NO REVENUE NO FEE AGREEMENT
WEB SITE DESIGN, MARKETING AND MAINTENANCE AGREEMENT
[Insert the name and address of the organisation developing the web site], ("the Developer", “the Company”))
[Insert the name and address of the organisation commissioning the web site], ("the Client")
1.1 Unless the context otherwise admits words importing one gender shall include all other genders and words importing the singular shall include the plural and vice versa.
1.2 Reference to any statutory provisions in this Agreement shall include any statutory provisions, which amends or replaces it.
2. Outline of Agreement
2.1 This Agreement details the terms and conditions agreed between the Parties for the development of a web site, (including technical and design details) hereinafter known as the "Project" for the Client such development to be undertaken by the Developer.
2.2 This Agreement details the terms and conditions agreed between the Parties for the maintenance, (including technical and design maintenance) hereinafter known as the "Website Maintenance" for the Client of the following website [ ] such work to be undertaken by the contractor.
2.3 Marketing Agreement Definitions
2.31 "Products" shall mean those Client products, services or business listed in Schedule 1.
2.32 "Territory" shall mean those areas listed in Schedule 2.
2.33 "Trade Mark" shall mean those trade marks and other intellectual property listed in Schedule 3.
2.34 "Fees" shall mean all charges made by the Company for services rendered to the Client, including charges made by third parties contracted by the Company to undertake tasks necessary to the performance of this Agreement.
3. Detailed Web Design Project and Website Marketing Specifications
3.1 The Parties have agreed a detailed Project and Website Maintenance specification as defined in Schedule One of this Agreement.
3.2 Any amendments proposed to this Project and Website Maintenance specification must be made in writing and delivered to the other party. Either party is entitled to request a meeting to discuss such amendments.
3.3 If such proposed amendments incur additional expense the Developer is entitled to seek further payment to cover such expense.
4. Marketing Terms
The Client appoints the Company on [an exclusive / a non-exclusive] basis to market the Client’s Products in the Territory.
The Client hereby grants the Company the right to market and promote the Client’s Products in the Territory in accordance with the terms of this Agreement.
4.2.1 The Company will carry out the following as part of the Agreement:
4.2.2 assess the Client's position and the Client's Products within the marketplace in the Territory.
4.2.3 assess the Client's existing internet marketing strategy.
4.2.4 detailed market research, with initial proposal given to the Client prior to commencement. Approved proposal subsequently carried out and the resulting data analysed by the Company.
4.2.5 evaluation of existing Client marketing materials and media channels used, including (as applicable) all advertisements, brochures, point of sale promotion, special or promotional offers and website(s).
4.2.6 formulation and development of new integrated internet marketing campaign for Client.
4.2.7 presentation of new internet marketing campaign to Client for approval, to include completed marketing materials, strategy, timescales and full costs.
4.2.8 execution of new internet marketing plan once approved by Client.
4.2.9 subsequent report back to Client on execution of internet marketing plan and campaign outcomes, including return on investment and increased awareness and sales of Client's Products in the Territory.
5. Domain Name and Hosting
5.3 When a Client renews Hosting with the Company, this also includes domain renewal if the renewal is needed to keep the site functioning and was purchased as part of the Hosting package. If the Client does not renew the Hosting, their domain name could be made available to the public for purchase and the Company can not be held liable for this.
5.4 Renewal of Hosting is due on a yearly basis. The date of renewal will be annually from the date the website was ordered by the Client. The Hosting will not be renewed if the Company cannot contact the Client or the Client requests for the Company to not host this site. This will also affect the domain as per item 5.2.
Upon signing of this Agreement the Client will pay to the Company the sum of (Five Hundred Euros) 500 Euros deposit refundable on account of revenue. The Developer will only commence work on a Project after receipt of this non-refundable deposit. The deposit paid covers the cost of design work carried out as well as any admin work and communication.
Thereafter the Company shall submit to the Client regular invoices on a monthly basis. Such invoices shall be payable by the Client within (30) thirty days.
6.2 Web Design Maintenance and Marketing Fees
6.21 The Client will pay the agreed fees to the Developer on delivery of the Project, completed according to the Proposal detailed in Schedule One of this Agreement. The Developer will invoice the Client and the Client will pay the invoice, including Value Added Tax, (VAT) at the prevailing rate according to the terms of payment detailed on the invoice.
6.22 All payments to the Contractor shall be paid within 30 days after the receipt of the Contractor’s invoice for such payment.
6.23 The Contractor shall be entitled to renegotiate the ongoing Fees prior to the expiry of the Initial Term of this Agreement in order to allow for any increase in the Fees after the expiry of the Initial Term.
6.24 The Contractor will give the Client at least 60 days notice prior to the expiry of the Initial Term of his intention to renegotiate the Fees. The Contractor will provide full details to the Client at the time of the notice.
6.3 Additional Work And Fees
6.31 The Client will be charged at the Contractor’s standard rate for any additional work carried out by the Contractor that falls outside the scope of the Project, Marketing and Website Maintenance detailed in Schedule One of this Agreement.
6.32 Prior to commencing such work the Contractor will detail exactly the work that falls outside the agreed Project, Marketing or Website Maintenance and will provide the Client with a written estimate and timescale for the completion of the work.
7.1 The Client will pay the expenses incurred by the Developer during the Project, Marketing and Website Maintenance, including hosting, domain name, merchant account as per attached Proposal and such other reasonable expenses directly related to the Project, Marketing and Website Maintenance.
7.2 The Client shall also pay the Company all reasonable expenses incurred by the Company in obtaining payment from the Client where any payment due to the Company is overdue. Such costs to include (but not limited to) legal fees, court fees and enforcement fees.
7.3 The Developer will inform the Client in writing in advance if significant expenses not covered by clause 6.1 that have to be incurred during the Project.
8.1 The Developer will deliver the completed Project to the Client by way of Compact Disc, (CD) or such other data storage method as selected by the Developer.
8.2 If the Client requires the completed Project to be loaded onto a fileserver using File Transfer Protocol (FTP) the Developer is entitled to make an additional reasonable charge for this service. The Client is responsible for ensuring that the intended fileserver or disk space on the fileserver is properly configured. The Developer will not load the completed Project onto a publicly available fileserver or disk space on such a fileserver until the Client has complied with the conditions laid out in clause 8 below.
8. Project Release
8.1 On delivery of the completed Project the Client will complete, sign, date and return to the Developer the Developer's standard Project Release Form.
8.2 The licence granted by the Developer to the Client for use of the completed web site is only granted once the Project Release Form has been correctly completed and returned to the Developer.
8.3 The Client may only use or publish the completed Project web site once full payment has been made to the Developer and the correctly completed Project Release Form has been returned to the Developer.
8.4 The Project Release Form will release the Developer from undertaking further work related to the Project. The Developer may however undertake additional work as requested by the Client either directly or indirectly related to the completed Project. Such work to be undertaken under the standard terms of business of the Developer.
9. Website Access Limitations
9.1 The Client will ensure that only trained and competent members of staff shall have direct access to the underlying programs, directories and files that make up the website.
9.2 Furthermore such members of staff shall only follow the Contractor’s specific instructions where given.
9.3 The Client will ensure that all codes and passwords required to access the internal workings of the website are stored safely and are not provided to any unqualified members of staff or any third party, (whether qualified or not).
10.1 The Contractor will keep a full backup version of the website stored in an appropriate and secure location.
10.2 The Client will also keep their own full backup version of the website, again stored in an appropriate and secure location.
11. Website Errors
11.1 The Client will notify the Contractor within 7 working days of any defect or error in the operation or content of the website.
11.2 On notification the Contractor will take action to rectify the matter in accordance with the Website Maintenance detailed in Schedule One of this Agreement.
11.3 Where an error or defect has a direct and serious impact on the operation of the website the Contractor will use all reasonable endeavours to rectify the issue as soon as practicably possible.
11.4 The correction of such errors or defects excludes those caused by unqualified members of the Client’s staff or third parties given access to the website by the Client. Or where caused by third party equipment or software, even where supplied by the Contractor.
12. Company Warranties
12.1 The Company undertakes and warrants that:
12.1.1 it has the power and authority to enter into this Agreement and fully perform its duties under this Agreement.
12.1.2 it shall act in accordance with all applicable laws and regulations governing the use of personal information or data, including (but not limited to) the Data Protection Act 1998 and the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998.
12.1.3 is shall act in accordance with all applicable laws and regulations governing the use of personal information and data in the jurisdiction of the Territory (where different).
12.1.4 it shall at all times comply with the Client's trade marks, service marks and brand guidelines as set out in Schedule 3 and shall not do anything to infringe or damage these.
12.1.5 it shall not undertake work for or accept instructions during the term of this Agreement from any third party organisation in direct competition with the Client.
12.1.6 that the performance of this Agreement does not conflict with the interest of any existing client of the Company.
12.1.7 it shall not make any public or private comments relating to the Client or the work undertaken for the Client, without the prior written permission of the Client.
13. Client Warranties
13.1 The Client undertakes and warrants that:
13.1.1 it is the lawful owner of the trademarks and other intellectual property as set out in Schedule 3 of this Agreement.
13.1.2 it shall supply all materials and literature required by the Company to perform its duties under this
13.2 The Client confirms that to the best of their knowledge and belief that the content and materials supplied by the Client for the purposes of the Project are not blasphemous, defamatory or obscene and do not breach any applicable law or regulation.
14. Delivery of Content & Materials
14.1 The Client undertakes to deliver all the content and materials required for the Project and in the formats requested to the Developer before commencement of the Project, Marketing and Website Maintenance.
14.2 Where this is not possible the Client will deliver such outstanding content and materials to the Developer within 30 days of the start of the Project.
14.3 The Client will notify the Developer in writing (as soon as possible) of any delays in delivering content and materials required for the Project, Marketing and Website Maintenance and provide the Developer with a revised timetable for supplying such content and materials.
14.4 The Developer will not be responsible for any delays, missed milestones (where specified in the Project) or additional expenses incurred due to the late delivery or non-delivery of content and materials by the Client where required by the Developer for the Project, Marketing and Website Maintenance.
15.1 Any notice given by either of the parties under this Agreement shall be served on the other party and addressed to that party's signatory by email, personal delivery, pre-paid recorded delivery, first-class post, or facsimile transmission to the receiving party as set out in this clause 15:
[Insert contact details of the person within the Developer organisation who will receive any notice]
[Insert contact details of the person within the Client organisation who will receive any notice]
or such subsequent addresses as may be notified by the parties to each other.
15.2 Any such notice shall be deemed to be effectively served as follows:
15.2.1 In the case of service by pre-paid recorded delivery or first-class post 48 hours after posting.
15.2.2 In the case of service by email, or facsimile transmission on the next working day.
16.1 The Company shall keep confidential the specific terms of this Agreement and all confidential information relating to the Client's Products.
16.2 Confidential information shall consist of, but not necessarily be limited to: technical, commercial, financial, operational, marketing or promotional information or data.
16.3 The Company may not disclose the Client's confidential information to third parties save to such third parties or contractors as need to know the relevant information for the purposes of performing this Agreement or where such disclosure is required by Law or by Order of a Court in the jurisdiction of England.
16.4 Both parties shall keep confidential the specific terms of this Agreement and Project and not disclose them save to such employees or contractors as need to know the relevant information for the purposes of performing the Project, Marketing and Website Maintenance detailed in this Agreement. The parties agree that all information marked "Confidential", or where not marked it is reasonable to judge such information as confidential, shall not be disclosed at any time during the Project or for a minimum period of 2 years after the completion of the Project, except where such disclosure is required by law or by order of a court in the jurisdiction of England. The parties further agree that all information marked as a "Trade Secret" and reasonably judged to constitute a trade secret shall not be disclosed at any time during or after the expiry of this Agreement, except where such disclosure is required by law or by order of a court in the jurisdiction of England. Confidential information and Trade Secrets shall consist of, but not necessarily be limited to: technical, commercial, financial, operational, marketing or promotional information or data.
17. Credits and Publicity
17.1 The Client will link from the Client's completed Project web site homepage to the Developer's homepage by way of a logo or graphic image as supplied by the Developer or alternatively by way of a text hyperlink in the form, "designed by (developer's name)". Such link to appear at the foot of the Project web site homepage.
17.2 Subject to clause 16 above the Client shall be able to refer to their working relationship with the Developer for press and publicity purposes after receiving the written approval of the Developer regarding the content of any such material.
17.3 Subject to clause 16 above the Developer shall be able to refer to their working relationship with the Client for press and publicity purposes after receiving the written approval of the Client regarding the content of any such material.
18. Intellectual Property Rights
18.1 The Client undertakes to secure all copyright and any other appropriate licences, clearance or consents where required for the content and materials to be incorporated into the Project web site by the Developer.
18.2 The Client grants to the Developer for the term of this Agreement and Project a non-exclusive, revocable, royalty-free licence to use its name, logos, trademarks or devices ("Intellectual Property") for the purposes of creating the Project web site.
18.3 The trademarks shall not be used in any manner liable to invalidate their registration and the Company shall not permit them to be used by third parties.
18.4 This Agreement does not convey or transfer to the Company any ownership or interest in any trademarks or intellectual property owned by the Client.
18.5 On expiry of this Agreement all licences referred to in this Clause 18 shall expire and the Company agrees to immediately cease use of all of the Client's trademarks and intellectual property
18.6 The Developer grants the Client a non-exclusive licence to use the underlying code used to create the Project web site.
18.7 The Client shall not alter the coding of the Project web site or any other coding carried out as part of the Project with a view to creating a separate web site or licensing the Project web site to a third party without the prior written consent of the Developer.
18.8 The Client undertakes not to materially alter or diminish the design and function of the Project web site without the prior written consent of the Developer.
18.9 Neither party shall make any claim to the other party's content, materials or services during or after the expiry of this Agreement.
18.10 Neither party shall make any claim to the other party's trademarks or register or cause to be registered or apply for a materially similar trademark or imitation of a trademark during or after the expiry of this Agreement.
18.11 Neither party shall register or cause to be registered any company name materially similar to that of the other party.
18.12 Neither party shall register or cause to be registered any domain name materially similar to that of the other party except where the Client specifically requests that the Developer register domain names similar to that of the Client's on behalf of the Client in order to prevent their registration and use by third parties. In this case all reasonable fees and expenses incurred in registration of such domain names shall be payable by the Client as part of the Project cost. On payment of the Project fees and signing of the Project Release Form by the Client the Developer undertakes to transfer all registration details, include but not limited to technical and administrative details and title to the registered domain names to the Client.
19. Indemnities and Limitation of Liability
19.1 Neither party shall be liable to the other under this Agreement in contract, tort, or otherwise (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential or loss whatsoever.
19.2 The Client agrees to indemnify the Developer against any claims, damages, losses, costs and expenses which the Developer may sustain or incur in relation to any content and materials which the Client provides, such indemnity applying in respect of any claims for any breach of applicable law or regulation or any infringement of any intellectual property rights.
19.3 The Client acknowledges that it is for the Client to ensure that the resulting Project web site does not infringe the laws of any jurisdiction within which it is actively promoted.
19.4 The Developer agrees to indemnify the Client against any claims, damages, losses, costs and expenses which the Client may sustain or incur in relation to breaches of clauses 16 and 18 of this Agreement committed by the Developer.
19.5 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees.
19.6 Neither party will be liable to the other for any direct or indirect damages, lost profits, lost business or anticipated savings, whether actual or reasonably foreseen.
19.7 All other liability not expressly assumed within this Agreement is hereby excluded.
19.8 Both parties hereby agree that the limitations and exclusions of liability set out in this clause are reasonable and take into consideration the commercial value of this Agreement to both parties and the commercial standing of both parties.
20.1 Either party may terminate this Agreement immediately in the event that:
20.1.1 Either party commits a serious, grave or material breach or persistent breaches of this Agreement including non-performance, default or neglect of its duties, responsibilities and obligations under this Agreement, and
20.1.2 Such breach remains unremedied for a period of 60 days from written notice given by the other party specifying the breach and requiring its remedy.
20.2 Furthermore this Agreement may be terminated in the event that:
(a) Either party is unable to pay or has no reasonable prospects of paying their debts the amount or aggregate amount of which equals or exceeds the bankruptcy level within the meaning of the Insolvency Act 1986, or
(b) Being a company becomes subject to an administration order or goes into liquidation, (other than for the purpose of amalgamation or reconstruction), or
(c) Has a receiver appointed to administer any of its property or assets, or
(d) Ceases or threatens to cease to carry on business, or
(e) Makes any voluntary agreement or enters into a compromise for the benefit of its creditors, or
(f) Fails to make payment in accordance with the terms of this Agreement.
(g) where the conduct of the Company is likely to have a serious or detrimental effect upon the business, products and affairs of the Client.
20.3 Such termination will take place with immediate effect on written notice to the other party and without prejudice to any remedy either party may have against the other for any breach committed prior to the date of such termination or which gave rise to the termination.
20.4 Upon termination of this Agreement for whatever reasons, the Company shall at the request of the Client promptly return all documentation in the possession or control of the Company relating to the Products or business activities and affairs of the Client.
20.5 On the termination of this Agreement any completed parts of the Project web site already delivered to the Client or test examples of the Project web site not already paid for by the Client will be returned to the Developer. Furthermore the Client shall not retain any copies of the returned Project web site, parts thereof or test examples of the Project web site.
20.6 Any termination of this Agreement shall be without prejudice to any rights accrued in favour of either party in respect of any breach committed prior to the date of (or giving rise to) such termination and to those provisions of this Agreement which are by their construction intended to survive such termination (including, without limitation, clauses 16, 18 and this clause 20).
21.1 Neither party may assign or otherwise transfer this Agreement or any rights, duties and obligations hereunder without the prior consent in writing of the other party.
22. Force Majeure
22.1 Neither party shall be liable for delay or failure to perform any obligation under this Agreement if the delay or failure is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil disorder or industrial dispute. If such delay or failure continues for a period of at least 60 days, the party not subject to the force majeure shall be entitled to terminate this Agreement by notice in writing to the other.
23. Joint Venture or Partnership
23.1 Nothing in this Agreement shall be construed as creating a partnership, joint venture or an agency relationship between the parties and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party.
24.1 The Client undertakes during the Project web site development period and for a period of six months after its completion not to directly or indirectly solicit or induce any of the Developer's employees to leave the employment of the Developer whether to work on a freelance or consultancy basis or to be directly employed by the Client.
25.1 Failure by either party to enforce any accrued rights under this Agreement is not to be taken as or deemed to be a waiver of those rights unless the waiving party acknowledges the waiver in writing.
25.2 It is hereby declared that the foregoing paragraphs, sub-paragraphs and clauses of this Agreement shall be read and construed independently of each other. Should any part of this Agreement or its paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
25.3 The Schedules to this Agreement constitute an integral part thereof.
25.4 Failure by either party to enforce any accrued rights under this Agreement is not to be taken as or deemed to be a waiver of those rights unless the waiving party acknowledges the waiver in writing.
25.5 No addition to or modification of any clause in this Agreement shall be binding on the parties unless made in writing and signed by the signatories to this Agreement or their duly authorised representatives.
25.6 This Agreement and attached Schedule One sets out the entire agreement and understanding of the parties and is in substitution of any previous written or oral agreement between the parties.
25.7 Reference to any Statutory Provisions in this Agreement shall include any Statutory Provisions, which amends or replaces it.
26.1 This Agreement shall be interpreted construed and enforced in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.
IN WITNESS of which the parties have signed this Agreement the day, month and year first above written.
[Insert Developer's Name]
[Insert name of person signing on Developer's behalf]
[Insert their position]
[Insert Client's Name]
[Insert name of person signing on Client's behalf]
[Insert their position]