Terms of Service

WEB PAGE DEVELOPMENT AGREEMENT
THIS WEB PAGE DEVELOPMENT AGREEMENT
(“Agreement”) is made as of the Effective Date by and between
Rick Youngblood - Website Designs, a California
Webdesign Servive located at 2400 Annette Dr
Rick Youngblood and Customer (as defined hereinafter).
W I T N E S S E T H
WHEREAS, Rick Youngblood is in the business of designing and
developing Web Pages; and
WHEREAS, Customer desires to engage the services of
Rick Youngblood to provide such design and development services;
and
NOW, THEREFORE, Rick Youngblood and Customer hereby agree
as follows.
ARTICLE I: DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of
parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall
apply:
(1) Acceptance Date: The term “Acceptance Date” shall
mean the date a Deliverable is deemed accepted by
Customer as provided under Section 3.08.
(2) Access: The term “Access” and variants thereof
(including, but not limited to, the terms “access”,
“accessible” and “accessing”) shall mean to store data
in, retrieve data from or otherwise approach or make
use of (directly or indirectly) through electronic means
or otherwise.
(3) Associate: The term “Associate” shall mean an
employee of Rick Youngblood or an independent contractor
hired by Rick Youngblood.
(4) Audio: The term “Audio” shall mean recorded audio
used in connection with the Web Page, including
(without limitation) spoken words, narration, sounds,
music, lyrics, noises, sound effects and sound
recordings.
(5) Audiovisual Components: The term “Audiovisual
Components” shall mean audiovisuals used in
connection with the Web Page, including Graphics,
Video and Audio.
(6) Authorized Persons: The term “Authorized Persons”
shall mean employees of Customer and a person or
organization who is authorized in writing by
Rick Youngblood to receive Confidential Information, who
agree to maintain the confidentiality of such
Confidential Information.

(7) Cancellation Notice: The term “Cancellation Notice”
shall mean that written notice sent by one party to this
Agreement to the other party to this Agreement seeking
to cancel this Agreement because of breach by such
other party.
(8) Coding: The term “Coding” shall mean programming
codes, scripts or statements for developing Web Pages
as written in a programming language, including
(without limitations) Hypertext Markup Language
(HTML), Java, JavaScript, Virtual Reality Modeling
Language (VRML) and Shockwave programming
languages. The definition of Coding shall be limited to
the executable code as applicable.
(9) Configuration: The term “Configuration” shall mean
the computer hardware, operating system, Internet
access software and browser configuration
requirements for the Customer Web Pages.
(10) Confidential Information: The term “Confidential
Information” shall mean all information concerning the
business and technical plans of Rick Youngblood and all
information in connection with the Rick Youngblood
System, the Services and this Agreement which is
disclosed by Rick Youngblood to Customer or learned by
Customer and which is not: (a) already known to
Customer; (b) conveyed to Customer by a third party
without restriction; (c) released by Rick Youngblood
without restriction; (d) independently developed by
Customer; or (e) in the public domain.
(11) Consultant: The term “Consultant” shall mean third
party independent contractors hired by Rick Youngblood to
perform services in connection with the Proprietary
Information.
(12) Consulting Fee: The term “Consulting Fee” shall mean
the fee invoiced by Rick Youngblood to Customer for
Consulting Services as set forth in such invoice.
(13) Consulting Services: The term “Consulting Services”
shall mean Upgrade Services and those certain
consulting and ad hoc services provided by
Rick Youngblood to Customer as set forth in Section 2.03.
(14) Customer: The term “Customer” shall mean the
individual or entity identified as “Customer” on the
signature page of this Agreement.
(15) Customer Audiovisuals: The term “Customer
Audiovisuals” shall mean the audiovisuals for the Web
Page, including Graphics, Video and Audio as
provided by Customer to Rick Youngblood for integration
with the Customer Web Pages.
(16) Customer Materials: The term “Customer Materials”
shall mean the Customer Audiovisuals, Technology of
Customer and all information and content, disclosed
and provided to Rick Youngblood by Customer for the
purposes of developing the Customer Web Pages and
used in the Customer Web Pages.

(17) Customer Web Pages: The term “Customer Web
Pages” shall mean Web Pages, including the Software,
Rick Youngblood Materials, Customer Materials and
Materials, as requested by Customer and approved by
Rick Youngblood in a Development Order signed by
Rick Youngblood and Customer, including all
modifications, updates and derivative works provided
to Customer in connection therewith.
(18) Customer Web Site: The term “Customer Web Site”
shall mean the Customer Web Pages as integrated with
and implemented on the Rick Youngblood System which is
assigned a Uniform Resource Locator and accessible by
Users through the Internet.
(19) Defect: The term “Defect” shall mean programming or
design errors which substantially impair the
performance, utility and functionality of the Customer
Web Pages as represented in the Design Document, as
approved by Rick Youngblood in writing pursuant to
Section 3.05.
(20) Defect Notice: The term “Defect Notice” shall mean
that written notice from Customer to Rick Youngblood
identifying Defects.
(21) Design Document: The term “Design Document” shall
mean that certain document defining the Customer
Web Pages, including the Configuration and the
integration of Customer Materials, Storyboards (if any)
and Materials, in accordance with the Scoping
Document to create the Web Page.
(22) Design Fee: The term “Design Fee” shall mean the
amount of money to be paid by the Customer to
Rick Youngblood for Development Services as set forth in
the Development Order.
(23) Developer: The term “Developer” shall mean the
owner, authorized distributor, or licensee of the
Materials.
(24) Development Order: The term “Development Order
shall mean those certain Development Orders (the form
of which is attached hereto as Exhibit A and by
reference incorporated herein) as signed by Customer
and Rick Youngblood.
(25) Development Services: The term “Development
Services” shall mean those certain development
services provided to Customer for development of Web
Pages pursuant to a Development Order and as set forth
in Article III of this Agreement.
(26) Documentation: The term “Documentation” shall
mean written materials describing the functions and
utilities of the Customer Web Pages, as provided in
printed or electronic form to Customer by
Rick Youngblood.

(27) Domain Name: The term “Domain Name” shall mean
that certain alphanumeric name by which a Web Site is
known on the Internet.
(28) Effective Date: The term “Effective Date” shall mean
the date this Agreement is signed by Rick Youngblood.
(29) Graphics: The term “Graphics” shall mean graphics
used in connection with the Web Page, including
(without limitations) illustrations, pictorials, animation,
pictures, diagrams, representations, graphics, screen
displays, letters, fonts, icons, flow-charts, and
drawings.
(30) Hosting Agreement: The term “Hosting Agreement”
shall mean that certain Rick Youngblood agreement under
which Rick Youngblood stores the Customer Web Pages for
the Customer on the Rick Youngblood System and provides
Internet access to such Customer Web Pages using the
Rick Youngblood System.
(31) Implement: The term “Implement” and variants thereof
(including, but not limited to, the terms
“implementation”, “implementing”, and
“implemented”) shall mean to load and make functional
for user access and use.
(32) Implementation Date: The term “Implementation
Date” shall mean the date a Deliverable is implemented
by Rick Youngblood as provided in Section 3.07.
(33) Internet: The term “Internet” shall mean that certain
worldwide network of interconnected computer
systems commonly referred to as the “Internet”,
including the World Wide Web.
(34) License Term: The term “License Term” shall mean a
period of time starting on the Effective Date and
continuing in perpetuity.
(35) Link: The term “Link” shall mean that certain text, icon
or graphics in the Web Page (visible or invisible) that
upon selection or search links or associates such Web
Page to an off-screen or third-party document, text,
image, sound, video or Web Page.
(36) Materials: The term “Materials” shall mean third party
Technology and Audiovisual Components used by
Rick Youngblood for the purpose of developing, supporting
and maintaining the Customer Web Pages.
(37) Nonpayment Notice: The term “Nonpayment Notice”
shall mean that written notice from Rick Youngblood to
Customer alleging nonpayment under this Agreement
and seeking to cancel this Agreement or a Development
Order unless payment is rendered by Customer as
provided thereunder.
(38) Order Date: The term “Order Date” shall mean the
Order Date as defined in the Development Order.

(39) Promotion Fee: The term “Promotion Fee” shall mean
the fee invoiced by Rick Youngblood to Customer for
Promotion Services as set forth in such invoice.
(40) Promotion Services: The term “Promotion Services”
shall mean those certain Customer Web Page marketing
and promotion services provided by Rick Youngblood to
Customer as set forth in Section 2.04.
(41) Proprietary Information: The term “Proprietary
Information” shall mean the Software, the Rick Youngblood
Materials and Documentation.
(42) Registration Company: The term “Registration
Company” shall mean an entity that administers the
registration and maintenance of Domain Names,
including (without limitations) Network Solutions, Inc.
(43) Registration Fee: The term “Registration Fee” shall
mean the fee invoiced by Rick Youngblood to Customer for
Registration Services as set forth in such invoice.
(44) Registration Services: The term “Registration
Services” shall mean those certain registration services
provided by Rick Youngblood to Customer in connection
with registering a Domain Name with a Registration
Company as set forth in Section 2.02.
(45) Restatements: The term “Restatements” shall mean
Section 757 of the Restatement of Torts, Section 39 of
the Restatement (Third) of Unfair Competition, 18
U.S.C. §1839 and Section 1 of the Uniform Trade
Secrets Act.
(46) Scoping Document: The term “Scoping Document”
shall mean a document specifying and describing
desirable functional and technical specifications for the
Web Page as developed and approved under Section
3.01.
(47) Services: The term “Services” shall mean the
Development Services, the Registration Services, the
Promotion Services and the Consulting Services (as
applicable).
(48) Rick Youngblood Legend: The term “Rick Youngblood
Legend” shall mean a written disclaimer and a written
notice that credits Rick Youngblood or a Developer in
connection with the Customer Web Pages and a Link to
the Rick Youngblood Web Site, including (without
limitation) the following statement: “Web Site Design
by Rick Youngblood © [Applicable Year] All Rights
Reserved. Rick Youngblood disclaims and user hereby
waives all responsibility in connection with the product
and the accuracy of the information and content offered
through this Web Site.”
(49) Rick Youngblood Materials: The term “Rick Youngblood
Materials” shall mean any and all Technology and
Audiovisual Components developed and used by
Rick Youngblood for the purpose of developing, supporting
and maintaining the Customer Web Pages.
(50) Rick Youngblood System: The term “Rick Youngblood System”
shall mean that certain System used by Rick Youngblood.
(51) Rick Youngblood Web Site: The term “Rick Youngblood Web
Site” shall mean the Rick Youngblood Web Page as
integrated with and implemented on the Rick Youngblood
System which is assigned a Uniform Resource Locator
and accessible by Users through the Internet.
(52) Software: The term “Software” shall mean the Coding
developed by Rick Youngblood and executable code for
computer software developed by Rick Youngblood for use
in connection with the Customer Web Pages.
(53) Storyboard: The term “Storyboard” shall mean those
certain paper or electronic presentations defining the
screen displays of the Web Page and Customer
Audiovisuals including (without limitation) narration
and written text of screen displays, and the functions to
be performed.
(54) System: The term “System” shall mean computer
systems and communication equipment used for
hosting Web Pages and providing Users access to such
Web Pages through the Internet.
(55) Technology: The term “Technology” shall mean (i)
evaluation, technical, scientific, engineering,
marketing, financial and business reports, plans,
studies, diagrams, or flow charts; (ii) all forms and
types of scientific, technical, economic, or engineering
information; and (iii) patterns, plans, compilations,
program devices, formulas, designs, prototypes,
methodologies, techniques, ideas, solutions, concepts,
processes, procedures, programs, codes, scripts,
adaptations, derivative works, computers, hardware,
networks, products, machines, compositions of matter,
articles of manufacture, computer software, software
libraries, documentation, databases, database designs,
data models, screen displays, images, graphics,
audiovisual works and sound recordings, whether
tangible or intangible, and whether stored, compiled, or
memorialized (without limitation) physically,
electronically, graphically, photographically, or in
writing.
(56) Term: The term “Term” shall mean a period of time
starting on the Effective Date and continuing until this
Agreement is terminated or canceled as provided
hereunder.
(57) Termination Notice: The term “Termination Notice”
shall mean that written notice sent by Customer to
Rick Youngblood seeking to terminate this Agreement.
(58) Uniform Resource Locator: The term “Uniform
Resource Locator” and the abbreviation “URL” shall
mean the address of a Web Page or Web Site.
(59) Upgrade Services: The term “Upgrade Services” those
certain cervices provided to Customer for setting up
additional Links and adding information to the
Customer Web Site or modifying the Customer Web
Site to improve the features, performance or
functionality of the Customer Web Site.
(60) Users: The term “Users” shall mean individuals or
entities (including Customer) accessing, or attempting
to access, the Customer Web Site and the Rick Youngblood
System through the Internet.
(61) Video: The term “Video” shall mean motion visuals
used in connection with the Web Page, including
photographs, pictures, images, film, broadcasts, screen
displays and videotapes.
(62) Web Page: The term “Web Page” shall mean that
certain multimedia interactive product which is a
compilation of data, information, computer software,
Audiovisual Components, Coding and formatted for
use on the Internet.
(63) Web Site: The term “Web Site” shall mean a Web
Page as integrated with and implemented on the System
which is assigned a Uniform Resource Locator and
accessible by Users through the Internet.
(64) World Wide Web: The term “World Wide Web” shall
mean that certain information storage system of the
Internet which utilizes graphics, sound, data, files,
Links and Web Pages.
ARTICLE II: SCOPE OF SERVICES
Section 2.01 -- Development Services: Rick Youngblood shall
provide Development Services to Customer as provided in each
Development Order.
Section 2.02 -- Registration Services: Upon request by
Customer, Rick Youngblood approval and payment of the
Registration Fee by Customer, Rick Youngblood shall apply to
register the Domain Name desired by the Customer with a
Registration Company. In the event such desired Domain Name
is not available, rejected or opposed by a third party,
Rick Youngblood shall in written notice to Customer explain the
reasons for the unavailability or rejection of such Domain Name.
Such written notice shall be submitted to Customer within a
reasonable time after Rick Youngblood receipt of notice of such
unavailability or rejection. Upon request by Customer,
Rick Youngblood approval and payment of the Registration Fee by
Customer, Rick Youngblood shall apply to register another Domain
Name subject to the foregoing procedures.
Section 2.03 -- Consulting: Rick Youngblood shall provide
Consulting Services to Customer as requested by Customer and
approved by Rick Youngblood.
Section 2.04 -- Promotion: Rick Youngblood shall provide
Promotion Services to Customer as requested by Customer and
approved by Rick Youngblood.
Section 2.05 -- Scope: The scope of this Agreement shall include
each Development Order, the terms of which are incorporated
herein and made a part hereof. In the event of any conflict
between the terms of this Agreement and the terms of any
Development Order, the terms of this Agreement shall govern.
Section 2.06 -- Exclusive: Each Development Order, together
with any schedules, appendices, and other attachment thereto or
other agreements (including this Agreement) which are
specifically incorporated therein as part of such Development
Order, shall constitute the entire agreement between Customer
and Rick Youngblood with respect to the matters, referred to therein
and shall supersede all proposals, oral and written, and all other
communications between the parties in relation to the subject
matter of such Development Order which have not otherwise
been incorporated in writing as a part of such Development
Order.
Section 2.07 -- Internet: Customer hereby acknowledges and
agrees that Rick Youngblood shall have no obligation to provide
Customer access to the Internet. Customer shall be solely
responsible for acquiring, purchasing, installing, configuring and
maintaining the computer system for accessing the Internet,
including (without limitation) computer software, Internet access
software, computer hardware and telecommunication equipment.
Section 2.08 -- Personnel: The personnel assigned to perform
Services shall be determined solely by Rick Youngblood.
Section 2.09 -- Access: Customer hereby authorizes
Rick Youngblood to access the Customer personnel, facilities,
computers, computer software, data and Customer Materials for
purpose of performing this Agreement.
Section 2.10 -- Customer Cooperation: Customer hereby
acknowledges that successful performance by Rick Youngblood of the
Services shall require Customer to cooperate with Rick Youngblood
in good faith and to provide information as may be requested by
Rick Youngblood from time to time. Customer hereby agrees to
provide such good faith cooperation and information.
Section 2.11 -- Schedule: The Services shall be performed
during the hours of 9:00 a.m. through 5:00 p.m., Eastern
Standard Time, Monday through Friday (excluding holidays),
unless otherwise required (as determined exclusively by
Rick Youngblood).
Section 2.12 -- Acceptance of Services: The Services shall be
deemed delivered by Rick Youngblood and accepted by Customer
upon performance.
Section 2.13 -- Facilities: The Services shall be performed at the
office facilities of Rick Youngblood, unless otherwise required (as
determined exclusively by Rick Youngblood).
ARTICLE III: WEB PAGE DEVELOPMENT
Section 3.01 -- Scoping Document: Based upon the
Development Order a Scoping Document shall be developed for
the Customer Web Pages as follows:
(1) Proposed Scoping Document: Customer shall develop
a proposed Scoping Document in consultation with
Rick Youngblood. Customer shall submit the proposed
Scoping Document to Rick Youngblood for review within
ten days after the Effective Date.
(2) Review -- Proposed Scoping Document: Rick Youngblood
shall review the proposed Scoping Document in
consultation with Customer and shall accept or reject
each requirement on the proposed Scoping Document.
Requirements from the proposed Scoping Document
that are accepted by Rick Youngblood shall be used by
Rick Youngblood to develop a revised Scoping Document.
Requirements from the proposed Scoping Document
that are rejected by Rick Youngblood shall be identified in
written notice submitted to Customer within a
reasonable time after Rick Youngblood receipt of the
proposed Scoping Document. Such written notice shall
define the reason for rejecting each such requirement.
(3) Revised Scoping Document: Rick Youngblood shall submit
a revised Scoping Document to Customer within a
reasonable time after Rick Youngblood receipt of the
proposed Scoping Document. The revised Scoping
Document shall be deemed accepted by Customer and
approved within ten days after Customer receipt of the
revised Scoping Document unless Rick Youngblood
receives written notice from Customer specifying
changes to the revised Scoping Document within such
ten day period. (“Scoping Document Change
Request”).
(4) Scoping Document Change Request: Rick Youngblood
shall review the Scoping Document Change Request in
consultation with Customer and shall accept or reject
each change requested in the Scoping Document
Change Request. Changes accepted by Rick Youngblood
shall be used by Rick Youngblood in developing a final
Scoping Document. Changes rejected by Rick Youngblood
shall be identified in written notice to Customer by
Rick Youngblood explaining the reason for rejecting such
changes (“Scoping Document Rejection Notice”).
Such Scoping Document Rejection Notice shall be
submitted to Customer within reasonable time after
Rick Youngblood receipt of the Scoping Document Change
Request.
(5) Final Scoping Document: Rick Youngblood shall submit to
Customer a final Scoping Document within a
reasonable time after Rick Youngblood receipt of the
Scoping Document Change Request. The Scoping
Document shall be subject to approval of both parties
using the foregoing procedures.
Section 3.02 -- Audiovisuals: Customer shall disclose and
provide to Rick Youngblood the Customer Materials within ten days
of approval of the Scoping Document. Customer Materials shall
be subject to approval of Rick Youngblood.
Section 3.03 -- Storyboard: A Storyboard may be developed for
the Customer Web Pages as follows:
(1) Proposed Storyboard: Rick Youngblood shall develop a
proposed Storyboard. Rick Youngblood shall submit the
proposed Storyboard to Customer for review within a
reasonable time after approval of the Scoping
Document.
(2) Review Proposed Storyboard: Customer shall review
the proposed Storyboard in consultation with
Rick Youngblood, within ten days of receiving the proposed
Storyboard. The proposed Storyboard shall be deemed
accepted by Customer and approved within ten days
after Customer receipt of the proposed Storyboard
unless Rick Youngblood receives written notice from
Customer specifying changes to the proposed
Storyboard within such ten day period (“Storyboard
Change Request”).
(3) Storyboard Change Request: Rick Youngblood shall review
the Storyboard Change Request in consultation with
Customer and shall accept or reject each change
requested in the Storyboard Change Request. Changes
accepted by Rick Youngblood shall be used by
Rick Youngblood in developing required Storyboard.
Changes rejected by Rick Youngblood shall be identified in
written notice to Customer by Rick Youngblood explaining
the reasons for rejecting such change (“Storyboard
Rejection Notice”). Such Storyboard Rejection Notice
shall be submitted to Customer within a reasonable
time after Rick Youngblood receipt of the Storyboard
Change Request.
(4) Final Storyboard: Rick Youngblood shall submit to
Customer a final Storyboard within a reasonable time
after Rick Youngblood receipt of the Storyboard Change
Request. The Storyboard shall be subject to approval
of both parties using the foregoing procedures.
Section 3.04 -- Audiovisual Components Production:
Audiovisual Components shall be developed for the Customer
Web Pages as follows:
(1) Proposed Audiovisual Components: Rick Youngblood
shall prepare and develop the proposed Audiovisual
Components. Rick Youngblood shall submit the proposed
Audiovisual Components to Customer for review
within a reasonable time after approval of the Scoping
Document.
(2) Review Proposed Audiovisual Components: Customer
shall review the proposed Audiovisual Components in
consultation with Rick Youngblood, within ten days of
receiving the proposed Audiovisual Components. The
proposed Audiovisual Components shall be deemed
accepted by Customer and approved within ten days
after Customer receipt of the proposed Audiovisual
Components unless Rick Youngblood receives written
notice from Customer specifying changes to the
proposed Audiovisual Components within such ten day
period. (“Audiovisual Components Change Request”).
(3) Audiovisual Components Change Request:
Rick Youngblood shall review the Audiovisual Components
Change Request in consultation with Customer and
shall accept or reject each change requested in the
Audiovisual Components Change Request. Changes
accepted by Rick Youngblood shall be used by
Rick Youngblood in developing required Audiovisual
Components. Changes rejected by Rick Youngblood shall
be identified in written notice to Customer by
Rick Youngblood explaining the reasons for rejecting such
change (“Audiovisual Components Rejection Notice”).
Such Audiovisual Components Rejection Notice shall
be submitted to Customer within a reasonable time
after Rick Youngblood receipt of the Audiovisual
Components Change Request.
(4) Final Audiovisual Components: Rick Youngblood shall
submit to Customer a final Audiovisual Components
within a reasonable time after Rick Youngblood receipt of
the Audiovisual Components Change Request. The
Audiovisual Components shall be subject to approval
of both parties using the foregoing procedures.
Section 3.05 -- Design Document: Based upon the Scoping
Document, the Storyboard (if any) and the Audiovisual
Components, Rick Youngblood shall develop a Design Document.
Rick Youngblood shall submit to Customer the Design Document
within a reasonable time after approval of the Audiovisual
Components. The Design Document shall be deemed accepted
by Customer and approved upon receipt by Customer.
Section 3.06 -- Coding: Based upon the Design Document,
Rick Youngblood shall design the Customer Web Pages and shall
develop Coding for the Customer Web Pages which shall enable
the Customer Web Pages to perform the functions defined and
described in the Design Document. Rick Youngblood shall complete
development of the Customer Web Pages within a reasonable
time after completion of the Design Document.
Section 3.07 -- Implementation: Rick Youngblood shall prepare the
Customer Web Site by implementing the Customer Web Pages
on the Rick Youngblood System by the Implementation Date. Upon
completing implementation of the Customer Web Pages,
Rick Youngblood shall demonstrate, until the Acceptance Date, the
Customer Web Pages to Customer. Upon completing
demonstration of the Customer Web Pages, the Customer Web
Pages shall be deemed implemented.
Section 3.08 -- Acceptance: The Customer Web Pages shall be
deemed accepted by Customer ten days after Implementation
Date unless Defect Notice is received by Rick Youngblood by such
tenth day. Upon receiving Defect Notice from Customer within
such ten day period, Rick Youngblood shall review each asserted
Defect to determine if the Defect is valid. If in the reasonable
professional judgment of Rick Youngblood the Defect is valid,
Rick Youngblood shall correct the Defect and implement the
Customer Web Pages on the Rick Youngblood System for acceptance
by Customer. If in the reasonable professional judgment of
Rick Youngblood such Defect is not valid, Rick Youngblood shall submit
to Customer a written explanation of the reasons why such
asserted Defect is not valid. The written explanation of
Rick Youngblood set forth herein shall be deemed accepted by
Customer within five days after Customer’s receipt of the written
explanation unless Rick Youngblood receives from Customer written
notice rejecting such explanation and terminating this agreement
within such five day period. Upon receipt of Defect Notice from
Customer by Rick Youngblood as set forth above, the Customer Web
Pages shall be deemed accepted by Customer except as to the
Defects specified in the Defect Notice.
Section 3.09 -- Hosting: The Hosting Agreement as signed by
Rick Youngblood and Customer shall be incorporated into this
Agreement by this reference.
Section 3.10 -- License: Rick Youngblood hereby grants Customer a
non-exclusive license to use the Customer Web Pages and to use
the Documentation for the License Term subject to the terms and
conditions of this Agreement.
ARTICLE IV: COMPONENTS
Section 4.01 -- License: Customer hereby represents and
warrants that Customer has obtained all necessary authorizations,
permissions or licenses from the Developer to distribute and
provide the Customer Materials to Rick Youngblood. Customer
hereby represents and warrants that Customer has the authority to
grant the license granted by Customer to Rick Youngblood under this
Agreement. Customer hereby represents and warrants that use,
reproduction, display and performance of Customer Materials by
Rick Youngblood shall not infringe upon or violate any patent,
copyright, trade secrets or trademark rights of any third party or
violate any laws, including (without limitation) the United States
export laws (Export Administration Act, 15 CFR 730-774).
Section 4.02 -- Components: Customer hereby agrees to use the
Materials under the restriction and licensing arrangement of
Developer.
Section 4.03 -- Access: Customer hereby acknowledges and
agrees that access to the Customer Web Pages may be affected by
local market telecommunication network activity, capacity and
compatibility with third party communication equipment, Internet
access software and browser. Rick Youngblood hereby disclaims and
Customer hereby waives any and all Rick Youngblood responsibility
for any Defect in connection with local market
telecommunication network activity, capacity and compatibility
with third party communication equipment, Internet access
software and browser.
Section 4.04 -- Integrity: Customer hereby represents and
warrants that Customer Materials and any and all media provided
to Rick Youngblood by Customer shall not contain any authorization
code routines, viruses, time bombs or disabling routines.
Section 4.05 -- Continuation: The terms and provisions of this
Article IV shall survive termination and cancellation of this
Agreement.
ARTICLE V: INTELLECTUAL PROPERTY
Section 5.01 -- Proprietary Information: Title to Proprietary
Information, including all ownership rights to patents, copyrights,
trademarks and trade secrets in connection therewith shall be the
exclusive property of Rick Youngblood.
Section 5.02 -- Trade Secrets: Customer hereby acknowledges
and agrees that the Proprietary Information (excluding Coding
lawfully accessible through the Internet) derives independent
economic value (actual or potential) from not being generally
known to other persons who can obtain economic value from its
disclosure or use and not being readily ascertainable by proper
means by other persons who can obtain economic value from its
disclosure or use; is the subject of reasonable efforts by
Rick Youngblood under the circumstances to maintain its secrecy; and
is a trade secret as defined under Chapter 688 of the [State
Statute] Statutes [§688.002(4)] and the Restatements.
Section 5.03 -- Customer Materials: Rick Youngblood shall not have
or accrue any title or ownership interests to the Customer
Materials including any ownership rights to patents, copyrights
and trade secrets therein. Customer hereby grants Rick Youngblood a
non-exclusive, irrevocable, perpetual, world-wide, transferable
and unrestricted license to (i) use, reproduce, display, perform
and modify the Customer Materials; (ii) to integrate the Customer
Materials with the Proprietary Information; (iii) prepare
derivative works based on Customer Materials; (iv) distribute
copies of Customer materials to Consultants; and (v) grant
Consultants sublicenses to use, reproduce, display, perform,
modify and prepare derivative works for purposes of developing,
maintaining and hosting the Customer Web Pages.
Section 5.04 -- Confidentiality: Customer shall maintain
Confidential Information in strict confidence. Customer shall not
disclose Confidential Information except to Authorized Persons.
Customer shall not copy or use Confidential Information except
as otherwise permitted under the Agreement. The Proprietary
Information (excluding Coding lawfully accessible through the
Internet) shall be deemed Confidential Information of
Rick Youngblood.
Section 5.05 -- Link: Customer hereby acknowledges and agrees
that Rick Youngblood shall have the right to use the name of
Customer, including the Customer Web Site, for reference as a
customer of Rick Youngblood services for referral and marketing
purposes. Customer hereby authorizes Rick Youngblood to maintain
on the Rick Youngblood Web Site a Link to the Customer Web Site.
Section 5.06 -- Rick Youngblood Legend: Customer hereby
authorizes Rick Youngblood to include the Rick Youngblood Legend on
the Customer Web Page. Notwithstanding the foregoing,
Rick Youngblood shall have no duty or obligation to include the
Rick Youngblood Legend on the Customer Web Page.
Section 5.07 -- Reverse Engineering: Customer shall not reverse
engineer the Software and shall not allow the Software to be
reversed engineered.
Section 5.08 -- Continuation: The terms and provisions of this
Article V shall survive termination and cancellation of this
Agreement.
ARTICLE VI: PAYMENT
Section 6.01 -- Design Fee: Customer shall pay Rick Youngblood
one-half of the applicable Design Fee by the Order Date.
Customer shall pay Rick Youngblood one-half of the applicable
Design Fee on the Acceptance Date.
Section 6.02 -- Consulting Services: The Consulting Services
shall be performed by Rick Youngblood at the time and material rates
of Rick Youngblood prevailing at the time such services are rendered.
Customer shall pay Rick Youngblood the Consulting Fee.
Section 6.03 -- Registration Services: The Registration Services
shall be performed by Rick Youngblood at the fee set forth by
Rick Youngblood for such services as rendered from time to time.
Customer shall pay Rick Youngblood the Registration Fee.
Section 6.04 -- Promotion Services: The Promotion Services
shall be performed by Rick Youngblood at the fee set forth by
Rick Youngblood for such services as rendered from time to time.
Customer shall pay Rick Youngblood the Promotion Fee.
Section 6.05 -- Expenses: Customer shall pay all direct costs,
including (without limitation) Domain Name registration costs,
postage, shipping, telephone, insurance, travel, per diem, material
and reproduction costs incurred by Rick Youngblood in performing
Services.
Section 6.06 -- Taxes: Customer shall pay any and all applicable
taxes (excluding income taxes assessed against Rick Youngblood).
Section 6.07 -- Invoice: Rick Youngblood shall invoice Customer for
fees and expenses in connection with the Services. Customer
shall pay any such invoice in full on the due date thereof or
within thirty (30) days of receiving such invoice (whichever is
earlier).
ARTICLE VII: TERMINATION
Section 7.01 -- Termination Limitation: This Agreement and
each Development Order shall only be terminated or canceled as
provided under this Article VII.
Section 7.02 -- Term: This Agreement shall be valid for the
Term.
Section 7.03 -- Termination: Customer may terminate this
Agreement or a Development Order for convenience upon
providing thirty days advance Termination Notice to
Rick Youngblood.
Section 7.04 -- Cancellation: If a party violates its obligations
under this Agreement or a Development Order, the other party
may cancel the Agreement or such Development Order by
sending Cancellation Notice describing the noncompliance to the
non-complying party. Upon receiving Cancellation Notice, the
non-complying party shall have thirty days from the date of such
notice to cure any such noncompliance. If such noncompliance
is not cured within the required thirty day period, the party
providing Cancellation Notice shall have the right to cancel this
Agreement or the Development Order as of the thirty-first day
after the date of such Cancellation Notice (as specified in the
applicable Cancellation Notice).
Section 7.05 -- Nonpayment: Notwithstanding Section 7.04,
Customer failure to pay an invoice when due shall be sufficient
cause for cancellation of this Agreement and any Development
Order by Rick Youngblood as provided hereunder. Rick Youngblood
shall exercise such right of cancellation by submitting
Nonpayment Notice to Customer. Upon receipt of Nonpayment
Notice, Customer shall have ten days to cure the nonpayment. If
Customer fails to cure the nonpayment within the required ten
day period, Rick Youngblood shall have the right to cancel the
Agreement and any and all Development Orders as of the
eleventh day after the date of the Nonpayment Notice.
Section 7.06 -- Effect of Termination: Termination or
cancellation of this Agreement shall terminate or cancel (as the
case may be) this Agreement and each Development Order.
Termination or cancellation of a Development Order shall
terminate or cancel (as the case may be) such Development Order
only.
Section 7.07 -- Refund: Upon termination or cancellation of this
Agreement or a Development Order, Rick Youngblood shall be
entitled to retain all payments rendered to Rick Youngblood under
this Agreement or such Development Order for the Services or in
anticipation of the Services. Termination or cancellation of this
Agreement or a Development Order shall not terminate or cancel
any payment obligation of Customer under this Agreement or
such Development Order.
Section 7.08 -- Removal: Customer hereby acknowledges and
agrees that Rick Youngblood shall have the right to remove a
particular component, including (without limitation) the
Materials and Customer Materials used in the Customer Web
Pages, in the event use of such components is challenged or
opposed by a third-party.
Section 7.09 -- Delivery: Upon termination of the Hosting
Agreement and Customer request, Rick Youngblood shall deliver a
copy of the Customer Web Pages to Customer on the appropriate
media. Customer hereby agrees and acknowledges that Customer
Web Pages do not include the Materials. Customer shall be
responsible for acquiring and purchasing the Materials and
obtaining all necessary authorizations, permissions or licenses
from the Developer to use the Materials.
ARTICLE VIII: WARRANTY
Section 8.01 -- Services Warranty: The Services to be provided
by Rick Youngblood under this Agreement shall be performed on a
best efforts basis and shall conform to the standards generally
observed in the industry for similar services.
Section 8.02 -- Product Warranty: Rick Youngblood represents and
warrants that the Customer Web Pages shall perform
substantially as represented in the Design Document, as approved
by Rick Youngblood in writing, pursuant to Section 3.05.
Section 8.03 -- Express Warranties: Customer hereby
acknowledges and agrees that Rick Youngblood (including officers,
directors, agents, and Associates of Rick Youngblood) has not made
or granted any express warranties concerning the Services and
the Customer Web Pages except for the service warranty in
Section 8.01 and the Customer Web Pages warranty in Section
8.02.
SECTION 8.04 -- DISCLAIMER: THE WARRANTIES
SET FORTH IN SECTIONS 8.01 AND 8.02 ARE IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. [(“VENDOR”)]
(INCLUDING OFFICERS, DIRECTORS, AGENTS AND
ASSOCIATES OF [(“VENDOR”)]) HEREBY DISCLAIMS
AND CUSTOMER HEREBY WAIVES ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, AND
INCLUDING ANY WARRANTY THAT THE CUSTOMER
WEB SITE COMPLIES WITH ANY APPLICABLE LAWS
OR REGULATIONS.
Section 8.05 -- Limitation of Damages: Rick Youngblood shall not be
liable to Customer or to a third party under this Agreement in
connection with the use, performance and operation of the
Customer Web Pages, the Services and any loss of Customer or
third-party data or information for any lost profits, consequential,
exemplary, incidental or punitive damages, regardless of the form
of action, whether in contract or in tort, including negligence,
regardless of whether Rick Youngblood has been advised of the
possibility of such damages in advance or whether such damages
are reasonably foreseeable.
Section 8.06 -- Limitation of Liability: The liability of
Rick Youngblood for any reason and for any cause of action
whatsoever in connection with this Agreement, the Customer
Web Pages and the Services, regardless of the form of action,
whether in contract or in tort, including negligence, shall be
limited to the amount of money received by Rick Youngblood from
Customer pursuant to the Development Order from which such
damages or liability arose.
Section 8.07 -- Infringement: Customer shall release, defend,
indemnify and hold harmless Rick Youngblood (including officers,
directors, agents and Associates of Rick Youngblood) from and
against any and all claims, damages, liability, expenses, fees,
costs and attorney and paralegal fees arising in connection with
any third party claims of infringement or violation of any
ownership rights to patents, copyrights, trademarks or trade
secrets in connection with any use of Customer Materials by
Rick Youngblood. Customer shall defend and settle at its sole
expense all suits or proceeding arising in connection with any
such third party claim. Customer shall not enter into any
agreement which impairs the right of Rick Youngblood to use
Customer Materials and Links in accordance with this
Agreement. In all events, Rick Youngblood shall have the right to
participate in the defense of any such suit or proceeding through
counsel of its own choosing. If use of Customer Materials or
Links is disrupted as a result of a third party claim, Rick Youngblood
shall have the right to remove Customer Materials or Links as
provided under Section 7.08. The foregoing remedy shall be
non-exclusive and in addition to any other legal or equitable
remedies Rick Youngblood may have or accrue.
Section 8.08 -- Indemnification: Customer shall defend,
indemnify and hold harmless Rick Youngblood and its officers,
directors, employees and agents, from and against any and all
losses, costs, claims, suits, obligations, demands, damages,
liabilities, expenses and reasonable attorney and paralegal fees on
account thereof resulting from (i) any claims related to
performance of Customer Web Pages, use of Customer Web
Pages by Customer or Users (including, without limitation, any
claim for breach of warranty, libel, slander, invasion of privacy,
false advertising, claims of copyright infringement, patent
infringement, trademark infringement or dilution,
misappropriation of trade secrets, loss of data and information,
defamation, harassment, or fraud); (ii) injuries, including death to
persons or damage to property, theft, emotional distress, which
arise out of or result from the acts (or failure to act) of Customer
or Users using the Customer Web Pages and any breach by
Customer of the obligations of Customer under this Agreement;
(iii) and claim related to data or information supplied by
Customer to Rick Youngblood in connection with the Customer Web
Pages, including use of Customer Domain Name and (iv) the
fault or negligence of Customer including Customer intentional
wrongful acts. This Section 8.08 shall survive termination and
cancellation of this Agreement.
Section 8.09 -- Customer Indemnification: If a third party
receives a judgment from a court of competent jurisdiction
upholding claims for violations of trade secrets, proprietary
information, trademark, copyright or any patent rights resulting
from use of the Proprietary Information by Customer in a dispute
in which Rick Youngblood is a party, Rick Youngblood shall perform one
or more of the following actions (as determined by Rick Youngblood)
within one year of the date judgment in favor of such third
party’s claim is rendered by a court of competent jurisdiction:
(1) Replacement: Replace the Proprietary Information
with a non-infringing product of substantially
equivalent functional and performance capability;
(2) Modification: Modify the Proprietary Information to
avoid the infringement without substantially
eliminating the functional and performance capabilities
of the Proprietary Information;
(3) Obtain License: Obtain a license for use of the
Proprietary Information from the third party claiming
infringement for use of the Proprietary Information.
The remedies set forth herein shall be the sole and exclusive
remedies of Customer under this Agreement for any and all such
claims of infringement.
Section 8.10 -- Force Majeure: Rick Youngblood shall not be liable
for any failure to perform its obligations under this Agreement or
any failure of the Customer Web Pages or Rick Youngblood System
because of circumstances beyond the control of Rick Youngblood,
which such circumstances shall include (without limitation)
natural disaster, terrorism, riot, sabotage, labor disputes, war, any
acts or omissions of any government or governmental authority,
declarations of governments, laws, court orders, rejection of
Domain Name by Registration Company, transportation delays,
power failure, computer failure, failure of Customer computer
system, Rick Youngblood System downtime for routine maintenance,
network problems, telecommunications failure, failure of
Customer to cooperate with the reasonable requests of
Rick Youngblood, misuse of the Customer Web Pages by Customer
or a third party and breach of this Agreement by Customer.
Section 8.11 -- Employee Soliciting: Customer shall not induce
or solicit (directly or indirectly) any Associate to leave the
employment of Rick Youngblood or engage the services of an
Associate without the prior written consent of Rick Youngblood.
Section 8.12 -- Rejection: Customer hereby acknowledges and
agrees that the use or registration of the Customer Domain Name
(as requested by Customer) may be rejected by the Registration
Company or opposed by a third party. Rick Youngblood shall not be
responsible for any such rejection, challenge, or opposition.
Section 8.13 -- Compliance: Customer shall be solely
responsible for the truthfulness, accuracy, integrity, and
lawfulness of Customer Materials and compliance with
applicable laws and regulations.
Section 8.14 -- Continuation: The terms and provisions of this
Article VIII shall survive termination and cancellation of this
Agreement.
ARTICLE IX: MISCELLANEOUS
Section 9.01 -- Notice: Notices shall be in writing and shall be
deemed delivered when delivered by Certified or Registered Mail
– Return Receipt Requested – or by hand to the address set forth
below for Rick Youngblood and to the address set forth on the
signature page of this Agreement for Customer. Notices shall be
deemed given on the date of receipt - as evidenced in the case of
Certified or Registered Mail by Return Receipt.
Rick Youngblood:
Rick Youngblood - Website Designs
2400 Annette Dr
Section 9.02 -- Assignments: All assignments of rights under this
Agreement by Customer without the prior written consent of
Rick Youngblood shall be void.
Section 9.03 -- Entire Agreement: This Agreement contains the
entire understanding of the parties and supersedes previous
verbal and written agreements between the parties concerning the
subject matter of this Agreement.
Section 9.04 -- Equitable Remedies: The parties hereby
acknowledge that damages at law may be an inadequate remedy
to Rick Youngblood. Therefore, Rick Youngblood shall have the right of
specific performance, injunction or other equitable remedy in the
event of a breach of this Agreement by Customer.
Section 9.05 -- Amendment and Modifications: Alterations,
modifications or amendments of a provisions of this Agreement
shall not be binding unless such alterations, modifications or
amendments are in writing and signed by authorized
representatives of Rick Youngblood and Customer.
Section 9.06 -- Severability: If a provision of this Agreement or
a portion thereof is rendered invalid, void, unlawful, or
unenforceable, the remaining provisions or portions thereof shall
remain in full force and effect.
Section 9.07 -- Captions: The headings and captions of this
Agreement are inserted for convenience of reference and do not
define, limit or describe the scope or intent of this Agreement or
any particular section, paragraph, or provision.
Section 9.08 -- Counterparts: This Agreement may be executed
in multiple counterparts, each of which shall be an original, but
which together shall constitute one and the same instrument.
Section 9.09 -- Governing Law: This Agreement shall be
governed by the laws of the State of California,
without regard to any rules of conflict or choice of laws which
require the application of laws of another jurisdiction, and venue
shall be proper in City of Redding, Shasta county, California.
Section 9.10 -- Pronouns/Gender: Pronouns and nouns shall
refer to the masculine, feminine, neuter, singular or plural as the
context shall require.
Section 9.11 -- Waiver: Waiver of breach of this Agreement
shall not constitute waiver of another breach. Failing to enforce a
provision of this Agreement shall not constitute a waiver or
create an estoppel from enforcing such provision. Any waiver of
a provision of this Agreement shall not be binding unless such
waiver is in writing and signed by the party waiving such
provision.
Section 9.12 -- Relationship of the Parties: Nothing herein shall
be construed as creating a partnership relationship, employment
relationship, or agency relationship between the parties, or as
authorizing either party to act as agent for the other. Each party
maintains its separate identity.
Section 9.13 -- Arbitration: Any controversy or claim arising out
of or relating to this Agreement, or breach thereof, shall be
settled by arbitration in accordance with the Arbitration Rules of
MyTechnologyLawyer.com in Redding, CA.
Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. Qualified
Arbitrators shall be selected by the parties in accordance with the
Arbitration Rules of MyTechnologyLawyer.com. Each party
shall have the right of discovery as set forth in the Federal Rules
of Civil Procedure. The Arbitration shall be administered by
MyTechnologyLawyer.com.
Section 9.14 -- Assurances: Each party hereby represents and
warrants that all representations, warranties, recitals, statements
and information provided to each other under this Agreement are
true, correct and accurate to the best of their knowledge.
Section 9.15 -- Litigation Expense: In the event of litigation or
arbitration arising out of this Agreement, each party shall pay its
own costs and expenses of litigation or arbitration (excluding fees
and expenses of arbitrators and administrative fees and expenses
of arbitration).