PRIVACY POLICY
This document sets forth the INSIGHT Web Productions Online Privacy Policy (the “Privacy Policy”) for the web site, www.insightwebproductions.com (the “Sites”). If you have objections to the Privacy Policy, you should not access or use this Site. This Privacy Policy does not govern privacy practices associated with offline activities or other INSIGHT Web Productions web sites.
Entities Collecting Personal Information
Personal information on these Sites are collected by INSIGHT Web Productions. Contact email: sales@insightwebproductions.com.
The Sites contains links to other sites at which personal information is collected. In such instances, unless expressly provided to the contrary, the collection and use of your personal information will be governed by the privacy policy applicable to that site. That privacy policy should identify the entity that is collecting your personal information.
Collection of Personal Information
As a visitor to these Sites, you can engage in many activities without providing any personal information. In connection with other activities, such as utilizing online software applications, INSIGHT Web Productions may ask you to provide certain information about yourself by filling out and submitting an online form. It is completely optional for you to engage in these activities. If you elect to engage in these activities, however, INSIGHT Web Productions may ask that you provide us personal information, such as your first and last name, mailing address (including zip code), e-mail address, employer, job title and department, telephone and facsimile numbers, and other personal information. When ordering products or services on the Sites, you may be asked to provide a credit card number. Depending upon the activity, some of the information that we ask you to provide is identified as mandatory and some as voluntary. If you do not provide the mandatory data with respect to a particular activity, you will not be able to engage in that activity.
When you use the Sites, INSIGHT Web Productions or third parties authorized by INSIGHT Web Productions may also collect certain technical and routing information about your computer to facilitate your use of the Site and its services. For example, we may log environmental variables, such as browser type, operating system, CPU speed, and the Internet Protocol ("IP") address of your computer. We use these environmental variables to facilitate and track your use of the Site and its services. INSIGHT Web Productions also uses such environmental variables to measure traffic patterns on the Site. Without expressly informing you in each particular circumstance, we do not match such information with any of your personal information.
When you submit personal information to INSIGHT Web Productions through these Sites, you understand and agree that this information may be transferred across national boundaries and may be stored and processed in any of the countries in which INSIGHT Web Productions and its affiliates and subsidiaries maintain offices, including without limitation, the United States. You also acknowledge that in certain countries or with respect to certain activities, the collection, transferring, storage and processing of your information may be undertaken by trusted vendors of INSIGHT Web Productions. Such vendors are bound by contract to not use your personal information for their own purposes or provide it to any third parties. One instance where this could occur is in conjunction with framed pages in which the url for the pages is not visible and the pages are being hosted by a vendor of INSIGHT Web Productions.
INSIGHT Web Productions has established relationships with various service providers whose services are available to you from these Sites or from web sites that are linked to these Sites. Typically, these providers offer services that INSIGHT Web Productions customers might find useful, such as those that can be used in conjunction with INSIGHT Web Productions services and products. In order to use those services, you may be required to provide personal information to the providers. Unless expressly provided to the contrary, personal information that you provide while you are visiting a provider’s web site will be subject to the privacy policy posted on such site and personal information that you provide while on this Site in conjunction with a provider’s service will be subject to this Privacy Policy. You should be aware that our agreements with these service providers often provide that they will share with INSIGHT Web Productions personal information collected from you. In such instances, INSIGHT Web Productions may use this information in a manner consistent with this Privacy Policy. In the situation where sites have an INSIGHT Web Productions “look and feel,” and you reasonably believe you are on an INSIGHT Web Productions site, the site is collecting information in a solely intermediary capacity and does not use personal information for secondary purposes.
How your Personal Information is Used
INSIGHT Web Productions collects your information in order to record and support your participation in the activities you select. If you subscribe to a service or register a product, for example, the information is used to register your rights, if any, to technical support or other benefits that may be made available to registered users. As another example, if you enter a contest, information is collected to qualify the entry and contact you regarding the contest or prize awards. Your personal information is also used to keep you informed about product upgrades, special offers, and other products and services of All Boy Productions, Inc and selected third parties if you have so opted to receive such communications.
INSIGHT Web Productions may collect information about the use of the Sites; such as the types of services used and how many users we receive daily. This information is collected in aggregate form, without identifying any user individually. INSIGHT Web Productions may use this aggregate, non-identifying statistical data for statistical analysis, marketing or similar promotional purposes.
Your Choices with Respect to Personal Information
INSIGHT Web Productions recognizes and appreciates the importance of responsible use of information collected on these Sites. Without your consent, INSIGHT Web Productions will not communicate any information to you regarding products, services and special offers available from INSIGHT Web Productions, although we may find it necessary to communicate with you regarding your use of the services on these Sites. Except in the particular circumstances described in this Privacy Policy, INSIGHT Web Productions will also not provide your name to other companies or organizations without your consent.
There are other instances in which INSIGHT Web Productions may divulge your personal information. INSIGHT Web Productions may provide your personal information if necessary, in INSIGHT Web Productions’ good faith judgement, to comply with laws or regulations of a governmental or regulatory body or in response to a valid subpoena, warrant or order or to protect the rights of INSIGHT Web Productions or others.
Protection of Your Personal Information
The personal information that you provide in connection with registering yourself as a user of INSIGHT Web Productions products or services or registering an INSIGHT Web Productions product is classified as Registration Information. Registration Information is protected in several ways. Access by you to your Registration Information is available through a password and unique customer ID selected by you. This password is encrypted. We recommend that you do not divulge your password to anyone. In addition, your Registration Information resides on a secure server that only selected INSIGHT Web Productions personnel and contractors have access to via password. INSIGHT Web Productions encrypts your personal information and thereby strives to prevent unauthorized parties from viewing such information when it is transmitted to INSIGHT Web Productions.
Personal information that you provide that does not constitute Registration Information also resides on a secure server and is only accessible to selected INSIGHT Web Productions personnel and contractors via password. Since this information is not accessible by you, you will not be asked to select a password in order to view or modify such information.
Use of Cookies
When you visit these Sites, you can browse the Sites and access important information without revealing your identity. In order to improve our Sites, we use “‘cookies” to track your visit. A cookie is small amount of data that is transferred to your browser by a Web server and can only be read by the server that gave it to you. It functions as your identification card, and enables All Boy Productions, Inc to record your passwords, purchases, and preferences. It cannot be executed as code or deliver viruses.
Most browsers are initially set to accept cookies. You can set your browser to notify you when you receive a cookie, giving you the chance to decide whether or not to accept it. (For some Web pages that require an authorization, cookies are not optional. Users choosing not to accept cookies will probably not be able to access those pages.)
While INSIGHT Web Productions uses cookies to track your visit to INSIGHT Web Productions, our Web servers automatically log the IP/Internet address of your computer, INSIGHT Web Productions does not generally use this information to identify you personally. However, if you expressly provide consent for INSIGHT Web Productions to "remember" the unique identifier that you select when you register for various activities on the site, that unique identifier will be stored on a cookie on your computer, linked to your registration information, and your navigation path around the site will be tracked. We associate this data to understand how our site and services are being used so we can understand our customers and offer appropriate products and services.
TERMS AND CONDITIONS
SEARCH ENGINE OPTIMIZATION AND REPORTING AGREEMENT
WEB SITE DEVELOPMENT AGREEMENT
SEARCH ENGINE OPTIMIZATION AND REPORTING AGREEMENT
This Search Engine Optimization and Reporting Agreement ("Agreement") is hereby entered into between INSIGHT Web Productions (hereinafter referred to as "Company") 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 Form") and applies to the purchase of all Search Engine Optimization and Reporting Services (hereinafter collectively referred to as "SEO Services") ordered by Customer.
TERM AND TERMINATION. This Agreement shall be effective as of the time frame set forth on the Order Form. 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 Company (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Company or hinders Company's ability to perform the SEO Services hereunder.
SEO SERVICES. Company agrees to provide Customer with SEO Services as described in the Order Form and this Agreement. Company is authorized to use the specific keywords and/or phases set forth in the Order Form for development, improving the ranking of, and/or positioning the contents of the Customer's URL(s) (as set forth in the Order Form) in search engines and/or directories. SEO Services are intended to provide the Customer with preferential positioning in selected search engines and report results on an ongoing and timely basis. SEO Services include:
Research keywords and phrases to select appropriate, relevant search terms. The number of keywords is set forth in the Order Form. Additional keyword purchases will require a separate Order Form.
Submit Customer's pages to search engines and directories as set forth in the Order Form or this Agreement.
Create positioning reports showing rankings in the major search engines and under which keywords.
FEES. Customer agrees to pay Company the fee(s) as stated in Order Form. The fee(s) must be received prior to the start of any SEO Services.
CUSTOMER RESPONSIBILITIES. For the purposes of providing these services, Customer agrees:
To provide Company with FTP access to its web sites for uploading new pages, and making changes for the purpose of SEO Services optimization or approval to go through a third party.
To authorize Company use of all Customer's logos, trademarks, Web site images, etc., for use in creating informational pages and any other uses as deemed necessary by Company for search engine positioning and optimization.
That if Customer's web site(s) is light in textual content, Customer will provide additional relevant text content in electronic format for the purpose of creating additional web pages. Customer agrees to provide content, for example 200 to 500 word "articles" about each of their keyword phrases.
SEARCH ENGINES. Selected search engine submissions include:
AOL
Alta Vista
About
Google
All The Web
Excite
Hot Bot
Looksmart
MSN
Lycos
Yahoo [web pages only]
Netscape
*Top Major SE and SE names may change without notice
CUSTOMER ACKNOWLEDGEMENTS. Customer understands, acknowledges and agrees that:
Company has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer's web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity. Company will resubmit those pages that have been dropped from the index.
Some search engines and directories may take as long as two (2) to four (4) months, and in some cases longer, after submission to list Customer's web site(s).
Occasionally, search engines and directories will stop accepting submissions for an indefinite period of time.
Occasionally, search engines and directories will drop listings for no apparent or predictable reason. Often listing will "reappear" without any additional submissions. Should the listing not reappear, Company will re-submit the web site(s) based on the current policies of the search engine or directory in question.
Some search engines and directories offer expedited listing services for a fee. Company encourages Customer to take advantage of these expedited services. Customer is responsible for all expedited service fees unless otherwise noted in the Order Form.
WEB SITE CHANGES. Company is not responsible for changes made to Customer's web site(s) by other parties that adversely affect the search engine or directory rankings of Customer's web site(s).
INDEMNIFICATION. Customer shall indemnify and hold harmless Company (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 Company as a result of any claim, judgment, or adjudication against Company 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 Company (the "Customer Content"), or (b) a claim that Company's use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company 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.
DISCLAIMER OF ALL OTHER WARRANTIES. COMPANY DOES NOT WARRANT THAT THE SEO SERVICES WILL MEET THE CUSTOMER'S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, COMPANY 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.
LIMITED LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER 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. THERE SHALL BE NO REFUNDS. COMPANY 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 OBTAINED FROM THIRD PARTIES.
CUSTOMER REPRESENTATIONS. Customer makes the following representations and warranties for the benefit of Company:
Customer represents to Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Company are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Company for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Company and its subcontractors from any liability or suit arising from the use of such elements.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer's exercise of Internet electronic commerce.
CONFIDENTIALITY. The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
FORCE MAJEURE. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
RELATIONSHIP OF PARTIES. Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, the Order Form or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
NOTICE AND PAYMENT. Any notice required to be given under this Agreement shall be in writing and delivered by electronic email or personally to the other designated party addresses listed in the Order Form mailed by certified, registered or Express mail, return receipt requested, Federal Express or by electronic email. Either party may change its mailing address or email address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
JURISDICTION/DISPUTES. This Agreement shall be governed in accordance with the laws of the State of Oregon. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Oregon including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
AGREEMENT BINDING ON SUCCESSORS. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
ASSIGNABILITY. Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
WAIVER. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
SEVERABILITY. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
INTEGRATION. This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
NO INFERENCE AGAINST AUTHOR. No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
DISPUTES. Customer and Company 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 Washington County, Oregon 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 Oregon 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 Oregon 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.
READ AND UNDERSTOOD. Each Party acknowledges that it has read and understands this Agreement prior to ordering services and agrees to be bound by its terms and conditions.
DULY AUTHORIZED REPRESENTATIVE. Each Party warrants that their representative whose name appears on the Order Form is duly authorized by all necessary and appropriate corporate actions to execute this Agreement.
WEB SITE DEVELOPMENT AGREEMENT
This WEB SITE DEVELOPMENT AGREEMENT ("Agreement") is an agreement between INSIGHT Web Productions ("Company") 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.
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICIES. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
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"). Company 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 Company (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Company or hinders Company's ability to perform the Services hereunder.
2. COMPANY'S AND CUSTOMER'S RESPONSIBILITIES
A. Scope of Work. Customer hereby retains the services of Company 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 Company ("Change Order"). Company agrees to notify Customer promptly of any factor, occurrence, or event coming to its attention that may affect Company'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.
C. 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 Company in order to complete timely and efficiently the Web Site. Company shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event Company'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 Company's time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Customer shall continue to make timely payments to Company as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Company. 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 Company 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 Company to assesses the Customer's systems, software and hardware from time to time, Company may agree to perform this function at normal Company rates.
3. WEB SITE DESIGN
A. Design. The design of the Web Site shall be in substantial conformity with the material provided to Company 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 Company by accessing the Company'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 Company. All server technical issues are to be handled by Company 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. Company shall not include, as determined in its sole discretion, any of the following in the Web Site or in Customer's directory on Company'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. Company and the Customer shall work together to complete the Web Site in a commercially reasonable manner. Customer must supply Company complete text and graphics content all web pages contracted for within two (2) weeks of the date of the Order unless otherwise noted. If Customer has not submitted complete text and graphics content within three (3) 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 Company may use its own and/or may purchase third party licenses for products or services that are necessary for Company 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 Company 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 Company 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 Company and/or such third parties. Outside Content which is owned and/or purchased by Company may be used in the design and/or development of other web sites separate from Customer. Customer and Company 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 Company agree that Company 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 Company 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 Company 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. Company 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.
4. MAINTENANCE
This Agreement does not provide Web Site maintenance unless a Web Site maintenance plan is purchased. If the Customer or an agent other than Company 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.
5. 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"). 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 Company is due and payable upon placing the Order and Company shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution. Company's services are "AS-IS, WHERE-IS, WITH ALL FAULTS" and no refunds shall be provided for Company's services hereunder.
6. INDEMNIFICATION
A. Company Indemnity. In performing services under this Agreement, Company 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 Company becomes aware of any such possible infringement in the course of performing any work hereunder, Company shall immediately so notify Customer in writing. Company 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 Company defends against the allegations using counsel reasonably acceptable to Customer. Company's total liability under this Agreement shall not exceed the amount of the Development Fee derived by Company under this Agreement.
B. Customer Indemnity. Customer shall indemnify and hold harmless Company (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 Company as a result of any claim, judgment, or adjudication against Company 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 Company (the "Customer Content"), or (b) a claim that Company's use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company 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.
7. REPRESENTATIONS AND WARRANTIES
A. Company makes the following representations and warranties for the benefit of Customer:
1. No Conflict. Company 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 Company under this Agreement and the Order. Customer understands that Company is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with Company's obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
2. Conformity, Performance, and Compliance. Company 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) Company will perform all work called for by this Agreement in compliance with applicable laws. Company will repair any Deliverable that does not meet this warranty 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 Company.
3. Disclaimer of All Other Warranties. COMPANY 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.
4. 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. COMPANY 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 OBTAINED FROM THIRD PARTIES.
B. Customer makes the following representations and warranties for the benefit of Company:
1. Customer represents to Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Company for inclusion in the Web Site are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
2. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer's exercise of Internet electronic commerce.
C. Confidentiality. The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
8. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
9. RELATIONSHIP OF PARTIES
A. Independent Contractor. Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Company shall be solely responsible for and shall hold Customer harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers' compensation.
B. No Agency. Customer does not undertake by this Agreement, the Order or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
10. NOTICE AND PAYMENT
Any notice required to be given under this Agreement shall be in writing and delivered by electronic email or personally to the other designated party addresses listed in the Order Form mailed by certified, registered or Express mail, return receipt requested, Federal Express or by electronic email. Either party may change its mailing address or email address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
11. JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State of Oregon. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Oregon including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
12. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
13. ASSIGNABILITY
Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
14. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
15. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
16. INTEGRATION
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
17. NO INFERENCE AGAINST AUTHOR
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
18. DISPUTES
Customer and Company 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 Washington County, Oregon 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 Oregon 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 Oregon 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.
19. READ AND UNDERSTOOD
Each Party acknowledges that it has read and understands this Agreement prior to ordering services and agrees to be bound by its terms and conditions.
20. DULY AUTHORIZED REPRESENTATIVE
Each Party warrants that their representative whose name appears on the Order Form is duly authorized by all necessary and appropriate corporate actions to execute this Agreement.
