Washington, D.C. Location
Washington, DC 20015
Princeton, NJ Location
Princeton, NJ 08540
WEB SITE HOSTING AGREEMENT
THIS AGREEMENT is made this [Date] (the “Effective Date”) by and between [Website Developer], a [Type of Organization] with offices at [Address] (the “Website Developer”), and [Business Method Patent Co.], a [Type of Organization] with offices at [Address] (the “Business Method Patent Co.”).
W I T N E S S E T H
WHEREAS, Website Developer has developed and is hosting an Internet web site for Business Method Patent Co., named and located at [Site] (the “Site”), and is willing to continue hosting the Site for Business Method Patent Co.; and,
WHEREAS, Business Method Patent Co. has approved and accepted the finished Site and has compensated Website Developer for the development under a separate Web Site Development Agreement; and,
WHEREAS, Business Method Patent Co. desires to have Website Developer continue to host the Site under the terms and conditions of this Agreement;
NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, Business Method Patent Co. and Website Developer, intending to be legally bound, hereby agree as follows:
1. RETENTION OF WEBSITE DEVELOPER
Business Method Patent Co. hereby retains the services of Website Developer to develop and host an Internet Web Site and Intranet named and located at [Site] (collectively the Web Site) for Business Method Patent Co. subject to the terms and conditions herein.
2. WEB SITE HOSTING
A. Website Developer agrees to maintain Business Method Patent Co.’s Web Site on Website Developer’s Web Server on a month to month basis, and to make maintenance modifications to Business Method Patent Co.’s Web Site from time to time in accordance with Business Method Patent Co.’s directions. Such modifications shall be implemented within five (5) business days of Website Developer’s receipt of Business Method Patent Co.’s changes if the changes are easily implemented, and within ten (10) business days of Website Developer’s receipt of Business Method Patent Co.’s changes if the changes are not easily implemented. As part of this service, Website Developer agrees to make Business Method Patent Co.’s Web Site available to Internet users approximately twenty-four hours per day, to back up Business Method Patent Co.’s Web Site at least once every two weeks, and to store said back up materials in a safe and secure environment, fit for the back up media, and not located at the same location as Website Developer’s Web Server. Also as part of this service, Website Developer agrees to use its best efforts to ensure reasonable response times for users accessing Business Method Patent Co.’s Web Site.
B. Upon notice from Business Method Patent Co. not more often than once each month, and also in the event of Business Method Patent Co.’s termination of its use of Website Developer’s Web Server as the host for Business Method Patent Co.’s Web Site, Website Developer agrees to transfer a complete copy of Business Method Patent Co.’s then current Web Site, including all Code therefor, to Business Method Patent Co., said transfer to occur by either copying them to floppy disks, 100 megabyte ZIP cartridges, or via FTP. Files will be provided in HTML format, standard word processing Text format, or, if images, as TIFF’s, GIF’s, JPEG’s, or Photoshop files. The transfer method will be selected by Business Method Patent Co. in its discretion no later than twenty-four hours before the time the transfer is to take place. In the event such transfer results from Business Method Patent Co.’s termination of its use of Website Developer’s Web Server as the host for Business Method Patent Co.’s Web Site, Website Developer shall maintain one complete electronic version of Business Method Patent Co.’s Web Site, including all Code therefor (and shall “wipe” all other versions thereof off of its computers and media, including back up copies), until Business Method Patent Co. informs Website Developer in writing that the transferred files appear to be complete, at which time Website Developer shall “wipe” its final copy of Business Method Patent Co.’s Web Site off of its computers and media.
C. During the time that Business Method Patent Co.’s Web Site is located on Website Developer’s Web Server, Website Developer will make available on a monthly basis and free of charge an analysis of Business Method Patent Co. Web Site traffic, including source IP address, most commonly viewed pages, and any other such data reasonably requested by Business Method Patent Co.. Website Developer shall set aside a portion of its server, such portion only accessible by designated Business Method Patent Co. staff or members, in which such analysis resides. The analysis may be viewed or printed out by Business Method Patent Co. at its option.
This Agreement shall commence on the Effective Date and shall expire on [Date], unless sooner terminated as provided herein, and will automatically continue on a month to month basis thereafter unless either party provides thirty (30) days written notice of its intent to terminate or cancel. The term of any right or license or proprietary rights granted to Business Method Patent Co. under this Agreement shall run concurrently with this agreement or be for the full term of such proprietary rights.
A. As compensation for the hosting of [Site] on the World Wide Web, as further described in Schedule A, Business Method Patent Co. will pay to Website Developer a fee of [Price] per month (the “Hosting Fee”). Charges for post-approval modifications to Business Method Patent Co.’s Web Site or changes or additions to the material on the Web Site (including the database) shall be free if submitted to Website Developer by Business Method Patent Co. as “ready to implement” HTML pages. The cost of Server Hosting shall not increase for a period of one year from the date of Business Method Patent Co.’s acceptance of its final Web Site. The Hosting Fee shall commence on the date the final Web Site is fully operational and accepted by Business Method Patent Co. and future Hosting Fees shall be due and payable on subsequent monthly anniversary dates of such operational date.
B. Thereafter, Website Developer shall invoice Business Method Patent Co. on a bi weekly basis for the amount of work done on all future updates, edits, changes, and content development during the applicable two-week period, as per the pricing policy of Website Developer as shown in Schedule B. All payments are due fifteen (15) days after receipt of a properly payable invoice. 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.
C. The prices set forth above are inclusive of expenses. Except as expressly agreed otherwise in writing by Business Method Patent Co., Website Developer shall bear all of its own expenses arising from its performance of its obligations under this Agreement, including (without limitation) expenses for facilities, work spaces, utilities, management, clerical and reproduction services, supplies, and the like. Business Method Patent Co. shall have no obligation to provide office space, work facilities, equipment, clerical services, programming services, or the like.
D. Website Developer may, with the prior express written approval of Business Method Patent Co., provide a link from the members-only section of Business Method Patent Co. Web Site to a Marketplace area designated by Website Developer and acceptable to Business Method Patent Co.. The purpose of the Marketplace area is to sell products or generate other on-line transactions. Revenues generated from Business Method Patent Co. members in this area will be divided between Website Developer and Business Method Patent Co. as mutually agreed to between the parties.
5. OWNERSHIP OF WORK PRODUCT
A. It is understood that in performing its services, Website Developer may have occasion to develop new and unique work product for use in conjunction with the Site. The parties agree that all such work is being developed by Website Developer for the sole and exclusive use of Business Method Patent Co., and Business Method Patent Co. shall be deemed the sole and exclusive owner of all right, title, and interest therein, including all copyright and proprietary rights relating thereto. All such work performed by Website Developer and any supporting documentation therefor shall be considered as “Works Made for Hire” (as such are defined under the U.S. Copyright Laws) and, as such, shall be owned by and for the benefit of Business Method Patent Co.. For the purpose of this Agreement “work product(s)” shall mean all data, documentation, software, ideas, concepts, materials, and information, in whatever form, first produced or created by or for Website Developer, which relate solely and exclusively to the performance of work or the rendition of services under this Agreement in the development and hosting of [Site] (hereinafter “Work Product(s)”).
B. In the event that it should be determined that any of the Work Products do not qualify as a “Work Made for Hire,” Website Developer will and hereby does assign to Business Method Patent Co. for no additional consideration, all right, title, and interest that it may possess in such Work Products including, but not limited to, all Website Developer and proprietary rights relating thereto. Upon request, Website Developer will take such steps as are reasonably necessary to enable Business Method Patent Co. to record such assignment. Business Method Patent Co. shall reimburse Website Developer for all reasonable out of pocket expenses incurred at the specific request of Business Method Patent Co. in recording such assignments.
C. It is understood that Website Developer may use its own previously developed data, documentation, software, ideas, concepts, materials, or information, in whatever form, in performing its services hereunder (collectively referred to as “Preexisting Works”). Insofar as such Preexisting Works were not first produced or created by or for Website Developer solely and exclusively to the performance of work or the rendition of services under this Agreement, but are necessary or useful for, or are used in connection with,http://www.whizzer.com, any and all right, title, and interest in such Preexisting Works shall remain the sole and exclusive property of Website Developer. Website Developer hereby grants to Business Method Patent Co. a nonexclusive license to use such Preexisting Works when used solely and exclusively in combination with the Work Product on the Web Site. Business Method Patent Co. shall have no other rights, whatsoever, with respect to its use of the Preexisting Works.
A. Confidential Information. “Confidential Information” means any confidential technical data, trade secret, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as “Confidential” or ”Proprietary”. If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving party within [number] ([#]) days of such disclosure.
B. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or become publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. Nondisclosure. Website Developer agrees that it will not disclose any Confidential Information to any third party and will not use the Business Method Patent Co.’s Confidential Information for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of [number] ([#]) years thereafter, without the prior written consent of the Business Method Patent Co., which may be withheld for any reason or for no reason. Website Developer further agrees that Confidential Information shall remain the sole property of the Business Method Patent Co. and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by the Business Method Patent Co. to Website Developer with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. No Confidential Information of Website Developer. It is understood and agreed that Business Method Patent Co. does not wish to receive from Website Developer any confidential information of Website Developer or of any third party. Website Developer represents and warrants that any information provided to Business Method Patent Co. in the course of entering into this Agreement or performing any work hereunder shall not be confidential or proprietary to Website Developer.
E. Sanctioned Public Disclosure. After Business Method Patent Co. has approved its final Web Site, Website Developer may list Business Method Patent Co. as a client of Website Developer and may include a link to the Web Site on Website Developer’s Web Site. Website Developer may not issue any press release that refers to Website Developer’s work for Business Method Patent Co. without Business Method Patent Co.’s prior written approval, which may be withheld for any reason or for no reason at all.
F. Return of Confidential Information. Upon the request of the Business Method Patent Co., Website Developer will promptly return all Confidential information furnished hereunder and all copies thereof.
G. Remedy for Breach of Confidentiality. If Website Developer breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, the Business Method Patent Co. shall be entitled to equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
7. REPRESENTATIONS AND WARRANTIES
Website Developer makes the following representations and warranties for the benefit of Business Method Patent Co.:
A. Website Developer represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by Website Developer under this Agreement. Business Method Patent Co. understands that Website Developer is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with Website Developer’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
B. Website Developer represents and warrants that (1) it is and will be the sole author of all works employed by Website Developer in preparing any and all Work Product other than Preexisting Works; (2) it has and will have full and sufficient right to assign or grant the rights and/or licenses granted in the Work Products pursuant to this Agreement; (3) all Work Products other than Preexisting Works have not been and will not be published under circumstances that would cause a loss of copyright therein; and (4) all Work Products, including all Preexisting 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 Website Developer or, insofar as Website Developer is aware, against any entity from which Website Developer has obtained such rights.
C. Website Developer represents and warrants that (1) all Work Product shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Work Product will function under standard HTML conventions; (3) all Work Product will conform to the specifications and functions set forth in this Agreement; and (4) Website Developer will perform all work called for by this Agreement in compliance with applicable laws. Website Developer will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of Business Method Patent Co.’s Web Site, and otherwise will repair the defect within 24 hours, said repairs to be free of charge to Business Method Patent Co.. This warranty shall extend for the life of this Agreement. 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 Website Developer.
D. Website Developer possesses Internet-related technology that will enable it to competently perform services contemplated by this Agreement.
E. Website Developer will take every step to ensure that [Site] is available to users 365 days per year, 24 hours per day. Notwithstanding same, Website Developer is not liable for loss of service, access, or data for any reason including, but not limited to, any unforeseen or preventable failure related to changes in the infrastructure or traffic capabilities, failure or breakdown of the Internet, the World Wide Web, any related telecommunications equipment or systems, or any computer hardware or software.
1. If restricted access to the Site is found to be directly related to a failure of the Website Developer server or Website Developer owned equipment, Website Developer shall have five (5) working days per event to correct the problem, after such time Business Method Patent Co. will be refunded Fifty Dollars ($50.00) for each day access is unavailable.
2. After the third such event, Business Method Patent Co. may elect to terminate/cancel this Agreement. In such event Business Method Patent Co. is entitled to a percentage of the monthly service fee paid to Website Developer that represents a pro rata share of the remaining days in the period.
3. Under no conditions shall Website Developer be liable for any damages caused to any party’s equipment as a result of access to the Web Site. Website Developer expressly disclaims any liability for consequential, incidental, or punitive damages based on the use of the Web Site.
E. Website Developer will take reasonable precautions to scan all software supplied to Business Method Patent Co. to verify it is free from viruses or disabling devices; however, the nature of these problems is such that Website Developer will not guarantee or warrant against the occurrence of such problems.
A. Website Developer hereby agrees to defend, indemnify, and hold Business Method Patent Co., its officers, directors, agents, and employees, harmless, against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of infringement by [Site]or any portion thereof of any patent, copyright, trade secret, or other proprietary right, with the exception of any materials or content provided to Website Developer by Business Method Patent Co. or its representative(s).
B. Website Developer hereby agrees to defend, indemnify, and hold Business Method Patent Co., its officers, directors, agents, and employees, harmless, against all costs, expenses, and losses (including reasonable attorney fees and costs) or liability to person or property arising out of the performance of Website Developer under this Agreement relating to [Site], with the exception of any materials or content provided to Website Developer by Business Method Patent Co. or its representative(s). Website Developer shall maintain liability insurance sufficient to fulfill its obligations to Business Method Patent Co..
A. Business Method Patent Co. may, at its sole option, terminate any or all work outstanding, or any portion thereof, immediately upon written notice. Upon receipt of notice of such termination, Website Developer shall inform Business Method Patent Co. of the extent to which performance has been completed through such date and collect and deliver to Business Method Patent Co. whatever Work Product then exists in a manner prescribed by Business Method Patent Co.. Website Developer shall be paid for all work performed through the date of receipt of notice of termination as specified herein. Website Developer may not terminate any work under this Agreement without the prior written consent of Business Method Patent Co..
B. Either party may terminate this Agreement on thirty (30) days’ written notice to the other party in the event of a breach of any material provision of this Agreement by the other party, provided that, during the thirty-day period, the breaching party fails to cure such breach or, should the breach not be curable within said thirty-day period, the breaching party has not initiated steps to cure such breach.
C. In the event of any termination of this Agreement, all obligations and responsibilities of Website Developer shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties and their legal representatives, heirs, successors, and assigns. The termination of any provision of this Agreement shall not excuse a prior breach of that provision.
D. Upon termination/cancellation of this Agreement, Website Developer shall return to Business Method Patent Co., at no cost, all materials and information Business Method Patent Co. or its representative(s) have provided to Website Developer for the purpose of implementing this Agreement, including the total contents of the Site.
10. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
11. RELATIONSHIP OF PARTIES
A. Independent Contractor. Website Developer, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Website Developer shall be solely responsible for and shall hold Business Method Patent Co. harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workmen’s compensation.
B. No Agency. Business Method Patent Co. does not undertake by this Agreement or otherwise to perform any obligation of Website Developer, whether by regulation or contract. In no way is Website Developer to be construed as the agent or to be acting as the agent of Business Method Patent Co. in any respect, any other provisions of this Agreement notwithstanding.
12. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State] including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
14. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
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.
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.
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. It 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.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.
[Business Method Patent Co.] [Website Developer]
Website Developer shall host the Internet Site [Site].
For the term of this Agreement, Website Developer shall:
1. Provide space for the Site on a World Wide Web server and provide telecommunications from said server to the World Wide Web; security; tracking, analysis, reports; and software and coding to ensure the Site is fully operational.
2. Furnish up to ten (10) e-mail accounts and access.
3. Back-up data nightly, ensuring safe storage and access.
4. Review the Site once per month for evaluation of functionality and obvious alterations of content by unauthorized personnel.
5. Provide updates, edits, alterations, and additions to the Site as requested by Business Method Patent Co..
Concept & design
From hard copy
Import from electronic file
From hard copy—scanning
Import from electronic file
Changes/edits to existing page
Search engine development
Search engine registration
5 – 9 MB
10 – 24 MB
25 MB +