Contract Agreement Terms & Conditions
Funnel Boost Media encourages our clients to read and understand the agreements set forth on your projects. If you have any questions, comments, or concerns, please feel free to contact a representative using the form to the right.
For simple viewing, we have created quick links to take you to the contract terms you wish to view.
- Website Design / Web Development Agreement
- Search Engine Optimization Agreement
- Market Research Agreement
Website Design / Web Development Agreements
The contract-named Client is engaging Funnel Boost Media, known as Developer, located at 7930 Roanoke Run, as a contractor for the specific purpose of developing and/or improving a web site. The Client hereby authorizes Developer to access the above FTP account, and authorizes the web hosting service to provide Developer with “write permission” for the Client’s web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for the stated project(s). Should Client not have hosting account, Developer may provide hosting at an additional fee. The Client also authorizes Developer to publicize their completed web site to Web search engines, as well as other Web directories and indexes.
2. Standard Web Site Package:
Domain Registration The Developer will secure a domain name for the Client at the Client’s request. All charges incurred in doing so will be billed to the Client as an addition to the base price contemplated by this agreement. These are Internic fees, and are not a source of income for the Developer.
If the Client already has a domain name, the Developer will coordinate redirecting the address to the new host. Should the Client desire a specific domain name, which is already owned by another party, negotiations for said domain name must be undertaken by the Client.
Text Copy for web site must be supplied by the Client in a .doc format via disk or email attachment. Otherwise, if not supplied on disk or via email, there will be an additional charge for typesetting.
Photos Photos and other misc. graphic images must be supplied by Client. Photos and graphics not supplied by Client will be added cost to the contract between Developer and Client.
Installation Finished site will be uploaded to Client’s hosting company or hosting provided by Developer.
E-mail response link on each web page to any e-mail address the Client designates.
Cross Browser Compatibility Our agreement contemplates the creation of a web site viewable by Microsoft Internet Explorer, Mozilla Firefox, and Google Chrome browsers. Compatibility is defined herein as all critical elements of each page being viewable in above listed browsers. Client is aware that some advanced techniques on the Internet, however, may require a more recent browser version and brand or plug-in. Client is also aware that as new browser versions of above listed browsers are developed, the new browser versions may not be compatible. In the absence of a Maintenance Agreement time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of our agreement.
CGI / Perl This contract contemplates one basic form embedded on the Clients web site with the data captured in each form delivered to the Client at the Client’s specified e-mail address. If a specific script beyond this capability is requested by the Client and it must be purchased or created by the Developer at the Client’s request, the charge for the script, if any, will be billed back to the Client.
3. Online stores only
The text and graphic content of the web pages will be supplied by the Client and executed as specified by the Client in the “Web Design Agreement”. It is understood that total prices calculated are likely to vary from the final amount due to different quantities of products, categories, photos, regular pages, etc. in the final store.
An Estimate is listed in Appendix A and governs the prices for this contract. Notwithstanding any prices listed in literature or on web pages, the Client and Developer agree that the services described above in this section shall be completed for the amount indicated in Appendix A and / or Appendix B and upon this amount the first payment shall be determined. The final payment shall reflect and include all elements actually completed at the prices attached.
We include e-mail/phone consultation of up to 2 hours total general Internet orientation education, marketing strategy, Web design consultation, and helping Clients learn to use the store software. Telephone long distance charges are in addition to package rates quoted. (Additional education and consultation is at our hourly rate.)
Product web pages, products, or photos added after the store is ready for advertising to the Web search engines will be calculated for actual time spent at the hourly rate specified below.
4. Available Services :
This agreement includes all the aforementioned services plus:
Graphic Creation / Banner Advertisements This custom package contemplates that the “Developer” will create, capture or receive from the Client all the graphic elements necessary to complete the Client’s web site. This includes creation / redesign of Corporate Identity (logo), ancillary images, animated graphics, photography and banner advertisements.
Java Applets This custom package contemplates the use of Java Applets specified in Appendix A. Clients are encouraged to not use Java Applets as many viewers on America Online will be served an error when trying to view the page. Java Applets may also ‘crash’ older computers on download and download times for some viewers can be excessive.
Macromedia Flash Macromedia Flash is always an option and the specific understanding of our arrangement will be listed in Appendix A. Although Flash work is charged by the hour, the Developer warrants to protect the client by specifying a maximum charge in advance which will be listed in Appendix A. The Developer warrants to work earnestly to come in under the maximum charge.
DHTML This custom package contemplates using DHTML technology. The rate to program each DHTML page will be specified in Appendix A. The Author understands that DHTML technology may not work in older browsers and some DHTML technology is not cross-browser specific.
Real Audio/Video This custom package contemplates using Real Audio or Real Video on the Client’s site. If chosen, however, the charges for such will be listed in Appendix A.
QuickTime / QuickTime VR This custom package contemplates using QuickTime or QuickTime VR technology on the Client’s web site.
E-commerce This custom package contemplates the possibility of an e-commerce enabled site. If a shopping cart is required for the Client’s site, the charges for the shopping cart will be listed in Appendix A.
Secure Certificate If the Client selects an e-commerce enabled site, the Client is encouraged to obtain a secure certificate for online transactions. The Client understands that if they do not obtain their own secure certificate, design capabilities on the shopping cart itself may be limited.
Merchant Account The Client will need a Merchant Account to enable the ability to accept credit cards online. Any charges necessary to secure the Merchant Account are chargeable to the Client.
Real Time Credit Card Processing If the Client has a high volume / high sales web site, real-time credit card processing will be desired. In this instance, the Developer will assist the Client in obtaining this service. Any charges related to this service are the responsibility of the Client as an addition to this agreement.
ASP / Cold Fusion Sites requiring database design may require Microsoft ASP or Allaire Cold Fusion technology. Any charges applicable to ASP or Cold Fusion are in addition to this agreement.
Databases Costs for creation of a database will be specifically listed in Appendix A.
Training The Developer will provide e-mail and telephone assistance to the Client’s designated representatives regarding management of the Client’s web site at a pre-negotiated rate.
5. Additional Expenses
Client agrees to reimburse the Developer for any critical Client requested expenses necessary for the completion of the project. Examples would be:
• Purchase of stock photos at the Client’s request.
• Purchase of upgraded hosting capabilities at the Client’s request.
• Purchase of specific fonts at the Client’s request.
• Purchase of specific photography at the Client’s request.
• Purchase of specific software at the Client’s request.
6. Client Amends / Changes
Developer prides itself in providing excellent customer service. That is the spirit of our agreement and the spirit of the Developer’s business. To that end, we encourage input from the Client during the design process.
The Developer understands, however, that Clients may request significant design changes to pages that have already built to the Client’s specification. To that end, please note that our agreement does not include a provision for significant page modification or creation of additional pages in excess of our agreed page maximum [Appendix A]. If significant page modification is requested after a page has been built to the Author’s specification, we must count it as an additional page.
Some examples of significant page modification at the request of the Client include:
• Developing a new table or layer structure to accommodate a substantial redesign at the Client’s request.
• Recreating or significantly modifying the company logo graphic at the Client’s request.
• Replacing more than 75% of the text to any given page at the Client’s request.
• Creating a new navigation structure or changing the link graphics at the Author’s request.
• Significantly reconfiguring the Client’s shopping cart with new product, shipping or discount calculation if an e-commerce enabled site has been selected by the Client.
Clients who anticipate frequently changing the look of their site during the design process and Clients who desire to be intricately involved design of each page are encouraged to negotiate an agreement which exceeds the page maximum. If significant page modification is requested by the Client after the page maximum has been reached a Change Request with estimated costs will be submitted for Client approval prior to changes being done.
Moderate changes, however, will always be covered during our development of the site and also covered by our one month of free maintenance.
7. Third Party or Client Page Modification
Some Clients will desire to independently edit or update their web pages after completion of the site.
Note however, Developer is not responsible for any damage created by the Client or agent of the Client. Any repairs required will be assessed at an hourly rate of $_____. [1 hour minimum charge].
8. Web Hosting
The Client agrees to select a web hosting service that allows Funnel Boost Media full access to the web site and a cgi-bin directory via FTP and telnet. The Client further understands that if the web hosting service’s operating system is not a Unix system, standard CGI software may not work, and providing a substitute may incur additional charges.
Client may opt to allow Developer to host Client website(s) for additional fee.
9. Search Engine Registration
The Developer will optimize the Clients web site with appropriate titles, keywords, descriptions and text and thereafter submit the Client’s web site to each of the major search engines. The Developer also offers advanced search engine optimization and site promotion services. If advanced search engine optimization and site promotion services are desired the agreement for said services will be listed in a separate agreement.
The Developer encourages all commercial Clients to obtain advanced Search Engine Optimization and Site Promotion services.
10. Work Schedule and Completion Date
Developer to submit a First Mockup Draft of web site no later than thirty (30) days after Developer receives signed agreement, along with down payment and initial direction from the Client. Client to provide Developer with all the data needed to complete web site, including text, company logo, and photos. Upon completion of this stage, the Client will be asked to confirm acceptance for the basic site design via e-mail or by signing a printed copy of the design and faxing to Developer. Once this acceptance is received from the Client, the work necessary to complete the project will continue.
Upon completion of the web site, an e-mail or letter and invoice will be sent to the Client advising the Client that the work has been completed. Client will supply written approval by printing, initialing and faxing back each page in web site. After contract has been paid in full, site will then be uploaded to Client’s hosting company.
11. Maintenance Grace Period
This agreement includes minor web page maintenance to regular web pages (not store product pages) over a one-month period, including updating links and making minor changes to a sentences or paragraphs. It does not including removing nearly all the text from a page and replacing it with new text. If the Client or an agent other than Developer attempts updating the Client’s pages, time to repair web pages will be assessed at the hourly rate, and is not included as part of the updating time. The one-month maintenance period commences upon the date the Client signs this contract.
Changes requested by the Client beyond those limits will be billed at the hourly rate [Appendix A]. This rate shall also apply toward additional work authorized beyond the maximums specified above for such services as: general Internet orientation education, marketing consulting, web page design, editing, modifying product pages and databases in an online store, and art, photo, graphics services, and helping Clients learn how to use their own web page editor. CGI programming charges (if any) are not included in this rate.
12. Extended Maintenance Contracts
Terms for Maintenance Contracts will be listed in Appendix B, using one of two methods.
The Monthly “Flat Rate” Maintenance Contract, payable each month, allowing up to 2 hours of changes per month, including new pages and store product changes. The “Flat Rate” Agreement is payable each month, whether the time is used or not. Changes requested, which go beyond the 2 hour limit, are chargeable at the rate disclosed.
The “As Needed” Maintenance Contract is a monthly chargeable agreement, higher than the “Flat Rate”, but offering cost savings on sites with little to no changes. Charges incur when Client requests a change – 1 hour minimum charge.
13. Copyrights and Trademarks
The Client represents to Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Developer for inclusion in web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
14. Assignment of Project
The Developer reserves the right to assign certain subcontractors to this project to insure the right fit for the job as well as on-time completion. The Developer warrants all work completed by subcontractors for this project. When subcontracting is required, the Developer will only use industry recognized professionals.
Authorized representative of the Client certifies that he or she is at least 18 years of age and legally capable of entering a contract in the United States of America on behalf of the Client.
16. Warranties and Liability
Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or the Developer. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy..
Client hereby agrees to indemnify and hold harmless the Developer from any claim resulting from the Client’s publication of material or use of those materials.
It is also understood that the Developer will not publish information over the Internet which may be used by another party to harm another. The Developer will also not develop a pornography or warez web site for the Client. The Developer reserves the right to determine what is and is not pornography.
Developer does not warrant the functions of the site will meet Client’s expectations of site traffic or resulting business or that the operation of the web pages will be uninterrupted and / or error-free. Developer is not be held responsible for occasional downtime of email or web site due to line interruptions and/or other instances beyond Developers control.
Client agrees that it shall defend, indemnify, save and hold the Developer harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with the Developer’s development of the Client’s web site. This includes Liabilities asserted against the Developer, it’s subcontractors, it’s agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employee or assigns.
Client also agrees to defend, indemnify and hold harmless the Developer against Liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s web site. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization, or business.
18. Rights Upon Termination of Agreement
Developer shall transfer, assign and make available to Client all property and materials in Developer’s possession or subject to Developer’s control that are the property of Client, subject to payment in full of amounts due pursuant to this Agreement
Developer also agrees to provide reasonable cooperation in arranging for the transfer or approval of third party’s interest in all contracts, agreements and other arrangements with advertising media, suppliers, talent and others not then utilized, and all rights and claims thereto and therein, following appropriate release from the obligations therein.
In the event the Client terminates this contract by registered letter within 30 days, 50% of down payment will be refunded. Work completed shall be billed at the hourly rate stated in Agreement, and deducted from 50% of the down payment, the balance of which shall be returned to the Client. If, at the time of the request for refund, work has been completed beyond the amount covered by the initial payment, the Client shall be liable to pay for all work completed at the hourly rate. No portion of this initial payment will be refunded unless written application is made within 30 days of signing this contract.
Refund request must be submitted by registered letter to Funnel Boost Media, 16500 San Pedro Ave, Ste. 295, San Antonio, Tx 78232.
In the event of any default of any material obligation by or owed by a party pursuant to this Agreement, then the other party may provide written notice of such default and if such default is not cured within ten (10) days of the written notice, then the non-defaulting party may terminate this Agreement.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.
21. Laws Affecting Electronic Commerce
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Developer and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet electronic commerce.
22. Ownership to Web Pages and Graphics
Copyright to the finished assembled work of web pages and graphics produced by the Developer shall be vested with the Client upon final payment for the project. This ownership is to include, design, photos, graphics, source code, work-up files, text, and any program(s) specifically designed or purchased on behalf of the Client for completion of this project.
Rights to photos, graphics, computer programs are specifically not transferred to the Client, and remain the property of their respective owners. Developer and its subcontractors retain the right to display all designs as examples of their work in their respective portfolios.
Any disputes arising form this contract will be litigated or arbitrated in Bexar County, Texas. This agreement shall be governed and construed in accordance with the laws of the State of Texas, USA.
Undersigned hereby agree to the terms, conditions and stipulations of this agreement on behalf of his or her organization or business. This Agreement constitutes the entire understanding of both parties. Any changes or modification thereto must be in writing and signed by both parties.
24. Payment of Fees
A minimum deposit of fifty percent (50%) is required to commence work.
Fees to Developer are due and payable on the following schedule: 50% upon signing of contract, 25% after first stage of site is completed and approved and the balance upon page completion, but prior to delivery / uploading. If the total amount of this contract is less than $700, the total amount shall be paid upon signing of contract and any additional costs incurred during development will be invoiced at the completion of the web site.
Advertising the pages to Web Search Engines and updating occur only after the final payment is made. All payments will be made in US funds.
Developer reserves the right to remove web pages from viewing on the Internet until final payment is made. If a payment delay is anticipated, please contact the Developer immediately for an alternative arrangement. In case collection proves necessary, the Client agrees to pay all fees incurred by that process. This agreement becomes effective only when signed by Developer. Regardless of the place of signing of this agreement, the Client agrees that for purposes of venue, this contract was entered into in Bexar County, Texas, and any dispute will be litigated or arbitrated in Bexar County, Texas.
25. Sole Agreement
The agreement contained in this “Web Site Design Contract” constitutes the sole agreement between Developer and the Client regarding this web site. Any additional work not specified in this contract, Appendix A or Appendix B must be authorized by a written change order. All prices specified will be honored for 30 days after both parties sign this contract. Continued services after that time will require a new agreement.
This agreement constitutes the entire understanding of the Developer and Client. This agreement terminates and supersedes all prior understanding or agreements on the subject matter hereof. Any changes or modification thereto must be in writing and signed by both parties
Search Engine Optimization Agreement Terms
Search Engine Optimization (SEO) Contract Agreement
This contract is entered into between Funnel Boost Media (FBM) and Client Stated in SEO Contract Agreement (hereinafter referred to as “Client”) on the date specified on physical contract.
1.Funnel Boost Media will provide Client with Search Engine Optimization Services
(hereinafter referred to as “SEO”) as described in this contract. FBM will use specific keywords and/or phrases to improve the search engine ranking of, and/or position the contents of the Client’s website.
2. Search Engine Optimization Fees
The total fee for the SEO services to be provided on a monthly basis specified by the Client’s contract. All fees must be paid in full after the end of each monthly cycle.
FBM‘s SEO services are intended to serve two main purposes:
1) to provide the Client with increased exposure in search engines, and 2) to drive targeted online traffic to the site.
FBM‘s SEO Services will include (but are not limited to):
• Researching keywords and phrases to select appropriate, relevant search terms (up to 7 phrases).
• Obtaining “back links” from other related websites and directories in order to generate link popularity and traffic.
• Editing and/or optimization of text for various html tags, meta data, page titles, and page text if necessary.
• Analysis and recommendations on optimal website structure, navigation, code, etc. for best SEO purposes.
• Recommend, as required, additional web pages or content for the purpose of “catching” keyword/phrase searches.
• Create ranking reports for client’s site and any associated pages showing rankings in the major search engines.
3. For the purposes of receiving professional SEO services, Client agrees to provide the following:
• Administrative/backend access to the website for analysis of content and structure.
• Permission to make changes for the purpose of optimization, and to communicate directly with any third parties, e.g., your web designer, if necessary.
• Unlimited access to existing website traffic statistics for analysis and tracking purposes.
• Authorization to use client pictures, logos, trademarks, web site images, pamphlets, content, etc., for any use as deemed necessary by LCS pvt. Ltd. for search engine optimization purposes.
• If Client’s site is lacking in textual content, Client will provide additional text content in electronic format for the purpose of creating additional or richer web pages. LCS pvt. Ltd. can create site content at additional cost to the Client.
4. Client must acknowledge the following with respect to SEO services:
• All fees are non-refundable.
• All fees, services, documents, recommendations, and reports are confidential.
• FBM has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. The Client’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
• Due to the competitiveness of some keywords/phrases, on going changes in search engine ranking algorithms, and other competitive factors, LCS pvt. Ltd. does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase, or search term.
• Google has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for more than 5 time. This is referred to as the “Google Sandbox.” FBM assumes no liability for ranking/traffic/indexing issues related to Google Sandbox penalties.
• Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any additional SEO. Should a listing be dropped during the SEO campaign and does not reappear within 30 days of campaign completion, FBM will re-optimize the website/page based on the current policies of the search engine in question.
• Some search directories offer expedited listing services for a fee. If the Client wishes to engage in said expedited listing services (e.g., paid directories), the Client is responsible for all paid for inclusion or expedited service fees. FBM can offer a list of expedited listing services upon request.
FBM is not responsible for changes made to the website by other parties that adversely affect the search engine rankings of the Client’s website
6. Additional Services
not listed herein (such as managing pay-per click campaigns, copywriting, web design etc.)
7. The Client guarantees any elements
of text, graphics, photos, designs, trademarks, or other artwork provided to FBM for inclusion on the website above are owned by the Client, or that the Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend FBM and its subcontractors from any liability or suit arising from the use of such elements.
8. Venue and Dispute Resolution:
This Agreement (Contract) shall be governed by the laws of Texas and the parties submit to the exclusive Jurisdiction of the courts of San Antonio, Texas in respect of any dispute or difference between the client and FBM arising out of this Agreement (Contract). Any dispute or difference can also be resolved outside the court by appointing an independent third party (also known as arbitrator) on mutual agreement of the client and FBM. However in this case arbitrator’s decision is considered to be final and cannot be disputed or appealed in the court of law.
Market Research Agreement
NON-EXCLUSIVE AGREEMENT FOR MARKET RESEARCH
THIS NON-EXCLUSIVE AGREEMENT FOR MARKET RESEARCH (“Agreement”) is made on the date specified on Client agreement with Funnel Boost Media, LLC, with offices at 16500 San Pedro Ave., Suite #295, San Antonio, Tx, 78232 (“Researcher”), and Client.
WHEREAS, the effort contemplated by this Nonexclusive Agreement for Market Research (“Agreement”) is of mutual interest and benefit to Funnel Boost Media, LLC and Researcher and will further market research objectives of Funnel Boost Media;
WHEREAS, Researcher has valuable experience, skill and ability in performing research in the area of United States of America, or states, counties, or cities specified in Agreement.
WHEREAS, Client desires to have Researcher undertake a project in accordance with the scope of work described in Agreement;
WHEREAS, Client has agreed to allow Researcher to use Client’s intellectual property consisting of item set-up, and store item inventory data (“Commonwealth IP”) and has determined that this Agreement is the appropriate legal instrument to be executed by the Parties; and
WHEREAS, Client is willing to grant Researcher a limited non-transferable, non-exclusive, revocable license to use the Commonwealth IP, subject to the terms and conditions of the Agreement and Researcher’s formal acknowledgement of its acceptance of the terms and conditions of Client’s Data Use Policy which is incorporated by reference as if physically attached to this Agreement.
NOW THEREFORE, for mutual consideration set forth herein, the adequacy of which is hereby acknowledged, Client and Researcher, intending to be legally bound, hereby agree as follows:
1. SCOPE OF WORK
A. Researcher agrees to use reasonable efforts to perform the Project. “Project” shall mean the Statement of Work approved under this Agreement as described in Exhibit A.
B. Substantive changes to the Project require prior written approval of Client.
C. Researcher shall provide consent forms which will be signed by research respondents to Client within ten (10) days of signing this Agreement. Approval of the consent forms shall be within the sole discretion of the Client.
2. KEY PERSONNEL
A. The following individual, who will be identified as the Project Manager, shall be the primary contact person for Researcher:
PROJECT MANAGER: Ryan Duncan (or as specified in Exhibit A)
Phone: (210) 757 – 2544
B. The Project Manager may select and supervise other project staff as needed. No other person will be substituted for the Project Manager except with Client approval. Client may exercise Termination for Convenience provisions of this Agreement if a satisfactory substitute is not identified.
3. TERM OF AGREEMENT
The term of this Agreement shall commence on the date that all required signatures have been affixed and shall end at the close of business 45 days from the effective date. The effective date shall be fixed after the Agreement has been fully executed.
Project Manager shall maintain records of the results of the Project and shall provide Client with reports of the progress and results of the Project in accordance with Exhibit A.
A. Client shall have the right, at its sole discretion, to release any information or to publish any material resulting from the Project.
B. Researcher shall not use Client’s name or logo, including the name and logo of the Client’s stores, intellectual property, or ideas without Clients’s prior written consent.
C. Researcher shall not identify or in any way represent itself as being the Client or as being an agent of the Client.
D. Researcher shall refrain from making any representations or creating any inferences, express or implied, that the use of the Commonwealth IP constitutes evidence of an affiliation with or endorsement by Client of any of Researcher’s products or services or any of Researcher’s agents, sponsors, or advertisers. Therefore, any Commonwealth IP used by Researcher during the course of the Project must clearly identify the Client as the source of such information. Title and ownership of the Commonwealth IP shall remain at all times with Client and the Commonwealth and Researcher shall acknowledge Client’s exclusive right and title to the Commonwealth IP and reasonably cooperate with its protection at all times.
6. RELATIONSHIP OF PARTIES
A. Nothing contained herein shall create or establish a joint venture or a partnership between Client and Researcher. Except as otherwise provided herein, each party shall be solely responsible for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workmen’s compensation.
B. For the purposes of this Agreement and all services to be provided hereunder, the parties shall be and shall be deemed to be independent contractors and not agents or employees of the other party.
C. Nothing contained in this Agreement shall be construed or implied to create an agency, partnership, joint venture, or employer and employee relationship between Client and Researcher.
D. Neither party shall have the authority to make any statements, representations or commitments of any kind or to take action which shall be binding on the other party, except as may be expressly provided for herein or authorized in writing.
8. DISCLAIMER OF WARRANTY
The warranties contained herein are in lieu of all other warranties or conditions, express or implied, including, without limitation, those of merchantability or fitness for a particular purposes. In no event shall Client be liable for damages, direct or indirect, including incidental or consequential damages, suffered by the Researcher or other third party arising from breach of warranty or breach of contract, negligence, or any other legal ground of actions.
Client shall have the right to immediately terminate this Agreement for any reason or for no reason, by giving written notice to Researcher.
10. POST-TERMINATION RIGHTS
A. Upon expiration or termination of this Agreement:
1. Researcher shall discontinue all use of Client research as listed in Exhibit A and Commonwealth IP; and
2. Researcher shall provide Client with all records and/or reports of the progress and results of the Project.
B. It is understood and agreed that termination shall not entitle Researcher to any compensation on any grounds whatsoever, including, but not limited to, lost profits, loss of goodwill, or consequential, direct, indirect, punitive, or exemplary damages.
11. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
A. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or by deposit in the United States mail, postage prepaid, registered or certified, return receipt requested.
B. Either party may change the address to which notice is to be sent by written notice to the other party under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the Commonwealth of Texas. This Agreement shall be construed and interpreted in accordance with the laws of the Commonwealth of Texas. All disputes under this Agreement shall be resolved by litigation in the courts of the Commonwealth of Texas, including the federal courts therein. All parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
14. ORAL MODIFICATION
This Agreement may not be modified orally. Except or provided in this Agreement, all modifications must be by written amendment signed by Client and Researcher.
15. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors, and assigns.
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party, which shall not be unreasonably withheld.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
The obligations set forth in publication section shall survive the expiration or termination of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement and the attachments appended thereto constitute the entire understanding of the parties and are intended as a final expression of their Agreement. It shall not be modified or amended except in writing, signed by the parties hereto, and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated on Exhibit A.
This Hosting Agreement is made on contact start date (the “Effective Date”) between Funnel Boost Media [whose principal place of residence is at / a 16500 San Pedro Ave. San Antonio Texas] corporation with its principal place of business at same location (the “[PARTY A ABBREVIATION]“) and client, whose principal place of residence is at / a CORPORATE JURISDICTION] corporation with its principal place of business at] [PARTY B ADDRESS]] (the “[PARTY B ABBREVIATION]“).
(The capitalized terms used in this agreement, in addition to those above.
Hosting Services. Funnel Boost Media shall provide client with certain website hosting services and systems [including website server space, email capability, internet access, and domain name registration / according to the attached[STATEMENT OF WORK]] (the “[DELIVERABLE]“).
Subscription Fees. Client shall pay Funnel Boost Media a monthly subscription fee as stated in contract agreement.
Subscription Fee. Client shall pay the Subscription Fee to Funnel Boost Media.
due on the same day of each month,
in immediately available funds, and
to the account Funnel Boost Media lists in agreement
Taxes. Payment amounts under this agreement do not include taxes, and client shall pay all Taxes applicable to payments between the parties under this agreement.
Right to Suspend. If client fails to make payments when due three times over any twelve-month period, Funnel Boost Media may suspend the hosting until client pays all outstanding fees plus a $150 reinstatement fee.
Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at arate equal to 1% per month 12.68% annually) or the maximum allowed by Law, whichever is less.
Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
Execution and Delivery. The parties have duly executed and delivered this agreement.
Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties in accordance with its terms.
No Conflicts. Neither party is under any restriction or obligation that may affect the performance of its obligations under this agreement.
Funnel Boost Media Representations. Funnel Boost Media exercises no control over, and accepts no responsibility for, third party content of the information passing through Funnel Boost Media’s system, network hubs and points of presence, or the internet.
Compliance with Laws. Each party shall
comply with all applicable Laws relating to SUBJECT MATTER OF AGREEMENT, and
notify the other party if it becomes aware of any non-compliance in connection with this section.
No Warranty. Funnel Boost Media does not make any warranties of any kind, express or implied, with respect to the performance of the hosting, including any warranty
of merchantability, fitness for a particular purpose,
arising out of trade usage, course of dealing, or course of performance, or
warranty that the hosting will be uninterrupted, always accessible, free of harmful components, accurate, or error-free.
Prohibited Use. Client will not use the hosting for any unlawful or harmful purpose, or any purpose that would put Funnel Boost Media in a bad light, including that client will not
use it to host, store, send, relay or process any harmful components, including malware, viruses, and trojan horses,
use it to infringe any Person’s Intellectual Property, privacy, or other proprietary rights,
use it to slander, libel, or defame any Person, publish a Person’s personal information or likeness without consent, or otherwise violate a Person’s privacy,
use it to harass or threaten harm, or make offensive, indecent, or abusive statements or messages,
use it to send mass unsolicited e-mail to third parties,
use it to use internet relay chat,
use it in a way that abuses the hosting, disrupts other users’ access to the hosting, or otherwise harms or impedes the hosting,
reverse engineer any of Funnel Boost Media’s systems,
attempt to or help others gain unauthorized access to or use of the hosting, or
use it in any way which could reasonably put Funnel Boost Media in breach of any of its other obligations.
Acknowledgement Funnel Boost Media Does Not Monitor. Client hereby acknowledges that Funnel Boost Media does not, and does not claim to, monitor any users’s content or use of the hosting.
Breach of These Restrictions. If Funnel Boost Media reasonably believes client has breached any restrictions under this section Client Restrictions, client may
delete or amend any relevant Funnel Boost Media Content, or
suspend Funnel Boost Media’s use of and access to the hosting while investigating the issue.
Status of Breach. If after Funnel Boost Media’s reasonable investigation of the issue it discovers client has actually breached this section Client Restrictions, Funnel Boost Media may consider it a material breach of this agreement.
Limitation of Liability
Mutual Limitation of Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.
Limitation on Funnel Boost Media’s Liability. Funnel Boost Media will not be liable for any damages that result from any downtime or failure of performance of the hosting, or client otherwise not being able to use or access the hosting.
Each Party Retains Intellectual Property. Subject to paragraph Funnel Boost Media below, each party will retain exclusive interest in and ownership of its Intellectual Property developed before this agreement or outside the scope of this agreement.
License to Funnel Boost Media. Client hereby grants to Funnel Boost Media a non-exclusive, non-transferable, non-sublicensable, world-wide, and royalty-free license to use client’s pre-existing Intellectual Property solely for the purpose of providing the hosting.
Developed Intellectual Property. If any Intellectual Property is developed under this agreement, whether by one party on its own or jointly-developed by both parties, the parties shall cooperate to execute a separate agreement regarding the ownership of and any licenses regarding that newly-developed Intellectual Property.
Confidentiality Obligation. The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.
Use Solely for Purpose. A receiving party may only use the Confidential Information according to the terms of this agreement and solely for the Purpose.
Non-Disclosure. A receiving party may not disclose Confidential Information, the existence of this agreement, the Transaction, or the Purpose to any third party, except to the extent
permitted by this agreement
the disclosing party consents to in writing, or
required by Law.
Notice. A receiving party shall notify the disclosing party if it
is required by Law to disclose any Confidential Information, or
learns of any unauthorized disclosure of Confidential Information.
Use of Logos. Client hereby grants Funnel Boost Media a non-exclusive, non-transferrable, non-sublicensable, and royalty-free license to use and reproduce client’s name, logos, and trademarks on Funnel Boost Media’s customer lists, advertising, and website.
Initial Term. The initial term of this agreement will begin on the contract agreement date and continue for 12 months, unless terminated earlier (the “Initial Term”).
Automatic Renewal. Subject to paragraph ELECTION NOT TO RENEW, at the end of each Term this agreement will automatically renew for a renewal term of 12 months, unless terminated earlier (“Renewal Term”).
Election Not to Renew. Either party may elect not to renew this agreement, by providing notice to the other party at least 30 Business Days’ before the end of the Term.
Term Definition. “Term” means either the Initial Term or the then-current Renewal Term.
Termination on Notice. Either party may terminate this agreement for any reason on 30 Business Days’ notice to the other party.
Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if
the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
the failure, inaccuracy, or breach continues for a period of 30 Business Days’ after the injured party delivers notice to the breaching party reasonably detailing the breach.
Effect of Termination
Termination of Obligations. Subject to paragraph Payment Obligations, on the expiration or termination of this agreement, each party’s rights and obligations under this agreement will cease immediately.
Payment Obligations. On the expiration or termination of this agreement, each party shall
pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and
refund any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.
Indemnification by Client. Client as an indemnifying party shall indemnify Funnel Boost Media (as an indemnified party) against all losses and expenses arising out of any proceeding
brought by either a third party or Funnel Boost Media, and
arising out of [PARTY B]‘s breach of its obligations, representations, warranties, or covenants under this agreement.
Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding
brought by either a third party or an indemnified party, and
arising out of the indemnifying party’s willful misconduct or gross negligence.
Notice and Failure to Notify
Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall
notify the indemnifying party of the indemnifiable proceeding, and
deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.
Exclusive Remedy. The parties’ right to indemnification is the exclusive remedy available in connection with the indefinable proceedings described in this section Indemnification.
“Affiliate” means for either party, at the time the determination is made, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with that party.
“Business Day” means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in New York, New York are not open for business.
“Confidential Information” means all material, non-public, business-related information, written or oral, whether or not it is marked as confidential, that is disclosed or made available to the recipient, directly or indirectly, through any means of communication or observation by the disclosing party or any of its Affiliates or Representatives.
“Customer Content” means all materials client uploads to, transmits over, stores on, or otherwise uses in connection with the hosting, including the Website and all materials comprising client’s website,including images, photographs, illustrations, graphics, audio clips, video clips, and text uploaded to the website.
“Governmental Authority” means
(a) any federal, state, local, or foreign government, and any political subdivision of any of them,
(b) any agency or instrumentality of any such government or political subdivision,
(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and
(d) any arbitrator, court or tribunal of competent jurisdiction.
“Hosting Services” is defined in section Hosting Services.
“Initial Term” is defined in section Term.
“Intellectual Property” means any and all of the following in any jurisdiction throughout the world
(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
(b) copyrights, including all applications and registrations related to the foregoing,
(c) trade secrets and confidential know-how,
(d) patents and patent applications,
(e) websites and internet domain name registrations, and
(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and
(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
(b) any individual.
“Representative” means, for any Person, that Person’s directors, officers, shareholders, owners, partners, employees, subcontractors, agents, professional advisors, in connection with the transactions contemplated in this agreement, and any other authorized representatives.
“Renewal Term” is defined in section Term.
“Restricted Period” is defined in section Confidentiality Obligations.
“Taxes” includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, stamp, value-added, and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
“Term” is defined in section Term.
Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
represent the final expression of the parties’ intent and agreement between the parties relating to the subject matter of this agreement,
contain all the terms the parties agreed to relating to the subject matter, and
replace all the parties’ previous discussions, understandings, and agreements relating to the subject matter.
Signed in Counterparts. This agreement may be signed in any number of counterparts.
All Counterparts Original. Each counterpart is an original.
Counterparts Form One Document. Together, all counterparts form one single document.
Amendment. This agreement can be amended only by a writing signed by both parties.
Binding Effect. This agreement /plan will benefit and bind the parties and their respective heirs, successors, and permitted assigns.
Third Party Beneficiaries. Unless explicitly stated otherwise elsewhere in this agreement, no Person other than the parties themselves has any rights or remedies under this agreement.
Assignment. Neither party may assign this agreement /plan or any of their rights or obligations under this agreement /plan without the other party’s written consent.
Form of Notice. All notices and other communications between the parties must be in writing.
Method of Notice. The parties shall give all notices and communications between the parties by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.
Receipt of Notice. A notice given under this agreement / plan will be effective on
the other party’s receipt of it, or
if mailed, on the earlier of the other party’s receipt of it and the fifth Business Day after mailing it.
No Relationship. Nothing in this agreement creates any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship between the parties.
No Authority. Neither party will have the authority to, and will not, act as agent for or on behalf of the other party or represent or bind the other party in any manner.
Arbitration. Any dispute or controversy arising out of this agreement and subject matter of the agreement will be settled by arbitration in Texas, according to the rules of the American Arbitration Association then in effect, and by Number of arbitrators[s].
Judgment. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
Arbitrator’s Authority. The arbitrator will not have the power to award any punitive or consequential damages.
Governing Law and Consent to Jurisdiction and Venue
Governing Law. This agreement, and any dispute arising out of the subject matter of the agreement, shall be governed by laws of the State of Texas.
Consent to Jurisdiction. Each party hereby irrevocably consents to the exclusive, non-exclusive jurisdiction and venue of any state or federal court located within Bexar County, State of Texas in connection with any matter arising out of this agreement / plan or the transactions contemplated under this agreement / plan.
Consent to Service. Each party hereby irrevocably
agrees that process may be served on it in any manner authorized by the Laws of the State of Texas for such Persons, and
waives any objection which it might otherwise have to service of process under the Laws of the State of Texas.
Affirmative Waivers. Neither party’s failure or neglect to enforce any of rights under this agreement will be deemed to be a waiver of that party’s rights.
Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
No General Waivers. A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is
beyond the reasonable control of a party,
materially affects the performance of any of its obligations under this agreement, and
could not reasonably have been foreseen or provided against, but
will not be excused for failure or delay resulting from only general economic conditions or other general market effects.
Severability. If any part of this agreement /plan is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
References to Specific Terms
Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States (“GAAP”).
Currency. Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.
“Including.” Where this agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.”
“Knowledge.” Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement,] is expressed by a party to be “to its knowledge,” or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:
the then-current, actual knowledge of the directors and officers of that party, and
the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.
Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.
Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.
Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.
Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.
Calculation of Time. In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. Central Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. Central Time on the next Business Day.
Construction of Terms. The parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.
Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of this agreement/specified agreements will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of [this agreement / specified agreements.
Attorney Fees. If either party brings an Action to enforce its rights under this agreement, the prevailing party may recover its expenses (including reasonable attorneys’ fees) incurred in connection with the Action and any appeal from the losing party.