Website Design and Marketing Agreement
This WEB SITE DESIGN AND MARKETING AGREEMENT is an agreement between Homestead’s ("Company") and the party set forth in the related order form ("Customer" or "you") incorporated herein by reference (together with any subsequent order forms submitted by Customer may be collectively referred to as the "Order," and the Order together with this agreement may be collectively referred to as the “Agreement”) and applies to all design and/or marketing services purchased by Customer as described on the Order (collectively, the “Services”) in connection with Customer’s website (the “Website”). This Agreement is a legal contract between you and Company that you are entering into in conjunction with the Order and it is important that you read it carefully.
Company may in its sole discretion change or modify this Agreement at any time. We will post a notice of any significant changes to this Agreement on the Company website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date these terms were last revised. Any changes or modifications to this Agreement shall be effective and binding on you as of the date indicated in a notice posted on this page, together with any options you may have as a current customer to accept or reject changes, where required by law or otherwise made available. If no date is specified, your use of the Services after such changes or modifications shall constitute your acceptance of the Agreement as modified. If you do not agree to abide by this Agreement, you are not authorized to use or access the Services and your sole remedy is to cancel your Services.
1. TERM AND TERMINATION
A. Term. This Agreement shall be effective as of the date set forth on the Order and shall continue for the minimum term set forth on the Order (the “Minimum Term”). Upon completion of the Minimum Term, this agreement will automatically renew for additional one (1) month terms (each a “Renewal Term”). The Minimum Term and all Renewal Terms shall collectively be referred to as the “Term.” This Agreement shall remain in force until the completion date of the Services. Company cannot guarantee the Services will be completed by a specific date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner.
B. Termination. This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees due hereunder; or (ii) if Customer fails to cooperate with Company or hinders Company's ability to perform the Services. If Customer terminates this Agreement prior to the completion of the Minimum Term, Company may charge Customer an early termination fee as described in Section 8 below.
2. SCOPE OF SERVICES
A. Scope of Work. Company agrees to provide the Services in accordance with the Order. Unless modified by Company with notice to the Customer, the scope of the Services is outlined in the welcome email sent to the customer.
B. Changes to Order. Any changes to the Order, must be documented in writing and submitted through Company’s ticketing system (the "Change Order"). In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
3. CUSTOMER RESPONSIBILITIES
Customer agrees to perform all tasks required of it under this Agreement, including any Order or Change Order, and to provide all necessary assistance and cooperation to Company in order to complete the Services in a timely manner. It is solely your responsibility to provide any equipment or software that may be necessary for your use of the Services and to ensure that such equipment and software are compatible with the Services. To the extent that the performance of any of Company’s obligations under this Agreement may depend upon your performance of your obligations, Company is not responsible for any delays due to your failure to perform your obligations in a timely manner.
4. LICENSE GRANT
Solely for purposes of providing the Services, you hereby grant to Company a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, intellectual property, or material (whether written, graphic, sound, or otherwise) provided by Customer, including without limitation, Customer’s logos and trademarks (collectively the “Customer Content”); and (ii) make archival or back-up copies of the Customer Content and the Website. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with you.
5. WEBSITE DESIGN
A. Design. The design of the Website shall be in substantial conformity with the reasonable specifications provided by Customer to Company. Customer will deliver such specifications to the design agent during the initial phone consultation and/or through the email ticketing system. Upon Company’s completion of the design, Customer will have the option to either (i) review the Website with a Company representative during an additional phone consultation (approximate duration of 30-45 minutes), or (ii) review the Website and provide feedback to Company via email, to determine if further revisions are necessary or if the Website is ready to launch.
B. Revision Process. Customer may submit the Website for up to two (2) rounds of revisions or as otherwise set forth in the Order. Customer is encouraged to provide as much instruction and direction as possible with each submission for revisions.
C. Accessibility of Website During Construction. Throughout the construction of the prototype and the final Website, the Website will be accessible to Customer through the Customer’s hosting account file manager. Until Customer has approved the final Website, none of the web pages for Customer's Website will be publicly accessible.
D. Content Delivery. Customer must provide Company with the complete Customer Content for all web pages of the Website within thirty (30) days of the date of the Order unless otherwise agreed by Company. If Customer does not submit complete Customer Content by such deadline, Company retains the right to cancel the project and Customer is not entitled to any refund of any fees paid.
E. Copyright to Website. Customer acknowledges, understands and agrees that Company may use its own and/or may purchase third party licenses for products or services that are necessary for Company to design and develop the Website. Such products may include, but are not limited to, server-side applications, clip art, "back-end" applications, music, stock images, or other copyrighted work (collectively, "Third Party Content") which are required for Company to design and develop the Website. Customer further acknowledges and understands that any Third Party Content used to design and develop the Website is owned by Company and/or such third parties and cannot be transferred to Customer and is hereby specifically not transferred to Customer and shall remain the property of Company and/or such third parties. Third Party Content which is owned and/or purchased by Company may also be used in the design and/or development of websites for other customers of Company. Subject to the limitations set forth in this Section 5, upon payment of the fees due to Company under this Agreement, Customer shall retain a worldwide right, title, and interest in and to the Website (including, its source code and documentation). Company and its licensors expressly retain the right to display graphics and other web design elements of the Website as examples of their work in their respective portfolios.
F. Prohibited Content. Company will not knowingly include any of the following in the Website or in Customer's directory on Company's web servers: (i) text, graphics, sound, or animations that might be viewed as obscene or illegal; (ii) links to other websites that might be viewed as obscene or related in any way to illegal activities; (iii) invisible text, metatags (i.e., text that is present only when a "webcrawler" or other web indexing tool accesses the Website), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or (iv) destructive elements or destructive programming of any type, all as determined by Company in its sole discretion.
6. MARKETING SERVICES
A. Services. Depending on the Services purchased by Customer, Company may provide Customer with one or more of the marketing services described below and in further detail in the applicable Order.
- Managed Local Lift Services. Company may provide Customer with managed local lift services (“Managed Local Lift Services” or “Managed Local Lift”) pursuant to the terms of an Order. In connection with Company’s provision of such services, Customer authorizes Company to update directory listings for business name, address, phone number, hours of operation and other business-specific information that Company determines in its sole discretion is essential to the Managed Local Lift Services. Furthermore, once a directory listing is updated with the information from Customer’s Managed Local Lift profile, Customer authorizes Company to take commercially reasonable measures to prevent common internet databases from overwriting the information during the Term. In connection with the Managed Local Lift Services, Customer is required to maintain a Local Lift account for the duration of the Term. Please note that upon the termination or expiration of the Term, Company will no longer have access to update Customer’s business information and Customer’s directory information may be overwritten at any time.
- SEO Services. In connection with Company’s provision of search engine optimization services (“SEO Services”), Customer authorizes Company to use the specific keywords and/or phrases set forth in the applicable Order for developing, improving the ranking of, and/or positioning the contents of the Website in search engines and/or directories. SEO Services are intended to obtain preferential positioning for the Website in selected search engines and report results on an ongoing and timely basis.
- Search Engines. Selected search engine submissions include Google, Yahoo (web pages only) and Bing, but may change at any time without notice.
B. Customer Acknowledgements. Customer understands, acknowledges and agrees that:
- Company has no control over the policies of search engines or directories with respect to the type of websites and/or content that they accept now or in the future. The Website may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity. Company will resubmit those web pages that have been dropped from the index but cannot guarantee that they will be accepted by the search engine.
- Some search engines and directories may take two (2) to four (4) months or longer after submission to list the Website. Certain search engines and directories may stop accepting submissions for an indefinite period of time. Certain search engines and directories may drop listings for no apparent or predictable reason. Often a listing will "reappear" without any additional submissions. Should the listing not reappear, Company will re-submit the Website based on the current policies of the search engine or directory. Certain search engines and directories may offer expedited listing services for a fee. Customer is responsible for all expedited service fees unless otherwise expressly stated and such fees will only be incurred with the Customer’s prior approval.
C. Website Changes. Company is not responsible for changes made to the Website that adversely affect the search engine or directory rankings of the Website provided that Company did not make such change.
D. Additional Services. Additional services and rates for such services may be provided as set forth in a separate Order, including for example, re-constructing meta-tags, keywords, and content. Company is not responsible for Customer's overwriting SEO Services work to the Website.
7. MAINTENANCE AND REPAIR
The Services do not include maintenance of the Website. Customer is solely responsible for maintaining the Website once it is completed. The completion date of the Website is stated in the Customer’s account. Any changes to the Website requested by Customer outside of the scope of the Services as set forth in this Agreement, the Order, or any Change Order, will be billed at the hourly rates set forth in the Order.
A. Development Fee. The fee for the Services shall be set forth in the Order (the "Development Fee").
B. Early Termination Fee. If the Customer terminates this Agreement prior to the completion of the Minimum Term, Company may charge Customer an early termination fee in an amount equal to the fees due for the number of whole months remaining in the Minimum Term at the time of termination, not to exceed three hundred dollars ($300) (the “Early Termination Fee”).
C. Project Abandonment. If after repeated attempts to begin, continue, or finalize the Services, Customer fails to participate, or becomes otherwise unresponsive to Company’s requests for a period of three (3) months or longer, the project may be considered abandoned and Customer shall not be eligible for a refund of any kind.
D. Hosting Payments. Customer must maintain the hosting account(s) connected with the Website in good standing. Any delays by Company in delivering the Services will not be a reason to delay payment for hosting services. If a Customer’s hosting account becomes past-due, Company may delay or suspend the Services until the account is in good standing. Failure to pay for hosting services may also result in cancellation of the Services without a refund.
9. REPRESENTATIONS AND WARRANTIES
A. Company Representations and Warranties. Company represents and warrants that the Services will be provided consistent in all material respects with the applicable Services descriptions available on the Company’s website and the Order. Your sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranty shall be for Company, at its option, to re-perform the defective Services at no additional cost to you. The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third-party equipment not within Company’s sole control.
B. Disclaimer. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USERS OR STORED BY USERS ON OR THROUGH THE SERVICES. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
C. Customer Representations and Warranties. Customer represents and warrants that the Customer Content provided by Customer to Company for inclusion in the Website are owned by Customer, or Customer has permission from the rightful owner to use such intellectual property, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from Company’s use of the Customer Content in connection with the Services.
10. COMPLIANCE WITH LAWS
Customer agrees that it is solely responsible for complying with all applicable laws, taxes, and tariffs in connection with the Website, including without limitation those affecting Internet electronic commerce, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer's use of the Services or the Website.
11. LIMITATION OF LIABILITY
A. IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM CUSTOMER’S USE OF THE SERVICES, INCLUDING FROM ANY INTERRUPTION OF SERVICES, EVEN IF COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY'S LIABILITY TO CUSTOMER OR ANY PARTY CLAIMING THROUGH CUSTOMER FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE DEVELOPMENT FEE PAID BY CUSTOMER TO COMPANY FOR THE SERVICES. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
12. FORCE MAJEURENeither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
13. RELATIONSHIP OF PARTIES
Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition 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.
17. ENTIRE AGREEMENT
This Agreement, including documents incorporated herein by reference, constitutes the entire understanding of the parties in connection with the Services, and revokes and supersedes all prior agreements between the parties with respect to the matters covered hereby.
Last modified on May 06, 2019