This Web Site Development Agreement (“Agreement”) is made as of the date on the signed Project Scope / Service Agreement (the “Effective Date”), by and between Ally Drez, L.L.C., doing business as Ally Drez Web & IT Services (“Developer,” “we,” or “us”), and the client identified in the Project Scope / Service Agreement (“Company,” “you,” or “your”).
Recitals
A. Developer provides web site development and design services and desires to provide such services to Company. B. Company desires that Developer provide such services in accordance with the terms and conditions of this Agreement. Based on the foregoing recitals and the promises contained in this Agreement, the parties agree as follows.
1. Definitions
1.1 “Acceptance Period” has the meaning set forth in Section 2.4.
1.2 “Change Order” has the meaning set forth in Section 3.
1.3 “Confidential Information” has the meaning set forth in Section 10.
1.4 “Content” means all text, pictures, sound, graphics, video, and other data supplied by Company to Developer pursuant to Section 2.1, as such materials may be modified from time to time.
1.5 “Deliverables” means those deliverables set forth in the Milestone Schedule.
1.6 “Developer Tools” means Developer’s preexisting software, code, development tools, concepts, techniques, methods, processes, and routines, as well as derivatives and modifications thereof, provided that if any such derivative or modification is made in the course of performance under this Agreement, it qualifies as a Developer Tool only if it (a) has substantially the same functionality as other Developer Tools and (b) has general applicability apart from the Work Product or Developer’s performance of Services.
1.7 “Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including copyrights, moral rights, and mask works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, and (e) all other intellectual and industrial property rights in any jurisdiction throughout the world.
1.8 “Milestone Schedule” means the schedule for development of the Work Product and delivery of the Deliverables, as set forth in Exhibit A (the Project Scope / Service Agreement).
1.9 “Specifications” means the Web Site specifications set forth in Exhibit B, as amended, modified, or supplemented in accordance with this Agreement.
1.10 “Web Site” means the user interface, functionality, and Content made available on the pages at the domain identified in the Project Scope / Service Agreement.
1.11 “Work Product” means all HTML and DHTML files, JavaScript files, graphics files, animation files, databases and files, technology, scripts, and programs (in both object code and source code form), and all documentation prepared for Company by Developer under this Agreement, including, without limitation, the Web Site and the Deliverables.
2. Web Site Development
2.1 Delivery of Initial Content. Company shall deliver to Developer all Content that Company intends for Developer to incorporate into the Work Product.
2.2 Development. Developer shall provide the design, programming, and other services specified in Exhibit A and Exhibit B, and shall provide the Deliverables in accordance with the Milestone Schedule. Developer will use reasonable efforts to meet the Milestone Schedule. Because the schedule depends on Company providing Content, feedback, and approvals on time, any delay by Company extends Developer’s deadlines by a corresponding amount.
2.3 Developer Tools. If any Developer Tools are incorporated into or used in conjunction with the Web Site, or used to manipulate Content for the Web Site, then, effective upon Company’s payment in full, Developer grants Company a worldwide, non-exclusive, royalty-free, perpetual license to use, reproduce, publicly perform, and publicly display such Developer Tools solely as part of the Web Site. Developer retains all ownership of the Developer Tools. Upon Company’s payment in full, Developer shall provide Company the then-current versions of any Developer Tools licensed to Company under this Section, and any related documentation.
2.4 Milestones and Acceptance. Developer shall make the Deliverables available for Company’s review and acceptance in accordance with the Milestone Schedule. Company has 7 days to review and evaluate each Deliverable (the “Acceptance Period”) to assess whether it meets the applicable Specifications and industry standards for professional, technical, and artistic quality. If Company rejects a Deliverable during the Acceptance Period, Company may, in its sole discretion, elect to (a) extend the time for Developer to provide a revised Deliverable for acceptance testing under this Section, (b) revise the applicable Specifications and negotiate an appropriate adjustment to the fees to reflect the revised Specifications, or (c) terminate this Agreement in accordance with Section 5, subject to the payment and ownership terms of Sections 4 and 8.
2.5 Content, Links, and Advertising. Developer shall not place any content, links, or advertisements on the Web Site without Company’s prior written consent.
3. Modifications
If Company wishes to change the Specifications, it shall submit a written request describing the proposed changes. Developer shall complete and return a written document (a “Change Order”) setting forth, at a minimum, (i) a description of the changes to the Specifications, (ii) any changes to the Milestone Schedule, (iii) any changes or additions to the Deliverables, and (iv) any changes or additions to the fees. A Change Order is binding only if signed by both parties. All Change Orders are governed by this Agreement and are incorporated by reference. Any additional Deliverables or changes described in a Change Order are subject to acceptance testing under Section 2.4. Developer shall quote all charges for Change Orders at its then-current standard charges, but in no event exceeding the per-hour rate specified in Exhibit A.
4. Payments
4.1 Fees and Deposit. Company shall pay Developer the fees set forth in Exhibit A (the Project Scope / Service Agreement), on the schedule stated there. A deposit of 50% of the project fee is required before work begins, and Developer is not obligated to begin work until the deposit is received.
4.2 Taxes. Fees are exclusive of taxes. Company is responsible for all applicable sales, use, excise, and similar taxes, except for taxes based on Developer’s net income.
4.3 Non-Refundable. All fees, including the deposit, are non-refundable. Developer is paid for the time and work it performs. Fees for work performed through any termination are earned and are not subject to refund, in whole or in part.
5. Term and Termination
5.1 Term. Unless terminated earlier under Section 5.2, this Agreement remains in effect for one year from the Effective Date.
5.2 Termination. This Agreement may be terminated immediately upon written notice:
(a) by either party if the other party breaches any material provision and fails to cure the breach within 30 days after receipt of written notice of the breach;
(b) by Company in accordance with Section 2.4; or
(c) by either party if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for liquidation or winding up. If any of the foregoing is involuntary, the party is only in breach if the petition or proceeding is not dismissed within 90 days.
5.3 Effect of Termination. Sections 2.3 and 4 through 11 survive expiration or termination. Company’s right to receive, use, or take possession of the Work Product, including the completed Web Site, is conditioned on payment in full. If Company has paid Developer in full for the Work Product, Developer will promptly deliver the Work Product to Company, and ownership passes to Company as described in Section 8. If Company has not paid in full, Developer is not obligated to deliver, and Company has no right to use or take, any Work Product, and Developer retains all right, title, and interest in it. In all cases, Developer will return Company’s own Content, and each party will return or delete the other party’s Confidential Information, as provided in this Agreement.
6. Developer Warranties
6.1 Work Product Warranties. Developer represents and warrants that any Work Product, Developer Tools, Deliverables, and Developer-made changes to the Content will not (a) infringe the Intellectual Property Rights of any third party or any rights of publicity or privacy, (b) violate any law, statute, ordinance, or regulation, (c) contain any third-party materials except those listed in Exhibit C, or (d) contain any (i) back door, time bomb, Trojan horse, worm, drop dead device, virus, or other software code designed to permit access to or use of a user’s computer system by a non-authorized party, disable, damage, or erase software or data on a user’s system, or perform any other unauthorized action on a user’s system, or (ii) preprogrammed preventative routines or similar devices that could prevent Company from exercising the rights granted under this Agreement or from using the Deliverables for their intended purposes. Developer further represents and warrants that the Deliverables will conform to their applicable Specifications, and if they do not, Developer shall promptly correct the Deliverable at Developer’s sole expense. Company acknowledges that (i) Developer does not warrant that the Deliverables will work on all platforms and (ii) Developer is not responsible for the results Company obtains from the Web Site.
6.2 Company Warranties. Company represents and warrants that the Content will not (a) infringe the Intellectual Property Rights of any third party or any rights of publicity or privacy, or (b) violate any law, statute, ordinance, or regulation.
7. Disclaimers and Limits on Liability
7.1 Exclusion of Damages. Except for a breach by Developer of its obligations under Section 10, and each party’s obligation of indemnity under Section 9, neither party shall be liable for any lost revenue, lost profits, or other consequential, incidental, special, or punitive damages, even if advised of the possibility of such damages.
7.2 Limitation on Damages. Except for a breach by Developer of its obligations under Section 10, and each party’s obligation of indemnity under Section 9, in no event shall either party’s aggregate liability under this Agreement exceed the amount of fees paid by Company to Developer under this Agreement.
7.3 Disclaimer of Warranties. Except as otherwise provided in this Agreement, neither party makes any representations or warranties of any kind, express or implied, with respect to the subject matter of this Agreement, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or noninfringement.
8. Ownership
8.1 Before payment in full. Until Company has paid Developer in full, Developer retains all right, title, and interest in the Work Product, and Company has no license to use, host, copy, or take it. Websites are built and staged on Developer’s development server and are delivered only after payment in full.
8.2 What Company owns on full payment. Upon Developer’s receipt of payment in full, Company owns its website as delivered and may host it or move it wherever it chooses, including away from Developer’s hosting. Company owns its own Content and brand assets at all times. Company also owns any bespoke, custom work it specifically commissioned and paid Developer to create for it, including the source code and Intellectual Property Rights in that bespoke work, which to that extent is deemed work made for hire and is assigned to Company effective on payment in full.
8.3 What Developer keeps. Developer retains all right, title, and interest in its Developer Tools, meaning its preexisting and reusable software, code, frameworks, snippets, methods, and know-how. Where Developer Tools are incorporated into the website, Developer grants Company the license in Section 2.3, effective on payment in full, so the website keeps working. Developer does not assign or transfer its Developer Tools.
8.4 Third-party components. Websites are typically built using third-party software such as WordPress, themes, and plugins, for example the Hello Theme and Elementor. These remain governed by their own licenses and are not owned by or assigned to either party. Third-party licenses are handled in one of the following ways, as stated in the Project Scope / Service Agreement: (a) Company brings an existing license it already owns; (b) Company purchases a new license in its own name; or (c) Developer provides the license, in which case it may be tied to hosting with Developer and remain active only while Company hosts with Developer, after which Company is responsible for obtaining its own. In cases (a) and (b), the license stays with Company, and Company is responsible for its renewals.
8.5 Assurances. Developer shall execute documents reasonably requested by Company to evidence the ownership and assignments that take effect upon payment in full.
9. Indemnity
9.1 Indemnity. Each party shall indemnify, defend, and hold harmless the other party and its employees, representatives, agents, affiliates, directors, officers, and shareholders against any and all claims, suits, actions, or other proceedings brought against it arising out of or relating to any claim resulting from its breach of the representations and warranties set forth in Section 6.
9.2 Mechanics of Indemnity. A party is entitled to indemnification only if (a) the party seeking indemnification, within 10 days of its discovery of a potential claim, notifies the other party in writing in sufficient detail to enable the indemnifying party to evaluate the claim (provided that failure to give prompt notice only relieves the indemnifying party to the extent the late notice prejudiced its defense or increased its costs, damages, or expenses), and (b) the party seeking indemnification cooperates in all reasonable respects, at the indemnifying party’s cost and expense, with the investigation, trial, and defense of the claim and any appeal. A party seeking indemnification shall not compromise any claim or enter into any settlement without the written consent of the indemnifying party. The indemnified party may retain separate counsel of its own choosing at its own cost. Notwithstanding the foregoing, Company may take sole and exclusive control of its own defense at the expense of Developer if it reasonably believes it must do so to protect the business, goodwill, or reputation of Company.
10. Confidential Information
Company’s “Confidential Information” is all Work Product and documents related to the Work Product, any Content that Company designates as confidential, any other materials of Company that Company designates as confidential or that, based on the circumstances of disclosure, Developer should reasonably believe to be confidential, and any personal or business information regarding Company. Developer’s “Confidential Information” is all source code of any Developer Tools. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose it to third parties or use it for any purpose other than as necessary to perform under this Agreement. Each party shall treat the other party’s Confidential Information with at least the same degree of care it uses to protect its own, and in no event less than reasonable care. Each party shall promptly notify the other of any actual or suspected misuse or unauthorized disclosure. Upon termination or upon the disclosing party’s request, each party shall return all tangible copies of the other party’s Confidential Information. Confidential Information does not include information that the receiving party can prove (a) was generally available to the public at the time of receipt, (b) was known to it without restriction at the time of disclosure, (c) is disclosed with the disclosing party’s prior written approval, (d) was independently developed without any use of the Confidential Information, (e) becomes known to it without restriction from a source other than the disclosing party without a duty of confidentiality, or (f) is disclosed in response to an order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party gives prompt advance notice to the disclosing party and any information so disclosed otherwise remains subject to this Section 10.
11. General Provisions
11.1 Promotions. Company grants Developer the right to link from Developer’s website to the Web Site, solely for promotional purposes. Subject to Company’s approval of form and placement, Developer may place (a) Developer’s logo on the front page and links page of the Web Site and (b) a copyright notice on the Web Site relating to the Developer Tools. Developer also retains the right to display the Web Site, and the design and graphic elements Developer created for Company, as examples of Developer’s work in Developer’s portfolio and marketing. Except as expressly set forth here, nothing in this Agreement grants Developer any right to any trademark, trade name, right of publicity, or other right of Company.
11.2 Governing Law. This Agreement is governed by and construed in accordance with the substantive laws of the United States and the State of Florida, without regard to Florida’s conflict-of-laws principles.
11.3 Arbitration and Venue. Disputes will be resolved by binding arbitration in Brevard County, Florida, under the commercial rules of the American Arbitration Association, except that (a) either party may bring a claim in small claims court, and (b) Developer may bring an action in the state or federal courts located in Brevard County, Florida to collect unpaid fees or to seek injunctive relief. The award may be entered as a judgment by any court of competent jurisdiction, and the cost of the arbitrator is split evenly between the parties. Any information disclosed during arbitration, and all findings of the arbitrator, are deemed Confidential Information. The prevailing party is entitled to its costs and reasonable attorneys’ fees.
11.4 Waiver and Modification. The failure by either party to enforce any provision will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment, or modification of any provision is effective only if it is in writing and signed by both parties.
11.5 Severability. If any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that determination will not affect the validity or enforceability of any other provision.
11.6 Headings. Headings are for convenience only and may not be construed to define, limit, or affect the construction or interpretation of this Agreement.
11.7 Assignment and Subcontracting. Developer may not assign this Agreement without Company’s prior written consent. Developer may, however, use subcontractors (including firms, individuals, third-party providers, and software applications) to perform any of the services, and Developer remains responsible for the work of its subcontractors. The parties’ rights and obligations bind and inure to the benefit of their respective successors and permitted assigns.
11.8 Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture, or employer-employee relationship is intended or created by this Agreement. Neither party has the power to obligate or bind the other.
11.9 Notice. Every notice required or contemplated by this Agreement shall be delivered by (i) personal delivery, (ii) registered or certified mail, postage prepaid, return receipt requested, (iii) overnight courier, or (iv) email with a confirmation copy sent simultaneously by one of the methods in clauses (i) through (iii), addressed to the party for whom intended. Notices to Company are sent to the contact information Company provides in the signature section of the Project Scope / Service Agreement. Notices to Developer are sent to:
Ally Drez, L.L.C.
1-321-209-2004
support@allydrez.com
11.10 Counterparts. This Agreement may be accepted electronically and in counterparts, each of which is deemed an original and all of which together are deemed one instrument.
11.11 Entire Agreement. This Agreement, together with the exhibits (incorporated by reference), represents the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous oral or written statements, agreements, correspondence, quotations, and negotiations.
11.12 Order of Precedence. The Project Scope / Service Agreement is incorporated into this Agreement. If a specific term in the Project Scope / Service Agreement conflicts with this Agreement, the Project Scope / Service Agreement controls for that project’s scope, fees, and timeline, and this Agreement controls on all other terms.
By signing the Project Scope / Service Agreement, each party accepts and agrees to this Agreement as of the Effective Date.