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1. SCOPE OF SERVICES
1.1 Services. Progma, Inc. ("Progma") has expertise and experience with
providing website development, web application development, computer
programming, software development, systems analysis, consulting, technical
support and other specialized technical services ("Services"). Progma shall
provide Services to each customer ("Customer") that (i) accepts Progma's
quote or proposal in writing or via e-mail, (ii) executes a separate
agreement with Progma, or (iii) makes any payment to Progma on account of
Services (any such Customer, having done any of the foregoing, being deemed
to have signed an agreement ("Agreement"), which shall be deemed, in all
cases, to include the terms and conditions set forth herein). Each
Agreement shall stipulate the exact details of Services to be provided, all
of which shall be governed by and subject to the terms and conditions set
forth below. These terms and conditions shall be deemed to be incorporated
by reference into each Agreement.
1.2 Additional Progma Services. Upon request by Customer, Progma agrees to
negotiate in good faith with Customer with respect to providing additional
maintenance, support, hosting or other services with respect to the Services
for Customer that will be outside of the scope of the Agreement. These
additional services may, in certain instances, be subject to additional
terms and conditions.
1.3 Out-of-area Services. If Services are to be provided at Customer's
facilities that are outside of Greater Chicago area, the Customer shall, in
advance of Services performed, pay reasonable expenses for accommodations,
travel, and such other reasonable costs as are incurred by Progma in connection
with the provision of such Services. Progma shall use its best efforts to
estimate the amount of such reasonable expenses in advance of providing such
Services, and Customer shall pay to Progma within thirty (30) days of receipt
of the amount of such estimate. Within thirty (30) days after such Services
have been provided, Customer shall pay to Progma such additional reasonable
amount as shall be due for such expenses, or Progma shall reimburse Customer
for any overpayment.
2. CONFIDENTIAL INFORMATION
2.1 Confidential Information. Either party may receive or have access to
technical information, as well as information about product plans and
strategies, promotions, customers and related non-technical business
information which the disclosing party considers to be confidential
("Confidential Information"). In the event such information is disclosed,
the parties shall first agree to disclose and receive such information in
confidence. If then disclosed, the information shall (i) be marked as
confidential at the time of disclosure, or (ii) if disclosed orally but
stated to be confidential, be designated as confidential in writing by the
disclosing party summarizing the Confidential Information disclosed and sent
to the receiving party within a reasonable period of time after such oral
disclosure. Notwithstanding any provision to the contrary, all source code
provided to Progma is deemed confidential.
2.2 Nondisclosure. Confidential Information may be used by the receiving
party only with respect to performance of its project obligations under the
Agreement, and only by those employees of the receiving party who have a
need to know such information for the purposes related to this project. The
receiving party shall protect the Confidential Information of the disclosing
party by using the same degree of care (but no less than a reasonable degree
of care) to prevent the unauthorized use, dissemination or publication of
such Confidential Information, as the receiving party uses to protect its
own confidential information of like nature. The receiving party's
obligation shall be for a period of five (5) years after the date of
disclosure.
3. WARRANTIES; LIMITED LIABILITY
3.1 Warranties; Disclaimer of Warranties. Progma warrants to Customer that
all Services will be performed in a professional manner consistent with
industry practices. In addition, each party represents and warrants to the
other party that it has the right and authority to enter into this Agreement
and to perform its obligations hereunder, that the granting of the rights
and undertaking of the obligations hereunder will not infringe upon or
conflict with any rights of a third party, and that its performance
hereunder will not violate any applicable U.S. laws and government rules and
regulations. Except as set forth above in this Section 3, Progma does not
make any warranties of any kind, either expressed or implied, including,
without limitation, (a) warranties of merchantability or fitness for a
particular purpose, (b) non-infringement for the Services, (c) that the
Services will meet Customer's requirements, or (d) as to the results that
Customer may achieve upon completion of the Services. If this exclusion is
held unenforceable, than to the extent of such unenforceability, all express
and implied warranties shall be limited in duration to a period of 30 days
after the date hereof, after which time no such warranties shall remain in
effect.
3.2 Consequential Damages. EXCEPT WITH RESPECT TO INSTANCES OF GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR CONSEQUENTIAL OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR
ACTION HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE
WHATSOEVER IN AN AMOUNT IN EXCESS OF THE AMOUNT PAYABLE TO PROGMA.
4. LICENSE
All trademarks, patents, copyrights and other intellectual property rights
owned by either party on the date hereof shall continue to be owned solely
by such party, and nothing herein shall be deemed to confer any rights to
any such intellectual property on the other party. Customer represents and
warrants that none of the content, materials or data provided by Customer to
Progma with respect to the project infringes the intellectual property or
other proprietary rights of any third party, and Progma shall have no
liability for any claims arising out of any such Customer content, including
those based on infringement. Furthermore, the Customer understands that any
elements within Customer's website or software that hold existing copyrights
of any third party (including but not limited to: third party software and
scripts, third party photographs, graphics and other multimedia such as
video and audio) remain the property and copyright of their respective
owners. By incorporating any third party software, services or products
into Customer's website or software, the Customer also agrees to abide by
that company's terms and conditions. (Should Customer's project require
third party services or software, in the majority of cases Progma directs
its customers to pay for these directly to that third party. Examples may
include but are not limited to: credit card processing services, customized
scripts and stock photographs, etc. In the event that Progma pays for these
software or services Progma will bill the Customer for the amount paid by
Progma to the third party). With respect to any Progma software, source
code, object code or other intellectual property contained in or otherwise
provided as a deliverable under the Agreement ("Progma Technology"), Progma
hereby grants Customer, so long as Customer has paid all fees due and owing
to Progma hereunder, a perpetual and non-exclusive right and license to use
the Progma Technology solely to the extent required and described in the
Agreement and accompanying documents. It is understood that neither
Customer, nor any of its subsidiaries or affiliates, may use any Progma
Technology for commercial resale or sublicense in any form or medium. Any
hosting space for Customer's website which is reserved for the Customer will
remain the property of Progma until paid for in full by the Customer. Any
domain names registered on behalf of the Customer will remain the property
of Progma until paid for in full.
5. WEB CONTENT AND WEB RELATED SERVICES
5.1 Customer Content. Customer accepts full responsibility for the content
posted at Customer's website, and any grievances brought by a third party
arising as result of this content, either in the United States or any other
countries, will be the sole responsibility of Customer. Additionally, Progma
will take no responsibility whatsoever for the content of third party
websites accessible via links posted at Customer's website. If Progma deems
any content Customer wishes to include on its website as pornographic, meant
to cause extreme offense or illegal in any way, Progma reserves the right to
refuse to continue with the project and no refunds shall be due and owing to
Customer.
5.2 Display of Work. Unless instructed otherwise in writing before
publishing Customer's website on the Internet, Progma reserves the right to
include a small, subtle text link to Progma's website from Customer's pages
designed and developed by Progma. The text will read 'Website Design -
Progma, Inc.' and will be included in the copyright line at the bottom of
Customer's pages. Progma reserves the right to display or exhibit any final
product(s) to other potential Customers except where doing so may violate
any confidentiality agreements which may be in force.
5.3 Search Engine Optimization. If search engine promotion, search engine
optimization or submission is included in the Services, Customer
acknowledges the following: (a) Progma cannot guarantee any particular
search engine ranking or placement; (b) submission to the majority of search
engines and directories does not guarantee entry; (c) Progma cannot be held
responsible for any loss (financial or otherwise) to Customer's business due
to an unexpected drop in search engine rankings; (d) the initial text
content to which Progma applies optimization shall be supplied by the
Customer; (e) Customer authorizes Progma to modify the code of Customer's
web pages at Progma's discretion including but not limited to keyword
density, page names, meta tags and other elements as it relates to
increasing search engine rankings; (f) should Customer make changes to any
site text that Progma has optimized, Customer understands that these changes
may have an adverse effect on search engine rankings; (g) search engine
submissions are carried out one time only per engine unless otherwise
stated; (h) if Customer's site is sparse in textual content, the Customer
should provide additional relevant text content ("Additional Content") in
electronic format for the purpose of creating additional web pages or
increasing the content on existing ones, at Progma's direction and
discretion; (i) if Additional Content is not or cannot be provided, Progma
cannot be held responsible for results related to the absence of such
materials; (j) Customer agrees that no work shall be done on the website
during the search engine marketing campaign without Progma's knowledge.
5.4 Website Hosting. If website or web application hosting is included in
the Services, Customer hereby acknowledges that the End User License
Agreement (published at LicenseAgreement.htm)
shall be deemed to be incorporated by reference into the Agreement.
5.5 Customer Provided Website Components. In the event that the completion of Services depends on
the availability of a third party component or several third party components
("Components") that are outside of Progma's control (including but not limited to
logos, graphic elements, photographs, articles and other content, secure socket
layer certificates, merchant account services, gateway services, ActiveX components,
Java applets, software libraries, etc.) and Customer or any third party contracted
by Customer fails to provide these Components within reasonable period of time
Progma may deliver the Services without these Components or at it's own discretion
use alternative components. Furthermore, Progma may charge additional fees to the
Customer for including the required Components when they become available.
6. AGREEMENT TERM
6.1 Term. Unless accepted by both parties, any Agreement which is a quote
or proposal is valid for twenty-eight (28) days from the date it was
received by Customer. Such Agreement is accepted either upon signing of the
Agreement by both parties, or upon Progma clearing the first Customer
payment, or upon Progma's receipt of Customer's email approval of such
Agreement. It is the sole discretion of Progma to determine which method of
approval is applicable for a specific project. Upon acceptance, the
Agreement becomes a binding contract that will continue in effect until
terminated by either party by delivering a ninety (90) day written
termination notice to the other party. Any termination of the Agreement
does not forfeit Customer's obligation to pay for Services provided by
Progma prior to the termination.
6.2 Breach. Either party may terminate the Agreement at any time in the
event that the other party is in default or breach of any material provision
of the Agreement, and such default or breach continues unremedied for a
period of thirty (30) days after receipt of written notice thereof.
6.3 Survival. Notwithstanding any termination of the Agreement, the duties
and obligations of the parties under the following provisions herein shall
survive for the period specified therein, if any: Section 2 (Confidential
Information) and Section 3 (Warranties; Limited Liability).
7. PAYMENTS AND FEES
7.1. Fees. For most projects Progma requires an initial deposit before
commencing the work. Typically, this is no more than one third of the total
project cost. If the project is completed with no changes to initial brief,
then Customer is only liable to pay this initially quoted fee. If, however,
during the project Customer requests various changes to the design brief,
Progma will reserve the right to charge additional fees for this extra work.
Progma will inform Customer of any estimated additional costs involved in
any Customer requested changes.
7.2 Estimates. In some cases it is not possible to give an exact quote on
certain Services. For these cases an estimate will be given as a general
guide to the expected fees for that particular Service.
7.3 Payments. All balances are due before the completed project is uploaded
live to the Internet. Customer can view and test the website on Progma's
private servers before official launch. If payment is not received within 30
days of the date of the invoice, it will be considered delinquent and accrue
interest at the rate of 1.5% per month. A $25.00 fee will be charged for any
returned checks or credit card payments.
8. MISCELLANEOUS
8.1. Assignment. Neither party may assign or otherwise transfer the
Agreement without the prior written consent of the other Party.
Notwithstanding the foregoing, such written consent shall not be required in
the event of a merger or sale of all or substantially all of the assets of
either party. Assignment of the Agreement by either party shall not relieve
the other party of its obligations hereunder or thereunder. The Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
8.2 Entire Agreement. The Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merge
all prior discussions between them. No modification of or amendment to the
Agreement, nor any waiver of any rights under the Agreement, shall be
effective unless in writing and signed by the party to be charged.
8.3 Notice. Unless otherwise stated, all notices required under the
Agreement shall be in writing and shall be considered given upon personal
delivery of the written notice or within forty-eight (48) hours after
deposit in the U.S. Mail, certified or registered. If either party changes
it mailing address it shall immediately notify the other party about it in
writing.
If for Progma notices shall be addressed to:
Progma, Inc.
628 Pheasant Lane, 1st Floor
Deerfield, IL 60015
If for Customer notices shall be addressed to the address set forth in the
Agreement.
8.4 Severability. If any provision of the Agreement is held to be invalid
or unenforceable by a court of competent jurisdiction, then the remaining
provisions will nevertheless remain in full force and effect, and the
parties will negotiate in good-faith a substitute, valid and enforceable
provision which most nearly effects the parties' intent in entering into the
Agreement.
8.5. Arbitration. Both Parties agree to submit any irresolvable dispute
hereunder to arbitration in Chicago, Illinois in accordance with and subject
to the Commercial Arbitration Rules of the American Arbitration Association
then in effect. The substantially prevailing party in any arbitration or
litigation proceeding shall be entitled to recover its attorneys' fees from
the other party.
8.6 Counterparts. The Agreement may be signed in one or more counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together will constitute one and the same Agreement.
8.7 Governing Law. The Agreement shall be governed by, construed in
accordance with, the laws of the state of Illinois without regard to the
principles of conflicts of laws.
8.8 No Waiver. The failure of either party to enforce at any time for any
period the provisions of or any rights deriving from this Agreement shall
not be construed to be a waiver of such provisions or rights or the right of
such party thereafter to enforce such provisions.
8.9 Headings. The descriptive headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.10 Force Majeure. Progma shall not be liable for any failure to perform
its obligations hereunder in the event such failure is due to circumstances
beyond its reasonable control.
8.11 No Third-Party Beneficiaries; Non-Solicitation. Nothing in the
Agreement, either express or implied, is intended to or shall confer upon
any third party any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of the Agreement. Customer hereby
agrees that during the term of this Agreement and for a period of 1 year
thereafter, it will not solicit or hire any employees or Progma.
8.12 Independent Contractor. Progma is acting as an independent contractor
hereunder, and nothing herein shall be deemed to create an employment or
partnership relationship.
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