Agreement of Binding Contract

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Website Development

Agreement of Binding Contract

  1. Agreement

Basic Terms and Conditions

1. DEFINITIONS

As used herein and throughout this Agreement:

1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s).

1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.

1.4 Deliverables means the services and work product specified in the Proposal to be delivered by Designer to Client, in the form and media specified in the Proposal.

1.5 Designer Tools means all design tools developed and/or utilized by Designer in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

1.6 Final Art means all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project
and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

1.7 Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.

1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Designer and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.

1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

1.10 Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in
the Proposal.

1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

2. PROPOSAL

The terms of the Proposal shall be effective for 7 days after presentation to the Client. In the event this Agreement is not executed by the Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

3. FEES AND CHARGES

3.1 Fees. In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value-added taxes, even if calculated or assessed subsequent to the payment schedule.

3.2 Expenses. Client shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees, and tolls, and taxis at cost plus Designer’s standard markup of  30%, and, if applicable, a mileage reimbursement at $.45 per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Designer with Client’s prior approval.

3.3 Additional Costs. Project pricing includes the Designer’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.

3.4 Invoices. All invoices are payable within 30 days of receipt. A monthly service charge of 1.5% [or the greatest amount allowed by state law] is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Designer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.

4. CHANGES

4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Designer’s standard hourly rate of $45.00 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. The designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.

4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.

4.3 Timing. The designer will prioritize the performance of the Services as may be necessary or as identified in the Proposal and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer. The Designer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Designer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Designer’s obligations under this Agreement.

4.4 Testing and Acceptance. The designer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from the Client, the Deliverable shall be deemed accepted.

As per the Laws of the State of Colorado and shall have Governing Laws and be considered a Contract of Agreement between said parties;

Defined as Client:  

Web Domain: 

Website Assigned:

Defined as Designer: TwizBiz LLC 

Also, Defined Uses as Listed in 'Terms of Use' and 'Privacy Policy'

Governing Law and Dispute Resolution. The formation, construction, performance, and enforcement of this Agreement shall be following the laws of the United States and the state of Texas without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising, the parties agree to attempt to resolve any dispute by negotiation. If they are unable to resolve the dispute, either party may commence mediation or binding arbitration through the American Arbitration Association, or another forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties’ specifically consent to the local, state, and federal courts located in the state of Colorado. The parties, as a result of this, waive any jurisdictional or venue defenses available to them and further consent to service of process by Postal Mail and Electronic Mail. In the event, the Client uses the deliverables in any way not permitted hereunder, and as a result of this agrees that Designer shall be entitled to equitable relief through a temporary and permanent injunction. Such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem and proper, in addition to any other remedies provided for herein.

Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be active and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect, and a valid or enforceable provision shall replace the invalid or unenforceable provision

  1. RIGHTS IN THE FINAL DELIVERABLES

IP 1.1   Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer with this grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Works solely in connection with the development and launch of comanchecountryranch.com website as of February 1, 2018. 

Modification: (check one)

___ The rights granted to Client are for usage of the Final Works in their original form only. A client may not crop, distort, manipulate, reconfigure, mimic, animate, edit, extract portions, intentionally alter the color of the Final Works, or otherwise create derivative works based on the Final Works.

OR

_X_ The rights granted to Client include the rights to adapt, modify, and create derivative works based on the Final Works solely in connection with the Project and usage rights set forth herein.

IP 1.2   Trademarks. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer assigns to Client all of the Designer’s rights, including trademark and copyright, in and to Trademarks created by Designer. The designer shall cooperate with Client and shall execute any additional documents reasonably requested by the Client to evidence such assignment. The client shall have sole responsibility for ensuring that Trademarks do not infringe on the rights of third parties. Furthermore, the Client shall indemnify, save and hold harmless Designer from all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for the use of Trademarks.

IP 1.3 Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of the Client. TwizBiz is not responsible for any of the Client' respective suppliers. or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection in addition to that except for Third Party Materials. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.

IP 1.4  Third Party Materials. Intellectual property rights in Third Party Materials shall be owned by the respective third parties. Designer shall inform Client of all Third Party Materials to be procured by Designer that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Designer shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.

IP 2. RIGHTS RESERVED TO DESIGNER

IP 2.1   Preliminary Works/Working Files. Designer retains all proprietary rights, including property ownership of intellectual property rights in and to all Preliminary Works and Working Files, and Client shall return to Designer all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.

IP 2.2   Original Artwork. Designer retains property ownership in any original artwork comprising Final Works, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within thirty (30) days of completion of the Services.

IP 2.3   Designer Tools. Designer Tools and all intellectual property rights therein, shall be owned solely by Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the Designer Tools solely with the Final Deliverables for the Project.

IP 3.   LIQUIDATION RIGHTS

IP 3.1 Liquidation for Unlicensed Use. Client’s use of the Deliverables shall be limited to the usage rights granted herein for the Project only. In the event Client, or its agents, uses Final Works or other Deliverables, including Preliminary Works and Working Files, or any derivative works thereof, for another project or outside the scope of the rights granted herein, Designer shall be entitled to further compensation equal to _____0_________ percent (__0___%) of the original Project fee unless otherwise agreed in writing by both parties.  Disregard Liquidation of Project ___X___

III. Warranty

III. Warranty

  1. By Client. Client represents, warrants and covenants to Designer that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to  the Services and Deliverables.

By Designer (a) Designer hereby represents, warrants and covenants to     Client that Designer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) Designer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Designer, Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Designer’s knowledge, the Final Works provided by Designer and Designer’s subcontractors does not infringe the rights of any party, and use of  same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.

  1. Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or deficiencies, but shall not include the development of the frame work or content beyond scope of the existing site without negotiation of payment for such actions for Three (3) months or 90 days from February 2, 2018. During the first month after delivery of said website, the Designer shall provide up to 4 hours of Support Services at no additional cost to Client. Additional time shall be billed at Designer’s regular hourly rate of $35.00/hour.

After Initial Warranty Period of 30 days all design and plugin repairs are rated a $35.00/hour regular hourly rate.

NOTE: Please read Disclaimer of Warranties section III para D.

  1. Maintenance Period. A 30 day maintenance period for the general maintenance of webservers and backup of said website shall be maintained. Hostek hosting services will maintain seven (7) server backup the current price of one year including hosting services at a $14.99/mth cost.  Optional service plans are available to including design changes at a negotiated price.

During the Maintenance Period, Client may request that Designer develop enhancements to the Deliverables, and Designer shall exercise commercially reasonable efforts to prioritize Designer’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Designer’s then-in- effect price for such services.  

Deciencies by Designer. Subject to the representations and warranties of Client in connection with Client Content, Designer represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Designer, or the interaction of Final Deliverables with third party applications such as web browsers. The parties acknowledge that Client’s sole remedy and Designer’s sole liability for a breach of this Section is the obligation of Designer to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Designer, Designers sole obligation shall be to substitute alternative Third Party Materials.

Deficiencies by Client. Subject to thee representations and warranties of the Designer in connection with the final product it is in the best interest of the Client understand the standards of SEO (Search Engine Optimization) and restriction and requirements placed on Web Designers to be in compliance with the Americans with Disabilities Act and Section 508 of the Workforce Investment Act and the dedication of all Designers to provide the best Website for all person to see, hear and with mechanical aid maneuver with understanding the complete Website.

  1. Optional Maintenance Plans.

Check a Plan for a Plan you desire.

Plan 1.  ______ Provide training per phone call for 2 hours, plus hosting cost with 20% discount.

Total Cost of Plan 1.

  Hosting Cost of $12.00 including 7 backups per month

  Maintenance cost of $18.00

  Total cost of $30.00 / 12 months

Plan 2. ______ Provide training per phone call for 3 hours, maintain plugins update and theme as necessary.  Monitor all Itheme security inputs and take appropriate action to prevent intruders, plus hosting cost with 30% discount. 

  Hosting Cost of $10.00 including 7 backups per month

  Maintenance cost of $25.00

  Total Cost of $35.00 / 12 months

Plan 3. ______ Provide training unlimited with owner and 1 other designated person.  Maintain all updates to updates and theme as necessary and monitors.  Monitor all security of site and email servers, maintain all SEO with Yahoo and Google and 50% discount to hosting services.  Cover all cost of recovery rate to Hostek for loss or breakage of website by 3rd party.  Will Not Cover Loss or Breakage of website brought on by persons uploading ‘viruses, spam, infested images or ejective changes to passwords.  NOR will coverage to this site cover persons without Two Factor Authentication allow intruders to obtain passwords.

Log in Logs will be maintained free.

   Hosting Cost of $7.50

   Maintenance cost of $65.00

   Total Cost of $72.50/month for 12 months

 

 

  1. Disclaimer of Warranties

During the warranty period as per Section III para A, the warranty period as previous disclosed, it is at the client’s discretion to allow others to have access for content changes but if the theme or frame of the website is changed and the website crashes the described warranty will be revoked.  Also the Loss or Breakage of website brought on by persons uploading ‘viruses, spam, infested images without virus or malware filtering or improper changes to passwords.  NOR will coverage to this site cover persons without Two Factor Authentication that allow intruders to obtain passwords on the wordpress sign in page.

  1. Liabilities

Designer has use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the applicable rules and regulations such as the Americans with Disabilities Act (“ADA”). However, Designer is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client. Designer shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.

Client liberties are (a) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors; and (d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.

  1. Payments

Payment terms Client is required to make full payment within 30 days counted from the date the invoice is received via email receive.  A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Designer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.

The website will be placed on maintenance notice after 60 day non-payment and removed from Internet Service at the 120th day.  Charges for Hosting service will be accumulate at current hosting rate.

The Domain and Website does belong to the Client but the services to keep the Website in service to the public is contracted services at a cost and therefore will be discontinued.

  1. Indemnification/Liability

By Client. Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Designer shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Designer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Designer in providing such assistance.

By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Designer in writing of the claim; (b) Designer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.

By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

DESIGNER:

TWIZBiz subsidiary company of TWIZCon LLC

Owner: David W Boyett

7035 Sproul Lane

Colorado Springs, Co  80918

Signed:  ___________________________

Date: ______________________________

CLIENT:

Lyman Mitchell

1000 Pin Oak Road

Lockhart, Texas 78644

Signed:  __________________________

Title: _____________________________

Date: _____________________________

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