WHEREAS, Client desires to retain WerkPress to provide one or more of the following services to its website: strategic website discovery, information architecture, design, development, and other digital and interactive services.
NOW, THEREFORE, in consideration of the premises and mutual promises hereinafter contained, the parties hereto agree as follows:
1. Services to be Provided. WerkPress agrees to provide, and Client agrees to acquire, the services set forth in the Project Plan attached hereto as Exhibit A (the “Services”) in accordance with the terms and conditions of this Agreement.
2. Payment for Services.
a. Fees. All costs and fees, including any out-of-pocket expenses, are in U.S. dollars and are due and payable in accordance with the payment schedule listed in Exhibit A. All data handling, hosting and security (client to server) will be addressed and implemented by Client resources. Should additional details or functionality needs arise in discovery or throughout other stages, the project budget may change and will be resubmitted by WerkPress. This is an estimate of time for each phase in the project plan; Client can choose to add or remove deliverables within each phase, but cannot remove phase. Time will be billed hourly against the estimate. Because this is only an estimate, however, final costs may vary. WerkPress will provide Client with periodic updates on budget.
b. Payment Terms. Initial payment of 50% of the project estimate is required in order to enter our project queue. The balance of services, based on hours used are billed, are due at the completion of the project. Time will be reported to Client in weekly status calls and/or via email. Final payment must be paid in full upon receipt of invoice and prior to WerkPress transitioning files to Client. Payment terms are net 30 days of receipt of invoice. Overdue amounts shall bear interest at the lesser of one and one-half percent (1½ %) per month or the highest legal rate.
c. Taxes. Fees and costs are exclusive of all federal, state, municipal or other government excise, sales, use, occupational, or like taxes or customs duties now enforced or enacted in the future. Client agrees to pay any tax Westwerk may be required to collect or pay now or at any time in the future (including interest and penalties imposed by any governmental authority), which are imposed upon the sale or delivery of the Services provided.
d. Additional Costs. Expenses such as photography, fonts, web-based font licensing, theme or plugin purchases, copywriting, couriers, printing proofs and travel are not included and will be assessed as additional expenses. These services can be provided and/or sourced by WerkPress upon request. An industry standard markup of 17.65 percent will be applied to items sourced by WerkPress. Additional client needs may require execution of a change order agreement. On-site visits will be billed for meeting time, round trip travel and mileage. Payment is due upon receipt of invoice.
3. Client Responsibilities. Client understands that WerkPress is not an employee, and that this will be a collaborative, professional relationship of equals where mutual professional respect, courtesy and consideration are expected. Due to the virtual nature of the relationship, Client understands the importance of communication, especially via email, and agrees to respond to questions, requests and communications from WerkPress in a timely manner. Client understands that WerkPress is a business with other clients to serve, and requires fair, realistic notice in order to tend to requests and projects. Poor planning or miscommunications on the part of the Client will not constitute an emergency for WerkPress. Client understands that WerkPress may require detailed clarification of projects in order to meet expectations and provide the best support and highest quality work. Client’s responsibilities to the successful release of the Project are set forth in Exhibit B hereto and made part of this Agreement.
4. Warranty. Following client testing and written acceptance via email of services performed, WerkPress makes no guarantees as to the results and performance thereafter of those services, and therefore are not subject to Warranty. Client assumes full responsibility for final proofing and accuracy. WerkPress is not responsible for errors or omissions, and is not responsible for updates to browsers, devices, etc., and the effect on the previously provided services.
5. Termination. Either party may, upon giving written notice to the other party, terminate this Agreement (i) at any time in the event the other party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, or becomes subject to direct control by a trustee or similar authority; or (ii) if either party defaults in the performance of this Agreement, including non-payment of fees, or materially breach any of its materials terms after giving written notice to the breaching party and ten (10) days for the breaching party to cure such breach. Upon such termination, Client shall pay Westwerk for all amounts owing WerkPress for Services performed up to the point of termination. Sections 2, 3, 8, 9 and 10 shall survive any termination or expiration of this Agreement.
6. Ownership Rights. Except as expressly set forth on any Exhibit A and upon full payment of Fees due under this Agreement, the Services provided under this Agreement constitutes a “work for hire” as defined under U.S. and other relevant copyright laws to the fullest extent permitted, are the exclusive property of Client and shall not be used for any other purpose or used by anyone other than Client. In the event that the Services do not qualify as works for hire, WerkPress hereby assigns to Client all right, title, interest and copyright in the Services and WerkPress agrees to execute, from time to time, all documents necessary to confirm such assignment promptly upon request.
Notwithstanding the foregoing, the tools, processes, reports, formulas, existing code (as well as other background technologies), any new functionality created by WerkPress in providing the Services hereunder (except Client-owned data or intellectual property) and any other proprietary information of WerkPress shall be and remain the property of WerkPress exclusively. Client shall have no right, title or interest in or to any products, services or materials except as expressly set forth in this Agreement.
Current wording: WerkPress may leverage existing code in its possession (as well as other background technologies) to produce portions of the deliverables. Existing functionality and new functionality created by WerkPress for this project may be reused by WerkPress in any future project(s) or for any future purpose WerkPress may desire (this assumption does not apply to any client-related data or intellectual property).
7. Original Design Files. Client can request original design files. WerkPress reserves the right to bill hourly for compiling and packaging files for client.
8. Confidential Information. In order to provide the Services offered hereunder, either party might need to provide “Confidential Information” to the other party. “Confidential Information” as used in this Agreement, shall mean any nonpublic information provided by one party (“Disclosing Party”) to the other (“Receiving Party”) either directly or indirectly, in writing, orally, or by inspection of tangible objects which is proprietary to a party or designated as Confidential Information or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. Confidential Information shall include, without limitation, system and server passwords, financial statements, financial forecasts and projections, file layouts, marketing strategies, business, product or acquisitions plans, current business relationships or strategies, procurement requirements, purchasing, manufacturing, employees, contracts, customer lists, business forecasts, sales and merchandising, and marketing plans and information. Confidential Information shall not include information which: (a) is or becomes available to the general public through no fault of either party; (b) is independently developed by non-disclosing party; (c) is rightfully received by the non-disclosing party from a third party without a duty of confidentiality; or (d) is required to be disclosed by court order or operation of law. Before disclosing any Proprietary Information under court order or operation of law, the non-disclosing party shall provide the Disclosing Party reasonable notice and the opportunity to object to or limit such disclosure.
Both WerkPress and Client agree that Confidential Information provided by the other will: 1) be handled in the same manner that it handles its own confidential information of equal importance, but not less than a reasonable degree of care, for a period of three (3) years after the date of receipt; 2) not be disclosed to any third party without the prior written consent of the other party; 3) be used only in furtherance of the objectives of this Agreement; (4) be disclosed only to its employees or WerkPress with a need-to-know, provided such employees or WerkPress has executed agreements imposing on them the duty to maintain proprietary information in confidence to the same extent imposed herein; and (5) upon termination or expiration of this Agreement all Confidential Information shall be immediately destroyed by the Receiving Party or returned to the Disclosing Party. If destroyed, the Receiving Party shall certify in writing to the Disclosing Party that all such information, including all copies, has been destroyed.
9. Limitation Of Liability. WERKPRESS’ENTIRE LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT, IS LIMITED TO A REFUND OF THE FEES PAID FOR THE SERVICE THAT GAVE RISE TO THE CLAIM. IN NO EVENT SHALL WERKPRESS BE LIABLE FOR CLIENT’S COST OF PROCURING SUBSTITUTE SERVICES. IN NO EVENT WILL WESTWERK BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR OTHER DAMAGES WHETHER OR NOT WERKPRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Indemnification. Client agrees to defend, indemnify and hold harmless (including payment of reasonable attorneys’ fees) WerkPress, and its shareholders, officers, directors, employees, and agents (collectively, the “Indemnified Party”) against any and all claims, judgments, costs, damages, losses, penalties, or liabilities which occur, arise out of or result from, in whole or in part, any activity related to this Agreement and the work provided herein. Client’s obligation to indemnify any Indemnified Party will survive the expiration or termination of this agreement by either party for any reason.
11. General Terms.
a. Assignment. Client may not assign this Agreement or any transactions associated with this Agreement without the written consent of WerkPress.
b. Non-Solicitation. During the performance of any Services under this Agreement and for a period of twelve (12) months after completion of all Services under this Agreement, neither party shall hire or solicit for hire the employees of the other with whom it has had contact in connection with the performance of Services under this Agreement.
c. Independent Contractor. WerkPress and Client shall at all times act as, and represent themselves to be, independent contractors, and not agents or employees of the other. This Agreement does not create a joint venture or Clientship, and neither party has the authority to bind the other to any third party.
d. Force Majeure. WerkPress shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole on in part to factors beyond WerkPress’s reasonable control.
e. Applicable Law. The laws of the State of Minnesota shall govern this Agreement, without giving effect to its conflicts of law rules.
f. Notices. Any notice, consent or approval required or permitted under this Agreement shall be submitted in writing via email.
g. Waiver. Any waiver of or modification to the terms of this Agreement will not be effective unless executed in writing and signed by WerkPress. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other provisions of this Agreement. In the event of any inconsistency between this Agreement and any other related agreements between Client and WerkPress, the terms of this Agreement shall prevail.
h. Entire Agreement. This Agreement constitutes the entire understanding between the parties, and supersedes all prior agreements and negotiations, whether oral or written. There are no other agreements between the parties, except as set forth in this Agreement. No supplement, modification, waiver or termination of this Agreement shall be binding unless in writing and executed by the parties to this Agreement.
IN WITNESS WHEREOF, the Parties hereto, through their duly authorized officers, who personally warrant their authority to so act, have read and executed this Agreement via accepting the electronic estimate as of the Effective Date.