Fetching Web Design Terms and Conditions
a. “Agreement” means the entire content of this Agreement, the Proposal and any other supplement, exhibit, schedule or attachment.
b. “Client Content” means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Website.
c. “Copyright” means the property rights in original work of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
d. “Fetching Tools” means all design tools developed and/or utilized by Fetching in performance of this Agreement, 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.
e. “Final Website” means the final versions of Website provided by Fetching and accepted by Client.
f. “Final Works” means all creative content developed by Fetching, or commissioned by Fetching, exclusively for the Project and incorporated in the Website, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Fetching’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
g. “Preliminary Works” means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Fetching and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
h. “Project” means the services and work product specified in the Proposal to be delivered by Fetching to Client, in the form and media specified in the Proposal.
i. “Scope of Work” means the work to be completed in the Proposal, this Agreement, and any other incorporated document.
j. “Services” means all services and the work product to be provided to Client by Fetching as described and otherwise further defined in this Agreement and the Proposal.
k. “Third Party Materials” means proprietary third party materials which are incorporated into the Website, including without limitation stock photography or illustration.
l. “Trademark” means trade names, words, symbols, designs, logos or other devices or designs used in the Website to designate the origin or source of the goods or services of Client.
m. “Website” means the work product which is the subject of the Project.
n. “Working File” means all underlying work product and digital file utilized by Fetching to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
2. Scope of Work and Services
The Scope of Work will be completed according to the Proposal and any subsequent document(s) which are specifically incorporated herein and by this reference made a part hereof, as follows:
a. The Scope of Work will be undertaken and completed according to the schedule specified in the Proposal.
b. All additional work, Projects, and/or additions to the Scope of Work agreed upon by Fetching and Client are subject to the terms and conditions of this Agreement.
c. Estimates, Proposals, and any revisions or amendments thereto transmitted via email that receive email approval and confirmation from Client and Fetching are subject to this Agreement.
d. Client shall have ten (10) days from the date of the Proposal to accept the Proposal by executing the same and delivering it to Fetching with the required deposit. If Client does not deliver an accepted Proposal and deposit within the period specified it shall lapse. In the event the Client desires to continue negotiations for Services, a new Proposal must be presented by Fetching.
3. Deposit, Fees and Charges
a. Deposit. Prior to the commencement of Services under this Agreement and immediately upon execution of this Agreement, Customer shall pay a nonrefundable deposit of 50% of the total cost payable under this Agreement as listed on the Proposal.
b. Fees. In consideration of the Services to be performed by Fetching, Client shall pay to Fetching fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales taxes, even if calculated or assessed subsequent to the payment schedule.
c. Expenses. Client shall pay Fetching’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses; and (b) travel expenses including transportation, meals, and lodging, incurred by Fetching with Client’s prior approval.
d. Additional Costs. The Proposal includes Fetching’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography, videography, graphic design, artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees (“Additional Costs”), will be billed to Client separately unless specifically otherwise provided for in the Proposal.
e. Invoices. All invoices are payable within Fourteen (14) days of receipt. A monthly service charge of one and one-half (1.5%) percent 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 cost of collection including legal fees charged, and other expenses incurred in the collection of all sums due under this Agreement. Fetching reserves, the right to withhold delivery of Services and transfer of ownership of Final Website if any amounts owing to Fetching are not paid when due. All grants of licenses 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, owing under this Agreement.
f. Maintenance Fees. Maintenance Fees shall be assessed on a month-to-month basis, with a minimum monthly fee and/or hourly rate as set forth in the Proposal, shall be payable in any month when maintenance is necessary or required. Search engine re- submissions, other than the original submission included in the Proposal, shall be included in the Maintenance Fee.
g. Standard Hourly Rate. All Services outside of the Scope of Work shall billed at an hourly rate as set forth in the Proposal. This rate may change from time to time upon ten (10) days written notice to Client
4. Changes to Scope of Work or Proposal
a. General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided herein, Client shall pay additional charges for changes requested by Client which are outside the Scope of Work on a time and materials basis, at Fetching’s standard hourly rate. 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. Fetching may extend or modify any delivery schedule or deadlines in the Proposal as may be required by such changes.
b. Change Request. If Client desires to change the Scope of Work after acceptance of this Agreement, the Client shall deliver to Fetching a written change request describing the changes in detail. Within five (5) days of receipt of a change request, Fetching will respond in writing as to whether Fetching is able and willing to make such changes, and if so, how such changes will affect this Agreement. Unless, within 24 hours of receipt, the Client objects to Fetching=s written response identifying the changes Fetching agrees to, and how such changes will affect this Agreement, Fetching=s written response shall be deemed an amendment to this Agreement. Fetching will evaluate each change request at its standard hourly rate which shall be due and payable by Client even if the change request is not accepted by Fetching or agreed to by Client.
c. Timing. Fetching 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 the Project within the time identified for such review and to promptly either, (i) approve the current status of the Project in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Fetching. Fetching shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Fetching’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 Project requested by Client may delay delivery of the Final Website. Any such delay caused by Client shall not constitute a breach of any term, condition or Fetching’s obligations under this Agreement.
5. Testing and Acceptance
Fetching will exercise commercially reasonable efforts to test those phases of the Project requiring testing and to make all necessary corrections prior to providing Final Website to Client. Client, within five (5) business days of receipt of each phase of the Project, shall notify Fetching, in writing, of any failure of such Website to comply with the specifications set forth in the Proposal, or of any errors or corrections. Any such written notice shall be sufficient to identify with clarity any errors or corrections, and Fetching will undertake to correct the same in a commercially timely manner. Any and all errors or corrections shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, each phase of the Project presented to client, including the Final Website shall be deemed accepted.
6. Client Responsibilities
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
a. Complying with all terms and conditions of this Agreement;
b. coordination of any decision-making with parties other than Fetching involved in the Project;
c. providing Fetching with Client Content in a form suitable for reproduction or incorporation into the Website without further preparation, unless otherwise expressly provided in the Proposal;
d. final proof reading of all Website content, and in the event that Client has approved any phase of the Project and/or the Final Website but errors remain in the Final Website, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors; and
e. ensuring that all Client Content given by Client to Fetching, used in developing Website is accurate, legal, does not infringe on any Copyright, Trademark, license, right, or other intellectual property right and conforms to applicable standards in Client’s industry, profession, or business.
All displays or publications of the Website shall bear accreditation and/or Copyright notice in Fetching’s name in the form, size and location as incorporated by Fetching in the Website, or as otherwise directed by Fetching. Fetching retains the right to reproduce, publish and display the Website in Fetching’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 Website 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.
a. Original Ownership. Unless otherwise agreed between Fetching and Client, all original icons, logos, illustrations, and graphic designs created by Fetching for use in the Project, including Fetching Tools, Preliminary Works and Final Works are the exclusive property of Fetching.
b. Transfer. Unless otherwise agreed between Fetching and Client, on receipt by Fetching of all sums due hereunder the Client shall have a nonexclusive license to use the Final Works appearing on the Client’s Final Website. Fetching agrees that its Final Works produced in the performance of this Agreement shall remain the exclusive property of Fetching, and Client agrees that it will not sell, transfer, publish, disclose, or otherwise make all or a portion of the Final Works available to third parties without Fetching's prior written consent.
9. Rights To Final Art
a. License. Unless otherwise agreed between Fetching and Client, Fetching grants to Client a non-exclusive, perpetual and worldwide license to use and display the Website in accordance with this Agreement. The rights granted to Client are for use of the Website in its original form only. Client may not change, create derivative works or extract portions of the Website.
b. Unlicensed Use. Additional use of the Website by Client outside the scope of the license granted above requires additional fees. Fetching shall be entitled to further compensation equal to fifty percent (50%) of the total original Project fee unless otherwise agreed in writing by both parties. In the event of non-payment, Fetching shall be entitled to pursue all remedies under law and equity.
10. Rights To Project Other Than Final Art
a. C l i e n t C o n t e n t . Client Content is the exclusive property of the Client. Client grants Fetching a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Fetching’s performance of the Services and limited promotional uses of the Website as authorized in this Agreement.
b. Preliminary Works. Fetching retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Fetching within thirty (30) days of completion of the Services.
c. Fetching Tools. All Fetching Tools are and shall remain the exclusive property of Fetching. Fetching grants Client, a nonexclusive, nontransferable, perpetual, worldwide license to use Fetching Tools solely to the extent necessary with the Website.
d. Squarespace or Other Web Design Service. If services provided by Fetching utilizes Squarespace or other website design service, Client agrees to be bound by and take the Final Website subject to the Terms of Service of Squarespace or other web design service, including any monthly or annual fees charged by Squarespace or other web design service.
11. Confidential Information
Each party acknowledges that in connection with this Agreement it may receive certain confidential, proprietary, technical, business information, records, electronic media, and materials, of the other party, including without limitation, preliminary work (“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.
12. Relationship of the Parties
a. Independent Contractor. Fetching is an independent contractor, not an employee of Client or any company affiliated with Client. Fetching shall provide the Services under the general direction of Client, but Fetching shall determine, in Fetching’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. 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.
b. Fetching Agents. Fetching shall be permitted to engage and/or use third parties or other service providers as
independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Fetching shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
c. Non 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 Fetching, and Fetching shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Fetching.
d. No Relationship. Nothing contained in this Agreement shall be deemed or construed by the parties, or by any third party, to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association between Fetching and Client.
13. Representations and Warranties
a. Client Representations and Warranties. Client represents, warrants and covenants to Fetching 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 is accurate, legal, conforms to ethical standards of the Client’s industry, profession or business, does not infringe the rights of any third party, and use of the Client Content as well as any Trademark or Copyright 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, and (d) Client shall comply with all Federal, State, and local laws and regulations as they relate to the Project.
b. Fetching Representations and Warranties. Fetching represents and warrants to Client that:
- (a) Fetching will provide the Services identified in the Agreement in a professional and workmanlike manner;
- (b) Fetching shall secure all necessary rights, title, and interest in and to the Website, sufficient for Fetching to grant the intellectual property rights provided in this Agreement;
- (c) To the best of Fetching’s knowledge, the Website will not violate the rights of any third party;
- (d) If Client or third party modifies the Website or uses the Website outside of the scope or purpose of this Agreement, all representations and warranties of Fetching shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, FETCHING MAKES NO WARRANTIES WHATSOEVER. FETCHING 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.
14. Limitation of Liability
THE SERVICES AND THE FINAL WEBSITE OF FETCHING ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF FETCHING, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“FETCHING 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 FETCHING. IN NO EVENT SHALL FETCHING 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 FETCHING, EVEN IF FETCHING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF THIS LIMITED REMEDY.
15. Indemnification of Fetching
a. Client covenants and agrees that it will at all times protect, defend, indemnify, and save and keep Fetching, its owners, employees and agents (herein “Indemnitees”), harmless against and from any and all liability, claims, loss, cost, damage or expense, arising from any intentional or negligent act or omission of Client, or its officers, directors, shareholders, members, employees, invitees to its website, or agents, causing injury to any person or property whomsoever or whatsoever during the term of this Agreement and during any period in which Client is using Fetching’s Final Works.
b. Client further covenants and agrees that it will protect, defend, indemnify, and save and keep harmless Indemnitees against and from any and all loss, cost, damage, or expense, including reasonable attorney's fees and costs, arising out of any failure of Client in any respect to comply with and perform all the requirements and provisions of this Agreement.
c. This obligation to indemnify Indemnitees shall survive the termination of this Agreement.
d. If any claim or liability shall be asserted against the Client which would give rise to a claim by one or more Indemnitees against Client for indemnification under the provisions of this Agreement, the Client shall promptly notify Indemnitee in writing of the same, and the Client shall, at its own expense, compromise or defend any such claim; provided that Indemnitee may, at its own cost and expense, join and cooperate with Client in defending or compromising such claim.
16. Duration and Termination
a. Duration. This Agreement shall commence when both parties execute the Proposal and shall continue until the Project is complete and delivered as provided herein, or until the Agreement is otherwise terminated.
b. Termination for Cause. Either party may terminate this Agreement at any time, on ten (10) days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that ten (10) day period.
c. Amount Due Upon Termination. In the event of termination, Client shall pay Fetching for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all expenses, fees, and Additional Costs incurred through the date of termination.
a. Website Hosting. Installation of the website on the World Wide Web is limited to the uploading of all necessary files to the host, and testing of functionality. No registration of the Website with search engines will be undertaken unless otherwise agreed with the Client.
b. Search Engines. Fetching does not guarantee listings on search engines and the Client accepts that it is search engines and not Fetching who determine whom they list and whom they will not. The Client further understands there is no guaranteed placement or rank on any search engine and that a new website may never even appear on a search engine at all. Fetching does not control any search engines algorithm. Placement and visibility of a website can change daily, weekly and even hourly, on any search engine.
c. Enforcement. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action against Company by Contractor, whether predicated on this Agreement or otherwise.
d. Assignment and Delegation. Client may not assign any rights or delegate any duties hereunder without Fetching’s express prior written consent.
e. Nonwaiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.
f. Headings. The headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
g. Severability Should any term or provision portion of this Agreement be held unenforceable or invalid for any reason, the remaining terms and provisions shall be unaffected by the invalidity of such provision.
h. Applicable Law and Venue. This Agreement and the rights and liabilities of the parties shall be governed in accordance with the laws of the State of Washington. Venue for any action pertaining in any way to this Agreement shall be in Spokane County, State of Washington.
i. Attorney Fees and Costs. In the event of dispute or breach of this Agreement, or if this Agreement is turned over for collection, whether or not suit is brought, the Client agrees to pay the cost of collection, including reasonable attorney fees. In the event it shall become necessary for either party to obtain the services of an attorney to enforce the provisions of this Agreement, the defaulting party shall pay the prevailing party all damages and expenses resulting from the default, including but not limited to all reasonable attorney's fees, court costs, witness fees, and any other legal expenses incurred by the prevailing party.
j. N o t i c e s . Any notice or other communication required or permitted to be given to either party hereto, shall be in writing, and shall be deemed to have been properly given and to be effective (a) on the date of delivery if delivered in person, or (b) on the 3rd day after mailing if mailed through the U.S. Postal system by first-class, certified mail, return receipt requested, postage paid, to the respective addresses of the parties stated in the Proposal, or to such other place as either party may hereafter designate to the other party in writing. In lieu of receiving or transmitting documents in paper format, Fetching and Client agree, to the fullest extent permitted by law, to accept electronic delivery of any document that may be required to delivered to Fetching or Client in connection with this Agreement. Electronic delivery may be made via electronic mail system or facsimile transmission. Client hereby consents to any and all procedures Fetching has established or may establish for electronic delivery and acceptance of any such document that Fetching or Client may be required to deliver, and agrees that any electronic delivery is the same as, and shall have the same force and effect as physical delivery of the original document.
k. Complete Agreement. This Agreement constitutes the entire Agreement of the parties and shall supersede all previous communications, representations or understandings, either oral or written, between the parties relating to the subject matter hereof.
l. Modification. No amendment or modification of this Agreement shall be valid or binding upon the parties unless made in writing, signed by both parties.
m. Heirs and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives and permitted successors and assigns.
n. Electronic Signature and Counterparts. This Agreement may be executed in two or more parts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The counterparts of this Agreement and all ancillary documents may be executed and delivered by facsimile or other electronic signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received. At the request of either party, the parties will confirm electronically transmitted signatures by signing an original document.