1. DEFINITIONS

As used herein and throughout this Agreement:

1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.

1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.

1.4 Deliverables means the services and work product specified in the Proposal to be delivered by Developer to Client, in the form and media specified in the Proposal.

1.5 Developer Tools means all design tools developed and/or utilized by Developer in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

1.6 Final Art means all creative content developed or created by Developer, or commissioned by Developer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Developer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

1.7 Final Deliverables means the final versions of Deliverables provided by Developer and accepted by Client.

1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Developer and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.

1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

1.10 Services means all services and the work product to be provided to Client by Developer as described and otherwise further defined in the Proposal.

1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

1.13 Content Support encompasses all requested changes to your website that are not considered technical support. They are usually design changes or content changes in nature. Any contracted Content Support hours do not roll over or accrue. This is typically invoiced to you at the current Content Support rate.

1.14 Tech Support encompasses all background functions that drive the website or other web properties. For the purposes of these Terms and Conditions, Tech Support is limited to any technology that we build or implement on your behalf from scratch. It expressly excludes technology that others have built or will build on your behalf. Any technology issues that arise from others’ technology solutions built for you that we troubleshoot or fix for you may incur the current Content Support rate.

2. PROPOSAL

The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

3. FEES AND CHARGES

3.1 Fees. In consideration of the Services to be performed by Developer, Client shall pay to Developer fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

3.2 Expenses. Client shall pay Developer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for extra plugins for functionality, telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Developer’s standard markup of 15%, and, if applicable, a mileage reimbursement at $0.33 per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Developer with Client’s prior approval.

3.3 Additional Costs. The Project pricing includes Developer’s fee only. Any and all outside costs including, but not limited to, third party developer fees, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, domain name annual renewals, additional SSL certificate install fees or services, additional bandwidth purchase, and online access, will be billed to Client unless specifically otherwise provided for in the Proposal.

3.4 Invoices. All invoices are payable within 14 days of receipt. A monthly service charge of 2.8% (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Developer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.

4. CHANGES

4.1 General Changes, aka Content Support. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges (Content Support) for changes requested by Client which are outside the scope of the Services on a time and materials basis, at the market rate (if you are not a Spark Sites member) or at half the market rate (if you are a Spark Sites member). Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Developer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.

4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 10% of the time required to produce the Deliverables, and or the value or scope of the Services, Developer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Developer.

4.3 Timing. Developer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Developer. The Developer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Developer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Developer’s bligations under this Agreement.

4.4 Testing and Acceptance. Developer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Developer, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Developer will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

4.5 Rush Jobs. Rush jobs are defined as a non-emergency job requested to be completed in less than 5 business days. These may incur a charge of $300 one-time rush fee. [Addition: 2022-07-26] Alternatively, you may be estimated and invoiced at the “Market Rate” as opposed to your “Member Rate”.

4.6 Emergency Support. The only emergency request is if your site is not viewable by the public. This is known as a “pageok” (when the words ‘pageok’ appear at the top of the page) or an Error 500 (when the words ‘Error 500’ appear on the screen). If the site says, ‘Briefly down for maintenance’, this is NOT an emergency. (Your site is simply updating.)

4.7 Meetings. Client acknowledges that all meetings will be considered “Content Support” hours and will be deducted as such from the agreed upon Content Support hours in your agreement. This is to ensure that we spend more time delivering your service than talking about delivering your service. It is to prevent the slow and soul-crushing experience known as “death by meeting”. A reasonable alternative is to simply submit your detailed requests to support@stateofthespark.com and allow the correspondence by email. You can also request to be added to our project management software at the time. If you do request access to this software, you agree to use it instead of email or text messenger.

5. CLIENT RESPONSIBILITIES

Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

(a) coordination of any decision-making with parties other than the Developer;

(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and

(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, or incorrect brand mentions, remain in the finished product, Client shall incur the cost of correcting such errors as well as any liability to the accuracy of the content present on the Client website; and

(d) the client is responsible for State and Local taxes for e-commerce in whatever area they are doing business and Spark Sites will not be held liable for taxes. It is the responsibility of the seller to ensure proper taxes are being charged initially and ongoingly.

6. ACCREDITATION/PROMOTIONS

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Developer’s name in the form, size and location as incorporated by Developer in the Deliverables, or as otherwise directed by Developer. Developer retains the right to reproduce, publish and display the Deliverables in Developer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

7. CONFIDENTIAL INFORMATION

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

8. RELATIONSHIP OF THE PARTIES

8.1 Independent Contractor. Developer is an independent contractor, not an employee of Client or any company affiliated with Client. Developer shall provide the Services under the general direction of Client, but Developer shall determine, in Developer’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Developer and the work product or Deliverables prepared by Developer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.

8.2 Developer Agents. Developer shall be permitted to engage and/or use third party Developers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Developer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.

8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Developer, employee or Design Agent of Developer, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Developer shall be entitled to an agency commission to be the greater of, either (a) 30 percent of said person’s starting salary with Client, or (b) 30 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Developer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.

8.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Developer, and Developer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Developer.

 9. WARRANTIES AND REPRESENTATIONS

9.1 By Client. Client represents, warrants and covenants to Developer that:

(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,

(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,

(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials,

(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables,

(e) Client accepts responsibility and liability of any content on or in the Client Content that they delegate to the Developer to obtain and use on their website, and

(f) Client accepts responsibility and liability for the ADA compliance of their own website based on their decision(s) whether or not to utilize the services or products of the Developer.

9.2 By Developer

(a) Developer hereby represents, warrants and covenants to Client that Developer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) Developer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Developer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Developer, Developer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Developer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Developer’s knowledge, the Final Art provided by Developer and Developer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Developer shall be void especially in the case where Client directs Developer to use content from third party content.

(c) Except for the express representations and warranties stated in this agreement, Developer makes no warranties whatsoever, Developer explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.

 10. INDEMNIFICATION/LIABILITY

10.1 By Client. Client agrees to indemnify, save and hold harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Developer shall promptly notify Client in writing of any claim or suit;

(a) Client has sole control of the defense and all related settlement negotiations;

(b) Developer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Developer in providing such assistance. And,

(c) Client expressly indemnifies, saves, and holds harmless the Developer of any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under the Americans with Disabilities Act of 1989 (also known as the ADA) and its subsequent titles and amendments.

10.2 By Developer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Developer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Developer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that

(a) Client promptly notifies Developer in writing of the claim;

(b) Developer shall have sole control of the defense and all related settlement negotiations; and

(c) Client shall provide Developer with the assistance, information and authority necessary to perform Developer’s obligations under this section. Notwithstanding the foregoing, Developer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Developer.

10.3 Limitation of Liability. The services and the work product of Developer are sold “as is.” In all circumstances, the maximum liability of Developer, its directors, officers, employees,  design agents and affiliates (“Developer Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Developer.  In no event shall Developer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Developer, even if Developer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

11. TERM AND TERMINATION

11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

(a) In the case where a website design was purchased with a support membership, the term shall commence upon the Effective Date and shall remain effective until either i.) 12 months have passed, or ii.) the Client shall pay any total balance remaining from a 12-month support membership less the number of months that have already been paid.

11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or

(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.

11.3 In the event of termination, Developer shall be compensated for the Development or Management Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due at the time of termination, or (c) hourly fees for work performed by Developer or Developer’s agents as of the date of termination, whichever is greater; and Client shall pay all outstanding expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.

11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Developer grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

12. GENERAL

12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Developer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.

12.3 Assignment. Client may not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the Developer. The Developer may assign, in writing or orally, or encumber its rights or obligations under this agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the Client.

12.4 Force Majeure. Developer shall not be deemed in breach of this Agreement if Developer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Developer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Developer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Developer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Florida without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Florida. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Developer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Developer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

12.7 Headings. The numbering, captions and indentations of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A below, and Name(s) of any other documents.

By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Developer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Developer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Developer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Developer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.

1.3 Preliminary Works. Developer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Developer within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Developer.

1.4 Original Artwork. Developer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Developer within 30 days of completion of the Services.

1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Developer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Developer for use by Client as a Trademark. Developer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.

1.6 Developer Tools. All Developer Tools are and shall remain the exclusive property of Developer. Developer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Developer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Developer Tools comprising any software or technology of Developer.

2. RIGHTS TO FINAL ART

2.1 Exclusive license, with modification rights:

For print AND/OR online/interactive AND/OR three-dimensional media: Developer hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.

2.2 Liquidation for unlicensed use:

Client’s use of the Final Art shall be limited to the usage rights granted herein for the Project only. Use of the Final Art, Deliverables or any derivative works thereof by Client at any other time or location, or for another project or outside the scope of the rights granted herein require an additional fee and Developer shall be entitled to further compensation equal to 50% of the original Project fee unless otherwise agreed in writing by both parties. In the event of non-payment, Developer shall be entitled to pursue all remedies under law and equity.

1. SUPPORT SERVICES

1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first two (2) months following expiration of this Agreement (“Warranty Period”), if any, Developer shall provide up to three (3) hours of Support Services at no additional cost to Client. Additional time shall be billed at Developer’s regular hourly rate, then in effect upon the date of the request for additional support.

1.2 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Developer will provide Support Services for a total of 12 months (the “Maintenance Period”) for a monthly fee then in effect OR Developer’s hourly fees then in effect. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.

2. ENHANCEMENTS

During the Maintenance Period, Client may request that Developer develop enhancements to the Deliverables, and Developer shall exercise commercially reasonable efforts to prioritize Developer’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Developer’s then in effect price for such services.

3. ADDITIONAL WARRANTIES AND REPRESENTATIONS

3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Developer represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Developer, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Developer’s sole liability for a breach of this Section is the obligation of Developer to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Developer, Developers sole obligation shall be to substitute alternative Third Party Materials.

3.2 Developer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Developer represents and warrants that, to the best of Developer’s knowledge, the Developer Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.

4. COMPLIANCE WITH LAWS

Developer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

5. NO ROLL-OVER MINUTES

Under no condition do minutes accrue or “roll over”. Any contracted Content Support hours that remain unused at the end of each month do not accrue.

1. PHOTOGRAPHS OF THE PROJECT

Developer shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for Developer’s promotional purposes in accordance with Section 6 of the Basic Terms and Conditions of this Agreement.

2. ADDITIONAL CLIENT RESPONSIBILITIES

Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:

(a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;

(b) Provision of accurate and complete information and materials requested by Developer such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, color/material samples and all applicable codes, rules and regulation information;

(c) Provision of approved naming, nomenclature; securing approvals and correct copy from third parties such as, by way of example, not limitation, end users or donors as may be necessary;

(d) Final proofreading and written approval of all project documents including, by way of example, not limitation, artwork, message schedules, sign location plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;

(e) Arranging for the documentation, permissions, licensing and implementation of all electrical, structural or mechanical elements needed to support, house or power signage; coordination of sign manufacture and installation with other trades; and

(f) Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.

3. DEVELOPMENT

The Services shall include the selection and specifications for materials and development details as described in the Proposal. However, Client acknowledges and agrees that Developer is not a licensed website designer, and that responsibility for the design and development of all work performed under this Agreement (“Development”) is the sole responsibility of Client and/or its web developer, engineer or designer.

4. IMPLEMENTATION

Client expressly acknowledges and agrees that the estimates provided in the Proposal, at any time during the project for implementation charges such as, including, but not limited to, development or installation are for planning purposes only. Such estimates represent the best judgment of Developer or its consultants at the time of the Proposal, but shall not be considered a representation or guarantee that project bids or costs will not vary. Client shall contract and pay those parties directly responsible for implementation services such as development or installation (“Implementation”). Developer shall not be responsible for the quality or timeliness of the third-party Implementation services, irrespective of whether Developer assists or advises Client in evaluating, selecting or monitoring the provider of such services.

5. COMPLIANCE WITH LAWS

Developer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the applicable rules and regulations. However, Developer is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client. Developer shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.