Upon approving these terms by both Union Street Media (“USM”) and Client in the spaces indicated below, the proposal set forth above will be deemed accepted by the Client, and thus the proposal set forth above, together with the terms below, will become the binding agreement of USM and Client (the proposal set forth above, together with the terms set forth below, are collectively referred to as the “Agreement”). The Agreement shall be effective as of the date the Client approves these terms.
During the term of this Agreement, USM will provide Client with (i) digital marketing services as indicated on proposal set forth above (“Digital Marketing Services”); sometimes referred to as the “Services.” The parties may modify the scope of Services only by mutual written agreement.
The initial term of this agreement shall be a 1-month period beginning when the client approves these terms. Following the initial term, this agreement will automatically renew for successive one month periods on each anniversary of the initial term date, unless either party gives the other written notice of non-renewal at least 30 days before the next renewal date.
Either party may terminate this Agreement if the other party breaches a material provision of this Agreement and such breach is not cured within 10 days of the non-breaching party’s delivery of written notice of the breach to the breaching party. In addition, at any time following the Initial Term, either party may terminate this Agreement for any reason upon 30 days prior written notice to the other party. Client must deliver written notice to Client’s Digital Success Manager.
In the event of termination, Client shall pay all amounts accrued prior to such termination (monthly charges are not prorated), USM shall have no further obligation to provide Services and Client shall cease all use of the USM Materials.
The Digital Marketing Services itemized in the proposal set forth above are billed at the applicable fees as stated in such proposal. Client understands and agrees that Services in addition to those specified in the proposal set forth above are billed on an hourly basis at USM’s hourly rates then in effect. USM’s rates are currently $150.00 per hour for Project Planning & Management, Site Design, Content Conversion, Site Production, Evaluation & Launch, Training and Digital Marketing; and $175.00 per hour for Software Development, Programming/Database Integration/Content Management System Customization work. Such hourly rates are subject to change upon 30 days prior written notice to Client. Client further understands and agrees that “estimates” or “estimated hours” provided to Client in the proposal set forth above or in any other document are subject to change. If Services exceed any estimates provided to Client, then upon email, hard copy or verbal notification to Client, USM shall perform the additional work at the applicable hourly rates.By way of example and not limitation, it is understood and agreed that any of the following may result in an increase in fees over and above any estimates provided by USM: (a) if discovery and content collection do not commence within 1 month of the Initial Term Effective Date; (b) if Client does not provide content to USM on a timely basis; (c) if Client provides incorrect or incomplete content to USM; (d) if Client does not promptly review all deliverables provided by USM and provide feedback; and (e) Client changes the timing or scope of any Services. Client agrees to pay travel expenses incurred by USM employees in the development and maintenance of the web site.
Deposits are not refundable. All payments shall be payable to: Union Street Media, 444 South Union Street. Burlington, Vermont 05401. Client payment for Website Development Services are due in full to USM on the Initial Term Effective Date unless otherwise stated in the proposal set forth above or agreed to in writing by both parties. Late payments will accrue interest at a rate of 1.5% a month, including any delay in payments for the annual, quarterly or monthly support and hosting package. USM reserves the right to disable the Client’s web site if any payment is over ten (10) days past due. In the event that USM brings any action to collect payment, the Client agrees to pay USM its reasonable attorney’s fees and all other reasonable costs incurred by USM in the collection of such amounts. All payments made under this Agreement are non-refundable. If Client pays by credit card, and later disputes the charge, Client agrees not to request a charge-back from its credit card issuer unless and until Client has made a good faith effort to resolve the dispute directly with USM. Client agrees to submit any request for a charge-back to its credit card issuer no later than thirty (30) days after the date Client made the disputed payment to USM. The Client agrees to pay any sales, use or transfer taxes that may be applicable to the Services provided under this Agreement, including any taxes that may be assessed on audit of USM’s tax returns.
Layout & Feature Set:
Web site design and Smart Features will be laid out according to USM’s standard format and feature set. All materials prepared for or submitted to Client, and/or incorporated in Client’s website, including by way of example and not limitation, web pages, source code, tools, registered URL address(es) and custom web sites are the sole and exclusive property of USM (“USM Materials”) excluding, however, all content or other proprietary information provided by Client, Client’s existing URL address(es) and Client’s trademarks (“Client Materials”). During the term of this Agreement, USM hereby grants Client a personal, non-transferable, non-exclusive license to use the USM Materials, but solely in connection with the web site designed by USM under this Agreement and solely for so long as such web site is hosted by USM under this Agreement. Client retains sole and exclusive ownership of the Client Materials. USM shall have the right to use the Client Materials solely to provide Services to Client under this Agreement. USM has the right to put a copyright statement, identifier, and link to its site, www.unionstreetmedia.com, from the client’s site at the bottom of each page on the client’s web site. USM will agree to not put a copyright statement, identifier, and link www.unionstreetmedia.com for an additional 10% of the initial Setup Fees, paid annually by the Client to USM.
Proof, Errors & Omissions:
USM will post all pages on the web upon design & update completion for Client’s review. Following written notice from USM, Client shall review and approve such pages within 5 business days. If there are any errors or omissions on the pages, USM is responsible for making corrections within 5 business days of written notification from the Client.
USM agrees to complete the Services based on a mutually negotiated schedule.Client must provide accurate and complete information and other materials to USM. The Client shall be responsible for the completeness of all information provided. USM reserves the right to adjust the schedule in the event that the Client fails to meet agreed deadlines for submission of Client Materials or granting approvals and to allow for changes in the scope or complexity of Services from those stated in this Agreement. Delay on the part of the Client shall not affect the schedule of payments from the Client to USM. USM reserves the right to withhold delivery of the Services until full and final payment is received from the Client, including any supplemental charges above those stated in this Agreement.
USM warrants that all Services will be provided in a professional manner, with respect to the Web Site Development Services, such warranty shall expire for all purposes 30 days after Client commences live production use of its web site. In the event of any breach of this warranty, Client’s sole remedy and USM’s sole liability shall be the re-performance of the Services. EXCEPT AS EXPRESSLY PROVIDED IN THIS PARAGRAPH, NO EXPRESS OR IMPLIED WARRANTY, STATUTORY OR OTHERWISE, IS MADE WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Client warrants and represents that Client is the owner of all Client Materials, and that Client’s and USM’s use thereof in connection with Client’s website will not infringe any intellectual property right or contract right of any third party. Client further represents that the above representation shall be true and correct as throughout the term of this Agreement.
Client hereby grants to USM a royalty free, perpetual, right and license to use any and all data collected by USM arising from or related to the end user’s use of the Client’s website. This license includes the right to aggregate such data and to transfer such data to others for their use. This license will remain in force following any termination of this Agreement.
Limitation of Liability:
THE TOTAL LIABILITY, IF ANY, OF USM INCLUDING BUT NOT LIMITED TO LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OR FAILURE OF WARRANTY, OR OTHERWISE SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY CLIENT TO USM UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE THE CLAIM(S) AROSE. USM SHALL NOT BE LIABLE TO CLIENT OR ANYONE ELSE FOR LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, LOSS DUE TO DELAY IN PERFORMANCE OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF USM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Client agrees to defend, indemnify and hold USM, its officers, directors, agents, employees, interns and representatives harmless from and against any and all allegations, claims, demands, breach, liabilities, actions, judgments, losses and expenses, arising out of or related to Client Materials, and Client’s customers, products, web site(s) and services, including, without limitation, (i) any injury of person or property caused by any products or services sold or otherwise distributed over the Client’s web site; or (ii) any actual or alleged infringement of third party intellectual property rights or contract rights arising from or related to Client Materials or any other action or omission of Client. Governing Law; Venue: The laws of the State of Vermont shall govern this agreement. Any lawsuit under or related to this Agreement shall be brought solely and exclusively in the federal and state courts located in the State of Vermont, and the parties consent to the exclusive jurisdiction of such courts.
The Client agrees that this Agreement (including the proposal set forth in the cover sheets) is being provided to the Client on a confidential basis. The Client shall not make any use of this Agreement other than for the purposes of considering whether or not it wishes USM to implement the proposal and shall not disclose its contents to any other party. If requested at any time, this Agreement shall be returned to USM immediately. No copies of the proposal or Agreement may be made without written consent of USM. Client agrees to be bound by this provision whether or not the parties enter into the Agreement.
This Agreement contains the entire understanding of both parties, and supersedes all previous and contemporaneous communications, representations, understandings or agreements with respect to the subject matter hereof. Except with respect to additional charges for Services, this Agreement may be modified only in a writing designated as an amendment and signed by both parties. If any provision of this Agreement is deemed invalid, such determination shall not invalidate any other provision in the Agreement.