EdPhelps.com Master Services Agreement

This Master Services Agreement (“MSA”) is made and entered as of the execution of a related Statement Of Work (“SOW”) agreement(s), by and between the parties of a related SOW(s), and together with the terms of a related SOW(s) serves as the sole agreement pursuant to which Client shall receive and Developer shall provide the various Services more fully described in a separate SOW(s). To the extent the terms and conditions set forth in any other agreement are inconsistent with the terms and conditions of this MSA and/or a related SOW(s), the terms and conditions of this MSA and related SOW(s) shall prevail.

1. Definitions

As used herein and throughout this Agreement:

1.1 Agreement means Client and Developer agree to be bound by terms specified in this MSA, related SOW document(s), any other supplement documents designated below or in a related SOW, together with any exhibits, schedules or attachments hereto.

1.2 System means a Website, Mobile App, or other software developed by Developer for Client under this Agreement.

1.3 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, wireframes, site maps, user experience and user interface designs, system designs, system specifications, or other alternate or preliminary designs and documents developed by Developer and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Deliverables.

1.4 Project means Client and Developer effort, consultation, and collaboration to create the system as described in a related project SOW.

1.5 Services means all services and the Deliverables to be provided to Client by Developer as described and otherwise further defined in this MSA and a related SOW(s). There are four stages of development services: Define, Development, Deploy and Maintenance. Developer will complete the Define, Development, and Deploy stages on or before the due dates in a related SOW(s). Additional Maintenance services may also be provided under terms of a separate related SOW.

1.6 Requirements means system functionality requested by the Client.

1.7 Current Documented Requirements means system functionality requested by the Client which is documented in the format of written user stories and user acceptance tests (UATs), and which appears in the most recent version of the System Documentation document at any time during a project.

1.8 Scope means Deliverables required to produce system functionality specified in a related SOW(s), and which appears in System Documentation documents in the format of written user stories and UATs.

1.9 Client Content means all materials, information, photography, writings and other content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

1.10 Content Development means Developer services to create original content for incorporation in the system.

1.11 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.

1.12 Deliverables means the services and work product specified in this MSA and a related SOW(s) to be delivered by Developer to Client, in the form and media specified in related SOW(s).

1.13 Developer Tools means all design tools developed and/or utilized by Developer in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

1.14 Final Deliverables means the final versions of Deliverables provided by Developer and accepted by Client.

1.15 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration, and other subscription services.

1.16 Final Deliverables means all content developed or created by Developer, or commissioned by Developer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, without limitation, any and all visual designs, visual elements, process diagrams, system diagrams, charts and graphs, system documentation, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Developer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

1.17 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

2. Proposal Period

Estimated fees, expenses, and schedules contained in a related SOW(s), shall be effective for ten days (10) after presentation to Client. In the event this this MSA and a related SOW(s) is not executed by Client within the time specified, this MSA and a related SOW(s), together with any related estimates, terms and conditions, and deliverables may be subject to amendment, change or substitution.

3. Fees and Charges

3.1 Fees. In consideration of the Services to be performed by Developer, Client shall pay to Developer fees in the amounts and according to the payment schedule set forth in a related SOW(s), and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

3.2 Expenses. Client shall pay Developer’s expenses incurred in connection with this MSA and a related SOW(s) as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, subscription services, specialist consultants, software licenses, prototype tools, presentation materials, photocopies, computer expenses, parking fees, tolls, taxis, etc. at cost plus Developer’s standard markup of twenty percent (20%), and, if applicable, a mileage reimbursement at $0.65 per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Developer with Client’s prior approval.

3.3 Additional Costs. The Project pricing includes Developers fees only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, online subscription services, online access or hosting fees, will be billed to Client at cost plus Developer’s standard markup of twenty percent (20%), unless specifically otherwise provided for in a related SOW(s).

3.4 Invoices. All invoices are payable within thirty (30) days of receipt -OR- immediately upon receipt. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Developer reserves the right to withhold delivery and any transfer of ownership of Deliverables if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any Deliverables and intellectual property rights under this MSA and a related SOW(s) are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.

4. Scope & Acceptance Criteria.

The parties agree that at any time, specifically only functionality which is documented and appears in the current version of the system Specifications document is within the current “scope” of services. Throughout the development process, at any time, the current version of the project System Documentation document serves as the sole “standard” by which Deliverables are deemed to be “acceptable”. That is, where a deliverable functions as specified and documented in the System Documentation document, in accordance with the User Stories and User Acceptance Tests, that deliverable is deemed “acceptable” under the terms of this agreement. Where a Deliverable is shown to functions as specified and documented in the System Documentation document, by a Test Acceptance Certification signed by Developer, and/or by demonstration, receipt of Client approval for that Deliverable is not required.

5. Change Management

Developer is responsible for ongoing documentation of changes to project scope and deliverables as they arise throughout the project in the format of written user stories and user acceptance tests. Developer will present and review changes to project scope and deliverables to the Client in scheduled status update meetings.

5.1 Changes To Scope & Deliverables. Changes to project scope and deliverables which require design and/or development services to define and/or develop additional functionality, or to modify current functionality, are defined as “Additional Scope.” Additional Scope will be defined and estimated for cost and schedule impact by the Developer. Estimates for developing Additional Scope Deliverables will be presented to the Client for either approval or rejection. Approved Additional Scope Deliverables are either (1) added to the current project scope, along with estimated changes to the project schedule and costs; or (2) moved to a separate development project, documented and governed by a separate development estimate and SOW, and scheduled for development separately. Rejected Additional Scope Deliverables are moved to the project Backlog for future consideration.

5.2 Changes To Documentation. If at any time Client wishes to make changes to the System Documentation, including changes to team members and roles, system page/screen map(s), UX and/or UI designs, functional user stories, user acceptance tests, etc., Developer will make changes within a reasonable period of time for additional fees. In the event making changes will require changes to the schedule and/or cost of completing Deliverables already in-progress, Developer will advise the Client of estimated schedule impact and additional costs for the changes. Client will either approve estimated changes to in-progress Deliverables, or cancel the changes. Changes that are cancelled will be recorded in the project Backlog.

5.3 Adjustment Events. Client and Developer agree that if; (1) there is a material change to information the Client has provided to the Developer, (2) Client fails to perform its responsibilities under this agreement, (3) an unanticipated event occurs that materially affects Clients service needs or requirements or the manner in which Client requires the Developer to provide the services, or (4) Client desires to make changes in the scope of services or service requirements (each, an “Adjustment Event”), Developer will inform Client of its estimate of the impact of the Adjustment Event on the fees, schedule and/or material provisions in this agreement and a related SOW(s). In such event, Client and Developer shall seek to establish mutually agreeable alternative arrangements and to make any appropriate adjustments to their respective obligations under this agreement, including the fees and expenses payable to the Developer.

6. Changes

6.1 General Changes. Unless otherwise provided in this MSA and/or a related SOW(s), and except as otherwise provided for herein or in a related SOW(s), Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Developer’s standard hourly rate of $250.00 per hour. Such charges shall be in addition to all other amounts payable under this MSA and a related SOW(s), despite any maximum budget, contract price, or final price identified therein. Developer may extend or modify any delivery schedule or deadlines in this MSA, a related SOW(s), and Deliverables as may be required by such Changes.

6.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of ten percent (10%) of the time required to produce the Deliverables, and or the value or scope of the Services, Developer shall be entitled to submit a new and separate SOW to Client for written approval. Work shall not begin on the revised services until a fully signed revised SOW and, if required, any additional retainer fees are received by Developer.

6.3 Timing. Developer will prioritize performance of the Services as may be necessary or as identified in this MSA and a related SOW(s), and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in this MSA and a related SOW(s). Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (1) approve the Deliverables in writing or (2) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Developer. The Developer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Developer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to this MSA and a related SOW(s) and that any delays in Client’s performance or Changes to the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Developer’s obligations under this Agreement.

7. Testing and Acceptance.

The parties agree that testing of Deliverables will be performed to confirm that a deliverable meets documented requirements for that deliverable, as specified in User Acceptance Tests for that deliverable which appear in the current version of the System Documentation document at the time of testing. Client may perform “other” tests, and any Developer services required to modify a deliverable to “pass” any “other” tests, where the deliverable meets current documented requirements, will require the Client to pay additional fees and accept additional time for completion. Effort, cost, and time to modify a deliverable to “pass” any “other” tests will be estimated upon request, and Developer services will only be performed upon receipt of an “Approved” estimate and any applicable payment.

Developer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within two (2) business days of receipt of each Deliverable, shall notify Developer, in writing, of any failure of such Deliverable to comply with the specifications set forth in this MSA and a related SOW(s), or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Developer will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

8. Completion Criteria

In each phase and throughout the project, successful completion is defined as “the timely and professional completion of tasks and the successful hand-off of deliverables from the Developer to the Client.”

8.1 Written approval will be provided by Client to Developer to acknowledge deliverables meet Client approved current requirements as they appear in the System Documentation.

8.2 Failure to provide written approval. Where Client written approval is not provided, Deliverables are deemed “Approved” where they meet functional requirements, and pass user acceptance tests as they appear in the System Documentation.

8.3 All re-work of code, subsequent re-testing, and associated expenses are the financial responsibility of Developer if the re-work, re-testing, and associated expenses are required so that the deliverables function in accordance with requirements as they appear in the current version of the System Documentation.

8.4 Developers services are deemed “complete”, and Developers responsibility ends, when hand-off tasks are performed. System launch (and other post hand-off events) are not part of Developers responsibility, are not within the scope of this project, and are completed solely at Clients discretion.

9. Client Responsibilities

Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

(a) coordination of any decision-making with parties other than the Developer;

(b) provision of Client Content in a form suitable for incorporation into the Deliverables without further preparation, unless otherwise expressly provided in this MSA and a related SOW(s); and

(c) final proofreading and in the event that Client has approved Deliverables but errors such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

10. Team

A team of experienced professionals, in specific roles, will perform tasks required to complete the Deliverables. All team members participate in Status meetings throughout the project. A single team member may assume multiple roles where expertise for those roles is demonstrated. A team list, with names, titles, and contact information, will be created, maintained throughout the project, and included in the System Documentation. Team member role profiles include:

10.1 Project Owner - A designated Client representative authorized to approve Deliverables, make decisions related to project priorities, and approve changes to scope and/or timelines.

10.2 Project Leader - Coordinates team activities, promotes engagement, confirms and reviews Deliverables with the client, and manages ongoing project progress and Client requirements.

10.3 Business Analyst - Translates business objectives into technical requirements and specifications. Creates and maintains the System Documentation.

10.4 Senior Architect - A software engineer in charge of one or more software projects, the Senior Architect serves as an interface between the Client and the developers. Responsibilities include: translating technical requirements into business assumptions for analysis and confirmation, designing systems architecture, overseeing development, and mentoring developers. Core skills include advanced: host systems engineer, web server systems engineer, database developer, and web developer (HTML, CSS, Javascript, PHP, etc.).

10.5 Developer - Develops web-based software, or distributed network applications that are run over HTTP from a web server to a web browser. Core skills include: HTML, CSS, and JavaScript. Other skills include: PHP and SQL.

10.6 User Experience (UX) Designer - Designs the system user interaction experience. Core skills include: user experience design, information architecture, Visio, OmniGraffle, Word or Pages, Excel or Numbers, Power Point or Keynote.

10.7 User Interface (UI) Designer - Designs the system user interface. Core skills include: website interface design, Photoshop, Illustrator.

10.8 User Interface (UI) Developer - Also known as the “Front-End Developer,” the UI Developer programs the system user interface according to the UX and UI designs.

10.9 QA Specialist - Manages testing processes used to measure and assure the quality of project Deliverables. Core skills include: usability testing and analysis.

11. Services

All Developer services to be provided to Client for the fees and expenses specified in related SOW agreements. Related SOW agreements define the scope of services, process, schedule, Deliverables, and estimated fees. Agreement on a related SOW must be confirmed by both Developer and the Client before services are commenced.

11.1 For each custom development project, the Client pays for professional services which may include consultation, definition, design, development, and quality assurance (QA) testing services. Definition and Design services may include user flow map design, user experience (UX) design, user interface (UI) design, functional requirements and user acceptance tests (UATs) documentation. Development services are only provided based upon approved functional requirements and specifications, UX and UI designs. Development services include programming of system functionality, front-end user interface, and back-end administration interface.

11.2 QA testing services include functional testing according to documented and approved user acceptance tests.

12. Deliverables

Developer will provide consultation and programming services to complete the Deliverables. Only the Deliverables listed in a related SOW(s) are included in the scope of services. Additional Deliverables which may be requested are not included in this SOW, and require separate estimation and additional fees specified in a separate SOW. System Deliverables include:

12.1 System Functional Requirements & Specifications. System Documentation includes: change log; team sheet; administration users and roles; page/screen map(s); functional user stories; user acceptance tests; high-level system configurations; and a list of functional plugins/modules.

12.2 System Functional User Stories & User Acceptance Tests. Document system functional requirements and user acceptance tests (UATs) for deliverables.

12.3 System Page/Screen Map. Document system architecture in the form of a page/screen map (aka: Site Map) diagram showing system navigation hierarchy.

12.4 UX Design. Define and document the system UX in the format of wireframe illustrations of system pages/screens illustrating user navigation, and interface elements with system functionality descriptions.

12.5 UI Design. Define and document the system UI in the format of illustrations of system pages/screens illustrating layout, colors, fonts, graphics, user navigation, and interface elements.

12.6 UI Development. Program the system UI based upon approved UX and UI designs.

12.7 Custom Development. Program the system according to the documented functional user stories, UX and UI designs. Development will be performed on hosted Development (Dev) and Test systems where available, or on the Live system. Throughout the development process, Developer will develop code on the Dev system, deploy approved code to the Test system, then test and confirm code on the Test system prior to release to the Client for review. All testing is performed according to the documented user stories and user acceptance tests featured in the System Documentation.

12.8 System Analytics. Google Analytics will be setup and connected to the Live system. Configure Google Analytics to track up to two specific system Key Performance Indicators (KPIs).

13. Hosting

Hosting services are defined and governed by a separate Hosting Services Statement Of Work (SOW). Hosting services are otherwise not included in the scope of services of this agreement.

13.1 Hosting services are provided by and offered under the terms and conditions of the hosting services provider. See the hosting services providers terms of use, privacy policy, and any other relevant policies of that provider for more information. Developer does not provide a services Level agreement, offer any warranty, or otherwise assume any responsibility or liability whatsoever for hosting services. Client may also elect to have the Developer setup hosting with a provider of its choosing, Client agrees that it is solely and fully responsible for hosting, and Client agrees to fully indemnify the Developer from any responsibility and/or liability related to that service.

13.2 Handling Of Personally Identifiable Information. User IP addresses may be stored or otherwise maintained on the system as part of system analytics functionality. Specifically pertaining to this agreement, Developer is not in any way responsible or liable for the systems storage and/or Clients use of any personally identifiable information which may be collected and/or stored on the system(s). This includes an individual’s name, postal address, email address, telephone number(s), date of birth, banking account or credit card information, network IP address, or computer device address. In the event any aspect or feature of the system changes, that change will not alter or otherwise modify these terms pertaining to the collection and maintenance of personally identifiable information.

13.3 Analytics and System Generated Data. Client agrees that the system gathers and records data and information on its customers, customer’s accounts on the systems, system administration users, and the activities of users on the system(s) (collectively Customer and User Information). To the extent made available to Client, Client may use without restriction all Customer and User Information associated with Clients use of the system(s). Developer reserves the right to use the Customer and User Information in an aggregated and non-identifiable form for purposes of interaction studies and reports. This information may be made available to the public or otherwise used by Developer in providing consulting services. Developer further reserves the right to use the Customer and User Information internally for purposes of identifying breaches of this agreement, diagnosing problems, or improving and developing the services, such as the decision to introduce new products, services or features.

14. Technical Support

Development and/or hosting fees DO NOT INCLUDE any technical and functional support services and/or consultation. Assuming Client maintains an Open Purchase Order (“PO”) in an amount specified in a separate Hosting Services SOW, time required to provide technical and functional support will be charged for each resource utilized at the hourly rate(s) shown below.

Role Rate
Project Manager $ 250.00
Senior Architect $ 375.00
Developer $ 250.00
Business Analyst $ 250.00

15. Service Disruption & Repairs

Developer will notify the Client in the event it becomes aware of any service disruption that causes the system to be inaccessible on the Internet. Notification of a service disruption will be made by Developer to Client in writing via email. Where Client maintains an Open Purchase Order (“PO”) for Support Services: (1) additional telephone notification will be made in the event a service disruption exceeds a two hour duration; (2) when a service disruption is discovered by Developer or reported to Developer, Developer will provide an estimate for system repair services within 24 hours of discovery or notification of a service disruption, except where further investigation is required to define the cause of the service disruption. Client agrees to pay for investigation and system repair services performed by Developer as a result of any service disruption. In the event of a service disruption, hosting service restoration is the sole responsibility of the hosting services provider. Developer makes no warranty, and assumes no responsibility or liability for restoring hosting services in the event of a hosting service disruption.

16. Communications

Email will be the primary communications method for the project. For projects with three or more team members, an online project management tool (Basecamp, Jira, Trello, etc.) will be used to enable a centralized communications for this project.

17. Accreditation/Promotions

All displays or publications of the Deliverables may bear accreditation and/or copyright notice in Developers name in the form, size and location as incorporated by Developer in the Deliverables, or as otherwise directed by Developer. Developer retains the right to reproduce, publish and display the Deliverables in Developers portfolios, websites, and in galleries, periodicals and other media or exhibits for the purposes of recognition of creative and professional excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

18. Confidential Information

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents, assignees and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under this MSA and a related SOW(s), except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

19. Relationship Of The Parties

19.1 Independent Contractor. Developer is an independent contractor, not an employee of Client or any company affiliated with Client. Developer shall provide the Services under the general direction of Client, but Developer shall determine, in Developer’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Developer and the work product or Deliverables prepared by Developer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this MSA and a related SOW(s).

19.2 Developer Agents. Developer shall be permitted to engage and/or use third party Developers or other service providers as independent contractors in connection with the Services (“Developer Agents”). Notwithstanding, Developer shall remain fully responsible for such ‘Developer Agents’ compliance with the various terms and conditions of this Agreement.

19.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Developer, employee or Developer Agent of Developer, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Developer shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Developer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.

19.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Developer, and Developer shall be entitled to offer and provide design and development services to others, solicit other clients and otherwise advertise the services offered by Developer.

20. Warranties And Representations

20.1 By Client. Client represents, warrants and covenants to Developer that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,

(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,

(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

20.2 By Developer.
(a) Developer hereby represents, warrants and covenants to Client that Developer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) Developer further represents, warrants and covenants to Client that (1) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Developer and/or its independent contractors, (2) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Developer, Developer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Developer to grant the intellectual property rights provided in this Agreement, and (3) to the best of Developer’s knowledge, the Final Deliverables provided by Developer and Developer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Developer shall be void.

(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DEVELOPER MAKES NO WARRANTIES WHATSOEVER. DEVELOPER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

20.3 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Developer represents and warrants that the final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the System Documentation in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to final Deliverables by Client or any third party after Hand-Off by Developer, or the interaction of final Deliverables with third party applications such as Web browsers other than those specified in the System Documentation. The parties acknowledge that Client’s sole remedy and Developer’s sole liability for a breach of this Section is the obligation of Developer to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Developer, Developers sole obligation shall be to substitute alternative Third Party Materials. Client agrees to pay any additional costs for alternative Third Party Materials whose costs exceed the replaced materials cost by ten percent (10%) or more.

20.4 Developer Tools Warranty. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Developer represents and warrants that, to the best of Developer’s knowledge, the Developer Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.

20.5 Compliance With Laws. Developer shall use commercially reasonable efforts to ensure that final Deliverables shall be designed to comply with known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

21. Indemnification /Liability

21.1 By Client. Client agrees to indemnify, save and hold harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Developer shall promptly notify Client in writing of any claim or suit;

(a) Client has sole control of the defense and all related settlement negotiations; and

(b) Developer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket fees and/or expenses incurred by Developer in providing such assistance.

21.2 By Developer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Developer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Developer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that

(a) Client promptly notifies Developer in writing of the claim;

(b) Developer shall have sole control of the defense and all related settlement negotiations; and

(c) Client shall provide Developer with the assistance, information and authority necessary to perform Developer’s obligations under this section. Notwithstanding the foregoing, Developer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Developer.

21.3 LIMITATION OF LIABILITY. THE SERVICES AND THE WORK PRODUCT OF DEVELOPER ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF DEVELOPER, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“DEVELOPER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF DEVELOPER. IN NO EVENT SHALL DEVELOPER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DEVELOPER, EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

22. Term And Termination

22.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services specified in a related SOW(s) are completed and delivered.

22.2 This Agreement may be terminated at any time by either party effective immediately upon written notice, and the mutual agreement of the parties, or if any party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or

(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within five (5) business days from receipt of written notice of such breach.

22.3 In the event of termination, Developer shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Developer or Developer’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.

22.4 In the event of termination by Client and upon full payment of compensation as provided herein, Developer grants to Client such right and title as provided for in this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

22.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

23. General

23.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Developers invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

23.2 Notices. All notices to be given hereunder shall be transmitted in writing by electronic mail (“email”) with return/reply confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in a related SOW(s), unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon return/reply confirmation of receipt.

23.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

23.4 Force Majeure. Developer shall not be deemed in breach of this Agreement if Developer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Developer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Developer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Developer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

23.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of _____________________ without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of _____________________. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Developer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Developer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

23.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. The invalid or unenforceable provision(s) may be replaced by a valid or enforceable provision.

23.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

23.8 Integration. This Agreement comprises this Agreement and its related SOW(s). This Agreement, and its related SOW(s), together comprise the entire understanding of the parties on the subject matter they contained, and supersedes and merges all prior and other current agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between this Agreement and its related SOW(s), and any other Agreement documents, the terms of this Agreement and its related SOW(s) shall control.

24. Intellectual Property Provisions

24.1 Rights To Deliverables Other Than Deliverables

24.1.A Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Developer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Developer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

24.1.B Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Developer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the final Deliverables. Under such circumstances Developer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the final Deliverables.

24.1.C Preliminary Works. Developer retains all rights in and to all Preliminary Works. Developer retains all copyright, patent, trade secret and other intellectual property rights Developer may have in any Preliminary Works.

24.1.D Original Works. Developer retains all copyright, patent, trade secret and other intellectual property rights Developer may have in any Original Works. Subject to payment of all compensation due under this Agreement and a related SOW(s), Developer grants Client a nonexclusive, nontransferable, royalty-free license to use Original Works incorporated into the Deliverables. This license shall authorize Client to: operate the System, update, revise or republish the System, and advertise and promote the System.

24.1.E Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Developer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Developer for use by Client as a Trademark. Developer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.

24.1.F Developer Tools. All Developer Tools are and shall remain the exclusive property of Developer. Developer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s hosting or internet service providers), perpetual, worldwide license to use the Developer Tools solely to the extent necessary with the final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Developer Tools comprising any software or technology of Developer.

24.2 Rights To Deliverables. Deliverables ownership options: choose a License below. All licenses include liquidation for unlicensed use. Be sure to delete all alternates not chosen.

24.2.1 Exclusive license, with modification rights: Developer hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the final Deliverables solely in connection with the Project as defined in this MSA and a related SOW(s), and in accordance with the terms and conditions of this Agreement.

Execution

The terms of this MSA are additional terms to any related SOW(s), and together they comprise the entire agreement. The terms of this MSA are effective and binding with the execution of a signed related SOW(s) even where this MSA is not formally executed independently.

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