PIKCHABOX LLC WEB DEVELOPMENT AND HOSTING AGREEMENT
This Web Site Development and Hosting Agreement (”Agreement”) is entered into as of the date of acceptance (“Effective Date”) by PikChaBox (“Developer”) of a purchase order or other formal request for Web Development and Hosting services (“Customer Order”) from a person or entity wishing to receive these services (“Customer”) and payment of the full fee for deployment of Web site and Hosting related services.
When used in this Agreement, the capitalized terms listed in this Section shall have the following meanings:
1.1 Agreement — this document.
1.2 Code — HTML computer programming/formatting code, any files necessary to make image maps function, and any server code necessary to make forms, buttons, check-boxes, and the like function, and any server code necessary to integrate enhanced or interactive features, interact with computer databases, and provide additional features as specified.
1.3 Deliverables — all Code, Documentation, Reports, and other materials developed by Developer in the course of its performance under this Agreement, and any other items necessary for the operation of Customer’s Web site (other than third-party operating system software, third-party networking software, Web Browsers, hardware, and code not specifically developed for Customer), including all Enhancements thereto.
1.4 Internet — the world-wide network of computers commonly understood to provide some or all of the following features, among others: electronic mail, file transfers through File Transfer Protocol (“FTP”), Telnet access to local and remote computers, UseNet Newsgroups, Gopher access to information on local and remote computers, Wide Area Information Servers (“WAIS”), and World Wide Web access.
1.5 Proprietary Materials — all Code, Documentation, Reports, and other materials developed by Developer that was not specifically developed for Customer under this Agreement.
1.6 Web Page — a document or file that is formatted using HTML and that is intended to be accessible by Internet users with a Web Browser.
1.7 Web Server — the computer or computers that Developer uses to make Web sites accessible to Internet users approximately 24 hours per day.
1.8 Web Site — a series of interconnected Web pages residing in a single directory on a single Web Server.
2.1 Web Site Design — The design of Customer’s Web site shall be as selected by Customer at the time of issuance and according to the specifications contained in Customer Order (“Additional Specifications”). There shall be no variation from the standard Web Site Design selected by Customer without such specification being included in Customer Order or as provided for otherwise in Agreement. As there will be no development of code or materials specific to customer without Additional Specifications, there will be no Deliverables associated with Web Site in the absence of Additional Specifications.
2.2 Timing For Delivery Of The Web Site — Developer shall provide Customer with on-line access to Web Site in generally functional condition within Fifteen (15) days of Effective Date at which time customer will review and begin to populate Web Site with Customer information and materials. Final delivery and operation of Web site will be considered to have taken place either when Customer accepts Web Site or Thirty (30) days after Effective Date, whichever is earlier (“Delivery Date”). Customer must notify Developer in writing of any desire to delay final delivery prior to that time and final delivery may only be delayed as a result of identification of a significant defect or at the discretion of Developer.
2.3 Delivery Of Deliverables — Upon termination of this Agreement, Customer may request that Developer deliver all Deliverables to Customer and Developer shall deliver all such requested Deliverables within Thirty (30) days of termination in a form consistent with common good practices for exchange of such information and materials as determined by Developer.
2.4 Availability of Proprietary Materials – There shall be no availability to Customer of Developer’s Proprietary Materials associated with Agreement. A separate formal written agreement may be executed at the discretion of Developer to deliver Proprietary Materials to Customer.
3.1 Server Hosting — As part of this Agreement, Developer agrees to host Customers Web site on Developer’s Web Server, to make Customer’s Web site available to Internet users approximately 24 hours per day, to make a full back-up of Customer’s Web site at least once a week and an incremental backup daily, and to store said back-up materials in a safe and secure environment, fit for the back-up media, and not located at the same location as Developer’s Web Server.
Interruption of Hosting for any continuous time period exceeding 1 hour within any 24 hour period, and not due to any fault of Customer, shall result in a credit to Customer for the amount Customer pays to Provider for one day of the interrupted Hosting (“Daily Credit”). Interruption of Hosting for any continuous time period exceeding 48 hours , and not due to any fault of Customer, shall result in a credit to Customer for the amount Customer pays to Provider for one month of the interrupted Hosting (“Monthly Credit”). No such credit(s) shall in total exceed the cost of hosting within any individual month. To receive a credit, customer must have opened a trouble ticket with Provider at the time such interruptions occurred.
3.2 Maintenance Modifications — Developer may make maintenance modifications to Customer’s Web site from time to time as required to ensure good operation and security. Developer shall make available to Customer in a timely manner information regarding functional changes these Maintenance Modifications may cause to Web site.
3.3 Transaction Logging — During the time that Customer’s Web site is located on Developer’s Web Server, Developer shall provide to Customer, on a 24/7 basis and free of charge, a summary of accesses to Customer’s Web site during the prior day/week/month/past months. This summary shall be made available via a Web page accessible to Customer.
4.1 Total Price — The total price for Web Site and associated services covered in Agreement shall be as specified in Purchase Order and accepted by Developer.
4.2 Invoicing — Developer will invoice Customer one month in advance for all monthly services associated with Web Site. Developer will assess at its discretion a late fee of 5 % per month on any balance due beyond 30 days from date of invoice. Any balance greater than 30 days past due may at the discretion of Developer result in suspension of any or all services to Customer. In the event that Developer shall hire legal counsel to collect (or attempt to collect) any amount due under this contract, Customer shall be required to reimburse Developer for actual attorney fees and costs of collection.
4.3 Payment In The Event Of Termination — If Agreement is terminated for any reason, Developer shall be entitled to full payment for all services delivered up to the time of Termination. No Deliverables shall be provided by Developer to Customer until full payment has been received by Developer.
CONFIDENTIALITY AND NON-COMPETITION
5.1 Confidentiality — Developer shall treat all matters specifically associated with Agreement as confidential. Subsequent to Delivery Date, Developer may list Customer as a client of Developer and may include a link to Customer’s Web site on Developer’s Web site.
5.2 Non-Competition — Developer shall be free during and after the term of Agreement to develop Web sites for, and provide services to, any other client.
5.3 Non-Solicitation — Customer shall not attempt to solicit for employment, hire, or contract services from any employee of Developer during the term of this contract (or for 6 months thereafter) without the express written consent of Developer.
6.1 Information of Developer — Developer represents that any information provided to Customer in the course of entering into this Agreement or performing any work hereunder shall not be confidential or proprietary to Developer unless specifically indicated in writing.
6.2 Information of Customer — All information received from Customer is to be treated as confidential until such information is made public by Customer on Customer’s Web Site or otherwise made public by Customer. Developer shall use its best efforts to prohibit any use or disclosure of Customer’s confidential information, except as necessary to perform work hereunder or as required by law. In any event, Developer will not disclose Customer’s confidential information or materials without prior written approval by Customer.
OWNERSHIP AND RIGHTS
7.1 Vesting of Rights – Except as provided for in Agreement and excluding any Deliverables or information and materials Customer places in Web Site, Developer
retains all rights to Web Site design, look and feel, all database design and content, all computer code, and any other materials associated with delivery of Web Site.
7.2 Credit to Developer — Developer may place and maintain, and Customer will not remove, a non-obtrusive yet noticeable reference to the Developer and link to Developers own Web site.
VIOLATION OF PROPERTY RIGHTS
8.1 Customer Not to Provide Materials to Developer — Customer agrees not to provide any materials to Developer for inclusion in Web site nor upload to Web Site for display on Web Site where (a) the inclusion of those materials would constitute a violation of another party’s legitimate copyright, trademark or other intellectual property rights, (b) where such inclusion would be illegal to display or (c) is inconsistent with acceptable community standards. If any such violation occurs, or if any complaints of such violation are received by another party, Customer shall fully defend same and shall hold Developer free and harmless therefrom.
8.2 Unsolicited Email Advertising— Customer agrees not to engage in the distribution of unsolicited electronic mail advertising for the purpose of promoting Web site, services or products whether or not that distribution is conducted through Providers services or by other means. To do so will constitute a material breach in this Agreement and will entitle Developer to cause full termination of Customer’s Web Site use, access and display, or termination of specific services. Customer also agrees not to upload, import, send E-Mail advertising to, or otherwise utilize in association with Providers services any E-Mail addresses acquired through the purchase of lists of E-Mail addresses or provided by any associated or non-associated source where the addressee has not expressly agreed to receive E-Mail mail from Customer or from a specific group of organizations in which Customer is included. Customer further agrees to comply with Providers specific requirements for inclusion in all E-Mail distributed by way of Providers services of a notice of origin of the E-Mail, full Customer contact information, a clear means to unsubscribe from further E-Mail distribution, and for quick compliance with recipient unsubscribe requests, and all other notices and content required by law.
WARRANTY AND LIABILITY
9.1 Customer / Developer Warranty — Developer warrants that Web Site shall substantially meet the published specifications for Web Site and services associated
with Agreement. In the event of warranty breech, damages shall be limited to the contract price actually paid by Customer to Developer to fulfill this Agreement.
9.2 Developer Warrants — that no material, product or services provided by Developer under this Agreement infringe upon any patent, trademark, copyright, trade secret, or other intellectual property or proprietary right of any third party.
9.3 Damage — Developer does not provide any warranty or agree to cover any damage to other software or systems or loss of data that is caused by or related to misuse, accident, negligence, or misapplication of Web Site or Provider’s services.
9.4 Liability — In no case shall Developer be liable for any incidental, special or consequential damages or loss, including, with out limitation, lost profits or the inability to use Web Site or access to data, whether such damages are based upon a breach of express or implied warranties, breach of contract, negligence, strict tort, or any other legal theory. This is true even if Developer is advised of the possibility of such damages. In no case will Developer’s liability exceed the amount of the contract price actually paid by Licensee to Developer.
TERM AND TERMINATION
The term of this Agreement shall commence on Effective Date and shall continue until all services have been provided by Developer, as described in this Agreement, or until termination as set forth in this Agreement. Provided, however, that customer may terminate Agreement at any time without cause by notifying developer in writing at least Thirty (30) days prior to a desired termination date.
If this agreement is terminated for any reason, Developer shall be entitled to payment for the amount of all work performed up to the date of termination.
11.1 Date of Publication – This version of Agreement has been posted and published by Developer on Developer’s Web site as of September 12th, 2019.
11.2 Modification – Developer may update and/or modify Agreement at any time as necessary to keep pace with technology, law, or to accommodate issues that arise. Customer shall be bound to these modifications Sixty (60) days after publication on Developer’s Web site of any new or modified version of Agreement. Customer agrees that as Customer may terminate Agreement with Thirty (30) days prior written
notice and as Agreement provides Customer with at least Thirty (30) additional days of prior notice of modification of Agreement, that Customer is considered to have prior knowledge and to have agreed to modifications of Agreement Sixty (60) days after Date of Publication.
11.3 Assignment — Neither party may assign its rights and responsibilities hereunder without the written consent of the other party.
11.4 Delaware Law — Delaware law shall control in the interpretation of this Agreement.
11.5 Arbitration — If the parties are unable to resolve a dispute arising under this Agreement, either party may submit such dispute to the American Arbitration Association for resolution under its rules and procedures. Any decision rendered in such proceeding shall be binding on both parties and may be enforced in any court of competent jurisdiction.
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