Terms of Agreement
JWM Marketing & Web Design, Inc.
The purpose of this page is to coincide with proposal documents that we distribute to our potential and existing clients, in an effort to help make the Terms of Agreement readily available to them.
JWM Web Design & Marketing, Inc. (JWM) will provide consulting services (Services) to The Development Client (Client). JWM responsibilities will include support and services as described in the proposal document that references this URL (The Proposal).
- Based on the Services performed, JWM staff time will be billed at a “time and materials” basis at rates described The Proposal.
- Payment for services will be invoiced on a monthly basis. JWM will provide a statement of hours committed to Client services, and an outline of past or expected results relating to JWM’s Services.
- During the term of this Agreement, JWM shall bill and Client shall reimburse JWM for all reasonable and pre-approved out-of-pocket expenses that are incurred in connection with the performance of the duties hereunder. Lodging and $30 meal costs per diem per person will be borne by Client should JWM staff be required to travel that results in overnight stays. Client will reimburse JWM for travel expenses by paying the standard rate allowed by the Internal Revenue Service.
- Invoices are due and payable in ten (10) days after receipt by Client.
- Client shall pay directly or reimburse JWM for all taxes, assessments, duties, permits and fees, however designated, and wherever imposed, which are levied upon this Agreement for the services provided hereunder, exclusive of franchise taxes and taxes based upon JWM’s income.
If JWM produces custom software for Client in relation to Services, JWM shall retain exclusive ownership of code together with all intellectual property rights therein. JWM shall retain all right, title and interest in and to: (i) all patented, copyrighted, trademarked and other intellectual property righted materials of JWM existing before or after the commencement of the Services which are contained in this Agreement; and (ii) all methodologies, processes, techniques, ideas, concepts, trade secrets and know-how of JWM existing before or after the commencement of the Services and which are embodied in subsequent deliverables (collectively, the “JWM Knowledge”). JWM hereby grants to Client a non-exclusive, worldwide, perpetual (without regard to any termination or expiration of this Agreement), irrevocable, fully paid, royalty-free license as to such custom software and JWM Knowledge, including all intellectual property and other proprietary rights incorporated therein or embodied thereby, to make, use, reproduce, disclose, modify, adapt, create derivative works based upon, translate, distribute (directly and indirectly), transmit, display and perform publicly such work for its own internal purposes. Should JWM and the Client have a signed agreement, that will override the default licensing clause.
All Confidential Information relating to a party shall be held in confidence by the other party to the same extent and in at least the same manner as such party protects its own confidential or proprietary information. Neither party shall disclose, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s consent. Each party shall, however, be permitted to disclose relevant aspects of the other party’s Confidential Information to its officers, agents, sub-contractors and employees to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations under this Agreement. The obligations in this Section shall not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party shall give prompt notice to the non-disclosing party of such order) and shall not apply with respect to information which (i) is developed by the other party without violating the disclosing party’s proprietary rights, (ii) is or becomes publicly known (other than through unauthorized disclosure), (iii) is disclosed by the owner of such information to a third party free of any obligation of confidentiality, (iv) is already known by such party without an obligation of confidentiality other than pursuant to this Agreement. Notwithstanding the foregoing, JWM may disclose to third parties that Client is a client and JWM assisted Client in this support agreement.
In connection with any material that is furnished or delivered by JWM or Client hereunder, an “Enforceable Intellectual Property Right” shall mean (a) a copyright, trademark or trade secret issued, honored and/or enforceable under the laws of the United States of America or any state within the United States of America, or (b) a United States patent issued as of the time when the material is furnished or delivered. JWM warrants that Client’s use of the Service-related deliverables, in the form in which they are delivered to Client, does not infringe any Enforceable Intellectual Property Right of any third party. Client warrants that JWM’s use of any and all materials furnished by Client hereunder does not infringe any Enforceable Intellectual Property Right of any third party. EXCEPT AS SET FORTH ABOVE, THE PARTIES EXCLUDE FROM THIS AGREEMENT ALL REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
- JWM shall not be precluded by this Agreement from rendering services or developing work products that are competitive with, or functionally comparable to, the Services rendered and Service deliverables provided hereunder. JWM shall not be restricted in its use of ideas, concepts, know-how and techniques acquired or learned in the course of activities hereunder.
- JWM personnel who render services to Client under this Agreement may render similar services for others during the term of this Agreement. JWM will make reasonable efforts to honor specific requests of Client regarding assignment of JWM personnel, but JWM reserves the right to make and change all such assignments.
JWM and Client shall at all times be independent parties. Neither party is an employee, joint venturer, agent, or partner of the other, and neither party is authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other. The employees, methods, facilities and equipment of each party shall at all times be under the exclusive direction and control of that party.
- JWM represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by JWM under this Agreement and the Order. Client understands that JWM is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with JWM’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
- JWM represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML conventions; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) JWM will perform all work called for by this Agreement in compliance with applicable laws. JWM will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of Client’s Web Site, and said repairs will be free of charge to Client. This warranty shall extend for the life of this Agreement. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of JWM.
- JWM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE WEB SITE WILL MEET THE CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE WEB PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
- Neither party shall be liable hereunder for penalties or for special, indirect, consequential or incidental losses or damages including, but not limited to, lost profits, lost or damaged data, failure to achieve cost savings, loss of use of facility or equipment, or the failure or increased expense of operations, regardless of whether any such losses or damages are characterized as arising from breach of contract, breach of warranty, tort, strict liability or otherwise, even if a party is advised of the possibility of such losses or damages, or if such losses or damages are foreseeable.
- In the event of Client’s claim of failure or damage by JWM or its assigns in relation to the Services rendered under the terms of this Agreement, the amount of such claims or damages shall not exceed the actual expense caused by the failure or damage, or the total amount Client has paid to JWM for the Services under this Agreement, whichever is less.
- Neither party shall be considered in default in the performance of any obligation hereunder to the extent that the performance of such obligation is prevented or delayed by a Force Majeure Event, which is defined to include a fire, flood, explosion, strike, war, insurrection, embargo, government requirement, act of civil or military authority, act of God, or any similar event, occurrence or condition which is not caused, in whole or in part, by that party, and which is beyond the reasonable control of that party. The parties shall take all reasonable action to minimize the effects of a Force Majeure Event. If a Force Majeure Event prevents or delays the performance of a party for thirty (30) days, the other party shall thereafter have the right to terminate the Project upon written notice at any time before such performance resumes.
- This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by JWM (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with JWM or hinders JWM’s ability to perform the Services hereunder.
- If this Agreement is terminated prior to the completion of Services, Client will compensate JWM for approved Services rendered up to the termination date.
The laws of the state of Indiana shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties hereto. Any controversies arising out of the terms of this Agreement or its interpretation shall be settled in accordance with the rules of the American Arbitration Association, and the judgment upon award may be entered in any court having jurisdiction thereof. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
No amendment, change, or modification of this Agreement shall be valid unless in writing signed by the parties hereto.