WEBSITE Development, HOSTING, AND SOFTWARE LICENSE AGREEMENT
Company has developed and is the sole and exclusive owner of software used to build database-driven websites. Company also provides website-hosting services and web-development services. Client wishes to retain Company for one or more of the following services, as specified in Exhibit A: to design, create, and implement a website according to its specifications, to license Company’s software, and to provide website hosting and related services for the website. Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follow:
1.1 “Client Content” means all information, content, and other materials furnished by Client for the development of the Site by Company, including but not limited to design, writing, and formatting of the content, documentation, texts, drawings, icons, images, graphics, pictures, charts, domain names, and other elements provided by the Client or obtained for Client in accordance with the Specifications.
1.2 “Deliverables” means the content Company develops or creates in the course of performing the Services.
1.3 “EduCyber Software” means the platform developed by Company that it uses to design the Site, the coding of the Site pages and the programming of the required software components including, where applicable but without limitation, the scripts, applets, applications, programs, executable files, software, search engines, database- management engines and multimedia components, and any enhancements, updates, or modifications Company may make to the EduCyber Software.
1.4 “EduCyber Technology” means, without limitation, all programming tools, development tools, migration tools, conversion tools, data retrieval tools, Internet tools, multimedia tools, network tools, databases, operating systems, patches, processes, programs, subprograms, software, software portions, compilers, report generators, executables libraries, data, codes, documentation, notes, expertise and technological know-how possessed by Company or acquired, invented, discovered or developed by Company in the performance of the Services, other than as expressed in the Client Content.
1.5 “Hosting Services” means the website-hosting services Company provides to Client, as more further defined Section 6.
1.6 “Intellectual Property Rights” means any and all of the property or rights, whether existing now or in the future, pending, tangible or intangible, existing under contractual agreement or by the common or statutory law of any domestic or foreign jurisdiction, that are associated with or constitute: (a) trademarks, service marks, tradenames, trade dress or other similar trade rights; (b) copyrights, moral rights, mask-works and other rights in literary works or other copyrightable material; (c) confidential information; (d) inventions, discoveries, formulas, and algorithms; (e) computer software (including all source and object codes and manuals); (f) patents (both pending and issued); (g) goodwill and other rights associated with a party’s name, reputation, and customer relationships; (h) all mailing, subscription, bulk sales, vendor, supplier, circulation, dealer, advertiser, and customer lists, (i) all website and Internet domain names; (j) license, distribution, and marketing rights; (k) all registrations, pending applications, and renewals of the foregoing; and (l) all power to enforce any of the above.
1.7 “Services” includes the creation of the Site, the Hosting Services, and the grant of the license, as defined below.
1.8 “Site” means the Internet website established or to be established for the benefit of Client containing the Client Content and EduCyber Software developed by Company under this Agreement.
1.9 “Specifications” means the information, performance criteria, and other content set forth in Exhibit A to this Agreement.
1.10 “Term” means the period beginning at the Effective Date and continuing as follows, subject to the provisions of Section 9 of this Agreement:
a) in the case of the license granted in this Agreement, if applicable, for perpetuity.
b) in the case of the website-development services, if applicable, until the Client accepts the Site under Section 4.4.
c) in the case of the Hosting Services, if applicable, for one (1) year. Following the initial Term, the Term for the Hosting Services shall automatically renew for successive one-year periods provided that either Party, in its sole discretion, may terminate the Agreement at the expiration of the then current term by serving written notice thereof on the other party at least thirty (30) days prior to the expiration of the then current Term.
2.1 Fees. With respect to the Services, Client shall pay Company the fees set forth in the Exhibit A. Any fees for additional services that are beyond the scope of the Specifications shall be established by Company prior to rendering such services, and Client’s acceptance of such additional services shall constitute acceptance of such additional fees and the terms and conditions of paying them. Any amount due to the Company shall bear interest at a rate of 18 percent (18%), assessed at 1.5% per month, from the expiry date of the terms of payment.2.2 Billing and payments. The Company shall send all invoices to the Client’s address set forth above or to such other address the Client may communicate to the Company following the Effective Date.
3. License and Support
3.1 Grant of License. Subject to Client’s performance of the terms of this Agreement, Company grants to Client a worldwide, nonexclusive, irrevocable, perpetual nontransferable, nonassignable, license to load, execute, use, store, or display the EduCyber Software on one (1) website for the Term of this Agreement.
3.2 Restriction of License. Client shall not sublicense, rent, or allow third parties to use the EduCyber Software for any purpose not directly related to Client’s business. Client shall not disassemble, reverse engineer, or otherwise attempt to determine the source code to the EduCyber Software. A violation of this Section 3.2 shall be considered a material breach.
3.3 EduCyber Software Support. If Client elects to receive Hosting Services from Company, and neither Client nor Company has terminated the Hosting Services, then Client will receive from Company (1) upgrades to the EduCyber Software, if and when available, (2) thirty (30) minutes of support time per month, available during normal business hours, and (3) each month, a report of key performance indicators sent via email.
4. Site Design
4.1 Representatives of the Parties. Each of the Company and the Client (each a “Party” and together the “Parties”) acknowledges that the person identified in the Specifications (or any other person replacing the designated person, pursuant to a notice to that effect given to the other Party) shall represent it and shall have full authority to take all steps, make all decisions, and give all consents required with respect to the performance of this Agreement.
4.2 Obligations of the Client. The Client shall, in addition to all other obligations set forth in this Agreement, perform each of the following as a condition of Company’s performance of the Services.
a) Client shall provide Company with the Client Content in the form and within the deadlines set forth in the Specifications.
b) All Client Content shall comply with applicable laws and regulations, and shall be capable of being provided and used as contemplated in this Agreement without violation of the Intellectual Property Rights of any third party.
c) Client shall cooperate fully with the Company and provide the Company with all information and feedback required, and procure and furnish all necessary equipment, resources, telecommunications links, facilities, cabling and other materials as called for in the Specifications so as to enable Company to perform the Services in a proper and complete manner.
4.3 Services of the Company. The Company undertakes to perform the following Services, subject to Client’s performance of all terms and conditions of this Agreement.
a) Development of the Site in accordance with the Specifications and milestones set forth in the Specifications.
b) Hosting the Site on Company’s servers.
c) Licensing the EduCyber Software to Client for use in connection with the Site.
d) Company may employ or subcontract with any third party in connection with the performance of the Services.
e) During the period set forth in the Specifications, the Company shall provide reasonable technical support with respect to the Site, except for problems not associated with the Services or with the content delivered by Company, and only in accordance with Company’s approved maintenance and support agreement with Client.
4.4 Testing and Acceptance of Site. The Client agrees to test and either accept or reject the Site in accordance with the following:
a) Upon Client’s receipt of a Deliverable from Company, Client shall promptly carry out all testing and examination of the Deliverable to ensure that it conforms to the applicable Specifications.
b) Within ten (10) days following Client’s receipt of a Deliverable, Client shall notify Company in writing of any nonconformity, including sufficient backup details and information to enable Company to address the nonconformity. Company shall, within twenty (20) days following receipt of such notice, if any, redeliver a modified Deliverable in which the nonconformity has been addressed, and Client shall have a further ten (10) day period in which to test the content redelivered. If Client fails to send a notice of nonconformity as set forth above, or engages in actual commercial use of the Deliverable, the Deliverable shall be deemed to have been accepted. If the Client continues to reject the Deliverable following the second delivery, Company shall have the option, at its sole discretion, of attempting to correct the problems or terminating this Agreement and delivering the Deliverable to Client in its then current state.
c) If, during the performance of this Agreement the Client requires any revisions, corrections, additions, substitutions, or other modifications to the Specifications, the request shall be considered to be a request for additional services, and Company shall not be required to perform such work unless the Parties agree on additional fees and amendments to the Specifications as shall be required.
5. Intellectual Property Rights
5.1 Ownership of Client Content. Except as otherwise provided in Sections 5.2 and 5.3, Client shall retain all Intellectual Property Rights in and to the Client Content.
5.2 License to Use Client Content. Client grants to Company a royalty-free, worldwide, nonexclusive license to use, execute and reproduce all of the Client Content to the full extent necessary to deliver the Services and otherwise perform the obligations set forth in this Agreement.
5.3 Ownership of EduCyber Software and EduCyber Technology. Company shall own and retain all Intellectual Property Rights in and to the EduCyber Software and EduCyber Technology, including the right to keep, use and reuse modules or portions thereof for other clients, and the right to keep, use and reuse the knowledge, techniques, processes, know-how, expertise, skills, ideas, talents and other elements acquired before or during the performance of this Agreement.
5.4 Access to Confidential Information. Each Party acknowledges that it may be exposed, or have access, to confidential and proprietary information belonging to or supplied by the other party or relating to its affairs including, without limitation, any passwords used in connection with the Client Site, the source code of the EduCyber Software or any other software used or furnished in connection with or through the Site, drawings, analysis, research, processes, computer programs, methods, ideas, know-how, business information (including sales and marketing research, materials, plans, accounting and financial information, personnel records, customer lists, and the like) and any other information either known by the receiving Party to be confidential, or designated by the disclosing Party as confidential either expressly or by the circumstances in which it is disclosed (“Confidential Information”). Confidential Information does not include information and/or data which the recipient can establish (a) has become publicly known through no violation of an obligation of non-disclosure of any person or entity; (b) was obtained by the recipient from a third party through no violation of an obligation of non-disclosure of any person or entity; (c) was independently developed without any use or reference to Confidential Information and through no violation of an obligation of non-disclosure of any person or entity; (d) has been approved for disclosure in writing by the disclosing party; (e) following the Effective Date, was intentionally furnished by the disclosing party to a third party without similar restrictions on disclosure; (f) has been disclosed pursuant to a requirement of law, but only to the extent such disclosure is required; or (g) was in the possession of the recipient prior to the Effective Date, through no violation of an obligation of non-disclosure of any person or entity, as evidenced by written documentation.
5.5 Client Content not Confidential. Without limiting the application of Section 5.4, Client agrees that the Client Content shall not contain any Confidential Information, and that, unless expressly identified otherwise, no content of the Client Content shall be deemed to be Confidential Information.5.6 Nondisclosure of Confidential Information. Each Party shall hold the other Party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement, or as necessary to continue the operation of the Client Site upon the termination of this Agreement.
6. Web Hosting
6.1 Services. Company shall provide the following web-hosting services:
a) Domain Name. If requested by the Client, Company shall cooperate with the Client in registering the domain name with InterNIC or such other entities as shall be appropriate. The Client shall own all right, title and interest in and to the domain name and all Intellectual Property Rights related thereto. Unless otherwise specified by the Client, Company shall list the Client’s project liaison as the administrative, technical, and billing contact. Client may request, in writing, that Company purchase and manage the domain name for the fee listed in the Specifications.
b) Site Control. The Client shall have sole control over the Site content. Company shall not supplement, modify, or alter any Site content (other than modifications strictly necessary to upload the Site content to the Site) except UPON Client’s direction. Unless otherwise agreed, Company shall upload all Site content, including updates, to the Site within two (2) business days of delivery to Company. Company shall also permit the Client to electronically transmit or upload Site content directly to the Site. Client shall be responsible for establishing and maintain all privacy policies, security procedures and other actions necessary to prevent any use of the Site or the Site content that is unauthorized, illegal, or results in the violation of the rights of any third party, and agrees that, in addition to any other remedies, Company may immediately shut down or deactivate the Site in response to a take-down demand, a court order, or if, in Company’s reasonable judgment, such action is necessary to avoid exposing Company to criminal or civil liability.
c) Site Backup. At Company’s expense, Company shall maintain a complete and current copy of the Site on a server located at a remote location. In the event that service is interrupted to the Site, the remote server shall be activated so that public access to the Site continues without interruption.
d) Server Logs. The server logs of the Site shall be available to the Client twenty-four (24) hours a day, seven (7) days a week, on-line.
e) Standards. Company’s hosting standards shall conform to the following:
(i) Availability of Web Site. The Site shall be publicly available to users a minimum of 99.9% of the time during any 24-hour period, 99.9% of the time during any 7-day period, and 99.9% of the time during any 30-day period; and there will be no period of interruption in public accessibility to the Site that exceeds two (2) continuous hours.
(ii) Response Time. The mean response time for server response to all accesses to the Site shall not exceed more than twenty (20) seconds during any one-hour period.
(iii) Security. Company shall prevent unauthorized access to restricted areas of the Site and any databases or other sensitive material generated from or used in conjunction with the Site; and Company shall notify the Client of any known security breaches or holes.
6.2 Client License. During the period that Company provides web-hosting services pursuant to this Section 6, the Client hereby grants to Company a non-exclusive, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display and digitally perform the Client Content only on or in conjunction with the Site.
6.3 Termination and Transition. If Client gives thirty (30) days written notice to Company of its desire to terminate the web-hosting services, then Company shall reasonably cooperate with the transition of the Site to another host, if applicable.
7. Warranties and Limitation of Liability
7.1 Company’s Warranty. Company warrants that: (a) all Deliverables will be wholly original, or obtained and used with the consent of the owner, and will not, to the best of Company’s knowledge, and when used without modification by Client in the manner intended herein, infringe on the U.S. Intellectual Property Rights of a third party; and (b) the EduCyber Software will perform substantially in conformance with Specifications for a period of ninety (90) days following delivery to Client.
7.2 Client’s Warranty. Client warrants that the Client Content, including any other content furnished by Client or obtained from a third party other than Company in connection with the Services or the operation or maintenance of the Site, do not: (a) infringe on the Intellectual Property Rights, contractual rights, rights of publicity or rights of privacy of any third party; (b) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising); or (c) contain material that is defamatory, libelous, unlawfully threatening, unlawfully harassing, obscene, pornographic, or indecent.
7.3 Disclaimer. Company makes no warranty whatsoever that the Services, the EduCyber Software, the Site, or any other material or know-how furnished by Company will generate revenues, profits, good will, or any other business value to Client, or that the operation of the Site will be uninterrupted or error-free. In no event shall Company be liable to Client for any damages or costs arising from Client’s use or operation of the Site; unauthorized use or modification of the EduCyber Software or the content of the Site; any unauthorized access to or use of the Site or other breach of security procedures; hardware or software modifications or additions made to the Site server which affect the proper operation of the Site; the introduction of a computer virus into the web server or the Site which affects the proper operation of the Site; migration of the Site to a different hardware or software environment; appropriation, modification, loss or destruction, illegal or unauthorized, in whole or in part, of files, EduCyber Software or Client Content; loss of business opportunities or income relating to the operation or failure to operate or to the use or failure to use the Site or to the information found or that could be found therein; unlawful or unauthorized third-party hacking into the web server or the Site; temporary bandwidth congestion; or interruption of Internet connection beyond the Company’s control.
7.4 Damages Exclusion. The warranties set forth in this agreement are the only warranties provided with respect to the object of this agreement, and they constitute a limited warranty. The Client expressly waives all other express or legal warranties, including, without limitation, all implied warranties regarding latent defects, merchantability, fitness for a particular purpose or non-infringement. Unless otherwise provided for in this agreement, under no circumstances will the Company (including, if applicable, its subsidiaries and parent company, and its shareholders, directors, officers, executives, employees, associates, and programmers) be held liable towards the Client or any third party for any indirect, consequential, special, punitive, or exemplary damages, including, without limitation, any loss of profits or other economic loss (resulting from a contractual or extra-contractual fault or from negligence), even if the Company has been notified of the possibility of such damages. Under no circumstances will the Company’s total liability towards the client for any claim arising from or related to the performance or breach of this agreement exceed the amounts paid by Client to the Company for the Services.
8.1 Client’s Indemnification of Company. Client will, at Client’s sole expense, indemnify, defend and hold harmless Company, and each and all of its past, present and future officers, directors, shareholders, employees and agents, of and from any costs, fees, judgments, damages or other expenses relating to a third-party claim: (a) that arises from a breach by Client of any provision of this Agreement; or (b) that alleges that the Client Content or the Site or the use of the Site by Client or any third party, whether or not authorized by Client, violates any Intellectual Property Right, contractual right, right of privacy or other right of a third party, or violates any law. Company shall be entitled to immediately suspend further performance of the Services in the event such a claim is received pending confirmation that Client is responding to such claim as required in this Section. Client shall have the option, if circumstances permit, to respond to the claim falling within this Section by replacing or modifying the affected portions of the Site or other material in question so that Company may continue performing under this Agreement to the same extent as if such claim had not been made.
8.2 Company’s Indemnification of Client. Company will, at Company’s expense, indemnify, defend, and hold harmless Client, and each and all of its past, present and future officers, directors, shareholders, employees, and agents, of and from any costs, fees, judgments, damages or other expenses relating to a third-party claim: (a) that arises from a breach by Company of any provision of this Agreement; or (b) that alleges that the use of the EduCyber Software or EduCyber Technology violates any Intellectual Property Right of a third party. In the event of such a claim, Company shall either: (a) defend through litigation or arbitration, or obtain through negotiation, the right of Client to continue performing under this Agreement to the same extent as if such claim had not been made; and/or (b) modify or replace the offending material or conduct as needed, at Company’s expense, so as to fully cure any such claim. Company’s indemnification obligations under this Section shall not arise with respect to any claim that occurs due to unauthorized modifications made to the EduCyber Software, the EduCyber Technology, or other content furnished by Company or to the use of such materials or of the Site in combination with other software, devices, technology or content not furnished by Company and not called for in the Specifications.
9.1 Termination by Client. The Client may terminate this Agreement at any time, upon giving thirty (30) days written notice to Company.
9.2 Termination by Company. Company may terminate this Agreement: (a) upon the expiration of thirty (30) days following notice to Client of a material breach of this Agreement if the breach has not been cured within such thirty-day period; (b) on ten (10) days written notice under the provisions of Section 4.4(b), or (c) immediately upon written notice in the case of a breach of Section 3.2, 5.6, or 8.1. Company may further suspend further Services immediately, including by preventing public access to the Site, if Client is in arrears on any payment obligation, has committed a material breach, or breached Section 5.6 or 8.1, provided that this shall be in addition to, not in lieu of, Company’s right to terminate for material breach set forth above.
9.3 Effect of Termination. Upon termination of this Agreement for any reason, each Party shall promptly return to the other Party or destroy all material containing or referring to Confidential Information of the other Party; Client shall remain liable for payment of the price of any Services rendered and expenses incurred prior to the effective date of termination, and each Party shall be deemed to retain any and all other legal rights or remedies that may exist in such Party’s favor. Termination will not affect the license Company grants Client in Section 3.1 of this Agreement unless Client breaches Section 3.2, in which case the license is immediately revoked.
10. General Provisions
10.1 Force Majeure. Neither Party shall be considered to be in default pursuant to this Agreement if the default is caused by unforeseen circumstances or events beyond such Party’s control.
10.2 Severability. If all or part of any section, paragraph or provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall be enforceable and the affected provision shall be deemed amended to the extent necessary to render the provision enforceable to the full extent legally permissible in accordance with the intention of the Parties.
10.3 Notices. Notices sent to either Party under this Agreement shall be in writing, directed to the addresses appearing in the Specifications, or as later amended in writing, and shall be deemed to have been received as follows: (a) when delivered, if delivered in person; (b) on the first business day during which a legible facsimile transmission of the notice, or a digitally scanned or electronic copy thereof, was completely received prior to 5:00 p.m. (at the recipient’s time zone), if sent by fax machine or electronic mail; (c) one (1) day after mailing, if sent by overnight courier; and (d) two (2) days after mailing, if sent by first class mail postage prepaid. A facsimile of this Agreement and legible notices generated by a fax machine (as well as a photocopy thereof) shall be treated as “original” documents admissible into evidence unless a document’s authenticity is genuinely placed in question.
10.4 Exhibit. The Exhibit to this Agreement shall be deemed to form an integral part hereof if they have been duly initialled by all the parties.
10.5 No Waiver. Under no circumstances shall the failure, negligence or tardiness of a Party as regards the exercise of a right or a recourse provided for in this Agreement be considered to be a waiver of such right or recourse.
10.6 Entire Agreement. This Agreement, including its Exhibit, constitutes the entire understanding between the Parties. Declarations, representations, promises or conditions other than those set forth in this Agreement shall not be construed in any way so as to contradict, modify or affect the provisions of this Agreement.
10.7 Amendments. This Agreement shall not be amended or modified except by another written document duly signed by all the Parties.
10.8 No Right to Transfer. Client may not transfer to a third party any of its rights under this Agreement including without limitation use of the disk space, domain, sub-domain or URL, in whole or in part, allocated for the Client Site, without the prior written consent of the Company.
10.9 Governing Law, Jurisdiction, and Venue. This Agreement shall be construed and enforced in accordance with the laws in force in the State of Colorado. Venue for all legal action to enforce or interpret this Agreement shall be exclusively vested in the state and federal courts having jurisdiction over Denver, Colorado, and Client irrevocably submits to the exercise of in-personam jurisdiction by such courts with respect to such actions. The prevailing party in any such action shall be entitled, in addition to any other relief, its costs and attorney fees incurred in such action.
10.10 Counterparts. Each counterpart of this Agreement shall be considered to be an original when duly initialled and signed by all the Parties, it being understood, however, that all of these counterparts shall constitute one and the same Agreement.
10.11 Successors. This Agreement shall bind the Parties hereto as well as their respective successors, heirs, and assigns.
10.12 Independent Contractors. The Parties are independent contractors for all purposes related to the interpretation or enforcement of this Agreement, and nothing contained in this Agreement shall be deemed or construed to create any other form of relationship, including but not limited to partnership, employer/employee, agency, or joint venture.
10.13 Prior Review of Agreement. Each Party warrants that it has read this Agreement and has received all legal, accounting, or other professional advice deemed necessary in order to fully understand and knowingly accept the terms set forth.
10.14 Company’s Other Business Activity. Nothing in this Agreement shall prevent Company from offering Services to a competitor of Client or otherwise engaging in any other lawful activity.