ContractThis Service Agreement (“Agreement”) applies to the purchase from Streamline Internet, Inc. DBA Streamline Interactive Communications, a Colorado corporation with offices at 6525 Gunpark Dr, Suite 370-249, Boulder, Colorado, 80301 (collectively, “Developer”) of all services (collectively, the ” Web Site Services”) selected by “Client.” Developer reserves the right to modify its network, infrastructure, and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. Developer shall use reasonable efforts to notify Customer of any planned changes to Developer network or facilities that may adversely affect the Services provided hereunder.
WITNESSETH
WHEREAS, Developer is in the business of offering Internet services relating to, among other things, development of sites on the World Wide Web portion of the Internet, and is willing to provide services to Client on the terms and subject to the conditions set forth below; and WHEREAS, Client desires to engage Developer, and Developer desires to be engaged by Client, to provide Internet services on the terms and subject to the conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises set forth herein, Developer and Client (collectively, the “Parties”) hereby agree as follows:
1. Developer ServicesDeveloper agrees to provide Client with the following services for development of a Web Site on the World Wide Web portion of the Internet (the “Web Site”): web-site development, programming, design, domain registration, hosting, consultation, training, internet marketing services including search engine optimization, research, mailing list management, and all other necessary and common services appropriate to web-site design, development, and marketing (the “Web Site Services”).
2. Web Site Development and Transfer2.1 Delivery of Client Content“Client Content” shall mean any materials provided by Client for incorporation in the Web Site, including, but not limited to, any images, illustrations, graphics, audio clips, video clips or text. Client shall promptly deliver the Client Content to Developer, as required by developer, in an electronic file format specified and accessible by Developer (e.g., .txt, .gif) or as otherwise agreed. Any services required to convert or input Client Content shall be charged additional.
2.4 RevisionsClient shall have five (5) days from the date of written notice of completion of Web Site from Developer to review and request revisions, in writing. Upon receipt of such requests, Developer shall use commercially reasonable efforts to implement such revision requests that are within the scope of, and consistent with, the Original Site Map, and Original Graphic Layout. If Developer determines that such revisions to the Web Site deviate in any material respect from Original Site Map, and/or Original Graphic Layout, Developer shall promptly evaluate the requested revisions and submit to Client for its written acceptance a proposal for undertaking the applicable tasks and a price quote reflecting estimated fees associated with Client’s written request in accordance with 2.6 below. Client shall have five (5) business days from receipt of such proposal to accept or reject Developer’s proposal in writing. If Client has not made any requests for revisions by the end of five (5) days from the date of written notice of completion of Web Site, the Web Site shall be deemed accepted by Client (“Acceptance”).
2.5 TransferUpon Acceptance of the Web Site and payment of all fees by Client, Developer shall upload the Web Site for public access.
2.6 Order FormsIn the event Developer and Client agree that Developer is to perform Revisions in accordance with 2.4 above, or Additional Tasks not in the original scope of Services hereunder, then the Parties shall execute a Work Order and each such order form shall be incorporated into and become part of this Agreement subject to the terms and conditions hereof.
3. Proprietary Rights3.1 Proprietary Rights of ClientAs between Client and Developer, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, trade secrets, and any other proprietary rights.
3.2 Proprietary Rights of DeveloperSubject to Developer’s ownership interest, computer software (in object code and source code form), script, programming code, data, information or HTML script developed or provided by Developer for Client is the non-exclusive property of Client. Materials, including, but not limited, to and any trade secrets, know-how, related to Developer’s products or services, shall remain the sole and exclusive property of Developer or its suppliers, including, without limitation, all copyrights, trademarks, trade secrets, marketing information, prospect leads, and any other proprietary rights inherent therein (collectively “Developer Materials”). To the extent that ownership of Developer Materials does not automatically vest in Developer by virtue of this Agreement, Client hereby transfers and assigns to Developer all rights, title and interest which Client may have in and to Developer Materials. Client acknowledges and agrees that Developer is in the business of designing and hosting Web sites, and that Developer shall have the right to provide to third parties, and to use or otherwise exploit, services which are the same or similar to the Services provided to Client.
3.3 ConfidentialityEach party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter, through no act or omission of the receiving party, in the public domain, (b) was already known to the recipient at the time of disclosure, (c) is independently developed by the receiving party without any reference to the Confidential Information, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees or agents who have a need to know in connection with this Agreement. The confidentiality obligations of each party and its employees shall survive the termination of this Agreement.
3.4 Developer NoticesUnless otherwise agreed to in writing by the Parties, Developer shall have the right to place proprietary notices of Developer and its suppliers (including hypertext links related thereto) on the Developer Materials and on the Web Site, including developer attribution and hypertext links to Developer’s web sites, and to change or update such notices from time to time. In no event may client remove or alter any Developer proprietary notice from the Developer Materials or the Web Site without Developer’s prior written consent.
4. License4.1 Grant of License ClientClient hereby grants to Developer a non-exclusive, worldwide, royalty free license to modify, adapt, exhibit, publish, reproduce, create derivative works from, distribute, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement. In addition, Developer may use the name of and identify Client as a Developer client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
4.2 Grant of License–DeveloperDeveloper hereby grants to Client a limited, non-exclusive, nontransferable license to make use of Developer Materials which are incorporated in the Web Site and which are required for the operation of the Web Site solely to operate the Web Site on the Developer’s Web Server. In no event shall Client use any trademarks or service marks of Developer without Developer’s prior written consent. Unless otherwise agreed to in writing by Developer, the transfer or attempted transfer of the Web Site to any host server other than the Developer’s Web Server shall automatically terminate the foregoing license.
5. Client Content5.1 Accuracy and Review of Client ContentClient assumes sole responsibility for: (a) acquiring any authorization(s) necessary for hypertext links to third party Web sites; and (b) the accuracy of materials provided to Developer, and (c) ensuring that the Client Content does not infringe or violate any right of any third party.
5.2 Limitations on Client ContentClient shall provide Client Content that does not contain any materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise expose Developer to civil or criminal liability. Any such materials provided by Client to Developer shall be deemed to be a material breach of this Agreement.
6. Fees 6.1 Web Site Services FeesClient shall pay to Developer an initial retainer as requested by Developer to cover initial development expenditure. Client will be billed on a bi-weekly or monthly basis, based on time and cost, and is subject to the payment specifications as detailed in 6.5.
6.3 Out-of-Pocket ExpensesClient shall pay, or promptly reimburse Developer for, any out-of-pocket expenses, including, but not limited to, travel-related expenses, postage, courier service, long distance costs, and miscellaneous expenses as incurred by Developer in connection with the performance of the Services.
6.5 Late PaymentClient shall pay to Developer all fees within thirty (30) days of the date of the applicable Developer invoice. If Client fails to pay any fees within this time, late charges of the greater of percent eighteen (18%) per month, with a minimum charge of $29, or the maximum allowable under applicable law shall also become payable by Client to Developer. In addition, failure of Client to fully pay any fees within this time shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Developer (including hosting of the Web Site). Any such suspension or termination does not relieve Client from paying past due fees plus interest and in event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs, and collection agency fees.
7. Warranties7.1 Developer WarrantiesDeveloper represents and warrants that (a) Developer has the power and authority to enter into and perform its obligations under this Agreement, and (b) Developer’s Services under this Agreement shall be performed in a workmanlike manner. Developer further represents and warrants that, for a period of thirty (30) days after Client’s Acceptance of the Web Site, the Web Site will operate substantially in accordance with the original Site Map and original Graphic Layout including any agreed upon and completed change orders and warrants that the Client’s web site will function as agreed on new versions of the most popular website browsers. Developer does not represent nor warrant that Client’s web site will function as agreed on older browsers. Developer shall not be deemed to have breached such warranty to the extent that Client or its agent(s) have modified the Web Site in any manner or if the Web Site incorporates unauthorized third-party materials. In the event of any such Client modifications or unauthorized incorporation of materials, Developer takes no responsibility for, and neither warrants nor guarantees the functionality or display of the Web Site or any Additional Services in any manner whatsoever.
THE DEVELOPER SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ON THE RIGHTS OF THIRD PARTIES. IN NO EVENT SHALL THE DEVELOPER BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SALES OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS’ FEES), EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
7.2 Client WarrantiesClient represents and warrants that (a) Client has the power and authority to enter into and perform its obligations under this Agreement, (b) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Web Site, and (c) Client has obtained any authorization(s) necessary for hypertext links from the Web Site to other third party Web sites.
7.3 Disclaimer of WarrantyEXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.1, DEVELOPER MAKES NO WARRANTIES HEREUNDER, AND DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnification8.1 ClientClient agrees to indemnify, defend, and hold harmless Developer, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Web Site infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
8.2 DeveloperDeveloper agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or willful misconduct of Developer.
8.3 NoticeIn claiming indemnification, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.
9. Limitation of LiabilityDEVELOPER SHALL HAVE NO LIABILITY WITH RESPECT TO DEVELOPER’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF DEVELOPER TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO FIFTY PERCENT (50%) OF THE AMOUNT ACTUALLY PAID TO DEVELOPER BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
10. Termination and Renewal10.1 TermThis Agreement shall be effective when signed by the Parties and thereafter shall remain in effect unless earlier terminated as otherwise provided in this Agreement.
10.2 TerminationEither party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party and/or results in an adjudication of bankruptcy. Client may terminate this Agreement by giving Developer sixty (60) days’ notice of its intent to terminate this Agreement. Developer may terminate this Agreement at any time and for any reason by providing written notice of termination to Client and, if applicable, refunding any fees paid by Client for Services not yet rendered as of the date of termination.
10.3 Termination and PaymentUpon any termination of this Agreement, Client shall pay all unpaid and outstanding fees and costs through the effective date of termination of this Agreement.
12. Miscellaneous12.1 Entire AgreementThis Agreement and any attached Schedules constitute the entire agreement between Client and Developer with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
12.2 CooperationThe Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
12.3 Non-solicitationDuring the term of this Agreement and after termination or expiration for a period of twelve (12) months, neither party shall in any manner, either on its own behalf or on behalf of any other person or entity, directly or indirectly hire, solicit, or encourage to leave the employ of the other party any person who is then an employee of that party and Client shall not entice away or divert or solicit for the purpose of enticing away or diverting any person or entity who is then a client, customer, subscriber, vendor or information provider to Developer, and who was such during the Term of this Agreement.
12.4 AmendmentsNo amendment, change, or waiver hereof shall be valid unless in writing and signed by the party against which such amendment, change, or waiver is sought to be enforced.
12.5 Colorado LawThis Agreement shall be governed in all respects by the laws of the State of Colorado without regard to its conflict of laws provisions, and Client and Developer agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state court in the City of Boulder. and federal court located in the City of Denver, and Client and Developer hereby submit to the jurisdiction of such courts.
12.6 AssignmentClient shall not assign or transfer, without the prior written consent of Developer, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
12.7 NoticeAny notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt, (ii) if by mail, three (3) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested, (iii) if by facsimile transmission, upon electronic confirmation thereof, or (iv) if by E-mail, upon receipt. All notices to Customer hereunder shall be given at the Billing Address provided. All notices to Developer hereunder shall be given to:
Streamline Internet, Inc.
Attn: Legal Department
6525 Gunpark Drive, Suite 370-249
Boulder, CO 80301
Fax: 303-531-5217
E-mail: Sales@StreamlineIC.com
12.8 WaiverThe waiver of failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
12.9 SeverabilityIf any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
12.10 CounterpartsThis Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the Parties hereto.
12.11 HeadingsThe section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
12.12 Approvals and Similar ActionsWhere agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
12.13 SurvivalAll provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
12.14 Attorney FeesShould either party find it necessary to enforce this Agreement, then the prevailing party in any such action shall be entitled to reasonable attorneys fees and costs in addition to all other recovery to which it may be entitled.
12.15 Dispute ResolutionThe parties agree that any dispute arising between the parties (with the exception of non-payment by Client) shall be subject to arbitration in accordance with the procedures of the American Arbitration Association.
