These APPLICATION DEVELOPMENT AND SERVICES TERMS “TERMS” are agreed to by and between Client (specified in the Letter Agreement) and HAAS/créa Corp., a New York corporation with offices located at 54 West 40th Street, New York, NY 10018 (“Developer”) upon signing the Letter Agreement.
RECITALS
WHEREAS, Client wishes to make a web application, website, software application for mobile devices, server application or any combination thereof as described in the Letter Agreement and/or attached SCOPE.
WHEREAS, Client wants to engage Developer, and Developer is willing to be engaged by Client to design, develop, test, support and maintain the items defined in the SCOPE.
NOW, THEREFORE, Client and Developer hereby agree as follows:
- DEVELOPMENT SERVICES
See the LETTER AGREEMENT and any attached SCOPE for included services and deliverables.
2. COORDINATION AND COMMUNICATION
A. During the initial development period Developer will keep Client informed of the status of Modules and Foundation on at least a weekly basis and as necessary concerning any issues, questions, and challenges that arise or Developer anticipates.
B. During the subsequent development period until the termination or expiration of this agreement, Developer and Client will meet on a regular basis via teleconference, email, or in person, as mutually agreed to discuss the website current status and development objectives.
C. Both Client and Developer agree to place a mutually agreed to credit including an accompanying hyperlink to Client’s website, Developer’s website as appropriate within the web application.
3. TESTING
1. TESTING –tests of the work a as defined in attached SCOPE will be conducted through computers and the relevant devices at Developer’s facilities and Developer shall be fully responsible for the testing environment. Developer will notify client of the beginning of delivery testing. The delivery tests will include a review of the site structure, access controls, administrative components, and accessibility. The delivery test will also demonstrate that the Modules comply with SCOPE and the Client Website operates and functions according to SCOPE. Client shall have 10 days from the beginning of delivery testing (Final Review Period) to evaluate operation functions in order to make comments and ask questions to ensure that Client Website operates and functions in accordance with the specifications and requirements in SCOPE (the “Final Review Period”). After the Final Review Period, any Client requested changes will necessitate a Change Order provided that the Client Website continues to meet the specifications and requirements described in SCOPE.
4. COMMITTED DEVELOPER RESOURCES
A. Developer will engage, assign and commit sufficient skilled human and other resources (including without limitation key personnel and subcontractors) to perform the services described herein.
B. The prices set forth in Letter Agreement are Developer’s complete consideration. If additional resources or resource time are needed to complete and provide the Client Website on schedule, additional resources will be provided by Developer at no additional cost to Client, except to the extent (i) the specifications set forth in SCOPE are modified by Change Order or (ii) Client’s failure to provide information, data or decide on items presented for decision by Developer as requested and where said failure is not remedied by Client within a reasonable period not exceeding 3 days following notice provided by Developer.
5. CHANGE ORDERS
A. Client shall have the right to request changes to the Client Website. Developer shall respond as expeditiously as possible, but in any case within fifteen (15) days.
B. The parties will discuss the feasibility and if so the most effective, efficient and expeditious means of implementing the requested changes in good faith including any rework necessary to or potential inconsistency with previously delivered or performed services.
C. In the event the Developer reasonably determines that the change is not feasible the Developer will inform the Client of reasons for its determination and refuse the change. In the event that such changes will result in additional cost to Client, Developer shall include such costs in its written response. If Client accepts the Developer’s response in writing, then the Change order is an addendum to this Agreement and becomes a “Change Order”.
D. The Client will have two (2) days to accept or reject Developer’s response. During said period Developer shall have the right to suspend performance of the services if in its reasonable opinion continuing performance would result in work effort that might be wasted or which will need to be redone should the change order take effect. If the Client does not accept the Developer’s proposed change within two (2) days following its receipt thereof, then Developer shall proceed with the original agreed upon services.
E. During the subsequent periods, Client and Developer anticipate the opportunity to develop additional modules for inclusion within the Client Website. Developer will propose said modules for inclusion as Change Orders once the terms have been agreed by the parties Change Orders will reference and become attachments to this agreement.
6. OWNERSHIP, LICENSES, FEES AND PAYMENT SCHEDULE
A. Developer retains all know how, intellectual property and other related legal rights (including copyright and trade secret rights) in and to its pre-existing proprietary software and intellectual property whether or not published and other materials, as well as all other software or materials developed by Developer in connection with the performance of the Client Website (collectively, the “Developer Materials”); provided, however, that Client shall have a perpetual, non-exclusive license to use the Developer Materials in connection with the Client Website.
B. Subject to the terms and restrictions of this Agreement, Developer may use the Developer Materials to provide services substantially similar to those contemplated herein.
C. Client intends that the ‘look and feel’ of the Client’s Modules and user interface of Client Website will be designed specifically for Client Website and based on client brand guidelines.
D. Client will pay Developer a one-time fee to create the Client Website (the “Fee”) as described in the Letter Agreement.
E. Client retains all intellectual property rights and any legal rights (including copyright and trade secret rights) it may have in and to its pre-existing data and information that may be provided or otherwise disclosed to Developer to create Modules for the Client Website, including but not limited to all designs and word content. (collectively, the “Client Materials”). In addition, any third-party proprietary data and information provided or disclosed by Client hereunder to create Modules will be treated as Client Materials. Client Materials must be delivered to Developer in written or electronic form. Developer will use Client Materials solely for the purpose of developing Modules and to adapt Foundation to operate with said materials on Infrastructure. Client Materials will be treated as Confidential Information under this Agreement.
F. Developer hereby grants and conveys to Client all rights, title, and interest (including copyrights, patent rights, trade secrets and other intellectual and proprietary rights) in and to the design and graphic systems (including Javascript, Ajax and HTML Markup created by Developer) collectively known as the User Interface of the Modules delivered pursuant to this agreement as work for hire. The conveyance takes place upon payment of the Fee in accordance with the terms and schedule outlined in SCOPE. Client acknowledges that the development of the Client Website necessitates integration and use of third party software and services. Developer does not represent that Developer will convey ownership or license of incorporated third party software or services.
G Developer hereby grants Client a worldwide nonexclusive but not transferable license to use the deliverables and services defined in the SCOPE as delivered and rendered to Client exclusively for use with the Client Website.
H. All tools, processes, programming and programs developed by HAAS shall remain the intellectual property, as pertains to rights and use, of HAAS or their respective owners as pertains to software licensed for or used in development of the project. HAAS reserves the right to confiscate deliverables and/or suspend service for non-payment in accordance with payment terms within this or subsequent agreements.
I. Developer will make reasonable efforts to configure Foundation and third party Infrastructure and hosting to achieve the functionality objectives outlined in SCOPE.
J. Client acknowledges and accepts that the deliverables and services are based on third party, open source and proprietary software and may be modified and adapted by Developer to create deliverables and to render service.. Client acknowledges that Infrastructure and hosting are provided by Client at Client’s own risk and expense. Developer makes no warranty expressed or implied as to the overall reliability, fitness for a specific purpose, or performance of third party services and infrastructure.
7. DEVELOPER PERSONNEL
A. Developer represents and warrants that all personnel assigned to provide the services, or to provide maintenance, support or training, shall be fully qualified to perform the tasks assigned to them, and shall perform all such tasks in a competent and professional manner. To the extent that any subcontractor is used, all obligations, grants and limitations of Developer in this Agreement shall apply to such subcontractor to the same extent as if such subcontractor is “Developer” hereunder, and notwithstanding any agreement entered into by such subcontractor, Developer shall be jointly and severally responsible for the performance by such subcontractor of such obligations, grants, and limitations.
B. Developer is an independent contractor, and no employee or agent of Developer or Developer’s agents or subcontractors shall be deemed to be an employee or agent of Client nor eligible for any Client’s benefits for any reason. In addition, Developer shall indemnify and hold harmless Client, its officer, directors, employees, agents, licensees and customers (collectively, the “Client Parties”) from any and all claims, demands, causes of action, costs, expenses and liabilities, including any and all legal fees, costs and any other expenses, incurred in investigating, preparing for, defending against or settling any commenced or threatened litigation, arbitration, proceeding or claim made by, on behalf of, or relating to any personnel, employees, contractors or agents of Developer against Client.
C. Without limiting the foregoing, and in addition thereto, Developer is solely responsible for, shall bear the cost of and shall ensure compliance with any and all laws, rules, regulations and ordinances applicable to the conduct of the business of Developer and the employment of personnel, including compliance with any and all federal, state, local and/or foreign laws, rules, regulations and ordinances relating to labor or employment, including those relating to equal opportunity, human rights, immigration, non-discriminatory employment practices, family and/or medical leave, termination of employment, data privacy, worker's compensation, unemployment compensation, working time, or disability benefits.
8. MAINTENANCE AND SUPPORT
A. Developer shall use good faith reasonable efforts to timely respond and provide a solution to inquiries made during Client’s normal business hours.
B. During the Initial period defined as two months from execution of this agreement, Developer shall use good faith reasonable efforts to find and correct any fault in the Modules, the Foundation of the Client Website and related deliverables;
C. During the subsequent period, any changes including fault correction and application support will be subject to change order at retainer rates.
D Client agrees that Change Orders may be necessary from time to time to modify or upgrade the deliverables and services and/or Client Website and due to changes in the standard practices and characteristics of web browsers and other third party technologies that are employed when accessing or providing the Client Website.
9. WARRANTIES
Developer represents and warrants to Client as follows:
A. Developer has all right, title, and interest to the original work product it is obligated to license or convey to Client under this Agreement and that no third party has or will have a lien or claim to any such work product.
B. Developer owns or otherwise has the valid right by contract or otherwise to deliver software that forms part of the Modules, the deliverables and services and Client Website and the contractual right to provide services hereunder without violating any applicable law, rule, regulation, or third party’s intellectual property rights.
10. LIMITATION OF WARRANTIES
A. Developer does not warrant that the Client Website will meet the requirements of any Client customer. The Client’s customer is not a third party of this agreement. Client is solely responsible to determine the terms, conditions and service offering it makes to its customers.
B. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, DEVELOPER DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL MEET CLIENT REQUIREMENTS, OR THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
11. INDEMNIFICATION
A. Subject to the limitations of remedies set forth below, Developer will indemnify, hold harmless and defend the Client, its officers, directors, owners, clients, customers, agents, and employees against any and all damages, suits, claims, liabilities, judgments, costs and expenses arising out of or relating to (i) any personal injury or property damage caused by breach of warranties or negligent, unlawful, or willful acts or omissions of the other party, (ii) breach confidentiality obligations by Developer, (iii) breach by Developer of its obligations, representations or warranties set forth in this Agreement, or (iv) an infringement or misappropriation of any third party intellectual property or proprietary rights (including trademark, trade secret, patent, and copyright) by Client’s use or possession of the Client Website or any other materials or deliverables provided hereunder by Developer.
B. Subject to the limitations of remedies set forth below, Client will indemnify, hold harmless and defend the Developer, its officers, directors, owners, clients, customers, agents, and employees against any and all damages, suits, claims, liabilities, judgments, costs and expenses arising out of or relating to (i) any personal injury or property damage caused by breach of warranties or negligent, unlawful, or willful acts or omissions of the other party, (ii) breach confidentiality obligations by Client, (iii) breach by Client of its obligations, representations or warranties set forth in this Agreement, or (iv) an infringement or misappropriation of any third party intellectual property or proprietary rights (including trademark, trade secret, patent, and copyright) by Developer’s use or possession of the Client Website or any other materials or deliverables provided hereunder by Client.
12. INSURANCE
A. Developer and Client shall both maintain, during the term of this Agreement, at its own expense, the following kinds of insurance with minimum limits as set forth below:
(1) Commercial General Liability (including contractual liability) - $1,000,000 per occurrence combined single limit for personal injury and property damage.
13. TERM, TERMINATION AND EFFECT OF TERMINATION
A. This agreement is effective on the date set forth above.
B. Either party can terminate this agreement for breach of the other party in complying with its obligations herein on 30 days prior written notice. The party claiming breach will notify the other party of the alleged breach and actions necessary to cure the breach. If the other party does not cure the breach the claiming party can terminate the agreement with immediate effect.
C. Developer’s obligation to provide services, including the deliverables, shall cease on the termination date.
D. Client’s obligation to pay balances due Developer shall not cease on the termination date.
14. REMEDIES
A. Client’s sole and exclusive remedy for any and all damages whether for breach or any other reason pursuant to this agreement will be the refund of non-recurring expenses set forth in the Letter Agreement which were paid to the Developer herein less any expenses incurred by Developer in conjunction with performance of this agreement.
B. Developer’s sole and exclusive remedy for any and all damages whether for breach or any other reason pursuant to this agreement will be payment of the non-recurring expenses set forth in Letter Agreement which would have been due and payable on acceptance and for any ongoing fees due for services rendered but not paid up to the time of termination.
C. Neither party will be liable to the other for any indirect or consequential damages of any kind including but not limited to lost revenue and profits, loss of business reputation and goodwill whether or not the other party has been advised of the possibility of said damages.
15. GOVERNING LAW
The laws of the State of New York will govern all rights, duties, and obligations arising from or relating in any manner to the agreement, without regard to conflict of laws principles. Any and all claims arising from or relating to this agreement will be heard in the Supreme Court County of New York. Without limitation, Developer agrees to comply with U.S. export laws and regulations pertaining to the export of technical data, services and commodities, all to the extent applicable.
16. USE OF NAMES, MARKS AND LOGOS
Neither party will use the name, logo, or symbols of the other party for any purpose whatsoever other than as set forth herein without Client’s prior written consent which will not be unreasonably withheld.
17. FORCE MAJEURE
A. Neither party shall be liable for any delay in meeting or for failure to meet any of its obligations under this Agreement due to any cause of Force Majeure, being understood as strikes, lock-outs, acts of God, war, riot, malicious acts of damage, fire, acts of any government authority, of failure of the electricity power supply, to the extent beyond a parties’ control and not due to its action or inactions.
B. If either party is prevented from meeting any of its obligations due to a cause of Force Majeure, it shall promptly notify the other Party in writing of the circumstances and the obligations of the Parties shall be postponed until the end of the Force Majeure event. The party whose performance is delayed will take reasonable and diligent actions to recommence performance as soon as possible. If a Force Majeure condition continues for more than ten consecutive work days, Client may immediately terminate this Agreement upon written notice to Developer.
19. COMPLIANCE WITH LAWS
Each party will perform its obligations under this Agreement in compliance with all applicable laws, orders, or regulations of all appropriate jurisdictions.
20. NO IMPLIED WAIVERS
Failure by either party at any time to require performance by the other party of any provision hereof shall in no way affect the right to require full performance any time thereafter, nor shall the waiver by either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of same or any other provision, nor constitute a waiver of the provision itself.
21. NO ASSIGNMENT
Neither party may assign its rights, nor delegate its obligations under this Agreement, without the prior written approval of the other party.
22. RELATIONSHIP OF THE PARTIES
Client and Developer are independent contracting parties, and nothing contained in this Agreement shall be deemed to create a partnership, joint venture or agency relationship between them, nor does it grant either party any authority to assume or create any obligation on behalf of or in the name of the other.
23. NOTICES
Any notice required or permitted to be given by either party under or in connection with this Agreement shall be in writing and shall be deemed duly given when personally delivered or sent by registered or certified mail, return receipt requested, postage prepaid, expedited courier service, or by cable or facsimile, confirmed by letter, as aforesaid to the addresses indicated in the introductory paragraph of this Agreement, unless otherwise agreed to by the parties.
24. ENTIRE AGREEMENT
The Letter Agreement, these Terms, and any attached or included documents constitutes the entire agreement between the parties relating to the subject matter covered herein and cancels and supersedes all previous agreements between the parties relating to the subject matter covered herein. Any modification to this Agreement must be in writing and signed by both parties.