This Agreement is made between <<CLIENT COMPANY>> (the “Client”) with a principal place of business at <<CLIENT STREET ADDRESS>>, <<CLIENT CITY STATE>> and <<DEVELOPER COMPANY>> (the “Developer”) with a principal place of business at <<DEVELOPER STREET ADDRESS>>, <<DEVELOPER CITY STATE>>.
“The Site” means a series of linked Web pages under common control and developed by Developer for Client under this Agreement.
“Client Content” means all data, code, trademarks and copyrighted content provided by Client for use by Developer on the Site.
“Developer Content” means all data, code, trade secrets, patents, designs, drawings, text created by Developer for use on the Site, including any modifications or enhancements provided by Developer.
“Sprint” means an uninterrupted period of time during which work is performed, typically one week to one month in length, as agreed upon between the Client and Developer.
“Product Backlog” means a list of requirements for the Site, developed and modified by the Client and Developer during the term of the Agreement.
“Sprint Backlog” means a list of requirements for the Site to be completed at the conclusion of a Sprint. The Sprint Backlog is a subset of the Product Backlog.
2. Developer Services
Developer will perform the development services described in the Product Backlog. Developer will complete each Sprint Backlog on or before the date specified and agreed upon. Before delivering the Site to Client, Developer will test its components to make sure the Site and its components work as intended.
3. Evaluation and Acceptance
The Client and Developer will use the Product Backlog to develop a Sprint Backlog. The Sprint Backlog, including the first and last days of the Sprint, will be signed, dated, and made part of this Agreement.
As Developer completes each Sprint, Developer will submit the completed materials to Client for approval and an invoice detailing its time and expenses. Client will approve the completed materials or provide corrections and comments by adding or removing requirements to the Product Backlog. The Client and Developer will use the modified Product Backlog to develop a new Sprint Backlog. This new Sprint Backlog, including the first and last days of the Sprint, will be signed, dated, and made part of this Agreement.
If Client determines, in its reasonable discretion, that the materials are not acceptable, Client can terminate this Agreement before a successive Sprint begins. If Client fails to provide approval or comments, those materials will be considered to be approved.
If Client terminates this Agreement under this provision, Developer shall be entitled to compensation on a time and materials basis at an hourly rate of <<DEVELOPER RATE>> plus expenses to the date of termination. Developer shall submit a final invoice detailing its time and expenses. If the invoice amount is less than the amounts paid to Developer prior to termination, Developer shall promptly return the excess to Client. If the invoice amount exceeds the amounts paid to Developer prior to termination, Client shall pay Developer the difference within 30 days of the date of the invoice.
Client will pay a retainer to Developer in the amount of <<DEVELOPER RETAINER>>. This fee shall be payable in advance upon execution of this Agreement. Developer shall be compensated at the rate of <<DEVELOPER RATE>> per hour. Developer shall bill first to the retainer. Upon depletion of retainer, Client shall pay additional fees, if any, within 14 days of the date of Developer’s invoice.
5. Payment of Developer’s Costs
Client shall reimburse Developer for all out-of-pocket expenses incurred by Developer in performing services under this Agreement. Such expenses include, but are not limited, to
- all communications charges; and
- other expenses resulting from the work performed under this Agreement.
Developer shall submit an itemized statement of Developer’s expenses. Client shall pay Developer within 14 days from the date of each statement.
6. Late Fees
Late payments by Client may be subject to late penalty fees of 10% per month or the maximum allowed under state law from the due date until the amount is paid.
Client shall make available to Developer, at Client’s expense, any materials specified in the Product and/or Sprint Backlog. These items will be provided to Developer by the date specified in the Sprint Backlog.
8. Changes in Project Scope
If Client wishes to implement major revisions after Client has already accepted Developer’s work product following completion of any Sprint, Client shall submit to Developer a written proposal specifying the desired changes.
Developer will evaluate each such proposal at its standard rates and charges. Developer shall submit to Client a written response to each such proposal as soon as practicable. Developer’s written response shall include a statement of the availability of Developer’s personnel and resources, as well as any impact the proposed changes will have on the contract price, delivery dates or warranty provisions of this Agreement.
Client shall accept or reject the Developer’s response in writing as soon as practicable. If Client accepts Developer’s response, Developer shall draft a written Product Backlog to reflect the desired changes. The Product Backlog shall be signed by authorized representatives of Client and Developer, whereupon Developer shall commence performance in accordance with it.
Should Client reject Developer’s response to its proposal, Client will so notify Developer as soon as practicable of Client’s receipt of the response. Developer will not be obligated to perform any services beyond those in the original Product Backlog.
Developer shall use all reasonable efforts to meet the delivery schedule set forth in each individual Sprint Backlog. However, at its option, Developer can extend the due date for any deliverable by giving written notice to Client. The total of all such extensions shall not exceed 21 days.
Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notify the other of the delay in writing. The delayed party’s time for performance shall be deemed to be extended for a period equal to the duration of the conditions beyond its control.
Conditions beyond a party’s reasonable control include, but are not limited to, natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war or terrorism and epidemics. Failure of subcontractors and inability to obtain materials shall not be considered a condition beyond a party’s reasonable control.
10. Ownership of Developer Content
Developer shall retain all copyright, patent, trade secret and other intellectual property rights Developer may have in Developer Content. Subject to payment of all compensation due under this Agreement, Developer grants Client a nonexclusive, nontransferable, royalty-free license to use Developer Content. This license shall authorize Client to:
- Operate the Site on its host server;
- update, revise or republish the Site; and
- advertise and promote the Site.
11. Ownership of Developer Tools
Developer retains all right, title and interest, including all copyright, patent rights and trade secret rights in Developer Tools. Subject to full payment of the fees due under this Agreement, Developer grants Client a GNU General Public License (see Exhibit A) to use the Developer Tools to operate the Site and for all updates and revisions thereto.
12. Website Credits and Links
- state on the Site that Developer developed the Site;
- place hypertext links on Client’s Site to Developer’s website; or
- place hypertext links on Developer’s website to Client’s Site as an example of Developer’s services.
13. Site Hosting
Client has selected an Internet service provider to host its completed Site. While the Site is under construction and until final payment is received by Developer, Developer will host the Site pages as they are constructed in a special directory on its web space at: <<URL>>.
14. Domain Name
Developer has no legal or financial interest in the domain name chosen by Client for the site.
If requested by Client, Developer will cooperate with Client in registering the domain name with a domain name registry chosen by Client. Client shall bear all expenses incurred in registering the domain name.
15. Developer Representations and Warranties
All source code that is part of the Developer Content is provided to the Client under the GNU General Public License. All documentation that is part of the Developer Content is provided to the Client under the GNU Free Documentation License. A copy of the GNU General Public License and GNU Free Documentation License should be provided to the Client. If not, see http://www.gnu.org/licenses/.
ALL REMAINING DEVELOPER CONTENT FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN AS “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. DEVELOPER DOES NOT WARRANT THAT THE OPERATION OF THE SITE WILL BE CONTINUAL, UNINTERRUPTED OR ERROR FREE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR DEVELOPER CONTENT.
16. Intellectual Property Infringement Claims
THE DEVELOPER CONTENT FURNISHED UNDER THIS AGREEMENT IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS AGAINST INFRINGEMENT, AND DEVELOPER SHALL NOT INDEMNIFY CLIENT AGAINST INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER PROPRIETARY RIGHTS.
17. Client Representations and Warranties
Client represents and warrants to Developer as follows:
- Client has the authority to enter into and perform its obligations under this Agreement;
- Client has or will obtain all necessary and appropriate rights and licenses to grant the license to Developer to use Client Content for the Site; and
- Client has or will obtain any authorizations necessary for hypertext links from the Site to any other third party websites.
Client will indemnify Developer from any third‑party claims resulting in losses, damages, liabilities, costs, charges, and expenses, including reasonable attorney fees, arising out of any breach of any of Client’s representations and warranties contained in this Agreement. For such indemnification to be effective, however, Developer must give Client prompt written notice of any such claim and provide Client such reasonable cooperation and assistance as Client may request in the defense of such suit. Client will have sole control over any such suit or proceeding.
Confidentiality: During the term of this Agreement and for 6 months afterward, Developer will use reasonable care to prevent the unauthorized use or dissemination of Client’s confidential information. Reasonable care means at least the same degree of care Developer uses to protect its own confidential information from unauthorized disclosure.
Confidential information is limited to information clearly marked as confidential, or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in a writing delivered to Developer within 15 days of disclosure.
Confidential information does not include information that:
- the Developer knew before Client disclosed it;
- is or becomes public knowledge through no fault of Developer;
- Developer obtains from sources other than Client who owe no duty of confidentiality to Client; or
- Developer develops independently.
19. Term of Agreement
This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement.
20. Termination of Agreement
Each party shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of 30 days after written notice of such breach is sent to the other party.
If Developer terminates this Agreement because of Client’s default, all of the following shall apply:
- Client shall immediately cease use of the Developer Content;
- Client shall, within 10 days of such termination, deliver to Developer all copies and portions of the Developer Content and related materials and documentation in its possession furnished by Developer under this Agreement;
- All amounts payable or accrued to Developer under this Agreement shall become immediately due and payable; and
- All rights and licenses granted to Client under this Agreement shall immediately terminate.
The charges included here do not include taxes. If Developer is required to pay any federal, state or local sales, use, property or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to Client. Developer shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by Client.
22. Developer an Independent Contractor
Developer is an independent contractor, and neither Developer nor Developer’s staff is, or shall be deemed, Client’s employees. In its capacity as an independent contractor, Developer agrees and represents, and Client agrees, as follows:
- Developer has the right to perform services for others during the term of this Agreement subject to noncompetition provisions set out in this Agreement, if any.
- Developer has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed.
- Developer has the right to perform the services required by this Agreement at any place or location and at such times as Developer may determine.
- Developer will furnish all equipment and materials used to provide the services required by this Agreement.
- The services required by this Agreement shall be performed by Developer, or Developer’s staff, and Client shall not be required to hire, supervise or pay any assistants to help Developer.
- Developer is responsible for paying all ordinary and necessary expenses of its staff.
- Neither Developer nor Developer’s staff shall receive any training from Client in the professional skills necessary to perform the services required by this Agreement.
- Neither Developer nor Developer’s staff shall be required to devote themselves full-time to the performance of the services required by this Agreement.
- Client shall not provide insurance coverage of any kind for Developer or Developer’s staff.
- Client shall not withhold from Developer’s compensation any amount that would normally be withheld from an employee’s pay.
23. Designated Representatives
Each party will designate a representative to receive and send materials, approvals, comments, invoices and other materials discussed in this agreement.
Developer’s Representative will be <<DEVELOPER NAME>> who can be contacted by email at <<DEVELOPER EMAIL>> and by telephone at <<DEVELOPER PHONE>>.
Client’s Representative will be <<CLIENT NAME>> who can be contacted by email at <<CLIENT EMAIL>> and by telephone at <<CLIENT PHONE>>.
If a dispute arises, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected.
Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute. If the dispute is not resolved within 30 days after it is referred to the mediator, either party may take the matter to court.
25. Attorney Fees and Expenses
If there is litigation, the prevailing party may collect from the other party its reasonable costs and attorney fees incurred in enforcing this Agreement.
The provisions of Sections 16 and 17 will survive any termination of this Agreement.
27. General Provisions
- Complete Agreement: This Agreement, together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence.
- Modifications to Agreement: Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
- Applicable law: This Agreement will be governed by the laws of the State of Colorado.
- Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
- When delivered personally to the recipient’s address as appearing in the introductory paragraph to this Agreement;
- Three days after being deposited in the United States mails, postage prepaid to the recipient’s address as appearing in the introductory paragraph to this Agreement; or
- When sent by fax or electronic mail. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt.
- No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
- Assignment: The rights and obligations under this Agreement are freely assignable by either party. Client shall retain the obligation to pay if the assignee fails to pay as required by this Agreement.
- Successors and Assigns: This agreement binds and benefits the heirs, successors and assigns of the parties.
- Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement will be interpreted so as best to carry out the parties’ intent.
Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures below.