1. Vologon Productions, LLC will provide consulting services to the Client relating to the creation or modification of a Website. The specific nature of the services to be provided by Vologon Productions, LLC will be as specified in the Proposal. Subject to any lawful restraint imposed upon it by any other party (such as an obligation as to confidence), Vologon Productions, LLC will make available to the Client all knowledge, information and expertise in its possession in performing the Services. If the Client wishes Vologon Productions, LLC to perform any services other than those specified in the Proposal (including without limitation to provide any additional functionality) or to provide further or other Products or software, then Vologon Productions, LLC shall be entitled to quote the Client separately for the provision of those services or the provision of those products or software. If the Client accepts that quotation then the provisions of this Agreement will apply to the provision of those additional services, products or software.
2. Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the date specified in the Proposal.
3. Unless specifically stated as a fixed price quote, any cost estimates that are or have been given by Vologon Productions, LLC are estimates only. Actual time spent and Products supplied may be used as the basis for billing.
Reporting and Meetings
4. The Client shall make its employee (specified in the Proposal or such other person as the Client shall nominate in writing) (the “Client Contact”) available to meet with Vologon Productions, LLC when reasonably required by Vologon Productions, LLC for the purposes of discussing the status of the Services. Vologon Productions, LLC will meet regularly with the Client Contact (by remote communication facility if necessary) and report to the Client on the status of the Services.
5. Vologon Productions, LLC will not disclose to any third party or use other than for the purposes of this Agreement any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes relating to the equipment, the products, services, process or business strategies offered or employed by the Client. This obligation of confidence will cease to apply in relation to information that Vologon Productions, LLC is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Vologon Productions, LLC of its obligations of confidence under this Agreement.
Consulting Rates, and Other Expenses
6. Vologon Productions, LLC will provide Services to the Client and will be entitled to charge the Client for such Services at the rates specified in the Proposal.
7. Vologon Productions, LLC shall be entitled to provide the Services remotely from its own premises and will not be required to attend the Client’s premises. If Vologon Productions, LLC is required to attend the Client’s premises for any reason pursuant to this Agreement, the Client will reimburse Vologon Productions, LLC for reasonable transport and/or accommodation expenses incurred by Vologon Productions, LLC in doing so. However this does not include transport or accommodation expenses where the Client’s premises are located within 50 Miles of 25587 Conifer Rd, Ste 105, Conifer, Colorado 80433.
8. The Client authorizes Vologon Productions, LLC to obtain access to the Client’s computing facilities using Vologon Productions remote means of access for the purposes of providing the Client with Services.
9. Vologon Productions, LLC will not use the Means of Access (or any other methods of remote access) to access the Facilities for any purpose other than to provide the Services. However, Vologon Productions, LLC shall be permitted to gain remote access to the Facilities for lawful purposes using any publicly available means (such as the World Wide Web), which do not require special authorization.
10. Vologon Productions, LLC will take the following steps to ensure the security of the Facilities (insofar as the use of Vologon Productions, LLC systems and the Means of Access are concerned):
a) ensuring that no passwords are stored in easily recognizable form on Vologon Productions, LLC own systems in circumstances where a breach of Vologon Productions, LLC own internal security may reveal them;
b) ensuring that only those employees and contractors of Vologon Productions, LLC who are required to access the Facilities using Vologon Productions, LLC systems and the Means of Access are able to do so;
c) ensuring that the Facilities are not capable of being accessed by a system or user, which transits Vologon Productions, LLC own systems, except as permitted by this Agreement.
11. The Client indemnifies Vologon Productions, LLC against any loss or damage arising directly or indirectly from any unauthorized use of the Facilities to which Vologon Productions, LLC has been granted remote access, provided that such unauthorized use has not arisen as the result of any material breach by Vologon Productions, LLC of its own obligations under Clause 10 of this Agreement.
12. The Client will also reimburse Vologon Productions, LLC for all expenses incurred by Vologon Productions, LLC on the Client’s behalf or in carrying out its obligations under this Agreement.
13. The Client will pay Vologon Productions, LLC for the cost of any Products (including any licensing that Vologon Productions, LLC is required to pay to obtain a sub-license in favor of the Client for any third party software) together with Vologon Productions, LLC own charge that it levies for handling and/or obtaining any relevant sub-licenses, domain names, SSL certificates, fonts, photography, etc…
Assistance and Work Flow
14. A minimum deposit is required to commence work. Once the deposit listed in the Proposal is received, work will commence.
15. Communication between the Developer and the Client is crucial to ensure that the ultimate publication will match the Client’s taste and needs.
16. The Client should continue to view updates to the site and express their preferences or dislikes to the Developer. Upon completion of the web site, an e-mail or letter and invoice will be sent to the Client advising the Client that the work has been completed. The Client must sign this document acknowledging that the work has been completed to their satisfaction and releasing the Developer. Final payment of the remaining balance plus any additional charges incurred will be due upon signing of the document and final approval has been given. Once final payment has been made, the Developer will release the site to the Client and activate.
17. The Client will provide Vologon Productions, LLC with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the Proposal, office facilities, and liaison with the necessary officers and employees of the Client) in order to permit Vologon Productions, LLC to efficiently provide the Services.
18. Vologon Productions, LLC may also supply the Client with Products (as ordered by Client and agreed by Vologon Productions, LLC) from time to time. In the context of this Agreement, “Products” means any hardware and/or third party software provided to the Client by or on behalf of Vologon Productions, LLC pursuant to this Agreement.
19. Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to the Client or Vologon Productions, LLC at the address set out in the Proposal or this Agreement or such other address nominated by a party in writing.
20. The Client may not assign any of its obligations under this Agreement without the prior written consent of Vologon Productions, LLC. However Vologon Productions, LLC may arrange for subcontractors to perform any of Vologon Productions, LLC obligations under this Agreement.
21. Vologon Productions, LLC will not be liable to the Client or to any third party for any non-performance or delay in the performance of its obligations under this Agreement, if events or conditions beyond its reasonable control cause the non-performance or delay and Vologon Productions, LLC gives the Client prompt notice thereof. In no event will this provision affect Client’s obligation to make payments to Vologon Productions, LLC under this Agreement except in respect of Services that are unable to be performed by Vologon Productions, LLC, until they can be performed.
22. A failure, delay, relaxation or indulgence by either Party in exercising any right, power or privilege conferred on the Party by this Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
23. If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then;
a) Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
b) In any case the offending provision must be severed from this Agreement the remainder of this Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this Agreement.
24. This Agreement shall be governed by and must be construed in accordance with the laws of Colorado and the Client irrevocably submits to the non-exclusive jurisdiction of the courts of that State.
25. Unless otherwise agreed in writing by Vologon Productions, LLC, the copyright and all other rights relating to any software provided to the Client by or on behalf of Vologon Productions, LLC pursuant to this Agreement (the “Intellectual Property”) will remain the property of Vologon Productions, LLC or where applicable its licensors.
26. Upon payment in full for the Services provided by or on behalf of Vologon Productions, LLC pursuant to this Agreement, Vologon Productions, LLC grants the Client a non-exclusive and non-transferable perpetual license to use the Intellectual Property for the Client’s own business purposes, and in the case of the third party software, will obtain a sub-license in favor of the Client in similar terms.
27. Vologon Productions, LLC warrants to the Client that to the best of its knowledge, it has the right to grant the licenses referred to in this Agreement, and the use by the Client of any software provided by Vologon Productions, LLC will not infringe the rights of any third party.
28. Vologon Productions, LLC also grants the Client the right to copy the Intellectual Property for the purposes of staff and subcontractor education and system backups. However, the Client must not copy any of the Intellectual Property for any other purposes.
29. The Client must not de-compile, disassemble, decrypt, extract or otherwise reverse engineer any part of any software that is provided to the Client by Vologon Productions, LLC without Vologon Productions, LLC prior written consent.
30. The Client must hold any software (in source and/or in object code) and other materials provided to the Client by Vologon Productions, LLC confidential. The Client must not disclose any of those materials to any third party without Vologon Productions, LLC prior written consent. The Client must also take all reasonable steps within its power to protect the Intellectual Property of Vologon Productions, LLC.
Cross Browser Compatibility
31. Our agreement contemplates the creation of a web site viewable by Mozilla Firefox (latest version) and Microsoft Internet Explorer (latest version). Compatibility is defined herein as all critical elements of each page being viewable in both browsers. Client is aware that some advanced techniques on the Internet, however, may require a more recent browser version and brand or plug-in. Client is also aware that as new browser versions of Internet Explorer and Firefox are developed, the new browser versions may not be backward compatible. If Client requests software package built specifically for one browser, cross-browser compatibility is out of the Developers control. In the absence of a Maintenance Agreement time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of our agreement.
Search Engine Registration
32. The Developer will optimize the Clients web site with appropriate titles, keywords, descriptions and text and thereafter submit the Client’s web site once to each of the free major search engines.
33. The Developer offers advanced search engine optimization and site promotion services. If advanced search engine optimization and site promotion services are desired then a separate agreement will be provided stating the services to be performed.
High Risk Activities
34. None of the software or the Products provided pursuant to this Agreement is designed or intended to be fault-tolerant or designed or intended for use as or for use where their failure or malfunction could lead to death, personal injury, or economic, physical or environmental damage (“High Risk Activities”). The term “High Risk Activities” includes but is not limited to on-line control equipment in hazardous environments requiring fail-safe performance (such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, banking or financial control or reporting systems, or security systems). The Client warrants that it will not use, distribute or resell any of the Products or the software for any High Risk Activities and that it will ensure that permitted end-users of such Products or software are provided with a notice in the form set out in this Clause. The Client will indemnify Vologon Productions, LLC for any loss, cost, damage or third party claim arising from the Client’s use of any of the Products in High Risk Activities or from any breach by the Client of this clause.
Third Party or Client Page Modification
35. Some Clients will desire to independently edit or update their web pages after completion of the site as a way to control costs and avoid the expense of a Maintenance Agreement. This is always an option for Clients of the Developer. Note however, that if the Client or an agent of the Client other than the Developer attempts to update the web site and damages the design or impairs the ability for the web pages to display or function properly, time to repair the web pages will be assessed at the hourly rate of $125.00. There is a one hour minimum. In this regard, Clients are encouraged to obtain a Maintenance Agreement.
36. Except for express undertakings to indemnify and any warranties set out in this Agreement:
a) To the extent permitted by the law, Vologon Productions, LLC expressly excludes all conditions and warranties whether express or implied.
b) Notwithstanding any other provision in this Agreement, in no event will Vologon Productions, LLC be liable to any party including the Client for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if Vologon Productions, LLC has been previously advised of the possibility of such damage. Further, liability for such damages shall be excluded, even if inclusive remedies provided hereunder fail their essential purpose. The Client will indemnify Vologon Productions, LLC and keep it indemnified from and against any claims by any third party for or in respect of such damages.
37. Certain provisions relating to the trading of goods and services and other statutes, rules and regulations in the United States of America may imply certain non-excludable warranties or conditions. To the extent that they are not permitted to be excluded, Vologon Productions, LLC liability for breach of such conditions or warranties and the Client’s sole and exclusive remedy in relation to such breaches shall be limited to:
a) in the case of Products or software or other goods supplied by Vologon Productions, LLC, at Vologon Productions, LLC option:
i) the replacement or repair of those Products or software or goods, or the supply of equivalent goods; or
ii) the payment of the cost of replacing or repairing the Products or software or goods or of acquiring equivalent goods; and/or
b) in the case of Services, at Vologon Productions, LLC option:
i) supplying the Services again; or
ii) the payment of the cost of having the Services supplied again.
38. The Client is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the Facilities.
39. The Developer understands that Clients may request significant design changes to pages that are already built to the Client’s specification. To that end, please note that our agreement does not include a provision for “significant page modification” or creation of additional pages in excess of our agreed page maximum. If significant page modification is requested after a page has been built to the Client’s specification, we must count it as an additional page. Some examples of significant page modification at the request of the Client include:
a) Developing a new structure to accommodate a substantial redesign at the Client’s request.
b) Recreating or significantly modifying the company logo graphic at the Client’s request.
c) Replacing more than 75% of the text to any given page at the Client’s request.
d) Creating a new navigation structure or changing the link graphics at the Client’s request.
e) Significantly reconfiguring the Client’s shopping cart with new product, shipping or discount calculation if an e-commerce enabled site has been selected by the Client. Agreement Non-exclusive
40. The Client acknowledges that Vologon Productions, LLC is providing Services to the Client on a non-exclusive basis and that Vologon Productions, LLC may provide services of the same or a similar nature as the Services to any other party.
41. The Client undertakes to Vologon Productions, LLC that it will not for a period of two years from the termination of this Agreement entice away or endeavor to entice away from Vologon Productions, LLC any employee of Vologon Productions, LLC. The Client acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Vologon Productions, LLC.
Laws Affecting Electronic Commerce
42. The Client agrees that it is responsible for complying with the laws, taxes, and tariffs related to e-commerce, and will hold harmless, protect, and defend the Developer and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the client’s use of Internet electronic commerce. Client also understands that the Developer can not provide legal advice.
43. Client agrees that the Developer may put a site credits link/image on the bottom of their web site establishing design and development credit. Client also agrees that the web site created for the Client may be included in the Developer’s portfolio.
Payment of Invoices
44. Vologon Productions, LLC will be entitled to invoice the Client on an interim basis at least monthly for progress payments for any Services performed or Products supplied during the previous month (or during any earlier period which has not previously been invoiced) together with such expenses as the Client is required to reimburse Vologon Productions, LLC. Such invoices shall contain such information and detail as the Client may reasonably require to permit the Client to account for the Services and Products (for instance, by attaching copies of any time sheets) reasonably prescribed by the Client.
45. All invoices rendered by Vologon Productions, LLC are payable within ten (10) days from the date of invoice. The Client agrees to pay Vologon Productions, LLC in full within this time period.
46. If the Client fails to supply the Developer with complete text and graphics content for all web pages contracted within six weeks of the date this contract was accepted, the remaining amount of the contract becomes due and payable. If the Client has not submitted complete text and graphics content within two months after acceptance of this contract, an additional continuation fee of 10% of the total contract price will also be assessed each month until the website is advertised.
47. If the Client fails to pay any invoice by the due date for payment, then without prejudice to Vologon Productions, LLC rights under this Agreement, the Client shall also pay Vologon Productions, LLC interest on the outstanding amount at the rate of 18% per month.
48. This Agreement may be terminated in the following circumstances:
a) By either party by giving the other party thirty (30) days notice in writing to that effect;
b) Immediately by Vologon Productions, LLC by notice in writing if the Client fails to remedy a breach of this Agreement (including any provision as to payment) within fourteen (14) days of receipt of a notice from Vologon Productions, LLC of such breach requiring it to do so; or
c) By either party immediately by notice in writing if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, Liquidator, provisional Liquidator, trustee or similar office of it or of any or all of its revenues and assets (“Insolvency Event”), and such Insolvency Event remains in existence in respect of such party as the time of service of the Notice.
49. On termination of this Agreement however occurring, all moneys unpaid by the Client pursuant to this Agreement will immediately become due and payable. If such moneys remain unpaid for a period of thirty days then (without prejudice to any other rights that Vologon Productions, LLC may have for breach of this Agreement or otherwise) Vologon Productions, LLC will be entitled to retake possession of the Products and to disable any software provided pursuant to this Agreement (including by remote means).
50. The Client’s obligations (including any obligations to indemnify) under clauses 11, 18 to 23 inclusive (Intellectual Property), 24 (High Risk Activities), 25 to 27 inclusive (Liability), and Vologon Productions, LLC obligations under clause 17 (Confidentiality) shall survive the termination of this Agreement for whatever reason.
51. Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or a mutually agreed upon Arbitrator suitor 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 or judgment in favor of the Developer.