This Web Services Agreement
("Agreement") is made and entered into as of this _____ day of
__________, 20__, by and between GDTS, LLC dba Global Travel Technology, a Colorado
limited liability corporation, with its principal place of business at 30813
Kings Valley Drive, Conifer, CO, and _____________________ ("Customer")
a (corporation, LLC, partnership, etc.), with its principal place of business at
___________________.
Developer is in the business of providing software and
computer consulting services in connection with creating and operating web sites
for the Internet. In accordance with the terms and conditions of this Agreement,
Customer has requested that Developer provide, and Developer has agreed to
provide, certain services for the purpose of creating a custom web site for
Customer, and providing public access to the web site via certain computer server
and other equipment on a non-exclusive basis.
NOW THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Services
1.1. Web Site Development
Developer agrees to provide Customer certain software and computer consulting
services (collectively, the "Development Services") for the purposes of
initially creating those computer files, audiovisuals, and other content
(collectively, the "Web Site") for use on the World Wide Web service of
the Internet more particularly described on and in accordance with Exhibit A.
1.2. Modification Services
Customer may also request and Developer may provide, subject to Developer's
agreement and the availability of Developer personnel and equipment, additional
services (the "Modification Services"). All Modification Services shall
be provided on a time and materials basis in accordance with Developer's then
current charges. As of the effective date of this Agreement, Developer's current
time and materials charges are set forth on Exhibit A. Modification Services may
include, without limitation, maintenance or modification of the Web Site and
changes to the scope of Development Services.
1.3. Hosting Services
Developer agrees to place the Web Site on a computer server accessible by
Developer and allow storage of information received by Customer or from the
general public on such server(s), subject to the limits and as more particularly
described on Exhibit A (collectively, the "Hosting Services";
Development Services, Modification Services, and Hosting Services, are
collectively referred to as the "Services").
1.4. Services Generally
All Services under this Agreement shall be performed in accordance with
Developer's standard procedures, so long as such procedures do not conflict with
the express terms of this Agreement.
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2. Fee and Expenses
2.1. Development Fee
Customer shall pay for the Development Services in the amounts and in accordance
with the schedule of payment as provided on Exhibit A ("Development
Fee").
2.2. Hosting Services Fees
Customer shall pay for the Hosting Services in accordance with the fee schedule
set forth on Exhibit A (the "Hosting Fee").
2.3. Other Fees
Fees for Development Services shall be payable in accordance with Exhibit A. Fees
for Hosting Services, and Modification Services shall be invoiced on a regular
basis. Customer shall pay such invoices within 10 days after the date of invoice.
The fees referred to in Sections 2.1, 2.2, and 2.3 are collectively referred to as
"Fees."
2.4. Expenses
Customer shall reimburse Developer for all expenses reasonably incurred in
rendering Services to Customer ("Expenses"). Such Expenses shall
include, without limitation, reasonable travel expenses (including transportation,
lodging, and meals) and the cost of any courier services, photocopying, facsimile,
long distance telephone calls, and other expenses. Expenses shall normally be
invoiced on a monthly basis. Customer shall pay such invoices within 30 days after
the date of invoice. Travel expenses and other expenses, other than photocopying,
facsimile, and long distance telephone calls, shall be approved in advance by
Customer before they are incurred.
2.5. Late Payments
Interest may be charged by Developer on overdue accounts and any other fees and
expenses not paid to Developer as provided hereunder at the rate of ONE AND
ONE-HALF PERCENT (1-˝%) per month or the maximum amount allowed by law, whichever
is less, commencing with the date payment was due.
2.6. Taxes
Fees and Expenses are exclusive of taxes. Customer shall be responsible for all
taxes, levies and assessments except for taxes based on the net income of
Developer and shall promptly pay or, if Developer has paid any such amounts,
reimburse Developer for all such taxes, levies or assessments. The parties
acknowledge that most of the Services are currently characterized as services for
which sales taxes do not apply. Developer shall notify Customer upon Developer
having actual knowledge of any legislation to impose sales or similar taxes on the
Services.
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3. Customer Responsibilities
3.1. Designation of Project Manager
Customer shall designate an employee who shall be assigned the primary
responsibility for communicating with and providing necessary assistance to
Developer during the term of this Agreement. Communications with Developer
regarding development of the Web Site shall be made or coordinated by such
designated employee.
3.2. Customer Responsibilities
In addition to the obligations of Customer as otherwise specified in this
Agreement, Customer shall be solely responsible for the following:
| (a) |
Selection of products and services, including the
Services, to achieve Customer's intended results; |
| (b) |
Providing accurate text, photographs, pictures, animation
as necessary to Developer to perform the Services and develop the Web
Site; |
| (c) |
Any information, programs and other information that
Customer receives as a result of the use of the Services, including,
without limitation, the entire responsibility for any inaccuracies of such
information, losses of data or programs, breaches of security, viruses,
and disabling or harmful devices that Customer may download or otherwise
experience as a result of Customer's use of the Services; |
| (d) |
Customer agrees to use the Services in a manner
consistent with any and all applicable laws and regulations; and |
| (e) |
Customer shall defend, release, indemnify and hold
harmless Developer from and against any and all claims, suits, losses,
liabilities, obligations, demands, damages and expenses, including,
without limitation, attorneys fees and costs, which directly or indirectly
arise in connection with the responsibilities of Customer in this Section
3.2. |
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4. Additional Developer Responsibilities
Developer has implemented a reasonable plan of identifying and avoiding losses of
data or programs, breaches of security, viruses, and disabling or harmful devices
on the computers owned or operated by Developer, although the parties acknowledge
that such problems are often difficult to detect or prevent. So long as Developer
uses good faith efforts to maintain a reasonable plan of identifying and avoiding
such problems, Developer shall have no liability to Customer for any losses
associated with such problems.
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5. Use of Third Party Consultants
Developer may retain third parties to furnish services to it in connection with
the provision of Services. All third parties who perform such work shall execute
appropriate documents effecting assignments of all rights with respect to such
work, and in undertaking obligations of confidentiality respecting such work.
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6. Ownership & License
6.1. Ownership by Customer
All documents, text, photographs, video, pictures, animation, sound recordings,
computer programs, and all other works of authorship provided by Customer,
together with all images, likenesses, voices, and other characteristics contained
therein (collectively, the "Customer Works") shall remain the property
of Customer and its licensors. Customer hereby grants to Developer the
nonexclusive rights and licenses to the Customer Works that are necessary or
appropriate to create, modify, distribute, and display the Web Site as provided in
this Agreement, to otherwise perform the Services under this Agreement, and to
exercise any rights granted to Developer under this Agreement.
Ownership of material data for the Web Site shall remain with
the Customer. Such data includes Customer's corporate data, including
registration data, supplied and input by or on behalf of Customer ("Customer
Data"). Developer agrees not to use any Customer Data for any purpose
other than to perform the Services and fulfill it's obligations under this
Agreement. Developer further agrees not to make Customer Data available to
any third party without Customer's prior written consent except as provided in
Section 5.
6.2. Ownership by Developer
Other than the Customer Works and Customer Data, all documents, text,
photographs, video, pictures, animation, sound recordings, computer programs, and
all other works of authorship provided, created or produced by Developer or its
licensors, together with all images, likenesses, voices, and other characteristics
contained therein (collectively, the "Developer Works") shall remain the
property of Developer and its licensors. Developer hereby grants to Customer the
nonexclusive rights and licenses to the Developer Works that are necessary or
appropriate to utilize the Services as provided in this Agreement.
6.3. License
During the term of this Agreement, Developer grants Customer a
non-transferable, nonexclusive license to use the Developer Works in object code
form only, solely on the Hosting Services hardware , in conjunction with the
Agreement.
6.4. Proprietary Rights
This Agreement transfers to Customer neither title, ownership nor any
proprietary or intellectual property rights to the Developer Works, documentation,
or any copyrights, patents, or trademarks, embodied or used in connection
therewith, or to any trademark, service mark, trade name, logo or other
intellectual right of Developer except for the rights expressly granted herein.
6.5. License Restrictions
Customer agrees that it will not itself, or through any parent, subsidiary,
affiliate, employee, officer, director, agent or other third party:
6.5.1. Copy the Developer Works except as
expressly allowed under this Agreement.
6.5.2. Reverse engineer, decompile,
disassemble, or otherwise attempt to derive source code from the Developer Works;
or
6.5.3.
Write
or develop any derivative software or any other software program based upon the
Developer Works.
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7. Warranties
7.1. Warranties of Customer. Customer represents and warrants
that: (a) Customer has the power and authority to enter into this Agreement; (b)
Customer is the owner or licensee of all rights necessary and appropriate to grant
the licenses and rights hereunder with respect to the Customer Works and any
portions thereof, including, but not limited to, documents, text, photographs,
video, pictures, animation, and sound recordings (c) the Customer Works are
original except for material in the public domain and such excerpts from other
works as may be included within the written license to Customer of the copyright
owners; (d) the Customer Works do not contain any libelous material; (e) the
Customer Works do not infringe any trade name, trademark, trade secret, or
copyright; (f) the Customer Works do not invade or violate any right of privacy,
personal or proprietary right, or other common law or statutory right; (g) the
Customer Works do not violate any federal or state statutory provisions relating
to obscene or pornographic material; and (h) Customer will not utilize, either
directly or indirectly, any web services provided by Developer for the purpose of
mass distributing unsolicited e-mails (spam). Customer agrees to defend,
indemnify, and hold harmless Developer, its officers, directors, and employees for
any losses, costs, damages, liabilities, and expenses (including attorneys’ fees
and court costs) arising out of any claims, suits or proceedings alleging facts
that would be a breach of these warranties.
7.2. Warranties of Developer
(a) Developer represents and warrants that: (i) Developer has the power and
authority to enter into this Agreement; (ii) Developer is the owner or licensee of
all rights necessary and appropriate to grant the licenses and rights hereunder
with respect to the Developer Works and any portions thereof, including, but not
limited to, documents, text, photographs, video, pictures, animation, and sound
recordings; (iii) the Developer Works are original except for material in the
public domain and such excerpts from other works as may be included within the
written license to Developer of the copyright owners; (iv) the Developer Works do
not contain any libelous material; (v) the Developer Works do not infringe any
trade name, trademark, trade secret, or copyright; and (vi) the Developer Works do
not invade or violate any right of privacy, personal or proprietary right, or
other common law or statutory right. Developer agrees to defend, indemnify, and
hold harmless Customer, its officers, directors, and employees for any losses,
costs, damages, liabilities, and expenses (including attorneys' fees and court
costs) arising out of any claims, suits or proceedings alleging facts that would
be a breach of these warranties.
(b) EXCEPT AS PROVIDED IN THIS SECTION 7.2, DEVELOPER DOES NOT
MAKE ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES OR ANY
PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME
STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION
MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM
STATE TO STATE.
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8. Limitation Of Liability
LIMITATION OF LIABILITY. IN NO EVENT WILL DEVELOPER BE LIABLE TO
CUSTOMER FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS
ARISING OUT OF THE SERVICES OR ANY PRODUCTS PROVIDED UNDER THIS AGREEMENT, EVEN IF
DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT
ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THAT ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.
Developer's liability to Customer for actual damages for any cause whatsoever,
regardless of the form of the action, will be strictly limited to a maximum of the
Fees paid for the prior 12 months.
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9. Limitations Of Service
Unfortunately, computers need routine maintenance and sometimes
break down; also, Developer cannot control the timing or volume of attempts to
access the Hosting Service. As a result, Developer does not guarantee that
Customer or any third parties will be able to access the Web Site created by
Developer at any particular time. Hosting Services are provided on an "as-is,
as-available" basis.
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10. Nondisclosure And Confidentiality
| (a) |
Each party hereunder may disclose to the
other party certain Trade Secrets and Confidential Information of such
party or of such party's associated companies, suppliers, or customers.
For purposes of this Agreement, "Trade Secrets" means
information which: (i) derives economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its
disclosure or use; and (ii) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy; "Confidential
Information" means information, other than Trade Secrets, that is of
value to its owner and is treated as confidential; "Proprietary
Information" means Trade Secrets and Confidential Information;
"Owner" refers to the party disclosing Proprietary Information
hereunder, whether such party is Developer or Customer and whether such
disclosure is directly from Owner or through Owner's employees or agents;
and "Recipient" refers to the party receiving any Proprietary
Information hereunder, whether such party is Developer or Customer and
whether such disclosure received directly or through Recipient's employees
or agents. |
| (b) |
Recipient agrees to hold the Proprietary
Information disclosed by Owner in strictest confidence and not to,
directly or indirectly, copy, reproduce, distribute, manufacture,
duplicate, reveal, report, publish, disclose, cause to be disclosed, or
otherwise transfer the Proprietary Information disclosed by Owner to any
third party, or utilize the Proprietary Information disclosed by Owner for
any purpose whatsoever other than as expressly contemplated by this
Agreement. With regard to the Trade Secrets, the obligations in this
Section 10 shall continue for so long as such information constitutes a
trade secret under applicable law. With regard to the Confidential
Information, the obligations in this Section 10 shall continue for the
term of this Agreement and for a period of five years thereafter. The
foregoing obligations shall not apply if and to the extent that: |
| |
(i) |
The information communicated was already known to
Recipient, without obligations to keep such information confidential, at
the time of Recipient's receipt from Owner; |
| |
(ii) |
The information communicated was received by Recipient in
good faith from a third party lawfully in possession thereof and having no
obligation to keep such information confidential; or |
| |
(iii) |
The information communicated was publicly known at the
time of Recipient's receipt from Owner or has become publicly known other
than by a breach of this Agreement. |
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11. Termination
| (a) |
This Agreement shall be effective as of the
date it is executed by Customer and Developer and shall remain in force
until such time as Developer and Customer have each performed all of their
respective obligations hereunder, unless otherwise terminated by either
party as provided herein. |
| (b) |
Either party may terminate this
Agreement upon twenty (20) days written notice to the other party. In
addition, Developer shall have the right to immediately stop service in
the event Customer fails to make timely (within 10 days of receipt of
invoice) payment for such service or violates any of the warranties
specified in paragraph 7.1 above. Upon receipt of notice of such
termination, Developer shall invoice Client for services performed through
the termination date. If Development Services are billed on a flat rate,
Client will be billed for a pro rata portion of the amount of Development
Services performed up until the termination date. Upon payment by Customer
of all invoices, Developer shall collect and deliver to Customer whatever
work product and Deliverables then exist in a manner readable by Customer. |
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12. Use Of Product By Developer
Customer grants to Developer the right to disclose the existence
of the Web Site and demonstrate the Web Site, and to use the logos, trademarks,
trade names, and trade dress of Customer for the purposes of performing under this
Agreement and for the purposes of marketing and advertising Developer's services
to others.
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13. Entire Agreement
This Agreement supersedes and cancels any previous
understandings, representations, or agreements between the parties relating to the
subject matter hereof, and expresses the complete and final understanding with
respect to the subject matter hereof and supersedes and cancels all previous and
contemporaneous written and oral agreements and communications relating hereto.
Sections 2, 3.2, 6, 7, 8, 9, 10, and 20 shall survive termination of this
Agreement.
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14. Assignment
Customer may not assign, transfer or pledge this Agreement, or
any interest, license or rights herein, in any manner, without the prior written
consent of Developer.
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15. Independent Principals
Developer and Customer are independent principals in all
relationships and actions under and contemplated by this Agreement. This Agreement
shall not be construed to create any employment relation, partnership, joint
venture, or agency relationship between the parties or to authorize any party to
enter into any commitment or agreement binding on the other.
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16. Non-Waiver
Any failure by either party to detect, protest, or remedy any
breach of this Agreement shall not constitute a waiver or impairment of any such
term or condition, or the right of such party at any time to avail itself of such
remedies as it may have for any breach or breaches of such term or condition.
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17. Severability
If any provision hereof is declared invalid by a court of
competent jurisdiction, such provision shall be ineffective only to the extent of
such invalidity, so that the remainder of that provision and all remaining
provisions of this Agreement will continue in full force and effect.
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18. Force Majeure
Neither party shall be in default by reason of any failure in
performance of this Agreement if such failure arises, directly or indirectly, out
of causes reasonably beyond the direct control or foreseeability of such party,
including but not limited to, default by subcontractors or suppliers, acts of God
or of the public enemy, U.S. or foreign governmental acts in either a sovereign or
contractual capacity, labor, fire, flood, epidemic, restrictions, strikes, and/or
freight embargoes.
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19. Notice
All communications between the parties which are required
or permitted to be in writing shall be sent by hand delivery, with receipt
obtained, or by prepaid, first class U.S. postal service mail, certified return
receipt requested, or by facsimile with confirmation by first class U.S. postal
service and sent to the addressed specified in the first paragraph of this
Agreement. By written communication, either party may designate a different
address for purposes hereof.
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20. Governing Law
This Agreement shall be governed by, construed, and
interpreted in accordance with the laws of the State of Colorado without regard to
its rules governing conflicts of law. The parties consent to the exclusive
jurisdiction of the appropriate state and federal courts for Colorado in all
disputes or claims relating to this Agreement.
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21. Miscellaneous
This Agreement shall be binding upon and inure to the
benefit of each party and their respective heirs, successors and assigns.
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