These Terms are in addition to any that may be spelled out in our agreement(s) with you. They have been moved here to streamline our proposals and other
documents. If your agreement with us includes notice of this web page, the terms you find here are as binding individually and severally as the terms outlined specifically in our signed agreements.
Updated 6 May 2016 — Please print and date a copy of this page for your records. Check back for updates to this policy, which may change from time to time.
Online electronic approval of a project estimate and/or price quote indicates the acceptance of the terms and conditions set forth in this agreement (“Agreement”) by an authorized representative of the client entity (“Client”).
1. Ownership of Intellectual Property
A. Except for the Background Technology defined in Exhibit A (License Agreement), Client shall own all right, title and interest in and to any and all deliverables (as defined in our proposal), project descriptions and specifications (including any copyrights therein) which may be included in deliverables. External Design and Client expressly agree that, other than the Background Technology, the work performed by External Design hereunder shall be work made for hire to the maximum extended permitted by the United States Copyright Act, and that Client shall be the exclusive owner of all right, title and interest in and to the deliverables hereunder, including any and all ideas, inventions and works of authorship (including developments, innovations and improvements to existing Client products or confidential information) conceived or made by External Design alone or with others in the course of External Design’s engagement hereunder, together with any and all copyrights, trade secret rights, patents and other proprietary rights therein, whether now known or hereafter to become known, for the respective maximum terms of protection available throughout the world (the “Client Intellectual Property”). In the event that all the foregoing right, title and interest do not vest automatically in Client, External Design hereby irrevocably transfers, sells and assigns to Client, its successors and assigns, all such right, title and interest (including any and all copyrights, trade secret rights, patents and other proprietary rights therein). External Design agrees to execute such other documents as Client may reasonably request from time to time to confirm such transfer of right, title and interest, including any short form assignment of copyright, patent or other proprietary rights, and such other documents concerning the work performed hereunder as Client may deem desirable to file with any copyright, patent or other proprietary rights authority in the world.
B. Client hereby authorizes External Design to use its name, trademarks, service marks, trade names and logos (collectively “Marks”) in news releases, case studies, articles, brochures, marketing materials, advertisements, customer testimonials and other publicity or promotions in connection with Client’s engagement of External Design (collectively, “Marketing Materials”). In connection therewith, Client grants to External Design a limited, nonexclusive, nontransferable, nonsublicenseable license to use Client’s Marks for the purposes contemplated by this Section. All uses of the Marks shall be in accordance with the Mark guidelines provided by Client from time to time. Nothing contained herein shall give External Design any interest in Client’s Marks. External Design shall not take any action that would impair the value of, or goodwill associated with, Client’s Marks and, as between the parties, all uses of Client’s Marks shall inure to the benefit of Client.
2. Confidential Information
A. All information relating to Client that a reasonable person would believe to be confidential or proprietary, or which is clearly marked as such, will be held in
confidence by External Design and will not be disclosed or used by External Design except to the extent that such disclosure or use is reasonably necessary to the performance of the deliverables; provided that such party receiving the information are bound by confidentiality obligations no less restrictive than those contained herein.
B. All information relating to External Design that a reasonable person would believe to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement; provided that such party receiving the information are bound by confidentiality obligations no less restrictive than those contained herein.
C. These obligations of confidentiality will extend for a period of one (1) year after the termination of this Agreement, but will not apply with respect to information that (a) the receiving party can demonstrate is independently developed by the parties without reference to the other party’s confidential information, (b) lawfully becomes a part of the public domain, or (c) the receiving party can demonstrate was information of which the parties gained knowledge or possession free of any confidentiality obligation.
3. Warranty and Disclaimer
A. External Design represents, warrants and covenants that (a) the deliverables will be provided in a workmanlike manner and in conformity with generally prevailing industry standards, and (b) and will conform with the specifications set forth in our proposal.
B. External Design further represents and warrants that: (a) it shall take commercially reasonable steps to ensure the deliverables are free from viruses, disabling programming codes, instruction or other such items that may interfere with or adversely affect the deliverables, (b) it has all necessary rights in the intellectual property licensed or assigned to Client under this Agreement, and has the power and authority to grant to Client the rights contemplated hereunder, free and clear of any and all security interests, liens, claims, charges or encumbrances, (c) the deliverables, as delivered by External Design, and the use thereof by Client, will not infringe upon or violate any applicable laws or regulations or any rights of third parties, including, without limitation, laws, regulations and rights concerning infringement or misappropriation of such party’s intellectual property rights.
C. Client warrants and represents that it is the rightful owner or licensee of all content that it may provide to External Design for implementation on the web site.
D. THE WARRANTIES CONTAINED IN THIS SECTION AND OUR PROPOSAL, IF ANY, ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
4. Limitation of Remedies
Client’s sole and exclusive remedy for any claim against External Design with respect to a breach of Section 3(A) will be the correction by External Design of any material defects or deficiencies therein of which Client notifies External Design in writing within thirty (30) days after the completion of the deliverables. In the event External Design is unable to correct any material defects or deficiencies to Client’s reasonable satisfaction, External Design shall reimburse Client for all fees paid related to such deliverables. In the absence of any such notice, the deliverables will be deemed satisfactory to and accepted by Client. Payment or use of the web site or the deliverables (as defined in our proposal) shall in no way preclude Client’s ability to assert a warranty claim within the warranty period.
5. Limitation of Liability
In no event will either party be liable for any loss of profit or revenue by the other party, or for any other consequential, incidental, indirect or economic damages incurred or suffered by the other party arising as a result of or related to this Agreement, whether in contract, tort or otherwise, even if such party has advised of the possibility of such loss or damages. The parties further agree that the total liability of either party for all claims of any kind arising as a result of or related to this Agreement, or to any act or omission of such party, whether in contract, tort or otherwise, will not exceed an amount equal to the amount actually paid by Client to External Design for the deliverables.
A. Client will indemnify and hold External Design harmless from and against any claims by third parties, including all costs, expenses and attorneys’ fees incurred (“Damages”), arising out of or in conjunction with (i) Client’s performance under or breach of any obligation or agreement of this Agreement, and (ii) any actual or threatened claim that the content provided by Client to External Design infringes any intellectual property, including, but not limited to, infringement of any copyright, trademark, patent or trade secret made against External Design by any third party.
B. External Design shall indemnify, defend, and hold Client harmless from, and against any and all third-party Damages arising out of or resulting from (i) External Design’s performance or breach of any obligation or agreement of External Design under this Agreement, (ii) any misrepresentation made by External Design in this Agreement, or (iii) any actual or threatened claim that the deliverables or the deliverables infringe any intellectual property, including, but not limited to, infringement of any copyright, trademark, patent or trade secret made against Client by any third-party.
7. Relation of Parties
The performance by External Design of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between External Design and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
8. Employee Solicitation
During the period of this Agreement and for twelve (12) months thereafter, neither party will solicit, directly or indirectly, the employment of any employee, former employee, subcontractor, or former subcontractor of the other party that (a) with respect to External Design, performed the deliverables for Client, or (b) with respect to Client, oversaw the performance of the deliverables. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party on the Effective Date of this Agreement. Both parties agree that nothing contained herein shall prohibit the other party from employing general recruiting strategies, such as placement of advertisements, posting of positions on either party’s web sites and other similar methods.
Either Party may terminate any project covered by a proposal with at least 10 days’ written notice to the other Party. Unless otherwise agreed to in writing by the Parties, Client shall, within 30 days of the date of termination, pay External Design for all work performed up to the date of termination, based either on the quoted price per deliverable in our proposal or, if no such definition was made, based on the hourly rate of $150, plus reimbursement for any project expenses.
10. Failure to Pay
If Client fails to pay any invoice within 45 days of due date, External Design shall have the right to withhold further work. Further, if Client fails to pay any
hosting-services invoice within 60 days of due date, External Design may disable the website for which the hosting fees apply until all such invoices are paid.
11. NonAssignment; Successors; Third-Party Beneficiaries
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party except in cases of merger or any person or entity acquiring all or substantially all of that party’s assets or stock. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein. Nothing in this Agreement shall be deemed to create any rights in third parties or create any obligations of a party to such third parties.
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of California,without regard to the state’s conflict of law principles. The arbitration will be held in Los Angeles County, California. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement and the enforcement of this agreement to arbitrate. Judgment on any award rendered by the arbitrator may be entered in any Court of competent jurisdiction.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement and the terms in any separate agreement document will remain in full force and effect.
14. Force Majeure
If either party is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, computer virus, war, accident, sickness, or other acts of God, then upon written notice to the other party, the requirements of this Agreement, or the affected provisions hereof to the extent affected, shall be suspended during the period of such disability. During such period, the party not prevented from complying may seek to have its needs (which would otherwise be met hereunder) met by the other without liability hereunder. The party prevented from complying shall make all reasonable efforts to remove such disability within ten (10) days of giving such notice and the party not prevented from complying pursuant to this Section may terminate this Agreement, without liability, upon expiration of such ten (10) day period. However, External Design agrees to use commercially reasonable efforts to protect the deliverables, information and the deliverables it has created for Client from any force majeure event including ensuring the appropriate information is backed-up and stored at a safe site on a reasonable basis to help protect from such unforeseen events.
15. No Waiver
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
Any notice or other communication which may be permitted or required under this Agreement shall be delivered personally, or by email or other electronic means, or sent by United States registered or certified mail, postage prepaid, addressed as set forth above or to any other address as either party may designate by notice to the other party. Notice given by electronic means shall promptly be confirmed. Notice by registered or certified mail or overnight carrier shall be deemed to be received two (2) days following the date of mailing, provided such notice is properly addressed and sufficient postage is affixed thereto, or the actual date of receipt, whichever is earlier; and subject to availability of External Design personnel to receive such deliveries.
17. Counterparts; Electronic Signatures
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. For purposes of this Agreement, signatures delivered by facsimile transmission or other electronic means will be treated in all manner and respects as originals.
Exhibit A: License Agreement
Provided External Design receives all correct and timely payments from Client, External Design shall grant to Client a license to utilize External Design’s Background Technology (as defined below).
As between Client and External Design, External Design will retain ownership of all right, title and interest in or to any intellectual property that External Design can substantiate were either owned or developed by External Design prior to, or independently from, its engagement hereunder (the “Background Technology”). Background Technology shall include, without limitation, various pre‐existing development tools, routines, subroutines and/or other programs, data and materials that External Design may use or implement in the development of the web site. To the extent that External Design incorporates any Background Technology into the deliverables or any third-party technology, External Design shall identify such Background Technology below and hereby grants to Client a worldwide, nonexclusive, nontransferable, royalty-free, right and license to use, copy, display and create derivative works of the Background Technology and third-party technology as necessary to use and modify the deliverables, the deliverables and the web site developed by External Design pursuant to this Agreement. However, upon sale or transfer of the Client’s business, this license shall be transferable to the new owner of Client’s business.