THIS WEBSITE DESIGN & DEVELOPMENT AGREEMENT, dated [date] (the “Effective Date”), is between Premier Marketing (“Company”), a North Carolina, Limited Liability Company, having offices at 615 S College St, Floor 9, Charlotte, North Carolina, 28202, and [client name] (“Client”), a [state of incorporation] [Type of Entity], with its principal place of business at [address]. Company and Client are sometimes referred to herein collectively as “Parties” and individually as a “Party.”

1. WHEREAS, Company designs websites for use on the Internet’s World Wide Web;
2. WHEREAS, Client desires Company to design, develop, and deliver a custom website consisting of ten (10) web pages for Client’s business purposes;

NOW THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree as follows:

Article I. Definitions

“Alpha Version” means the first test system of Client’s Website, which is tested on a computer that is not connected to the Internet.

“Agreement” means this written agreement between Company and Client.

“Beta Version” means the second test system of Client’s Website, which is tested through the Internet by Client.

“Bug” means an error in the Website that causes repeated and repeatable malfunctions.

“CGI” or “Common Gateway Interface” means the standard method of writing computer code to enable an interactive computer program on one Internet server to communicate with users located at remote Internet servers.

“Derivative Work” means any modifications made to any computer source code, object code, CGI code or HTML code.

“Domain Name” or “Name” is the alpha-numeric name associated with Client’s Website, Web pages or electronic mail.

“Hour” means one hour spent by one Company developer.

“HTML Code” means hypertext mark-up language, which is the language commonly used for developing the appearance of websites.

“Intellectual Property Rights” means rights in any patent, copyright, trademark, trade dress, and trade name, related registrations and applications for registration, and trade secrets, know-how and goodwill.

“Internet” means the global computer network comprising interconnected networks using standard Protocols.

“Internet Service Provider” or “ISP” means an entity that enables the uploading and downloading of data between remote computers and the Internet.

“Project Manager” means one of Client’s employees, as may be designated by Client from time to time, who shall be deemed as Client’s liaison with Company, and who shall have the power to act as Client’s project manager in order to make ongoing decisions under this Agreement which are binding upon Client.

“Protocols” means a set of rules that regulate the way data is transmitted between computers and includes the TCP/IP protocols.

“Web page” means each individual screen display contained in Client’s Website and may consist of more than one data file.

“Website” means all Web pages and domain names associated with Client and its products or services, and which are stored on Company’s server.

“Website Hosting Service Provider” or “Web host” means an entity that stores third-party websites on its server, receives or stores commands or data transmitted by Internet users, transmits web page data to users’ Internet addresses, and performs related maintenance.

“World Wide Web” or “WWW” is a subset of the Internet, and is a common system for browsing Internet websites.

Article II. Website Development

Section 2.1 Design

(a) Preliminary Specification Sheet. The Parties recognize that Client has previously provided to Company a specification sheet which graphically and textually illustrates all Web pages that Client wishes to incorporate into its Website, including images and graphics; the functionality Client desires between multiple Web pages, and the functionality Client desires between each Web page and users (the “Preliminary Specification Sheet”). The Parties further agree that any design elements necessary to match Client’s branding, including but not limited to the purchase of fonts or other licensed materials, shall be at Client’s sole cost and expense.

(b) Modified Specification Sheets. Company shall prepare a First Modified Specification Sheet by reviewing Client’s Preliminary Specification Sheet, consulting with Client in order to make suggested changes and improvements, and drafting a First Modified Specification Sheet. Client shall inspect Company’s First Modified Specification Sheet, and shall approve it, reject it or make additional changes. Clients may request up to three (3) rounds of revisions to the Modified Specification Sheet at no additional cost. If further revisions are requested beyond the third round, Company shall assist Client with the preparation of such additional Modified Specification Sheets, and Client shall compensate Company at the rate of [rate, e.g., one hundred dollars ($100.00)] per hour. Each Modified Specification Sheet shall be sequentially numbered, and shall not become a Final Specification Sheet in the absence of the Parties’ mutual written assent.

(c) Final Specification Sheet. When the Parties have inscribed any Modified Specification Sheet with the term “Final Specification Sheet,” and the Parties have signed it, then Company shall undertake to develop the desired Website according to the specifications contained therein. Client hereby expressly represents that by signing the Final Specification Sheet, the specifications contained therein shall be deemed complete and accurate.

(d) Web Page Limitations. The Design Fee specified in Section 2.5 covers the development of up to ten (10) individual Web pages. Any additional Web pages requested by Client beyond the initial ten (10) pages shall be considered additional work and shall be subject to additional fees at the rate of [insert rate, e.g., $500.00] per additional Web page. Client must approve any additional Web pages in writing before Company begins development. The delivery schedule may be extended to accommodate the development of additional Web pages, and such extension shall not constitute a breach by Company.

Section 2.2 Coding

(a) Method. Company shall create the code underlying Client’s Website in accordance with the Final Specification Sheet, Protocols and CGI.

(b) Project Management. The Parties recognize that Client’s participation in all phases of the development of the Website is essential. Project Manager shall use his/her best efforts to complete the project on schedule.

(c) Pre-Final Version Modifications. During the coding and testing process, Company or Client may propose modifications to Client’s Website in writing. Any proposed modification shall be signed by both Parties prior to the performance of any work by Company on such proposed modification. Written modifications shall expressly include an additional amount of time, if any, for the development of Client’s Website as a result of the accepted modifications, and the delivery schedule shall be delayed by the same amount of time. The types of delay arising from modifications shall not result in the imposition of any set-off, liquidated damages, penalty or other liability against Company.

Section 2.3 Schedule

(a) Alpha Version. Company shall provide an Alpha Version of Client’s Website for Client’s testing at Company’s facilities within [number or range, e.g., thirty (30)] days after delivery of the Final Specification Sheet by Client to Company. Client shall perform complete testing of all aspects of the Alpha Version within [number, e.g., ten (10)] days after Company’s provision of the Alpha Version. Client shall indicate its acceptance of the Alpha Version in writing, or Client shall make suggested, written modifications. CLIENT EXPRESSLY WAIVES ANY RIGHT TO REVOKE ACCEPTANCE.

(b) Beta Version. Company shall host on its Internet server the Beta Version of Client’s Website for Client’s testing over the Internet within [number or range, e.g., fifteen (15)] days after Client’s acceptance of the Alpha Version. Client shall perform complete testing within [number, e.g., ten (10)] days after Company’s provision of the Beta Version. Client shall indicate its acceptance of the Beta Version in writing, or Client shall make suggested, written modifications. CLIENT EXPRESSLY WAIVES ANY RIGHT TO REVOKE ACCEPTANCE.

(c) Final Version. Company shall deliver Client’s completed Website within [number, e.g., ten (10)] days after Client’s Final Acceptance of the Beta Version.

Section 2.4 Deliverables

Company’s delivery of Client’s Final Version shall consist of Company’s posting of Client’s Website to Company’s Internet server. Should Client require Company to purchase a domain name for a landing page or website, the cost of such domain purchase shall be borne solely by Client. Once purchased, Client shall be solely responsible for all ongoing annual domain registration and renewal fees.

Section 2.5 Fees and Payment

Client agrees to pay to Company the amount of [amount, e.g., fifteen thousand dollars ($15,000.00)] for any and all work performed by Company between the time of Client’s delivery of the Final Specification Sheet to Company and until the time of Final Acceptance by Client (the “Design Fee”). One-half of this amount shall be delivered by Client to Company contemporaneously with Client’s execution of this Agreement, and one-half shall be delivered by Client to Company contemporaneously with Final Acceptance. The Design Fee covers development of up to ten (10) Web total pages (including subpages) as specified in Section 2.1(d). Additional Web pages beyond this limit shall be subject to additional fees as set forth in Section 2.1(d).

Section 2.6 Modifications Subsequent to Final Acceptance

(a) Method. After Final Acceptance, Client may desire to modify the Website in order to fix Bugs, to conform to the Final Specification Sheet, or to enhance its appeal. Client shall submit its desired modifications in writing to Company, and the Parties shall sign the written modification prior to the performance of any modification work by Company.

(b) Time. For a period of [time period, e.g., two (2) to twelve (12)] months following Final Acceptance, Company shall make necessary and reasonable modifications to Client’s Website.

(c) Fixing Bugs. Where Client’s desired post-Final Acceptance modifications are to fix Bugs, Company shall provide up to [number, such as ten (10) to forty (40)] Hours of development time at no additional charge. Additional development work shall be performed by Company, and Client shall pay Company [rate, e.g., one hundred dollars ($100.00)] per Hour of additional development time.

(d) Conformance with Final Specification Sheet. Where Client’s desired post-Final Acceptance modifications are to cause the Website to conform to the Final Specification Sheet, Company shall provide up to [number, such as ten (10) to forty (40)] Hours of development time at no additional charge. Additional time shall be paid by Client at the rate of [rate, e.g., one hundred dollars ($100.00)] per Hour.

(e) Deviations from Final Specification Sheet. Where Client’s desired post-Final Acceptance modifications are to cause its Website to deviate from the Final Specification Sheet (“Improvements”), Company shall be paid by Client at the rate of [rate, e.g., one hundred dollars ($100.00)] per Hour for development time. The Parties agree that Client is not obligated to engage the services of Company for Improvements, and that Company is not obligated to perform work on Improvements.

(f) Company Not Liable for Caching. Client expressly recognizes that some ISPs may continue to cache unmodified versions of Client’s Website after modifications or Improvements are made, and Client expressly agrees to indemnify and hold Company harmless for any damages caused by such caching. Client further acknowledges that the Website design provided by Company does not include compliance with the Americans with Disabilities Act (“ADA”) or any similar accessibility standards. ADA compliance services may be provided by Company at Client’s request and at an additional cost. Premier Marketing shall not be held liable for any claims, demands, damages, or liabilities asserted against Client arising from Client’s Website not being ADA compliant.

Article III. Intellectual Property And Ownership

Section 3.1 Company’s Retained Rights

(a) Works Created by Company. The Parties expressly recognize that the Website is not a “work made for hire,” that Company is an independent contractor, and that Company is not an employee, partner, joint author or joint venturer of Client. Company shall retain full and exclusive ownership of all Intellectual Property Rights in and to all CGI, HTML Code, software, graphics, design elements, templates, frameworks, and any other materials, code, or content created, developed, or acquired by Company and incorporated into the Website. This includes but is not limited to all source code, object code, proprietary methodologies, design patterns, and technical solutions developed by Company.

(b) Retained Ownership Upon Termination. Company’s ownership rights in the intellectual property described in Section 3.1(a) shall survive any termination of this Agreement and shall remain the exclusive property of Company regardless of the reason for termination.

Section 3.2 Client’s Limited Rights

(a) Works Created by Client. Client shall retain ownership of Client’s Domain Name, trademark, logo, and any original content, graphics, or data specifically provided by Client and incorporated into the Website.

(b) Limited License to Use Company’s Works. Company grants to Client a non-exclusive, non-transferable, revocable license to use the Website and Company’s intellectual property incorporated therein solely for Client’s internal business purposes. This license does not include the right to modify, reverse engineer, sublicense, or create derivative works based on Company’s intellectual property. This license may be revoked by Company immediately upon Client’s material breach of this Agreement.

(c) Restrictions on Client’s Use. Client may not: (i) remove or modify any proprietary notices or labels on the Website; (ii) use Company’s intellectual property for any purpose other than operating the Website; (iii) provide access to or distribute Company’s intellectual property to any third party; or (iv) use Company’s intellectual property in connection with any other website or project without Company’s prior written consent.

Article IV. Warranties

Company Confirms and Warrants That:

4.1 Company’s Power to Enter Agreement. Company has the right to enter into this Agreement and to grant the rights granted in it.

4.2 Company’s Good Faith Performance. Company shall, in good faith, comply with the terms of this Agreement.

4.3 Company is Sole Creator. Company is the sole creator of any Websites designed by Company, except for those graphics and data supplied by Client, and that neither Company’s work nor entering into this agreement will impair or violate anyone else’s Intellectual Property Rights.

4.4 Website Shall Function with Many Browsers. The Website shall be prepared in a workmanlike manner, and the Website will function in conjunction with properly configured web browsers including, but not limited to Chrome, Safari, Firefox and Edge.

Article V. Disclaimers And Limitation Of Liability

5.1 WARRANTY DISCLAIMER. THE GOODS AND SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND TO CLIENT OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY OR MERCHANTABILITY OF THE COMPUTER PROGRAM; 2) FITNESS FOR A PARTICULAR PURPOSE, LICENSEE’S PURPOSE OR SYSTEM INTEGRATION; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY OF INFORMATIONAL CONTENT; 6) NON-INFRINGEMENT; 7) QUIET ENJOYMENT; 8) TITLE; 9) MARKETABILITY; 10) PROFITABILITY; 11) SUITABILITY; AND/OR 12) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CLIENT AGREES THAT ANY EFFORTS BY COMPANY TO MODIFY ITS GOODS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY COMPANY WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

5.2 LIMITATION OF LIABILITY. CLIENT AGREES THAT COMPANY SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. MODIFICATIONS MADE TO CLIENT’S WEBSITE BY CLIENT OR ANY THIRD PARTY VOIDS ANY REMAINING EXPRESS OR IMPLIED WARRANTIES. IN NO EVENT SHALL COMPANY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.

5.3 Company Not Liable for Delays or Defaults. Company shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of Company are due to:

• Acts of God or of a public enemy;
• Acts of the United States or any state or political subdivision thereof;
• Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes;
• Embargoes, epidemics or quarantine restrictions;
• Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind;
• Delays of supplier or delay of transportation for any reason;
• Causes beyond the control of Company in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Client reporting problems or furnishing information or materials. Acceptance of delivery of goods or services shall constitute a waiver and release of Company by Client for any claim for damages, setoff, discount or other liability on account of delay.

5.4 Third-Party Transactions at Client’s Peril. The Parties expressly recognize that Company does not operate, control or endorse any information, products or services on the Internet, and that any entities that do offer such information, products or services are not affiliated with Company. Company does not make any express or implied warranties, representations or endorsements to Client or any third party whatsoever with regard to any information, products or services provided through Company and obtained or contracted over the Internet. Company shall not be liable to Client or any third party for any cost or damage arising either directly or indirectly from any transaction involving third parties’ information, products or services.

5.5 Downloading of Data or Files at Client’s Peril. The Parties expressly recognize that Company cannot and does not guarantee or warrant that files available for downloading through Company will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Client agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Client’s particular requirements for accuracy of data input and output, and for maintaining a means external to Company for the reconstruction of any lost data.

Article VI. Term And Termination

6.1 Termination by Company.

• No Cause. Company reserves the right to, and Client agrees that Company may, terminate any and all services to Client for no cause and without any reason upon [number, e.g., thirty (30)] days’ notice. If Company terminates the Agreement prior to Client’s delivery of the Final Specification Sheet, Company shall fully refund the Design Fee. If Company terminates after Client’s delivery of the Final Specification Sheet but prior to Final Acceptance, Client shall be entitled to a pro-rata refund of the Design Fee.
• Cause. Company reserves the right to, and Client agrees that Company may, cancel this Agreement and terminate any and all services to Client immediately, and without prior notice, in the event that Client fails to fulfill any material obligation contained in this Agreement. In the event of Client’s material breach or non-payment, Company may, at its sole discretion and without prior notice, suspend or discontinue any hosting, maintenance, or other services provided under this Agreement until such breach is cured or the Agreement is terminated.
• Acceleration Upon Client Breach. In the event that Client materially breaches this Agreement, Company may declare the entire remaining balance of the Design Fee and any other fees owed under this Agreement immediately due and payable. Client shall pay such accelerated amount within ten (10) days of Company’s written notice of acceleration.

6.2 Post-Termination Rights.

• Fees Owed to Company. After termination by any Party for any reason, Company shall retain the right to recover all accrued charges due and owing by Client to Company through the date of termination, and Client agrees that it waives any right it may have against Company to offset fees payable by Client to Company. Upon termination for any reason, Company’s license to Client for use of Company’s intellectual property shall immediately terminate, and Client shall cease all use of the Website and any materials incorporating Company’s intellectual property. Client shall have thirty (30) days from termination to migrate any Client-owned content to an alternative platform.
• Client’s Continued Indemnification. Client’s indemnification of Company shall survive any termination of this Agreement.

Article VII. Delegation Of Duties

The Parties recognize that Client has retained Company’s services for Company’s unique development capabilities. Company may engage subcontractors or third parties to assist in fulfilling its obligations under this Agreement; provided, however, that Company shall remain fully responsible for the performance of any such subcontractors and shall ensure their adherence to all applicable terms and conditions of this Agreement.

Article VIII. Confidentiality, Privacy, Security, And Non-solicitation

8.1 Confidentiality. The Parties recognize that each shall come into possession of information that comprises valuable trade secrets and other confidential information (“Confidential Information”) which is owned by the disclosing Party. Both Parties expressly recognize that Confidential Information is being conveyed to them under conditions of confidentiality, and agree that they shall not disclose Confidential Information to any third party during the term of this Agreement, and for a period of [years, e.g., two (2)] years following the termination or expiration of this Agreement.

8.2 Use Restrictions. The Parties agree to keep Confidential Information in strict confidence and only use the disclosing Party’s Confidential Information for purposes of performing obligations under this Agreement. The receiving Party shall treat the Confidential Information with at least the degree of care and protection with which it treats its own proprietary and confidential information of a like nature, but in any event with no less than reasonable care and protection.

8.3 Exclusions. Confidential Information shall not mean any information that: (a) is known to the receiving Party at the time of disclosure; (b) is developed independently without use of the disclosing Party’s Confidential Information; (c) falls within the public domain without breach of this Agreement; (d) is publicly disclosed with written approval of the disclosing Party; or (e) becomes lawfully known or available to the receiving Party without restriction from a source with the lawful right to disclose it.

8.4 Return of Information. Upon any termination, cancellation, or rescission of this Agreement, or upon the request of the disclosing Party, the receiving Party shall either (i) surrender and deliver all Confidential Information of the disclosing Party, including all copies thereof; or (ii) destroy the Confidential Information and certify the destruction within one (1) month.

8.5 Non-Solicitation of Employees. During the term of this Agreement and for a period of one (1) year following the termination or expiration of this Agreement, neither Party shall solicit, directly or indirectly, the employment of any of the other Party’s employees.

Article Ix. General Provisions

9.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of laws provisions. Any dispute arising under this Agreement shall be resolved exclusively in the state or federal courts located in Mecklenburg County, North Carolina.

9.2 Dispute Resolution. Any dispute which the Parties cannot resolve within thirty (30) days shall be subject to the exclusive jurisdiction of the state and federal courts located in Mecklenburg County, North Carolina.

9.3 Entire Agreement. This Agreement supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the matters stated herein. This Agreement may be amended or modified only in writing signed by authorized representatives of both Parties.

9.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain valid and in full force and effect.

9.5 Insurance. Client agrees to obtain and maintain during the term of this Agreement all insurance coverage necessary to guard against all risks of loss that may arise out of, or relating to, this Agreement, including business interruption insurance.

9.6 Independent Contractor. Company and its employees, contractors, and personnel are independent contractors and not employees of Client. Neither Party is an agent of the other, and neither Party shall have any right or authority to make any contract, sale or other agreement in the name of the other Party.

9.7 Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party.

9.8 Attorney’s Fees. If either Party institutes an action to enforce this Agreement or any of its terms, Company is entitled to recover all of its costs, expenses, and reasonable attorneys’ fees.

9.9 Notices. All notices pertaining to this Agreement must be in writing and must be mailed by either (i) registered mail, (ii) certified mail, postage prepaid and return receipt requested, or (iii) a reputable overnight carrier service. All Notices to Company shall be addressed and delivered to: Premier Marketing, 615 S College St, Floor 9, Charlotte, NC 28202.

9.10 Waiver. The failure of either Party to seek relief for the other Party’s breach of any duty under this Agreement shall not waive any right of the non-breaching Party to seek relief for any subsequent breach.

9.11 Counterparts. This Agreement may be executed in counterparts, including by electronic signature, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.