- Our Contract With You (General Undertaking).
a) Development Services. You are hiring Thrive Digital to combine and develop an assemblage of text, graphics, applications and content supplied by you into a World Wide Web “Site”, as described in our correspondence or Project Proposal document.
b) Operating Services. Are provided as per the signed and approved SLA (Service Level Agreement). The SLA will be drafted to your requirements and agreed upon at site launch.
c) Hosting and Email Services. Are provided as per our correspondence or Project Proposal document.
- Fees & Payments.
a) Generally. Thrive Digital will provide technical services to create, install and test the Site, which are provided at the firm fixed price for labour and associated assets (including but not limited to graphics, templates or software programs) plus our reasonable, documented out-of-pocket travel costs if incurred. This price assumes that you will maintain a stable scope of work and provide prompt feedback during development and testing.
b) Specific Terms. Payment terms are strictly fourteen (14) days from the date of invoice. This may be varied, but only by prior agreement and must be confirmed by us in writing or by email. Unless otherwise agreed, you shall bear the cost, if any, of content contributed to development of the Site. You shall pay the cost of establishing and maintaining registration of any Internet domain name for the Site unless otherwise agreed.
c) Late Payments. Services may be suspended or terminated on seven (7) days’ notice if you fail to pay any amount when due. Where any payment is more than six (6) weeks late, ie. eight (8) weeks since the date of the invoice, services may be suspended or terminated without notice. If payments for services are repeatedly late, we reserve the right to withdraw standard payment terms and will issue pro-forma invoices which require pre-payment for future services. Any late payment shall be subject to costs of collection, including reasonable legal fees.
d) Taxes. You shall pay and indemnify us from all sales, use, gross receipts, value-added, personal property or other tax or levy (including interest and penalties) imposed on the services and deliverables provided here-under, other than taxes based on our net income or profits.
- Term of Agreement.
This Agreement shall commence on the date of your acceptance of our proposal(s), and can be communicated in writing or email. Unless terminated earlier under Section 11 (“Termination”), this Agreement shall continue in full force and effect until either party terminates by giving the other party at least thirty (30) days’ advance written notice.
- Proprietary Rights.
Each party owns and, during the Term, hereby licenses for use as an integrated part of the Site on a non-exclusive basis all pre-existing data, databases, graphics, templates, software programs (including themes) and other material contributed by it to the development or operation of the Website. Subject to the foregoing sentence and receipt of final payment, we agree that to the extent of new authorship, the Site (including its constituent parts) constitutes “work for hire” under Copyright Laws owned exclusively by you and, alternatively, irrevocably assigns to you all ownership rights and irrevocably waives all other rights (including moral rights) it might have in the Site. Upon termination, we shall delete the “Site” from the Host System and, subject to final payment, deliver it to you on magnetic media or via file-transfer technology. You shall own the portion of the Uniform Resource Locator (URL) unique to the Home Page and, for use on the Internet, of all trademarks or service marks associated with it.
Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs, including, without limitation, technical information and development techniques, business and financial information, visitor lists and other information designated by a party as confidential or proprietary. Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the party, or (iii) information received by a party from a third party who was free to disclose it. Each party agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose the other party’s Confidential Information except in performing its obligations under this Agreement. Each party shall use the same degree of care in safeguarding the other party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall it use less than due diligence and care. Neither party shall alter or remove from any Confidential Information of the other party any proprietary, copyright, trademark or trade secret legend.
During the Term and for a period of one (1) year thereafter, you agree not to hire, solicit nor attempt to solicit the services of any employee or subcontractor of Thrive Digital or associated companies, without our prior written consent.
- Injunctive Relief.
The parties acknowledge that violation by one party of the provisions of Section 4 (“Proprietary Rights”), Section 5 (“Confidentiality”) or Section 6 (“Nonsolicitation”) would cause irreparable harm to the other party not adequately compensated by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
- Force Majeure.
Thrive Digital is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes include, without limitation, fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by us. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 10 (“Warranties”).
- Regulation of Certain Content.
Thrive Digital is a mere distributor and relies on you to pre-screen or editorially control the content of your Site. We reserve the right to request the removal of information in the Site brought to our attention, which we deem detrimental to the Host System or any person. You agree not to include in the Site any material which violates or infringes the rights of any person or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. You will not disseminate so-called “chain letters,” pornographic or obscene movies or graphic images. To protect ourselves, we may without liability actively cooperate with and furnish identifying and supporting information to any law enforcement agency serving a warrant or subpoena on us.
a) Non-infringement Warranty. You warrant that any technology, information or material (other than our own material) distributed through the Site will not infringe or misappropriate any copyright, trademark, patent, or the trade secrets of any third persons, or otherwise violate this Agreement or any applicable law. You will defend, indemnify and hold us harmless from all liability and expense (including legal fees) arising from any claim to the contrary.
b) Limited Performance Warranty. Thrive Digital warrants that it will make its best effort during the Term of this Agreement to perform its services in a competent and workmanlike manner and to ensure the Home Page and Site operates substantially according to the agreed-to specifications. We do not warrant that we will be able to correct all reported defects or that use of the Home Page will be uninterrupted or error free. We make no warranty regarding features or services provided by third parties (especially Internet telecommunications service or Web “browser” software), which are provided “as is” and “as available.”
Either party may suspend or terminate this Agreement if the other party materially breaches any provision and fails within ten (10) days of written notice to correct such default or commence corrective action reasonably acceptable to the aggrieved party and proceed with due diligence to correction. Termination shall have no effect on the parties’ rights and obligations under Section 4 (“Proprietary Rights”), Section 10 (“Warranties”). For a period of sixty (60) days following termination, we shall upon request include in any Site that we continue to operate at the same domain a public notice of your forwarding URL address and, for a reasonable fee, provide a hyperlink connecting visitors to your new Home Page.
- Disputes, Choice of Law.
Except actions for certain injunctive relief authorised under Section 7 (“Injunctive Relief”), which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator under proceedings conducted in accordance with the Commercial Arbitration Rules of a local Arbitration Association or similar body. The award of the arbitrator shall be limited to remedies otherwise available in court, shall include a written explanation of the decision and shall be binding upon the parties and enforceable in any court of competent jurisdiction. This agreement shall be governed by and construed in accordance with the substantive laws of the United Kingdom, and any action shall be initiated and maintained in a forum of competent jurisdiction.
This document and any attachments incorporated by reference constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. Headings are for reference purposes only and have no substantive effect. Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement.