FRESHYSITES, LLC SERVICES AGREEMENT
WHEREAS, CLIENT is engaged in developing, designing, producing and/or marketing materials and products and/or providing professional services to the public; and
WHEREAS, CLIENT desires to have its web content created or enhanced and maintained by FRESHYSITES on CLIENT’s website; and
WHEREAS, FRESHYSITES has expertise as a professional website designer; and
WHEREAS, FRESHYSITES provides designing, hosting, and service provider services; and
WHEREAS, neither party is under any obligation to a third party that would interfere with rendering or receiving professional services as hereinafter defined;
NOW THEREFORE, in consideration of the premises and of the mutual promises and covenants herein contained, the parties hereto agree as follows:
Where used in this Agreement, the following terms shall have the meaning attributed to them herein.
Trademark shall mean any letters and graphic design, including reasonable variations of artistic style, used to identify the source or origin of the goods produced or services rendered by CLIENT.
Confidential Information shall mean that information disclosed to one party by the other party in connection with, and during the term of, this Agreement, and which has been identified to the receiving party at the time of disclosure as the confidential information of the disclosing party.
Website shall mean a publicly-accessible, worldwide, Internet shopping and/or information center related to CLIENT’s goods and/or services.
Merchandise shall mean consumer products in the field of CLIENT’s channel of trade.
TERM AND TERMINATION OF AGREEMENT
The term of this Agreement shall be one year, automatically extended year by year, after the first year terminable by either party with 30 days’ written notice to the other party.
Notwithstanding the foregoing, FRESHYSITES may terminate this Agreement without giving any prior notice and without payment or obligation in the event that CLIENT becomes insolvent, dissolved or liquidated or has a petition in bankruptcy for reorganization filed by or against it; or is subject to property attachment, or court injunction, or court order affecting his operation under this Agreement.
In the event of termination or expiration of this Agreement, FRESHYSITES shall return to CLIENT all material delivered to FRESHYSITES. Moreover, in the event of termination due to FRESHYSITES insolvency, dissolution, liquidation, bankruptcy, or the inability of FRESHYSITES to perform under the terms of this Agreement or under such reasonable terms as may be required by CLIENT in the future, CLIENT shall receive from FRESHYSITES all original material.
INFORMATION EXCHANGE AND CONFIDENTIALITY
Both parties represent and warrant that they shall not disclose to the other party any information that is confidential and proprietary to any third party.
Each party agrees to hold identified Confidential Information of the other party in trust and confidence for the disclosing party and not to use such Confidential Information other than for the benefit of the disclosing party. Except as authorized by the disclosing party in writing, the receiving party agrees not to disclose any such Confidential Information, by publication or otherwise, to any person other than those persons whose services are required by the receiving party and who have a need to know such Confidential Information for purposes of carrying out the terms of this Agreement, and who agree in writing to be bound by, and comply with, the provisions of this Section.
FRESHYSITES RIGHTS AND OBLIGATIONS
FRESHYSITES shall be obligated during the term of this Agreement to provide CLIENT with professional services as herein defined.
FRESHYSITES agrees to use its best efforts to design, construct and maintain the website on the CLIENT domain name.
FRESHYSITES shall provide and maintain hosting via a third-party server, the server to include adequate computing power and storage capability with a back-up process for CLIENT present and future needs.
FRESHYSITES shall manage technical aspects and databases of web page(s) selected by CLIENT and set up and maintain suitable and reasonable security systems.
FRESHYSITES shall not, without the prior written consent of CLIENT, display any logo, trademark or other name, graphic or feature on the web page or site that is owned by or identifies CLIENT, but FRESHYSITES reserves the right to display its own trademarks and service marks, in any manner whatsoever, regardless of whether registered in the U.S. Patent and Trademark Office.
FRESHYSITES reserves the right to increase its fees from time to time upon reasonable notice to CLIENT.
FRESHYSITES does not guarantee results for any Search Engine Optimization packages.
FRESHYSITES is not responsible for any data sent via email it is hosting on CLIENT’s behalf.
FRESHYSITES is not liable for any damages due to lost business (or other reasons) because of an outage or failure of its services or products.
FRESHYSITES shall not originate any publicity, news release or other public announcement, written or oral, whether to the public press or otherwise, relating to this Agreement, to any amendment hereto, or to performance hereunder, without the prior written approval of CLIENT.
CLIENT RIGHTS AND OBLIGATIONS
CLIENT hereby warrants that it owns or has a license to copy or reproduce all original material provided to FRESHYSITES.
CLIENT hereby indemnifies FRESHYSITES for any lost data, including emails, email attachments, code, design, hosted files, local files or website related work relating to FRESHYSITES’ services hereunder.
CLIENT hereby indemnifies FRESHYSITES for any cause of action brought by malware or virus attacks on hosting environments provided by FRESHYSITES.
CLIENT hereby indemnifies FRESHYSITES for any cause of action brought by any email hosting provided by FRESHYSITES as well as the content or attachments of any emails sent via hosting provided by FRESHYSITES.
FRESHYSITES is not responsible for any credit card or payment information if e-commerce uses CLIENT’s own online shop or shopping card or payment processor or ecommerce sites provided by FRESHYSITES when used by CLIENT or its customers/clients. CLIENT agrees to work and communicate with its payment processor directly.
CLIENT hereby indemnifies FRESHYSITES for any cause of action brought by a third party alleging unlawful civil or criminal activity, including but not limited to copyright infringement, trademark infringement, invasion of privacy, theft of trade secrets, breach of contract, or any other legal action relating to FRESHYSITES’ services hereunder.
CLIENT hereby agrees to review the final website created by FRESHYSITES for technical and legal accuracy.
Approval of the final version of the website shall not be unreasonably withheld by CLIENT. CLIENT shall be deemed to have approved the website for technical and legal accuracy if CLENT does not object to the website content and layout in writing within 10 days after transmission to CLIENT.
CLIENT has the right to support, updates, modifications and changes to client website when paying for a support package. However, client support time is not to exceed two (2) hours per month. All additional support, updates, modifications and changed to be billed at standard FRESHYSITES rate.
CLIENT agrees that FRESHYSITES shall have absolutely no responsibility for the accuracy of information and material appearing on websites or blogs linked by CLIENT website(s).
In remuneration for developing, hosting, updating, and maintaining the website for CLIENT, the worldwide, irrevocable, fully paid-up assignment for which is hereby granted to CLIENT by FRESHYSITES and acknowledged thereby, CLIENT hereby agrees to pay FRESHYSITES for all bills and invoices received thereby the first business day of each month following the date of such bills and invoices.
RIGHTS IN WEBSITE
Title to the website and all ornamental work prepared for and submitted to CLIENT by FRESHYSITES under this Agreement shall belong exclusively to FRESHYSITES and FRESHYSITES shall have the right to obtain and hold in its own name copyrights, trademark registrations and similar protection which may be available in the deliverable items. If necessary, CLIENT agrees to give FRESHYSITES or its designee all assistance reasonably required to perfect such rights in its name or the name of its designee(s).
To the extent that any pre-existing materials are contained in the materials provided to FRESHYSITES, CLIENT hereby grants to FRESHYSITES an irrevocable, nonexclusive, worldwide, royalty-free license to: use, execute, reproduce, display, perform, prepare derivative works, distribute copies by license, sale or other transfer of ownership, or by rental, lease or lending, and to display publicly.
Unless written permission is granted by CLIENT, FRESHYSITES shall have no right to create other images, nor to prepare derivative works of any description, related to the website that is the subject of this Agreement. Title to all material displayed on the website shall belong exclusively to FRESHYSITES, but for text and/or photos provided by CLIENT. CLIENT shall have no right to transfer the site or any portion thereof to any other website or hosting party.
If CLIENT declines to pay FRESHYSITES the aforementioned monthly fee to FRESHYSITES, FRESHYSITES shall have the option of taking the website offline and CLIENT forfeits any right to be notified by FRESHYSITES thereof.
If CLIENT wishes to terminate services with FRESHYSITES and move website to another provider CLIENT fully understands it will be subject to transfer fee schedule outlined as follows: Months 13-24: 12x Monthly Fees; Months 25-36: 6x Monthly Fees; Months 37+: 3x Monthly Fees. Upon payment FRESHYSITES will provide CLIENT with all files and databases required to move website to another provider.
WARRANTY AND LICENSE LIMITATIONS
FRESHYSITES shall not be responsible or liable for failure to perform its agreed-upon services or to develop and deliver the artwork during any period in which such development and delivery are prevented or hindered by any cause beyond FRESHYSITES’ reasonable control including, but not limited to: fire, flood, war, embargo, labor difficulties, car shortage, interruption of transportation, accident, explosion, riots, and laws, rules, regulations, instructions, and orders of any governmental authority. No such failure shall terminate this Agreement.
The parties represent and warrant that:
a) they have full right and title to all of the material to be delivered under this Agreement;
b) they have the right and power to grant the licenses and rights granted herein; and
c) there are no liens, or encumbrances of any kind whatsoever against such data and other items to be delivered, or any outstanding agreements, assignments, or encumbrances inconsistent with the provisions of this Agreement.
Nothing contained in this Agreement shall be deemed to grant either directly or by implication, estoppel or otherwise, any license under any patents or patent applications or copyrights arising out of any other inventions or copyrightable works of either party. Ownership of any inventions or other work protectable by patent or copyright that is not associated with the subject matter of this Agreement is expressly reserved for and owned by the inventing or creating party.
Nothing contained in this Agreement shall be construed as creating a joint venture, partnership or employment relationship between FRESHYSITES and CLIENT, it being understood that FRESHYSITES and CLIENT are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party hereto.
FRESHYSITES shall in no sense be considered an employee of CLIENT nor be entitled or eligible to participate in any benefits or privileges given or extended by CLIENT to its employees. Nothing herein, however, shall prevent FRESHYSITES and CLIENT, at any time, from mutually agreeing in writing to change one party’s status to that of an employee of the other party.
NEW YORK LAW
This Agreement shall be construed and the legal relations creating herein between the parties shall be determined in accordance with the laws of the State of New York.
In the event of any litigation between the parties hereto to enforce any provision in this Agreement, the party found liable in such litigation shall pay to the prevalent party the reasonable attorneys’ fees incurred by the prevalent party therein.
The failure of either party in any instance to insist on strict performance of a covenant or condition hereof, or to exercise any option herein contained, shall not be construed as a waiver of his or her own right to enforce all the terms and conditions in any other instance. Nor shall any waiver by FRESHYSITES of a breach of this Agreement by CLIENT operate during the term hereof as a waiver of CLIENT’s later or continuing breach.
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and the ability to enforce the remaining provisions shall in no way be affected or impaired thereby.
AMENDMENTS, ASSIGNMENT, AND SURVIVAL
This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by CLIENT and FRESHYSITES.
Any rights and obligations under this Agreement shall survive and continue after expiration or termination of this Agreement according to their terms, provided, however, that this Agreement is a personal service agreement to be performed by FRESHYSITES, and no successor in interest thereto shall have any rights or obligations with respect to CLIENT upon termination with or without cause of this Agreement.
ENTIRE UNDERSTANDING OF THE PARTIES
This Agreement constitutes the entire understanding and contract between the two parties hereto and supersedes any and all prior or contemporaneous oral or written representations or communications with respect to the subject matter hereof. In witness whereof, the parties have executed this Agreement.