Cuberis Project Terms
1. Web Design
Services include designing a website (“Web Design”) to be published on the Client’s selected (“Hosting Service”). The Client hereby authorizes Cuberis (“C3”) to access the web account and authorizes the Hosting Service to provide C3 with “full access” to the Client’s account including other accounts, such as database accounts, that are within the scope of the Web Design. Notwithstanding anything to the contrary contained in this Agreement, neither C3 nor any of its employees or agents warrant that the functions contained in the Web Design will be uninterrupted or error-free.
C3 will make reasonable efforts to design a fully-functional website on popular and recent version browsers and operating systems, but does not warrant functionality in browsers and platforms that are more than 3 years old, or which are no longer supported by the browser developer
Client agrees that C3 shall have the right to display on the homepage of the completed Web Design, a notation crediting C3 as the designer of the site with a link to C3’s website.
2. Payment and Term
If a payment is more than 30 days past due, C3, without notice, shall have no further obligation to continue to provide Services under this Agreement. Furthermore, payments exceeding 30 days past due may have a 3% penalty applied and compounded monthly. Client shall remain liable for the full amount contracted for under this Agreement regardless as to whether C3 exercises its right to reduce or cease Services hereunder. All amounts must be paid in U.S. Dollars. ALL PAYMENTS ARE NON-REFUNDABLE EXCEPT AS PROVIDED IN SECTION 15 OF THIS AGREEMENT.
“Client Content” shall mean any materials provided by Client for incorporation in any advertising, documents, web pages, or other publication or distribution pursuant to this Agreement, including, but not limited to, any images, photographs, illustrations, artwork, trademarks, graphics, audio clips, video clips or text. Client shall provide Client Content that does not contain any content or materials which are obscene, threatening or malicious, or which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right or which otherwise exposes C3 to civil or criminal liability. Any such materials provided by Client to C3 which do not satisfy the foregoing requirement in this Section 3 shall be deemed to be a material breach of this Agreement.
4. Proprietary Rights of Client.
As between Client and C3, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary rights. Nothing in this Agreement shall be construed to grant C3 any ownership rights in, or license to, the Client Content except as provided in Section 8 of this Agreement.
5. Out-of-Pocket Expenses
Out-of-pocket costs and expenses will be invoiced at project completion. We estimate out-of-pocket expenses (e.g. travel, royalty free photography, materials, plugin licenses, etc.) if incurred not to exceed 5 percent of the total fee and to be subject to prior approval by the client.
6. Proprietary Rights of C3.*
Notwithstanding any other provision of this Agreement, as between C3 and Client, Client shall own all Client Content and Cuberis has no rights whatsoever to any such Client Content other than the right to use such materials for the limited purpose of performing the Services and providing the Deliverables to Client under this Agreement. Client shall also own all right, title, and interest in and to all materials created by C3, including, but not limited to any pictures, artwork, logos, text, computer software (in object code and source code form), script, programming code, data, information or HTML script developed or provided by C3 under this Agreement. All such materials constitute Work Product (as that term is defined under US Copyright law), and are hereby assigned to Client. Any trade secrets, know-how, methodologies and processes related to C3’s products or services, shall remain the sole and exclusive property of C3, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “C3 Materials”); however, C3 hereby grants to Client a perpetual, royalty-free license to use all C3 Materials that are contained in or accessed by the Deliverables.
Client acknowledges and agrees that C3 shall have the right to provide to third parties services which are the same or similar to the Services, and to use or otherwise exploit any C3 Materials in providing such Services, so long as C3 does not infringe upon any rights of Client in doing so.
Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, customer information, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party; (b) was known to the receiving party as of the time of its disclosure; (c) is independently developed by the receiving party; or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees or third parties who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
Client hereby grants to C3 a non-exclusive, worldwide, royalty-free license to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display and otherwise use Client Content as necessary to render the Services to Client under this Agreement. Client further grants to C3 a non-exclusive, worldwide, royalty-free license to display the completed Web Design in C3’s portfolios as an example of its work for review by prospective customers of C3.
9. Accuracy and Review of Client Content.
Client assumes sole responsibility for (a) the accuracy of materials provided to C3, including, but not limited to, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (b) ensuring that the Client Content does not infringe or violate and right of any third party. Client will be given an opportunity to proof content prior to publication and/or printing. If materials are approved by Client or if no changes or revisions are requested by Client within ten (10) business days of presentation of materials for proofing, Client must pay the cost of further changes requested thereafter, including, but not limited to, payment for a new printing production of the materials, if applicable.
Client shall pay or reimburse C3 for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state and local, however designated, which are levied or imposed by reason of the performance by C3 under this Agreement, excluding, however, income taxes on profits levied against C3.
11. C3 Warranties.
C3 represents and warrants that C3’s Services under this Agreement shall be performed in a workmanlike manner. C3 offers free technical assistance for site defects for 30 days following a site’s launch. C3 further warrants to Client, that to the best of C3’s knowledge, the C3 Materials do not and will not infringe, or be misappropriations of, the property rights of third parties, provided, however, that C3 shall not be deemed to have such warranty to the extent that Client or its agent(s) have modified the materials in any manner or if unauthorized third-party materials are incorporated therein.
12. Client Warranties.
Client represents and warrants that Client Content does not and shall not contain, to the best of Client’s knowledge, any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of third parties, including, without limitation, export laws, or any proprietary, contract, moral or privacy right or any other third party rights, and that Client owns the Client Content or otherwise has the right to place the Client Content for publication and/or distribution pursuant to this Agreement.
13. DISCLAIMER OF WARRANTY.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11, C3 MAKES NO WARRANTIES HEREUNDER, AND C3 EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Client agrees to indemnify, defend and hold harmless C3, its directors, officers, employees, and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
15. LIMITATION OF LIABILITY.
In no event will C3 be liable to the Client or any third party for any damages arising out of or attributable to Acts of God, service interruptions caused by the Hosting Service, the ISP, or telecommunications carrier, or any other circumstances beyond C3’s reasonable control, or damages arising out of the operation of or inability to operate the Web Design or failure of any service provider, the internet backbone, any internet servers, or Client’s or site visitor’s computer hardware or software. C3 SHALL HAVE NO LIABILITY WITH RESPECT TO C3’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF C3 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF C3 TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO FIFTY PERCENT (50%) OF THE AMOUNT ACTUALLY PAID TO C3 BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
Either party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is acquiesced in and not dismissed within ninety (90) days, or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties, or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach, except that termination for failure of timely payment shall be as set forth in Section 2 hereof. C3 may terminate this Agreement at any time and for any reason, including, without limitation, by notifying Client in writing that the Services have been performed in full and are completed, or by providing written notice of termination to Client and refunding a pro rata portion of fees paid by Client for Services not yet rendered on the date of termination. Client may terminate this Agreement at any time and for any reason, including, without limitation, by notifying C3 in writing of termination and paying C3 any outstanding dues for Services rendered that have not yet been paid on the date of termination.
Upon the termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
All notices and other communications required or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, or upon confirmed delivery by facsimile or e-mail, or upon the earlier of actual receipt or the fourth day following mailing by registered or certified mail, return receipt requested, postage prepaid, addressed as follows (or at such other address as either party may in the future specify in writing to the other):
If to C3, to:
4223 Glen Summitt Ct.
Apex, NC 27539
If to Client, then to such address, e-mail address or fax number as provided by Client.
Client shall not assign, without the prior written consent of C3, its right, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement. C3 shall not assign, without prior written consent of Client, its right, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
All provisions of this Agreement relating to warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
20. No Oral Modifications.
This Agreement becomes effective only when signed by C3. This Agreement may not be altered, amended, modified, or rescinded in any way except by written instrument duly executed by all of the parties hereto.
No delay or failure by either party to exercise any right hereunder, and no partial or single exercise of such right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.
22. Entire Agreement.
This Agreement (and the documents expressly referred to herein and executed herewith) contains the entire agreement between the parties hereto and the terms hereof are all contractual and not a mere recital. All previous discussions or negotiations have been merged into this Agreement. No party to this Agreement has relied upon any oral or written representations, express or implied warranties, or agreements that are not expressly contained in this Agreement.
The headings contained in this Agreement are included only for convenience and reference and said headings shall not be used in construing this Agreement and shall have no binding effect upon the parties hereto.
24. Governing Law.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of North Carolina, with the parties hereto expressly agreeing that if a court of competent jurisdiction deems any of the language contained herein to be vague or ambiguous such language shall not be presumptively construed against any party but shall be construed to give effect to the true intentions of the parties. Regardless of the place of signing of this agreement, the Client agrees that for purposes of venue, this agreement was entered into in Durham County, North Carolina. Any action or proceeding arising out of, relating to or concerning this Agreement shall be filed only in the state courts of the County of Durham, State of North Carolina, or in a U.S. District Court in the Middle District of North Carolina. The parties hereby waive the right to object to such location on the basis of venue. Furthermore, the Client waives any right to or claim of sovereign immunity.
* Proprietary Rights of C3 is meant to protect C3s interest in any intellectual property or copyrighted material created for the client in the course of producing their site. It is not meant to embed C3 rights into the final product. Clients can elect to move their sites, work with other developers, or take their site inhouse. An example of proprietary rights would be for original artwork created by Cuberis, or a custom plugin we might build for use on a client’s site. Our standard proposals, and typical projects, do not include such elements. We will notify clients if we need to create such original works where this specific condition would apply.