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.
Termination
A. Either party may terminate this Agreement (or terminate or reduce a Cost Estimate) by giving not less than sixty (60) day prior written notice of termination. If this Agreement or a Cost Estimate is terminated or reduced by Client pursuant to the notice set forth herein, Client agrees to pay the fees as set forth in any Cost Estimate(s) during the forty-five (60) day termination notice. Should Client terminate or reduce a Cost Estimate that does not require payment of a monthly fee, Client shall pay Agency for all services to be rendered pursuant to the applicable Cost Estimate(s) during such forty-five (60) day notice period, regardless of the level of services requested by Client during said notice period.
B. Any third-party contracts that cannot be cancelled and are still existing at the termination of this Agreement, shall be assigned to Client or Client’s representative and Agency will be released from any related obligations. Any materials or services Agency has committed to purchase for Client (or any work performed but uncompleted and previously approved by Client either specifically or as part of a plan), shall be paid for by Client and Agency shall receive applicable compensation. Client shall indemnify Agency against any expense or loss Agency may incur as a result of a claim by such third party arising after the assignment of said contract.
C. Upon termination of this Agreement and upon receipt of final payment of all amounts owed by Client under this Agreement, Agency will transfer, assign and make available to Client or its representative all property and materials in its possession or control belonging to and paid for by Client. Agency also will reasonably cooperate in transferring to you, with the approval of third parties in interest and after being released from all obligations relating to the same, all reservations, contracts and arrangements with others for services and materials yet to be used. Upon termination of this Agreement for any reason, neither party will make an announcement or release of any kind to the press or other news media without the written consent of the other.
Confidentiality
Agency, on behalf of its principal, agents, employees, and subcontractors (collectively the “Agency”) acknowledges that during the engagement it will have access to and become acquainted with various trade secrets, records and client information used by Client in connection with the operation of its business, including, without limitation, Client’s business methods, client and prospect lists, client data, and procedures. Agency agrees not to disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the term of this Agreement or at any time thereafter, except as required in the course of this engagement with Client. All files, records, documents, letters, notes, media lists, original artwork and similar items relating to Client whether prepared by the Agency or otherwise coming into its possession, shall remain the exclusive property of Client. Agency shall not retain any copies of the foregoing without client’s prior written permission. Upon the expiration of this contract, Agency shall immediately deliver to Client all such files, records, documents, information and other items in its possession or under its control.
Liability
THE SERVICES AND THE WORK PRODUCT OF Agency ARE SOLD “AS IS”; Agency DOES NOT WARRANT THE SOFTWARE / PRODUCTS / SERVICES DESCRIBED HEREIN TO OPERATE ERROR FREE OR FREE OF DEFECTS OR THAT DATA LOSS WILL NOT OCCUR. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF Agency (INCLUDING ITS AGENTS) TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE FEES PAID TO THE Agency WITH RESPECT TO THIS AGREEMENT. IN NO EVENT SHALL Agency BE LIABLE FOR ANY LOST DATA OR CONTENT, CORRUPTED DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ATTORNEY’S FEES, ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY Agency, EVEN IF Agency HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Any action against Agency must be brought within two (2) months after the events giving rise to the cause of action occur.
Governing Law
This Agreement shall be governed by the laws of the State of Maine.
Trademark Clearance and Registration
Client agrees that they bear the responsibility of trademark registration and clearance on any work produced by the agency. This includes but is not limited to branding, naming and design work. Any agency research on the matter will be done as a courtesy and not a replacement for consulting a legal professional.
Rights Secured
Client guarantees that any elements of text, graphics, photos, designs, trademarks, computer code or artwork provided to Agency are owned by Client, or Client has obtained sufficient permission to use such from a third party prior to providing Agency access to the materials. Client will indemnify and hold Agency, its officers, employees, and agents harmless against any and all claims, liabilities, damages, losses, and expenses should any claim, liability, damage, loss, or expense be sought against Agency in connection with any use of such third-party materials.
Copyright Provisions
For the purposes of this agreement, if Agency produces any graphics or original photos or videos for Client, Agency hereby grants to Client, and Client hereby accepts, an unlimited, unrestricted, royalty-free, fully paid, worldwide and nonexclusive use of such completed graphics. Agency retains the copyright to any source files used in creating client graphics, these file types include but are not limited to Photoshop, Illustrator, Indesign, Premiere Pro, and After Effects files. If the client needs source files from the Agency, there may be additional licensing fees.
Agency Availability
Agency’s working hours are (generally) 8:30 a.m. – 5:00 p.m. EST Monday through Friday. Consulting outside these hours is highly discouraged. If requested, such time may not be available or possible. However, if it (1) is available / possible, and (2) is agreeable to Agency, such work will incur a rate at 1.5x the hourly rate quoted above.
Ownership of Advertising and Analytical Reporting Accounts
As an agency we create new advertising accounts for each client and maintain ownership of these accounts when our relationship with the client is terminated. This includes but is not limited to accounts setup in Facebook Ads Manager, Google Ads (including YouTube), LinkedIn Ads and programmatic platforms.
We do our best to transfer any analytical accounts to the client upon termination. This includes Google Analytics and Google Tag Manager. We will remove any goal conversions we have set up, as our method for doing this is proprietary.
At the time of termination, clients can request any needed reports that the agency can provide.
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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.)
