Agreement for Building and Maintenance of a Website Agreement for Building and Maintenance of a Website
Date_______________________________________________________________________and________________________________________________________________________
1. Services to be provided:
Service Provider agrees to build, maintain and enhance a site (Site) on the Internet about ((EXACT_SITE_ NAME)) (Topic) for the “Company”. Service Provider agrees to abide by the Rules and Regulations (Rules) that will be periodically updated and made available in the online “Guide Lounge.” Service Provider agrees to place a link on Service Provider’s existing Web site, if Service Provider has one, to the Site.
2. Fees: The “Company” will compensate Service Provider based on the schedule in Attachment A.
3. Termination: The term of this Agreement (Term) will begin on the date above and will end when terminated by either party based on the following: (i) Service Provider gives to the “Company” fifteen (15) days prior written notice, (ii) the “Company” gives Service Provider fifteen (15) days prior written notice, or (iii) either Service Provider or the “Company” terminates this Agreement immediately following a major breach of this Agreement by either of the parties.
4. Intellectual Property: The “Company” owns all rights to any and all Intellectual Property related to the Site, including but not limited to the name and URL of the Site, any trademarks related to the Site, and the graphical look and feel of the Site, other than the Guide Content and the Personal Content (defined on Schedule I) Service Provider shall own all rights in and to the Guide Content and the Personal Content.
5. License: In consideration of the Fees payable to Service Provider under this Agreement, Service Provider grants to the “Company” an exclusive, perpetual, worldwide license to use the Guide Content on the Site, the Internet and on any commercial on-line service or similar service (On-Line Media). In addition, Service Provider grants to the “Company” a non-exclusive, perpetual, worldwide license to use the Guide Content in any media, whether now or hereafter known, other than On-Line Media. If the “Company” uses the Guide Content anywhere other than the Site, the “Company” agrees to pay Service Provider FIFTY percent (50%) of net revenues directly resulting from such uses. Service Provider is permitted to use the Guide Content (subject to written approval from the “Company”, {not to be unreasonably withheld) in any media other than On-Line Media, and if Service Provider does, Service Provider agrees to pay the “Company” FIFTY percent (50%) of revenues generated by such uses.
6. Non-Compete: During the Term and for ninety (90) days following the termination of this Agreement, Service Provider will not, without the written approval of the “Company”, directly or indirectly on behalf of Service Provider’s self or for anyone else, own, operate, work for or contribute significantly to any Web site or other topical area on the Topic on the Internet, commercial online service or similar service. Service Provider may continue to operate Service Provider’s existing Web site on theInternet if Service Provider has one, so long as Service Provider (1) maintains the site independently and does not affiliate the site with any on-line service, site syndicator, advertising rep firm, site network or co-op or any other Internet aggregator or consolidator for the term of the contract and for 90 days following the termination of this agreement and (2) prominently link from Service Provider’s website back to Service Provider’s “Company” Site. In addition, for six (6) months following the termination of this Agreement, Service Provider will not solicit or accept, directly or indirectly, any advertising or advertising revenues from any advertiser who advertised on the Site during the Term.
7. 7. Other Provisions:
8. By signing this Agreement, Service Provider agrees to the “Company” Standard Terms and Conditions that follow.
STANDARD TERMS AND CONDITIONS
1. Intellectual Property:
Under this Agreement, Intellectual Property means any and all content and materials, including but not limited to, software (including modifications, upgrades or new versions), designs, icons, menus, trademarks, text, graphics, photographs, illustrations, audio, video and data, and all rights to such content and materials, including copyrights, patents and associated rights.
Any and all content and features developed or conceived by Service Provider or Service Provider’s sub-hires, employees or helpers during the Term as well as the other results and proceeds of services under this Agreement (collectively, the Work) will be “works made for hire” and will be the exclusive property of the “Company”. Service Provider waives any claims to “moral rights”
Service Provider might have in connection with the Work. If any Work is determined to not be a “work made for hire”, Service Provider, by entering into this Agreement, assign to the “Company” all right, title and interest in such Work in perpetuity in all media currently in existence or invented in the future. The Work does not include Guide Content or Personal Content (defined on Schedule I).
2. Representations and Warranties:
Service Provider represents and warrants to the “Company” the following:
(i) The Work will be original and created by persons employed or supervised by Service Provider. Neither the Work nor the Guide Content nor the Personal Content will violate the copyright, patent, trademark rights, or any other rights such as rights of privacy or publicity, of any person or entity. Neither Service Provider nor anyone working for or with Service Provider has granted any rights to the Work, the Guide Content or the Personal Content to any other person or entity.
(ii) Service Provider has the right to enter into and fully perform all terms of this Agreement. Service Provider is not and during the Term will not be in any way prohibited or restricted from operating the Site.
(iii) Service Provider has read and complied with the Rules and agree to read and comply with the Rules at all times throughout the Term since the Rules will be updated periodically.
(iv) The Site, including but not limited to, Chat rooms, Bulletin Boards, and Personal Web pages, does not and will not contain, publish or display any libelous, defamatory, obscene or illegal content or material.
3. Confidentiality:
Service Provider acknowledges that Service Provider will have access to proprietary information, materials and data of the “Company”. Service Provider agrees not to use or disclose proprietary information and to use Service Provider’s best efforts to ensure that all those to whom Service Provider gives access to proprietary information does not use or disclose any of this information except to carry out Service Provider’s duties and responsibilities under this Agreement.
4. Termination:
If the “Company” terminates this Agreement by giving Service Provider 15 days prior written notice, the “Company” will have the option to pay Service Provider compensation for that fifteen day period equal to the fees payable to Service Provider for the immediately preceding fifteen day period and, by making that payment terminate this agreement immediately. Notice of termination may be communicated by e-mail to the representative designated by each of the parties. Upon termination Service Provider will be required to: Return all hardware; return all software tools; return miscellaneous materials and cease using any service provider or other accounts provided by the “Company”.
5. Independent Contractor:
Service Provider is an Independent Contractor. All persons working for or with Service Provider in performing Service Provider’s obligations to the “Company” under this Agreement will not be employees or contractors of the “Company” or have any relationship with the “Company”. Service Provider will be solely responsible for all Service Provider’s sub-hires, employees, helpers and for all obligations to them and will indemnify the “Company” against any and all claims or liabilities resulting from such obligations and for all costs, omissions or conduct of such persons. Service Provider is responsible for whatever payments will be due to Service Provider’s employees or contractors and agrees to comply with all governmental obligations applicable to the performance of Service Provider’s obligation under this Agreement.
6. Names and Likeness:
Service Provider agrees that the “Company” has the right to use Service Provider’s name and likeness on and in connection with the “Company’s service and the Site, and advertising and publicity for the service and the Site.
7. Indemnification:
Service Provider agrees to indemnify and hold the “Company” harmless from and against any claims and damages (including reasonable attorneys’ fees) resulting from a breach or claimed breach by Service Provider of any of Service Provider’s representations, warranties or agreements contained in this Agreement.
8. Works for Hire Agreement:
Service Provider agrees to have all persons employed or supervised by ServiceProvider providing services to the “Company” sign a copy of the attached the “Company” “standard work for hire” agreement. Copies of all signed agreements must be forwarded to the “Company”.
9. No Assignment:
Service Provider will not assign this Agreement or its rights or obligations under this Agreement without prior written permission of the “Company”. Any sale of a controlling interest in Service Provider shall be deemed an assignment. Any assignment in violation of this provision shall be null and void. The “Company” retains the right to assign this Agreement in its discretion as necessary in the normal course and conduct of its business.
10. Entire Agreement:
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all prior agreements or understandings among the parties with respect to its subject matter, but the parties understand and agree that the Rules will also govern Service Provider’s provision of services to the “Company”.
11. No Waiver:
The failure of the “Company” to enforce any term or condition of this Agreement will not be deemed a waiver of any terms or conditions of this Agreement.
12. Survival:
The provisions of the paragraphs of this Agreement entitled Licence, Noncompeting, Representations and Warranties, Confidentiality and Indemnification shall survive any termination of this Agreement.
13. Governing Law:
This Agreement will be governed by the laws of India. The parties agree and consent to exclusive jurisdiction and venue in the District Court and High Court located in the City of Kolkata and the Supreme Court of India. For any proceedings arising out of this Agreement.
14. Agreement – Enforceability:
The offer contained in this Agreement is made only on the terms and conditions set forth in this Agreement. By signing this Agreement, Service Provider agrees to its terms and conditions as originally electronically transmitted to Service Provider, and no modification of this Agreement by Service Provider which is not specifically agreed to in writing by the “Company” will be binding on the “Company” or have any force or effect. IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day month and the year first above written.
Signed, sealed and delivered
By the parties in the presence of
Witnesses
1.
2.
SCHEDULE-I
Service Provider shall own all rights to the following Intellectual Property related to the Site:
(1) All content and materials created by Service Provider and used on the “M Current” and “Newsletter” areas of the Site (Guide Content); and
(2) All content and materials created by Service Provider and used on Service Provider’s existing Web Site, if Service Provider have one (Personal Content).
ATTACHMENT A – GUIDE COMPENSATION
1. Basic compensation: As compensation for Service Provider’s services to the “Company”, Service Provider will be paid Rs___________ per month through [date] which shall be a guarantee against, and shall be recoupable out of, any revenues payable to Service Provider.
2. Advertising Revenues: Service Provider will be eligible to share in an advertising revenue pool equal to 30% of the “Company’s advertising sales revenues. Service Provider share of the advertising revenue pool will be calculated based on the number of page views recorded on the Site as compared with the number of page views for all sites of the “Company”.
3. Advertising Bonus Pool: Service Provider will be eligible to share in a bonus pool equal to 10% of the “Company’s advertising sales revenues. Service Provider share of this bonus pool will be determined by the “Company” in its discretion.
All revenue amounts will be based on net advertising revenues of the “Company” from applicable advertising sources. Any advertising revenues payable to Service Provider will be paid monthly within 30 days after the end of the month in which the revenues were received by the “Company”. Any portion of the bonus pool payable to Service Provider will be paid semi-annually within 30 days after the end of the six-month period in which the revenues were received by the “Company”. Service Provider will receive a monthly (or semi-annual, in the case of the bonus pool) statement setting forth the amount then payable to Service Provider, as adjusted for returns and changes in reserves. No statement will be issued for any month in which no payment is due to Service Provider.
As used in this Attachment A, “net advertising revenues” means gross ad revenues actually received by the “Company” less (i) commissions to advertisers, third party sales agents, and advertising agencies, (ii) fees paid for traffic based on ad revenue, (iii) reasonable reserves for returns, make goods or other adjustments, and (iv) other sales expenses based on a share of ad revenue.
4. Transaction Revenues: Service Provider will be eligible to share in a transaction revenue pool equal to 30% of the “Company’s net transaction sales revenues. Service Provider share of the transaction revenue pool will be calculated based on the number of pageviews recorded on the Site as compared with the number of page views for all sites of the “Company”, or if possible, based on actual transactions originating from Service Provider’s site.
5. Transaction Bonus Pool: Service Provider will be eligible to share in a bonus pool equal to 10% of the “Company’s transaction sales revenues. Service Provider share of this bonus pool will be determined by the “Company” in its discretion.
All revenue amounts will be based on net transaction revenues of the “Company” from applicable transactions. Any share of transaction revenues payable to Service Provider will be paid monthly within 30 days after the end of the month in which the revenues were received by the “Company”. Any portion of the bonus pool payable to Service Provider will be paid semi-annually within 30 days after the end of the six-month period in which the revenues were received by the “Company”. Service Provider will receive a monthly (or semi-annual, in the case of the bonus pool) statement setting forth the amount then payable to Service Provider, as adjusted for returns and changes in reserves. No statement will be issued for any month in which no payment is due to Service Provider.
As used in this Attachment A, “net transaction revenues” means gross transaction revenues actually received by the “Company” less (i) commissions to third party sales agents (ii) fees paid for traffic based on transaction revenue, (iii) reasonable reserves for returns, make goods or other adjustments, (iv) cost of goods sold if the “Company” is fulfilling such sales, and (v) other sales expenses based on a share of transaction revenue.
An annual certified report detailing the “Company’s revenues upon which allocated revenue and bonus pool shares are based will be available on-line in the [“guide lounge”]. In addition, upon reasonable prior written notice to the Chief Financial Officer of the “Company”, Service Provider, when accompanied by a qualified Chartered Accountant and after Service Provider and Service Provider’s Accountant have signed an appropriate confidentiality agreement, may examine the books and records directly related to Service Provider’s compensation during regular business hours on [Date] of each year.
