Description of the Services. The Company will provide requested services (the “Services”) for the Client via the services listed on Schedule A (the “Services”). All programming and documentation shall comply with standards currently employed by the Client. The scope of the Services by a written “change order” describing all changes and the adjustment to payment and Services .
Written Notice. The parties agree that email is the preferred method of written notice. Notice is given to Company at Keith@CustomMarketer.com. Company may give notice to Client at the email address provided by Client as initial contact information. The Client must provide written notice in order to change the address for Company to provide notice.
Where time is of the essence for any written notice, the Parties shall send the email with a read receipt requested or equivalent. Failure to open, read or send receipt of email may constitute a breach as outlined below.
Team. Company takes responsibility for hiring the team or outsourcing work as necessary to complete the project and retains complete autonomy and discretion in managing staff to work on the project.
Term / Scheduling. Each project is an interactive process. The Client assumes responsibility to provide the necessary information/material in a timely fashion so the Company can complete the Services. Company will notify Client in writing if, for any reason, the Services will not be completed in accordance with the schedule set forth on Schedule A.
Client Responsibility. Client agrees to complete required tasks for the project in accordance with the schedule outlined on Schedule A. Any delays in the delivery of the required materials or tasks past the allotted time will result in an adjustment in the project deadline. The client will have a 10 business day grace period to complete any tasks or required actions to fulfill the project. If the client has not fulfilled their agreement within 10 business days it will constitute a default and this agreement will be terminated with no refund available.
Client agrees to ensure that Client remains available to review and approve steps as laid out in Schedule A. Client agrees to complete required tasks for the project in accordance with Schedule A. Client understands that time is of the essence in completing these tasks so that Company can complete the Services on Schedule. Client understands that failure to timely complete tasks will breach this agreement, as Company cannot complete the Services if Client does not complete Client’s tasks. Client understands that Company is blocking out time in advance to work on Client’s Project and breach will likely leave Company without work. It is difficult to calculate the damages for lost work, so Client agrees that the fees paid in advance are to be the liquidated damages in the case of an incurable breach.
Non-Material breaches: If Client’s breach for failing to meet deadlines is not material (meaning that Client’s projects can be completed so as to cure the breach and allow Company to continue) Company will make a good faith effort with Client to create a “change order” adjusting the dates in Schedule A to allow the work to continue, which may include additional fees.
Material breaches: Any breach by the Client for failing to meet deadlines that cannot be cured is a material breach. Many factors may make a breach incurable, including multiple prior non-material breaches, Company’s schedule conflicts and so on. Any failure by Client to cure a breach within 10 days of the deadline is presumptively a material breach.
Payments. In consideration for the Services, the Client will pay the Company in accordance with the payment schedule and terms set forth on Schedule B.
Ownership Rights. The Client will own all of its proprietary information as included in the Services, as well as all source code, content, object code, screens, documentation, digital programming, operating instructions, design concepts, content, graphics, domain names, and characters. All Services provided by the Company, including systems, computer programs, operating instructions, unique design concepts, other documentation developed for or specifically relating to the Clients information processing, all of the Client’ source documents, stored data and other information of any kind, and reports and notes prepared by the Company, will be “works for hire” under applicable United States copyright laws, and therefore the property of the Client. Such work may not be used by the Company for any other purpose except for the benefit of the Client. Any and all such property shall be delivered to the Client on request by the Client. Upon request, the Company shall sign all documents necessary to confirm or perfect the exclusive interests of the Client.
– This does not include any third-party source code, object code, images, etc. used under license by Company.
Confidentiality. Except as required by law or lawful process, the Company will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Company, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). The Company will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement. Upon termination of this Agreement, the Company will return to the Client all records, notes, documentation and other items that were used, created, or controlled by the Company during the term of this Agreement.
Failure to Notify. Under no circumstances shall Client provide to Company, personal information, personally identifiable information, EU Personal Data, or information capable of identifying a particular individual. Notwithstanding the foregoing, in the event Client provides such data to Company, Client hereby represents and warrants that it has obtained lawful consent where required by Applicable Laws suﬃcient to enable Company to exercise its rights and process such data here under. Client must notify Company in writing before providing such data to Company, and If Client does not provide such prior notification (“Failure to Notify”), Client shall defend, indemnify and hold harmless Company as set forth in indemnity clause.
Client Data. Client, and not Company, shall own any information, material and data provided to Company for use in connection with the Campaigns and the Services (“Client Data”). Client, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data, and, except for a material breach of this Agreement by Company in connection with such Client Data, Company shall not be responsible or liable in any manner for such Client Data. Under no circumstance shall Client provide to Company personal information, personally identifiable information, personal data or information capable of identifying a particular individual.
Non-Solicitation of Employees. The Client and the Company agree to refrain from soliciting for employment, without the prior written consent of the other, their respective employees during the term of this Agreement and for a period of two (2) years following the termination of this Agreement.
Independent Contractor. The Company is an independent contractor with respect to its relationship to the Client. Neither the Company nor the Company’s employees are or shall be deemed for any purpose to be employees of the Client. The Client shall not be responsible to the Company, the Company’s employees, or any governing body for any payroll taxes related to the performance of the Services. Upon request, the Company will provide evidence of appropriate insurance coverage for workers compensation and general liability insurance.
Promotion. The Company retains the right to use the names, trademarks, service marks, symbols or any abbreviations of the Client for marketing and promotional purposes, unless otherwise requested by the Client.
Monitoring. Company may monitor Client’s use of the Advertising Services for violations of this Agreement and any other behavior Company considers harmful. Company may provide information about Client’s use of the Advertising Services to law enforcement authorities, data protection authorities and aﬀected third party vendors or suppliers (e.g., exchanges, networks) in its sole discretion.
Warranty – Company. The Company warrants to the Client that all software programming, web pages, files, CD-ROMs, diskettes, and materials delivered to the Client in connection with the Services are free from defects in materials and faulty workmanship under normal use, and that all digital assets will operate properly with widely used web browsers. During the Company’s recommended beta testing period and for a 30 day period following completion of beta testing, the Company will correct any software anomalies (“bugs”) that occur because of defects in the source code included in the software. After such time, the Company will make changes on a fixed hourly rate or a negotiated fixed quote basis. While no project is able to guarantee bug-free results, the Services will be provided in a workmanlike manner, within local industry standards and tolerances for commercial applications. This warranty does not cover items damaged, modified or misused after delivery to the Client.
Warranty – Intellectual Property Rights. The Company represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that the Company is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any programming or materials included by the Company in the Services or trade names related to the Services. In the event of any claim, charge, suit or proceeding by any third party against the Client alleging such infringement, the Company shall defend such claim, charge, suit or proceeding. The Company shall indemnify and hold the Client harmless from and against any loss, cost, damage or expense (including attorney fees and legal expenses) incurred by the Client that may result by reason of any such claim, charge, suit or proceeding. The Client shall have the right, if it so desires, to be represented in any such claim, charge, suit or proceeding by counsel. If any of the programming or materials included by the Company in the Services becomes the subject of an infringement suit, the Client may terminate this Agreement and shall be entitled to a refund of any payments that it has made to the Company under this Agreement. This indemnity shall not apply to materials provided by the Client as contemplated by the following paragraph.
Warranty – Client. The Client represents and warrants to the Company that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion in the project, and that the Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such Client-ship. The Client shall indemnify and hold the Company harmless from all losses and claims, including attorney fees and legal expenses, that may result by reason of claims by third parties related to such materials
Disclaimer of Warranties. Company AND ITS LICENCORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED THAT ARE NOT EXPLICITLY STATED HEREIN. THE SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE” AND, EXCEPT AS EXPLICITLY STATED HEREIN, Company DOES NOT REPRESENT OR WARRANT THAT (I) THE Company TECHNOLOGY (OR ANY PORTION THEREOF) OR THE USE THEREOF WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) EXCEPT FOR PURCHASING INVENTORY THAT MEETS CUSTOMER’S CRITERIA, THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) ANY DATA PROVIDED BY OR ON BEHALF OF CUSTOMER AND STORED BY Company WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR
(IV) THE SERVICES OR THE INFRASTRUCTURE THAT MAKES THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Company AND ITS LICENCORS HEREBY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Company SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE CONTROL OF Company.
Limitation of Liability.IN NO EVENT SHALL COMPANY BE LIABLE HERE UNDER FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. Company’S MAXIMUM LIABILITY HERE UNDER SHALL BE LIMITED TO THE AMOUNTS PAID TO Company HERE UNDER IN PLATFORM FEES DURING THE SIX MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE FOR USE OF THE APPLICABLE SERVICE THAT IS THE SUBJECT OF THE CLAIM.
Indemnity.Client. Client shall defend, indemnify and hold harmless (“Indemnify”) Company, its licensors and each of their parent organizations, subsidiaries, aﬃliates, oﬃcers, directors, employees, attorneys and agents (“Related Parties”) from and against any and all claims, costs, damages, losses, liabilities, penalties, fines and expenses (including reasonable attorneys’ fees and costs) (“Liabilities”) arising out of or in connection with an unaﬃliated third party’s claims or government action (“Claims”): (i) arising from the Ads submitted under Client’s Account, the Landing Pages, the products, goods and services promoted in such Ads (“Advertised Products”), Client Data the Client’s or Advertiser’s trademarks, logos or other content contained in the Dashboard, if any, the Physical Addresses, and/or Company’s use of the foregoing as permitted under this Agreement, including allegations that any of the foregoing (a) infringes the intellectual property rights of a third party, (b) contains Harmful Code, or (c) violates Applicable Law; (ii) Client’s access and use of the AGT, including the Report and/or any use Client makes of the Report or any data in the Report, (iii) arising from the Client’s violation of Applicable law or use of the Advertising Services or any materials provided by Company, including the AGT, in a manner not permitted under this Agreement, and/or (iv) arising from Client’s breach of this Agreement, including any Failure to Notify.
Company shall Indemnify Client, its licencors and each of their Related Parties from and against any and all Liabilities arising out of or in connection with any Claims alleging that Client’s use of any services or the Upon termination of this Agreement, Company will discontinue use of any Client Data and return such Client Data to Client to the extent such Client Data is maintained in a state that is discrete or distinct from other data in Company’s possession or control.
Each party’s indemnification obligations are contingent on the indemnified party: (i) giving prompt written notice of the Claim to the indemnifying party; provided that the indemnifying party shall be released from its indemnification obligations only to the extent that the indemnified party’s failure to provide prompt notice materially prejudices the indemnifying party’s ability to defend the Claim, (ii) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle or defend any Claim unless the indemnified party is unconditionally released from all liability and such settlement does not negatively and materially aﬀect the indemnified party’s business); (iii) provides to the indemnifying party all available information and assistance; and (iv) not having compromised or settled the Claim.
Amendment and Waiver. Except as otherwise expressly provided herein, any provision of this Agreement may be amended, and the observance of any provision of this Agreement may be waived (either generally or in any particular instance and either retroactively or prospectively) only with the written consent of the parties. However, it is the intention of the parties that this Agreement hereto be controlling over additional or diﬀerent terms of any confirmation, invoice, or similar document, even if accepted in writing by both parties, and that waivers and amendments shall be eﬀective only if made by written agreements specifically amending or waiving a particular provision and is clearly understood by both parties to be an amendment or waiver.
Governing Law; Jurisdiction. This Agreement will be governed and interpreted in accordance with the laws of the State of Delaware, USA without reference to conflicts of laws principles. The parties agree that any dispute under this Agreement shall be brought in the federal or state courts located in Jackson County, Missouri, USA and agree to submit to the exclusive jurisdiction of the federal and state courts located in Jackson County, Missouri, USA, unless Applicable Law requires otherwise.
Publicity. The terms and conditions of this Agreement are confidential and Client agrees that it will not disclose such terms and conditions, or issue any press releases or other public statements relating to the relationship created by this Agreement without Company’s prior written approval. Company shall be permitted to list Client as a customer in Company’s marketing materials.
Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
Notices. Notices under this Agreement shall be suﬃcient only if in writing and personally delivered, delivered by a major commercial rapid delivery courier service, delivered by email (with confirmation of receipt) or mailed by certified or registered mail, return receipt requested to the designated notice recipient at the address or the email address specified on the first page of this Agreement. If not received sooner, notice by mail shall be deemed received 5 days after deposit in the mail.
Entire Agreement. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among Company and Client relating to the subject matter of this Agreement and all past dealing or industry custom.
Relationship of the Parties. The parties are independent contractors, and nothing in this Agreement shall be deemed to create a joint venture or partnership.
Severability. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to eﬀectuate the intent of the parties and so that this Agreement shall otherwise remain in full force and eﬀect and enforceable.
Assignment. This Agreement is not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment shall be void.
Force Majeure. Neither party will be liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.
Subcontractors. Client acknowledges that Company may use third parties to operate the Advertising Services and fulfill Company’s obligations here under. Nonetheless, Company shall continue to be responsible for the performance of its obligations here under by any such subcontractor.
Basis Of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
Default to continue performance.
The party not in Default may terminate this Agreement by providing written notice to the Defaulting party. The notice shall describe with sufficient detail the nature of the default. Such notice shall result in the automatic termination of this Agreement.
Attorneys Fees. In any legal action between the parties concerning this Agreement, each party shall be responsible for their own attorneys fees and costs.
Termination. Either party may terminate this Agreement at any time by providing written notice before the project is complete. In the event of such termination, the Client shall be obligated to pay only for actual services provided by the Company and for expenditures incurred with the Client’s approval. Unless otherwise terminated, this Agreement will terminate upon completion of the Services.
Termination on Default. A party Defaults when the party fails to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due) such that it would be unfair or unreasonably burdensome for the party not in Client acknowledges that Client is reserving Company’s time as well as services. By agreeing to work on Client’s project, Company will forfeit certain opportunities to pursue or accept other clients. As these losses are difficult to prove or value, Client agrees that the fees paid under this contract are to be liquidated damages to compensate Company for missed business opportunities.
SIGNATORIES. This Agreement shall be signed by on behalf of and by Michael Keith Knapp, Owner on behalf of Custom Ventures, LLC DBA CustomMarketer.com. This Agreement is effective as of the date first written above.
Scope of Work and Project Schedule
Sitemap for Website Design Project:
(Client’s Receipt Provided at time of sale is Sitemap is Pre-built as agreed in terms)
(Custom Clients will be provided with a separate Sitemap base on project and order needs)
The client agrees to pay CustomMarketer.com a total of order purchased initial deposit and final payment (Client’s Receipt) for the design of the Core Website.
Client agrees to pay the initial non-refundable deposit due at the signing of this agreement, Remaining balance is the launch of the new website.
The client also agrees to pay for any premium plugins, images, or third-party software costs not currently offered by CustomMarketer.com.
The client understands that any additional requests outside of the scope of this project will be billed as follows:
Lite Pages up to 150 words only $97
Standard Page up to 750 words only $197
Additional packets are listed on the site priced for add-on if the client wishes to purchase.
Any additional custom development or design work will be billed at fifty dollars ($50) per hour. This includes additional revisions after the allotted revisions have been completed, additional pages, added resources, added software implementation after the collection process, or any other requests disclosed as “outside the project scope” through email.
Website Design Deposit Payment: is a non-refundable deposit. The remaining balance and any additional billed costs are due once the website design, revisions, and optimizations are finalized. Once the final payment has been made, CustomMarketer.com will launch the new site.
Any additional costs for hosting, maintenance, or add-on services require a separate contract to be signed at the time of order.
Once the site is “launched” the project will be considered completed and fulfilled except in the case of errors (which will be corrected at no additional cost).