1. Definitions
1. 1 Agreement means the Project Proposal, Terms and Conditions and any other attached documents. Project means the scope and purpose of the Client’s identified usage of the work product as described in the Project Proposal. Once this Agreement is signed by Client, it becomes a legally-binding contract between Tower and Client.
1. 2 Services means all services and the work product to be provided to Client by Tower as described and otherwise further defined in the Project Proposal.
1.3 Deliverables means the services and work product specified in the Project Proposal to be delivered by Tower to Client.
1.4 Final Deliverables means the final versions of Deliverables provided by Tower and accepted by Client.
1.5 Hosting means the storage of your website files on one of our web servers and the bandwidth necessary to transfer those files to visitors requesting to view them on their browsers.
1.6 Internet Marketing means a Service that is combination of SEO, social media, content, and pay-per-click tactics.
1.7 Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.
1.8 Third-Party Materials means proprietary third party materials that are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.9 Tools means all design tools developed and/or used by Tower in performing the Services, including 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, and navigational/functional elements.
2. Services Rendered
2.1 Services: Tower shall perform the services listed in the Agreement.
3. Agreement
3.1 Approval: This Agreement expires in fifteen (15) days from the date on the cover sheet, unless the last page of this Agreement is signed by Client. Beyond this date, if Client still wants to approve Agreement, Tower reserves the right to modify the Agreement and resubmit it to Client before final approval.
4. Compensation
4.1 Fees: Client agrees to pay Tower all fees listed in the Project Proposal, including any applicable taxes.
4.2 Expenses: Client will pay Tower’s pre-approved and substantiated direct expenses, including but not limited to: (a) Incidental and out-of-pocket expenses; (b) Mileage reimbursement, other than normal commuting, at the most recent mileage rate as determined by the Internal Revenue Service; (c) Travel expenses, other than normal commuting, but including airfare and rental vehicles, with prior client approval.
4.3 Additional Costs: Upon advance approval from Client, any third-party fees, such as subscriptions, plugins, apps, extensions, and licenses, will be billed to Client, unless otherwise noted.
4.4 Contingency: All costs presented in the Project Proposal are estimates only. Client should account for a not to exceed contingency of 15-20% of the project total to account for reasonably unforeseen substantiated costs, time, and fees incurred during the project.
5. Payment
5.1 Payment Schedule: All payments specified on Payment Schedule are shown as estimated payments only.
5.2 Invoices: All invoices are payable within forty-five (45) days of receipt, unless otherwise noted on invoice. Invoices shall list any additional expenses and costs (4.3) as separate items and be accompanied with reasonable substantiation as to any additional expenses and costs.
5.3 Payment Methods: Client has option to make payments by check or ACH.
5.4 Refunds: All payments made are non-refundable.
6. Late Payment
6.1 Late Fee: A monthly service fee equal to the lesser of 1.5 percent, or the maximum allowed by law, is payable on all overdue balances.
6.2 Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.
6.3 Withholding Delivery: Tower may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
6.4 Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all undisputed and substantiated outstanding Additional Costs, Expenses or, Fees.
7. Changes to Project Scope
7.1 Change Order: If Client changes the project scope after acceptance of this Agreement, Client shall send Tower a written notice describing the requested changes in detail. Tower will respond with a statement proposing Tower’s additional fees, changes to delivery dates, and team availability to make requested changes. Any scope change could cause budget overruns of any, or all, initiatives in this proposal.
7.2 Review: Project scope will be reviewed after every phase of the project. If any work becomes outside of the project scope, a Change Order will be issued for the client to approve before any further work will be performed. Any approved Change Orders will be billed in a final itemized supplemental invoice at the end of the project within forty-five (45) days of receipt.
8. Delays
8.1 Tower Delays: Tower shall use all commercially reasonable efforts to meet or exceed all milestones on the Timeline. Tower may extend the due date for any Deliverable by giving no less than ten (10) days prior notice to Client. Tower will be responsible for covering any additional Tower expense or budget overrun incurred by Tower delays. For Deliverables not directly affected by a Tower delay, Tower will be responsible for completing these Deliverables by the original agreed milestone date(s).
8.2 Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals to any / all client milestones on the project timeline, all only as such information and material due dates are expressly set forth in the project timeline. Any material delay by Client will automatically result in an extension of affected milestone date(s) for Tower’s Deliverables equal to the duration of the Client’s material delay, which may require all timelines to be redone at the Client’s expense, be placed at the back of Tower’s client production cycle, and incur a reinitiation fee of up to 10% of the total project cost. Any delay(s) could cause budget overruns of any, or all, initiatives in the applicable Internet Marketing Plan.
8.3 General Delays: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a reasonable timeline extension. Each party shall notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism, epidemics, or delays caused by third party vendors. Any material delay(s) could cause budget overruns of any, or all, initiatives in this Agreement.
8.4 Project Pause: Tower may pause all work if communication with client goes dormant for more than thirty (30) days beyond any client milestone. Restarting a project after that period will require all timelines to be redone at the Client’s expense, placement at the back of Tower’s client production cycle, and incursion of a reinitiation fee of five percent (5%) of the total project cost.
9. Evaluation and Acceptance
9.1 Testing: Tower will proof (and test, if applicable) Deliverables using commercially reasonable efforts and industry best-practice standards before providing them to Client.
9.2 Approval Periods: If Client fails to provide approval or comments during any approval period, those Deliverables will be deemed approved and accepted in whole. All objections, corrections, and changes shall be subject to the further terms of this Agreement as a Delay(s) as stated above (8.2. 8.3, and 8.4).
9.3 Instances: The definition of an instance is a client-initiated action that a Tower Specialist performs in one (1) concurrent period of time. Once this instance is completed by the Tower Specialist, that instance is deemed to be complete. Any further alterations requested by client would be considered a new instance, and would count against any remaining instances included as part of this proposal. If no other instances remain, this would be an additional cost that the client is responsible for paying.
9.4 Accuracy: Client shall be wholly responsible for the accuracy, completeness and propriety of information concerning their products and services, which is furnished to us verbally or in writing in connection with the performance of this Agreement.
10. Communications
10.1 Emails: By agreeing to this Agreement, you accept that we can send you periodic emails for such things as billing, Tower-specific updates and promotional events, and new services that we feel are timely and would benefit you as the Client.
11. Client Responsibilities
11.1 Content: Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Tower, unless otherwise specified in the Project Proposal; (b) Proofread all Deliverables. Client will be charged $150/hour for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.
11.2 Access: Client may not install, or give permission to a third party to install, any plugin into the website on Tower’s server without giving Tower prior knowledge of this installation.
12. Accreditation and Promotion
12.1 Promotion: Upon the advance written approval of Client prior to any promotion, Tower retains the right to reproduce, publish and display the Deliverables in Tower’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
12.2 Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other marketing materials, and, if not expressly objected to, include a link to the other party’s website.
13. Internet Marketing
13.1 Term: Nine (9) months effective upon the date hereof, unless otherwise noted.
13.2 Inception: Term begins upon signing of this agreement, or upon the first day of the design phase if a website design, or redesign, is included as part of this project.
13.3 Renewal: The transfer of any accompanying plug-ins, subscriptions, files, documentation, tools, or assistance in the transfer to a new provider is not included.
13.4 Commitment: Hours spent each month on Client work will fluctuate over or under the allotted monthly amount based on the client’s needs, but will average out to no less than the allotted monthly amount at each term’s end.
13.5 Pay-Per-Click (PPC): Monthly bids to be paid directly by client to third-party vendor.
16. Confidential Information
16.1 Disclosure: Client’s “Confidential Information” includes information that Tower should reasonably believe to be confidential. Tower’s “Confidential Information” includes the source code of any Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.
16.2 Access: Except in the event of default or breach of this Agreement or any Internet Marketing Plan by Tower during the term of this Agreement, the Client shall not grant any third-party access to any Tool, FTP, Google Analytics, or SEO/social media channels associated with this Agreement, without prior approval by Tower Marketing of this access. Doing so, may negatively impact the performance of the work being done, in addition, may void any projections, warranties, and guarantees. In the event of default or breach of this Agreement or any Internet Marketing Plan, Client may engage certain third-parties to confirm and/or correct performance.
16.3 Solicitation: Throughout the duration of this Agreement and for a period of twenty-four (24) months thereafter, the Client shall not directly or indirectly solicit, induce, or attempt to induce any current employee of Tower Marketing with an offer of employment unless Tower Marketing has expressed permission in writing prior to that offer taking place.
17. Relationship of the Parties
17.1 Independent Contractor: Tower is an independent contractor. Tower shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Tower and the work product or Deliverables prepared by Tower shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
17.2 No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Tower, and Tower shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Tower.
18. Representations and Warranties
18.1 By Client: Client represents and warrants to Tower that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Tower to use Third Party Materials.
18.2 By Tower: Tower represents and warranty to Client that: (a) Tower will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Tower shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Tools, sufficient for Tower to grant the intellectual property rights provided in this Agreement; (c) To the best of Tower’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Tower shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, TOWER MAKES NO WARRANTIES WHATSOEVER. TOWER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
19. Indemnification and Liability
19.1 By Client: Client shall indemnify Tower from proven direct damages, liabilities, costs, losses, expenses or commercially reasonable attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Tower shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
19.2 By Tower: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Tower may at its own expense, replace any infringing content with non-infringing content.
19.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF TOWER MARKETING ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF TOWER MARKETING, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES (“TOWER MARKETING PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO ONE HUNDRED PERCENT OF THE TOTAL AGREEMENT AND ANY SCOPE OF WORK EXCEPT AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TOWER MARKETING. IN NO EVENT SHALL TOWER MARKETING BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY TOWER MARKETING, EVEN IF TOWER MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
19.4 No Guarantee: Due to a variety of factors unique to each Client’s industry that are out of Tower’s control, as well as the overall unpredictable nature of marketing in general, Tower in no way represents, warrants, or guarantees that any measurable or immeasurable results or return on investment will occur from any of the services that are provided.
20. Term and Termination
20.1 Term: This agreement shall begin when Client signs and shall continue until the Agreement is terminated.
20.2 Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
20.3 Termination by Mutual Agreement: This Agreement may be terminated by the mutual agreement of both parties.
20.4 Termination Fees: In the event of mutually-agreed termination, Client shall pay Tower for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination. In the event Client has paid invoices for undelivered or uncompleted deliverable(s) by the end of the term, Tower shall refund such payments within forty-five (45) days of demand therefore.
20.5 Intellectual Property: If Client terminates and on full payment of compensation, Tower grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
20.6 Confidential Information: On 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) all rights and obligations regarding Confidential Information shall survive.
20.7 Termination by Client for Cause: Upon seven (7) days notice, Client may terminate this Agreement and/or any Scope of Work without liability or expense in the event Tower breaches any obligation(s) thereunder or fails to fulfill any mutually agreed milestone(s).
21. Rights to Final Art
21.1 License: Tower grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.
21.2 Liquidation for unlicensed use: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees. Tower shall be entitled to a fairly negotiated fee increase as agreed in writing by both parties. In the event of non-payment, Tower shall be entitled to pursue all remedies under law and equity.
22. Rights to Deliverables Other Than Final Art
22.1 Client Content: Client Content: Client Content is the exclusive property of the Client. Upon the advance approval of Client prior to any use, reproduction, modification, display or publication of Client Content, Client grants Tower a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Tower’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
22.2 Preliminary Works: Tower retains all rights in, and to, all Preliminary Works, including all sketches, layered source files, variations, comps, developer versions, meeting notes, and Tools. At its request, Tower may request that Client return any/all Preliminary Works to Tower within thirty (30) days of completion of the Services.
22.3 Tools: All Tools are, and shall remain, the exclusive property of Tower. Tower grants Client a non-exclusive, non-transferable, perpetual, worldwide license to use the Tools solely to the extent necessary with the Final Deliverables for the Project.
23. Dispute Resolution
23.1 Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
23.2 Arbitration / Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
23.3 Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Pennsylvania. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
23.4 Attorney Fees: The prevailing party shall be entitled to recover its commercially reasonable attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
24. General
24.1 Modification / Waiver: Modifications to this Agreement must be in writing and signed by both parties. 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.
24.2 Notices: All notices under this Agreement shall be given in writing either by Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email, on confirmation of receipt.
24.3 No Assignment: Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
24.4 Governing Law. This Agreement shall be governed by the law of Pennsylvania.
24.5 Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
24.6 Headings: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.
24.7 Complete Agreement: This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.