Yang kami jadikan sebagai model di sini adalah ‘WEB SITE DEVELOPMENT AND MAINTENANCE AGREEMENT’
This agreement entered into by and between_________(“Client”) and _________(“Developer) on the____________ (“Effective Date”)
WHEREAS, Developer has experience in developing and maintaining Web sites for third parties;
WHEREAS, Client wishes to have Developer create a Web site for Client and maintaining such Web site for Client, and Developer is interested in undertaking such work;
WHEREAS, Client shall employ a separate company to host its Web site;
NOW, THEREFORE, in consideration of the promises and mutual covenants and agreements set forth herein, Client and Developer agree as follows:
- Beta version means a working version of the Web Site recorded in executable form on the specific medium with any necessary supporting software and data, which has been fully tested by Developer prior to delivery and which Developer believes in good faith to be bug free and to fully implement all functions called for in the Specifications.
- Client content means the material provided by Client to be incorporated into the Web Site, as listed on Schedule “C”
- Development Schedule shall be as set forth in Schedule “B” to this Agreement which list the deliverable items contracted for (“Deliverables”) and the deadlines for their delivery. Payment Schedule shall be as also set forth in Schedule “B”.
- Developer Tools means the software tools of general application, whether owned or licensed to Developer, which are used to develop the Web Site.
- Documentation means the documentation for the software developed by Developer specifically for the Web Site and other material which implement the Web Site. Source materials are part of the Documentation.
- Enhancements, means any improvements to the Web Site to implement new features or add new material. Enhancements shall include modifications to the Web Site Content to make the Web Site operate on a Server System of a new ISP.
- Error means any failure of the Web Site (i) to meet the Specifications and/or (ii) to operate with the Server System.
- Final version means a non-copy protected and unencrypted disk master of the final version of the Web Site, recorded in executable form on the specified medium with any necessary supporting software and data, as to which all development work hereunder, and corrections to the Beta Version, have been completed and which meets the Specifications.
- ISP means an Internet Service Provider which maintains the Web Site on the World Wide Web portion of the Internet.
- Specifications for the Web Site shall be as set forth in Schedule “A” to this Agreement.
- Source Materials means (i) all documentation, notes, development aids and other materials provided to Developer by Client for use in developing the Web Site, and (ii) the source code, documentation, notes and other materials, which are produced or created by Developer during the development of the Web Site, in such internally documented form as is actually used by Developer for development and maintenance of the Web Site.
- Server System means the hardware and the software system owned or licensed by the ISP.
- Web Site Content shall mean (i) the graphic user interface, text, images, music and other material of the Web Site developed by Developer under this Agreement which is visible to browser and World Wide Web and (ii) software (including cgi script and perl script) developed by developer to implement the Web Site. Web Site Content shall not include Developer Tools.
- Web Site means the site to be developed for Client on the graphic portion of the Internet known as the World Wide Web which is described in the Specifications.
DEVELOPMENT AND DELIVERY OF THE DELIVERABLES
- Development; Progress Reports. Developer shall use its best efforts to develop each Deliverables in accordance with the Specifications. Developer shall first prepare a design for the Web Site. This design shall include drawings of the user interface, a schematic of of how to navigate the Web Site, a list of hyperlinks and other components. All development work will be performed by Developer or its employees at Developer’s offices or by approved independent contractors who have executed confidentiality and assignment agreements which are acceptable to Client. Developer agrees that no development work shall be performed by independent contractors without the express written approval of Client. Each week following execution of this agreement during which any development and/or testing hereunder remains uncompleted, and whenever else Client shall reasonably request, Developer shall contact, or meet with Client representative, and report all tasks completed and problems encountered relating to development and testing of the Web Site. During such discussion or meeting, developer shall advise Client in detail of any recommended changes with respect to remaining phases of development in view of Developer’s experience with the completed development. In addition, Developer shall contact Client’s representative promptly by telephone upon discovery of any event or problem that will that will materially delay development work, and thereafter, if requested, promptly confirm such report in writing.
- Delivery. Developer shall deliver all Deliverables for the Web Site within the time specified in the Development Schedule and in accordance with the Specifications.
- Manner of delivery. Developer agrees to comply with all reasonable request of Client as to the manner of delivery of all Deliverables, which may include delivery by electronic means.
- Delivery of source materials. Upon request by Client, but in no event later than the delivery of the Final Version, Developer shall deliver to Client all Source Materials.
TESTING AND ACCEPTANCE; EFFECTOF REJECTION
- Testing and Acceptance Procedure. All Deliverables shall be thoroughly tested by Developer and all necessary corrections as a result of such testing shall be made, prior to delivery to Client. Upon receipt of a Deliverable, Client shall have a period of___days within which to test the item (the “Acceptance Period”) and to notify Developer in writing its acceptance or rejection based on its test result with respect thereto. If Client has not given notice of rejection within the Acceptance Period, the Deliverable will be deemed to be accepted. No delivery of Deliverable shall be considered complete unless and until Client has received all Documentation necessary to support the use and modification of the Deliverable. If Client accepts the Deliverable, the milestone payment for that Deliverable (set forth in Schedule “B”) is then due.
- Correction. If Client requests that Developer correct errors in the Deliverable, Developer shall within___days of such notice, or such longer period as Client may allow, submit at no additional charge a revised Deliverable in which such Errors have been corrected. Upon receipt of the corrected Deliverable, Client shall have additional___days to test the Deliverable and either (i) accept it (making the milestone payment set out in Schedule “B; or (2) request that Developer make further corrections to the Deliverable to meet the Specifications and repeat the correction and review procedure set forth in paragraph 2. In the event Client determines, in its sole discretion, that the Deliverable continue to include Errors after three attempts at correction by Developer, Client may terminate this Agreement.
OTHER OBLIGATIONS OF DEVELOPER
- Web Site Warranty. Developer represents and warrants that the Web Site (1) will be of high quality and free of defects in material and workmanship in all material respects; and (2) will conform in all respects to the functional and and other descriptions contained in the Specifications. For a period of one year after the date of acceptance of the Final Version by Client, Developer agrees to fix at its own expense any Errors. EXCEPT AS STATED IN SECTION 8 PARA 1, DEVELOPER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHATABILITY, NON-INFRINGMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.
- Web Site Support. Developer also agrees to provide Client with support services stated in schedule “D” to maintain and update the Web Site on the World Wide Web during the warranty period at no cost to Client. Such assistance shall no exceed ___hours per calendar month.
- Maintenance period. After the expiration of the Warranty Period, Developer agrees to provide Client with the services stated in Schedule “D” at Client’s option, for___years after the last day of the Warranty Period for an annual fee of___. Such maintenance shall include correcting any Errors or any failure of the Web Site to conform with the Specifications. Maintenance shall not include the development of Enhancements at the time of the notice.
- Enhancements. During the Maintenance Period, if Client wishes to modify the Web Site, it may request that Developer provide a bid to provide such Enhancements. Developer shall provide Client a first priority on its resources to create the Enhancements over any other third party with the exception obligations under contracts with third parties existing on the date of the notice. Such services shall be provided on a time and materials basis at the most favored price under which Developer provides such services to third parties.
- Client’ Ownership Rights. Developer acknowledges and agrees that except as stated in Section 5 para. 3, the Web Site Content and Documentation, including but not limited to images, graphic user interface, source and object code, and any documentation and notes associated with the Web Site are and shall be the property of Client. Title to all intellectual property rights including but not limited to copyrights, trademarks, patents and trade secrets in the Web Site Content and Documentation is with, and shall remain with the client.
- Assignment of Rights. Except as provided in Section 5 para. 3, Developer hereby irrevocably assigns, conveys and otherwise transfers to Client, and its its respective successors and assigns, all rights, title and interests worldwide in and to the Web Site Content and Documentation and all copyrights, trade secrets, patents, trademarks and other intellectual property rights and all contract and licensing rights, and all claim and causes of actions of any kind with respect to any of the foregoing, whether now known or hereafter to become known. In the event developer has any rights in and to the Web Site Content or Documentation that cannot be assigned to Client, Developer hereby unconditionally and irrevocably waives the enforcement of such rights and all claims and causes of action of any kind with respect to of any of the foregoing against Client, its distributors and customers, whether now known or hereafter to become known and agrees , at the request and expense of Client and its respective successors and assigns, to consent and join in any action to enforce such rights and to procure a waiver of such rights from the holder of such rights. In the event Developer has any right in and to the Web Site Content or Documentation that cannot assigned to Client and cannot be waived, Developer hereby grants to Client, and its respective successors and assigns, an exclusive, worldwide, royal-free license during the term of the rights to produce, distribute, modify, publicly perform and publicly display, with the right to sublicense through multiple tiers of sublicensees and assign such rights in and to the Web Site Content and the Documentation including, without limitation, the right to use in any way whatsoever the Web Site Content and Documentation. Developer retains no right to use Web Site Content and Documentation except as stated in Section 5 para. 3 and agrees not to challenge the validity of the copyright ownership of the Client in the Web Site Content and Documentation.
- Ownership Components. Developer will retain copyright ownership of the following material:___(Retained Components). However Developer grants to Client a royalty free, worldwide, perpetual, irrevocable, nonexclusive license, with the right to sublicense through multiple tiers of sublicensees, to use, reproduce, distribute, modify, publicly perform, and publicly display the Retained Component on the Web Site or any Web site operated by or for Client and related marketing material.
- Power of Attorney. Developer agrees to execute, when requested, patent, copyright, or similar applications and assignments to Client, and any other lawful document deemed necessary by Client to carry out the purpose of this Agreement. Developer further agrees that the obligations and undertaking stated in this Section 5 para 4 will continue beyond the termination of this Agreement. In the event that Client is unable for any reason whatsoever to secure Developer’s signature to any lawful and necessary document required to apply for or execute any patent, copyright or other applications with respect to the Web Site Content and Documentation (including improvements, renewals, extensions, continuations, divisions or continuations in part thereof), Developer hereby irrevocably designates and appoints Client and its duly authorized officers and agents as his agents and attorneys-in-fact to act for and in his behalf and instead of Developer, to execute and file any such application and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright or other rights thereon with the same legal force and effect as if executed by Developer.
- License to Web Site Content and Client Content. Client grants to Developer a nonexclusive, worldwide license to reproduce and modify Client Content and the Web Site Content to develop and maintain the Web Site.
- Internet access, Client shall be responsible for obtaining access to the Internet through an ISP. Developer shall not be responsible for such access and shall not be considered any party to the agreement between ISP and Client. Although the Web Site will be hosted by the ISP, the ISP will not be a party to this Agreement. nor will it be a third party beneficiary of this Agreement.
- Licenses to Third Party Content.___shall be responsible for obtaining and paying for any necessary licenses to use third-party content other than other than third-party content listed on Schedule “C” as Client Content. Client shall be responsible for obtaining and paying for any necessary licenses to use third-party content listed on Schedule “C”.
- Licenses to Developer Tools. Developer shall be responsible for obtaining licenses and paying license fees for any Developer Tools used in this project that are not owned by Developer.
- Licenses to use other software.___shall be responsible for obtaining a license to use___software and for paying license fees for such software.
- Clients Domain Name. Clients Domain Name,___, shall remain the sole property of Client. Developer acknowledges that Developer has no right to use Client’s domain name other than in connection with Web Site Development and maintenance project covered in this Agreement.
- Payment Schedule. The fees set forth in Schedule “B” shall be paid as provided in such Schedule.
- Maintenance Fee. If Client chooses to have Developer perform maintenance and support service during the Maintenance Period, the annual fee stated in Section 4 para. 3 shall be due thirty (30) days prior to the commencement date of each year of the Maintenance Period.
- Taxes. Developer shall be responsible for the payment of all sales, use and similar taxes.
- Expenses. Except as expressly stated in this Agreement or in a later writing signed by Client, Developer shall bear expenses arising from the performance of its obligations under this Agreement.
- Confidential Information. The terms of this Agreement, the Source Materials and technical and marketing plans or other sensitive business information, including all materials containing said information, which are supplied by Client to Developer or developed by Developer in the course of developing the Web Site are the confidential information of Client.
- Restriction on use. Developer agrees that except as authorized in writing by Client: (i) Developer will preserve and protect the confidentiality of all Confidential Information; (ii) Developer will not disclose to any third party, the existence, source, content or substance of the Confidential Information or make copies of Confidential Information; (III) Developer will not deliver Confidential Information to any third party, or permit the Confidential Information to be removed from Developer’s premises; (iv) Developer will not use Confidential Information in any way other than to develop the Web Site as provided in this Agreement; (v) Developer will not disclose, use or copy any third party information or materials received in confidence by Developer for purposes of work performed under this Agreement; and (vi) Developer shall require that each of its employees who work or have access to the Confidential Information sign a suitable confidentiality and assignment agreement and be advised of the confidentiality and other applicable provisions of this Agreement.
- Limitations. Information shall not be considered to be Confidential Information if Developer can demonstrate that it (i) is already or otherwise become publicly known through no act of Developer; (ii) is lawfully received from third parties subject to no restriction of confidentiality; (iii) can be shown by Developer to have been independently developed by it without use of the Confidential Information; or (iv) is authorized in writing by Client to be disclosed, copied or used.
- Return of Source Material. Upon Client’s acceptance of the Final Version, or upon Client’s earlier request, Developer shall provide Client with all Copies and originals of the Web Site Content, Client Content and Source Materials, as well as any other materials provided to Developer, or created by Developer under this Agreement. Not later than seven (7) days after the termination of this Agreement for any reason, or if sooner requested by Client, Developer will return to Client all originals and copies of the Confidential Information, Web Site Content, Client Content and Source Materials, as well as any other materials provided to Developer, or created by Developer under this Agreement, except that Developer may retain one copy of the Web Site Content and Source Materials, which will remain the Confidential Information of Client, for the sole purpose of assisting Developer in maintaining the Web Site. Developer shall return said copy to client promptly upon request by Client.
WARRANTIES COVENANTS AND INDEMNIFICATION
- Warranties and Covenants of Developer. Developer represents, warrants and covenants to Client the following:
(a) Developer has the full power to enter into this Agreement and perform the services provided for herein, and that such ability is not limited or restricted by any agreements or understandings between Developer and other persons or companies.
(b) Any information or materials developed for, or any advice provided to Client shall not rely or in any way be based upon confidential or proprietary information or trade secrets obtained or derived by Developer from sources other than Client unless Developer has received specific authorization in writing to use such proprietary information or trade secrets.
(c) Except to the extent based on Client Content used as licensed to Developer in Section 5 para. 5 and on licenses obtained by Client pursuant to Section 5 para. 7 and 5 para. 9, the use, public display, public performance, reproduction, distribution, or modification of the Web Site Content and Documentation does not and will not violate the rights of any third parties, including, but not limited to, copyrights, trade secrets, trademarks, publicity, privacy, and patents. The use of Developer tools in the Web Site Content and Documentation does not and will not violate the right of any parties, including but not limited to copyrights, trade secrets, trademarks, publicity, privacy and patents.
(d) Its performance of this Agreement will not conflict with any other contract to which Developer is bound, and while developing the Web Site, Developer will not engage in any such consulting services or enter into agreement in conflict with this Agreement.
(e) The Web Site Content and the Documentation was created solely by Developer, Developer’s full-time employees during the course of their employment, or independent contractors who assigned all right, title and interest worldwide in their work to Contractor.
(f) Developer is the owner of all right, title and interest in the tangible forms of the Web Site Content and Documentation and all intellectual property rights protecting them. The Web Site Content and Documentation and the intellectual property rights protecting them are free and clear of all encumbrances, including, without limitation, security interests, licenses, liens, charges or other restrictions.
(g) Developer has maintained the Source Material in confidence.
(h) The Web Site Content and the Documentation is not in the public
2. Developer’s Indemnity. Developer agrees to defend, indemnify and hold harmless Client and its directors, officers, its employees, sublicensees, and agents from and against all claims, defense costs (including reasonable attorneys’ fees), judgements and other expenses arising out of or on account of such claims, including without limitation claims of:
(a) alleged infringement or violation of any trademark, copyright, trade secret, right of publicity or privacy (including but not limited to defamation), patent or other proprietary right with respect to the Web Site Content or Documentation unless based on the use of the Client Content or on licenses obtained by Client pursuant to sections 5 para.7 and 5 para. 9;
(b) any use of confidential or proprietary information or trade secrets Developer has obtained from sources other than Client;
(c) any negligent act, omission, or willful misconduct of Developer in the performance of this Agreement; and
(d) the breach of any covenant or warranty set forth in Section 8 para. 1 above.
3. Obligations Relating to Indemnity. Developer’s obligation to indemnify requires that Client notify Developer promptly of any claim as to which indemnification will be sought and provide Developer reasonable cooperation in the defense and settlement thereof.
4. Client Indemnification. Client agrees to defend, indemnify, and hold harmless Developer and its directors, officers, its employees, agents from and against all claims, defense costs (including reasonable attorneys fees), judgements and other expenses arising out of the breach of the following covenants and warranties:
(a) Client possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder.
(b) The performance of the terms of this Agreement and of Client’s obligations hereunder shall not breach any separate agreement by which Client is bound.
(c) The use, public display, public performance, reproduction, distribution, or modification of Client Content in accordance with the license granted to Developer in Section 5 para 5 doe not and will not violate the right of any third parties including, but not limited to copyrights, trade secrets, trademarks, publicity, privacy, and patents. The use of third-party licensed material obtained by Client pursuant to Section 5 para. 5 and 5 para, 9, if within the scope of the license, does not violate the rights of any third parties, including, but not limited to copyrights, trade secrets, trademarks, publicity, privacy and patents. The use of third-party licensed material obtained by client pursuant to Section 5 para 7 and 5 para 9 if within the scope of the license , does not violate the rights of ant third parties, including but not limited to, copyrights, trade secrets, trademarks, publicity, privacy, defamation, and patents.
5. Obligations relating to Indemnity. Client’s obligation to indemnity requires that Developer notify Client promptly of any claims as to which indemnification will be sought and provide Client reasonable cooperation in the defense and settlement thereof.
1. Termination for Non-Performance or Delay. In the event of termination of this Agreement by Client pursuant to Section 3 para. 2 hereof, Client will have no further obligations or liabilities under this Agreement. Client will have the right in addition to all of its other rights, to require Developer to deliver to Client all of Developer’s work in progress, including all originals and copies thereof, as well as any other materials provided to Developer by Client or third parties, or created by Developer under this Agreement. Developer my keep any milestone payments which have been paid or are due under Schedule “B”. and such payments shall be deemed in full for all obligations of Client under this Agreement, including full payment for all source code, object code, documentation, notes, graphics and all other materials and work relating to the portion of the Web Site and the assignment or licenses of rights relating to the Web Site which has been completed as of the time of termination.
2. Termination for Convenience. Client shall have the right at any time to terminate this Agreement fifteen (15) days notice by giving written notice of termination to Developer. Developer shall immediately cease all work on the Web Site. In the event of such termination, Client’s entire financial obligation to Developer shall be for then accrued payments due under the Development Schedule, plus the prorated portion of the next payment, if any, due with respect to items being worked on but not yet delivered at the time of termination. The pro-rata payment shall be calculated by determining what percentage of the total work required for the next milestone has been completed by the date of Developer’s receipt of the termination notice.
3. Automatic Termination. This Agreement will be terminated automatically, without notice, (i) upon the institution by or against Developer of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of Developer’s debts; (ii) upon Developer making an assignment for the benefit of creditors, or (iii) upon Developer’s dissolution.
GOVERNING LAW AND DISPUTE RESOLUTION
1. Arbitration. The Parties agree to submit any dispute arising out or in connection with this Agreement to binding arbitration in___before Badan Arbitrase Nasional Indonesia pursuant to the provisions of this Section 10 para. 1, and, to the extent not inconsistent with this Section 10 para. 1, the rules of Badan Arbitrase Nasional Indonesia. The parties agree that such arbitration will be in lieu of either party’s right to assert any claim, demand or suit in any court action, (provided that either party may elect either binding arbitration or a court action with respect to obtain injunctive relief to terminate the violation by the other party of such party’s proprietary rights, including without limitation any trade secrets, copyrights or trademarks). Any arbitration shall be final and binding and the arbitrator’s order will be enforceable in any court of competent jurisdiction.
2. Governing Law; Venue. The validity, construction, and performance of this Agreement shall be governed by the laws of the Republic of Indonesia and all claims and/or lawsuits in connection with agreement must be brought in___
1. Notices. For purposes of all notices and other communications required or permitted to be given hereunder, the addresses of the parties hereto shall be as indicated below. All notices shall be in writing and shall be deemed to have been duly given if sent by facsimile, or sent by first class registered or certified mail or equivalent, return receipt requested, addressed to the parties at their addresses set forth below:
If to Developer:
If to Client:
2. Designated Person. The parties agree that all materials exchanged between the parties for formal approval shall be communicated between single designated person, or a single alternate designated person for each party. Neither party shall have any obligation to consider for approval or respond to materials submitted other than through the Designated Persons. Each party shall have the right to change its Designated Person from time to time and to so notify the other in writing of such change. The initial Designated Person for Client is ___ and for Developer is ___
3. Entire Agreement. This Agreement, including the attached Schedules which are incorporated herein by reference as though fully set out, contains the entire understanding and agreement of the parties with respect to the subject matter contained herein, supersedes all prior oral or written understandings and agreements relating thereto except as expressly otherwise provided, and may not be altered, modified or waived in whole or in part, except in writing, signed by duly authorized representatives of the parties.
4. Force Majeure. Neither party shall be held responsible for damages caused by any delay or default due to any contingency beyond its control preventing or interfering with performance hereunder.
5. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provision shall remain in full force and effect as if said provision never existed.
6. Assignment. This Agreement is personal to Developer. Developer may not sell, transfer, sublicense, hypothecate or assign its rights and duties under this Agreement without the written consent of Client. No rights of Developer hereunder shall devolve by operation of law or otherwise upon any receiver, liquidator, trustee, or other party. This Agreement shall inure to the benefit of Client, its successors and assigns.
7. Waiver and Amendments. No waiver, amendment, or modification of any provision of this Agreement shall effective unless consented to by both parties in writing. No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
8. Agency. The parties are separate and independent legal entities. Developer is performing services for Client as an independent contractor. Nothing contained in this Agreement shall be deemed to constitute either Developer or Client an agent, representative, partner, joint venture or employee of the other party for any purpose. Neither party has the authority to bind the other or to incur any liability on behalf of the other, nor to direct the employees of the other. Developer is an independent contractor, not an employee of Client. No employment relationship is created by this Agreement. Developer shall retain independent professional status throughout this Agreement and shall use his/her own discretion in performing the tasks assigned.
9. Limitation on Liability; Remedies. Except as provided In Section 8 above with respect to third party indemnification, neither party shall be liable to the other party for any incidental, consequential , special, or punitive damages of any kind or nature, including, without limitation, the breach of this Agreement, or any termination of this Agreement, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability), or otherwise, even if either party has warned or been warned of the possibility of any such loss or damage.
IN WITNESS WHWREOF, this Agreement is executed as of the Effective Date set forth above.
By _________________ By ________________
Name _______________ Name ______________
Its __________________ Its _________________
Title ________________ Title _______________
DEVELOPMENT AND PAYMENT SCHEDULE
Contract Signing: …………. Payment Due: …………..
Due Payment Acceptance
Date Due Upon by Client
Delivery of Web Site Design
Delivery of Beta Version
Delivery of Final
Bonus. Client agrees to pay Developer a bonus of $…………… which shall be payable to Developer in the event Developer delivers a Final Version of the Web Site which is acceptable to client prior to___
MAINTENANCE AND SUPPORT SERVICES