STANDARD TERMS AND CONDITIONS
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Standard Terms and Conditions document, the Cost Estimate document(s), Project Scope, Agreement, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Properties means all materials, information, photography, writings and other content provided by Client for use in the preparation of and/or incorporation in the Work Product.
1.3 Developer Properties or ImpactMarketingBali.com Properties shall mean the Work Product except for the Client Properties.
1.4 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Indonesian Copyright Law.
1.5 Work Product means the services and work product specified in the Service Agreement to be delivered by Website Developer to Client, in the form and media specified in the Service Agreement.
1.6 Website Developer Tools means all design tools developed and/or utilized by Website 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 website design, architecture, layout, navigational and functional elements.
1.7 Final Art means all creative content developed or created by Website Developer, or commissioned by Website Developer, exclusively for the Project and incorporated into and delivered as part of the Final Work Product, 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, layout, modifications to Client Content, and Website Developer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
2. SERVICE AGREEMENT
The terms of the Service Agreement shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Service Agreement, together with any related terms and conditions and Work Product, may be subject to amendment, change, or substitution.
The Purchaser named in the financial transaction for a down payment of the Business Website Client is engaging Impact Marketing Bali as an independent contractor for the specific purpose of developing a website. Hereafter, the Purchaser will be known as the “Client” and Impact Marketing Bali will be known as “Website Developer”.
4. SERVICES PROVIDED
Impact Marketing Bali will provide services as specified herein to create the “Work Product” (as defined herein), all as set forth in each statement of work, or modifications to each statement of work, agreed to by the parties from time to time and attached and made a part hereof.
5. STATEMENT OF WORK
Impact Marketing Bali will develop and publish a website for the Client as described in Project Scope.
6. PAYMENT TERMS
Down payment required payment to validate this Service Agreement 50%
Final payment due with acceptance of the project deliverables 50%
7. TERM AND TERMINATION
7.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
7.2 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.
7.3 In the event of termination, Website 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 Website Developer or Website Developer’s Sub Contractors as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
7.4 In the event of termination by Client and upon full payment of compensation as provided herein, Website Developer grants to Client such right and title as provided for in the Agreement with respect to those Work Product provided to, and accepted by Client as of the date of termination.
7.5 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.
8. CLIENT’S RESPONSIBILITY FOR THE ACCURACY AND RELIABILITY OF PROVIDED MATERIALS
8.1 When a Client provides information, data, software, images, custom programming, etc. to Developer, the Client is solely responsible for those items. Developer will assume that the items provided are only copies of the originals. In the event of data loss, software corruption, unrecoverable information, or hardware failure, the Client will be solely responsible for providing new copies of the item(s) to Developer.
8.2 If items provided to Developer do not function correctly, require additional research to make them functional, or add extra billable hours to a project, the Client will be responsible for the hourly costs incurred in addition to the quoted project price. Developer will always notify the Client in writing and wait for the Client’s approval prior to performing work outside the scope of the original contract/quote.
8.3 If the Client decides not to correct the issues presented by Developer within 3 business days, the project delivery dates may be changed, or the project may be cancelled under the terms of the cancellation policy listed above.
9. CONTENT PROVIDED BY THE CLIENT TO DEVELOPER OR CONTENT PUBLISHED BY THE CLIENT DIRECTLY ON THE WEB SITES HOSTED AND/OR MANAGED BY DEVELOPER
9.1 As our Client you may submit video, illustrations, photographic and textual content, which are collectively referred to as Client Content. You understand that whether or not such Client Content is published, Web Developer does not guarantee any confidentiality with respect to any Client Content.
9.2 The Client shall be solely responsible for his own Client Content and the consequences of posting or publishing them. In connection with Client Content, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Developer to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Client Content to enable inclusion and use of the Client Content in the manner contemplated by the Web Site and these Terms of Service.
9.3 In connection with Client Content, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Developer all of the license rights granted herein.
9.4 You agree to defend, indemnify and hold harmless Web Developer, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the web site produced and/or managed by Web Developer; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your Client Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the web site produced and/or hosted by Web Developer.
Web Developer hereby grants to Client the exclusive, non-sublicenseable, perpetual, and worldwide right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Service Agreement and in accordance with the various terms and conditions of this Agreement.
11. WARRANTIES AND PERFORMANCE
11.1 Impact Marketing Bali represents and warrants to Client that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner; that it has the power to enter into and perform this Agreement; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party or violate any federal, state and municipal laws. However, Client will not determine or exercise control as to general procedures or formats necessary to have these services meet Client’s satisfaction.
11.2 Impact Marketing Bali Warranties. The Web Site Developer represents and warrants that the Work Product does not and will not knowingly: (a) violate any law or regulation, including, without limitation, the laws and regulations governing export control; (b) be defamatory or trade libelous; (c) be pornographic or obscene; or (d) contain any viruses, Trojan horses, worms, time bombs or other computer programming devices which are intended to damage a user’s system or data or prevent the user from using same.
11.3 CLIENT WARRANTIES. Client represents and warrants that the Client Properties will not knowingly: (a) violate any law or regulation, including, without limitation, the laws and regulations governing export control; (b) be defamatory or trade libelous; (c) be pornographic or obscene; or (d) contain any viruses, Trojan horses, worms, time bombs or other computer programming devices which are intended to damage a user’s system or data or prevent the user from using same. Client further represents and warrants that (a) Client has all rights necessary for the production, distribution, exhibition and exploitation of the Client Properties as part of the Work Product consistent with the license granted in this Agreement; and (b) there is no outstanding contract, commitment or agreement to which Client is a party or legal impediment of any kind known to Client which conflicts this Agreement or might limit, restrict or impair the rights granted hereunder.
11.4 Impact Marketing Bali acknowledges that the services rendered under this Agreement shall be solely as an independent contractor. Impact Marketing Bali shall not enter into any contract or commitment on behalf of Client. Impact Marketing Bali further acknowledges that it is not considered an affiliate or subsidiary of Client and is not entitled to any Client employment rights or benefits. It is expressly understood that this undertaking is not a joint venture.
11.5 Confidentiality. Impact Marketing Bali recognizes and acknowledges that this Agreement creates a confidential relationship between Impact Marketing Bali and Client and that information concerning Client’s business affairs, Clients, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature. All such information concerning Client is hereinafter collectively referred to as “Confidential Information.”
11.6 Non-Disclosure. Impact Marketing Bali agrees that, except as directed by Client, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever and that upon the termination of this Agreement it will turn over to Client all documents, papers, and other matter in its possession or control that relate to Client. Impact Marketing Bali further agrees to bind its employees and subcontractors to the terms and conditions of this Agreement.
11.7 Office Rules. Impact Marketing Bali shall comply with all office rules and regulations, including security requirements, when on Client premises.
11.8 Conflict of Interest. Impact Marketing Bali shall not offer or give a gratuity of any type to any Client employee or agent.
11.9 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of Indonesia.
12. RELATIONSHIP OF THE PARTIES
12.1 Independent Contractor. Web Developer is an independent contractor, not an employee of Client or any company affiliated with Client. Web Developer shall provide the Services under the general direction of Client, but Web Developer shall determine, in Web 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. Web Developer and the work product or Deliverables prepared by Web 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.
12.2 Web Developer Agents. Web Developer shall be permitted to engage and/or use third party Web Developers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Web Developer shall remain fully responsible for such Web Developer Agents’ compliance with the various terms and conditions of this Agreement.
12.3 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 Web Developer, employee or Agent of Web Developer, whether or not said person has been assigned to perform tasks under this Agreement.
13. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL IMPACT MARKETING BALI BE LIABLE TO CLIENT, USERS OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES, IMPACT MARKETING BALI LIABILITY, IF ANY, TO CLIENT OR TO ANY THIRD PARTY HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AFTER TAX PROFITS EARNED BY IMPACT MARKETING BALI UNDER THIS AGREEMENT IN THE LAST TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT IMPACT MARKETING BALI HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
IN NO EVENT SHALL IMPACT MARKETING BALI BE LIABLE FOR FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF ANY GOVERNMENTAL BODY,
WAR, INSURRECTION, SABOTAGE, EMBARGO, FIRE, FLOOD, STRIKE OR OTHER LABOR DISTURBANCE, INTERRUPTION OF OR DELAY IN TRANSPORTATION, UNAVAILABILITY OF OR DELAY IN TELECOMMUNICATIONS OR THIRD PARTY SERVICES, FAILURE OF THIRD PARTY SOFTWARE OR INABILITY TO OBTAIN RAW MATERIALS, SUPPLIES, OR POWER USED IN OR EQUIPMENT NEEDED FOR PROVISION OF THE SERVICES.
14. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11 OF THIS AGREEMENT, ALL CLIENT SERVICES ARE PROVIDED ON AN “AS IS” BASIS. IMPACT MARKETING BALI DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IMPACT MARKETING BALI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE.
15.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Web 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.
15.2 Notices. All notices to be given hereunder shall be transmitted in writing either by electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent 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 email, upon confirmation of receipt.
15.3 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.
15.4 Force Majeure. Web Developer shall not be deemed in breach of this Agreement if Web 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 Web Developer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Web Developer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Web 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.
15.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the Republic of Indonesia 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 through an attorney, or any 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 or federal courts located in Indonesia. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Web 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 Web 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.
15.6 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.
15.7 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.
15.8 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 Service Agreement and any other Agreement documents, the terms of the Service Agreement shall control. This Agreement comprises this Basic By providing a down payment for the Starter Business Website by the Client, and acceptance of abovementioned down payment by the Developer, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the date of the acceptance of down payment by the Developer. The Client and the Developer represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
INTELLECTUAL PROPERTY PROVISIONS
IP 1. RIGHTS TO WORK PRODUCT OTHER THAN FINAL ART
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 Web Developer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Web Developer’s performance of the Services and limited promotional uses of the Work Product as authorized in this Agreement.
IP 1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Web Developer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Web Developer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client 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 Materials, Client hereby indemnifies, saves and holds harmless Web 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 Art.
IP 1.3 Preliminary Works. Web Developer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Web 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 Web Developer.
IP 1.4 Original Artwork. Web Developer retains all right and title in and to any original work comprising Final Art, including all rights to display or sell such artwork.
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, Web Developer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Web Developer for use by Client as a Trademark. Web 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 Work Product 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 Web 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 Web Developer Tools. All Web Developer Tools are and shall remain the exclusive property of Web Developer. Web 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 Web Developer Tools solely to the extent necessary with the Final Work Product 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 Web Developer Tools comprising any software or technology of Web Developer.
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 Work Product, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the Project Scope. Additional time shall be billed at Web 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, Web Developer will provide Support Services for the following 12 months (the “Maintenance Period”) for Web Developer’s monthly fees. 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 Web Developer develop enhancements to the Work Product, and Web Developer shall exercise commercially reasonable efforts to prioritize Web 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 Web 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, Web Developer represents and warrants that the Final Work Product 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 Service Agreement in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Work Product by Client or any third party after delivery by Web Developer, or the interaction of Final Work Product with third party applications such as Web browsers other than those specified in the Service Agreement. The parties acknowledge that Client’s sole remedy and Web Developer’s sole liability for a breach of this Section is the obligation of Web 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 Web Developer, Web Developers sole obligation shall be to substitute alternative Third Party Materials.
I 3.2 Web Developer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Web Developer represents and warrants that, to the best of Web Developer’s knowledge, the Web 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 Work Product in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
I 4. COMPLIANCE WITH LAWS
Web Developer shall use commercially reasonable efforts to ensure that all Final Work Product shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Work Product, shall be responsible for conformance with all laws relating to the transfer of software and technology.