This agreement is made by and between you (“Client”) and Cave Interactive Media (“Developer”).
1. Purpose of this agreement
The Developer is acting as an independent contractor and is not acting as an employee of the Client. The Client desires the Developer to enter into a development agreement for the creation or modification of one or more websites or web applications.
2. Services provided
Developer will provide Client with a written estimate and statement of work based on specifications provided by the Client. This document will list the development work to be completed for the project, an estimate of the cost for each item, and any related expenses that are expected to be incurred during the course of development. Work will commence when the Client has accepted the estimate (which is bound by the terms of this agreement) and made all applicable down-payments. The project estimate shall be deemed a part of this Agreement.
2.1 Additional services, products and expenses
The Client agrees that any service, product, or incurred expense not explicitly listed in this agreement or in the project’s estimate shall be considered “additional” and, at the Developer’s discretion, shall be quoted and billed separately from the original estimate. These additional items and services may include, but are not necessarily limited to:
- Website or e-mail hosting
- Extra domain name(s) or extended domain name registration
- Search engine optimization
- Copywriting or content creation
- Logo design, photography, or other custom graphic design
- Stock photography, icon sets, or other files
- Website maintenance and/or changes
- Software purchase or licensing
- Liaising with billing, support, or any other department of third-party web services
- Additional training hours
- Additional design, development, or other work outside of the scope of the estimate
In the event of disagreement between Developer and Client, Developer will make the final determination as to what services, products, or expenses are included in the scope of the estimate and this agreement. The Developer will seek and obtain Client approval before incurring additional expenses on the Client’s behalf.
2.2 Website content
Client will provide ALL images, photographs, videos, text, logos, banners, and other website content. Using this content, Developer will create and organize pages to contain and display the information provided by Client.
Developer will NOT:
- Write, record, or create any new or original content for the site.
- Copy-edit, spell-check, proof-read, fact-check or otherwise modify content from the format provided by Client.
- Generate PDFs of documents that are provided in other formats.
- Create or import blog posts unless they are provided in a format that can be imported via an automated mechanism built into the CMS.
- Crop, resize, watermark, optimize, or otherwise modify images and photographs provided by Client.
- Download or obtain images from other websites, including Client’s existing site if this is a redesign.
- Set up image galleries consisting of more than 50 images or set up more than 5 total image galleries across the site.
- Additional content restrictions:
- Text content must be provided by Client to Developer in a format that can be copied and pasted directly into the site.
- Images and photographs must be provided in JPG, JPEG, PNG or GIF format.
- Logos should be provided in vector (AI, EPS, SVG, Sketch) format.
- Videos must be provided as embed codes after being uploaded to a third-party sharing site such as YouTube or Vimeo.
2.3 Ongoing website maintenance
Ongoing website and content maintenance updates are not included unless explicitly mentioned in the project’s estimate. Maintenance service is generally provided in the form of a limited number of 30-minute updates during which time the Developer will perform tasks directly related to content maintenance, organization, and formatting. The number of 30-minute updates or total hours included with your site will be specified in your estimate.
The same exclusions and limitations listed in section 2.2 above also apply to ongoing website updates.
In accordance with Developer’s standard practices, updates processed as part of a content maintenance request will be published to the live site immediately after being completed. Client may request on a per-update basis that the update be left in “preview” status and not published to the site until approved by Client.
After a requested content update is completed and published, Client will be notified immediately and has sole responsibility of reviewing the content on the live site for accuracy and completeness. Any discrepancies should be reported to Developer as soon as possible.
Per the terms of section “8. Indemnification and limitation of liability” of this agreement, Developer will not be held responsible for any errors, omissions, or other inaccuracies introduced as a part of a maintenance request, whether such error is the fault of Client or Developer.
Unlimited email support is included with every maintained or hosted website. Support typically replies within 24 hours but a specific timeline is not guaranteed.
Phone support may be available on an appointment-only basis but is not guaranteed.
2.5 Post-launch modifications
For a period of thirty (30) days following the delivery of the Client’s website, the Client may request minor modifications to the design or function of the site pursuant to the terms of this agreement. After this time period, the Developer’s obligation to perform any of the services covered in this agreement (other than monthly website hosting, maintenance, or other ongoing services) shall cease.
The Client is engaging the Developer to develop, design, redesign or improve a new or existing website and as such the Client hereby authorizes the Developer to access hosting, e-mail and related accounts, along with any files contained in these accounts, as required throughout the duration of this agreement.
4. Ownership rights
Client shall retain all of its intellectual property rights in any text, images or other components it owns and transmits to the Developer for use in the website. Client shall hold the copyright for the agreed upon version of the website as delivered, and Client’s copyright notice may be displayed in the final version.
The Developer shall hold all right, title, and interest in and to the source code, programming and original artwork created for the project by the Developer and not supplied by Client to Developer.
4.1 Right to modify
The Client is permitted to alter or modify any aspect of the delivered website, including the right to make derivative works from any portion of the delivered website, provided the resultant works are for the Client’s own internal use. The Developer maintains the exclusive rights in making any derivative works for reuse or resale to other third parties.
4.2 Right to transfer
Client shall be provided a copy of the template source code, images, icons, and related files used and developed during this project. At the completion of this agreement, Client shall have the right, at any point in time, to remove website templates and content from the original server(s) and to transfer all or any part of the website to another hosting environment. The Client acknowledges and agrees that certain features provided by the website’s content management and hosting systems are not available on all hosting platforms and some website content and functionality may be limited or completely disabled if transferred. In the event of a transfer Client shall be responsible for moving files and information between servers. Developer shall provide guidance on transferring data out of systems owned or operated by Developer but shall not be responsible for recreating all or any part of the website in another hosting environment.
4.3 Third-party materials
Templates, photographs, icons, source code, and other website components obtained from or provided by a third party shall remain under the copyright of that party. The Client agrees to use those files pursuant to the terms established by the copyright holder.
5. Delivery of websites
The Developer will use reasonable diligence and endeavor to deliver to the Client each operational website by the deadline, if any, stated in the respective project’s estimate. Client acknowledges, however, that a variety of factors not directly within the Developer’s control can affect the project timeline. As such, this delivery deadline is a good-faith estimate of when work shall be completed and is not a required delivery date.
For all of Developer’s services under this agreement, Client shall compensate Developer pursuant to the terms of this agreement and each project’s respective estimate within thirty (30) days of delivery of completed website, before the website launches, and before client is given control of the website.
Website is considered to be delivered after the agreed-upon number of revision cycles has been completed. Website shall also be considered delivered if client fails to respond to Developer communication or request additional revisions within 30 days of implementation of the previous set of revisions.
However, notwithstanding any other provision in this agreement, no compensation other than a non-refundable 50% downpayment shall be payable by Client to Developer until such time as the operational website has been delivered.
6.1 Late payment
In the event Client fails to complete full payment within thirty (30) days of website delivery, Developer has the right to pursue any or all of the following remedies: (1) terminate the agreement, (2) immediately stop all works-in-progress or remove unpaid for material and content, (3) bring legal action. Additionally, Developer shall be entitled to the amount due plus accrued late charges of 5% per month or the maximum interest allowed by law, whichever is lesser.
7. Limited warranty and limitation on damages
The Developer warrants that each website will conform to the specifications set forth in the respective estimate. If the website does not conform to the specifications, the Developer shall be responsible to correct the website without unreasonable delay, at Developer’s sole expense and without charge to Client, to bring the website into conformance with the specifications. To redeem this warranty, The Client must notify the Developer of any discrepancies between the estimate specifications and the delivered website within thirty (30) days of delivery. This warranty shall be the exclusive warranty available to Client. The Client waives any other warranty, express or implied. The Client acknowledges that the Developer does not warrant that the website will work on all platforms or web browsers. The Client acknowledges that the Developer is not responsible for the results obtained by the Client from the website. The Client waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to the Developer as set forth in the project’s estimate.
The Client acknowledges that Client and/or Client’s legal counsel are responsible for ensuring Developer is made aware, in writing, of specific legal or other technical requirements as they pertain to Client’s website. These laws and requirements may include, but are not limited to: Americans With Disabilities Act (ADA) accessibility, Health Insurance Portability and Accountability Act of 1996 (HIPAA) compliance, Payment Card Industry Data Security Standard (PCI DSS) compliance, anti-spam laws, cookie notification laws. Developer neither warrants nor guarantees compliance with any such federal, state, local, or other jurisdictional legal requirements. However, at additional cost to the Client, Developer will collaborate with Client, Client’s legal counsel, and/or independent third-party auditors to work toward achieving compliance and to establish policies, procedures, and monitoring for maintaining ongoing compliance.
8. Indemnification and limitation of liability
The Client warrants that everything it gives the Developer to put on the website is legally owned by or licensed to the Client. The Client agrees to indemnify and hold the Developer harmless from any and all claims brought by any third-party relating to any aspect of the website, including, but without limitation, any and all demands, liabilities, losses, costs and claims including attorney’s fees arising out of injury caused by the Client’s products or services, material supplied by Client, copyright infringement, slander and defamation, or defective products sold via the website. Further, the Client agrees that the Developer shall not be liable for problems or disruptions caused by third-party services that the Client may use such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing, domain name services, and other services that relate to the ownership and operation of the website.
Neither the Developer nor the Client shall be liable to the other for loss of profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract, missed delivery dates, or other cause except as is set forth in this agreement.
The Developer shall not be liable to the Client for any loss arising out of any failure by the Client to keep full and up-to-date security copies of website content, computer software, and data it uses in accordance with best computing practice. Neither will the Developer be liable for any errors or omissions in website content or for delay in delivery of the website or website content to the host server howsoever such delay may be caused.
The Developer shall not be liable to the Client for hardware or software faults in web hosting or computer systems, including those that result in unscheduled website downtime or loss of data.
The Developer shall not be liable to the Client for data loss resulting from website modification or editing by parties other than the Developer.
The Developer shall not be liable for any losses or damages to computer software or hardware or the data contained therein due to software bugs or due to hacking, viruses, spyware, or similar causes.
The Developer shall not be liable for any other losses that may occur in the operation of the website.
Except in respect of injury to or death of any person (for which no limit applies) the respective liability of the Developer and the Client under this agreement shall not exceed the total value of fees payable pursuant to each project’s estimate for the services to be supplied.
The Developer shall not be liable for any outdated, obsolete, or otherwise deficient software or hardware systems that may prevent the Client or its customers from accessing the completed website solution as intended. It is assumed that the Client and its customers will use the most recent versions of all operating systems and web browsers. The Client is responsible for notifying the Developer of any specific compatibility needs prior to signing this agreement.
The provisions of this “Indemnification and limitation of liability” clause survive the termination or expiration of this agreement.
9. General Provisions
9.1 Entire agreement
With the exception of each project’s estimate and statement of work, this agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this agreement shall be valid unless made in writing and signed by both of the parties hereto.
9.2 Governing law and Arbitration
Any dispute or controversy arising under, out of or in connection with, or in relation to this Agreement, or any amendment hereof, or the breach hereof shall be determined and settled in the District Court for Sangamon County, Illinois, in accordance with the Commercial Rules of Arbitration of the Judicial Arbitration and Mediation Services before one (1) arbitrator applying the laws of the State of Illinois. The parties shall attempt to mutually select the arbitrator. Any award rendered by the arbitrator shall be final and binding upon each of the parties, and judgment thereon may be entered in any court having jurisdiction thereof. The costs of arbitration shall be borne equally by both parties but the losing party shall pay the prevailing party’s reasonable attorneys fees. The provisions set forth herein shall survive expiration or other termination of this Agreement.
9.3 Binding effect
This agreement shall be binding upon the Client and the Developer and their respective successors and assignees, provided that the Developer may not reassign any of his obligations under this agreement without the Client’s prior written consent.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this agreement.
9.5 Good faith
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this agreement.
9.6 Use of website for promotional purposes
The Client grants the Developer the right to use images, screenshots, video, or text from any part of the Client’s website, that is specifically created or implemented by the Developer pursuant to the terms of this agreement, for promotional purposes on the Developer’s own company or marketing websites.
9.7 No responsibility for theft
Developer has no control over and assumes no responsibility for any third-party taking all or any part of the website.
9.8 Attorney’s fees
In the event any party to this agreement employs an attorney to enforce any of the terms of the agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.
9.9 Identification of developers
The Client agrees that the Developer’s identification may be annotated within the source code as the website author. The Client also agrees to retain a link to the Developer’s website in the footer of each website page.
10. Terms of service
This agreement shall commence on the date of estimate approval by Client and shall continue in full force until one (1) year from the date of estimate approval, or until the work for all previously accepted estimates has been completed by Developer and all outstanding payments are paid in full by the Client to the Developer, whichever date is later. Upon a signed agreement by both Client and Developer, this expiration date may be extended as desired. Absent a mutual dissolution agreement, no event (except breach) may terminate this agreement prior.
Each party represents and warrants that they are authorized to enter into this agreement in entirety and duly bind their respective principals by their acceptance of this agreement and any related estimates.