1. Time for Payment
Payment is due at each milestone due date as noted in the Production Schedule. All invoices for Billable Expenses are payable within thirty (30) days of receipt. A 1.5% monthly service charge is payable on all overdue balances of milestone payments and Billable Expenses. RGI retains all rights to all intermediate deliverables submitted at each milestone. The grant of any license or right of copyright to the Client is conditioned on receipt of full payment by the Client of the Total amount and all Billable Expenses.
2. Default in Payment
The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
If this form is used for an estimate or assignment proposal, the fees and Billable Expenses shown are minimum expenses only. Final fees and Billable Expenses shall be shown when invoice is rendered. The Client's approval shall be obtained for any increases in fees or expenses that exceed the original estimate by ten percent (10%) or more.
4. Billable Expenses
The Client shall reimburse Rooster Graphics International (RGI) for all direct and indirect Billable Expenses arising from this assignment, regardless of whether the assignment is Cancelled or Terminated. Billable Expenses include but are not limited to costs of commissioning images or voice talent, software or run-time lisence costs, the payment of any sales tax due on this assignment, any travel, research, postage and delivery, photocopying, and storage media expenses. The markup charged by RGI for supervisory and handling time on all Billable expenses shall be fifteen (15) percent of the Billable Expenses incurred. The Client shall advance US$ to RGI upon the acceptance of the Site Design for payment of said Billable Expenses.
5. Client's Alterations
There shall be no charges to the Client for revisions or corrections or additions made necessary by errors on the part of RGI. Any other changes requested by the Client shall be considered Client's Alterations if they are requested after the acceptance of the Site Design. Any changes and additions not due to the fault of RGI and requested by the Client before the approval of one of the Site Designs are not considered Client's Alterations. The Client shall be responsible for making additional payments at the rate noted herein for any Client's Alterations and any other changes in original assignment requested by the Client. However, no additional payment shall be made for changes required to conform to the original assignment description. The Client shall offer RGI the first opportunity to make any changes.
6. Reuse beyond Time Limit
Reuse fees for using the website beyond the Time Limit noted are based on the degree of enhancements the Client contracts with RGI or any other developer, subject to Item 20, Alterations and Additions to the Website. Reuse beyond the Time Limit is subject to all stipulations of this Agreement. The reuse fee is expressed as a percentage of the Total fees agreed to herein. The reuse fee shall be calculated at the end of each year of authorized use, and shall be based on the enhancements to the website contracted by the Client during the previous twelve (12) months of use. The reuse fee shall be:
percent if the Client contracted enhancements up to US$ ;
percent if the Client contracted US$ to US$ of enhancements;
percent if the Client contracted US$ to US$ of enhancements;
percent if the Client contracted more than US$ of enhancements;
7. Internet Access
Unless otherwise set forth herein in Description of Assignment, access to Internet will be provided by a separate Internet Service Provider (ISP) to be contracted by the Client and who will not be a party to this agreement. The Client shall provide RGI with the user id and the password for their internet access account.
8. Developer's Guarantee for Program Use
RGI guarantees to notify the Client of any licensing and/or permission required for art-generating or electronic commerce or other proprietary programs to be used in the Client's website.
9. Warranty Period
RGI agrees to ensure the web site retains all its functionality and conforms to the specifications during the Warranty period of $ through
$ . RGI also agrees to provide at no cost to the Client reasonable technical support during the Warranty Period for the Client itself to maintain the site on the Internet, Intranet, or Extranet. Such maintenance and update may include correcting any remaining errors or any failure of the site to conform to the specifications, but support and assistance shall not be provided for the development of enhancements to the originally contracted project. Such assistance shall not exceed hours per calendar month.
After the expiration of the Warranty Period, RGI agrees to provide the Client with reasonable technical support and assistance for the Client to maintain and update the site on the Internet, Intranet, or Extranet for an annual fee of US$ for a period of years after the last day of the Warranty Period payable thirty (30) days prior to the commencement date of each year of the Maintenance Period. Such support and assistance shall not be provided for the development of enhancements to the originally contracted project. Site maintenance and updates performed by RGI shall be governed by separate Website Design and Maintenance Agreements between RGI and the Client.
11. Confidential Information
RGI acknowledges and agrees that the source materials and technical and marketing plans or other sensitive business information, as specified by the Client, including all materials containing such information, which are supplied by the Client to RGI or developed by RGI in the course of developing the site are to be considered confidential information. Information shall not be considered confidential if it is already publicly known through no act of RGI.
12. Return of Source Information
Upon the Client's acceptance of the Final Version, or upon the cancellation of the project, RGI shall provide the Client with all copies and originals of the source materials provided to RGI by the Client.
13. Ownership of Copyright
The Client acknowledges and agrees that RGI retains all rights to copyright in the subject material, except as noted here:
14. Ownership and Return of Artwork
RGI retains ownership of all original artwork, in any media, including digital files, whether preliminary or final. The Client waives the right to challenge the validity of RGI's ownership of the art subject to this agreement because of any change or evolution of the laws. The Client will return all artwork submitted to the Client by RGI within thirty (30) days of submission.
15. Progress Reports
RGI shall contact or meet with the Client on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the site. RGI shall inform the Client promptly by telephone or e-mail upon discovery of any event or problem that may delay the submission of any milesetone deliverables by more than
16. Testing and Acceptance Procedures
RGI will make every good faith effort to test the deliverables thoroughly and make all necessary corrections as a result of such testing prior to handing over the deliverables to the Client. Unless otherwise noted in Acceptance milestone dates of the Production Schedule, during the Review Period within calendar days of a Delivery, the Client shall either accept the deliverable and make the milestone payment set forth in the Production Schedule, or provide RGI with written notice of any corrections to be made and a suggested date for completion of the corrections which should be mutually acceptable to both RGI and the Client, or provide a written notice of assignment Termination if the work is found not to be reasonably satisfactory. The Client can Terminate the assignment only during this Review Period following the Delivery of a milestone deliverables. Any other termination of the Assignment shall be considered a Cancellation subject to the stipulations of Item 17. RGI shall designate (name) and the Client shall designate (name) as the only designated persons who will send and accept all deliverables and receive and make all communications between RGI and the Client. Neither party shall have any obligation to consider for approval or respond to materials submitted other than through the designated persons listed above. Each party has the right to change its designated person upon day(s) notice to the other.
The Client may declare the Cancellation of the assignment for reasons not related to assignment Termination defined in Item 16. In the event of Cancellation of this assignment by the Client, any milestone payments made prior to cancellation shall be retained by
RGI. In addition, if calcellation is prior to the delivery of the Site Design, a cancellation fee of fifteen percent (15%) of the balance of the Total payments shall be paid by the Client. If the cancellation is later but prior to the acceptance of the Site Design, a fee of thirty percent (30%) of the balance of the Total payments shall be paid by the Client. If the cancellation is later but prior to the delivery of the Beta Version, the above cancellation fee shall be fifty percent (50%) of the balance of Total payments. If the cancellation is after the delivery of the Beta Version, the cancellation fee shall be one hundred percent
(100%) of the balance of all remaining dues. Regardless of when the project is cancelled, all billable expenses already incurred by RGI or RGI is liable to pay for shall be paid by the Client in full. In the event of cancellation, RGI retains ownership of all copyrights and any original artwork.
18. Assignment Termination
In the event that work in process is found by the client not to be reasonably
satisfactory in accordance with the Testing and Acceptance Procedures in Item 16, , the client may pay a termination fee to terminate the assignment. Any milestone payments made prior to termination shall be retained by RGI. If assignment termination occurs prior to the acceptance of Site Design, the client shall pay a rejection fee of ten percent (10%) of the balance of Total payments. If termination occurs after the delivery of the Beta Version, the termination fee shall be twenty percent (20%) of the balance of Total payments. If termination occurs after the acceptance of the Beta Version, the termination fee shall be one hundred percent (100%) of the balance of Total payments. Regardless of when the assignment is terminated, all billable expenses already incurred by RGI or RGI is liable to pay for shall be paid by the Client in full. In the event of termination, RGI retains ownership of all copyrights and any original artwork created by RGI. However, the Client retains all rights already purchased by RGI on behalf of the Client from third parties.
19. Credit Lines
RGI shall be given credit on all floppy disks, tapes, documentation, packaging used to distribute copies of the site contents subject to this agreement. RGI shall also have the right to receive credit or copyright notice on any site document, program script, or artwork developed subject to this agreement. The size of all visible RGI credits or copyright notices on any given document shall not exceed 100 by 75 pixels, except on one document where it can be as large as 200 by 100 pixels.
20. Alterations and Additions to Website
If the Client wishes to modify or enhance the site, RGI shall be given first option to provide an offer to perform such modifications or enhancements. Any alteration of any original art (color shift, mirroring, flopping, combination cut and paste, deletion, etc.), of page designs, HTML scripts, and interactivity scripts, etc. by entities other than RGI are subject to the explicit permission of RGI. Unauthorized alterations or additions to the website or to any intermediary deliverables shall be billed to the Client as if RGI had rendered these alteration or addition services, and the Client is responsible to pay such invoices in full.
21. Copy Protection
The Client must protect all final art which is the subject of this agreement against duplication and alteration.
22. Other Operating Systems Conversions
RGI shall be given first option at compiling the website for operating or hardware or browsing systems beyond those stated herein in the Assignment Description.
23. Unothaurized Use and Program Licenses
The Client will indemnify RGI against all claims and expenses arising from uses for which the Client does not have rights to or authority to use. The Client will be responsible for payment of any special licensing or royalty fees resulting from the use of programs that require such payments.
24. Warranty of Originality
RGI warrants and represents that, to the best of its knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or ,if previously published, that consent to use has been obtained on an unlimited basis; that RGI has full authority to make this agreement; and that the work prepared by RGI does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of RGI's product which may infringe on the rights of others. CLIENT EXPRESSLY AGREES THAT IT WILL HOLD RGI HARMLESS FOR ALL LIABILITY CAUSED BY THE CLIENT's USE OF RGI's PRODUCT TO EXTENT SUCH USE INFRINGES ON THE RIGHTS OF OTHERS.
25. Limitation of Liability
Client agrees that it shall not hold RGI or its agents or employees liable for any incidental or consequential damages which arise from RGI's failure to perform any aspect of the Project in a timely manner, regardless of whether such failure was caused by intentional or negligent acts or omissions of RGI or a third party. Furthermore, RGI disclaims all implied warranties, including the warranty of merchantability and fitness for a particular use.
26. Modifications of the Agreement
Modifications of the Agreement must be written, except that the invoices may include, and the Client shall pay, fees or expenses that were orally authorized by the Client in order to progress promptly with the work.
27. Code of Fair Practice
The Client and RGI agree to comply with the provisions of the Code of Fair Practice, a copy of which may be obtained from the Joint Ethics Committee, P.O. Box 179, Grand Central Station, New York, New York, 10017, USA, or is available on the World Wide Web at http://www.RoosterGraphics.com/ADMIN/commission.html.
28. Dispute Resolution
Any disputes in excess of one thousand (1000) US dollars arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or a mutually agreed upon arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator's award shall be final, and judgement may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney's fees, and legal interest on any award of judgement in favor of RGI.
29. Acceptance of Terms
The signature of both parties shall evidence acceptance of these terms.