ARTICLE 1 SCOPE OF WORK
1.1 SERVICES
The Company has engaged Consultant to provide services in connection with the Company’s website design, development, and subsequent marketing services. Consultant will deliver all assets as outlined in the General and Specific Scope of Services and such other services as described in the Project Activities section (collectively, the “consulting services”).
Detailed distribution of services is as follows:
1.1.1 DESIGN
Consultant creates look-and-feel designs, and flexible layouts that adapt to the capabilities of many devices and screen sizes. The designs are created iteratively and use predominantly HTML and CSS. Consultant may use static visuals to indicate a look-and-feel direction (color, texture and typography.)
1.1.2 TEXT CONTENT
Writing any text copy is not included in this contract. If the Company would like Consultant to write new content for the website, the Consultant will be able to provide a separate estimate for that.
1.1.3 PHOTOGRAPHS
The Company will need to supply graphic files in an editable, vector digital format. Photographs must be in a high resolution digital format. If the Company chooses to buy stock photographs, Consultant can suggest stock libraries and style of photography/images. If the Company would like Consultant to search for photographs for the Company, then Consultant can provide a separate estimate for that. Cost of buying stock photographs or a photo shoot is not included in this contract.
AGREEMENT
1.1.4 WORDPRESS INTEGRATION
Consultant will setup, install and configure WordPress on Company’s hosting server as described in the scope of work section. WordPress is a third-party tool and therefore Consultant cannot be responsible for any bugs associated with WordPress or it’s plugins. If any bugs are found during the development phase or 30 days after launch the Consultant will fix it (if possible) or update WordPress or the faulty plugin if it’s available, but after the 30 days Consultant will charge at the hourly rate of $110.
1.1.5 BROWSER TESTING
Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.
1.1.6 DESKTOP BROWSER TESTING
Consultant will test work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), and Mozilla Firefox. Consultant will cross-browser test for the most current versions of the four major browsers and also making the website backwards compatible for up to two (2) versions back.
1.1.7 MOBILE BROWSER TESTING
Testing popular small-screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using. Consultant will test work in:
- iOS: Safari
- Android 6.0: Google Chrome
- Microsoft: Windows Mobile 10
- Mozilla: Firefox
Consultant currently does not test Blackberry OS or Blackberry QNX, Opera Mobile, Symbian or other mobile browsers. If the Company needs Consultant to test using these, Consultant can provide a separate estimate for that.
1.1.8 CHANGES AND REVISIONS
Consultant knows from experience that fixed-price agreements are rarely beneficial to the Company, as they often limit the Company to its earliest ideas. Consultant does not want to limit the Company’s ability to change its mind or make decisions later when the Company might be better informed. The price at the beginning of this agreement is based on the length of time Consultant estimates will be required to accomplish everything the Company would like to achieve, but Consultant is willing to be flexible. If the Company would like to change its mind or add anything new, the Consultant will provide a separate estimate to cover the additional work.
1.1.9 ERRORS
Consultant cannot guarantee that its work will be error-free (“we’re human!”) so Consultant cannot be liable to the Company or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if the Company has advised Consultant of them.
1.2 TIME AND AVAILABILITY.
Consultant will devote as many hours as necessary in performing the services for the Company. Consultant shall have discretion in selecting the dates and times it performs such consulting services throughout the project giving due regard to Company’s priorities. If the Company would like the Consultant to provide additional services, Consultant is not obligated to undertake such work until the Consultant and Company have agreed on a rate of compensation.
1.3 CONFIDENTIALITY.
In order for Consultant to perform the consulting services, it may be necessary for the Company to provide Consultant with Confidential Information (as defined below) regarding the Company’s business and products. The Company will rely heavily upon Consultant’s integrity and prudent judgment to use this information only in the best interests of the Company.
1.4 STANDARD OF CONDUCT.
In rendering consulting services under this Agreement, Consultant shall conform to high professional standards of work and business ethics. Consultant shall not use time, materials, or equipment of the Company without the prior written consent of the Company. In no event shall Consultant take any action or accept any assistance or engage in any activity that would result in any university, governmental body, research institute or other person, entity, or organization acquiring any rights of any nature in the results of work performed by or for the Company.
1.5 OUTSIDE SERVICES.
Consultant shall not use the service of any other person, entity, or organization in the performance of Consultant’s duties without the prior written consent of an officer of the Company. Should the Company consent to the use by Consultant of the services of any other person, entity, or organization, no information regarding the services to be performed under this Agreement shall be disclosed to that person, entity, or organization until such person, entity, or organization has executed an agreement to protect the confidentiality of the Company’s Confidential Information (as defined in Article 5) and the Company’s absolute and complete ownership of all right, title, and interest in the work performed under this Agreement.
1.6 REPORTS.
Consultant may periodically provide the Company with written reports of his or her observations and conclusions regarding the consulting services. Upon the termination of this Agreement, Consultant shall, upon the request of Company, prepare a final report of Consultant’s activities.
ARTICLE 2 INDEPENDENT CONTRACTOR
2.1 INDEPENDENT CONTRACTOR.
Consultant is an independent contractor and is not an employee, partner, or co-venturer of, or in any other service relationship with, the Company. The manner in which Consultant’s services are rendered shall be within Consultant’s sole control and discretion. Consultant is not authorized to speak for, represent, or obligate the Company in any manner without the prior express written authorization from an officer of the Company.
2.2 TAXES.
Consultant shall be responsible for all taxes arising from compensation and other amounts paid under this Agreement, and shall be responsible for all payroll taxes and fringe benefits of Consultant’s employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Company on behalf of Consultant or his/her employees. Consultant understands that he/she is responsible to pay, according to law, Consultant’s taxes and Consultant shall, when requested by the Company, properly document to the Company that any and all federal and state taxes have been paid.
2.3 BENEFITS.
Consultant and Consultant’s employees will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of the Company. No workers’ compensation insurance shall be obtained by Company covering Consultant or Consultant’s employees.
ARTICLE 3 COMPENSATION FOR CONSULTING SERVICES
3.1 COMPENSATION.
The Company shall pay to Consultant for services rendered to the Company according to the Monthly Budget schedule of this proposal. Any delinquency in monthly payments may result in the suspension of marketing and website services. Services above and beyond those listed in this proposal may be considered out-of-scope and an amendment to the budget will be recommended.
3.2 REIMBURSEMENT.
The Company agrees to reimburse Consultant for all actual reasonable and necessary expenditures, which are directly related to the consulting services. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), premium plugins, stock photography or stock videos, and postal expenditures. Expenses incurred by Consultant will be reimbursed by the Company within 15 days of Consultant’s proper written request for reimbursement.
ARTICLE 4 TERM AND TERMINATION
4.1 TERM.
This Agreement shall be effective as of the date executed by both parties, and shall continue in full force for a minimum of one (1) year. The Company and Consultant may negotiate to extend the term of this Agreement and the terms and conditions under which the relationship shall continue.
4.2 TERMINATION.
The Company may terminate this Agreement for “Cause,” after giving Consultant written notice of the reason. Cause means: (1) Consultant has breached the provisions of Article 5 or 7 of this Agreement in any respect, or materially breached any other provision of this Agreement and the breach continues for 30 days following receipt of a notice from the Company; (2) Consultant has committed fraud, misappropriation, or embezzlement in connection with the Company’ s business; (3) Consultant has been convicted of a felony; or (4) Consultant’s use of narcotics, liquor, or illicit drugs has a detrimental effect on the performance of his or her employment responsibilities, as determined by the Company.
4.3 RESPONSIBILITY UPON TERMINATION.
Any equipment provided by the Company to the Consultant in connection with or furtherance of Consultant’s services under this Agreement, including, but not limited to, computers, laptops, and personal management tools, shall, immediately upon the termination of this Agreement, be returned to the Company.
4.4 SURVIVAL.
The provisions of Articles 5, 6, 7, and 8 of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.
ARTICLE 5 CONFIDENTIAL INFORMATION
5.1 OBLIGATION OF CONFIDENTIALITY.
In performing consulting services under this Agreement, Consultant may be exposed to and will be required to use certain “Confidential Information” (as hereinafter defined) of the Company. Consultant agrees that Consultant will not and Consultant’s employees, agents, or representatives will not use, directly or indirectly, such Confidential Information for the benefit of any person, entity, or organization other than the Company, or disclose such Confidential Information without the written authorization of the President of the Company, either during or after the term of this Agreement, for as long as such information retains the characteristics of Confidential Information.
5.2 DEFINITION.
“Confidential Information” means information not generally known and proprietary to the Company or to a third party for whom the Company is performing work, including, without limitation, information concerning any patents or trade secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or material, research and development, proprietary software, analysis, techniques, materials, or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the business of the Company, any vendor names, customer and supplier lists, databases, management systems and sales and marketing plans of the Company, any confidential secret development or research work of the Company, or any other confidential information or proprietary aspects of the business of the Company. All information which Consultant acquires or becomes acquainted with during the period of this Agreement, whether developed by Consultant or by others, which Consultant has a reasonable basis to believe to be Confidential Information, or which is treated by the Company as being Confidential Information, shall be presumed to be Confidential Information.
5.3 PROPERTY OF THE COMPANY.
Consultant agrees that all plans, manuals, and specific materials developed by the Consultant on behalf of the Company in connection with services rendered under this Agreement, are and shall remain the exclusive property of the Company. Promptly upon the expiration or termination of this Agreement, or upon the request of the Company, Consultant shall return to the Company all documents and tangible items, including samples, provided to Consultant or created by Consultant for use in connection with services to be rendered hereunder, including, without limitation, all Confidential Information, together with all copies and abstracts thereof.
ARTICLE 6 RIGHTS AND DATA
All drawings, models, designs, formulas, methods, documents, and tangible items prepared for and submitted to the Company by Consultant in connection with the services rendered under this Agreement shall belong exclusively to the Company and shall be deemed to be works made for hire (the “Deliverable Items”). To the extent that any of the Deliverable Items may not, by operation of law, be works made for hire, Consultant hereby assigns to the Company the ownership of copyright or mask work in the Deliverable Items, and the Company shall have the right to obtain and hold in its own name any trademark, copyright, or mask work registration, and any other registrations and similar protection which may be available in the Deliverable Items. Consultant agrees to give the Company or its designees all assistance reasonably required to perfect such rights.
ARTICLE 7 NON-SOLICITATION
7.1 NON-SOLICITATION.
Consultant covenants and agrees that during the term of this Agreement, Consultant will not, directly or indirectly, through an existing corporation, unincorporated business, affiliated party, successor employer, or otherwise, solicit, hire for employment or work with, on a part-time, consulting, advising, or any other basis, other than on behalf of the Company any employee or independent contractor employed by the Company while Consultant is performing services for the Company.
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ARTICLE 8 RIGHT TO INJUNCTIVE RELIEF
Consultant acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are reasonably necessary to protect the legitimate interests of the Company, are reasonable in scope and duration, and are not unduly restrictive. Consultant further acknowledges that a breach of any of the terms of Articles 5, 6, or 7 of this Agreement will render irreparable harm to the Company, and that a remedy at law for breach of the Agreement is inadequate, and that the Company shall therefore be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy that may be available under any applicable law or agreement between the parties. Consultant acknowledges that an award of damages to the Company does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.
ARTICLE 9 GENERAL PROVISIONS
9.1 CONSTRUCTION OF TERMS.
If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
9.2 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of Georgia.
9.3 COMPLETE AGREEMENT.
This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral.
9.4 DISPUTE RESOLUTION.
If there is any dispute or controversy between the parties arising out of or relating to this Agreement, the parties agree that such dispute or controversy shall be brought forth in the Bryan County Court system. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute that is determined and/or settled pursuant to this Agreement will be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement until the dispute is resolved.
9.5 MODIFICATION.
No modification, termination, or attempted waiver of this Agreement, or any provision thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced.
9.6 WAIVER OF BREACH.
The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
9.7 SUCCESSORS AND ASSIGNS.
This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that the Agreement shall be assignable by the Company without Consultant’s consent in the event the Company is acquired by or merged into another corporation or business entity. The benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors and assigns.