Breo Design Web Site Development Service Agreement

This Web Site Development Service Agreement ("Agreement") is entered into by and between Breo Design, L.L.C. ("Breo Design") a/an Georgia limited liability company and you and your heirs, agents, successors and assigns (collectively, "You"or “Customer”), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of Breo Design’s Website Development services and its related services (collectively, the "Services") and represents the entire agreement between You and Breo Design concerning the subject matter hereof. By using the Services, You acknowledge that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement along with any new, different or additional terms, conditions or policies including, but not limited to, the Universal Terms of Service that Breo Design may establish from time to time, in its sole discretion, and any agreements that Breo Design is currently bound by or may become bound by in the future. Such Agreements may be found here. All Breo Design policies and agreements related to Your use of the Services are incorporated herein and made part of this Agreement by reference.

1. WEB SITE DEVELOPMENT SERVICES.

Depending on the level of service purchased, Breo Design will create a web site tailored toward Your reasonable expectations. The service will include an initial interview, presentation of the initial design and either: 1) Basic Package customers will receive at least one (1) round of design revisions and one (1) round of site content revisions; or 2) Premium Package customers will receive at least two (2) rounds of design revisions and two (2) rounds of site content revisions; or 3) Professional Package customers will receive three (3) rounds of design revisions and one (3) rounds of site update revisions. Breo Design will require all content copy and high quality images for inclusion in Your website up front. Customers who request custom designs will be quoted an additional hourly design fee. Requests for additional design updates or site updates beyond the first update will result in additional hourly design fees based on our number of additional hours worked. All material must be supplied in an electronic file format and transmitted to Breo Design electronically via email or file upload. Files that are too large to be transmitted electronically can, by prior arrangement, be delivered on a CD to our facilities via any standard shipping carrier. Content can, by prior arrangement, be faxed or sent to our facilities in hard copy format. Content delivered in hard copy format may incur additional fees for electronic conversion. Breo Design is not responsible for delays in Website completion due to delays in the receipt of customer items and/or materials. Breo Design, in its sole discretion, may require You to re-submit images should they determine that the images are not of high enough quality. Breo Design will not begin construction of Your web site until all requested materials and assurances of rights have been received from You. All materials provided should be copies and not original material. Breo Design will not return any materials provided by You in the design process. Failure to provide such material within thirty (30) days from request will result in cancellation of Your work order. No credits or refunds will be given for such cancellation. Breo Design will strive toward Your satisfaction, but does not guarantee that all of Your requests will be satisfied if they are unreasonable or unable to be accomplished within the scope of the Services. Your publication of the Website is acknowledgement of Your satisfaction with the Services and releases Breo Design from any obligation for further revisions or alterations. No credits or refunds shall be given for any reason including dissatisfaction with the design Customer choose or Breo Design created.

2.LEGAL AGREEMENTS.

You acknowledge that You agree to be bound by all the terms and conditions of the Web Site Design/CMS End User License Agreement, which can be found here, which is hereby incorporated by reference. You further acknowledge that You and Breo Design or a Go Breo Design affiliate ("Hosting Provider") have entered into a Hosting Service Agreement ("Hosting Agreement"). You agree to be bound by these agreements and all policies and procedures as posted on its web site.

3.DELIVERY OF WEBSITE.

Breo Design will use reasonable diligence in the development of the Web Site and endeavor to deliver to Customer an operational Web Site no later than the time assigned to you by Breo Design provided that: (1) Customer has made all project materials available to Breo Design and (2) Customer has released their first payment. Customer acknowledges that all delivery deadlines provided by Breo Design, are estimates, and are not required delivery dates. Breo Design will be retaining the source code for the entire project and providing the client with the output formats only. The output is to be used only within the scope of the project and does not included the following: Multiplying the site across other domains or servers, creating new websites based on the code, selling the code, relinquishment of copyright by Breo Design, in any way. Customer shall retain all of its intellectual property rights in any text, images or other components it owns and transmits to Breo Design for use in the Web Site.

4. OWNERSHIP OF RIGHTS.

Customer shall retain all of its intellectual property rights in any text, images or other components it owns and transmits to Breo Design for use in the Web Site. Customer shall hold the copyright for the agreed upon version of the website as delivered, and the Customer’s copyright notice may be displayed in the final version.

Breo Design shall hold all right, title, and interest in and to the source code, programming and original artwork created for the project. Specifically, but without limitation, Breo Design shall hold rights, title, and interest in and to:

1. all text, graphics, animation, audio components, and digital components of the Web Site (the “Content”) created by Breo Design,
2. all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, and all other components of any source or object computer code that comprises the Web Site created by Breo Design,
3. all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the content created by Breo Design,
4. all copyrights, patents, trade secrets, and other intellectual or industrial property rights in the Web Site or any component or characteristic thereof created by Breo Design.

Customer shall not do anything that may infringe upon or in any way undermine Breo Design’s right, title, and interest in the Web Site, as described in this section and the Universal Terms of Service Agreement which can be found here, which is hereby incorporated by reference.

5. COMPENSATION.

For all of Breo Design services under this Agreement, Customer shall compensate Breo Design, monetarily, pursuant to the terms of the Breo Design Universal Terms of Service Agreement which can be found here which is hereby incorporated by reference. In the event Customer fails to make any of the payments referenced in the Breo Design Universal Terms of Service by the deadline set forth therein, Breo Design has the right, but is not obligated, to pursue any or all remedies set forth therein.

6. CONFIDENTIALITY.

Customer and Breo Design acknowledge and agree that the Specifications and all other documents and information related to the development of the Web Site (the “Confidential Information”) will constitute valuable trade secrets of Breo Design.  Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Breo Design’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the “Confidential Information” definition is anything that can be seen by the public on the Web Site when each page of the Web Site is first accessed. You acknowledge that You agree to be bound by all the terms and conditions of the Breo Design Non-Disclosure Agreement, which can be found here which is hereby incorporated by reference.

7. LIMITED WARRANTY AND LIMITATION ON DAMAGES.

Breo Design warrants that the Web Site will conform to the Specifications set forth in Exhibit B. If the Web Site does not conform to the Specifications, Breo Design shall be responsible to correct the Web Site without unreasonable delay, at Breo Design’s sole expense and without charge to Customer, to bring the Web Site into conformance with the Specifications. This warranty shall be the exclusive warranty available to the Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Breo Design do not warrant that the Web Site will work on all platforms (“Platforms” – any servers, web browsers, operating systems, applications, etc.).Customer acknowledges that Breo Design is not responsible for the results or performance obtained by the Customer on the Web Site. Customer waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Breo Design as set forth in Exhibit A attached hereto.

8. INDEPENDANT CONTRACTOR.

Breo Design is retained as an independent contractor. Breo Design will be fully responsible for payment of its own income taxes on all compensation earned under this Agreement. Customer will not withhold or pay any income tax, social security tax, or any other payroll taxes on behalf of Breo Design. Breo Design understands that it will not be entitled to any fringe benefits that Customer provides for its employees generally or to any statutory employment benefits, including without limitation worker’s compensation or unemployment insurance.

9. EQUIPMENT.

Customer agrees to make available to Breo Design, for Breo its use in performing the services required by this Agreement, such items of hardware and software as Customer and Breo Design may agree are reasonably necessary for such purpose.

10. GENERAL PROVISIONS.

10.1 ENTIRE AGREEMENT.

This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both of the parties hereto. If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia Exclusive jurisdiction and venue shall be in the Richmond County, Georgia Superior Court. A failure by any party to exercise or delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.

10.2 GOVERNING LAW.

This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. Exclusive jurisdiction and venue shall by in the Richmond County, Georgia superior courts.

10.3 BINDING EFFECT.

This Agreement shall be binding upon and inure to the benefit of Customer and Breo Design and their respective successors and assigns, provided that Breo Design may not assign any of his obligations under this Agreement without Customer’s prior written consent.

10.4 WAIVER.

The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.

10.5 GOOD FAITH.

Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.

10.6 OWNERSHIP OF PHOTOGRAPHS.

Breo Design may use some of their own photographs for the Web Site. Breo Design maintains ownership of the photographs, and only grant Customer a non-exclusive right to use those photographs, and only on the Customer’s web site.

10.7 RIGHT TO ASSIGN.

Customer has no right to assign, sell, modify or otherwise alter the Web Site, except upon the express written advance approval of Breo Design, which consent can be withheld for any reason.

10.8 RIGHT TO REMOVE WEBSITE.

In the event Customer fails to make any of the payments set forth in Exhibit A, Section 1 within the time prescribed in Exhibit A, Breo Design has the right to remove the Web Site until payment in full is paid, plus accrued late charges of 5% per month.

10.9 INDEMNIFICATION.

Customer warrants that everything it gives Breo Design to put on the Web Site is legally owned or licensed to Customer. Customer agrees to indemnify and hold Breo Design harmless from any and all claims brought by any third party relating to any aspect of the Web Site, including, but without limitation, any and all demands, liabilities, losses, costs and claims including attorney’s fees arising out of injury caused by Customer’s products/services, material supplied by Customer, copyright infringement, and defective products sold via the Web Site. Further, customer agrees to indemnify Breo Design from responsibility for problems/disruptions caused by 3rd party services that the customer may use such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of the Web Site or multimedia project.

10.10 USE OF WEBSITE FOR PROMOTIONAL PURPOSES.

Customer grants Breo Design the right to use the Web Site for promotional purposes and/or to cross-link it with other Web Sites developed by Breo Design.

10.11 NO RESPONSIBILITY FOR THEFT.

Breo Design has no responsibility for any third party taking all or any part of the Web Site.

10.12 RIGHT TO MAKE DERIVATIVE WORKS.

Breo Design has the exclusive rights in making any derivative works of the Web Site.

10.13 ATTORNEY FEES.

In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.

10.14 IDENTIFICATION OF BREO DESIGN.

Customer agrees that the Breo Design’s identification may be annotated within the code or on the website as the authors. Customer also agrees to put on Breo Design’s copyright notices on the Web Site and the relevant content therein.

10.15 NO RESPONSIBILITY FOR LOSS.

Breo Design is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of the Web Site.

10.16 TRANSFER OF RIGHTS.

In the event Breo Design is unable to continue development of the Web Site non-exclusive rights to the Web Site will be granted to Customer in an ““as is”, “as available” and “with all faults” state provided that the Customer is current on the agreed upon payment structure listed in Exhibit A.

10.17 DOMAIN NAME.

Any domain name registered on Customer’s behalf will be made in Customer’s name for both the billing and administrative contacts. The technical contact is generally required to be the hosting ISP. Breo Design will not register domain names in Breo Design’s name.

10.18 PRIVACY.

Both parties agree that all research concerning applicable Georgia privacy legislation compliance for the Web Site is the sole responsibility of Customer.  Breo Design, to the best of its ability, will strive for compliance but gives no warranty that the Web Site or Digital Media complies with or operates in accordance with the requirements of applicable legislation.

10.19 CONFIDENTIALITY.

Customer and Breo Design acknowledge and agree that the written specifications and all other documents and information related to the development of the Web Site or Digital Media (the “Confidential Information”) will constitute valuable trade secrets of Breo Design and Customer. Both shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without either parties prior or written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the “Confidential Information” definition is anything that can be seen by the public on the Web Site when each page of the Web Site is properly accessed.

You further signify that you have read, understand, acknowledge and agree to be bound by the Breo Design's Non-Disclosure Agreement, which is incorporated herein by reference.

11 LICENSE.

11.1 GRANT OF LICENSE – CUSTOMER.

Customer hereby grants to Breo Design a non-exclusive, worldwide, royalty-free license for the term of this Agreement to edit, modify, adapt, translate, schedule, publish, transmit, participate in the transfer of, reproduce, distribute, perform, display, and otherwise use Customer Content as is necessary to render the Services to Customer under this Agreement.

11.2 GRANT OF LICENSE – BREO DESIGN.

Breo Design hereby grants to Customer exclusive, transferable license solely to make use of Breo Design Content which is incorporated in the Web Site, and which is required for the operation of the Web Site solely to operate the Web Site on the host server, subject to payment in full of the total price owed to Breo Design by Customer.

Copyright © 2010 Breo Design, L.L.C. All Rights Reserved.