SERVICE AGREEMENT
This Service Agreement (the “Agreement”) is made as of the day of execution, as indicated on the Statement of Work by and between BridgeWorks Advertising, a Washington company, with a principal place of business at 1816 NE 21st Street, Renton WA 98056 ("BridgeWorks Advertising") and Client, as indicated on the Statement of Work ("Client").
1. Client Website: Indicated on Statement of Work
2. Services. Subject to the terms and conditions of this Agreement, BridgeWorks Advertising will provide to Client each service indicated below (in each case, a “Service” and collectively, the “Services”):
Web site design service, as described on Exhibit A-1
Online Advertising Service, as described on Exhibit A-2
Each Service is subject to and provided in accordance with the terms and conditions set forth in this Agreement and on the applicable exhibit for such Service, which is incorporated into and made a part of this Agreement in its entirety. Accordingly, unless otherwise expressly referenced, as used herein the term “Agreement” shall include the applicable Service Schedule exhibit.
2. Fees. Subject to performance by BridgeWorks Advertising of the Services in accordance with the terms of this Agreement Client will pay BridgeWorks Advertising fees for each Service as set forth on the applicable exhibit for such Service (the "Fees").
3. Term. This Agreement will remain in full force and effect for one (1) year from the execution date unless earlier terminated in accordance with the terms of this Agreement (“Initial Term”). This Agreement will automatically renew for additional one (1) year periods (each, a “Renewal Term”) unless either party gives the other written notice of its intent not to renew at least thirty (30) days prior to the end of the then current term. Notwithstanding the foregoing, Client may terminate this Agreement at any time during a Renewal Term upon thirty (30) days prior written notice to BridgeWorks Advertising. Fees for the Initial and any Renewal Term shall remain fixed for such Term. BridgeWorks Advertising may increase the Fees only once per Renewal Term provided that BridgeWorks Advertising gives Client written notice of any proposed change in Fees for any such Renewal Term at least ninety (90) days prior to the end of the then current Term.
4. Terms and Conditions. This Agreement is further subject to the Standard Terms and Conditions attached hereto as Exhibit B, which are incorporated into and made a part of this Agreement in their entirety.
Executed as of the date set forth on the Statement of Work, as a document under seal, by the duly authorized representatives of the parties hereto.
BridgeWorks Advertising
Exhibit B
Standard Terms & Conditions
1. Termination.
(a) Either party will have the right to terminate this Agreement (i) upon thirty (30) days written notice if the other party is in material breach of any material term, condition, warranty or covenant of this Agreement, unless prior to expiration of such period the breaching party cures such breach or (ii) immediately upon written notice if it reasonably determines that the other party’s conduct, services or products violate applicable law, infringe the intellectual property rights of a third party or pose a material threat to the terminating party’s systems, equipment, processes, business or intellectual property.
(b) On the effective date of any termination, BridgeWorks Advertising will cease providing Services and Client will pay BridgeWorks Advertising any unpaid fees accrued prior to such effective date. These Terms and Conditions will survive the expiration or earlier termination of this Agreement for any reason. Additionally, upon the termination or expiration of this Agreement, the parties agree that: (i) all BridgeWorks Advertising's limited rights including, without limitation, any right to use, copy, store, upload, download or disseminate in any way Client’s Proprietary Materials, shall immediately terminate; (ii) all of the Client Proprietary Materials in BridgeWorks Advertising's possession, shall be promptly returned (or, at Client's written instruction, destroyed) and within thirty (30) business days following termination, expiration, or receipt of such request, BridgeWorks Advertising shall certify in writing the completion of such steps; and (iii) BridgeWorks Advertising shall discontinue its Services and, at Client’s request, use its best efforts to "wind down" the Services and mitigate any fees and/or costs arising out of, related to or associated with such expiration or termination of the Agreement.
(c) Upon expiration or termination of this Agreement by either Party for any reason, at Client’s request, BridgeWorks Advertising shall provide Client, at BridgeWorks Advertising’s then-standard rates, reasonable assistance for up to three (3) months after such termination or expiration relating to the transition from BridgeWorks Advertising’s server to another system and/or server, including support and maintenance services and all other services necessary for an orderly conversion, provided that BridgeWorks Advertising shall be compensated for such transition services.
2. Licenses and Intellectual Property.
(a) Each party will own and retain all right, title and interest in and to its respective “Proprietary Property” (as hereinafter defined). Each party grants to the other a limited, non-transferable, non-exclusive license during the Term of this Agreement to its respective Proprietary Property provided under this Agreement solely to the extent necessary to fulfill its obligations under this Agreement. The licenses granted pursuant to this Section 2 will terminate immediately upon the termination of this Agreement. For purposes of this Agreement, “Proprietary Property” means any materials in whatever form or media including, without limitation, the Website, content (including text, images, audio and other data, information, materials, features or technology), software, inventions, proprietary information, marketing materials, customer lists, customer information, data, notes, methodologies, techniques, ideas, concepts, know-how, illustrations, pictures patents, trade secrets, trademarks, service marks, trade names or copyrighted materials provided by a party prior to and/or during the term of this Agreement.
(b) BridgeWorks Advertising retains Proprietary Property rights on all designs, mock ups, pictures, images, illustrations, software, methodologies, ideas, concepts, techniques, audio, video or other media associated with the design and development of Client’s web site.
(c) Except as expressly provided in this Agreement, neither party will, or permit any other person to: (a) transfer, sell, license, sublicense, distribute or commercially exploit the other party's Proprietary Property; (b) modify, reproduce, create derivative or collective works from, or in any way otherwise exploit the other party's Proprietary Property in whole or in part, or (c) remove from the other party's Proprietary Property any copyright or trademark notices, disclaimers or other indicia of ownership or restrictions on use. Each party acknowledges that its use of the other party's Proprietary Property will not create in it, nor will it represent that it has any right, title, or interest in or to such Proprietary Property.
(d) Client will not provide to BridgeWorks Advertising, and BridgeWorks Advertising may refuse to publish or distribute, any content that: (i) is defamatory, trade libelous, or unlawful; (ii) is obscene or pornographic; (iii) violates unfair competition, anti-discrimination or false advertising laws; (iv) infringes third party copyright, trademark or similar rights; or (v) contains viruses, trojan horses, worms, robots or other computer programming routines intended to damage, interfere with, intercept or expropriate system, data or personal information.
3. Confidential Information.
(a) Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, and other information held in confidence by the other party ("Confidential Information"). Confidential Information will include, without limitation: (i) the terms and conditions of this Agreement; (ii) proprietary information of a party's customer; (iii) a party’s Proprietary Property; and (iv) all other information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. This Agreement does not transfer from one party to the other any right, title and interest in or to any Confidential Information. Neither party will use in any way, for its own account or the account of any third party, except as expressly permitted by or required to achieve the purposes of this Agreement, or disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information, and each party will take precautions to protect the confidentiality of such information at least as stringent as it takes to protect its own Confidential Information, but in no event less than reasonable precautions.
(b) Confidential Information will not include information that: (i) is known to the receiving party prior to receipt from the disclosing party, other than from a source having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) by the receiving party other than from a source having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; (iv) is independently developed by the receiving party; or (v) concerns the services and the terms of this Agreement in connection with arbitration or litigation arising out of a dispute between the parties. The receiving party may disclose Confidential Information pursuant to the requirements of a court or governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
4. Warranty.
Each party represents and warrants that (a) it has all right, power and authority necessary to enter into this Agreement, (b) it has all right, title and interest in and to any content it is providing to the other party under this Agreement or has obtained any and all necessary permissions from third parties to provide such content (c) the use of such content and/or a party’s Proprietary Property by the other party in accordance with the terms of this Agreement will not infringe the rights of any third party, and (d) it shall comply fully with all applicable Federal, state and local laws, ordinances, rules and regulations in the performance of its obligations hereunder. BridgeWorks Advertising represents and warrants that it shall (a) perform all Services in a good, workmanlike and professional manner using people fully familiar with the BridgeWorks Advertising technology, (b) use its best efforts to protect Client’s Proprietary Materials from any computer virus, worm, trap door, back door, timer, counter, software locks or other such limited routine, instruction or design.
5. DISCLAIMERS AND LIMITATIONS.
(A) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (I) THE SERVICES ARE PROVIDED AS IS AND AS AVAILABLE AND (II) TO THE MAXIMUM EXTENT PERMITTED BY LAW, BridgeWorks Advertising DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
(B) EXCEPT FOR EACH PARTY’S OBLIGATIONS PURSUANT TO THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 6 TO DEFEND AND REIMBURSE THE OTHER PARTY FOR THIRD PARTY CLAIMS FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY INCLUDING NEGLIGENCE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(C) EXCEPT WITH RESPECT TO EACH PARTY’S OBLIGATIONS PURSUANT TO THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 6, EACH PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE ACTUAL DAMAGES SUFFERED BY THE NON-BREACHING PARTY UNDER THIS AGREEMENT.
6. Indemnification.
(a) Client will defend, indemnify and hold BridgeWorks Advertising and its employees, agents, directors and shareholders harmless from and against any loss, damage, liability, claim, demand, suit, proceeding and expense (including reasonable attorneys' fees and costs) ("Damages") resulting from or in connection with third party claims arising out of (i) Client’s breach of any of its representations, warranties or covenants contained in this Agreement or negligent or unlawful act in its performance of this Agreement, (ii) infringement by Client of third party Proprietary Property rights, (iii) the accuracy and legal propriety of, or libel slander or defamation resulting from, information furnished by Client concerning its organization, products, promotions or services, (iv) product liability arising out of the use of any of Client's products or services or (v) the processing of purchases and other transactions on the Client Website, and the security or privacy of information submitted by users in connection with such purchases or transactions, except in each case to the extent that such Damages arise out of any action by BridgeWorks Advertising.
(b) BridgeWorks Advertising will defend, indemnify and hold Client and its employees, agents, directors and shareholders harmless from and against any Damages resulting from or in connection with third party claims arising out of (i) BridgeWorks Advertising’s breach of any of its representations, warranties or covenants contained in this Agreement or negligent or unlawful act in its performance of this Agreement, (ii) infringement by BridgeWorks Advertising of third party Proprietary Property rights, or (iii) the accuracy and legal propriety of, or libel slander or defamation resulting from, information furnished by BridgeWorks Advertising concerning its organization or Services, product liability arising out of the use of any of Client's products or services, except in each case to the extent that such Damages arise out of any action by Client.
(c) A party seeking indemnification will promptly notify the other party in writing of any claim, provided, that failure to give notice will only relieve the indemnifying party of liability if the indemnifying party has suffered actual material prejudice by such failure. The indemnifying party will (i) control the defense of any such claim; (ii) reimburse the indemnified party for any reasonable legal expenses directly incurred in such defense, as such expenses are incurred; and (iii) have the right to consent to judgment on, or otherwise settle, an indemnified claim with the prior written consent of the indemnified party, which consent will not be unreasonably withheld; provided, that the indemnified party may withhold its consent if the judgment or settlement imposes an unreimbursed or continuing obligation on the indemnified party or does not include an unconditional release of each indemnified party.
7. Notices.
(a) Any notice or communication required or permitted under this Agreement will be given in writing, sent by (i) personal delivery, (ii) nationally recognized overnight delivery service with proof of delivery, or (iii) facsimile (provided that such facsimile is contemporaneously followed and confirmed by nationally recognized overnight delivery service in the manner previously described), addressed as follows:
Notices to Client: Notices to BridgeWorks Advertising:
Address Indicated on
Statement of Work BridgeWorks Advertising
1816 NE 21st Street
Renton WA 98056
Attn: Brian James
8. General.
This Agreement will be governed by and construed in accordance with the laws of the State of Washington. This Agreement contains the complete agreement between the parties with respect to its subject matter and may only be amended by a writing signed by both parties. If any term or condition of this Agreement is judged to be illegal or unenforceable, all other terms will remain in force, and the term or condition held illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the parties. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement may be executed in one or more counterparts, each of which, when executed and delivered, will be an original, and such counterparts will together constitute one and the same instrument. Facsimile signature shall be deemed original signatures. Client acknowledges and agrees that, without the prior written consent of Client in each instance, BridgeWorks Advertising is permitted to use in any manner including, without limitation, in any advertising, publicity, press release or sales presentation (including, without limitation, on the Internet) the name of Client, Client's domain name, any trademark, trade name, service mark, symbol or any abbreviation or contraction thereof owned by or referring to the Client or represent, directly or indirectly, that any product or service offered by BridgeWorks Advertising has been approved by or endorsed by Client. From time to time after the effective date, each party to this Agreement will execute and deliver, or cause to be executed and delivered, all such further documents and instruments and will do, or cause to be done, all acts and things as any other party to this Agreement may reasonably request in order to effectively carry out the intent and meaning of this Agreement. No waiver of any breach of any term or provision of this Agreement shall be effective or binding unless made in writing and signed by the party against whom enforcement of any such waiver is sought, and any such waiver shall be limited to the specific breach waived. The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect in any way the construction or interpretation of this Agreement. In the event that BridgeWorks Advertising or Client shall commence a proceeding or bring an action to enforce the provisions of this Agreement, the prevailing party shall be entitled to be reimbursed for its reasonable attorneys' fees, disbursements and all applicable court costs. The terms of Sections 1 through this Section 8 shall survive any termination or expiration of this Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Agreement.
BridgeWorks Advertising
Exhibit A-1
Web Site Design Service
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Service.
- BridgeWorks Advertising will design, develop, create and publish one (1) web site for Client which will be hosted by BridgeWorks Advertising. Client’s website address is indicated on the Statement of Work. The web site will initially include the functionality described on Schedule I attached hereto.
- Client will provide BridgeWorks Advertising with (i) information for each web page within the web site in sufficient detail for BridgeWorks Advertising to perform the Services under this Agreement, including, but not limited to, web site text, images, addresses, phone numbers, web site links and special services and (ii) Client's logo in digital format for inclusion in the web site.
- During the term of this Agreement, BridgeWorks Advertising may create what it determines to be enhancements to the web site, the implementation of which may alter the functionality and/or the appearance of the web site. Client hereby acknowledges that BridgeWorks Advertising will modify the web site, as necessary, to implement such enhancements, provided that BridgeWorks Advertising will not make any enhancements to the web site that reduce the functionality of the web site to a level less than that outlined in Schedule I.
- All data and information concerning user traffic and behavior on the Web Pages will be the property of BridgeWorks Advertising.
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Fees.
- Client will pay BridgeWorks Advertising an implementation fees indicated on the Statement of Work, throughout the term of this Agreement. In addition, if, during the term of this Agreement, Client wishes to alter its website in a manner that causes BridgeWorks Advertising to incur additional costs in connection with providing the web site to the Client, BridgeWorks Advertising will notify Client of the amount of such additional costs. In the event Client approves such costs in advance, in writing, BridgeWorks Advertising may invoice such costs to Client, and Client will pay such additional costs within thirty (30) days of receipt of invoice. If Client does not approve such costs, then BridgeWorks Advertising may terminate this contract upon written notice to Client.
- The monthly fee will include up to 100 gigabytes of bandwidth per month to the Web Pages. If bandwidth exceeds 100 gigabytes per calendar month, Client will pay an additional twenty dollars ($20) per 100 gigabytes.
- One half (1/2) of the implementation fees are payable upon execution of this Agreement and the remaining balance is payable sixty (60) days after execution of the Agreement. The monthly hosting fees described in paragraph 2(a) are payable quarterly in arrears. BridgeWorks Advertising will invoice Client the last day of each quarter (March 31st, June 30th, September 30th, December 30th) for hosting fees for the prior months. Client will pay all invoices within thirty (30) calendar days after receipt of the invoice. In addition to any other rights hereunder, BridgeWorks Advertising may charge Client interest equal to 1.5% per month or the highest rate permitted by law on any overdue fee.
- Hourly rate is $25 per hour, minimum of one (1) hour.
BridgeWorks Advertising
Exhibit A-2
Online Advertising Service
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Service.
- Using BridgeWorks Advertising’s proprietary technology and processes, BridgeWorks Advertising will display advertising for Client on the world wide web.
- The advertising will be in a format matching the Client’s service area and product or services.
- Client will pay for advertising that brings internet users to the client’s website.
- Client business information will receive search engine submissions
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Fees.
- Client will pay BridgeWorks Advertising an implementation fee, as indicated on the Statement of Work. In addition, if, during the term of this Agreement, Client wishes to alter its advertising in a manner that causes BridgeWorks Advertising to incur additional costs in connection with providing the advertising to the Client, BridgeWorks Advertising will notify Client of the amount of such additional costs. In the event Client approves such costs in advance, in writing, BridgeWorks Advertising may invoice such costs to Client, and Client will pay such additional costs within thirty (30) days of receipt of invoice. If Client does not approve such costs, then BridgeWorks Advertising may terminate this contract upon written notice to Client.
Schedule I
Features and Functionality.
Web design will be created by BridgeWorks Advertising for the use by Client. Web design entails the creation of the framework that the website will take. Client is allowed no more than three (3) revisions of the original design. Further design revisions beyond three (3) will incur hourly charges.
Development of functional and usableweb pages
Words of text supplied by the client with no limit on quantity. All text errors in grammar, syntax and semantics are the sole responsibility of the Client, but Sparrowhawk maintains that the spelling of the words of text will be accurate.
Links to other areas of the web site and/or external sites.
Navigational Elements that allow an end user of the web site to move between web pages.
Images and graphics may or may not be supplied by Client. BridgeWorks Advertising will notify the client of any image purchasing costs prior to any purchase and/or invoicing. Upon written approval by Client, BridgeWorks Advertising will purchase and invoice client for images. All images not purchased or supplied by the Client remain the sole property of BridgeWorks Advertising
Email Links that allow end users to send email to Client
Integration of web design into Client’s web address
Email Integration of Client’s web address and email program
Search Engine Submission to the leading search engines that will include at a minimum, Yahoo, Google and MSN.
Kudzu.com Yelp Merchant Circle Kelsey Group Blog - YP & Local Official Google BlogSearch Engine Land Yahoo! Local & Maps Blog Seattle.com
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