WHEREAS, Client wishes to obtain the professional services offered by Company; and
WHEREAS, Company is willing to provide professional services to Client under the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the promises and the terms and covenants contained herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. SERVICES
Client hereby engages and retains Company and Company hereby accepts the engagement, on the terms and conditions set forth in this Agreement, for the limited purposes of providing the services more particularly set forth in Exhibit A attached hereto (“Exhibit A”) and incorporated herein by reference (the “Services”).
SECTION 2. PAYMENTS AND BILLING
- Company Fees. Client agrees to pay to Company the full amount of all fees for Services set forth in Exhibit A and any other amounts due to Company under this Agreement, when due and without setoff, notice or demand.
- Billing. Company will invoice Client for any and all fees payable to Company on a recurring or continuing basis. Payment in full is due no later than the due date indicated on the invoice. If Client fails to tender payment in full by the due date specified on the invoice, Company may (i) impose an interest charge of one percent (1%) per month, but in no event greater than the maximum allowable by law, (ii) discontinue Client’s access to the Services and otherwise cease providing Services to Client hereunder, and (iii) exercise any and all other rights and remedies available to Company.
SECTION 3. TERM AND TERMINATION
- Termination. Either Party may terminate this Agreement by providing written notice to the other Party at least thirty (30) days prior to the effective date of such termination. Termination shall not relieve either Party of liability to the other Party in respect of obligations incurred prior to the effective date of termination.
- Fees. All fees or other amounts due to Company hereunder shall be paid to Company prior to the effective date of termination. Notwithstanding anything to the contrary herein, Company shall not be obligated to release, assign or otherwise transfer any Domain Name or other information or property to Client (including without limitation any passwords, administrative or other access rights in respect of any Website, social media accounts, or other digital assets developed for Client hereunder) until such time as all fees and other amounts due to Company have been paid in full.
SECTION 4. OWNERSHIP AND CONTROL OF PRODUCTS
- Company Content. Client acknowledges and understands that the design, development or operation of any website or other product or service by Company hereunder (each, a “Product”, and collectively, “Products”) may include source code, documentation, or application programs that were previously written or developed by Company and modified to meet Client’s specific requirements. Client further acknowledges and understands that the design and development of a Product may include the selection, placement and presentation of visual design elements such as colors, photography, typography, text, patterns, drawings and design used to create the user interface of such Product. Client acknowledges and agrees that until such time as Company transfers ownership of a Product to Client in accordance with this Agreement, Company shall own all worldwide right, title and interest in and to all such content and all other content or materials developed or designed by Company in the course of its performance under this Agreement and any other terms reasonably necessary for the operation of the Website, other than the Client Marks, Client Content and Outside Content (defined below) (collectively, “Company Content”).
- Client Marks and Content. In connection with the Services hereunder, Client may, from time to time, provide Company with trademarks, trade name, trade dress, designs and logos of Client (“Client Marks”) or provide Company with photographs, text or other content (“Client Content”). Client hereby grants to Company a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to use the Client Marks and the Client Content for the purpose of providing the Services.
- Outside Content. Client acknowledges and agrees that in order to design, develop or operate Products, Company may use, purchase or license third-party products or services that Company does not and will not own, including without limitation server-side applications, back-end applications, third-party operating system software, third-party networking software, web browsers, music, stock images, booking and reservation software, accounting software, or any other copyrighted or proprietary third-party work (collectively, “Outside Content”). Company may use Outside Content in connection with the provision of services to other clients of Company. Client acknowledges and understands that any Outside Content used to design and develop Products is owned by third parties and cannot be transferred to Client.
- Control of Product Operation. Client acknowledges and agrees that unless otherwise agreed in writing by Company, Company shall have sole access to and control over the operation of Products at all times throughout the duration of this Agreement, and Client shall not be given access to modify, delete or add any information or content.
- Purchase of Product. No purchase or other assignment or transfer of Product ownership to Client shall be effective until such time as all fees or other amounts due to Company in respect of such product have been received by Company. Client understands and accepts that, in order to operate any such Product to the same degree and functionality as operated under this Agreement, Client may be required to purchase or license Outside Content.
SECTION 5. CLIENT REPRESENTATIONS AND WARRANTIES
- Ownership of Client Marks. Client represents and warrants that it owns, or has a legal right to use the Client Marks, and that the Client Marks do not and will not infringe upon or constitute a misappropriation of any right of any third party, including any copyrights, trademark rights, trade dress, patent rights, confidentiality rights or other intellectual property rights or similar rights of any person or entity, nor has any claim, whether or not embodied in any action, past or present, of such infringement been threatened or asserted in relation to the Client Marks, nor is such a claim pending against Client or, insofar as Client is aware, against any entity from which Client has obtained such rights.
- Ownership of Client Content. Client represents and warrants that it is and will be the sole author and owner of all rights, title and interest in and to the Client Content, and the Client Content does not and will not infringe any 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 in relation to the Client Content, nor is such a claim pending against Client or, insofar as Client is aware, against any entity from which Client has obtained such rights.
- Company Confidential Information. Client acknowledges that in connection with the Services, Client may have access to information of Company that is considered by Company to be confidential or proprietary including, without limitation, 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 of a party other than Client; (b) Client receives from an unrelated third party without restriction on disclosure and without breach of a nondisclosure obligation; (c) Client knew prior to receiving such information; or (d) Client develops independently without use of Confidential Information. Client 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. Client agrees to use all reasonable efforts to prevent any unauthorized disclosure of Confidential Information disclosed by Client under this Agreement. Client shall immediately notify Company upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement, and will cooperate with Company in every reasonable way to regain possession of the Confidential Information and prevent its unauthorized use.
SECTION 6. RELATIONSHIP BETWEEN PARTIES
- Independent Contractor. It is expressly understood and agreed Company shall perform all Services as contemplated herein as an independent contractor, and nothing in this Agreement is intended to create a partnership, association, joint venture, employer-employee, principal-agent or master-servant relationship between Company and Client. The sole relationship between the Parties shall be that of independent contractor. Each Party shall be solely responsible for all taxes attributable to amounts payable to such Party hereunder. Each Party acknowledges and agrees that neither it nor its employees have authority to enter into contracts that bind the other Party or create obligations on the part of the other Party.
- Other Relationships. Company shall have the option, in its sole discretion, to establish relationships with other clients for services similar to those described herein.
SECTION 7. INDEMNIFICATION
- Indemnification of Company. To the fullest extent permitted by law, Client shall indemnify and hold harmless Company from and against any and all damages, losses, expenses, or liability resulting or arising out of any breach or default under this Agreement by Client. Client shall insure that its agents, employees, and affiliates take all actions necessary to comply with the terms and conditions set forth in this agreement. This Section 7 shall survive termination of this Agreement.
SECTION 8. ASSIGNMENT
The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation or other entity without the prior, express written consent of the other party.
SECTION 9. DISPUTE RESOLUTION
If any dispute or claim in law or equity arises out of this Agreement, both parties agree in good faith to attempt to settle such dispute or claim by informal, non-binding mediation. If, after sixty (60) days from the date of the first mediation meeting, such mediation is not successful in resolving such dispute or claim, then such dispute or claim shall be decided by binding arbitration before a single independent arbitrator mutually agreed upon by both parties. If the parties to this Agreement cannot agree on an arbitrator, then this dispute or claim shall be submitted to Dispute Prevention and Resolution (“DPR”), or any other dispute resolution company in Hawaii and pursuant to the then existing rules of DPR. All dispute resolution proceedings held pursuant to this section shall be held on the Island of Maui unless otherwise agreed to in writing by the Parties. Each Party shall bear its own respective costs in connection with any such mediation or arbitration, including costs of the mediation or arbitration and costs and fees of attorneys.
SECTION 10. NOTICES
- Notices Must Be In Writing. Any notices necessary or provided for under this Agreement shall be in writing and shall be delivered to the addresses set forth above or at such other address as Client and Company may provide from time to time, in writing.
- Delivery of Notices. Any notice hereunder may be mailed by United States Postal Service (“USPS”) registered or certified mail, return receipt requested, postage prepaid, and may be deposited at a USPS office or a depository for the receipt of mail regularly maintained by the post office. For purposes of this Agreement, notices shall be deemed to have been “given” or “delivered” upon personal delivery thereof or forty-eight (48) hours after having been deposited in the USPS as provided herein.
SECTION 11. BINDING EFFECT
This Agreement shall be binding upon the Parties and their respective personal representatives, heirs, administrators, executors, successors and permitted assigns.
SECTION 12. ENTIRE AGREEMENT
This Agreement, including any specified Exhibits, constitutes the entire agreement between Client and Company with respect to the subject matter hereof and supersedes and replaces any and all previous agreements, prior understandings or representations of any kind preceding the date of this Agreement unless expressly incorporated into this Agreement. No change to this Agreement shall be valid unless made by supplemental written agreement executed and approved by the Client and Company. Except as otherwise provided herein, any and all amendments, additions, or deletions to this Agreement shall be null and void unless approved by the Client and Company in writing. Each party to this Agreement hereby acknowledges and agrees that the other party has made no warranties, representations, covenants, or agreements, express or implied, to such party, other than those expressly set forth herein, and that each party, in entering into and executing this Agreement has relied upon no warranties, representations, covenants, or agreements, express or implied to such party, other than those expressly set forth herein.
SECTION 13. RIGHTS CUMULATIVE; NO WAIVER
No right or remedy herein conferred upon or reserved to either of the Parties is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this Agreement or applicable law. The failure of either Party to insist at any time upon the strict observance or performance of any of the provisions of this Agreement, or to exercise any right or remedy as provided in this Agreement, shall not impair such right or remedy or be construed as a waiver or relinquishment of such right or remedy with respect to subsequent defaults. No waiver of any default hereunder shall be construed to be or shall constitute a waiver of any subsequent default. Each right and remedy provided hereunder may be exercised from time to time and as often as may be deemed expedient.
SECTION 14. GOVERNING LAW
This Agreement and all rights and liabilities of the parties hereto shall be subject to, construed in accordance with and governed by the laws of the State of Hawaii. For purposes of litigating any dispute that arises directly or indirectly from this Agreement, the Parties hereby submit to and consent to the exclusive jurisdiction of the State of Hawaii and agree that such litigation shall be conducted only in the Circuit Court of the Second Circuit, State of Hawaii, and no other court.
SECTION 15. HEADINGS
All headings and sub-headings employed within this Agreement and on the Exhibits hereto are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement.
SECTION 16. SEVERABILITY
If any part or provision of this Agreement is found to be invalid, illegal or unenforceable, then the part or provision affected shall be severed from the rest of the Agreement and the Agreement shall continue in force.
SECTION 17. FORCE MAJEURE
Any delays in the performance of any obligation of Company under this Agreement shall be excused to the extent that such delays are caused by wars, national emergencies, natural disasters, strikes, labor disputes, utility failures, governmental regulations, riots, adverse weather, and other similar causes not within the control of Company, and any time periods required for performance shall be extended accordingly.
SECTION 18. NO PARTY DEEMED DRAFTER
No party shall be deeded the drafter of this Agreement. If this Agreement is ever construed by a court of law, such court shall not construe this Agreement or any provision hereof against any party as drafter.
SECTION 19. COUNTERPARTS
This agreement may be signed by facsimile or electronic delivery in .pdf format and may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.