.5 A Form Of Artwork – The Developer considers the creation of a Website to be a form of expression of art. There are many factors which go into making a complete Website, therefore there are many factors that have to be taken into account when the Developer decides to undertake a Website project or not. The Developer reserves the right to reject the Customer’s request to design a Website for any reason, without providing any reason for doing so.
3.1 Server Hosting — As part of this Agreement, Developer agrees to host Customers Web site on Developer’s Web Server, to make Customer’s Web site available to Internet users approximately 24 hours per day, to make a full back-up of Customer’s Web site at least once a week, and to store said back-up materials in a safe and secure environment, fit for the back-up media.
Interruption of Hosting shall not be cause for any refunds under any circumstances.
3.2 Maintenance Modifications — Developer may make maintenance modifications to Customer’s Web site from time to time as required to ensure good operation and security. Developer shall make available to Customer in a timely manner information regarding functional changes these Maintenance Modifications may cause to Web site.
3.3 Transaction Logging — During the time that Customer’s Web site is located on Developer’s Web Server, Developer shall provide to Customer, on a 24/7 basis and free of charge, a summary of accesses to Customer’s Web site during the prior day/week/month/past months. This summary shall be made available via a Web page accessible to Customer.
3.4 Limited Hosting — The Developer reserves their servers and associated resources for Customers that have an active Agreement with them. Should this Agreement be terminated the Customer is responsible for all costs of moving their information from the Developer’s servers immediately.
4.1 Total Price — The total price for Web Site and associated services covered in Agreement shall be as specified in Purchase Order and accepted by Developer.
4.2 Invoicing — Developer will invoice Customer one month in advance for all monthly services associated with Web Site. If the Developer offers a yearly fee to the Customer, the Developer will invoice the Customer as appropriate. Developer will assess at its discretion a late fee of 1.5 % per month on any balance due beyond 30 days from date of invoice. Any balance greater than 30 days past due may at the discretion of Developer result in suspension of any or all services to Customer. In the event that Developer shall hire legal counsel to collect (or attempt to collect) any amount due under this contract, Customer shall be required to reimburse Developer for actual attorney fees and costs of collection.
4.3 Payment In The Event Of Termination — If Agreement is terminated for any reason, Developer shall be entitled to full payment for all services delivered up to the time of Termination. No Deliverables shall be provided by Developer to Customer until full payment has been received by Developer.
4.4 Internet Domain Names — The Developer may include the cost of purchasing and maintaining the Customer’s Internet Domain Name in the cost of the hosting. In this case the domain name belongs to the customer as long as it is paid for according to the terms laid out in section 4. If the Agreement is terminated and the Customer wishes to transfer the domain name away from the Developer they may do so at their own expense. The Developer will not be responsible for any transfer costs or any effort of work apart from those specified by this Agreement and reasonably associated with domain name transfers. No Internet Domain Names will be eligible for transfer until the Developer is satisfied that all payments associated with the Customer’s Account have been paid in full.
4.5 Deposits — The Developer may request an advance payment for services the Customer wishes the Developer to undertake. This amount will usually be a minimum of $100, but may be any amount up to and including the Total Price.
CONFIDENTIALITY AND NON-COMPETITION
5.1 Confidentiality — Developer shall treat all matters specifically associated with Agreement as confidential. Subsequent to Delivery Date, Developer may list Customer as a client of Developer.
5.2 Non-Competition — Developer shall be free during and after the term of Agreement to develop Web sites for, and provide services to, any other client.
5.3 Non-Solicitation — Customer shall not attempt to solicit for employment, hire, or contract services from any employee of Developer during the term of this contract (or for 6 months thereafter) without the express written consent of Developer.
6.1 Information of Developer — Developer represents that any information provided to Customer in the course of entering into this Agreement or performing any work hereunder shall not be confidential or proprietary to Developer unless specifically indicated in writing.
6.2 Information of Customer — All information received from Customer is to be treated as confidential until such information is made public by Customer on Customer’s Web Site or otherwise made public. Developer shall use its best efforts to prohibit any use or disclosure of Customer’s confidential information, except as necessary to perform work hereunder or as required by law.
6.3 Timing of Information Covered— Information supplied by Customer is covered under this agreement whether the customer proceeds with the contract or not.
OWNERSHIP AND RIGHTS
7.1 Vesting of Rights – Except as provided for in Agreement and excluding any Deliverables or information and materials Customer places in Web Site, Developer retains all rights to Web Site design, look and feel, all database design and content, all computer code, and any other materials associated with delivery of Web Site.
7.2 Credit to Developer — Developer may place and maintain, and Customer will not remove, a non-obtrusive yet noticeable reference to the Developer and link to Developers own Web site.
VIOLATION OF PROPERTY RIGHTS
8.1 Customer Not to Provide Materials to Developer — Customer agrees not to provide any materials to Developer for inclusion in Web site nor upload to Web Site for display on Web Site where (a) the inclusion of those materials would constitute a violation of another party’s legitimate copyright, trademark or other intellectual property rights, (b) where such inclusion would be illegal to display or (c) is inconsistent with acceptable community standards. If any such violation occurs, or if any complaints of such violation are received by another party, Customer shall fully defend same and shall hold Developer free and harmless therefrom.
8.2 Unsolicited Email Advertising— Customer agrees not to engage in the distribution of unsolicited electronic mail advertising for the purpose of promoting Web site, services or products whether or not that distribution is conducted through Providers services or by other means. To do so will constitute a material breach in this Agreement and will entitle Developer to cause full termination of Customer’s Web Site use, access and display, or termination of specific services. Customer also agrees not to upload, import, send E-Mail advertising to, or otherwise utilize in association with Providers services any E-Mail addresses acquired through the purchase of lists of E-Mail addresses or provided by any associated or non-associated source where the addressee has not expressly agreed to receive E-Mail mail from Customer or from a specific group of organizations in which Customer is included. Customer further agrees to comply with Providers specific requirements for inclusion in all E-Mail distributed by way of Providers services of a notice of origin of the E-Mail, full Customer contact information, a clear means to unsubscribe from further E-Mail distribution, and for quick compliance with recipient unsubscribe requests, and all other notices and content required by law.
WARRANTY AND LIABILITY
9.1 Customer / Developer Warranty — Developer warrants that Web Site shall substantially meet the published specifications for Web Site and services associated with Agreement. In the event of warranty breech, damages shall be limited to the contract price actually paid by Customer to Developer to fulfill this Agreement.
9.2 Developer Warrants — that no material, product or services provided by Developer under this Agreement infringe upon any patent, trademark, copyright, trade secret, or other intellectual property or proprietary right of any third party.
9.3 Damage — Developer does not provide any warranty or agree to cover any damage to other software or systems or loss of data that is caused by or related to misuse, accident, negligence, or misapplication of Web Site or Provider’s services.
9.4 Liability — In no case shall Developer be liable for any incidental, special or consequential damages or loss, including, without limitation, lost profits or the inability to use Web Site or access to data, whether such damages are based upon a breach of express or implied warranties, breach of contract, negligence, strict tort, or any other legal theory. This is true even if Developer is advised of the possibility of such damages. In no case will Developer’s liability exceed the amount of the contract price actually paid by Customer to Developer.
TERM AND TERMINATION
The term of this Agreement shall commence on Effective Date and shall continue until all services have been provided by Developer, as described in this Agreement, or until termination as set forth in this Agreement. Provided, however, that customer may terminate Agreement at any time without cause by notifying developer in writing at least Thirty (30) days prior to a desired termination date.
If this agreement is terminated for any reason, Developer shall be entitled to payment for the amount of all work performed up to the date of termination. No refunds for payment already received will be made in any circumstances, unless this Agreement is terminated by the Developer and then the Developer may decide what portions of the payments have already been used and refund an amount not to exceed the initial Agreement price.
Should termination of this Agreement take place for any reason, it is the sole responsibility of the Customer to request any information they are entitled to under the terms of this agreement. The Customer or their representative must initiate a Domain Name Transfer if they want one. Once the Agreement is terminated the Developer is no longer responsible for the maintenance of the Domain Name and any costs, liabilities or damages associated with the expiration of any Domain Name against the Developer are expressly waived by any party.
11.1 Date of Publication – This version of Agreement has been posted and published by Developer on Developer’s Web site as of June 1st, 2015.
11.2 Modification – Developer may update and/or modify Agreement at any time as necessary to keep pace with technology, law, or to accommodate issues that arise. Customer shall be bound to these modifications Sixty (60) days after publication on Developer’s Web site of any new or modified version of Agreement. Customer agrees that as Customer may terminate Agreement with Thirty (30) days prior written notice and as Agreement provides Customer with at least Thirty (30) additional days of prior notice of modification of Agreement, that Customer is considered to have prior knowledge and to have agreed to modifications of Agreement Sixty (60) days after Date of Publication.
11.3 Assignment — Neither party may assign its rights and responsibilities hereunder without the written consent of the other party.
11.4 Internal Disputes — The Developer is not responsible for internal disputes within the Customer’s organization. Upon initiation of this Agreement, two contacts will be requested although only one may be assigned if the Customer prefers. The contact s will be assigned a Primary and Secondary role. Either one will be allowed to initiate changes to the Website that may or may not include costs. The Customer agrees at any changes incurring cost will be paid as long as initiated by either contact. If the contacts have differing requests, then the Primary contact will override the Secondary. These requests include changes to the Website, hosting agreements, Domain Name issues and disputes for the same. The Developer, as per the terms of this Agreement, is not responsible for any liability or damages associated with the Customer’s Internal disputes and the Customer agrees to pay for any expenses the Developer may incur related to the Customer’s Internal Dispute during the time the Customer is in internal dispute.
In any case the Developer will not transfer Domain Names, Hosting, Code or other services until requested to do so by the Primary contact, Uniform Domain Name Dispute Resolution Policy or by final judicial decision.
11.4 Governing Law; Jurisdiction; Venue; Waiver of Trial by Jury
The Developer makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
Except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced below, this Agreement shall be governed by and construed in accordance with the federal law of the United States and the state law of Missouri, whichever is applicable, without regard to conflict of laws principles. Customer agrees that any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Taney County, Missouri, and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of Taney County, Missouri. Customer agrees to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.
11.5 Titles and Heading; Independent Covenants; Severability
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
11.6 Uniform Domain Name Dispute Resolution Policy
The Uniform Domain Name Dispute Resolution Policy (the “Policy”) has been adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”), and governs any disputes over domain name ownership. The Developer may purchase or hold domain names on behalf of the Customer, but the Developer is not a registrar for those domain names. The Actual registrar may vary, but can be ascertained by the Customer using generally accepted and generally available tools. Any disputes over domain name ownership, as opposed to Website content, should be directed to the actual registrar for the domain name. The Customer agrees to compensate the Developer for any expenses associated with such disputes, regardless of outcome.