Additional Terms & Conditions for Quote

Updated May 15, 2020 – Please print for your records.

Background

Online electronic approval of a project estimate (“Website Proposal”)
indicates the acceptance of the terms and conditions set forth in this
agreement (“Agreement”) by an authorized representative of the client
entity (“Client”).

1. Ownership of Intellectual Property

A. Except for the Background Technology as defined in Exhibit A (License
Agreement), Client shall own all right, title and interest in and to any
and all Deliverables (as defined in the Website Proposal), project
descriptions and specifications (including any copyrights therein) which
may be included in Deliverables. Vendor and Client expressly agree that,
other than the Background Technology, the work performed by Vendor
hereunder shall be work made for hire to the maximum extended permitted
by the United States Copyright Act, and that Client shall be the
exclusive owner of all right, title and interest in and to the
Deliverables hereunder, including any and all ideas, inventions and
works of authorship (including developments, innovations and
improvements to existing Client products or confidential information)
conceived or made by Vendor alone or with others in the course of
Vendor’s engagement hereunder, together with any and all copyrights,
trade secret rights, patents and other proprietary rights therein,
whether now known or hereafter to become known, for the respective
maximum terms of protection available throughout the world (the “Client
Intellectual Property”). In the event that all the foregoing right,
title and interest do not vest automatically in Client, Vendor hereby
irrevocably transfers, sells and assigns to Client, its successors and
assigns, all such right, title and interest (including any and all
copyrights, trade secret rights, patents and other proprietary rights
therein). Vendor agrees to execute such other documents as Client may
reasonably request from time to time to confirm such transfer of right,
title and interest, including any short form assignment of copyright,
patent or other proprietary rights, and such other documents concerning
the work performed hereunder as Client may deem desirable to file with
any copyright, patent or other proprietary rights authority in the world.

B. Client hereby authorizes Vendor the right to use its name,
trademarks, service marks, trade names and logos (collectively “Marks”)
in news releases, case studies, articles, brochures, marketing
materials, advertisements, customer testimonials and other publicity or
promotions in connection with Client’s engagement of Vendor
(collectively, “Marketing Materials”). In connection therewith, Client
grants to Vendor a limited, nonexclusive, nontransferable,
nonsublicenseable license to use Client’s Marks for the purposes
contemplated by this Section. All uses of the Marks shall be in
accordance with the Mark guidelines provided by Client from time to
time. Nothing contained herein shall give Vendor any interest in
Client’s Marks. Vendor shall not take any action that would impair the
value of, or goodwill associated with, Client’s Marks and, as between
the parties, all uses of Client’s Marks shall inure to the benefit of
Client.

2. Confidential Information

A. All information relating to Client that a reasonable person would
believe to be confidential or proprietary, or which is clearly marked as
such, will be held in confidence by Vendor and will not be disclosed or
used by Vendor except to the extent that such disclosure or use is
reasonably necessary to the performance of the Deliverables; provided
that such party receiving the information are bound by confidentiality
obligations no less restrictive than those contained herein.

B. All information relating to Vendor that a reasonable person would
believe to be confidential or proprietary, or which is clearly marked as
such, will be held in confidence by Client and will not be disclosed or
used by Client except to the extent that such disclosure or use is
reasonably necessary to the performance of Client’s duties and
obligations under this Agreement; provided that such party receiving the
information are bound by confidentiality obligations no less restrictive
than those contained herein.

C. These obligations of confidentiality will extend for a period of one
(1) year after the termination of this Agreement, but will not apply
with respect to information that (a) the receiving party can demonstrate
is independently developed by the parties without reference to the other
party’s confidential information, (b) lawfully becomes a part of the
public domain, or (c) the receiving party can demonstrate was
information of which the parties gained knowledge or possession free of
any confidentiality obligation.

3. Warranty and Disclaimer

A. Vendor represents, warrants and covenants that (a) the Deliverables
will be provided in a workmanlike manner and in conformity with
generally prevailing industry standards, and (b) and will conform with
the specifications set forth in the Website Proposal.

B. Vendor further represents and warrants that: (a) it shall take
commercially reasonable steps to ensure the Deliverables are free from
viruses, disabling programming codes, instruction or other such items
that may interfere with or adversely affect the Deliverables or the web
site, (b) it has all necessary rights in the intellectual property
licensed or assigned to Client under this Agreement, and has the power
and authority to grant to Client the rights contemplated hereunder, free
and clear of any and all security interests, liens, claims, charges or
encumbrances, (c) the Deliverables, as delivered by Vendor, and the use
thereof by Client, will not infringe upon or violate any applicable laws
or regulations or any rights of third parties, including, without
limitation, laws, regulations and rights concerning infringement or
misappropriation of such party’s intellectual property rights.

C. Client warrants and represents that it is the rightful owner or
licensee of all content that it may provide to Vendor for implementation
on the web site.

D. THE WARRANTIES CONTAINED IN THIS SECTION AND THE WEBSITE PROPOSAL, IF
ANY, ARE EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN
REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE
EFFECTIVE DATE OF THIS AGREEMENT.

4. Limitation of Remedies

Client’s sole and exclusive remedy for any claim against Vendor with
respect to a breach of Section 3(A) will be the correction by Vendor of
any material defects or deficiencies therein of which Client notifies
Vendor in writing within thirty (30) days after the completion of the
Deliverables. In the event Vendor is unable to correct any material
defects or deficiencies to Client’s reasonable satisfaction, Vendor
shall reimburse Client for all fees paid related to such Deliverables.
In the absence of any such notice, the Deliverables will be deemed
satisfactory to and accepted by Client. Payment or use of the web site
or the Deliverables (as defined in the Website Proposal) shall in no way
preclude Client’s ability to assert a warranty claim within the warranty
period.

5. Limitation of Liability

In no event will either party be liable for any loss of profit or
revenue by the other party, or for any other consequential, incidental,
indirect or economic damages incurred or suffered by the other party
arising as a result of or related to this Agreement, whether in
contract, tort or otherwise, even if such party has advised of the
possibility of such loss or damages. The parties further agree that the
total liability of either party for all claims of any kind arising as a
result of or related to this Agreement, or to any act or omission of
such party, whether in contract, tort or otherwise, will not exceed an
amount equal to the amount actually paid by Client to Vendor for the
Deliverables.

6. Indemnification

A. Client will indemnify and hold Vendor harmless from and against any
claims by third parties, including all costs, expenses and attorneys’
fees incurred (“Damages”), arising out of or in conjunction with (i)
Client’s performance under or breach of any obligation or agreement of
this Agreement, and (ii) any actual or threatened claim that the content
provided by Client to Vendor infringe any intellectual property,
including, but not limited to, infringement of any copyright, trademark,
patent or trade secret made against Vendor by any third party.

B. Vendor shall indemnify, defend, and hold Client harmless from, and
against any and all third party Damages arising out of or resulting from
(i) Vendor’s performance or breach of any obligation or agreement of
Vendor under this Agreement, (ii) any misrepresentation made by Vendor
in this Agreement, or (iii) any actual or threatened claim that the
Deliverables or the Deliverables infringe any intellectual property,
including, but not limited to, infringement of any copyright, trademark,
patent or trade secret made against Client by any third party.

7. Relation of Parties

The performance by Vendor of its duties and obligations under this
Agreement will be that of an independent contractor, and nothing herein
will create or imply an agency relationship between Vendor and Client,
nor will this Agreement be deemed to constitute a joint venture or
partnership between the parties.

8. Employee Solicitation

During the period of this Agreement and for twelve (12) months
thereafter, neither party will solicit, directly or indirectly, the
employment of any employee, former employee, subcontractor, or former
subcontractor of the other party that (a) with respect to Vendor,
performed the Deliverables for Client, or (b) with respect to Client,
oversaw the performance of the Deliverables. The terms “former employee”
and “former subcontractor” will include only those employees or
subcontractors of either party who were employed or utilized by that
party on the Effective Date of this Agreement. Both parties agree that
nothing contained herein shall prohibit the other party from employing
general recruiting strategies, such as placement of advertisements,
posting of positions on either party’s web sites and other similar methods.

9. Termination

Either Party may terminate any project covered by a Website Proposal
with at least 10 days’ written notice to the other Party. Unless
otherwise agreed to in writing by the Parties, Client shall, within 30
days of the date of termination, pay Vendor for all work performed up to
the date of termination, based either on the quoted price per
deliverable in the Website Proposal or, if no such definition was made,
based on Vendor’s standard hourly rate of $150, plus reimbursement for
any project expenses. If monies paid by Client to Vendor under the
Website Proposal exceed the amount due to Vendor under this Agreement,
Vendor shall refund the difference to Client within 30 days of the date
of termination.

10. Failure to Pay

If Client fails to pay any invoice within 60 days of due date, Vendor
shall have the right to withhold further work. Further, if Client fails
to pay any website hosting services invoice within 90 days of due date,
Vendor may disable the website for which the hosting fees apply until
all such invoices are paid.

11. Non­Assignment; Successors; Third Party Beneficiaries

Neither party will assign this Agreement, in whole or in part, without
the prior written consent of the other party except in cases of merger
or any person or entity acquiring all or substantially all of that
party’s assets or stock. This Agreement will inure to the benefit of,
and be binding upon the parties hereto, together with their respective
legal representatives, successors, and assigns, as permitted herein.
Nothing in this Agreement shall be deemed to create any rights in third
parties or create any obligations of a party to such third parties.

12. Arbitration

Any dispute arising under this Agreement will be subject to binding
arbitration by a single Arbitrator with the American Arbitration
Association (AAA), in accordance with its relevant industry rules, if
any. The parties agree that this Agreement will be governed by and
construed and interpreted in accordance with the laws of the State of
Colorado, without regard to the state’s conflict of law principles. The
arbitration will be held in Denver, Colorado. The Arbitrator will have
the authority to grant injunctive relief and specific performance to
enforce the terms of this Agreement and the enforcement of this
agreement to arbitrate. Judgment on any award rendered by the arbitrator
may be entered in any Court of competent jurisdiction.

13. Severability

If any term of this Agreement is found to be unenforceable or contrary
to law, it will be modified to the least extent necessary to make it
enforceable, and the remaining portions of this Agreement will remain in
full force and effect.

14. Force Majeure

If either party is prevented from complying, either totally or in part,
with any of the terms or provisions of this Agreement by reason of fire,
flood, storm, computer virus, war, accident, or other acts of God, then
upon written notice to the other party, the requirements of this
Agreement, or the affected provisions hereof to the extent affected,
shall be suspended during the period of such disability. During such
period, the party not prevented from complying may seek to have its
needs (which would otherwise be met hereunder) met by the other without
liability hereunder. The party prevented from complying shall make all
reasonable efforts to remove such disability within ten (10) days of
giving such notice and the party not prevented from complying pursuant
to this Section may terminate this Agreement, without liability, upon
expiration of such ten (10) day period. However, Vendor agrees to use
commercially reasonable efforts to protect the Deliverables, information
and the Deliverables it has created for Client from any force majeure
event including insuring the appropriate information is backed-up and
stored at a safe site on a reasonable basis to help protect from such
unforeseen events.

15. No Wavier

The waiver by any party of any breach of covenant will not be construed
to be a waiver of any succeeding breach or any other covenant. All
waivers must be in writing, and signed by the party waiving its rights.
This Agreement may be modified only by a written instrument executed by
authorized representatives of the parties hereto.

16. Notices

Any notice or other communication which may be permitted or required
under this Agreement shall be delivered personally, or by facsimile or
other electronic means, or sent by United States registered or certified
mail, postage prepaid, addressed set forth in the introductory paragraph
or to any other address as either party may designate by notice to the
other party. Notice given by facsimile or other electronic means shall
promptly be confirmed by registered or certified mail or overnight
carrier shall be deemed to be received upon verification that such
facsimile was received by the other party. Notice by registered or
certified mail or overnight carrier and shall be deemed to be received
two (2) days following the date of mailing, provided such notice is
properly addressed and sufficient postage is affixed thereto, or the
actual date of receipt, whichever is earlier.

17. Counterparts; Electronic Signatures

This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same document. For purposes of this Agreement,
signatures delivered by facsimile transmission or other electronic means
will be treated in all manner and respects as originals.

Exhibit A: License Agreement

Provided Vendor receives all payments from Client that are not disputed,
Vendor shall grant to Client a license to utilize Vendor’s Background
Technology (as defined below).

License

As between Client and Vendor, Vendor will retain ownership of all right,
title and interest in or to any intellectual property that Vendor can
substantiate were either owned or developed by Vendor prior to, or
independently from, its engagement hereunder (the “Background
Technology”). Background Technology shall include, without limitation,
various pre‐existing development tools, routines, subroutines and/or
other programs, data and materials that Vendor may use or implement in
the development of the web site. To the extent that Vendor incorporates
any Background Technology into the the Deliverables or any third party
technology, Vendor shall identify such Background Technology below and
hereby grants to Client a worldwide, nonexclusive, nontransferable,
royalty-free, right and license to use, copy, display and create
derivative works of the Background Technology and third party technology
as necessary to use and modify the Deliverables, the Deliverables and
the web site developed by Vendor pursuant to this Agreement. However,
upon sale or transfer of the Client’s business, this license shall be
transferable to the new owner of Client’s business.

Background Technology and Third Party Technology

N/A

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