| WEBSITE DEVELOPMENT AGREEMENT |
THIS WEBSITE DEVELOPMENT AGREEMENT (“Agreement”) is entered into by and between Earnlink Network, LLC, d/b/a Reliable Development, a Delaware limited liability company, located at 5580 La Jolla Blvd #332, La Jolla, CA 92037 (“Reliable Dev”) and the person or entity identified as Company in the requisite Work Order (“Client”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged. Client and Reliable Dev may be referred herein below singularly as “Party” or collectively as “Parties”. In the event that Reliable Dev is required to digitally sign or agree to additional terms during the provision of Services on behalf of Client, both Parties agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered. Therefore, any terms which appear on any website or platform not owned and operated by Reliable Dev shall be disregarded and deemed ineffective, being superseded by this Agreement as signed by both Parties.
WHEREAS, Reliable Dev creates customized WordPress Websites (“Services”); and
WHEREAS, Client desires to utilize such Services in conjunction with its business for website publishing and digital marketing activities;
WHEREAS, Client and Reliable Dev believe it is in their mutual interest and desire to enter into an agreement whereby Client requests Reliable Dev’s Services.
NOW THEREFORE, the parties agree to the following terms and conditions:
1.1. “Content” means all text, pictures, sound, graphics, video, and other data supplied by Client to Reliable Dev pursuant to Sections 2.1 or 4.1(c), as such materials may be modified from time to time.
1.2. “Development Fee” means the fees set forth in the applicable Work Order for website development services provided pursuant to Section 2.
1.3. “Domain Name” means the domain name provided by Client from time to time. The initial Domain Name is specified in the attached Work Order or any amendments thereafter.
1.4. “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible: (a) rights associated with works of authorship throughout the world , including but not limited to copyrights, moral rights, and mask-works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
1.5. “Delivery Schedule” means the schedule for development of the Website set forth in the Work Order.
1.6. “Reliable Dev Tools” means any object code and source code, which Reliable Dev has developed or will develop in the future or licenses from a third-party, excluding any code which Reliable Dev creates pursuant to this Agreement including HTML files, Java files, graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all documentation and any other deliverable prepared for Client by Reliable Dev in accordance with the terms of this Agreement.
1.7. “Specifications” means agreed upon requirements set forth in the Work Order, as amended or supplemented.
1.8. “User Content” means all text, pictures, sound, graphics, video, and other data provided by third-parties or Website users.
1.9. “Website” means the user interface, functionality and Content made available on pages under the Domain Name.
1.10. “Work Product” means all.
2. WEBSITE DEVELOPMENT.
2.1. Delivery of Initial Content. In the event Client is requesting its own Content be placed on the Website, Client shall deliver to Reliable Dev all Content that Client intends for Reliable Dev to incorporate into the Work Product (“Initial Content”). The Initial Content shall be in the format(s) specified in the Work Order.
2.2. Development. Reliable Dev shall provide design, programming, and other services as specified in the Work Order.
2.3. Reliable Dev Tools and Content License. Reliable Dev proprietary software, tools, and code (collectively “Reliable Dev Tools”) are incorporated into or are used in conjunction with the Website for distribution on the Website. During the term of this Agreement, Reliable Dev grants to Client a revocable, worldwide, non-exclusive, non-sublicensable or assignable, right to use, reproduce, distribute (through multiple tiers), publicly perform, publicly display, digitally perform, make, have made, use such Reliable Dev Tools for the sole purpose of Website functionality now known or hereafter known. This License terminates upon termination of this Agreement and Client shall have no rights to continue use of the Reliable Dev Tools thereafter. Notwithstanding the right to use Reliable Dev Tools, Client gains no other rights, title, or interest in Reliable Dev Tools. Reliable Dev retains all right title and interest in the Reliable Dev Tools throughout the world including any and all portions or copies thereof, trademarks, patents, trade names, copyrights and trade secrets including without limitation all related technical know-how and forward developments. The license granted herein shall not constitute a sale of the Reliable Dev Tools or intellectual proprietary rights derived therefrom. All derivative products, works, improvements, ideas, suggestions, or suggestions made by Client with respect to the Reliable Dev Tools, its improvements or modifications are and shall at all times be owned by Reliable Dev with all attendant right, title, and interest therein. In the event Client makes a suggestion, recommendation or improvement to the Reliable Dev Tools, Client shall assign and cause any third party associated with any such suggestion, recommendations or improvement to the Reliable Dev Tools to assign to Reliable Dev all right, title and interest that such Licensee or its associate may have in and to any derivative products, works, suggestions, ideas, improvements or modifications to the Reliable Dev Tools resulting therefrom.
2.4. Site Acceptance. Reliable Dev shall make available complete versions of the Website on a password protected server (“Development Site”) for Client’s review and acceptance. Client shall have five (5) days to review and evaluate the Website (“Review Period”) to assess whether the Website meets the specifications in the Work Order. Client will have fifteen (15) days to provide Reliable Dev with any requests pertaining to changes or additions. If Client has not requested changes within fifteen (15) days, Client is deemed to have accepted the Website.
3.1. If Client desires to modify the Website design, Client shall describe the additional services or deliverables to Reliable Dev (“Change Notice”). Within fifteen (15) business days of such Change Notice, Reliable Dev shall submit a change order proposal (“Change Order”) which includes a statement of any additional charges (if applicable) and adjustments to the Delivery Schedule resulting from the proposed Change Notice. Client shall have five (5) business days to provide written approval of the Change Order, whereby the Change Order will become a part of this Agreement and act as an amendment to the Work Order. Any additional deliverables or changes to the Website described in the Change Order shall be subject to Client acceptance.
4.1. Reliable Dev License. Reliable Dev hereby grants to Client a non-exclusive, non-sublicensable, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display, and digitally perform the Reliable Dev Tools only on or in conjunction with the Website.
4.3. Trademarks. Subject to the terms and conditions of this Agreement, each party hereby grants to the other party a limited, non-exclusive, non-sublicensable, royalty-free, worldwide license to use such party’s trademarks, service marks, trade names, logos or other commercial or product designations (collectively, “Marks”) for the purposes of creating content directories or indexes and for marketing and promoting the Website. The trademark owner may terminate the foregoing license if, in its sole discretion, the licensee’s use of the Marks does not conform to the owner’s standards. Title to and ownership of the owner’s Marks shall remain with the owner. The licensee shall use the Marks exactly in the form provided and in conformance with any trademark usage policies. The licensee shall not form any combination marks with the other party’s Marks. The licensee shall not take any action inconsistent with the owner’s ownership of the Marks and any benefits accruing from use of such Marks shall automatically vest in the owner.
5.1. Fees. Shall be set forth in the Work Order. Client shall be responsible for all fees set forth in the invoice as well as all sales, use, excise, and other taxes which may be levied upon either party in connection with this Agreement, except for taxes based on Reliable Dev’s net income.
6. RELIABLE DEV WARRANTIES.
6.1. Reliable Dev Warranties. Reliable Dev warrants that Reliable Dev Tools and Content shall not: (a) infringe on the Intellectual Property Rights of any third-party or any rights of publicity or privacy; or (b) contain any viruses, trojan horses, trap doors, back doors, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
6.2. DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN SECTION 6.1 OF THIS AGREEMENT, ALL SERVICES AND WORK PRODUCT PROVIDED OR DELIVERED BY RELIABLE DEV IS PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. RELIABLE DEV MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE APPLICATION OR THE OPERATION OR USE THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM RELIABLE DEV OR THROUGH OR FROM THE SERVICES OR PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. RELIABLE DEV HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. RELIABLE DEV HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. RELIABLE DEV DOES NOT WARRANT THAT THE APPLICATION WILL MEET ALL OF CLIENT’S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE. USE OF SERVICES AND WEBSITE IS AT CLIENT’S SOLE RISK ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
7. LIMITATION OF LIABILITY AND DAMAGES.
7.1.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RELIABLE DEV BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RELIABLE DEV’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY CLIENT AS FEES UNDER THE APPLICABLE WORK ORDER.
8.1. Client and its successors and assigns shall indemnify, defend, and hold harmless Reliable Dev, and its members, directors, officers, employees and agents, and its and their successors and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that Reliable Dev may incur or suffer as a result of a third-party claim or demand, which arise, result from, or relate to: (a) a breach of this Agreement; or (b) a breach of this Agreement by an agent, Client, vendors or other related party of Client; or (c) any breach of a third-party agreement provided by Management Services; or (d) Client’s services or products; or (e) any Client related user’s business practices and/or marketing practices; or (f) the use or distribution of the Website not in accordance with this Agreement.
8.2. Indemnification by Reliable Dev. Reliable Dev and its successors and assigns shall indemnify, defend, and hold harmless Client, and its shareholders, directors, officers, employees and agents, and its and their successors and assigns from and against any and all third-party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer as a result of a third-party claim or demand, which arise, result from, or relate to any claim of infringement solely related to the Work Product. Notwithstanding the foregoing, Reliable Dev shall have no liability or indemnity obligation for any such claim arising from: (a) the use of the Website or services and products advertised on the Website; (b) modifications or maintenance of the Website by a party other than Reliable Dev; or (c) or the use of the Website in any manner not authorized herein or in violation of this Agreement.
8.3. The foregoing indemnification obligations are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of the relevant claim; (b) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (c) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement other than for money damages without the indemnified party’s prior written approval. The indemnifying party will pay any and all costs, damages and reasonable attorney fees and reasonable expert witness fees awarded against the indemnified party and all expenses incurred by the indemnified party in connection with or arising from any such claim, suit or proceeding.
8.4. Notwithstanding anything contained herein to the contrary, neither Party shall be liable or required to indemnify the other party for such other Party’s gross negligence or willful misconduct.
9. CONFIDENTIAL INFORMATION.
9.1.“Confidential Information” includes this Agreement, any passwords used in connection with the Website, all Server Logs, all Reliable Dev Tools and documents related thereto, any Content which a Party designates as Confidential, and any other materials of which a Party designates as confidential or which a Party should reasonably believe to be confidential. Reliable Dev’s “Confidential Information” shall also be defined as the source code and any related code within Reliable Dev Tools. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third-parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. The foregoing restrictions on disclosure shall not apply to Confidential Information which is: (a) already known by the recipient; (b) becomes, through no act or fault of the recipient, publicly known; (c) received by recipient from a third-party without a restriction on disclosure or use; (d) independently developed by recipient without reference to the other party’s Confidential Information; or (e) disclosure is required under applicable law or by a governmental order, decree, regulation or rule provided that the recipient party gives written notice to the disclosing party as far in advance as possible prior to disclosure.
10.1.During the term of this Agreement and for a period of two (2) years after termination of this Agreement, Client shall not solicit, seek to employ, or hire Reliable Dev employees, the identities of which may be disclosed to Client during the term of the Agreement. In addition to Reliable Dev’s rights and remedies under this Agreement or at law, Client agrees that monetary damages for a breach of or a threatened breach of this Section 10 will not be adequate and that Reliable Dev shall be entitled to seek injunctive relief (including temporary and preliminary relief) without the need or requirement for the filing of a bond or other undertaking.
11. DISPUTE RESOLUTION AND CLASS ACTION BAR.
11.1. If any dispute arises under this Agreement, the Parties agree to submit the dispute to binding arbitration before the American Arbitration Association under the commercial rules in the State of California, San Diego County. The Parties agree that the binding arbitration will be conducted by a single arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding anything to the contrary contained herein, if Client does not pay all Fees due under this Agreement, the Parties agree that Reliable Dev may elect to resolve any nonpayment dispute by submission to a court located in the State of California, San Diego County. If any litigation or arbitration is necessary to enforce this Agreement or the terms thereof excepting therefrom payment obligations of Client, the prevailing Party shall be entitled to an award of reasonable attorneys’ fees, costs, and expenses. This Agreement will be governed by the laws of the State of California. Neither party shall participate in any class action against the other party in any capacity.
12. GENERAL PROVISIONS.
12.1. Independent Contractors. Each Party hereto is an independent contractor of the other party and nothing contained herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties, and neither Party shall be authorized to bind the other in any way. This Agreement is between the Parties and is not for the benefit of any third-party, directly, or indirectly including, if applicable, any User accessing the Software by means of an account established by Client.
12.2. Non-Assignment. Neither this Agreement nor the License granted hereunder nor any rights or obligations set forth herein may be assigned, delegated, subcontracted or otherwise transferred, by Client to any third-party, whether by operation of law or otherwise, without the express prior written consent of Reliable Dev; provided, however, that, this Section 15.2 shall not be construed to require the consent of the other party with respect to the assignment or transfer (by law or otherwise) of the license granted hereunder or any rights or obligations set forth herein in connection with the non-consenting party’s sale of all or substantially all of its assets or the sale or issuance of more than fifty (50%) percent of the non-consenting party’s voting equity.
12.3.No Waiver. The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. Except as provided herein, no remedy set forth in this Agreement is intended to be exclusive. No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement, and any approval or consent hereunder must be in writing and signed by the Party against whom enforcement is sought or the Party providing such approval or consent.
12.4.Force Majeure. Except for payment to Reliable Dev, no delay or failure of a party to perform any of its obligations under the Agreement shall be considered a breach of this Agreement to the extent it results from any cause beyond its control including any act of God, pandemic, earthquake, hurricane, flood, fire, natural catastrophe, severe weather, public emergency, accident, labor difficulty, strike, lock-out or other dispute, riot, civil commotion, insurrection, equipment or system failure or changes in any federal, state, or local laws, statutes, rules, regulations, or ordinances or other action of any governmental authority having jurisdiction (each a “Force Majeure Event”).
12.5.Invalidity of Provision. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to the prevailing law rather than voided, if possible, in order to achieve the intent of the Parties and in the event the remaining provisions of this Agreement shall remain in full force and effect and shall be fully binding upon the Parties.
12.6.Headings. The headings set forth in this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.
12.7.Notices. All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and addressed to the Legal Department of the respective party at the addresses set forth in the introductory paragraph to this agreement (or such other address as the parties may designate by written notice in the manner aforesaid), and shall be deemed to be given when delivered in person or when sent by facsimile (with receipt confirmed), or on the first business day after posting thereof with a nationally recognized overnight courier, or when received if sent by any other means.
12.8.Amendment. No amendments to this Agreement shall be effective unless made in writing and signed by the Parties.
12.9.Entire Agreement. This Agreement and any exhibits, or schedules referred to in this Agreement represent the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications or other understanding related to the subject matter of this Agreement. Except as otherwise provided in this Agreement, all modifications or amendments to this Agreement must be in writing signed by both Parties.
12.10.ELECTRONIC SIGNATURES. Client acknowledges and agrees that by clicking on the button labeled “Agree” or such similar links as may be designated by Reliable Dev to accept the terms and conditions of this Agreement, Client is submitting a legally binding electronic signature and is entering into a legally binding contract. Client acknowledges that its electronic submissions constitute its Agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”) or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY MEDIA COMPANY. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.