The following document provides the details for your project. This document contains five (7) parts;
Pixel Sweatshop was created in 2008 in Victoria, British Columbia Canada. It quickly established a proven track record successfully working in NGO, government and public sector environments developing and implementing mission-critical web applications. Our diverse team gives us a broad expertise in modern information architecture which allows us to manage multi-faceted projects and achieved outcomes under constrained timelines.
At Pixelsweatshop, we focus entirely on website design and scalable, high-performance Drupal development. We have strong committment and a deep history of supporting open source technology.
Our development team has built a wide range of applications for small to large, multi-national organizations. Some of those applications include: client relationship management (CRM) systems, commerce applications, donor/fundraising applications, learning management systems (LMS), staff/client intranets, social collaboration software, document/file management applications, event management systems, geo-spatial tools and project management applications
We are most proud of our Code for Change program. It is a unique in-kind donation program created to support select charitable organizations. Every year, we set aside 10% of our profits to put towards the Code for Change program. As part of the program, we will match organizations dollar-for-dollar, up to a maximum of $10,000 of in-kind support to help broaden their reach through web, social and print media. The goals of the program are to help charities: increase accessibility to available services for marginalized individuals; increase the capacity for organizations to operate effectively using online communication; and lower organizational core operating costs. Now in it's fourth year, the Code for Change program has donated over $250,000 of in-kind support to charities, non-profits and community programs in Canada and around the world.
Some of our clients include:
Boys and Girls Club of Greater Vancouver, Quadra Village Community Centre, Innovative Communities.Org, Alexandra Neighbourhood House, Sooke Region Community Health Initiative, Pacific Centre Family Services, Catching the Spirit Youth Society, Victoria Women's Sexual Assault Centre, Edward Milne Community Centre, Pitch-in Canada, Aids Committee of Newfoundland and Labrador, Friends Uniting for Nature Society, Leave Out Violence (LOVE), Old Strathcona Youth Society, West Vancouver Community Centre Services, Victoria Brain Injury Society, Atira Women's Resource Society, Mary Manning Centre, Association of Neighbourhood Houses of BC, Gateway Theatre of Richmond, MorningStar Family Ministries, Safe City Mississauga, Alberta Food Banks, District of Saanich, Village of Lions Bay, BC Blind Sports, University of Victoria and McGill University
To respect the time of our references, please forward any questions you may have or book a phone appointment times via email initially.
*Drupal is a mature, PHP-based CMS and web application framework. The Drupal CMS is free and open-source, not requiring the purchase of proprietary software. The CMS is supported by an extensive world-wide community of developers and at last count, had over 10,000 modules freely available to support the core installation. See www.drupal.org for more information
**To ensure credit card data is encrypted, a SSL Certificate is required to be installed for your domain and can be purchased and installed by a third party provider.
Note: A Virtual Private Server (VPS) is required to handle serving up a site of this size and to support Drupal. A typical shared hosting environment is inadequate. A VPS package can be purchased from many hosting providers or Pixel Sweatshop can provide a scalable VPS adequate for your website. Drupal also requires security patches and updates, just like any other software. Through our hosting/maintenance package, Pixel Sweatshop can apply these updates and patches as needed.
If you opt to host the web application yourself or with a third-party, it will need to meet the following minimum requirements:
OS: UNIX/Linux (Any flavour)
Webserver: Apache 2.x with Apache 'mod_rewrite' extension, Apache Virtualhost configuration must contain the directive AllowOverride All. See https://drupal.org/requirements/webserver
MySQL 5.0.15 or higher with PDO. See https://drupal.org/requirements/database
PHP 5.3 or higher. See https://drupal.org/requirements/php
Disk space: 3 GB or higher
RAM: 510 MB dedicated or higher
WHM/Cpanel (or a comparable open-source alternative e.g. webmin/vitualmin)
SSH and S/FTP
Drupal file permissions and ownership. See https://drupal.org/node/244924
Fees to Pixel Sweatshop are due and payable on the following schedule: $5000.00 upon signing this contract, $5000.00 on December 15th, 2014 and $5000.00 upon completion.
Pixel Sweatshop and the client must work together to complete the project in a timely manner. We agree to work expeditiously to complete the project by February 1, 2015.
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 "Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Canadian Copyright Law.
1.4 “Deliverables” means the services and work product specified in the Proposal to be delivered by Designer/Developer to Client, in the form and media specified in the Proposal.
1.5 “Designer/Developer Tools” means all tools developed and/or utilized by Designer/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 Web site design, architecture, layout, navigational and functional elements.
1.6 “Final Product” means all creative content developed or created by Designer/Developer, or commissioned by Designer/Developer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer/Developer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 “Final Deliverables” means the final versions of Deliverables provided by Designer/Developer and accepted by Client.
1.8 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Designer/Developer and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Product.
1.9 “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.10 “Services” means all services and the work product to be provided to Client by Designer/Developer as described and otherwise further defined in the Proposal.
1.11 “Third Party Materials” means proprietary third party or open source materials, which are incorporated into the Final Deliverables, including without limitation stock photography or illustration or code.
1.12 “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.
The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event Client does not execute this Agreement within the time identified, the Proposal, together with any related 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 Designer/Developer, Client shall pay to Designer/Developer fees in the amounts and according to the payment schedule set forth in the Proposal, 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 Designer/Developer’s expenses for client-approved travel to client location incurred in connection with this Agreement as follows: (a) incidental out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Designer/Developer’s standard markup of Ten percent (10%), and, if applicable, a mileage reimbursement at $0.52 per kilometre; and (b) travel expenses including transportation, meals, and lodging, incurred by Designer/Developer with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes Designer/Developer’s fee 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, and online domain registration/hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices. All invoices are payable within Thirty (30) days of receipt. Delinquent bills will be assessed a 1.5% charge if payment is not received within 30 days of the due date on all overdue balances. A 1.5 percent monthly service charge is then payable on all overdue balances for every thirty (30) days late. A $100.00 service charge is placed on all NSF cheques. Payments will be credited first to late payment charges and next to the unpaid balance. If an account has been delinquent for Thirty (60) days, Designer/Developer reserves the right to withhold contract deliverables, limit communication, remove client access to website or disable public view of website, until all outstanding balances are paid in full. Client shall be responsible for all collection or legal fees necessitated by late or default in payment. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement 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.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, 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 Designer/Developer’s standard hourly rate of $100 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Designer/Developer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as maybe required by such Changes.
4.2 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, Designer/Developer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, Designer/Developer receives any additional retainer fees.
4.3 Timing. Designer/Developer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer/Developer. The Designer/Developer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Designer/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 the Proposal and that any delays in Client’s performance or Changes in 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 Designer/Developer’s obligations under this Agreement.
4.4 Testing and Acceptance. Designer/Developer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client will be provided one (1) opportunity, at each of the three (3) release phases (Alpha, Beta and Release Candidate), to make objections, corrections, changes or amendments. Clients shall notify Designer/Developer, in writing (email), of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable within five (5) business days of receipt of each phase. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer/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 release phase shall be deemed accepted.
5. 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 Designer/Developer;(b) For the purposes of print design: provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal. For the purposes of web design/development: input of all content, , unless otherwise expressly provided in the Proposal; 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.
Pending client approval, displays or publications of the Deliverables may bear accreditation and/or copyright notice in Designer/Developer’s name in the form, size and location as incorporated by Designer/Developer in the Deliverables, or as otherwise directed by Designer/Developer. Designer/Developer retains the right to reproduce, publish and display the Deliverables in Designer/Developer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative 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.
7. 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 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 the Proposal except as maybe required by a court or governmental authority, or BC’s Freedom of Information and Privacy Act. 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.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Designer/Developer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer/Developer shall provide the Services under the general direction of Client, but Designer/Developer shall determine, in Designer/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. Designer/Developer and the work product or Deliverables prepared by Designer/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 Agreement.
8.2 Designer/Developer Agents. Designer/Developer shall be permitted to engage and/or use third party Designer/Developers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Designer/Developer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 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 employee or Design Agent of the Designer/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 Designer/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. Designer/Developer, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 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 Designer/Developer, and Designer/Developer shall be entitled to offer and provide design/development services to others, solicit other clients and otherwise advertise the services offered by Designer/Developer.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Designer/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.
9.2 By Designer/Developer (a) Designer/Developer hereby represents, warrants and covenants to Client that Designer/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) Designer/Developer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer/Developer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Designer/Developer, Designer/Developer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer/Developer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Designer/Developer’s knowledge, the Final Art provided by Designer/Developer and Designer/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 the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer/Developer shall be void.
(c) Except for the express representations and warranties stated in this agreement, designer/developer makes no warranties whatsoever. Designer/developer explicitly disclaims any other warranties of any kind, either expressed or implied, including but not limited to warranties of merchant ability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
10.1 By Client. Client agrees to indemnify, save and hold harmless Designer/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 Designer/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) Designer/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 expenses incurred by Designer/Developer in providing such assistance.
10.2 By Designer/Developer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer/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 Designer/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 Designer/Developer in writing of the claim; (b) Designer/Developer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Designer/Developer with the assistance, information and authority necessary to perform Designer/Developer’s obligations under this section. Notwithstanding the foregoing, Designer/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 Designer/Developer.
10.3 Limitation of Liability. The services and the work product of designer/developer are sold “as is.” in all circumstances, the maximum liability of designer/developer, its directors, officers, employees, design agents and affiliates (“designer/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 designer/developer. In no event shall designer/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 designer/developer, even if designer/developer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERMS AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or 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 ten (10) days from receipt of written notice of such breach.
11.3 In the event of termination, Designer/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 Designer/Developer or Designer/Developer’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pocket expenses related to travel to client site, together with any Additional Costs incurred through and up to, the date of cancelation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Designer/Developer grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 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.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Designer/Developer’s 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.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.
12.3 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.
12.4 Force Majeure. Designer/Developer shall not be deemed in breach of this Agreement if Designer/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 Designer/Developer or any local, provincial, federal, national or international law, governmental order or regulation or any other event beyond Designer/Developer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Designer/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.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Canada in the Province of BC, 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 in a 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, provincial and federal courts located in the province of BC. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer/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 Designer/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.
12.6 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 and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 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.
12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and the following documents:
Supplement 1: Print-Specific Terms & Conditions
Supplement 2: Interactive-Specific Terms & Conditions
Supplement 3: Environmental-Specific Terms & Conditions
Supplement 4: Hosting & Maintenance Conditions
Schedule A: Intellectual Property Provisions
IP 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL PRODUCT
IP 1.1 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 Designer/Developer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer/Developer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
IP 1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer/Developer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Product. Under such circumstances Designer/Developer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Designer/Developer 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 art, Client hereby indemnifies, saves and holds harmless Designer/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 Product.
IP 1.3 Preliminary Works. Designer/Developer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer/Developer within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer/Developer.
IP 1.4 Original Artwork. Designer/Developer retains all right and title in and to any original artwork comprising Final Product, including all rights to display or sell such artwork. Client shall return all original artwork to Designer/Developer within thirty (30) days of completion of the Services.
IP 1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of pocket expenses due, Designer/Developer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer/Developer for use by Client as a Trademark. Designer/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 Designer/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.
IP 1.6 Designer/Developer Tools. All Designer/Developer Tools are and shall remain the exclusive property of Designer/Developer. Designer/Developer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s Web hosting or Internet service providers), perpetual, worldwide license to use the Designer/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 Designer/Developer Tools comprising any software or technology of Designer/Developer.
IP 2. RIGHTS TO FINAL PRODUCT
IP 2.1 Exclusive license, with modification rights: For print, online/interactive, three-dimensional media:
Designer/Developer hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Product solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.
IP 2.2 Liquidation for unlicensed use: Upon completion of the Services, and expressly subject to full payment of all charges, Designer/Developer hereby assigns to Client all right and title in and to the Final Product. Designer/Developer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably required to evidence such assignment.
Supplement 1: Print-Specific Terms and Conditions
P 1. Samples. If requested, Client shall provide Designer/Developer with one (1) sample of each printed or published form of the Final Deliverables, for use in Designer/Developer’s portfolio and other self-promotional uses. Such samples shall be representative of the highest quality of the work produced.
P 2. Finished Work. The printed work, and the arrangement or brokering of the print services by Designer/Developer, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, Designer/Developer shall provide copies of the current or standard trade practices to Client. Notwithstanding, Designer/Developer shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.
Supplement 2: Interactive-Specific Terms and Conditions
I 1. SUPPORT SERVICES
I 1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first sixty (60) days following expiration of this Agreement (“Warranty Period”), if any, Designer/Developer shall provide support Services at no additional cost to Client. Additional time, after the Warranty Period shall be billed at Designer/Developer’s regular hourly rate, then in effect upon the date of the request for additional support.
I 1.2 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Designer/Developer can provide Support Services for the following twelve (12) months (the “Maintenance Period”) for an hourly fee of $100 per hour. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.
I 2. ENHANCEMENTS
During the Maintenance Period, Client may request that Designer/Developer develop enhancements to the Deliverables, and Designer/Developer shall exercise commercially reasonable efforts to prioritize Designer/Developer’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Designer/Developer’s then in effect price for such services.
I 3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
I 3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Designer/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 Proposal 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 delivery by Designer/Developer, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Designer/Developer’s sole liability for a breach of this Section is the obligation of Designer/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 Designer/Developer, Designer/Developers sole obligation shall be to substitute alternative Third Party Materials.
I 3.2 Designer/Developer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Designer/Developer represents and warrants that, to the best of Designer/Developer’s knowledge, the Designer/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.
I 4. COMPLIANCE WITH LAWS
Designer/Developer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the 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.
Supplement 3: Environmental-Specific Terms and Conditions
3D 1. PHOTOGRAPHS OF THE PROJECT
Designer/Developer shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for Designer/Developer’s promotional purposes in accordance with Section 6 of the Basic Terms and Conditions of this Agreement.
3D 2. ADDITIONAL CLIENT RESPONSIBILITIES
Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:
(a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
(b) Provision of accurate and complete information and materials requested by Designer/Developer such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, color/material samples and all applicable codes, rules, and regulation information;
(c) Provision of approved naming, nomenclature; securing approvals and correct copy from third parties such as, by way of example, not limitation, end users or donors as may be necessary;
(d) Final proofreading and written approval of all project documents including, by way of example, not limitation, artwork, message schedules, sign location plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;
(e) Arranging for the documentation, permissions, licensing and implementation of all electrical, structural or mechanical elements needed to support, house or power signage; coordination of sign manufacture and installation with other trades; and
(f) Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.
3D 3. ENGINEERING
The Services shall include the selection and specifications for materials and construction details as described in the Proposal. However, Client acknowledges and agrees that Designer/Developer is not (if correct) a licensed engineer or architect, and that responsibility for the interpretation of design drawings and the design and engineering of all work performed under this Agreement (“Engineering”) is the sole responsibility of Client and/or its architect, engineer or fabricator.
3D 4. IMPLEMENTATION
Client expressly acknowledges and agrees that the estimates provided in the Proposal, at any time during the project for implementation charges such as, including, but not limited to, fabrication or installation are for planning purposes only. Such estimates represent the best judgment of Designer/Developer or its consultants at the time of the Proposal, but shall not be considered a representation or guarantee that project bids or costs will not vary. Client shall contract and pay those parties directly responsible for implementation services such as fabrication or installation (“Implementation”). Designer/Developer shall not be responsible for the quality or timeliness of the third-party Implementation services, irrespective of whether Designer/Developer assists or advises Client in evaluating, selecting or monitoring the provider of such services.
3D 5. COMPLIANCE WITH LAWS
Designer/Developer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be constructed to comply with the applicable rules and regulations. However, Designer/Developer is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client. Designer/Developer shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.
Supplement 4: Hosting and Maintenance Conditions
4S 1. If client has opted for software hosting and maintenance services, as specified in the deliverables, the following shall apply;
(a) Hosting Services. Pixel Sweatshop provides private hosting services. Pixel Sweatshop shall provide storage for approved software, and content of Customer’s Web Site and make it available for end-users to access. Unless approved by Pixel Sweatshop, client does not have root access to the server or cpanel.
(b) Service Level Warranty. Pixel Sweatshop guarantees that the network will be available 99.99% of the time in a given month. This service level warranty shall not apply to performance issues: (1) to the extent caused by factors outside of Pixel Sweatshop’s reasonable control; (2) that resulted from any actions or inactions of Customer or any third parties not affiliated with Pixel Sweatshop; (3) that resulted from Customer’s equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by Pixel Sweatshop for purposes of maintaining or updating the Web Site or the Software.
4S 2. Hosting/Maintenance Fees
(a) Fees. In consideration of the Hosting services, Customer will pay to Pixel Sweatshop all fees due according to the prices and terms listed on the invoice. All sales are final and Pixel Sweatshop offers no partial or full refunds of any kind on any purchase. Pixel Sweatshop offers no partial or full refunds whatsoever on the Setup Fee, the purchase or set-up of an SSL Certificate or on any other product or service offered through Pixel Sweatshop.
(b) Change in Fees. Pixel Sweatshop may change its fee schedules on sixty (60) days notice by postal mail, electronic mail, or by posting the same on Pixel Sweatshop’s own Web Site. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee schedule to notify Pixel Sweatshop by email should it not agree to such rate increase and that Customer wishes to terminate this Agreement.
(c) Payment. Pixel Sweatshop will invoice Customer once a year for hosting/maintenance, and all payments are due within Thirty (30) days after receipt of invoice. All NSF cheques, Customer shall pay a service fee of $100 and reimburse all fees and costs incurred by Pixel Sweatshop, and Customer shall be immediately deemed to be in default of this Agreement. Accounts not paid in full by the thirtieth day after Pixel Sweatshop submits its invoice may have their service interrupted or terminated, but any interruption does not relieve Customer from the obligation to pay all fees due to Pixel Sweatshop, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If Customer defaults, Customer agrees to pay Pixel Sweatshop its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.
4S 3. Sublicense
Customer may not sublicense or resell any of Pixel Sweatshop’s Software or Hosting Services to any third parties without the prior written permission of Pixel Sweatshop. As an example, Customer may not provide Web Hosting services to any third party without Pixel Sweatshop’s prior written permission. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.
4S 4. Term and Termination
(a) Term. The term of this Hosting Services Agreement shall begin on the Effective Date for the duration of the term purchased.
(c) Canceling Hosting Subscriptions. To cancel your annual hosting subscription, you must submit your request through email. To ensure that you are not billed for another month of service, you must cancel your subscription before your next billing cycle begins. All properly-submitted cancellation requests are processed within three business days of submission (recurring billing is terminated on the date of request submission). No prorated refunds are offered for subscriptions canceled mid-cycle.
4S 5. Security
Customer acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Hosting Services is to allow end users easy access to Customer’s Content. Pixel Sweatshop will take those precautions Pixel Sweatshop deems reasonable in its sole discretion to secure Customer’s Web Site from attack, but Pixel Sweatshop makes no warranty that there will be no outages or interruptions of service, or that Customer’s Content will be secure against attack of any form by end users or other third parties.
4S 6. Protection of Content.
Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although Pixel Sweatshop provides data backup services, Customer is advised that Pixel Sweatshop in no way is responsible for any damages resulting from the loss of Customer’s Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer’s Content.
4S 7. Credit Card Guidelines
Customer assumes all liability for their actions and the inherent risk associated with viewing credit card information. Pixel Sweatshop will not be responsible for any such risk or liability regardless of the security settings.
Further, if a merchant chooses to view credit card information, they are certifying that they understand and are following all guidelines for viewing credit card information. These guidelines can be found at Visa's website.
If a merchant does not follow all of the guidelines when viewing credit card information, that merchant is in breach of its contract with Pixel Sweatshop and possibly Visa/MasterCard/Discover/American Express.
Regardless of viewing credit card information merchants must comply with the PCI DSS and assume liability applicable to PCI DSS. In addition per guidelines websites must use a strong security protocol such as SSL to safeguard sensitive cardholder data over networks.
At its discretion, Pixel Sweatshop reserves the right to change the security settings of any merchant at any time with or without warning.
4S 8. Prohibited Practices
Pixel Sweatshop shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and Pixel Sweatshop shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, Pixel Sweatshop may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer's Content or other Content that Pixel Sweatshop deems in its sole discretion to be offensive or illegal, for any one or more of the following reasons: (i) the content is adjudicated to be in violation of the laws of the state/province where the server resides; illegal or sexually explicit Content or activities, or any Content that allegedly violates the law, rules or regulations of any country or subdivision thereof; (ii) the content constitutes harassment of Users, including, but not limited to, by means of Customer's billing practices; or (iii) Customer's noncompliance with or material breach of any of the terms and conditions of the AUP or this Agreement.; or (iv) claims made by third parties against Pixel Sweatshop that Customer or any of its end users has engaged in one or more of the above practices.
4S 9. Customer's Indemnification
Customer shall indemnify and hold harmless Pixel Sweatshop from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to Customer's provision, or an end user's use, of Customer's Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law.
4S 10. Notices of Trademark and Copyright Infringement
To cover the increasing cost of processing DMCA, trademark, and copyright infringement claims, Pixel Sweatshop reserves the right to charge a $250 processing fee for each instance of notification received from a legitimate copyright holder. Pixel Sweatshop reserves the right to shut down any website that, upon notification, fails to comply with a legitimate infringement claim within the specified time.
4S 11. Email Policies
Spam -- also known as Unsolicited Commercial Email (UCE).
Pixel Sweatshop has a zero tolerance spam policy. Pixel Sweatshop does not permit spam being sent using Pixel Sweatshop mail servers.
All email sent via Pixel Sweatshop servers must meet the following criteria:
Pixel Sweatshop actively monitors our mail servers for abuse. Any customer found to be using Pixel Sweatshop mail servers to send spam will be immediately cut-off from use of Pixel Sweatshop services.
4S 12. Miscellaneous
In order to maintain our system integrity and resources we expect our customers to act responsibly. When you use any Pixel Sweatshop. services, in any form, you automatically agree to the following Conditions.
We reserve the right to suspend or cancel a customer's access to any or all services we provided when we decide that the account has been inappropriately used. In short: