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Design/Development Agreement
- Time for Payment
Payment is due at each milestone upon the Client’s acceptance of the Deliverable. All invoices are payable within 5 days of receipt. A 1 ½% monthly service charge is payable on all overdue balances. The grant of any license, right of copyright, or ownership of any work completed is conditional on receipt of full payment. - Default Payment
The client shall assume responsibility for all collection of legal fees necessitated by default in payment. - Expenses
The Client shall reimburse the Developer for all expenses arising from this assignment, including the payment of any sales taxes due on this assignment. - Due Dates
All due dates will be extended by an equal amount of time created by any delay of delivery of assets by Client to Developer. The due dates will be extended by three days for every additional page added to this assignment; furthermore, the client understands that the developer or the client may extend a deadline by any number of days to ensure the project is completed to the clients standards. - Internet Access
Access to Internet will be provided by a separate Internet Service Provider (ISP) to be contracted by the Client and who will not be party to this assignment. - Progress Reports
The Developer shall contact or meet with the Client on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the Web site. The Developer shall inform the Client promptly by Client’s preferred method of contact upon discovery of any event or problem that may delay the development of work significantly. - Developer’s Guarantee for Program Use
The Developer guarantees to notify the Client of any licensing and/or permissions required for art-generating/driving programs to be used. - Changes
The Client shall be responsible for making additional payments for changes in original assignment requested by the Client. However, no additional payment shall be made for changes required to conform to the original assignment description. The Client shall offer the Developer the first opportunity to make any changes. - Testing and Acceptance Procedures
The Developer will make every good-faith effort to test all deliverables thoroughly and make all necessary corrections as a result of such testing prior to handing over the deliverables to the Client. Upon receipt of deliverables, the Client shall either, accept the deliverable and make the milestone payment set forth herein or provide the Developer with written notice of any corrections to be made and a suggested date for completion, which should be mutually acceptable to both the Developer and the Client. The Developer shall designate Richard or Kim Winn and the Client shall designate a qualified representative as the only designated persons who will send and accept all deliverables and receive and make all communications between the Developer and the Client. Neither party shall have any obligation to consider for approval nor respond to materials submitted, other than through the designated persons. Each party has the right to change its designated person upon five days written notice to the other. - Web Site Maintenance
The Developer agrees to provide the Client with reasonable technical support and assistance to maintain and update the Web site on the Internet during the Warranty Period of thirty days at no cost to the Client. Such assistance shall not exceed forty hours per calendar month. After the expiration of the Warranty Period, the Developer may or may not provide the Client with reasonable technical support and assistance to maintain and update the Web site on the Internet. Such maintenance shall include correcting any errors or any failure of the Web site to conform to the specifications. Maintenance shall not include the development of enhancements to the originally contracted project. - Enhancements
If the Client wishes to modify the Web site, the Developer shall be given first option to provide a bid to perform such enhancements. - Confidential Information
The Developer acknowledges and agrees that the source materials and technical and marketing plans or other sensitive business information, as specified by the Client, including all materials containing said information, that are supplied by the Client to the Developer or developed by the Developer in the course of developing the Web site are to be considered confidential information. Information shall not be considered confidential if it is already publicly known through no act of the Developer - Delivery of Assets
Client understands and agrees all assets will be provided to Developer in an electronic format. Client further understands and agrees that any assets that are submitted in any other form than an electronic format will incur an additional charge for converting said assets into an electronic format at the rate of $50.00 per hour. - Return of Source Information
Upon the Client’s acceptance of the Final Version, or upon the cancellation of the project, the Developer shall provide the Client with all copies and originals of source materials provided to the Developer. - Ownership of Copyright
The Developer acknowledges and agrees that Client retains all rights to copyright in the subject material. - Ownership and Return of Artwork
The Developer retains ownership of all original artwork, in any media, including digital files, whether preliminary or final. The Client waives the right to challenge the validity of the Developer’s ownership of the art subject to this agreement because of any change or evolution of the law and will return all artwork within 30 days of use. - Cancellation
In the event of cancellation of this assignment, ownership of all copyrights and any original artwork shall be retained by the Developer, and a cancellation fee for work completed, charged at $50.00 per hour for any hours after the last milestone payment has been made, plus any expenses already incurred, shall be paid by the Client within five (5) days of cancellation. - Copy-Protection
The Client must copy-protect all final art that is the subject of this agreement against duplication or alteration. - Credit Lines
The Developer shall be given credit on: (a) CD/DVD, (b) documentation, (c) packaging, (d) Developer’s mark on art.The Developer shall be given a credit line to appear in the footer of each page of Web site as follows:Web site Designed/Developed by Winn Photography & Design
With a hyperlink to the Designers web site.
- Alterations
Any electronic alteration of original art (color shift, mirroring, flopping, combination cut and paste, deletions) creating additional art is prohibited without the express permission of the developer. The Developer will be given first opportunity to make any alterations required. Unauthorized alterations shall constitute additional use and will be billed accordingly. - Unauthorized Use and Program Licenses
The Client will indemnify the Developer against all claims and expenses arising from uses for which the Client does not have rights to or authority to use. The Client will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics programs that require such payments. - Warranty of Originality
The Developer warrants and represents that, to the best of his/her knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that the Developer has full authority to make this agreement; and that the work prepared by the Developer does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of the Developer’s product that may infringe on the rights of others. CLIENT EXPRESSLY AGREES THAT IT WILL HOLD THE DEVELOPER HARMLESS FOR ALL LIABLILITY CAUSED BY THE CLIENTS USE OF THE DEVLEOPER’S PRODUCT TO THE EXTENT SUCH USE INFRINGES ON THE RIGHTS OF OTHERS. - Limitation of Liability
Client agrees that it shall not hold the Developer or his/her agents or employees liable for any incidental or consequential damages that arise from the Developer’s failure to perform any aspect of the Project in a timely manner, regardless of whether such failure was caused by intentional or negligent acts or omissions of the Developer or a third party. Furthermore, the Developer disclaims all implied warranties, including the warranty of merchantability and fitness for a particular use. - Dispute Resolution
Any disputes in excess of $5000.00 arising out of this Agreement shall be submitted to final binding arbitration before a mutually agreed-upon arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney’s fees, and legal interest on any award of judgment in favor of the Developer. Arbitration will occur in the State of Wyoming, Fremont County.
