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Terms of Service

This Website Development & Maintenance Agreement (the “Agreement“), is effective upon the date you first access or use the Services (the “Effective Date“), and continues until you or Skout terminates it. The Agreement is by and between Skout Media, a Nebraska limited liability company (“Developer“), and the entity or sole proprietor who has engaged our services for website development and/or maintenance (Customer“).

WHEREAS, Customer wishes to procure from Developer the website design, development, and hosting services described herein, and Developer wishes to provide such services to Customer, each on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Definitions.

“Action” has the meaning set forth in Section 11.1.

“Agreement” has the meaning set forth in the preamble.

“Allegedly Infringing Materials” has the meaning set forth in Section 11.4.

“Approved Third-Party Materials” has the meaning set forth in Section 3.4.

“Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that either party considers confidential or proprietary, including trade secrets, technology, information pertaining to business operations, strategies, customers, pricing and marketing, and the terms and existence of this Agreement. Confidential Information does not include information that Developer can demonstrate by written or other documentary records: (w) was already known to Developer without restriction on use or disclosure prior to receipt of such information from or on behalf of Customer; (x) was or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, Developer or any of its Representatives; (y) was received by Developer from a third party who was not, at the time, under any obligation to Customer or any other Person to maintain the confidentiality of such information; or (z) was or is independently developed by Developer without reference to or use of any of Customer’s Confidential Information.

“Content” means any audio, visual, and audiovisual content, including illustrations, graphics, photographic images, music, sound effects, lyrics, narration, text, film, video, animation, characters, and interface layouts and designs, whether or not the same qualify for or are protected by any Intellectual Property Rights.

“Customer” has the meaning set forth in the preamble.

“Customer Indemnitee” has the meaning set forth in Section 11.1.

“Customer Materials” means, collectively, all Content and all other information in any form or media, including but not limited to documents, data, know-how, ideas, specifications, software code, and other materials provided to Developer by or on behalf of Customer hereunder, whether or not the same: (a) are owned by Customer, a third party, or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights. Customer Materials does not include materials to which the Developer has independent rights, materials jointly developed by the parties, or materials in the public domain.

“Deliverables” means, as the context dictates, the Design Deliverables, the Development Deliverables or, collectively, the Design Deliverables and Development Deliverables.

“Design Deliverables” means all documents, work product, and other materials that Developer is required to deliver to Customer hereunder in connection with the Design Services that are specifically designated under the heading “Design Deliverables” in the Scope of Work.

“Design Services” means the website design services described in the Scope of Work.

“Developer” has the meaning set forth in the preamble.

“Developer Personnel” means all employees of Developer and any Permitted Subcontractors involved in the performance of Services hereunder.

“Development Deliverables” means each separately deliverable portion of the Website and the final Website as a whole, each together with the Documentation therefor, and all other work product and other materials that Developer is required to deliver to Customer hereunder in connection with the Development Services that are specifically designated under the heading “Development Deliverables” in the Scope of Work.

“Development Services” means the website development services described in the Scope of Work.

“Documentation” means all manuals, instructions, specifications, and other documents and materials, in any medium, that describe the functionality, components, features, or requirements of the Website, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Effective Date” has the meaning set forth in the preamble.

“Fees” has the meaning set forth in Section 6.1.

“Force Majeure Event” has the meaning set forth in Section 14.1.

“Hosting Services” means the Website hosting services described in the Scope of Work.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Non-Acceptance Notice” has the meaning set forth in Section 4.3(b)(i).

“Permitted Subcontractor” has the meaning set forth in Section 3.3.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Phase” means each distinct phase of Services specifically identified as such in the Scope of Work, at the completion of which Developer shall deliver Deliverable(s) to Customer as set forth in Section 4.1.

“Pre-Existing Materials” means all Content and any other information in any form or media, including documents, data, know-how, ideas, specifications, and software code, in which Developer owns all Intellectual Property Rights developed or otherwise acquired by Developer prior to the Effective Date, including, but not limited to, those identified as pre-existing materials in the Scope of Work, those developed in the course of providing services that are generally applicable to Developer’s business, and any additional materials that existed prior to the Effective Date and not included in the schedule.

“Reimbursable Expenses” has the meaning set forth in Section 6.2.

“Representatives” means either party’s employees, officers, directors, Permitted Subcontractors, affiliates, independent contractors, service providers, legal advisors, and financial advisors.

“Scope of Work” means the Scope of Work attached as Schedule A to this Agreement.

“Services” means, collectively, the Design Services, the Development Services, the Hosting Services, and all other services Developer is required to provide hereunder as described in the Scope of Work.

“Site Specification” means the specification document setting forth the design, content, features, functionality, technical, and other specifications for the Website, based on Developer’s professional judgment and Customer’s communicated preferences.

“Term” has the meaning set forth in Section 9.1.

“Testing Period” has the meaning set forth in Section 4.3(a).

“Third-Party Materials” means Content and any other materials in any form or media, including but not limited to documents, data, know-how, ideas, specifications, and software code, in which any Person other than Customer or Developer owns any Intellectual Property Right.

“Website” means the website to be designed, developed, and hosted by Developer hereunder.

“Work Product” means the Website and all Deliverables, Documentation, Specifications, and other documents, work product, and materials related thereto, that developer is required to or otherwise does create or provide to Customer or its designee in connection with the Services hereunder.

  1. Engagement of Developer; Project Management; Changes.
    • Engagement of Developer. Customer hereby engages Developer, and Developer accepts such engagement, to provide the Services, as described more fully in the Scope of Work, in accordance with this Agreement.
    • Project Management. Each party shall, throughout the Term, maintain within its organization a project manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services hereunder. Each project manager is responsible for providing all day-to-day consents and approvals. Each party shall ensure its project manager has the requisite organizational authority, and necessary skill, experience, and qualifications, to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same project manager in place throughout the Term. If either party’s project manager ceases to be employed by such party or such party otherwise wishes to replace its project manager, such party shall promptly name a new project manager by written notice to the other party.
    • Changes. Either party may, at any time during the Term, request in writing changes to the Scope of Work and/or Site Specification. The parties shall evaluate and, if agreed, implement all such changes as promptly as commercially possible and, in any case, within thirty (30) days. Any changes are subject to commensurate fee increases and schedule extensions within Developer’s sole discretion. The Developer has sole discretion to determine whether any requested change(s) to an existing project are so extensive as to constitute a new project subject to renegotiation of pricing, schedules, and other terms. No changes will be effective unless and until memorialized in a written change order signed by both parties.
  2. Developer Obligations.
    • Services and Deliverables. Developer shall perform the Services to design, develop, and host the Website that fully conforms to the Site Specification, and provide all Deliverables to Customer on a timely basis in accordance with the Scope of Work and Milestone Schedule. Without limiting the foregoing:
      • All Design Deliverables shall be subject to Customer’s review and approval as set forth in Section 2; and
      • All Development Deliverables and the Website shall be subject to the testing and acceptance procedures set forth in Section 3 and Section 4.4.
      • All Documentation shall:
        • include such information as is reasonably necessary to enable Customer’s personnel to install, operate, use, and maintain and update the Website.
        • be provided in both hard copy and electronic form, in such formats and media as are set forth in the Scope of Work.
      • Developer Personnel Confidentiality and Proprietary Rights Agreements. Prior to any Developer Personnel performing Services hereunder, Developer shall require such Developer Personnel to execute written agreements in form and substance acceptable to Customer that bind such Developer Personnel to confidentiality provisions that are at least as protective of Customer’s information as those contained in this Agreement and Intellectual Property ownership provisions that grant Customer ownership rights in the Work Product consistent with the provisions of Section 1. Upon Customer’s request, Developer shall provide Customer with a copy of the executed original of each such agreement;
      • Subcontractors. Developer may, without the prior written consent of Customer, engage any Person that is not an employee of Developer to perform Services or provide Deliverables hereunder. Engagement of any such Person (each engaged Person, a “Permitted Subcontractor“) shall not relieve Developer of its obligations under the Agreement, and Developer shall:
        • be responsible and liable for the acts and omissions of each Permitted Subcontractor (including its employees) to the same extent as if such acts or omissions were by Developer or its employees;
        • prior to the commencement of Services by any Permitted Subcontractor, enter into a written agreement in form and substance acceptable to Customer with such Permitted Subcontractor that binds such Permitted Subcontractor to confidentiality provisions that are at least as protective of Customer’s information as those contained in this Agreement and Intellectual Property ownership provisions that grant Customer ownership rights in the Work Product consistent with the provisions of Section 1, and upon Customer’s request provide Customer with a copy of the executed original of such agreement; and
        • be responsible for all fees and expenses payable to any Permitted Subcontractor, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
      • Third-Party Materials.  Developer shall not include in the Website, and operation of the Website in accordance with the Site Specification and Documentation shall not require the use of, any Third-Party Materials, other than Third-Party Materials expressly approved by Customer and described in the Scope of Work and licensed to Customer in accordance with Section 3 (“Approved Third-Party Materials“).
      • Reasonable Efforts. Developer shall use reasonable efforts to meet any performance dates specified in the Scope of Work, and any such dates shall be estimates only.
  1. Delivery, Testing, and Acceptance.
    • Delivery. Upon completion of the Services under each Phase, Developer shall deliver or otherwise make available to Customer the Deliverable(s) for such Phase in accordance with the delivery criteria set forth on Schedule B. Developer shall deliver:
      • all software, if any, for which it is not providing source code; and
      • each Development Deliverable with complete Documentation therefor.

No Development Deliverable shall be deemed to have been delivered unless and until the Developer has provided all of the foregoing.

  • Design Deliverable Review and Approval.
    • All Design Deliverables will be subject to the review and approval by Customer. Customer may only reject Design Deliverables if such deliverers substantially deviate from the Scope of Work and Site Specification. In the event that Customer does not approve Design Deliverables, Developer shall have the opportunity to cure non-conformities for compensation of services rendered in the curing process. Customer may terminate the Project only for material non-conformities. Upon Customer’s approval of the Design Deliverables, the Scope of Work and Site Specification shall be automatically updated to reflect and incorporate by reference the approved Design Deliverables.
    • The Design Services will be considered complete when Customer has approved in writing all Design Deliverables required under the Scope of Work. If Developer fails to complete the Design Services on a timely basis in accordance with the Milestone Schedule, such failure will be deemed a material breach of this Agreement that is incapable of cure, for which Customer will have the right to terminate this Agreement in accordance with Section 2(a). The foregoing is in addition to, and not in lieu of, all other remedies that may be available.
  • Development Deliverable Testing and Acceptance. Upon Customer’s receipt of each Development Deliverable:
    • Customer will have thirty (30) days (“Testing Period“) to inspect and test such Development Deliverable to ensure that it conforms to the Site Specification and Documentation therefor.
    • If Customer determines any Development Deliverable does not conform to the Site Specification or Documentation:
      • Customer shall notify Developer in writing of such non-conformity(ies) (“Non-Acceptance Notice“).
      • Subject to the provision set forth in Section 4.3 (c), following receipt of a Non-Acceptance Notice, Developer shall conduct an independent verification of the non-conformities, remedy all independently verified non-conformities and re-deliver the Development Deliverable in accordance with the applicable requirements set forth in Schedule B as promptly as commercially possible and, in any case, within thirty (30) days.
    • The parties shall repeat the process set forth in Section 3(a) and Section 4.3(b) until the Deliverable has been accepted as set forth in Section 4.3(d), provided, however, if Developer: (x) fails to re-deliver any Development Deliverable within the time period specified in Section 4.3(b)(ii) or (y) fails more than once to remedy a non-conformity, Customer will have the right, at Customer’s option, to:
      • treat such failure as a material breach that is incapable of cure and terminate this Agreement in accordance with Section 2(a) ; or
      • accept the Development Deliverable as non-conforming, in which case the fees will be reduced equitably to reflect the value of the Development Deliverable as received relative to the value of the Development Deliverable had it conformed to the Site Specification and Documentation.
    • Promptly upon completing acceptance testing, if Customer has determined that the Development Deliverable(s) conform to the Site Specification and Documentation therefor, Customer shall give Developer written notice of its acceptance of the Development Deliverable(s). Each Development Deliverable will in any case be deemed accepted by Customer upon the expiration of any Testing Period if Customer has not delivered a Non-Acceptance Notice prior thereto. Acceptance of any Development Deliverable will be subject to Integration Testing as set forth in Section 4.
  • Integration Testing. Notwithstanding Customer’s acceptance of any Deliverable, upon delivery of the final completed Website, Customer shall have the right to perform additional tests on each previously-accepted Development Deliverable to ensure full integration and compatibility with all elements of the Website. Such testing is limited to aspects of Development Deliverables not testable via integration or beta testing at an earlier stage. Customer shall perform such testing, and Developer shall correct any non-conformities, in accordance with the procedures set forth in Section 3, as though each such Development Deliverable were delivered on the date of delivery of the final Website, provided that the scope of such testing shall be limited to ensuring full integration and Customer will not have the right to require correction of any non-conformity that could have been, but was not, identified by Customer during initial testing of such Development Deliverable.
  1. Customer Obligations.
    • Customer Resources and Cooperation. Customer will be responsible for, on a timely basis in accordance with the Milestone Schedule:
      • providing the Customer Materials and such other resources as may be specified in the Scope of Work;
      • participating in meetings scheduled on no less than five (5) days’ prior notice and making its personnel readily available for such meetings; and
      • providing all consents, approvals, and exception notices.
    • Effect of Customer Delays. If Customer fails to perform any of its obligations set forth in Section 1 on timely basis, all subsequent due dates for Milestones set forth in the Milestone Schedule may be extended by Developer, by written notice to Customer, for up to a day-for-day basis for the length of Customer’s delay, but no longer than necessary. Notwithstanding the foregoing, Developer shall use its commercially reasonable efforts to meet the dates specified in the Milestone Schedule without any extension. If any overtime is required to meet the original schedule, Developer shall notify Customer in writing, and such overtime may be incurred and charged to Customer only if approved in advance by Customer in writing. Customer’s failure to perform its obligations on a timely basis will not be deemed a breach of this Agreement, and the foregoing constitutes Developer’s sole remedy, and Customer’s sole liability, for any such failure or delay.
    • Developer Attribution. Developer shall have the right to display a developer and hosting attribution using language placed in locations, typefaces, and font sizes on the Website according to Developer’s exclusive and sole discretion. Such attribution shall link to Developer’s website and shall contain a notification that such link will redirect to Developer’s website.
  2. Compensation.
    • Fees.
      • In consideration of the Services and Deliverables provided and rights granted by Developer under this Agreement, Customer shall pay Developer properly invoiced fees (“Fees“) as set forth in Schedule C.
      • Subject to any change pursuant to Section 3, the Fees and rates stated herein are firm and shall not be modified during the Term of this Agreement.
    • Reimbursable Expenses. Customer shall reimburse Developer, in accordance with Customer’s standard expense reimbursement policy in effect from time to time for direct, documented, out-of-pocket, travel and lodging expenses (“Reimbursable Expenses“) incurred by Developer in performing the Services.

Notwithstanding the foregoing or anything else contained in this Agreement, in no event will service fees, license fees, royalties, or other amounts incurred by Developer to any Permitted Subcontractor or for any Third-Party Materials be a Reimbursable Expense, unless expressly stated in the Scope of Work.

  • Invoices. Developer shall invoice Customer for Fees and Reimbursable Expenses in accordance with the invoicing schedule and requirements set forth in Schedule C. Developer shall submit each invoice in electronic format, via such delivery means and to such address as are specified by Customer in writing from time to time. Each invoice shall:
    • list each Fee item and Reimbursable Expense separately;
    • include sufficient detail for each line item to enable Customer to verify the calculation thereof;
    • be accompanied by all supporting documentation required hereunder for Reimbursable Expenses; and
    • include such other information as may be required by Customer as set forth in Schedule C.
  • Payment.
    • Subject to Section 4(b), Customer shall pay all properly invoiced Fees and Reimbursable Expenses for Services satisfactorily rendered within 45 days after the later of:
      • Customer’s receipt of the proper invoice therefor; or
      • the due date for such amounts as set forth in Schedule C or theScope of Work.
    • Customer may withhold from payment any amount disputed by Customer in good faith, pending resolution of the dispute. Developer shall continue performing the Services in accordance with this Agreement notwithstanding any such dispute.
    • Customer shall make all payments hereunder in US dollars and, at Customer’s option, by check or wire transfer. Customer shall make payments to the address or account specified in Schedule C or such other address or account as is specified by Developer in writing from time to time, provided that Developer shall give Customer at least ten (10) days’ prior notice of any account, address, or other change in payment instructions. Customer will not be liable for any late or misdirected payment caused by Developer’s failure to provide timely notice of any such change.
  • Taxes. All fees set forth herein are exclusive of taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
  1. Intellectual Property Rights.
    • Work Product. Except as set forth in Section 2, Section 7.4, and Error! Bookmark not defined.Error! Reference source not found., Customer is and will be the sole and exclusive owner of all right, title, and interest in and to the Work Product, including all Intellectual Property Rights therein. In furtherance of the foregoing, the parties agree that, subject to Section 7.2, Section 7.4, and Error! Bookmark not defined.Error! Reference source not found.:
      • Developer shall, and shall cause Developer Personnel and Permitted Subcontractors to, create all Work Product as work made for hire as defined in Section 101 of the Copyright Act of 1976.
      • To the extent any Work Product does not qualify as work made for hire:
        • Developer shall, and hereby does, immediately on its creation, assign, transfer, and otherwise convey to Customer, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such Work Product, including all Intellectual Property Rights therein.
        • Developer shall, and hereby does, irrevocably waive, and shall cause the Developer Personnel to irrevocably waive in signed written instruments in form and substance reasonably acceptable to Customer any and all claims such Developer Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Work Product.
      • Developer shall, and shall cause all Developer Personnel and Permitted Subcontractors to, take all appropriate action and execute and deliver all documents, necessary or reasonably requested by Customer to effectuate any of the foregoing provisions of this Section 1, or otherwise as may be necessary for Customer to prosecute, register, perfect, or record its rights in or to any Work Product or any Intellectual Property Right therein. Developer hereby appoints Customer as Developer’s attorney-in-fact with full irrevocable power and authority to take any such actions and execute any such documents if Developer refuses or, within a period deemed reasonable by Customer, otherwise fails to do so.
    • Pre-Existing Materials. Developer and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein.
    • Customer Materials. Customer and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Developer has no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer and its licensors.
    • Third-Party Materials. All right, title, and interest in and to Approved Third-Party Materials will remain with the respective owners thereof, subject to any express licenses or sublicenses granted to Customer pursuant to or in accordance with this Agreement.
  2. Licenses.
    • Pre-Existing Materials License. Developer hereby grants to Customer such rights and licenses with respect to the Pre-Existing Materials that will allow Customer to use and otherwise exploit the Website, and any website that replaces or a substantial portion of the Website, to the same extent as if Customer owned the Pre-Existing Materials to the same extent as if Customer owned them without incurring any fees or costs to Developer (other than the Fees and Reimbursable Expenses set forth herein) or any other Person in respect of the Pre-existing Materials. In furtherance of, and without limiting, the foregoing, such rights and licenses shall:
      • be perpetual, worldwide, fully paid-up, and royalty-free;
      • include the rights to use, reproduce, perform (publicly or otherwise), display (publicly or otherwise), modify, improve, create derivative works of, distribute, import, make, have made, sell, and offer to sell the Pre-Existing Materials, including all such modifications, improvements, and derivative works thereof solely as part of, or as necessary to use and exploit, the Website and any successor website thereto; and
      • be freely assignable and sublicensable, in each case solely in connection with the assignment or licensing of the Website or any portion thereof or successor thereto, and only to the extent necessary to allow the assignee or sublicensee, as the case may be, to use and exploit the Website or portion thereof or successor thereto.

Developer reserves all rights in the Pre-Existing Materials not expressly granted to Customer herein.

  • Customer Materials License. Customer hereby grants to Developer the limited, royalty-free, non-exclusive right and license to the Customer Materials solely as necessary to incorporate the Customer Materials into the Deliverables as described in the Scope of Work. The term of such license shall commence upon Customer’s delivery of the Customer Materials to Developer, and shall terminate upon Customer’s acceptance or rejection of the Deliverable(s) incorporating such Customer Materials. Subject to the foregoing license, Customer reserves all rights in the Customer Materials. Customer Materials shall be deemed Customer’s Confidential Information.
  • Third-Party Materials Licenses. Not later than the date specified on the Milestone Schedule and except as otherwise may be set forth in the Scope of Work, Developer shall secure for the benefit of Customer, at Developer’s sole cost and expense, all necessary, rights, licenses, consents, and approvals necessary for Customer to use the Approved Third-Party Materials in connection with the Website or any portion thereof or successor thereto, perpetually and worldwide, and to freely sublicense and assign such rights in connection with sublicensing or assigning, as the case may be, the Website or any portion thereof or successor thereto. All royalties, license fees, or other consideration payable in respect of such licenses are included in the Fees hereunder unless specifically stated otherwise in the Scope of Work, and any additional amounts shall be the sole responsibility of Developer. Third-Party Materials include, but are not limited to WordPress, WPX, ManageWP, Elegant Themes products including Divi and any products made for Divi by third parties, WP Rocket, Vimeo, ShortPixel, WooCommerce, Google Site Kit, Google Analytics, and Yoast SEO.
  1. Term and Termination.
    • Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until Developer’s full performance to Customer’s reasonable satisfaction of all obligations set forth on the Scope of Work (the “Term“).
    • Termination.
      • Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
      • Either party may terminate this Agreement, effective upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • Effect of Expiration or Termination.
      • Upon any expiration or termination of this Agreement:
        • All licenses granted to Developer in the Customer Materials will also expire or terminate, and Developer shall promptly return all such Customer Materials to Customer.
        • Developer shall (x) return to Customer all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Customer’s Confidential Information; and (y) permanently erase Customer’s Confidential Information from its computer systems.
        • Developer shall certify in writing to Customer that it has complied with the requirements of Section 3(a)(i) and Section 9.3(a)(ii)
      • If this Agreement terminates early, Customer will remain obligated to pay Fees for all Services and Deliverables received before the effective date of such termination.
      • No expiration or termination of this Agreement will affect Customer’s rights in any of the Work Product.
    • Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 7, Section 1, Section 8.3, Section 9.3, this Section 9.4, Section 10, Section 11, Section 12, Section 13, and Section 15.
  2. Representations and Warranties.
    • Mutual Representations and Warranties. Each party represents and warrants to the other party that:
      • it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
      • it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
      • the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
      • when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
    • Additional Developer Warranties. Developer warrants to Customer that:
      • it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement;
      • the Work Product, including the Website and all Deliverables (excluding Customer Materials), as delivered and known by Developer and used in accordance with this Agreement and the Documentation: (i) will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any third party within the United States of America; and (ii) will comply with all applicable Laws. The sole and exclusive remedies for breach of this Section 10.2(b) are termination under Section 9.2(a) and Developer’s indemnification of Customer for infringement claims brought against Customer arising from such breach.
      • in performing the Services hereunder, Developer will comply with all Laws;
      • when delivered, the Website and all Deliverables will not contain: (i) any virus, trojan horse, worm, backdoor, malware, or other software the effect of which is to permit unauthorized access or to disable, erase, corrupt, or otherwise harm any computer, systems, or software, or (ii) any time bomb, drop dead device, or other software designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise deprive Customer of its lawful right to use the Website and Deliverable; and
      • when delivered and for the duration of Hosting Services, the Website and all Deliverables will be, and will function, in all respects in conformity with this Agreement and the Site Specification and Documentation. If any non-conformity is discovered during such warranty period, Developer shall promptly remedy such non-conformity at Developer’s sole cost and expense.
    • Additional Customer Warranties. Customer warrants to Developer that Customer Materials: (i) will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any third party within the United States of America; and (ii) will comply with all applicable Laws. The sole and exclusive remedies for breach of this Section 10.3 are termination under Section 9.2(a) and Customer’s indemnification of Developer for infringement claims brought against Developer arising from such breach.
    • DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
  3. Indemnification.
    • Developer Indemnification. Developer shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee“) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, that are incurred by a Customer Indemnitee, arising out of or resulting from any claim, suit, action, or proceeding (each, an “Action“) alleging:
      • Developer’s breach of any representation, warranty, covenant, or obligation of Developer (including any action or failure to act by any Permitted Subcontractor that, if taken or not taken by Developer, would constitute such a breach by Developer) under this Agreement; or
      • any gross negligence by Developer or any Permitted Subcontractor in connection with performing Services under this Agreement.
    • Customer Indemnification. Customer shall indemnify, defend, and hold harmless Developer and Developer’s officers, directors, employees, agents, successors, and assigns (each, a “Developer Indemnitee“) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, that are incurred by a Developer Indemnitee, arising out of or resulting from any claim, suit, action, or proceeding (each, an “Action“) alleging Customer’s breach of any representation, warranty, covenant, or obligation of Customer (including any action or failure to act by any Permitted Subcontractor that, if taken or not taken by Customer, would constitute such a breach by Customer) under this Agreement.
    • Indemnification Procedure. Indemnitee will promptly notify Indemnifier in writing of any Action for which it is entitled to be indemnified pursuant to Section 1 or Section 11.2 and cooperate with Indemnifier at Indemnifier’s sole cost and expense. Indemnifier shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to Indemnitee to handle and defend the same, at Indemnifier’s sole cost and expense. Indemnifier shall not settle any Action in a manner that adversely affects the rights of Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve Indemnifier of its obligations under this Section 11 except to the extent that Indemnifier can demonstrate that it has been materially prejudiced as a result of such failure. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
    • Infringement Remedy. If the Website, or any component thereof other than Customer Materials, is found to be infringing or if any use of the Website or any component thereof is enjoined, threatened to be enjoined, or otherwise the subject of an infringement claim, Developer shall, at its option and sole cost and expense: (a) procure for Customer the right to continue to use the Website or component thereof to the full extent contemplated by this Agreement; or (b) modify or replace the materials that infringe or are alleged to infringe (“Allegedly Infringing Materials“) to make the Website and all of its components non-infringing while providing fully equivalent features and functionality. If neither of the foregoing is possible notwithstanding Developer’s commercially reasonable efforts then Developer may direct Customer to cease any use of any materials that have been enjoined or finally adjudicated as infringing, provided that Developer shall refund to Customer (i) all amounts paid by Customer in respect of such Allegedly Infringing Materials; and (ii), in any case, at its sole cost and expense, secure the right for Customer to continue using the Infringing Materials for a transition period of up to three (3) months to allow Customer to replace the affected features of the Website without disruption. The foregoing is in addition to, and not in lieu of, all other remedies that may be available to Customer under this Agreement or otherwise, including but not limited to Customer’s right to be indemnified for such Actions.
  4. Limitations of Liability.
    • EXCLUSION OF INDIRECT DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN Section 3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
    • CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN Section 3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO DEVELOPER PURSUANT TO THIS AGREEMENT.
    • Exceptions. The exclusions and limitations in Section 1 and Section 12.2 shall not apply to a party’s obligations under Section 11 (Indemnification) or Section 15.14 (Attorneys’ Fees); a party’s breach of its obligations under Section 13 (Confidentiality); or a party’s gross negligence or willful misconduct or breach; or to the extent damages or liabilities are covered by a party’s insurance.
  5. Confidentiality.
    • Obligation of Confidentiality. Developer acknowledges that in connection with this Agreement Developer will gain access to Confidential Information of Customer. As a condition to being furnished with access to Confidential Information, Developer shall, during the Term:
      • not access or use Confidential Information other than as strictly necessary to perform its obligations under and in accordance with this Agreement;
      • not to use any Confidential Information, directly or indirectly, in any manner to the detriment of Customer or to obtain any competitive benefit with respect to Customer; and
      • maintain all Confidential Information in strict confidence and, except as may be permitted by and subject to its compliance with Section 2 below, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of Developer’s performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and Developer’s obligations under this Section 13.1; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 13.1.
      • safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
      • ensure its Representatives’ compliance with, and be liable for any of its Representatives’ noncompliance with, this Section 13.
    • Compelled Disclosures. If Developer is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, Developer shall: (a) promptly, and prior to such disclosure, notify Customer of such requirement so that Customer can seek a protective order or other appropriate remedy or waive its rights under this Section 13; and (b) provide reasonable assistance to Customer at Customer’s expense in opposing such disclosure or seeking a protective order or other limitations on disclosure. If Customer waives compliance or, after providing the notice and assistance required under this Section 2, Developer remains required by Law to disclose any Confidential Information, Developer shall disclose only that portion of the Confidential Information that Developer is legally required to disclose and, at Customer’s expense, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
  6. Force Majeure.
    • Neither party will be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns, or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation facilities (each of the foregoing, a “Force Majeure Event“), in each case, provided that (i) such event is outside the reasonable control of the affected party; (ii) the affected party provides prompt notice to the other party, stating the period of time the occurrence is expected to continue; and (iii) the affected party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
  7. Miscellaneous.
    • Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
    • Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    • Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 4):
If to Developer:

5806 S. 113th Street, Omaha, NE 68137

Email:             hello@skoutmedia.com

Attention:       Owners
If to Customer:

Email: in invoice

Attention: payer of invoice

Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the first (1st) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

  • Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
  • Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
  • Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.
  • Assignment. Developer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Customer’s prior written consent, which consent Customer shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Developer (regardless of whether Developer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Customer’s prior written consent is required. No delegation or other transfer will relieve Developer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 8 is void. Customer may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Developer’s consent. This Agreement is binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
  • No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
  • Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  • Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of Nebraska without giving effect to any choice or conflict of law provision or rule that would require or permit the application of Laws of any jurisdiction other than those of the State of Nebraska. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Nebraska in each case located in the city of Omaha and County of Douglas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
  • Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
  • Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
  • Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

Schedule A

SCOPE OF WORK

Description of Design and Development Services: We will create designs for your website’s look, layout, and functionality. We will test our designs in current versions of all major browsers, including those made by Apple, Microsoft, and Google. We will not test these templates in old or abandoned browsers, for example, Microsoft Internet Explorer for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox, or Chrome unless otherwise agreed upon. We are not responsible for writing or inputting any text copy. You will supply us with photographs either in digital or printed format.

Description of Design and Development Deliverables: The design of Customer’s Web Site shall be in substantial conformity with the material provided to Developer by Customer. Developer shall develop Customer’s Web Site to project the highest professional image. Developer shall not include any of the following in the Web Site or in Customer’s directory on Developer’s Web Server: text, graphics, sound, or animations that might be viewed as offensive or related in any way to sex or any illegal activities; links to other sites that might be viewed as offensive or related in any way to sex or any illegal activities; impressionistic or cartoon-like graphics (unless provided by Customer); invisible text, text that is present only when a “web crawler” or other web indexing tool accesses the Web Site, or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.

Customer’s Web Site will consist of a Home Page (the “first” page for the Web Site) that can be reached by typing one of the following Uniform Resource Locators (“URLs”) into a Web Browser. Customer agrees to register domain name and pay all registration fees associated with such registration.

Description of Hosting Services:

  • Server Hosting: Developer agrees, at Customer’s option, to maintain Customer’s Website on Developer’s web server on a month-to-month or annual basis, and to make maintenance modifications to Customer’s Website from time to time in accordance with Customer’s directions. Such modifications shall be implemented within ten (10) business days of Developer’s receipt of Customer’s changes if the changes are easily implemented, and within twenty (20) business days of Developer’s receipt of Customer’s changes if the changes are not easily implemented. As part of this service, Developer agrees to make Customer’s Website available to Internet users approximately 24 hours per day, to back-up Customer’s Website at least once every month, and to store said back-up materials in a safe and secure environment, fit for the back-up media. As part of this service, Developer agrees to use its best efforts to ensure reasonable response times for users accessing Customer’s Website.

 

Back-Up Copies: Upon notice from Customer not more often than once each month, and also in the event of Customer’s termination of its use of Developer’s web server as the host for Customer’s Website, Developer agrees to transfer a complete copy of Customer’s then-current Website, including all Code therefor, to Customer, said transfer to occur via File Transfer Protocol (“FTP”). Files will be provided in HTML format, standard word processing Text format or, if images, as TIFF’s GIFS, JPEGs, PNGS, or Photoshop files. The transfer method will be selected by Customer in its discretion no later than 48 hours before the time the transfer is to take place. In the event such transfer results from Customer’s termination of its use of Developer’s web server as the host for Customer’s Website, Developer shall maintain one complete electronic version of Customer’s Website, including all code therefor (and shall “wipe” all other versions thereof off of its computers and media, including back-up copies), until Customer informs Developer in writing that the transferred files appear to be complete, at which time Developer shall “wipe” its final copy of Customer’s Website off of its computers and media.

 

 

 

Schedule B

DELIVERY AND TESTING

The Deliverables will be delivered via electronic means to Customer.

The Deliverables will be delivered in files will be provided in html format, standard word processing text format or, if images, as tiffs gifs, jpegs, pngs, or photoshop files.

The Developer will notify Customer of delivery via email.

 

Schedule C

FEES

  • Design and Development Fee: The total price for all of the work set forth in the Agreement (excluding the Hosting Services and excluding post-approval modifications not implemented by Customer) shall be in the invoice (the “Design and Development Fee”). This price covers all work of whatever nature on Customer’s Website contemplated in this Agreement (excluding Hosting Services and post-approval modifications not implemented by Customer). When both parties have signed this Agreement, Customer will forward to Developer one half of the design and development fee and the second half when the Website is operational in a form reasonably acceptable to Customer.
  • Hosting Services Fee: The fee for Hosting Services shall be based on their maintenance plan (the “Hosting Fee”). All Hosting Fee terms, including but not limited to invoicing and expenses, are governed by Developer’s subscription maintenance plan.