DEFINITIONS

Agreement means the Project Proposal, Terms and Conditions and any other attached documents.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Project Proposal.
Services means all services and the work product to be provided to Client by the Agency as described and otherwise further defined in the Project Proposal.
Deliverables means the services and work product specified in the Project Proposal to be delivered by the Agency to Client.
Final Deliverables means the final versions of Deliverables provided by the Agency and accepted by Client.
Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
Agency Tools means all agency tools developed and/or used by the Agency in performing the Services, including pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

SERVICES
The Agency shall perform the services listed in the Scope of Work in the Project Proposal according to the Work Plan and Schedule.

PROPOSAL
The terms of this Agreement expires three hundred and sixty five days after it has been submitted to Client. If this Agreement expires, the Agency may modify the Agreement and resubmit it to Client.

COMPENSATION
Fees
. Client agrees to pay the Agency the fees listed in the Project Proposal, including all taxes.
Additional Costs: Pricing in the Project Proposal includes only the Agency fees. Any other costs, such as hosting, art licensing, photography or advertising budget for marketing activity will be billed to Client, unless otherwise stated in the project.
Hosting Final Deliverables: The Agency will host the Final Deliverables on their web space while the project is under construction (unless otherwise stated). If the Final Deliverables are not completed by the completion date listed in the Project Proposal, and the delay is not caused by the Agency;

  1. And the Hosting is to remain with the Agency the one year free hosting will begin on the stated project completion date regardless of whether the project is complete.
  2. And Hosting is to move to Clients server on project completion the Client agrees to pay the Agency the prorated standard annual hosting fee until the Final Deliverables are moved to Clients server.

PAYMENT
Payment Schedule
: Payment of 50% of the project is due when the Client accepts the Project Proposal and the remaining 50% of the project is due for payment when the project is complete or by the completion date stated in the Schedule if there are delays which are not caused by the Agency.
Invoices: All invoices are payable within 30 days of receipt. Invoices shall list any expenses and additional costs as separate items.


LATE PAYMENT
Late Fee
: A monthly service fee of 7.5%, is payable on all overdue balances.
Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.
Collection Expenses: Client shall pay all collection or legal fees caused by late payments.
Withholding Delivery: The Agency may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.

CHANGES TO PROJECT SCOPE
Change Request
: If the Client wants to change the Scope of Work after acceptance of this Agreement, the Client shall send the Agency written Change Order describing the requested changes in detail. Within seven days of receiving a Change Order, the Agency will respond with a statement proposing availability, any additional fees, changes to delivery dates, and any modification to the Terms and Conditions. The Agency will evaluate each Change Order at its standard rate and charges.
Acceptance/Rejection: Client will have seven days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, the Agency will not be obligated to perform any services beyond those in the original Agreement.

DELAYS
Agency Delays
: The Agency shall use all reasonable efforts to meet the Work Plan delivery schedule. The Agency may extend the due date for any Deliverable by giving written notice to Client. 
Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension (where possible dependent on other work commitments) of the due date for all Deliverables and payment will be required on completion date stated in the schedule regardless of project been completed.
General Delays: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension(where possible dependent on other work commitments). Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, riots, acts of war, terrorism and epidemics.

EVALUATION AND ACCEPTANCE
Testing
: The Agency will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.
Approval Periods: Client shall, within three business days after receiving each Deliverable, notify the Agency in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. The Agency shall, within ten business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within three business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after three corrections by the Agency, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.

CLIENT RESPONSIBILITIES
Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by the Agency, unless otherwise specified in the Project Proposal; (b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties. Client is responsible for renewing domain name registration and hosting services and keeping their contact details up to date with the registrar.

ACCREDITATION AND PROMOTION

Accreditation: The Agency shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by the Agency in the Deliverables on each page of the Final Deliverables.
Promotion: The Agency retains the right to reproduce, publish and display the Deliverables in portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.

CONFIDENTIAL INFORMATION
Client’s "Confidential Information" includes information that the Agency should reasonably believe to be confidential. The Agency's "Confidential Information" includes the source code of any Agency tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure

RELATIONSHIP OF THE PARTIES
Design Agents
. The Agency shall be allowed to use third party’s as independent contractors in connection with the Services The Agency shall remain fully responsible for Design Agents’ compliance with this Agreement.
No Exclusivity. This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by the Agency, and The Agency shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by the Agency.

REPRESENTATIONS AND WARRANTIES
By Client
. Client represents and warrants to the Agency that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to the Agency to use Third Party Materials.

By The Agency: The Agency represents and warranty to Client that: (a) The Agency will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) The Agency shall secure all necessary rights and title, to the Final Deliverables, including Agency Tools, sufficient for The Agency to grant the intellectual property rights provided in this Agreement; (c) To the best of the Agency's knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of the Agency shall be void.

INDEMNIFICATION AND LIABILITY
By Client
: Client shall indemnify the Agency from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. The Agency shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
By The Agency: In the case of a  third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, The Agency may at its own expense, replace any infringing content with non-infringing content.
TERM AND TERMINATION
Term
: This agreement shall begin when the Client accepts the Proposal including project specifications, deadline dates and quote and shall continue until all Services are complete and delivered, or until the Agreement is Terminated.
Termination for Cause: Either party may terminate this agreement at any time, on seven days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that seven day period.
Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.
Termination for Convenience: Either party may terminate this agreement at any time and for any reason on seven days prior written notice to the other party. If Client terminates the Agreement under this section, The Agency shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
Termination Fees: In the event of termination, Client shall pay the Agency for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
Intellectual Property: If Client terminates and on full payment of compensation, the Agency grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
Confidential Information: On expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) all rights and obligations regarding Confidential Information shall survive.

RIGHTS TO FINAL ASSETS
License
: The Agency grants to Client a non-exclusive, perpetual and worldwide  license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.
Client Content: Client Content is the exclusive property of the Client. Client grants the Agency a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with the Agency's performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.
Preliminary Works. The Agency retains all rights in and to all preliminary works. Client shall return all preliminary works to the Agency within thirty (30) days of completion of the Services.
Agency Tools. All Agency Tools are and shall remain the exclusive property of the Agency. The Agency grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Agency Tools solely to the extent necessary with the Final Deliverables for the Project.

 

DISPUTE RESOLUTION
Negotiation: 
Parties agree to attempt to resolve any dispute by negotiation between the parties.
Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.

GENERAL
Modification/Waiver
: Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
Notices. All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.
No Assignment. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Complete Agreement:  This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.