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This Web Site Development Agreement (“Agreement”) is made and entered into as of the ____ day of ____________, 200__ (“Effective Date”), by and between: (a) ______________________, L.L.C., a ________________ limited liability company, with offices at ________________(“Client”); and (b)_______________________, a _________ ______________corporation, with offices at ___________(“Developer”). Client and Developer are collectively referred to as the “parties.” WHEREAS, Developer desires to provide to Client, and Client desires to review for acceptance from Developer, certain services subject to the terms of this Agreement. NOW THEREFORE, in consideration of the mutual promises contained herein, the parties, intending to be legally bound, agree as follows: Development Services Services. Developer agrees to perform and provide to Client, services for development of a Web site as a work made for hire (“Site”) that Client desires to make available on a global computer communications network known as the Internet as set forth at Exhibit A (“Web Design Services”) and to provide Client with additional services as set forth at Exhibit B (“Additional Services”). The Web Design Services and any Additional Services are collectively referred to as the “Services.” Specifications. Developer shall use its best professional efforts to design, author and develop the Site in accordance with the specifications detailed at Exhibit C (“Specifications”) and the highest professional standards. The Site shall incorporate certain materials provided by Developer which include, without limitation, computer software (in object or source code form), script, programming code, data, information, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text (“Developer Content”). The Site shall also incorporate the materials, if any, provided by Client and expressly identified at Exhibit C, including, without limitation, trade or service marks, images, illustrations, graphics, multimedia files and/or text (“Client Content”). License In consideration of Developer’s performance of all obligations under this Agreement, Client grants to Developer, and Developer accepts from Client, a nonexclusive, royalty-free license for the term of this Agreement to edit, modify, adapt, translate, exhibit, publish, transmit, copy, prepare derivative works from and use the Client Content solely in connection with the Site and/or Developer’s performance of this Agreement. Site Development and Delivery Beta Version. Within fourteen (14) days of Client’s delivery of the Client Content, if any, to Developer, Developer shall deliver to Client, for Client’s review and approval, a preliminary working copy of the Site (“Beta Version”). A Beta Version shall include at least one (1) prototype of each page that will reside within the Site as described in the Specifications. Revisions. Upon delivery of a Beta Version to Client, Client shall have fourteen (14) days to review such Beta Version for conformance with the Specifications and provide any written request for revisions thereto. Upon receipt of such request for revision, Developer shall implement such revisions that are within the scope of the Specifications and deliver to Client, for Client’s review and approval, a revised Beta Version. Additional Revisions. Client agrees that requests by Client for revisions to a Beta Version that exceed the scope of the Specifications and increase Developer’s cost of performance shall be deemed a proposal for amendment of the Specifications (“Proposed Revisions”). Upon submission of such Proposed Revisions to Developer, Developer shall evaluate such Proposed Revisions and submit to Client for Client’s acceptance, a written price quote that shall specify all additional fees, calculated pursuant to Developer’s time and materials rate set forth at Exhibit D. If Client agrees to Developer’s price quote, the Proposed Revisions shall be amended to and incorporated by reference into the Specifications and the Fee and Payment Schedule, set forth respectively at Exhibits C and D. Delivery. Developer shall use its best efforts to deliver the Site, the Beta Version or any portion thereof (“Deliverables”), in accordance with the highest professional standards and to the Specifications set forth at Exhibit C. e. Acceptance. Upon any delivery of any Deliverables, Client shall have one (1) month to evaluate, test and provide to Developer written notice of acceptance or rejection, specifying the basis therefor. If Client rejects any Deliverables, Developer shall have one (1) month to implement any changes necessary to cure the reason(s) for rejection and resubmit such Deliverable to Client. The procedure set forth in this Section 3(e) shall be repeated until either the Deliverable is accepted or Client terminates this Agreement. Proprietary Rights Ownership. Except as expressly provided at Section 4(b), the Site, Beta Version(s) and Developer Content (“Works”) shall be works made for hire and the property of Client. Client shall own all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Works and all legally protectable elements, contributions, collective works thereof or derivative works thereto. To the extent that ownership of any Work does not automatically vest in Client by virtue of this Agreement or otherwise, Developer irrevocably transfers and assigns to Client all right, title and interest in the Works and protectable elements or derivative works thereof. Moral Rights Waiver. Developer understands that the term “moral rights” means any rights of paternity or integrity, including any right to claim authorship of a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right,” including, without limitation, the rights of attribution and integrity in works of visual art pursuant to 17 U.S.C. � 106A. Developer irrevocably waives and agrees never to assert any moral rights Developer may have in any Works, even after any termination or expiration of this Agreement. Developer Works. In the event that Developer cannot grant the rights set forth at Section 4(a) with respect to any portion of the Site, including Developer Content (“Developer Works”), Developer shall identify at Exhibit E: (i) the nature of such Developer Works; (ii) the owner of such Developer Works; (iii) any and all restrictions or royalty terms applicable to Developer’s use of such Developer Works in connection with the Services; and (iv) the source of Developer’s right and authority to use, copy, create derivative works, license or display such Developer Works in connection with the Services. License of Developer Works. In consideration of Client’s performance of its material obligations to Developer expressly set forth in this Agreement, Developer grants to Client, and Client accepts from Developer, a perpetual, irrevocable, non-exclusive and worldwide license, to copy, perform, display, prepare derivative works and use Developer Works on and within the Site for Client’s business purposes. Limitations. Developer shall not incorporate into any Work any material, text, graphic, sound or animation in any form that, without limitation, may be obscene, defamatory, harassing, grossly offensive, malicious, or that actually or potentially infringes or misappropriates the copyright, trademark, proprietary or other intellectual property right of any person. Services Schedule and Payment Payment Terms. Client shall pay Developer for the Services and license hereunder the amounts set forth at Exhibit D, and at such times provided by the payment schedule specified therein. Client shall pay Developer for any Additional Services as specified at Exhibit B on a time and materials basis at the rate specified therein, within thirty (30) days of invoice. Taxes. The amounts stated in Exhibit D include all taxes, duties and levies of any governmental entity, exclusive of taxes on Developer’s net income, and Developer shall be solely responsible for any such taxes, duties or levies. Invoices. Client agrees that amounts of all properly payable invoices shall be due and payable within thirty (30) days after receipt. In the event Client disputes the amount charged, Services completed, or whether such invoice is properly payable, the amount of such invoice will not be due and payable until the parties resolve the dispute. Expenses. The amounts stated in Exhibit D of this Agreement are inclusive of all expenses. Developer shall be solely responsible for payment of all expenses arising from its performance of the Services, including, without limitation, expenses for facilities, computer equipment, software, work space, utilities, management, administrative and reproduction services and supplies. Records and Auditing. Developer shall maintain complete and accurate business and accounting records that contain information sufficient to substantiate each invoice for a period of at least one (1) calendar year after the date of such invoice. Throughout the term of this Agreement and for up to one (1) year thereafter, Client shall have the right, at its own expense and upon reasonable notice to Developer, to have its auditors examine such records for the sole purpose of substantiating and certifying the accuracy of any invoices. In the event such auditing indicates any payment to Developer that exceeds the actual payments due and payable to Developer for any given invoice, Developer shall pay all costs and fees associated with such audit. Warranties Developer Warranty. Developer warrants to Client that: (i) Developer has the right and authority to enter into and perform its obligations under this Agreement; (ii) Developer shall perform the Services in a workmanlike manner and with the highest professional diligence and skill; (iii) the Site, upon delivery to Client shall conform to the Specifications; (iv) the Developer Content and the Site do not and shall not contain any content, data, work, materials, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; (iv) Developer has and will have full and sufficient right to assign or grant the rights and/or license set forth at Sections 4(a) and 4(d), respectively; (v) except as set forth in Exhibit E, the Works are subject to the terms of Sections 4(a) and 4(b); and (vi) Developer is not and shall not be under any obligation or restriction that may in any way interfere, conflict with or present a conflict of interest in relation to the Services. Client Warranty. Client represents and warrants to Developer that: (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) upon delivery to Developer, Client Content does not and shall not contain any content, materials, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Client owns the Client Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to grant the license at Section 2(a) and authorize Developer to perform the Services. Limitation of Liability EXCLUSIVE OF LIABILITY UNDER SECTION 8 (INDEMNIFICATION), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Indemnification a. By Developer. Developer agrees to indemnify, hold harmless and defend Client and its members, directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorney’s fees and costs, arising from or relating t (i) Developer’s breach of this Agreement; (ii) the negligence or willful misconduct of Developer; or (iii) any allegation that the Site or Developer Content infringes a third person’s copyright or trademark right, or misappropriates a third person’s trade secret. Developer agrees that Client shall have the right to participate in the defense of any such claim through counsel of its own choosing at Developer’s expense. b. By Client. Client agrees to indemnify, hold harmless and defend Developer and its directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorney’s fees and costs, arising from or relating to any allegation that the Client Content infringes a third person’s copyright or trademark right, or misappropriates a third person’s trade secrets. Term and Termination Term. The term of this Agreement shall commence on the Effective Date and shall continue thereafter for one (1) year, unless sooner terminated by either party. Termination. This Agreement may be terminated: (i) by Client upon ten (10) days written notice to Developer; (ii) by Client in the event Developer makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against Developer, or if a receiver or trustee is appointed for all or any part of the property or assets of Developer; or (iii) by a written agreement executed by the parties. Return and Destruction. Upon any termination or expiration of this Agreement, Developer shall immediately deliver to Client all copies of Works, the Site (completed or in progress), and Confidential Information in Developer’s custody or control. Payment Upon Termination. In the event this Agreement is terminated, Client shall pay Developer for all Services and/or work undertaken in performance of its obligations hereunder up to the date of termination. Such payment is due and payable upon Developer’s submission to Client of: (i) a properly payable invoice; (ii) a detailed record that documents the extent to which performance of Services was completed through such date of termination; and (iii) written certification of Developer’s compliance with Section 9(c). Confidentiality Confidential Information. Client may provide to Developer certain confidential, proprietary and trade secret business or technical information in connection with Developer’s performance of the Services (“Confidential Information”). Confidential Information shall be clearly marked and designated as “Confidential.” Developer agrees to preserve the confidentiality of all Confidential Information that is provided by Client in connection with the Agreement, and shall not, without the prior written consent of Client, disclose or make available to any person, or use for its own or any other person’s benefit, other than as necessary in performance of its obligations under this Agreement, any Confidential Information of Client. Developer shall exercise a commercially reasonable level of care to safeguard Confidential Information of Client against improper disclosure or use. No Developer Confidential Information. Developer agrees not to disclose to Client any Confidential Information of Developer or of any other person. Developer represents and warrants that any information provided to Client in the performance of this Agreement is not and shall not be Confidential Information. General Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. Assignment. Developer may not assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed a material breach of this Agreement. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. Notice. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by call back. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party. Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties. Law. This Agreement shall be governed in all respects by the laws of the State of _____________ without regard to its conflict of laws provisions. Survival. The respective rights and obligations of the parties under Sections 4, 5(b), 5(d), 5(e), 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. Time. The parties agree that time is of the essence in the performance of the respective obligations under this Agreement. Entire Agreement. This Agreement, together with Exhibits A, B, C, D and E, which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. EXHIBIT A Web Design Services EXHIBIT B Additional Services EXHIBIT C Specifications EXHIBIT D Fees and Payment Schedule EXHIBIT E Developer Works This sample clause is intended to serve solely as an exemplar and may need to be modified to conform to the legal requirements of your jurisdiction. It in no way constitutes legal advice. Tobey B. Marzouk is a partner with Marzouk & Parry, http://www.lawyers.com/marzouk&parrylaw, in Washington, D.C., where he focuses oncomputer, software, Internet and e-commerce law. Telephone: (202) 463-7293; e-mail: [email protected].

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