The following agreement is made by and between:
4011 Idaho St., #3
San Diego, CA 92104
PHONE (619) 692-9439
FAX (619) 692-4443
A. BWD, a division of RosArt Multimedia Inc. (a California Corporation), is in the business of providing services related to multimedia content design and production.
B. Client desires to engage BWD as an independent contractor to provide certain services related to the design and production of a web site and/or print materials (the "Product") for Client as described in this Agreement (the "Project"). NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
BWD will provide consulting, design, and programming services to implement the specifications for the Project set forth on the BWD web site package description page.
Exhibit B to this Agreement sets forth a Delivery Schedule for the Project and the party that shall be responsible for meeting the respective delivery dates.
All dates in this Agreement are subject to adjustment if Client fails to deliver the Initial Content (as defined in Section 5.2 below) on time or does not respond to required approvals or provide materials or meet its requirements as set forth herein. Time is of the essence in this Agreement. In the event Client fails to meet any delivery date or to provide any approval, any delivery date for the Project shall be extended by the same number of days Client was late.
BWD shall be paid prior to the Project start as set forth in this section. In addition, Client shall pay BWD (as defined in Section 4.4 below) a change order deposit, and BWD shall submit invoices to Client prior to the start of production for any additional products or services not outlined in the standard BWD packages on the BWD web site package description page.
4.1 Taxes. Client shall pay any sales, use, or other transfer taxes that may be specifically applicable to the services provided under this Agreement, including any tax that may be assessed after completion of the project.
4.2 Hourly Rate. BWD standard hourly rate of $90 per hour (the "Hourly Rate") for each hour worked by BWD employees in providing the services as compensation.
4.3 Changes in Hourly Rate. BWD may increase the Hourly Rate from time to time during the term of this Agreement, by giving Client not less than 30 days notice of such increase.
4.4 Change Order Deposit. Client shall pay BWD a change order deposit equal to 100% of the estimated additional product or services as determined by the BWD Project Manager.
4.5 Final Billing. BWD will submit invoices to Client showing the fee payable for the additional products or services provided. The Change Order Deposit shall be credited against the amounts due on the final billing.
4.6 Terms. Client shall pay all invoices within 10 days after the date the invoice is mailed. Client shall pay interest charges at 1.5% per month compounded monthly for any invoice not paid as agreed. Client shall pay a fee of $35 for each returned check.
4.7 Modifications. If Client desires to modify the nature or scope of the Services as set forth in the standard BWD packages on the BWD web site package description page. With the prior written approval of the BWD Project Manager BWD shall put current work in progress on hold and Client shall submit to BWD a written description of the additional services. Such additional services shall include, but shall not be limited to, changes in the extent of work, changes in the complexity of any elements of the Project, and any changes made after approval has been given for a specific stage of design, documentation, or preparation of work. Within ten business days after receipt of any Change Notice, BWD shall submit to Client a change order proposal (the "Change Order") which includes an estimate of any additional charges, including, estimated changes in the Standard BWD package price, Reimbursable expenses, and Delivery Schedule. Upon written approval by Client and receipt of the Change order Deposit, the Change Order shall become a part of this Agreement.
In addition to the obligations imposed elsewhere in this Agreement, Client shall have the specific obligations set forth in this section.
5.1 Client Representative. Client appoints the person named on BWD order form to this Agreement as its representative with full authority to provide any necessary information and approvals that may be required by BWD in connection with the Project (the "Client Representative"). The Client Representative shall be the primary communication contact for BWD with respect to the Project. If, after Client Representative has approved a design, Client or any other authorized person requires changes (as defined in Section 4 above) that require additional product or services from BWD, Client shall pay all fees and expenses arising from such changes (as defined in Section 4 above) as additional services, prior to the start of production of such changes.
5.2 Initial Content. Client shall provide the text, documents, pictures, and other materials to BWD in connection with the Project within 30 days of the date of the initial order.
5.2.1 Client shall from time to time during and as may be required for the Project provide such other materials as and on such schedule as BWD and Client mutually determine.
5.2.2 Client shall provide accurate and complete information and materials to BWD and shall be responsible for the accuracy and completeness of all information and materials so provided.5.2.3 All copy provided by Client shall be in digital format. All photographs, illustrations, audio, video, or other materials provided by Client shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. Client shall pay all fees and expenses arising in connection with materials Client provides that do not meet these standards prior to the start of production.
5.2.4 BWD shall take reasonable precautions to safeguard original documents, photographs and other materials provided by Client. BWD shall, however, not be liable for any damage to, or loss of any material provided by Client, including artwork, photographs, digital files, or manuscripts, other than or on account of the intentional misconduct or gross negligence of BWD.
5.2.5 All trademarks, service marks, copyrights, and other pre-existing proprietary materials shall remain the property of their respective owners
5.3 Pre-Publish Approvals. BWD shall submit proofs to Client Representative of all postproduction content. Client Representative shall proofread and approve or request revisions to all proofs within 10 business days after submission by BWD. The signature of Client's Representative shall be conclusive as to the approval by Client of all postproduction content and other items prior to their release for Publishing.
5.4 Subcontractors. BWD may, with Client's prior approval, engage the services of subcontractors in connection with the project. Subcontractors may include, but are not limited to photographers, illustrators, writers, audio/video specialists, and animators. Subcontract services shall be the subject of a Change Order as set forth in Section 4.7 of this Agreement. Client grants BWD the authority to give instructions to and provide approvals to subcontractors on behalf of Client in respect of any content or services to any content that will become a part of the Work Product. All instructions or approvals to subcontractors may only be made through BWD. Client shall be bound by all reasonable instructions given by BWD within the scope of this Agreement. Client agrees to be bound by any terms and conditions, including required credits, with respect to reproduction of such material as may be imposed on BWD by such third parties.
The rights to the Initial Content, Work Product and other components of the Project shall be determined by this section.
6.1 Initial Content. Client shall retain ownership and all rights, including trademark, patent, copyright and other rights incidental to the Initial Content. Client grants BWD the non-exclusive, royalty free, worldwide license to use the Initial Content in connection with the development of the Work Product. BWD shall not, other than as contemplated by this Agreement, use, disclose or transfer the Initial Content to any person or entity without the prior written permission of Client.
6.2 Work Product. BWD shall retain author rights to all HTML files, Java files, graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all documentation and any other deliverable prepared for Client by BWD in accordance with the terms of this Agreement (the "Work Product") excluding pre-existing trademark, patent, copyright and other proprietary works delivered by Client to BWD. BWD grants to Client the rights in the Work Product set forth in this section.
6.2.1 Upon payment in full of the charges due BWD as a result of Change Orders, other charges due BWD under this Agreement and Reimbursable Expenses, BWD grants Client an unlimited, exclusive license to use the Work Product as Client deems necessary or prudent.
6.2.2 The Client understands that some areas of the web site will necessarily be dependent on the existence of certain server-side applications (such as database software), and the particular configuration of the web server. While a change in hosting is possible, it is not supported. In such an event, however, RosArt will provide all necessary site files and databases, but it is the sole responsibility of the Client to obtain the necessary server-side software and ensure that the new hosting server is properly configured.
6.2.3 All preliminary concepts, drawings, artwork, specifications, and other visual presentation materials remain the property of BWD. Client shall be entitled to temporary possession of such materials for the purpose of approval after which all materials shall be returned, unaltered, to BWD.
6.2.4 BWD shall retain the Initial Content until the completion of the Project. At such time, any non-digital Initial Content shall be returned by U.S. Mail, to Client While the Initial Content is in BWD possession, Client shall have reasonable access to all such materials for the purpose of review.
6.2.5 BWD shall have the right to photograph or create digital copies of the Completed project and shall have the right to use such photographs and digital copies for publication, exhibition, or other BWD / RosArt Multimedia, Inc. promotional purposes.
7.1 BWD Representations and Warranties.
7.1.1 BWD warrants that it has the right to convey the code, private personal access instructions, and other items to Client at the time and all rights thereto are transferred. BWD further warrants that to the best of its knowledge there is no "malicious code" within the Project's programming.
7.2 Client Representations and Warranties.
7.2.1 Client warrants that it has full power and authority to enter into this Agreement and that it is binding upon Client and enforceable in accordance with its terms.
7.2.2 Client warrants that all materials supplied to BWD by Client, and by others at Client's request are owned by Client or that Client has all necessary rights in such materials to permit BWD to use them for the Project.
BWD shall have the right to place its business name, trademark, and logo, including transfer links to its own Web site in a mutually agreed position, size and page or pages within the Project so long as such placement does not interfere with or conceal any of the content and components of the Project. Client agrees that BWD may advertise or give public notice of its design of the Project.
In event of a material breach by either party of any of the provisions contained in this Agreement, the other party shall have the right to terminate this Agreement at its option upon 3 days' written notice to the other party by Certified U.S. Mail, return receipt requested. Upon termination of this Agreement by Client or by BWD for cause, BWD may retain any initial payment and Client shall pay RosArt for all hours expended on the Project, up to the date of termination, at the Hourly Rate together with all other amounts due hereunder. Any initial payment that has been received shall be credited against any such amounts due. All indemnities shall continue even after any such termination.
10.1 Both parties acknowledge that during the course of this Agreement, each may obtain confidential information and trade secrets regarding the other party's business.
10.2 Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Except as otherwise provided in Section 7 of this Agreement, upon request by the party who is the owner, all documents containing the confidential information will be returned to such party.
10.3 Neither party shall have any obligation to maintain as confidential any information that is generally known within the industry or in the public domain prior to the date of this Agreement.
11.1 Client shall indemnify, defend, and hold BWD harmless from and against any claim, suit, damages and expense, including attorneys' fees, arising from or out of any claim by any person or entity that its rights have been or are being violated or infringed upon with respect to the Initial Content or other materials provided by Client to BWD in connection with the Project.
11.2 Construction. This Agreement shall not be construed against BWD merely because of BWD involvement in its preparation.
12.1 Notices. Unless otherwise specifically permitted by this Agreement, all notices or other communications required or permitted under this Agreement shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, (i) if personally delivered, upon the date of delivery to the address of the person to receive such notice, (ii) if mailed in accordance with the provisions of this paragraph, two (2) business days after the date placed in the United States mail, (iii) if mailed other than in accordance with the provisions of this paragraph or mailed from outside the United States, upon the date of delivery to the address of the person to receive such notice, or (iv) Notices shall be given at the addresses set forth above, on Page 1 of the Agreement
12.2 Complete Agreement; Modifications. This Agreement, including all exhibits, and written agreements, if any, entered into concurrently herewith (i) constitute the parties' entire agreement, including all terms, conditions, definitions, warranties, representations, and covenants, with respect to the subject matter hereof, (ii) merge all prior discussions and negotiations between or among any or all of them as to the subject matter hereof, and (iii) supersede and replace all terms, conditions, definitions, warranties, representations, covenants, agreements, promises and understandings, whether oral or written, with respect to the subject matter hereof. This Agreement may not be amended, altered or modified except by a writing signed by the party to be bound. With regard to such amendments, alterations, or modifications, faxed signatures shall be effective as original signatures. Any amendment, alteration, or modification requiring the signature of more than one party may be signed in counterparts.
12.3 Further Actions. Each party agrees to perform any further acts and execute and deliver any further documents reasonably necessary to carry out the provisions of this Agreement.
12.4 Assignment. Neither party may assign its rights under this Agreement without the written consent of the other.
12.5 Successors and Assigns. Except as explicitly provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
12.6 Severability. If any portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law if enforcement would not frustrate the overall intent of the parties (as such intent is manifested by all provisions of the Agreement, including such invalid, void, or otherwise unenforceable portion).
12.7 Extension Not a Waiver. No delay or omission in the exercise of any power, remedy, or right herein provided or otherwise available to any party shall impair or affect the right of such party thereafter to exercise the same. Any extension of time or other indulgence granted to a party hereunder shall not otherwise alter or affect any power, remedy or right of any other party, or the obligations of the party to whom such extension or indulgence is granted except as specifically waived.
12.8 No Third Party Beneficiaries. This Agreement and each and every provision hereof is for the exclusive benefit of the parties hereto and not for the benefit of any third party.
12.9 Headings. The headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, or extend or interpret the scope of this Agreement or of any particular provision hereof.
12.10 References. A reference to a particular section of this Agreement shall be deemed to include references to all subordinate sections, if any.
12.11 Counterparts. This Agreement may be signed in multiple counterparts with the same force and effect as if all original signatures appeared on one copy; and in the event this Agreement is signed in counterparts, each counterpart shall be deemed an original and all of the counterparts shall be deemed to be one agreement.
12.12 Attorneys' Fees. Should any litigation (including any proceedings in a bankruptcy court) or arbitration be commenced between the parties hereto or their representatives concerning any provision of this Agreement or the rights and duties of any person or entity hereunder, the party or parties prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to the attorneys' fees and court or arbitration costs incurred by reason of such litigation or arbitration, including attorneys' and experts' fees incurred in preparation for or investigation of any matter relating to such litigation or arbitration.
12.13 Applicable Law. This Agreement shall be construed in accordance with, and governed by the laws of the State of California.
Any dispute or controversy between the parties arising out of this Agreement including disputes as to the validity and enforceability of this Agreement (each dispute or controversy being referred to as a "Dispute"), shall be handled exclusively by mediation and/or arbitration as provided in this paragraph. A Dispute shall be handled pursuant to the provisions of this paragraph whether it arises during the Term of this Agreement or thereafter.
13.1 Mediation. In the event a Dispute is not voluntarily resolved by the parties on their own, upon the demand of either party, the matter may be submitted to mediation in San Diego, California. Should the parties then both voluntarily agree to proceed with such mediation, each party shall bear its own costs in connection with such mediation and shall bear on-half of the costs incurred with the mediator in connection therewith. Mediation in accordance with the provisions of this paragraph shall be a condition precedent to a demand to arbitrate in accordance with the following paragraph.
13.2 Arbitration. Any Dispute which is not resolved pursuant to mediation shall, upon the demand of either party, be determined and settled by arbitration in San Diego, California, under the California arbitration statutes contained at CCP Sec. 1280 et seq.; provided however, the arbitrator shall follow the same rules of substantive law and the rules as to the application of such law to the facts as a California Trial Court Judge hearing the same matter would be bound to follow. The parties further agree that:
(a) Attorney Fees. The arbitrator shall include attorney fees and costs in the award to the prevailing party.
(b) Discovery. The parties shall be entitled to reasonable and necessary discovery, in accordance with the provisions of California Code of Civil Procedure Section 1283.05;
(c) Findings and Conclusions. The award shall include findings of fact and conclusions of law showing the legal and factual basis for the arbitrator's decision; and
(d) Errors of Law. The award may be entered by any court of competent jurisdiction but in connection with entry by the court shall be subject to review by such court with respect to errors of law (but not with respect to errors of fact). In the event such court shall find that there was a material error of law in the arbitration award, the court in the exercise of its discretion shall correct the award and enter it or return it to the arbitrator for reconsideration in accordance with the determinations of the court.
Except for the payment of money, neither party will be liable for any failure or delay in performance under this Agreement which might be due, in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party, including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood or other weather, unavailability of necessary utilities or raw materials, strike, lockout, unavailability of components, activities of a combination of workmen or other labor difficulties, war, insurrection, riot, act of God or the public enemy, law, act, order, export control regulation, proclamation, decree, regulation, ordinance, or instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement). In the event of the happening of such a cause, the party whose performance is so affected will give prompt, written notice to the other party, stating the period of time the same is expected to continue.
IN WITNESS WHEREOF, the parties having executed this Agreement in San Diego County, in the City of San Diego, as of the date set forth above.
The Delivery Schedule for the BWD Packages is shown on the chart below:
| Description | Responsibility | Days |
| 1. Order Placement | Client | 0 |
|---|---|---|
| 2. Client supplies initial content such as current marketing collateral, etc. | Client | 30 |
| 3. BWD develops design for client approval | BWD | 20 |
| 4. Client signs-off on initial design with or without changes | Client | 10 |
| 5. BWD develops final design for client approval based on any changes that Client makes in description | BWD | 10 |
| 6. Client signs-off on final design with or without changes | Client | 10 |
| 7. BWD produces final artwork, and programming based on any changes that Client makes in description | BWD | 10 |
| 8. Project is send for production | BWD | 5 |