This WEB SITE DESIGN AGREEMENT ("Agreement") is an agreement between DYNAMIC SOLUTIONS. ("DYNAMIC SOLUTIONS"), a Michigan DYNAMIC SOLUTIONS located at 189 Townsend Street, Suite 302, Birmingham, MI 48009, and the party set forth in the related order form (“Customer” or “you”) incorporated herein by this reference (together with any subsequent order forms submitted by Customer, the "Order") and applies to the purchase of all services ordered by Customer on the Order (collectively, the "Services"). The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Order.
W I T N E S S E T H:
WHEREAS, Customer desires to engage DYNAMIC SOLUTIONS to design, develop, create, test, and deliver a web site as more specifically set forth in the Order (“Web Site”), as a work made for hire and to host the Web Site on DYNAMIC SOLUTIONS’s Web Server and make the Web Site available for browsing on the Internet; and
WHEREAS, DYNAMIC SOLUTIONS is interested in undertaking such work; and
WHEREAS, Customer and DYNAMIC SOLUTIONS mutually desire to set forth the terms applicable to such work;
NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, Customer and DYNAMIC SOLUTIONS, intending to be legally bound, hereby agree as follows:
1. TERM AND TERMINATION A. Term of Agreement. This Agreement shall be effective as of the date set forth on the Order and shall remain in force until seven (7) days after the last Coordination Step as set forth in the applicable Order, which shall take place not later than one hundred twenty days (120) after the Order (“Delivery Date”). DYNAMIC SOLUTIONS cannot guarantee the Delivery Date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner. B. Termination. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by DYNAMIC SOLUTIONS (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with DYNAMIC SOLUTIONS or hinders DYNAMIC SOLUTIONS’s ability to perform the Services hereunder.
2. DYNAMIC SOLUTIONS’S AND CUSTOMER’S RESPONSIBILITIES A. Scope of Work. Customer hereby retains the services of DYNAMIC SOLUTIONS to design the Web Site for Customer in accordance with the Order. B. Changes. Changes to this Agreement, the Order or to any of the specifications of the Web Site shall become effective only when a written change request is executed by the Customer and DYNAMIC SOLUTIONS (“Change Order”). DYNAMIC SOLUTIONS agrees to notify Customer promptly of any factor, occurrence, or event coming to its attention that may affect DYNAMIC SOLUTIONS’s ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in the Services. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
3. Customer’s Responsibilities. Customer agrees to perform all tasks assigned to Customer as set forth in this Agreement or a Change Order, and to provide all assistance and cooperation to DYNAMIC SOLUTIONS in order to complete timely and efficiently the Web Site. DYNAMIC SOLUTIONS shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event DYNAMIC SOLUTIONS's failure to meet its responsibilities and time schedules is caused by Customer's failure to meet (or delay in) its responsibilities and time schedules set forth herein, a Change Order, or this Agreement. In the event of any such failure or delay by Customer (i) all of DYNAMIC SOLUTIONS's time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Customer shall continue to make timely payments to DYNAMIC SOLUTIONS as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by DYNAMIC SOLUTIONS. Customer shall be responsible for making, at its own expense, any changes or additions to Customer's current systems, software, and hardware that may be required to support operation of the Web Site. Unless otherwise contracted with DYNAMIC SOLUTIONS or reflected in a Change Order, Customer shall be responsible for initially populating and then maintaining any databases on the Web Site as well as providing all content for the Web Site. With the execution of a Change Order specifically asking DYNAMIC SOLUTIONS to assesses the Customer's systems, software and hardware from time to time, DYNAMIC SOLUTIONS may agree to perform this function at normal DYNAMIC SOLUTIONS rates.
4. WEB SITE DESIGN:
A. Design. The design of the Web Site shall be in substantial conformity with the material provided to DYNAMIC SOLUTIONS by Customer. Web Site consultation will be provided according to the number of coordination steps outlined for the plan purchased in the Order. Customer will provide direction to DYNAMIC SOLUTIONS by accessing the DYNAMIC SOLUTIONS’s Customer Relationship Management system (“CRM”) and delivering content for Web site construction within. Web Site text will be supplied by the Customer unless copywriting services have been purchased. Development of web pages will take place on the Customer’s established web hosting service with DYNAMIC SOLUTIONS. All server technical issues are to be handled by DYNAMIC SOLUTIONS unless otherwise noted amongst all parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. This does not include adding features beyond the scope of the Order. DYNAMIC SOLUTIONS shall not include, as determined in its sole discretion, any of the following in the Web Site or in Customer’s directory on DYNAMIC SOLUTIONS’s Web Server: text, graphics, sound, or animations that might be viewed as obscene or any illegal activities; links to other we sites that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by Customer); invisible text, metatags (i.e., text that is present only when a “Webcrawler” or other Web indexing tool accesses the Web Site), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.
B. Coordination Steps. Customer understands that submissions for Web Site development are limited to the number of coordination steps as provided in the Order. Customer is encouraged to provide as much instruction and direction as possible with each submission.
C. Accessibility of Web Site During Construction. Throughout the construction of the prototype and the final Web Site, the Web Site shall be accessible to Customer through the CRM. Until Customer has approved the final Web Site, none of the Web Pages for Customer’s Web Site will be accessible to end users.
D. Completion Date. DYNAMIC SOLUTIONS and the Customer shall work together to complete the Web Site in a commercially reasonable manner. Customer must supply DYNAMIC SOLUTIONS complete text and graphics content all web pages contracted for within four (4) weeks of the date of the Order unless otherwise noted. If Customer has not submitted complete text and graphics content within six (6) weeks after the Order, an additional continuation fee of ten percent (10%) of the total Order price will also be assessed each month until the Web Site is published.
F. Copyright to Web Site. Customer acknowledges, understands and agrees that DYNAMIC SOLUTIONS may use its own and/or may purchase third party licenses for products or services that are necessary for DYNAMIC SOLUTIONS to design and develop the Web Site. Such products may include, but are not limited to server-side applications, clip art, "back-end" applications, music, stock images, or any other copyrighted work (“Outside Content”) which DYNAMIC SOLUTIONS deems necessary to purchase on behalf of Customer to design and develop the Web Site. Customer further acknowledges and understands that any Outside Content used to design and develop the Web Site is owned by DYNAMIC SOLUTIONS and/or such third parties and cannot be transferred to Customer and is hereby specifically not transferred to Customer and shall remain the property of DYNAMIC SOLUTIONS and/or such third parties. Customer and DYNAMIC SOLUTIONS agree that upon payment in full of the fees associated with the design and development of the Web Site, Customer shall own a worldwide right, title, and interest in and to the Web Site (including, its source code and documentation) (the "Custom Programming"). Customer and DYNAMIC SOLUTIONS agree that DYNAMIC SOLUTIONS shall retain a worldwide, royalty-free, non-exclusive, transferable, and perpetual right and license to the Custom Programming including, but not limited to, the right to modify, amend, create derivative works, rent, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom Programming. Customer and DYNAMIC SOLUTIONS also agree that the design and development of the Web Site may include source code, documentation, and/or application programs that were previously written or developed by DYNAMIC SOLUTIONS and modified to meet Customer’s specific requirements (the "Code Content"). Customer shall own all worldwide right, title, and interest in and to the Code Content, but shall provide Customer (upon payment in full of the fees associated with the design and development of the Web Site) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content. DYNAMIC SOLUTIONS and its subcontractors retain the right to display graphics and other web design elements of the Web Site as examples of their work in their respective portfolios.
5. MAINTENANCE This Agreement does not provide Web Site maintenance unless a Web Site maintenance plan is purchased. Maintenance fees are assessed from when the site becomes live (on the internet), these terms are set forth by this agreement. All maintenance is assessed a 1 hour minimum for all work. If the Customer or an agent other than DYNAMIC SOLUTIONS attempts updating Customer’s pages, time to repair web pages will be assessed at an hourly rate. Changes requested by the Customer beyond those limits will be billed at the hourly rates set forth in the Order. This rate shall also govern additional work authorized beyond the maximums specified in the Order for such services as webpage design, editing, modifying product pages and databases in an online store, and art, photo, graphics, or any other services.
6. FEES The total price for all of the work set forth in the Agreement (excluding post-approval modifications not implemented by Customer) shall be set forth in the Order (the “Development Fee”). All website design work requires a 50% deposit. This price covers all work for the Order (excluding post-approval modifications not implemented by Customer). Unless otherwise stated in the Order, the Development Fee to DYNAMIC SOLUTIONS is due and payable upon placing the Order and DYNAMIC SOLUTIONS shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution. DYNAMIC SOLUTIONS’s services are “AS-IS, WHERE-IS, WITH ALL FAULTS” and no refunds shall be provided for DYNAMIC SOLUTIONS’s services hereunder.
A. DYNAMIC SOLUTIONS Indemnity. In performing services under this Agreement, DYNAMIC SOLUTIONS agrees not to design, develop, or provide to Customer any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If DYNAMIC SOLUTIONS becomes aware of any such possible infringement in the course of performing any work hereunder, DYNAMIC SOLUTIONS shall immediately so notify Customer in writing. DYNAMIC SOLUTIONS agrees to indemnify, defend, and hold Customer, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables, other than Customer’s responsibilities and Customer Content. This indemnification shall include attorney’s fees and expenses, unless DYNAMIC SOLUTIONS defends against the allegations using counsel reasonably acceptable to Customer. DYNAMIC SOLUTIONS’s total liability under this Agreement shall not exceed the amount of the Development Fee derived by DYNAMIC SOLUTIONS under this Agreement.
B. Customer Indemnity. Customer shall indemnify and hold harmless DYNAMIC SOLUTIONS (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by DYNAMIC SOLUTIONS as a result of any claim, judgment, or adjudication against DYNAMIC SOLUTIONS related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to DYNAMIC SOLUTIONS (the "Customer Content"), or (b) a claim that DYNAMIC SOLUTIONS's use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, DYNAMIC SOLUTIONS must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.
8. Representations and Warranties. DYNAMIC SOLUTIONS makes the following representations and warranties for the benefit of Customer: A. No Conflict. DYNAMIC SOLUTIONS represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by DYNAMIC SOLUTIONS under this Agreement and the Order. Customer understands that DYNAMIC SOLUTIONS is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with DYNAMIC SOLUTIONS’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
9. Conformity, Performance, and Compliance. DYNAMIC SOLUTIONS represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML conventions; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) DYNAMIC SOLUTIONS will perform all work called for by this Agreement in compliance with applicable laws. DYNAMIC SOLUTIONS will repair any Deliverable that does not meet this warranty (standard HTML compliance) within a reasonable period of time if the defect affects the usability of Customer’s Web Site, and otherwise will repair the defect within 24 hours, said repairs to be free of charge to Customer. This warranty shall extend for the life of this Agreement. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of DYNAMIC SOLUTIONS.
10. Disclaimer of All Other Warranties. DYNAMIC SOLUTIONS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE WEB SITE WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE WEB PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
11. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT PAID BY CUSTOMER HEREUNDER. DYNAMIC SOLUTIONS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OF SUCH THIRD PARTY
12. Customer and DYNAMIC SOLUTIONS agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Oakland County, Michigan and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Michigan sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Michigan or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
13. READ AND UNDERSTOOD Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
14. DULY AUTHORIZED REPRESENTATIVE Each Party warrants that their representative whose signature appears below is duly authorized by all necessary and appropriate corporate actions to execute this Agreement.
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