THE PARTIES AGREE AS FOLLOWS:
Scope of Service
1.1 USG will provide Customer, with specific services as mutually agreed upon and described in the attached Statement of Work. All services to be provided hereunder will be referred to as Services. The parties may use this Agreement for multiple Statements of Work. Each Statement of Work shall be subject to this Agreement.
1.2 Statements of Work will be written documents setting forth at a minimum:
a. A complete, sufficiently-detailed description of the types of Services to be rendered;
b. The applicable billing rates for the Services to be rendered (Services Fees); and
c. Any additional terms and conditions to which the parties may agree.
1.3 The parties contemplate that it may be desirable to make changes to the Statement(s) of Work. Before performing any work associated with any such change, a written Change Order shall set forth the necessary revisions to the Statement(s) of Work, and the parties, shall agree in writing that such work constitutes a change from the original Statement of Work, as amended, and that they further agree to the change provisions set forth in the Change Order. Each Change Order shall be numbered serially and executed by USG and Customer.
1.4 Executive Staff of Customer and USG will review the status of the Services, Statement(s) of Work, Change Orders, invoices and estimates as may be required. A written status report will be produced regarding the review. USG and Customer agree to execute and maintain copies of these status reports.
Services and Fees and Expenses.
2.1 Customer shall be responsible for all Fees as identified in the applicable Statement(s) of Work (and Change Orders, as applicable) as those Services and/or work products are provided.
2.2 USG will invoice Customer for the Fees according to the payment terms listed in the Scope of Work. Customer agrees to remit full payment to Accounts Payable NLT 15 days beyond its receipt of the invoice.
2.3 USG shall penalize Customer 5% of the Fee amount if payment is not received within 30 days of the invoice. USG shall penalize Customer 10% of the monthly billable amount if payment is not received within 45 days of invoice.
Term and Termination.
3.1 This Agreement shall commence as of the Agreement Date above and shall remain in force through termination of the Agreement.
3.2 Either party may terminate this Agreement upon providing written notice to the other party. Upon termination of this Agreement for any reason, USG agrees to provide reasonable transition assistance to Customer, as requested by Customer, to facilitate the orderly transition of the Services to Customer or its designated replacement provider.
3.3 The duration, scope, and fees for the transition assistance will be mutually agreed upon and outlined in a written transition plan, which will form an integral part of this Agreement.
Proprietary Rights: Confidential Information.
4.1 USG agrees that the work products from the Services provided to Customer hereunder, shall be owned by Customer. Nothing contained in this Agreement shall be construed as prohibiting USG utilizing in any manner, knowledge and experience of a general nature acquired in the performance of Services for Customer.
4.2 Confidential Information includes all information identified by a disclosing party as proprietary and confidential, which Confidential Information shall remain the sole property of the disclosing party unless the ownership of such Confidential Information is otherwise expressly set forth in the Agreement. Items will not be considered Confidential Information if: (a) available to public other than by a breach of an agreement by the recipient; (b) rightfully received from a third party not in breach of any obligation of any confidentiality; (c) independently developed by one party without access to the Confidential Information of the other; or (d) rightly known to the recipient at the time of disclosure as verified by its written records.
4.3 Each party agrees that it shall not use for any purpose or disclose to any third party any Confidential Information of the other party without the express written consent of the other party. Each party agrees to safeguard the Confidential Information of the other party against use or disclosure other than as authorized by or pursuant to this Agreement through measures, and exercising a degree of care, which are at least as protective as those, USG or Customer, as the case may be, exercises in safeguarding the confidentiality of its own proprietary information, but no less than a reasonable degree of care under the circumstances. Each party shall permit access to the Confidential Information of the other party only to those individuals (a) who have entered into a written nondisclosure agreement with the other party on terms equally as restrictive as those set forth herein, and (b) who require access in performance of their duties to the other party in connection with the other party’s rights under this Agreement.
4.4 Each party acknowledges that the wrongful use or disclosure of Confidential Information of the other party may result in irreparable harm for which there will be no adequate remedy at law. In the event of a breach by the other party or any of its officers, employees or agents of its or their obligations under this Section 5, the non-breaching party may immediately terminate this Agreement without liability to the other party.
Warranties
5.1 USG warrants that the Services and/or Work Product to be provided under this Agreement shall be performed in a professional manner conforming to generally accepted industry standards and practices. Customer agrees that USG’s sole and exclusive obligation with respect to the Services covered by this limited warranty shall be, at USG’s sole discretion, to correct the nonconformity or to refund ann Fees paid for the affected services or work product.
Ownership & Licensing
6.1 Upon full payment, the ownership of the final website design and graphics will be transferred to the Customer. The Customer will also be granted a license to use images, multimedia, and other components used in the website for the website only. The rights of any third-party components, such as stock photos or open-source components, used in the project are subject to the original licensing agreement for that component.
6.2 USG retains the right to use the website design, graphics, and other components for promotional purposes and as examples of work in portfolios.
6.3 Except as expressly permitted in this Agreement, the Customer may not reproduce, distribute, sublicense, sell, or transfer the website, or any portion thereof, to any third party without the prior written consent of USG.
6.4 The Customer is expressly prohibited from using the website design, its underlying source code, graphics, structure, or overall design for creating derivative works, including additional websites or pages within the existing website, for any other URL or for resale or sub licensing to third parties.
6.5 Any such unauthorized use shall be deemed a material breach of this Agreement and may result in immediate termination of this Agreement, in addition to any other remedies USG may have at law or in equity.
Liability & Indemnification
7.1 USG will not be held liable for any indirect, consequential, or special damages, including but not limited to, loss of profits arising out of the website design services provided. In any event, the liability of USG to the Customer for any and all claims will be limited to the total amount of fees paid by the Customer to USG under this Agreement.
7.2 Customer agrees to indemnify and hold harmless USG from any and all claims, liabilities, damages, or costs, including attorney's fees, arising from the operation or use of the website, any breach of this Agreement by Customer, or any infringement of third-party intellectual property rights relating to the materials provided by Customer.
General Provisions
8.1 The relationship of Customer and USG is that of independent and separate entities. Personnel of both parties are neither agents nor employees of the other party for federal tax purposes or any other purpose whatsoever and are not entitled to any employee benefits of the other party.
8.2 USG reserves the right to use subcontracted labor to achieve mutually agreed up deliverables to Customer. USG will be solely responsible for payment to other subcontracted labor, unless agreed upon in writing by Customer.
8.3 No delay, failure or default in performance of any obligation by either party, excepting all obligations to make payments hereunder, shall constitute a breach of this Agreement to the extent caused by force majeure.
8.4 Any assignment in violation of these terms is void.
8.5 Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be conclusively resolved through binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association with venue of arbitration being located within Boulder County, Colorado. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorney fees, unless the arbitration award specifically provides otherwise.
8.6 All communications between the parties with respect to any of the provisions of this Agreement shall be in writing, and shall be sent by personal delivery or by airmail, facsimile transmission or other commercial means of rapid deliver, postage or costs of transmission and deliver prepaid, to Customer or to USG as set forth in the preamble of this Agreement, until such time as either party provided the other not less than ten (10) days prior written notice of a change of address in accordance with these provisions.
8.7 The validity of this Agreement and the rights, obligations and relations of the parties hereunder shall be construed and determined under and in accordance with the laws of the State of Colorado; provided, however, that if any provision of the Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision shall to such extent as it shall be determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement shall otherwise remain in full force. After arbitration, as specified in Section 7.5, any suit to enforce any provision of this Agreement, or any right, remedy or other matter arising from the arbitration, will be brought exclusively in the state or federal courts located in Boulder County, Colorado. USG and Customer agree and consent to the venue in and to the in-person jurisdiction of the aforementioned courts.
8.8 Any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representatives of both parties. The failure of any party to enforce any right it is granted herein, or to require the performance by the other party hereto of any provision of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of this Agreement. All provisions of this Agreement which by their own terms take effect upon the termination of this Agreement or by their nature survive termination (including without limitation the provisions of Sections 6, 7) shall survive such termination.
8.9 This Agreement, all attached schedules and all other agreements referred to herein or to be delivered by the parties pursuant hereto, represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and merges all prior discussions between them and supersedes and replaces any and every other agreement or understanding which may have existed between the parties to the extent that any such agreement or understanding relates to providing Services to Customer. Customer hereby acknowledges that it has not reasonably relied on any other representation or statement that is not contained in this Agreement or made by a person or entity other than USG. To the extent, if any, that the terms and conditions of Customer’s orders or other correspondence are inconsistent with this Agreement, this Agreement shall control.
8.10 Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are caused by conditions beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, acts of government, acts of nature such as earthquakes, hurricanes, and floods, war or civil disturbance, strikes, lockouts, or other labor disturbances, court order, or disruption of telecommunications, power, or other essential services ("Force Majeure Event"). The party suffering a Force Majeure Event shall give the other party prompt written notice, and shall use reasonable efforts to resume performance as soon as possible.
