Index
General Provisions
Parties and Term of Contract
This agreement is between Anania Bailey, Inc. (‘Agency’) and (‘Client’) listed on the invoice and/or payment authorization form.
Scope of Services:
Client agrees to costs and scope of services outlined in a separate cost proposal or invoice provided by the Agency.
Payment Terms
The Client agrees to pay the Agency for the services rendered based on the following payment terms, unless otherwise specified in the cost proposal:
Branding Projects: For branding projects, the payment terms are as follows:
- 50% of the total project cost is due upon commencement of the project.
- The remaining 50% is due when the final branding files are packaged and delivered to the Client, with a maximum payment duration of 75 days from the commencement of the project.
Websites: For website projects, the payment terms are as follows:
- 50% of the total project cost is due upon commencement of the project.
- The remaining 50% is due when the design mockups are presented to the Client for review, with a maximum payment duration of 90 days from the commencement of the project.
Video Projects: For video projects, the payment terms are as follows:
- 50% of the total project cost is due upon commencement of the project.
- The remaining 50% is due after the production day(s) are completed and the final video is delivered to the Client.
Retainers: For marketing retainers, the payment terms are as follows:
- A monthly fee is due at the beginning of each month for the duration of the retainer agreement.
Accepted Payment Methods: The Agency accepts credit card and ACH (Automated Clearing House) transfers as payment methods for the Client’s convenience. Other payment methods may be accepted at the discretion of the Agency.
Late Payment: In the event of late payment, the Agency reserves the right to charge interest on the outstanding amount at a rate of 3% per month or the maximum rate allowed by law, whichever is lower. The Agency may also suspend or terminate services until the outstanding payment is received.
Override: The payment terms outlined in this section can be overridden by the specific payment terms provided in the cost proposal for each individual project or engagement.
Please note that the above payment terms are general guidelines and may be subject to modification based on the specific requirements and agreement between the Agency and the Client as stated in the cost proposal.
Termination
A. Either party may terminate this Agreement (or terminate or reduce a Cost Estimate) by giving not less than sixty (60) days prior written notice. If Client terminates or reduces a Cost Estimate that requires a monthly fee, Client agrees to pay the fees as set forth in any Cost Estimate(s) during the sixty (60) day termination notice. If a Cost Estimate does not require a monthly fee, Client shall pay Agency for all services to be rendered pursuant to the applicable Cost Estimate(s) during the sixty (60) day notice period, regardless of the level of services requested by Client.
B. Any third-party contracts that cannot be cancelled and are still existing at the termination of this Agreement shall be assigned to Client, and Agency will be released from related obligations. Client shall pay for any materials or services committed to purchase or work performed but uncompleted and previously approved by Client. Client shall indemnify Agency against any expense or loss resulting from a claim by a third party arising after the assignment of said contract.
C. Upon termination of this Agreement and receipt of final payment, Agency will transfer all property and materials belonging to and paid for by Client. Agency will reasonably cooperate in transferring reservations, contracts, and arrangements for services and materials yet to be used, subject to approval from relevant third parties. Neither party will make any announcement or release to the press or other news media without written consent from the other.
Confidentiality
Agency agrees not to disclose or use Client’s trade secrets, records, or client information acquired during the engagement, except as required in the course of the engagement with Client. All files, records, documents, and other items relating to Client shall remain the exclusive property of Client. Upon contract expiration, Agency will deliver all such materials to Client.
Liability
Agency’s services and work product are sold “as is.” Agency’s liability to Client for damages, regardless of the form of action, shall be limited to the fees paid to Agency under this Agreement. Agency shall not be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, or attorney’s fees, arising out of or relating to the materials or services provided.
Dispute Resolution
In the event of any disputes arising under this Agreement, the parties agree that mediation shall be the preferred approach to resolve such disputes.
Governing Law
This Agreement shall be governed by the laws of the State of Maine.
Trademark Clearance and Registration
Client bears responsibility for trademark registration and clearance. Agency’s research on the matter is a courtesy and not a substitute for legal consultation.
Copyright
Ownership of Copyright: The Agency retains the copyright to any original works, including graphics, brochures, videos, and other creative content, produced by the Agency for the Client under this Agreement.
License to Client: Upon full payment of all fees owed by the Client under this Agreement, the Agency grants the Client a non-exclusive, worldwide, royalty-free license to use, reproduce, display, and distribute the final exports of the copyrighted works created by the Agency solely for the purposes outlined in this Agreement. This license allows the Client to utilize the final exports of the works in their intended form and format as delivered by the Agency. The Agency retains ownership of the underlying source files used to create these works.
Source Files: The Agency retains ownership of all source files used in creating the copyrighted works, including but not limited to design files, code files, and project files. The Client may not modify, distribute, or create derivative works based on the source files without the express written permission of the Agency. If the Client requires access to the source files, additional licensing fees may apply as determined by the Agency.
Third-Party Materials: The Client guarantees that any third-party materials provided to the Agency for use in the copyrighted works are owned by the Client or that the Client has obtained the necessary permissions or licenses from the appropriate third parties. The Client shall indemnify and hold the Agency harmless against any claims or liabilities arising from the use of such third-party materials.
Intellectual Property Rights
Ownership: Any intellectual property rights, including but not limited to trademarks, trade secrets, patents, and other proprietary rights, created or developed by the Agency during the course of this engagement, other than copyrighted works as addressed in the Copyright Provisions section, shall be owned by the Agency unless otherwise agreed upon in writing between the Agency and the Client.
License to Client: Upon full payment of all fees owed by the Client under this Agreement, the Agency grants the Client a non-exclusive, worldwide, royalty-free license to use, reproduce, display, and distribute the final outputs of the intellectual property created by the Agency solely for the purposes outlined in this Agreement. This license allows the Client to utilize the final outputs of the intellectual property in their intended form and format as delivered by the Agency. The Agency retains ownership of the underlying source files used to create the intellectual property.
Limitations: Nothing in this Agreement grants the Client ownership of any pre-existing Agency intellectual property or intellectual property developed by the Agency for other clients. The Client’s rights are limited to the specific intellectual property created for and delivered to the Client under this Agreement
Agency Availability
Agency’s working hours are 9:00 a.m. – 5:00 p.m. EST, Monday through Friday. Consulting outside these hours may incur an increased rate.
Ownership of Advertising and Analytical Reporting Accounts
Agency creates advertising accounts for clients and maintains ownership after termination. Analytical accounts may be transferred to the client upon termination, subject to proprietary removal of goal conversions. Clients can request reports at the time of termination.
Website Development:Special Rights, Responsibilities, Licenses and Provisions.
“Code” Acknowledgements
The word “code” (throughout this Agreement) refers broadly to source code of any kind — e.g., HTML, PHP, Javascript, CSS, MySQL, or any other type of computer instruction relevant to the functionality of the web site, including comments written within that code.
Website Hosting Details
- Server maintenance, server configuration, etc.
- Automatic daily backups through Cpanel
- Monthly manual backups and storage on Agency file server
- Quarterly updates of WordPress core
- Quarterly updates of all plug-ins
- Quarterly updates of website’s theme
- SSL certificate
Additional Fee Potential
- Repairs made to the website as the result of Client or third party making changes to the website
- Client training outside of the ‘scope of work’
- Meetings, calls, travel and correspondence not included in the ‘scope of work’
- Materials, images, software and other items purchased and incorporated into the website
- Once the website has been launched, the client has 10 business days to communicate any issues that need to be addressed by the Agency. After this time period any work to the website will be considered to be billable. This includes but is not limited to design issues, form issues, email issues, HTML markup issues, media query issues (mobile), or content changes.
Nonpayment
In the time we have been providing creative and technical client service under any business name, we have never had this issue arise, save for lost invoices or other innocent reasons. Yet, in the interest of professionalism and thoroughness, we are including it here. Basically, we would use our discretion. If we have reason to believe that a nonpayment is purposeful, then our immediate goal would be to resolve the matter to the best of our ability via normal means (calls, emails, etc.). We would cease to provide any further services until the matter or an agreement is reached. In the very rarest cases, if the relevant project was web-based, Agency may as a last resort take down and/or disable all or part of said web site, as appropriate, and without consequence for such action and regardless of the server involved. (This has never happened to date, nor do we envision it ever happening.)
Pre-Existing Code
Agency may use or modify existing code on Client’s web site. Client acknowledges that, for any non-open-source code used by Client, Client or third-parties own this intellectual property, and it will be treated as such.
New Code, Proprietary Theme Usage and Migration Away from our Hosting and Maintenance Program
Agency builds websites using a proprietary WordPress theme. Clients or future developers may not duplicate or replicate in any way the Agency theme or its proprietary elements.
The Client must notify the Agency before moving the website’s hosting elsewhere, we retain the right to remove our “in-house” security features added to your website prior to it being moved. At that point your new developer may add their own security features.
Open-Source Code
By its nature, open-source code is published and made available to the public, enabling anyone to copy, modify, and redistribute the source code without paying royalties or fees. In these situations, neither Client nor Agency retains any rights related to this code.
Graphics
It is important to note that, graphics may include (1) graphics purchased / licensed from third-parties, which are subject to policies from those parties, (2) independently created graphics or photos not subject to others’ copyright, and (3) graphics (such as photos) from third parties, but which are provided via a Creative Commons license.
Design Revisions
During our process we will submit a designed staging site for your review, at which time you can request one round of changes. At Agency’s discretion, additional minor changes may be welcome without incurring additional fees. However, if a requested revision at that point is considered by Agency to be significant, major, a new direction, etc., then the Agency will discuss such with Client, as this may incur additional fees, billed at the standard hourly rate defined herein.
Other Creative Works or Approaches
Including Promotional Copy; Text; Communications; Written Works; Marketing Methods, Systems, or Schemes; SEO Optimization Tactics; Business Efficiency Improvements, etc. For the purposes of this contract, if Agency produces any such creative work or approaches for Client, Agency hereby grants to Client, and Client hereby accepts, an unlimited, unrestricted, royalty-free, fully paid, worldwide and nonexclusive use.
Contents Conform to Relevant Regulations
In some cases, Client’s site may want or need to conform to various regulatory standards. Unless specified in the scope herein, this remains the responsibility of Client. Some examples would be any accessibility guidelines needing to be met, any terms of use or privacy policies that should be stated on the site (including GDPR data privacy guidelines), HIPAA compliance, COPPA compliance, investor notices, policy statements, consumer notices, various disclosures, and/or any other similar types of conformance deemed appropriate and/or required by Client’s site and/or industry standards.
General Professional Discretion
Client agrees that Agency shall be granted professional discretion when it comes to installing software, code, or extensions on the server, as these constitute tools, code libraries, or methods necessary to perform the scope of work. This would also include making server modifications, configuration changes, file/folder clean-up-type changes, or other optimizations designed to enhance performance, provide greater security, allow desired functionality, or otherwise improve the server environment.
Continued Server, Web Site, and Code Access
Client agrees that Agency shall have full access to the web site backend as well as to the server, database, and file structure at all times, both during and after development. If Client desires to disallow such access (e.g., if the Client moves servers, hires another developer, or terminates this contract), Client agrees to give 14-day notice to Agency so that Agency can backup any files or code developed by Agency, if necessary.
Domain Name Renewals
Unless otherwise stated above under the scope, Client acknowledges that (1) Client owns the domain name(s) involved, and (2) renewing the domain name(s) is Client’s responsibility.
Acknowledgements
While this Agreement addresses liability issues, a number of common considerations, including those listed below as well as other similar considerations, regarding web development services are hereby acknowledged by Client. In all cases, Client shall not hold Agency liable for any damages related to these issues. Client agrees that, if Agency is asked to address any such issues, such requests constitute additional billable work and, as such, would need to be negotiated with respect to scope, timing, and fees.
Open Source Errors
Agency utilizes open source and other free code. Inherent in these systems (even the most advanced) are risks such as functionality issues, unpredictability, and other errors that could have an adverse affect on web site performance and, in turn, on a business dependent on such performance.
Issues Related to Site Upgrades, Work on Existing Sites, and/or Sites for Which Others Have or Had Direct or Indirect Access to the Server.
In these situations, web servers often contain residual files, code changes, database changes, and/or server settings not created by Agency. This also includes server directories containing legacy site backups and/or other files, for example. Unless specifically enumerated in the scope, above, the contents of these directories and any settings affecting the web server are not the responsibility of Agency to review, clean, delete, etc. Client acknowledges that, if such directories exist and contain malicious code, then the site could potentially be compromised.
Diagnosis vs. Fixing
For consulting work where Client has a nonfunctioning site, please understand that there are (often) two phases of service required: First, we must diagnose the problem, and then we will either (1) fix it (in cases where that makes the most sense), (2) let Client know options for moving forward (e.g., perhaps an upgrade is needed, or a different way of doing something, or … who knows what), or (3) inform Client that we cannot fix it. From there, it would be Client’s responsibility to make a decision based on our analysis. Either way, time spent on the diagnosis phase (and in discussing options for moving ahead) is billable time.
SEO Rankings
Unless addressed herein, Agency makes no representations or guarantees whatsoever about a site’s success in terms of search engine rankings / placement.
SEO Unpredictability
Client acknowledges that changes to a web site can bring upon unpredictable changes in an existing web site’s SEO rankings. While Agency agrees to perform some tasks relevant to mitigating this risk, as may be included herein, Client acknowledges that Agency has no control over how search engines may or may not favor Client’s web site.
Continued Performance
Agency agrees to deliver a functional site per the scope of this agreement, as of the date of delivery. Client acknowledges that, after a site is finished, outside factors can affect a site’s performance. For example, new browser releases may interpret web pages differently than before, causing a site to look or behave differently than it once did. Or, a security update applied later may render an existing component unusable. As such, all work performed is sold to client as is. Legally, “as is” refers to the condition that a product presently exists or as found on inspection immediately prior to purchase, even if damaged or defective, without modification and without any express or implied warranties.
Site Security
Client acknowledges that web sites can be victimized directly (e.g., direct attacks on the Client’s host server) or even indirectly (e.g., via compromising Client’s email account and/or via malware on Client’s local or personal computers) by hackers. Agency literally cannot, will not, and does not, guarantee that Client’s site will not be affected or targeted, successfully or unsuccessfully, by those with malicious intent. As such, Agency is not responsible for any losses in connection with the site being hacked. Unless specified herein under the project scope, Agency has not been engaged to provide site security services. Client acknowledges that recovering from a breach would incur additional fees, billed at the hourly rate set forth above in Section 3.
Site Speed
Client acknowledges that site speed (i.e., the speed with which web pages load) is a function of numerous factors including: the size / complexity of a web site, the web server’s capabilities, the web server’s location, Internet traffic, database complexity, the content management system, the design, the number and richness / complexity of site features, the dependence on outside sites (e.g., for retrieving and/or parsing data / information / feeds, retrieving/displaying ads, etc.), file and image sizes, compression / minification of CSS and Javascript, caching, DNS configurations, the user’s Internet connection, and many other factors). If speed is a particular concern (recommended for sites with more than 500 articles and/or sophisticated or unusual features), Client is responsible for discussing such with Agency so that specific goals and measures can be included in the scope.
Server Up-Time
If hosting is part of this agreement, note that Agency provides web hosting via relationships with reputable hosts (Google Cloud). Agency has selected these host based on their pricing, record, and reputation. Up-time is certainly a factor (all report 99%+ uptime). However, ultimately, the hosting company is responsible for maintaining server uptime.
Use of Client Name / Logo. In cases where the Client is a direct client of Agency (e.g., you are the owner of XYZ.com and you are hiring Agency to work on XYZ.com), Agency may use Client’s business name and identify client (by business / website name, logo, screen-shot of site, etc.) as a client or customer of Agency. Agency may also use client’s name, logo and website in promotional materials.
Web Site Linkback
For projects primarily developed by Agency: As is customary in this field, Client agrees that the web site shall bear a discrete credit (with a hyperlink to Agency’s web site) in the web site footer / copyright area. (Not applicable or mandatory for hourly-consulting clients, although always appreciated.)