Development and Marketing Agreements
This Agreement is entered into as of (purchase date), by and between MEDIA GIANT HOLDINGS, LLC, a Florida limited liability company d/b/a “Media Giant Design” (hereafter referred to as “MGD”), and Customer (hereafter referred to as “Client”).
MGD agrees to provide Client with those products and/or services set forth in the “Scope of Work” attached hereto as Exhibit A to this Agreement and incorporated herein by reference. Said products and/or services shall be referred to as the “Work” throughout this agreement.
Client shall pay MGD the fees and costs as set forth in the project quote / invoice / online ordering system.
If Client fails to pay invoices within seven(7) days of receipt, MGD may, in its sole and absolute discretion, cease all work on all matters under this Agreement until the Client’s account is brought current. Successive instances of late payment shall be cause for breach and termination of this Agreement.
On all flat-rate Agreements, final payment shall be due upon acceptance of the Work by the Client. Failure to accept the Work within five (5) days of delivery shall be deemed acceptance of the Work, and all monies remaining due shall become immediately payable.
Work performed beyond the Scope of Work shall be charged at the quoted hourly rate unless agreed to otherwise, in writing, by the Parties.
Change of Scope
Any substantive change, as determined solely by MGD, to the Scope of Work shall require a change to the Scope of Work and may incur additional fees and/or costs. Client shall submit to MGD a written proposal specifying the desired changes; MGD will review said proposal within a reasonable time and respond to Client with an Amended Scope of Work, incorporating any change in fees and/or costs. Client shall have three (3) days from receipt to accept or reject in writing the Amended Scope of Work. Acceptance shall subsequently amend this Agreement accordingly, with the Amended Scope of Work incorporated herein. Rejection shall cause the Parties to continue to operate under the initially agreed upon Scope of Work.
Timeframe for Delivery
A schedule for delivery of the Work shall be set forth in the Scope of Work. Client recognizes and acknowledges that while MGD will utilize its best efforts to adhere to said timeframe, MGD can make no guarantee that the Work will be delivered in accordance with the schedule.
Term and Termination
This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement.
Each party shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of fifteen (15) days after written notice of such breach is sent to the other party.
If MGD terminates this Agreement because of Client’s default, all of the following shall apply:
- Client shall immediately cease use of all materials provided by MGD under this Agreement and shall, within 10 days of such termination, deliver to MGD all copies, portions of materials and/or other documentation in its possession furnished by MGD under this Agreement.
- All amounts payable or accrued to MGD under this Agreement shall become immediately due and payable.
- All rights and licenses granted to Client under this Agreement shall immediately terminate.
Either party may terminate this Agreement at any time, for any reason, upon thirty (30) days’ written notice to the other party. In the event of termination by MGD under this subsection, MGD shall provide Client with the Work, in whatever form it takes, completed to date provided Client has satisfied all financial obligations to MGD through the date of termination. In the event of termination by Client under this subsection, Client agrees to pay MGD all amounts due pursuant to this Agreement through the date of termination and agrees to pay MGD a termination fee of $250 & 100% of the remaining balance.
Ownership of the Work
Excluding any material specifically provided by Client to MGD, the Work or any portion thereof, including but not limited to all software, content, intellectual property or other custom items developed by MGD for Client under this Agreement, shall fully remain the property of MGD until the Scope of Work under this Agreement is complete and Client has fully satisfied all financial obligations to MGD hereunder. Upon said completion and satisfaction, MGD shall transfer to Client ownership of that Work set forth in the Scope of Work.
MGD maintains ownership and/or licensure of certain software developer tools and may, concurrent with the transfer of ownership rights to Client of the Work, also transfer to Client a nonexclusive license to the software developer tools as necessary for the proper operation of Client’s Work. Client understands that MGD will place an inaccessible license key within the Work and will grant MGD perpetual access to said key for purposes of monitoring Client’s use of said developer tools in accordance with this Agreement.
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except where reasonably necessary to the disclosing party’s attorneys, financial advisors or accountants or except as may be required by law.
Each party acknowledges that it will receive confidential information and trade secrets (“Confidential Information”) from the other party in the course of performing the Scope of Work and otherwise carrying out the actions contemplated by this Agreement. Confidential Information includes all information one party receives from the other party, except anything designated as not confidential. During the period this Agreement is in effect, and at all times afterwards, each party, its employees, contractors, consultants, and agents, will safeguard the other party’s Confidential Information with the same degree of care that it uses to protect its own confidential information; maintain the confidentiality of this information; not use such information except as permitted under this Agreement; and not disseminate, disclose, sell, publish, or otherwise make available this information to any third party without the prior written consent of the disclosing party.
The restrictions of this Agreement do not apply to any information that is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); is or becomes generally available to the public through no fault of the receiving party; is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order); is disclosed by the receiving party with the disclosing party’s approval; and is independently developed by the receiving party without any use of Confidential Information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party fifteen (15) days’ prior written notice of any disclosure of information under this Agreement. The parties will maintain the confidentiality of all confidential and proprietary information learned pursuant to this Agreement for a period of five (5) years from the date of termination of this Agreement.
Each party agrees to execute a reasonable nondisclosure agreement if asked to do so by the other.
Client and MGD acknowledge that any breach of the confidentiality restrictions of this Agreement by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that it may have at law or in equity.
Warranties, Liability and Indemnification
THE WORK FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN AS “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. MGD DOES NOT WARRANT THAT THE OPERATION OF THE WORK WILL BE CONTINUAL, UNINTERRUPTED OR ERROR FREE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE WORK. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES GRANTED BY MGD. MGD DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MGD REPRESENTS, BUT DOES NOT WARRANT, THAT TO THE BEST OF ITS KNOWLEDGE THE WORK DELIVERED TO CLIENT UNDER THIS AGREEMENT WILL NOT INFRINGE ANY VALID AND EXISTING INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. THE WORK FURNISHED UNDER THIS AGREEMENT IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS AGAINST INFRINGEMENT, AND MGD SHALL NOT INDEMNIFY CLIENT AGAINST INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER PROPRIETARY RIGHTS.
In no event shall MGD be liable to Client for the lost profits of Client, or special or consequential damages, even if MGD has been advised of the possibility of such damages.
In the event MGD is held liable to Client damages, costs and/or expenses, regardless of cause, MGD’s total liability shall not exceed the total amount of fees paid to MGD by Client under this Agreement.
Client shall indemnify MGD against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out of the use of the Work provided under this Agreement. MGD shall promptly notify Client in writing of any third party claim or suit and Client shall have the right to fully control the defense and any settlement of such claim or suit. This indemnity provision survives termination of this Agreement.
Neither party may assign or transfer its rights or delegate its obligations under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement.
Entirety, Severability and Waiver
This Agreement, along with the Exhibits attached and incorporated in this Agreement, constitutes the final, complete, and exclusive understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party to this Agreement.
In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, that provision shall be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
The failure of either party to enforce any provisions of this Agreement is not a waiver of the provisions or of the right of that party to subsequently enforce that, or any other, provision of this Agreement.
Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested, or sent by overnight courier service and addressed as follows:
To Client: CUSTOMER INFO IN ONLINE ACCOUNT
To MGD: Media Giant Design, 4106 Okeechobee Rd., Fort Pierce, Florida 34947
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties agree that any dispute between them arising out of this Agreement shall be heard in a court of competent jurisdiction in St. Lucie, Florida, and the parties hereby consent to the personal jurisdiction of such courts. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs.