Scope of Work
The project scope consists solely of the items listed in the eQuote. Any additional edits or functions assumed or otherwise fall outside the scope of project and require a new proposal with additional cost and time required.
The Client must provide all website text in a Microsoft Word Document. Submitted content is considered the final version. NIGHTBIRD WEB SOLUTIONS is not responsible for typos or proofreading. Any edits after posting content on the proof site for review may be considered additional work. Photography must be submitted in an electronic format. (JPEG, TIF, GIF, PSD) Scanning is an additional cost.
NIGHTBIRD WEB SOLUTIONS Programming adheres to the standards of the following platforms and web browsers only: Firefox (MAC & PC),Google Chrome (MAC & PC), Safari (MAC), Internet Explorer 11 (PC). Each of these browsers is developed by a separate company and does not adhere to the exact same standards. If a site with specific mobile compatible styling is desired, it can be at an additional cost if not specified in the eQuote. Provider will do its best to program styles and layout consistency across the different platforms and browsers, but cannot guarantee an exact match.
Appendix A: Web Addendum
This section states the provider’s only warranties and client’s exclusive remedy concerning the services, which are made expressly in lieu of all other warranties and representations, express or implied, including any implied warranties of fitness for a particular purpose.
Provider warrants, for a period of thirty (30) days from completion of Services, that all Services have been performed in a workmanlike and professional manner consistent with generally accepted industry standards, and that all Deliverables materially conform to their applicable Specifications. If Client sends Provider written notice within the 30-day period with specific details regarding any alleged functionality deficiency, Provider shall use commercially reasonable efforts to remedy same. If the incident cannot be remedied within a reasonable time after notification from Client, Client’s sole and exclusive remedy is to receive a refund of any fees paid to Provider for the non-conforming portion of the Services.
The foregoing warranties shall apply provided that no Deliverables provided by Provider have been modified by Client or any Third Party. Provider makes no warranties with respect to any Client or Third Party Materials, and Client shall pay Provider to correct problems resulting from Client materials, Third Party materials or other causes not the fault of Provider.
Client accepts sole responsibility for the use of all Deliverables provided to achieve Client’s intended results, and for the results actually obtained from such Deliverables.
Custom designed and programmed dynamic source code by Provider will be the property of the Provider with a limited software license provided to the client. Limited licensing includes that client may modify the code. Any modifications must be sent to the Provider. The Client will not have the rights to copyright or resell the source code. The Provider retains the rights to reuse the source code in any applications seen fit by the Provider.
The Provider shall have the right to include a credit line on the completed web site designs or any visual representations such as drawings, models, or photographs and this same credit shall be included in any publication of the website design by the Client. The Client shall not, without written approval, use the Provider’s name for promotional or any other purposes with respect to these designs. The Provider’s credit line shall read as follows: “Web Design & Development by NIGHTBIRD WEB SOLUTIONS”.
Provider cannot and shall not be held responsible by Client for any lost revenue, loss of proprietary information or loss of any other information, due to the web solution being hacked.
Appendix B: Additional Terms and Conditions
I. Use of Names and PropertyA. License to Client Client is hereby granted a limited, non-exclusive, revocable license to use Provider’s name, trademarks, logos and/or service marks only with Provider’s prior written permission, which Provider is free to withhold for any reason or no reason, and only in connection with and to the extent necessary for Client to perform under the terms and conditions of this Agreement.
This limited license shall terminate immediately when this Agreement terminates. After this limited license terminates, Client shall not reference Provider’s name, trademarks, logos and or service marks for any purpose without the prior written consent of Provider, which Provider is free to withhold for any reason or no reason. Upon request of Provider and/or upon termination of this Agreement, Client shall immediately return all such materials to Provider and shall destroy any such materials that were produced by Client.
B. License to Provider
Provider is hereby granted a limited, non-exclusive, revocable license to use Client’s name, trademarks, logos and/or service marks as required to perform under the terms and conditions of this Agreement.
This limited license shall terminate immediately when this Agreement terminates. After this limited license terminates, Provider shall not reference Client’s name, trademarks, logos and or service marks for any purpose without the prior written consent of Client, which Client is free to withhold for any reason or no reason. Upon request of Client and/or upon termination of this Agreement, Provider shall immediately return all such materials to Client and shall destroy any such materials that were produced by Provider.
Notwithstanding the foregoing, Provider is authorized to keep electronic copies of Client’s name, trademarks, logos and/or service marks for archival purposes.
A. Ownership by Client
All documents, text, photographs, video, pictures, animation, sound recordings, computer code, and all other works of authorship and materials provided by Client, together with all images, likenesses, voices, and other characteristics contained therein (collectively, the “Client Works”) shall remain the property of Client and its licensors. Client hereby grants to Provider the nonexclusive right and license to duplicate, distribute, modify, display and transmit the Client Works as necessary to create any deliverables required by the Services and to otherwise enable Provider to perform the Services and to exercise any rights granted to Provider under this Agreement.
B. Ownership by Provider
Except for the Client Works and subject to the license to the Client set forth below, the results of all Services and all deliverables produced by Provider as part of the Services, including all inventions, modifications, enhancements, derivative works, discoveries, processes, methods, designs and know- how, whether or not copyrightable or patentable, which Provider may conceive or make, either alone or in conjunction with others, during the term of this Agreement, which in any way pertain to or are connected with the Services (collectively, “Work Product”) are and shall remain the property of Provider, and all rights, title, and interests therein, including copyrights, shall vest in and are hereby assigned to Provider. Client agrees to take such actions as may be reasonably requested by Provider to affect the intent of this Section I, including but not limited to, the making of further written assignments in a form
reasonably requested by Provider. Nothing in this Agreement shall preclude Provider from developing for itself, or for others, materials or information which are similar or identical in purpose or functionality with the Work Product. Upon final payment of all amounts due Provider hereunder, Client shall have a fully paid perpetual right and license to use the Work Product provided by Provider hereunder.
III. Rights to Intellectual Property
All work product is provided to Client on a non-exclusive, licensable basis and Provider shall have all ownership rights therein. Ownership rights shall include: (1) all right, title and interest, and all United States and foreign intellectual property rights including, without limitation, patents, trade secrets, and copyrights; (2) the right to use, duplicate, and disclose the property and data, in whole part, in any manner and for any purpose and to authorize others to do so; (3) the exclusive right to prepare derivative works of the property and of any portion thereof, with full rights to authorize others to do the same; (4) the right to exploit the property, for profit or otherwise; and, (5) the right to register ownership interest in the property.
Client shall retain all ownership rights to any preexisting tools, procedures and methodologies utilized by Client personnel in the provision of services and Provider shall acquire no rights therein.
Provider shall have all Ownership Rights to any improvements to Client tools, procedures and methodologies developed in the course of performing services for Provider, all of which shall be deemed Work Product specifically created for Client’s non- exclusive use.
Provider may disclose to Client certain proprietary and confidential trade secret information of Provider and/or third parties which has been entrusted to Provider (collectively, “Confidential Information”) solely for the purpose of executing under the terms and conditions of this agreement.
“Confidential Information” means any information, including but not limited to, technical or non-technical data or know-how relating to research, discoveries, product plans, formulas, patterns, compilations, devices, methods, techniques, processes, products, services, actual or potential customers or suppliers, markets, software, programs, developments, inventions, designs, drawings, engineering, hardware configuration information, marketing, finances, or any other matter, whether relating to Provider or third parties, disclosed by Provider directly or indirectly in any manner, whether in writing, orally, or visually, including but not limited to, by drawings or inspection by Client, or by any other means. The absence of any notice of confidentiality on any materials disclosed shall not give rise to an inference that the information disclosed is not Confidential Information.
C. Nondisclosure and Use of Confidential Information
Client agrees not to use any of Provider’s Confidential Information for its own use or for any reason except as necessary to accomplish the purpose set forth herein. Client shall not disclose any of Provider’s Confidential Information to third parties or to employees and/or contractors of Client, except those persons or entities who are reasonably required to have access to the Confidential Information in order to accomplish the purposes set forth herein and who have signed written agreements with Client in a form acceptable to Provider and in which such third parties agree to protect the confidentiality of such third party Confidential Information. Client shall be liable for any breach of this Agreement by its employees and contractors and shall take all reasonably necessary steps, including pursuing appropriate court action at its expense, to prevent the unauthorized use and disclosure of Provider’s Confidential Information by its employees and contractors. Client agrees that if it receives and/or becomes aware of any third party request for any such Confidential Information, including a valid request for such information as may be ordered by a court of competent jurisdiction, it shall immediately notify Provider of the nature of such request and fully disclose the details of same.
D. Protection of Confidential Information
Client agrees to take all steps reasonably necessary to maintain and protect Provider’s Confidential Information in the strictest confidence for the benefit of Provider, and to prevent the unauthorized use, disclosure and/or misappropriation of such Confidential Information, including but not limited to, the exercise of the highest degree of care used by Client to protect its own Confidential Information of a similar nature. Client agrees to notify Provider promptly in writing of any unauthorized use, disclosure and/or misappropriation of Confidential Information of which Client may become aware.
E. Copies; Return of Confidential Information
Upon completion of Client’s use of the Confidential Information for the purpose described herein, or upon request by Provider at any time, or upon termination of this Agreement for any reason, all materials and documents which have been furnished by Provider to Client shall be promptly returned to Provider, accompanied by any copies thereof made by Client. Upon Provider’s request, Client shall provide Provider with a sworn affidavit certifying that it has returned all Confidential Information in accordance with this Agreement.
The provisions of this Section IV shall survive return of the Confidential Information to Provider and the term of this Agreement.
The Parties understand and agree that the other Party has each expended substantial time, money and effort over a number of years to develop a continuous and long-standing relationship with its customers. In consideration thereof, the Parties agree and covenant that during the initial and/or renewal term(s) of this Agreement and for a period of one (1) year following its termination, neither shall, either alone or in association with others, directly or indirectly, propose, render or furnish Services to current clients or customers of the other Party. Additionally, the Parties agree that neither will contact any existing clients or customers for the purpose of inducing them to switch to another provider of similar Services.
The Parties agree that if a client or customer is contacted in violation of the Agreement, the other Party will suffer immeasurable and irreparable harm for which monetary damages would be an inadequate legal remedy. Therefore, the Parties agree that in addition to any damages that may be available, the other Party shall be entitled to injunctive relief and that the damaged Party may, at its option, terminate this Agreement and shall be relieved of its obligations hereunder.
During the course of this Agreement, Client may, from time to time, use one or more Provider Employees and/or Contractors of Provider to perform under the terms of this Agreement. During the term of this Agreement and for a period of two (2) years thereafter, Client shall not, without the written consent of Provider (which may be withheld for any reason or for no reason) hire nor attempt to hire any Provider Employees and/or contract directly with any Provider Contractors introduced as part of the fulfillment of this Agreement.
Client hereby agrees that liquidated damages for breach of this Section VI by Client shall be four (4) times the annual salary paid by Provider to its highest paid employee who provided any services to Client during the initial and/or subsequent term(s) of this Agreement, and that such a measure is reasonable. Client further agrees that if a Provider employee and/or contractor of Provider is contacted in violation of the Agreement, Provider will suffer immeasurable and irreparable harm for which monetary damages would be an inadequate legal remedy Therefore, Client agrees that in addition to any damages that may be available, Provider shall be entitled to injunctive relief and that Provider may, at its option, terminate this Agreement and shall be relieved of its obligations hereunder.
A. Warranties/Indemnities of Client
Client represents and warrants that Client has the power and authority to enter into this Agreement; that Client is the owner or licensee of all rights necessary and appropriate to grant the licenses and rights hereunder with respect to the Client Works and any portions thereof; that the Client Works are original except for material in the public domain and such excerpts from other works as may be included within the Client Works by written license to Client from the owner of the rights thereto; that the Client Works do not contain any libelous material; and that the Client Works do not infringe any U.S. copyright, patent, trade secret, trademark or other intellectual property or other right of any party existing as of the date of their creation. Client agrees to defend, indemnify, and hold harmless Provider, its affiliates, officers, directors, and employees for any losses, costs, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) arising out of any claims, suits or proceedings alleging facts that would be a breach of these warranties set forth in this Section VII.
B. Warranties/Indemnities of Provider
Provider represents and warrants that Provider has the power and authority to enter into this Agreement; that Provider is the owner or licensee of all rights necessary and appropriate to grant the licenses and rights hereunder with respect to the Work Product and any portions thereof; that the Work Product is original except for material in the public domain and such excerpts from other works as may be included within the Work Product by written license to Provider from the owner of the rights thereto; that the Work Product does not contain any libelous material; and that the Work Product does not infringe any U.S. copyright, patent, trade secret, trademark or other intellectual property or other right of any party existing as of the date of its creation. Provider agrees to defend, indemnify, and hold harmless Client, its affiliates, officers, directors and employees for any losses, costs, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) arising out of any claims, suits or proceedings alleging facts that would be a breach of the warranties set forth in this Section VII.
EXCEPT AS STATED IN THIS SECTION VII, ALL SERVICES ARE PROVIDED AS IS, AND PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE OR DEALING, CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, LACK OF VIRUSES, ACCURACY OR COMPLETENESS, AVAILABILITY, RELIABILITY, RESULTS, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, QUIET ENJOYMENT, QUIET POSSESSION, AND/OR CORRESPONDENCE TO DESCRIPTION.
VIII. Limitation of Liability
PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNT RECEIVED UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. PROVIDER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS. PROVIDER WILL HAVE NO LIABILITY TO CLIENT FOR ANY INCOME THAT MIGHT HAVE BEEN EARNED UNDER THIS AGREEMENT BUT FOR THE INABILITY OR FAILURE OF PROVIDER TO PROVIDE SERVICES TO OR ON BEHALF OF CLIENT, OR IN THE EVENT OF DISCONTINUATION OR MODIFICATION OF THE SERVICES.
IX. Binding Nature and Assignment
This Agreement shall be binding upon and inure solely to the benefit of the Parties hereto and their respective heirs, executors, administrators, personal representatives, permitted successors and assigns, and nothing in this Agreement shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except as expressly provided herein.
Except as expressly provided herein, or as agreed to by Client and Provider, neither Party may, nor shall have the power to assign, delegate or transfer this Agreement without the prior written consent of the other party, provided that such consent shall not be unreasonably withheld by either party.
For purpose of this Agreement, the following transaction relating to the Parties shall not be deemed an assignment of the Agreement and shall not give rise to any requirement of approval or consent by any Party to this Agreement: any merger (including, without limitation, a re-incorporation merger), consolidation, reorganization, stock exchange, sale of stock or substantially all of the assets of the Party or other similar or related transaction in which either Party, as applicable, is the surviving entity, or if not the surviving entity, the surviving entity continues to conduct the business conducted by such Party prior to consummation of the transaction.
Notices will be sent to the representatives’ names as they appear for the Parties as set forth on the signature page of the Project Brief, with such notices sent to the addresses or facsimile numbers provided therein, unless either party notifies the other in writing of an address or facsimile number change.
Any notice required by this Agreement will be effective and deemed delivered:
Three (3) business days after posting with the United States Postal Service when mailed by Certified Mail, return receipt requested, properly addressed and with the correct postage;
One (1) business day after pick-up for delivery by the courier service when sent by overnight courier, properly addressed and prepaid; or,
One (1) business day after the date of the sender’s electronic confirmation of receipt when sent by facsimile transmission with a copy sent by regular mail.
A. Effective Date
This Agreement shall be deemed effective as of the date set forth on the signature page of the Project Brief.
The parties agree that any disagreement or controversy arising between them relating to this Agreement that cannot be settled by negotiation shall be resolved by arbitration. Such arbitration shall be conducted according to the commercial arbitration rules
then in effect of the American Arbitration Association in Cook County, Illinois, with initiation of arbitration made by either Party serving notice to the other Party, and the parties agree that in any such arbitration injunctive or equitable relief may be awarded in order to effectuate the intent of the parties to this Agreement.
State and federal courts for Cook County, Illinois, shall have jurisdiction over any action or proceeding to enforce any award of the arbitrator in any such proceeding.
This agreement to arbitrate is intended to be binding upon both Parties. Any award the arbitrator makes shall be final and binding on the Parties and judgment on it may be entered in any court of competent jurisdiction.
C. Attorneys’ Fees
If either Party hereto (or any successor thereto) resorts to legal action, including arbitration, in order to enforce, defend or interpret any of the terms or the provisions of this Agreement, the prevailing Party shall be entitled to receive, in addition to such other remedies as shall be awarded to it in such legal action, reimbursement from the non-prevailing Party for all attorneys’ fees and all other costs incurred by commencing, maintaining or defending such action. In addition, the prevailing Party (as determined by the arbitrator in any arbitration proceeding) shall be entitled to recover from the non-prevailing Party post-judgment attorneys’ fees incurred in enforcing a judgment against the non-prevailing Party.
D. Governing Law
This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to Illinois’ choice of law principles. Any and all legal proceedings brought by any party hereto relating to the subject matter hereof shall be maintained in the Federal or State Courts in Cook and/or Lake County, Illinois, which courts shall have exclusive jurisdiction for such purposes.
Each Party to this Agreement has had ample time to review the content herein and to benefit from the advice of legal counsel. Therefore, this Agreement shall be construed without regard to which Party was responsible for its preparation.
Every provision of this Agreement is intended to be severable. If any term and/or provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such term and/or provision shall be modified to the minimum extent required for it to become legal and/or valid. Such invalidity, illegality or unenforceability shall not affect, impair or invalidate any other term or provision herein and all remaining terms and provisions shall remain in full force and effect to the extent allowed by law.
Failure of either Party to enforce any of the provisions of this Agreement, or any rights with respect thereto, or failure to exercise any election provided for herein, shall in no way be considered a waiver of such provisions, rights or elections, or in any way affect the validity of this Agreement.
H. Successors and Assigns; Rights; Survival
This Agreement shall be binding on and inure to the benefit of the Parties and their permitted successors and assigns. Client acquires no rights as a third party beneficiary or otherwise in or with respect to Provider’s relationship with any Customer. All obligations of either Party which expressly or by their nature survive the expiration or termination of this Agreement, including (without limitation), Sections I, II, III, IV, V, VI, VII, VIII and IX shall continue in full force and effect.
I. Force Majeure
Neither Party shall be responsible for, nor shall they be considered in breach or default of this Agreement, on account of any failure to perform or delay in the performance of any obligation hereunder caused by an act of God, flood, fire, storm, earthquake, hacker, war, insurrection, riot, labor disturbance, including strike and lockout, equipment malfunction, cut wire or fiber, governmental regulation or interference or other events not within the reasonable control of the responsible Party and which such Party is unable to overcome by the exercise of reasonable diligence. J. Change of Terms This Agreement cannot be changed or modified except in writing when duly signed by authorized representatives of both parties. K. Captions; Headings Captions and headings contained in this Agreement are for convenience only and shall neither define, limit nor extend the scope of this Agreement nor affect the meaning or interpretation of this Agreement. L. References Wherever from the context of the Agreement it appears appropriate, each term used in either singular or plural shall include both singular and plural; pronouns stated in masculine, feminine or neuter genders shall include the other genders. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written.” Wherever the word “Agreement” is used with the first letter capitalized, it refers to this Agreement as a whole, including all Exhibits incorporated
herein by reference, and not to any individual provision of this Agreement. M. Relationship of Parties; Status as Independent Contractors The Parties hereby acknowledge that they are independent companies and that neither Party is an employee, partner, joint venture partner, representative or franchisee of the other Party. Each Party will have total control of the management of its business, subject to the limitations contained in this Agreement.
Neither Party may enter into any Agreement on behalf of the other Party or otherwise obligate the other Party without the other Party’s prior written approval, which the approving Party may withhold for any reason or no reason. N. Standard of Conduct In performing under this Agreement, both Parties shall observe the highest level of integrity and fair dealing and shall do nothing to discredit, dishonor, reflect adversely upon or in any manner injure the reputation or business of the other Party. Both Parties shall abide by all applicable laws, rules and regulations that may be required by Federal, state or local jurisdictions. O. Whole Agreement These Terms and Conditions, along with the Project Brief and any subsequent Work Orders, constitute the complete and exclusive agreement between the Parties with respect to subject matter herein, supersede all prior discussions and agreements between the Parties, and no other agreements, either express or implied, shall be binding on either Party
Scope of Work