This Website Development Agreement
(“Agreement”) is made and entered into between ________________________________
[insert the full legal name of the broker, brokerage firm, sales licensees, or
MLS], a(n) _______________________________ [state that the website owner is an
individual if a broker or sales licensee is entering into the agreement or
insert the
entity
type if an MLS is entering into the agreement] (“Owner”) and
___________________________, a(n) ________________________ [insert entity type
or state that developer is an individual, as applicable] (“Developer”).
Owner
has agreed to engage Developer to design and develop a website (the
“Website”)
for Owner for display of certain real estate listings, and Developer has agreed
to design and develop the Website in accordance with the terms of this
Agreement.
In
exchange for good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, Owner and Developer agree as follows:
1.
Developer’s
Responsibilities. Developer agrees to
design and develop the Website in accordance with (a) the specifications which
are set forth on the attached Schedule A to this Agreement, and the other
instructions and materials provided by Owner from time-to-during the terms of
this Agreement (the
“Specifications”),
and (b) the development schedule set forth on the attached Schedule B to this
Agreement (the “Development Schedule”).
2.
Website
Design.
a.
Design. The design of the Website shall be in
substantial conformity with the Specifications.
Developer shall develop the Website to project the highest professional
image.
b.
Materials
Provided by Owner. All materials, text,
graphics and other content for the Website to be supplied by Owner (the “Owner
Content”) may be provided in soft format such as on CD - Rom, DVD or via
email. Files will be provided in HTML
format, standard word processing text format, or, if images, digitally in TIFF,
GIF, JPEG, or Photoshop format. Owner
agrees to provide all Owner Content within a reasonable time for Developer to
timely meet the requirements of the Development Schedule or as otherwise
specified in the Development Schedule.
c.
Accessibility
During Development. Throughout the
development of the prototype and the final Website, the Website shall be
accessible to Owner. Until Owner has
approved the final Website, none of the web pages for the Website will be
accessible to end users.
d.
Delivery
of Deliverables. Upon Owner’s approval
of the final Website, or upon termination of this Agreement, whichever occurs
earlier, Developer shall deliver to Owner all code, documentation, reports,
images, artwork, text, and other materials developed by Developer in the course
of its performance under this Agreement and any other terms reasonably
necessary for the operation of the
Website,
other than third party operating system software, third party networking
software, web browsers, and hardware, and all changes and enhancements thereto
(the
“Deliverables”). Documentation shall be
delivered in printed format and in electronic format. Code shall be delivered in electronic
format. Developer shall maintain its
backups and one set of the Deliverables for a period of six (6) months after
Owner’s approval of the final Website.
If this Agreement is terminated prior to final approval, or upon
expiration of the six-month period, Developer will destroy all of its copies of
the Deliverables, including all backups thereof, and permanently destroy all
files constituting final or working copies of any
Deliverables
from Developer’s computers and back-up materials unless otherwise directed in
writing by Owner.
3.
Domain
Name. The Website shall have the domain
name designated by Owner (the “Domain Name”).
Owner shall register the Domain Name or, at
Owner’s
option and upon Owner’s request, Developer shall register the Domain
Name on Owner’s behalf. Unless otherwise agreed in writing by the
parties, Owner shall be listed as the registrant, and administrative and
technical contact for the Domain Name.
Owner shall reimburse Developer for any registration fees incurred by
Developer in registering the Domain Name for Owner. If, by agreement of the parties, Developer is
listed as the registrant or technical or administrative contact for the Domain
Name, then Developer shall maintain and renew registration of the Domain Name,
and pay any applicable fees associated therewith, throughout the term of this
Agreement. If, by agreement of the
parties, Developer is listed as the registrant or technical or administrative
contact for the Domain Name, then upon any termination of this Agreement for
any reason, Developer shall take all action necessary to transfer the name of
registrant and the technical and administrative contact information for the
Domain Name to
Owner
or designee of Owner within five (5) days of termination of this Agreement, or
within five (5) days of Owner providing such information or taking such action
as required to effectuate the transfer.
4.
Fees. Owner agrees to pay Developer the amounts and
in accordance with the payment terms set forth on the attached Schedule C to
this Agreement. If there is a dispute
with regard to whether work was actually completed or whether an invoice is
properly payable, the amount of the invoice in dispute shall not be due until
the dispute is resolved.
5.
Expenses. Except as expressly agreed otherwise in
writing by Owner, Developer shall bear all of its own expenses arising from its
performance of its obligations under this Agreement. Owner shall have no obligation to provide
office space, work facilities, equipment, clerical services, programming
services, or the like.
6.
Future
Development and Enhancements and License.
Owner and Developer agree and acknowledge that Owner may from
time-to-time after termination of this Agreement request that Developer enhance,
update, create new versions, create bug fixes, or otherwise modify the Website
(“Enhancements”). Owner shall have no
obligation to engage Developer in connection with any Enhancements. Developer shall charge Owner for such
services at Developer’s current standard published hourly rate. Developer agrees that such rates will not
increase by more than ten percent (10%) during any calendar year and that such
rates will not increase more than one (1) time in any two (2) calendar year
period. Developer agrees to assign, and
hereby assigns all right, title and interest, including all copyright rights
and other intellectual property rights, in and to the Enhancements to
Owner. Upon completion, all Enhancements
shall be included in the definition of the Deliverables under this
Agreement
and shall be governed by the terms and conditions of this Agreement. Owner hereby grants to Developer a revocable,
non-exclusive license to use and access the Website for the sole purpose of
creating Enhancements. This license may
be terminated by Owner at any time.
7.
Confidential
Information of Owner.
a.
Developer
acknowledges that Developer may have access to information of Owner that is
considered by Owner to be confidential or proprietary including, without
limitation, real property listing information, including all intellectual
property rights, trade secrets, copyrights, customer lists, and customer
information (“Confidential Information”).
Confidential Information does not include information that (a) has been
made public by an act or omission by a party other than Developer; (b)
Developer receives from an unrelated third party without restriction on
disclosure and without breach of a nondisclosure obligation; (c) Developer knew
prior to receiving such information; or (d) Developer develops independently
without use of Confidential Information.
Developer
agrees to maintain as confidential and not disclose the Confidential
Information to any third party and will not use any Confidential Information
for any purpose other than for the performance of its obligations under this
Agreement. Developer agrees to use all
reasonable efforts to prevent any unauthorized disclosure of Confidential
Information disclosed by Owner under this Agreement.
b.
Developer
acknowledges and agrees that Owner does not wish to receive from Developer any
confidential information of Developer or of any third party.
Developer
represents and warrants that any information provided to Owner in connection
with this Agreement shall not be confidential or proprietary to Developer or
any third party.
c.
Developer
shall immediately notify Owner upon discovery of any unauthorized use or
disclosure of Confidential Information, or any other breach of this Agreement,
and will cooperate with Owner in every reasonable way to regain possession of
the Confidential Information and prevent its unauthorized use.
8.
Ownership
of Owner Content. Developer acknowledges
and agrees that all Owner Content is a proprietary, original work of authorship
of Owner, or licensed or assigned to Owner, and is protected under United
States copyright, trademark, patent and trade secret laws of general
applicability. Developer further
acknowledges and agrees that all right, title, and interest in and to the Owner
Content, and any portion of the Owner Content, together with all modifications,
enhancements, and derivative works of the Owner Content, whether or not made by
Developer, including all copyright rights, are and shall remain with Owner or
its licensors. Developer agrees to
assign and transfer and does hereby irrevocably assign and transfer to Owner
any and all right, title, and interest, including all copyright rights and
other intellectual property rights, and all actions and causes of action
related to the foregoing, and all damages, profits, and other recoveries
related thereto, which Developer may have or acquire in and to the Owner
Content and any and all modifications or derivative works made by Developer to
the Owner Content. Developer agrees to
execute all documents and take all action reasonably requested by Owner in
connection with the assignment of rights to Owner. Developer agrees that it will not challenge
or take any action inconsistent with Owner’s rights to the Owner Content.
9.
Trademarks. Owner grants to Developer a limited,
non-exclusive, revocable license to use the trademarks of Owner solely for use
on the Website and in exactly the form designated by Owner. The license granted under this Section 9 of
this Agreement may be terminated at any time by Owner, in its sole discretion,
upon ten (10) days notice. Developer
agrees and acknowledges that the license of the Owner’s trademarks is made
without any representations or warranties of any kind or nature. Owner does not make any representations or
warranties regarding title to any Owner trademark, the rights of any other
persons or entities to the Owner trademarks, or with regard to the
enforceability of any rights to any Owner trademark. Except as provided in this Section 9 of this
Agreement, no other right is granted to Developer under this Agreement with
respect to any trademarks of Owner.
Developer agrees that it will not file any applications or assert any
rights to any of Owner’s trademarks in the United States, or any other country
or territory.
10.
Ownership
of Deliverables.
a.
Owner
and Developer intend that, except as set forth below, all elements of all
Deliverables shall be exclusively owned by Owner, and Owner shall exclusively
own all copyrights and all other intellectual property rights in the
Deliverables. Accordingly, Developer
agrees to assign and transfer and does hereby irrevocably assign and transfer
to Owner any and all right, title, and interest, including all copyright rights
and other intellectual property rights, and all actions and causes of action
related to the foregoing, and all damages, profits, and other recoveries
related thereto, which Developer may have or acquire in and to any and all
Deliverables. Such rights, title, and
interest shall be deemed assigned as of the moment of creation without the
necessity of any further action on the part of either party. Developer agrees to take all action and
execute and deliver to Owner all documents requested by Owner in connection
with the transfer and assignment of rights in and to the Deliverables to Owner,
and any copyright application for and registration of the Deliverables or any
elements of the Deliverables. If the
foregoing assignment is determined to be unenforceable for any reason,
Developer hereby grants to Owner an exclusive, non-revocable, worldwide, fully
paid, copyright license to sublicense through multiple tiers, perform, publish,
display, reproduce, create derivative works of, and distribute any or all of
the Deliverables or any derivative works thereof.
b.
In
the event that any portion of any Deliverable, including the entirety thereof,
constitutes a pre-existing work for which Developer cannot grant to Owner the
rights set forth in this Section 10 (a “Pre-existing Work”), Developer shall
specify in writing (1) the nature of such Pre-existing Work; (2) its owner;
(3)
any restrictions or royalty terms applicable to Developer’s or Owner’s use of
such Pre-existing Work or Owner’s exploitation of the Deliverable as a
derivative works thereof; and (4) the source of Developer’s authority to employ
the Preexisting Work in the preparation of the Deliverable, and Developer shall
grant to Owner a non-exclusive, non-revocable, worldwide, fully paid license to
use the Pre-existing Work in any manner consistent with this Agreement. The only preexisting works that may be used
in the construction of the Website or any Deliverables are the Pre-existing
Works that may be approved in writing by Owner prior to their use.
c. In the event for any reason, after
reasonable effort, Developer fails to execute and deliver to Owner any document
requested by Owner under Section
10.b
of this Agreement, Developer hereby irrevocably designates and appoints Owner,
and its officers and agents, as Developer’s attorney in fact, which appointment
is coupled with an interest, to act for and in behalf of Developer to execute,
verify, and file any such documents and to do all other lawfully permitted acts
to further the purposes of this Agreement with the same legal force and effect
as if executed by Developer. Developer
hereby waives any and all claims, of any nature whatsoever, which Developer now
or may hereafter have for infringement of the Deliverables assigned to Owner
under this Agreement.
11.
Copyright
Notices. Developer shall include on the
Website any and all copyright or other notices as requested by Owner.
12.
Work
Only by Developer. Excepting any
co-developer who is engaged by Owner to co-develop the Website with Developer,
no individuals or entities other than Developer and Developer’s employees shall
undertake any work in connection with this Agreement. Developer shall obtain and maintain in effect
written agreements with each of its employees who participate in any of
Developer’s work under this Agreement, which agreements shall contain terms
sufficient for Developer to comply with all provisions of this Agreement and to
support all grants and assignments of rights and ownership under this
Agreement. Such agreements also shall
impose an obligation of confidentiality on such employees with respect to
Owner’s Confidential Information.
13.
Indemnification/No
Infringement. In performing services
under this
Agreement,
Developer agrees not to design, develop, or provide to Owner any items,
including any Deliverables, that infringe any patents, copyrights, trademarks
or other intellectual property rights, including trade secrets, privacy, or
other rights of any person or entity. If
Developer becomes aware of any such possible infringement in the course of
performing any work hereunder, Developer shall immediately notify Owner in
writing. Developer agrees to indemnify,
defend, and hold Owner, its officers, directors, members, employees,
representatives, agents, and the like harmless for any such alleged or actual
infringement of the rights of a third party, including any patent, copyright,
trademark, trade secret, privacy, or other intellectual property or proprietary
rights, and for any liability, debt, or other obligation arising out of or
resulting from any breach by Developer of this Agreement, performance or failed
performance under this Agreement, or use of any Deliverables. This indemnification shall include Owner’s
attorney fees and expenses. Owner shall
have the right, at its option, to control its own defense and engage counsel
acceptable to Owner.
14.
Developer’s
Representations and Warranties.
Developer represents and warrants to Owner as follows:
a.
No
Conflict. Developer is under no
obligation or restriction that would in any way interfere or conflict with the
work to be performed by Developer under this Agreement. Owner understands that Developer is currently
working on one or more similar works for other customers. Provided that those works do not interfere or
conflict with Developer’s obligations under this Agreement, those works shall
not constitute a violation of this Agreement by Developer.
b.
Ownership
Rights. (1) Developer is and will be the
sole author of all works employed by Developer in preparing any and all
Deliverables other than Preexisting Works; (2) Developer has and will have full
and sufficient right to assign or grant the rights and/or licenses granted in
the Deliverables pursuant to this Agreement; (3) all Deliverables other than
Pre-existing Works have not been and will not be published under circumstances
that would cause a loss of copyright therein; and (4) all Deliverables,
including all Pre-existing Works, do not and will not infringe any patents,
copyrights, trademarks or other intellectual property rights, including trade
secrets, privacy, or similar rights of any person or entity, nor has any claim,
whether or not embodied in an action, past or present, of such infringement
been threatened or asserted, nor is such a claim pending against Developer or,
insofar as Developer is aware, against any entity from which Developer has
obtained such rights.
c.
Conformity,
Performance, and Compliance. (1) all
Deliverables shall be prepared in a workmanlike manner and with professional
diligence and skill; (2) all Deliverables will function under standard HTML
conventions; (3) all Deliverables will conform to the specifications and
functions set forth in this Agreement; and (4) Developer will perform all work
under this Agreement in compliance with applicable laws. Developer will repair any Deliverable that
does not meet this warranty within a reasonable period of time if the defect
affects the usability of the Website, and otherwise will repair the defect
within twenty four (24) hours, such repairs to be free of charge to Owner. This warranty does not cover links that
change over time, pages that become obsolete over time, content that becomes
outdated over time, or other changes that do not result from any error on the
part of Developer.
d.
The
media on which the Deliverables is or will be contained shall not knowingly
contain any computer instructions which purpose is to disrupt, damage or
interfere with the use of any other computer programs or computer
telecommunications facilities for their commercial purposes, or perform
functions which are not an appropriate part of the functionality of the
applicable computer programs, and which result is to disrupt the use or
operation of such computer programs. The
Deliverables shall not knowingly contain any virus, worm, trojan horse, or
other similar code, or any mechanism which electronically notifies the user of
any fact or event, nor any key, node lock, time-out, logic bomb or other
function, implemented by any means, which may restrict use of or access to any
programs, data or equipment.
15.
Independent
Contractor. Developer, in rendering
performance under this Agreement, shall be deemed an independent contractor and
nothing contained herein shall be construed as constituting an employment,
joint venture, or partnership relationship between Developer and Owner. Developer shall be solely responsible for and
shall hold Owner harmless for any and all claims for taxes, fees, or costs,
including but not limited to withholding, income tax, FICA, and workmen’s
compensation.
16.
Injunctive
Relief. Owner and Developer agree that
any default under or breach of Sections 2.d, 7, 8, 9, 10, , 11, and 12 of this
Agreement will result in immediate and irreparable injury and harm to Owner,
which shall have, in addition to any and all remedies of law and other consequences
under this Agreement, the right to an injunction, specific performance or other
equitable relief to prevent the default under or breach of this Agreement. The forgoing remedies shall in no way limit
any other remedies which Owner may have, including, without limitation, the
right to seek monetary damages.
17.
Termination. Unless earlier terminated in accordance with
this Section 17, this Agreement shall continue in effect until the Website is
operational and has been accepted by Owner.
Owner may, at its sole option, terminate this Agreement immediately upon
written notice to Developer. Upon
receipt of notice of such termination, Developer shall inform Owner of the
extent to which performance has been completed through the date of termination
and collect and deliver to Owner whatever work product and Deliverables then
exist in a manner prescribed by Owner.
Developer may not terminate this Agreement except upon the occurrence of
a material default by Owner which has not been cured within thirty (30) days
after written notice to Owner. Sections
2.d, 3, 6, 7, 8, 9, 10, 13, 16, 17, and 18 of this Agreement shall survive any
termination of this Agreement.
18.
General.
a.
Costs
of Litigation. If any action is brought
by either party to this Agreement against the other party regarding the subject
matter of this Agreement, the prevailing party shall be entitled to recover, in
addition to any other relief granted, reasonable attorney fees, costs, and
expenses of litigation.
b.
Governing
Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed in accordance with the laws of the
state of __________. Developer
acknowledges that by entering into this Agreement, and providing services under
this Agreement, Developer has transacted business in the state of ________. By transacting business in the state of
___________ by agreement, Developer voluntarily submits and consents to, and
waives any defense to the jurisdiction of courts located in ___________ County,
state of __________, as to all matters relating to or arising from this
Agreement.
c.
No
Assignment. Developer may not assign or
delegate, sublicense or otherwise transfer this Agreement, or its services to
be performed or obligations under this Agreement.
d.
Waiver. No waiver by either party of any default
shall be deemed as a waiver of prior or subsequent default of the same of other
provisions of this Agreement.
e.
Severability. If any term, clause or provision hereof is
held invalid or unenforceable by a court of competent jurisdiction, such
invalidity shall not affect the validity or operation of any other term, clause
or provision, and such invalid term, clause or provision shall be deemed to be
severed from the Agreement.
f.
Integration. This Agreement constitutes the entire
understanding of the parties, and revokes and supersedes all prior agreements
between the parties and is intended as a final expression of their
Agreement. All schedules referenced in
this Agreement shall be incorporated into this Agreement by this reference. This Agreement shall not be modified or
amended except in writing signed by the parties hereto and specifically
referring to this Agreement. This
Agreement shall take precedence over any other documents which may conflict
with this Agreement.
Dated
effective _________________, 20__.
OWNER:
Printed
Name of Owner:
____________________________________
Signature:
________________________________________
Printed
Name and Title of Signatory (if Owner is a business entity or brokerage
firm):
___________________________
________________________________________
DEVELOPER
Printed
Name of Developer:
____________________________________
Signature:
______________________________________
Printed Name and Title of
Signatory (if Developer is a business
entity):
_______________________________
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