Retainer Billing Terms and Conditions for Website Development

Delivery of Web Site Services.

Developer will use reasonable diligence in the development of the Web Site and endeavor to deliver to Client the services no later than a target date to be determined after full payment and signed contract has been received. Client acknowledges, however, that this delivery deadline and the other payment milestones listed in Exhibit A, are estimates, and are not required delivery dates. Developer will be retaining the source code for the entire project and providing Client with the output formats only. The output is to be used only within the scope of the project as outlined in Exhibit B and does not included the following: Multiplying the site across other domains or servers, creating new web sites based on the code, selling the code, relinquishment of copyright by Developer in any way. Client shall retain all of its intellectual property rights in any text, images or other components it owns and transmits to Developer for use in the Web Site.

Ownership Rights.

Client shall retain all of its intellectual property rights in any text, images or other components it owns and transmits to Developer for use in the Web Site. Client shall hold the copyright for the agreed upon version of the Web Site as delivered, and Client’s copyright notice may be displayed in the final version.

Confidentiality and Non Disclosure.

Client and Developer acknowledge and agree that the Specifications and all other documents and information related to the development of the Web Site (the “Confidential Information”) will constitute valuable trade secrets. Excluded from the “Confidential Information” definition is anything that can be seen by the public on the Web Site when each page of the Web Site is first accessed.

Developer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.

Client shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.

Limited Warranty and Limitation on Damages.

Developer offers a warranty that the Web Site will conform to the Specifications as outlined in the Scope of Work upon launch of the website. Developer does not warranty the website after the Launch, as we no longer retain exclusive access to the code. If the Web Site does not conform to the Specifications, Developer shall be responsible to correct the Web Site without unreasonable delay, at Developer sole expense and without charge to Client, to bring the Web Site into conformance with the Specifications. This warranty shall be the exclusive warranty available to Client. Client waives any other warranty, express or implied. Client acknowledges that Developer do not warrant that the Web Site will work on all platforms. Client acknowledges that Developer is not responsible for the results obtained by Client on the Web Site. Client waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Developer as set forth in the Project Agreement.

Independent Contractor.

Developer is retained as an independent contractor. Developer will be fully responsible for payment of their own income taxes on all compensation earned under this Agreement. Client will not withhold or pay any income tax, social security tax, or any other payroll taxes on Developer’s behalf. Developer understand that they will not be entitled to any fringe benefits that Client provides for its employees generally or to any statutory employment benefits, including without limitation worker’s compensation or unemployment insurance.

Equipment.

Client agrees to make available to Developer, for Developer’ use in performing the services required by this Agreement, such items of hardware and software as Client and Developer may agree are reasonably necessary for such purpose.

General Provisions.

Entire Agreement.

This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both of the parties hereto.

Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. Exclusive jurisdiction and venue shall be in Cook County, Illinois Superior Court.

Binding Effect.

This Agreement shall be binding upon and inure to the benefit of Client and Developer and their respective successors and assigns, provided that Developer may not assign any of his obligations under this Agreement without Client’s prior written consent.

Waiver.

The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.

Good Faith.

Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.

No Right to Assign.

Client has no right to assign, sell, modify or otherwise alter the Web Site, except upon the express written advance approval of Developer, which consent can be withheld for any reason.

Indemnification.

Client warrants that everything it gives Developer to put on the Web Site is legally owned or licensed to Client. Client agrees to indemnify and hold Developer harmless from any and all claims brought by any third-party relating to any aspect of the Web Site, including, but without limitation, any and all demands, liabilities, losses, costs and claims including attorney’s fees arising out of injury caused by Client’s products/services, material supplied by Client, copyright infringement, and defective products sold via the Web Site. Further, Client agrees to indemnify Developer from responsibility for problems/disruptions caused by third-party services that Client may use such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of the Web Site or multimedia project.

Use of Web Site for Promotional Purposes.

Client grants Developer the right to use the Web Site for promotional purposes and/or to cross-link it with other Web Sites developed by Developer within their portfolio.

No Responsibility for Theft.

Developer have no responsibility for any third-party taking all or any part of the Web Site.

Attorney’s Fees.

In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.

Identification of Developer.

Client agrees that Developer’ identification may be annotated within the code or on the Web Site as the authors. Client also agrees to put on Developer’ copyright notices on the Web Site and the relevant content therein if required.

No Responsibility for Loss.

Developer are not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of the Web Site.

Domain Name.

Any domain name registered on Client’s behalf will be made in Client’s name for both the billing and administrative contacts. The technical contact is generally required to be the hosting ISP. Developer will not register domain names in Developer’s name.

Competing Vendors

Competing vendors will not be allowed to work on the project or website at any time unless Developer has given prior approval to do so. Developer will not warranty any flaws, bugs, or mistakes made by 3^rd party competing vendors that may work on the website after final delivery of the project.

Termination

In the event of contract termination, all outstanding balances will be presented and due within seven (7) days of termination or shall be subject to late fees as outlined above.

DEVELOPER AND CLIENT RESPONSIBILITIES

A. Scope of Work. Client hereby retains the services of Developer to redesign the Web Site for Client in accordance with the Order.

B. Changes. Changes to this Agreement, the Order or to any of the specifications of the Web Site shall become effective only when a written change request is executed by the Client and Developer (“Change Order”). Developer agrees to notify Client promptly of any factor, occurrence, or event coming to its attention that may affect Developer’s ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in the Services.  In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.

C. Client’s Responsibilities. Client agrees to perform all tasks assigned to Client as set forth in this Agreement or a Change Order, and to provide all assistance and cooperation to Developer in order to complete timely and efficiently the Web Site.  Developer shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event Developer’s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth herein, a Change Order, or this Agreement.  In the event of any such failure or delay by Client (i) all of Developer’s time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Client shall continue to make timely payments to Developer as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Developer.  Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support operation of the Web Site.  Unless otherwise contracted with Developer or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on the Web Site as well as providing all content for the Web Site. With the execution of a Change Order specifically asking Developer to assesses the Client’s systems, software and hardware from time to time, Developer may agree to perform this function at normal Developer rates.