DOUBLE FOX WEBSITES IS ONLY WILLING TO PROVIDE THE SERVICES TO YOU UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS AND REMEDIES.
This Web Services Provider Agreement (“Agreement”) is entered into by and between Double Fox Websites (“Double Fox Websites”), and Company Name (“Client”), on the terms and conditions as hereinafter set forth.
Double Fox Websites offers electronic Website construction and hosting services utilizing standard Web software and systems. The website will provide Client with a website based on the Website Scope accepted by Client. Double Fox Websites and Client are entering into this Agreement for the provision of these website construction and hosting services on the terms and conditions set forth below.
Now, therefore, in consideration of the foregoing recitals, and the following mutual promises, covenants, terms, conditions, and agreements, the parties do hereby agree as follows:
1. License Grant and Deliverables. Client will provide Double Fox Websites with additional content and updated Client materials (including text, audio, video or picture additions, and ongoing and final editing) as required to implement the installation, configuration, and deployment of the Client Website in accordance with the specifications set forth in Website Specifications included in the Client’s Website Scope. Double Fox Websites shall use its commercially reasonable efforts to implement the installation, configuration, and deployment of software for Client Website.
2. Copyrights and Trademarks. Client represents to Double Fox Websites and unconditionally guarantees that any elements furnished to Double Fox Websites for inclusion in the project are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Double Fox Websites and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
3. Assignment of Project. Double Fox Websites reserves the right to assign subcontractors to this project to insure the right fit for the job as well as on-time completion.
4. Ownership. Client retains all rights, title and interest, subject to the license granted herein, and to the content and materials utilized on his/her Website.
5. Acceptance. Once Double Fox Websites has completed the installation, configuration, and deployment of the software for the operation of the Client Website, Client will accept or reject such work within 10 days after completion. Failure to give notice of acceptance or rejection within that period will constitute acceptance. If Client rejects the work on his/her Website, he/she will provide Double Fox Websites with written notice of any material nonconformities with specifications Client previously submitted to Double Fox Websites prior to development, and Double Fox Websites will use reasonable commercial efforts to correct the specified objections within thirty (30) days of the written rejection notice.
6. Obligations of Double Fox Websites. Double Fox Websites will use reasonable commercial efforts, and shall be solely responsible for installation, configuration, and deployment of software and production costs associated with the Client Website. Double Fox Websites reserves the right to assign subcontractors to this project to insure the right fit for the job as well as on-time completion.
7. Payment for Services. Once this Agreement has been accepted, Client shall pay the monthly amount, as stipulated in the Website Scope to Double Fox Websites as its fee for services rendered to Client pursuant to this Agreement. This fee includes Double Fox Websites Premium Hosting package and is subject to change over time. All payments will be made in US funds. The first payment is due upon acceptance of this Agreement. The return of a check (electronic or paper) issued to Double Fox Websites will result in a $25.00 returned check fee.
8. Project Revision During Execution and Additional Cost Allowances. Client may be charged additional fees if he/she decides to make changes to the agreed upon project scope and objectives. Final text and custom photography will be supplied by the Client. This agreement does not include copywriting, editing or photography services. All images on the website will be supplied by the Client. Double Fox Websites may also provide estimates for the following additional services if they are required for completion of the project:
• Additional design time for tweaks and changes beyond the stipulated design hours
• Recurring fees for domain name and email services
• Setup of email and/or domain name accounts
• Domain name and DNS transfers
• Purchase of specific fonts
• Purchase of specific photography
• Editing of images furnished by client (renaming, resizing, touch-ups, etc.)
• Copywriting and editing of content
• Purchase of specific software or plugins
• Purchase of specific third party services
• Setup and configuration of third party services
• Customization of website template beyond three revisions
• Additional changes or redesign of website template once initial design has been finalized
• Configuration of additional pages and/or widgets beyond the scope of this agreement
• Supplemental training as requested by the Client
9. Disclaimer of Warranties. Double Fox Websites hereby disclaims all other warranties to Client or end users of the website, express or implied, statutory or otherwise, with respect to website content and services for a particular purpose and non-infringement. The express limited warranty stated above is in lieu of all liabilities or obligations of Double Fox Websites for damages including, but not limited to, incidental or consequential damages occurring out of or in connection with the use or performance of the website. Double Fox Websites assumes no liability arising from or related to, and Client agrees to indemnify and hold Double Fox Websites harmless from and against, any third party claim, loss or damage (including attorney’s fees) against Double Fox Websites asserting a patent, copyright, trademark, trade secret or other proprietary right, infringement or violation based upon product, content and services provided through the Website.
10. Copyright to Project. Double Fox Websites guarantees that all aspects of design and construction of the project will be disclosed to Client upon completion, and full code, design, copyrights and ownership will be the sole property of Client after 30 monthly payments have been paid in full. Double Fox Websites retains the right to display graphics and other design elements as examples of its work in its portfolio.
11. Term and Termination. This Agreement shall commence upon execution of this Agreement, and shall continue until either Double Fox Websites or Client provides written notice of termination as provided herein. If either party defaults in a payment or other material obligation under this Agreement and continues in default for a period of thirty (30) days after written notice of default is given to it by the other party, the other party may terminate this Agreement upon written notice of termination given to the defaulting party.
12. Relationship of the Parties. It is understood that services to be performed by Double Fox Websites in connection with this Agreement are to be performed as an independent contractor. Notwithstanding anything herein to the contrary, this Agreement does not and shall not be deemed to constitute a partnership or joint venture between Double Fox Websites and Client, and neither party nor any of their respective directors, officers, employees or agents shall, by virtue of the performance of their obligations under this Agreement, be deemed to be an agent, partner, venturer or employee of the other.
13. Limitations of Double Fox Websites Responsibilities.
(i) Client acknowledges that it is at the sole discretion of Client as to what material or content is placed on and what products or services are offered on his/her Website. Double Fox Websites does not make any express or implied warranty including, without limitation, implied warranties of merchantability and fitness for a particular purpose of any information, service or products to Client pursuant to this Agreement.
(ii) The nature of the Internet is that it is a highly unregulated information utility and is therefore subject to unpredictable outages and various access abuses by persons or groups for unsanctioned and unauthorized uses. While Double Fox Websites will take precautions to insure that Website utility remains high and that abuses are minimized, Double Fox Websites cannot, in any manner whatsoever, warranty service availability or insulate the Client Website from unauthorized abuses. Client fully acknowledges that their existing hosting facility is directly connected to the global Internet and is therefore accessible to all users of the Internet and has taken whatever precautions–such as firewalls, proxy servers and network address translation – that Client finds advisable in order to sufficiently protect his/her Website, its equipment and information and content stored on the equipment.
(iii) Double Fox Websites shall not be liable for any unauthorized intrusion or disruption of Client’s equipment or service associated with his/her Website. Client agrees to indemnify and hold Double Fox Websites harmless from and against any actions or damages resulting from the use of incorrect, false, illegal, improper or unauthorized information in the content of any of Client ‘s Internet servers, information or advertising.
(iv) In no event will Double Fox Websites be liable to Client, or any third party for any claims arising out of or related to Client’s business. Double Fox Websites shall not be liable for any damages associated with the interruption or loss of use of services, even if advised of the possibility of such damages. Double Fox Websites’ maximum aggregate liability to Client, related to a claim arising under this agreement, or any contract, negligence, strict liability or other theory, will be limited to the total amount paid by Client to Double Fox Websites for the services giving rise to such claim in the three (3) months prior to the occurrence of such claim. Neither party will be liable under any contract, negligence, strict liability or other theory for any lost revenue, lost profits, incidental, punitive, indirect or consequential damages with respect to any subject matter of this agreement.
14. Remedies. If either party defaults in the performance of this Agreement, then in addition to all other remedies provided herein, the non-defaulting party may seek any other remedy available at law or inequity, as limited by this Agreement.
15. Notices. All notices required or permitted to be delivered hereunder shall be in writing and shall be deemed to have been duly given if delivered in person or mailed by registered or certified mail, return receipt requested, and addressed to the other party at the address shown below for such party. Such addresses may be changed by written notice given in accordance with this paragraph.
17. Dispute Resolution. If any dispute or controversy shall arise between the parties hereto with respect to: the making, construction, terms or interpretation of this Agreement; the rights of any party hereto; or any transaction involved; the dispute or controversy shall be attempted to be resolved by mediation. If the dispute or controversy is not resolved by mediation, then the dispute or controversy shall be settled by arbitration by a qualified and impartial arbitrator selected by agreement of the parties and, failing such agreement, then the parties shall each select an arbitrator which arbitrators shall then select a third arbitrator who will conduct the arbitration.
18. Attorney’s Fees. If any party brings an action or is otherwise required to employ counsel to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and court costs in addition to any other remedy it may obtain or be awarded.
19. Number; Gender. Wherever the context of this Agreement requires, all words used in the singular shall be construed to have been used in the plural, and vice versa, and the use of any gender specific pronoun shall include any other appropriate gender. The term “person” shall refer to any individual, partnership, corporation or legal entity having authority to bring an action in its own name under Texas law.
20. Construction. This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas. Any action brought to enforce or interpret this Agreement shall be brought in Travis County, Texas.
21. Time. Time is of the essence to the performance of each and every obligation under this Agreement.
22. Amendments. This Agreement may be amended or modified only by a written instrument executed by the parties to this Agreement.
23. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the parties, and their respective representatives, successors and assigns, and other legal representatives, without limitation, as described in Paragraph 13 hereof.
24. Assignment. This Agreement may not be assigned without the express written consent of the other party hereto.
25. Headings. The headings of this Agreement are inserted for convenience of reference only and are not to be used in construing or interpreting any of the provisions of this Agreement.
26. Entirety of Agreement. This Agreement constitutes the entire agreement between the parties respecting the subject matter contained herein. There are no oral or other agreements or understandings between the parties that are not contained in this Agreement.