By using, receiving, or purchasing any of our Services, you are agreeing to be bound by these terms & conditions, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you may discontinue use of our services.
- General. This agreement is entered into between Professional Networks, Inc., a Virginia corporation, (“Developer”) of 307 Meadow Street; Galax, Virginia 24333 and you. (“Client”)
- Modifications. Developer may revise these terms & conditions at any time without notice.
- Services. Developer agrees that it has created and may continue to create on and after the date hereof, at Client’s request, Works (as herein defined) related to Client’s business as part of Developer’s engagement to perform certain development services under the Development Agreement, and other similar services on Client’s behalf, (collectively, the “Services”).
- Materials Provided by Client. In the process of providing Services & creating Works, Developer may request text, images, logos, graphics, designs, code, or other intellectual property from Client. Text, images, logos, graphics, designs, code, and other intellectual property (collectively, the “Materials Provided”) are provided to Developer for use in the Works. By providing materials to Developer, Client represents and warrants that to Client’s actual knowledge: (e) the Materials Provided do not infringe any third party’s rights; and (f) that there are no pending or threatened claims of breach of contract, misappropriation or infringement of intellectual property or misappropriation of confidential information against Client and no events or conduct exist that could give rise to such a claim.
- Deliverable Defined. As used in this Agreement, “Deliverable” shall mean any Works created for Client, in any medium and whether or not registrable as a copyright, patent, or trademark. Notwithstanding anything to the contrary herein, “Deliverable” does not include Developer’s Background Technology, or Open Source Components. The term “Background Technology” means all third party software, data, know-how, ideas, methodologies, specifications and other technology in which Developer has intellectual property rights, and which Client must utilize in order to access and utilize the Deliverable. The term “Open Source Components” means any software component that is subject of any open source copyright license agreement, and the parties acknowledge and agree that Open Source Components were utilized to develop the Deliverable and the Developer grants no interest to Client in these Open Source Components.
- Deliverable and Background Technology Licenses.
- Deliverable Ownership. The parties agree that ownership of the Deliverable shall be assigned and transferred to Client and treated as “works made for hire”.
- Developer Retained License to Deliverable. Client hereby grants Developer a non-exclusive, irrevocable, fully paid-up, royalty free, sublicensable, worldwide license to the Deliverable and such other rights and licenses with respect to the Deliverable that will allow Developer to use, reproduce, improve, create derivatives works, offer for sale, and otherwise exploit the Deliverable perpetually and for any purpose whatsoever.
- Background Technology License. Developer hereby grants Client a fully paid-up and royalty free, non-exclusive, non-transferrable, and non-sublicensable license to use the Background Technology for use of the Deliverable in Client’s business operations.
The rights granted by Developer to Client in this Section shall be contingent upon Client satisfying all obligations to Developer, including making all payments due.
- Payment. The parties understand and agree that the rights granted to Client in Section 6 are subject to and conditioned upon Client’s compliance with the terms of the Development Agreement, including, but not limited to, payment of the fees due and payable to Developer for the Service under the Development Agreement, including completion of any work remaining to be performed, as well as any subsequent change orders.
- Independent Developer Status. Developer is an independent contractor, not Client’s employee. Developer and Client agree to the following rights consistent with an independent contractor relationship:
- Developer has the sole right to control and direct the means, manner and method by which the Services will be performed.
- Developer has the right to perform the Services at any place, location or time.
- Client will not withhold FICA (Social Security and Medicare taxes) from Developer’s payments or make FICA payments on Developer’s behalf make state or federal unemployment compensation contributions on Developer’s behalf or withhold state or federal income tax from Developer’s payments.
- Enforcement and Severability. The parties agree that a breach of any of the provisions of Sections 6 (Deliverable and Background Technology Licenses) would result in irreparable injury and damage to the parties for which the nonbreaching party would have no adequate remedy at law. In the event of a breach or a threatened breach of any of the provisions of Sections 6 of this Agreement, the nonbreaching party shall be entitled to specific performance, a temporary restraining order, and/or a preliminary or permanent injunction restraining the breaching party from breaching the same. However, nothing contained herein shall be construed as prohibiting the nonbreaching party from pursuing any other remedies available to it for such breach, including the recovery of damages from the breaching party. The parties further agree that in the event of any such breach, the nonbreaching party shall be entitled to all costs and expenses incurred as a result, including reasonable attorney’s fees, in addition to any other remedies to which the nonbreaching party may be entitled.
- Representations and Warranties. The parties represent and warrant that (a) they have the full power and authority to enter into this Agreement without the consent or approval of any other person, including any present or previous employer and (b) their execution, delivery and performance of this Agreement will not violate or cause a breach of any existing employment or any other agreement, covenant, promise or any other duties by which such party is bound, including confidentiality obligations or covenants not to compete. Developer further represents and warrants that to Developer’s actual knowledge: (c) the Deliverable does not infringe any third party’s rights; and (d) that there are no pending or threatened claims of breach of contract, misappropriation or infringement of intellectual property or misappropriation of confidential information against Developer and no events or conduct exist that could give rise to such a claim. Client further represents and warrants that to Client’s actual knowledge: (e) the Materials Provided do not infringe any third party’s rights; and (f) that there are no pending or threatened claims of breach of contract, misappropriation or infringement of intellectual property or misappropriation of confidential information against Client and no events or conduct exist that could give rise to such a claim.
- Timely Responses. Developer strives to complete all work in a timely fashion. Developer requires timely responses to proofs, emails, forms, and other communications. If no response is received by deadlines given, or if necessary Materials Provided needed to provide Services are not provided within 90 days of request, we may substitute Materials Provided at additional cost, or provide an incomplete Deliverable.
- Delivery. The method of Delivery of your final Deliverable will vary. Typically for a website or application, we will launch it on to our hosting platform. If alternative Delivery methods are required or in special cases, there may be additional costs.
- Applicable Law; Venue. This Development Agreement will be governed by the laws of the Commonwealth of Virginia, without respect to its principles of conflict laws. Any legal suit, action or proceeding arising out of this Development Agreement or the transactions contemplated hereby or thereby shall be instituted in the state or federal courts serving the City of Galax, Virginia, and each party irrevocably submits to the exclusive jurisdiction of such court in any such suit, action or proceeding.
- No Partnership. This Agreement does not create a partnership relationship. Developer does not have authority to enter into agreements on Client’s behalf.
- Severability. In the event a court of competent jurisdiction deems any provision of this Agreement to be void, voidable, unenforceable, or otherwise invalid, such provision shall be severed and the court’s determination shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect.
- Further Assurances. The parties agree to execute and deliver all of the agreements, documents and instruments required to be executed and delivered by them in this Agreement and to execute and deliver such additional instruments and documents and to take such additional actions as may reasonably be required from time to time in order to effectuate the transactions contemplated by this Agreement.
- Survival. The parties agree that all provisions that by reasonable construction of their terms or nature would require survival beyond the termination of this Development Agreement shall survive such termination.
- Assignment. The parties acknowledge and agree that the duties and responsibilities of parties hereunder or under the Development Agreement shall not be assignable in whole or in part without the prior written consent of the other party.
- Miscellaneous. Either party may, at any time during the term of the Development Agreement, request in writing changes to the scope of services under the Development Agreement in accordance with the change request procedure set forth in Exhibit A hereto, this Exhibit and any subsequent change orders are and shall be incorporated into an Agreement and made a part of the Development Agreement. No change orders or other alteration, modification, amendment, or waiver of any provision of the Development Agreement shall be valid and enforceable unless and until memorialized in writing and agreed to by both Developer and Client, and no waiver of any breach under this Agreement shall be deemed a waiver of any subsequent breach. Notwithstanding the foregoing, nothing in the Development Agreement, or any change order shall preclude Developer from collecting from Client for actual work performed at Client’s request for which written change orders were not executed. This Development Agreement constitutes the whole and complete understanding of the parties, and no representations other than those expressly contained in this Agreement shall be binding. This Agreement may be executed by electronic transmission and in counterparts, which when taken together shall constitute the complete original Agreement and shall be fully enforceable.
Change Order Procedure
- The parties understand that the estimates created by Developer are based on information available to the Developer at the time the estimate is generated and remain subject to change.
- Client may request changes in writing from Developer (via email or print/letter). Changes may incur additional charges. We are able to provide an estimate for changes upon request.
- Nothing in the Development Agreement shall preclude Developer from collecting from Client for actual work performed.