This agreement was last modified on May 1, 2020.
These terms and conditions (“Elliptic Marketing T&Cs”) govern website development estimates and invoices (each, an “Estimate”) entered into between Elliptic Marketing, LLC. (“Elliptic Marketing“), on the one hand, and a “Client” and/or its “Agency” (individually or collectively, the “Client” and either or both as identified on the Estimate), on the other hand. Any and all Estimates are subject to being accepted by Elliptic Marketing in its sole discretion as evidenced by its approval or confirmation in writing (including by email).
Upon acceptance of an Estimate by Elliptic Marketing, these Elliptic Marketing T&Cs and any accepted Estimate(s) are collectively referred to as the “Development Agreement” or “Agreement.” No reference or incorporation of any other terms and conditions (other than these Elliptic Marketing T&Cs) that may be exchanged by or among the parties will have legal force or effect unless the parties to such Estimate agree in such Estimate in writing expressly to replace and supersede these Elliptic Marketing T&Cs with such other terms and conditions. Capitalized terms used in this Agreement not otherwise defined herein shall have the meaning as defined in the Estimate, or if not defined herein or in the Estimate, as reasonably understood by the nature and context in this Agreement and/or the Estimate.
The total compensation for the development of the Website shall be as set forth in the Estimate.
Elliptic Marketing will provide the services identified in the Estimate. Elliptic Marketing will provide these services in a professional manner, and in accordance with applicable professional standards.
Elliptic Marketing will provide its Deliverables to the Client as a functional prototype and additionally as compressed source code. The Client understands that it may need particular software and expertise to use the deliverables. If the Client would like its deliverables in a specific file format, the Client must request to have the format included in the Estimate.
A “Change Request” is any request for work outside the scope of the Estimate.
If such a request is made, the Elliptic Marketing will notify the Client that it is a Change Request. If the Client still wants to proceed with the Change Request, the Elliptic Marketing will bill the work on a time and materials basis, at the Elliptic Marketing’s standard hourly rate of $125/hr. The Elliptic Marketing may also extend its delivery schedule.
If the Change Request alters the scope of the project by more than 10%, the Elliptic Marketing may submit a new proposal to the Client.
The Elliptic Marketing will invoice the Client according to the Estimate. Client shall pay all invoices within 30 days of receipt.
In addition to Elliptic Marketing’s fees, the Client will be invoiced for Elliptic Marketing’s expenses. Elliptic Marketing’s travel and lodging expenses will be invoiced to the Client without markup. Other Expenses incurred by the Elliptic Marketing in performing services to the Client will be invoiced to Client at Elliptic Marketing’s standard mark-up of 20%. Other Expenses include, without limitation, font licenses, postage, shipping, models, presentation materials, photocopies, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, software licenses, online access, and Software as a Service fees.
Overdue balances may be charged a monthly service fee of 1.5% (or the greatest amount allowed by law).
Elliptic Marketing will use commercially reasonable efforts to perform the Services within the schedule outlined in the Estimate. Elliptic Marketing’s delivery timeframe depends upon the Client’s prompt response to any questions or requests for Client materials.
Elliptic Marketing may hire third party developers or service providers (“Development Agents”) as independent contractors.
Testing & Acceptance.
Elliptic Marketing shall use commercially reasonable efforts to test Deliverables before providing them to the Client.
If the project includes XHTML or HTML markup and CSS templates, the Elliptic Marketing will use HTML5 markup and CSS3 for styling. Elliptic Marketing will test the markup and CSS in current versions of Safari, Chrome, Firefox, and Edge. Elliptic Marketing will not test websites in older browsers, unless specifically identified in the Estimate.
The Client shall promptly review all deliverables, and must notify Elliptic Marketing of any failure to conform to the Estimate within five (5) business days of receipt. If Elliptic Marketing does not receive a timely notification, the Deliverable will be deemed accepted. The Client’s notification must clearly identify problems with the Deliverable, if any.
Client must promptly: (a) coordinate any decision-making activities with 3rd parties; (b) provide Client Content in a form suitable for reproduction or incorporation into the Deliverables; and (c) proofread deliverables.
Client agrees to provide all content for the website such as text, images, video and sound in an electronic format. Client understands that the Elliptic Marketing may choose not begin to customize the website until all content is received at least fifteen (15) days before the according milestone. If the Client does not supply the Elliptic Marketing complete text and graphics content for all web pages contracted for by the Completion Date as listed in the Estimate, any fees incurred up to the current milestone become due and payable.
The Client represents to the Elliptic Marketing and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Elliptic Marketing for inclusion in web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Elliptic Marketing and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
Elliptic Marketing Rights in Deliverables.
Elliptic Marketing retains the rights to all Preliminary Works that are not incorporated into a Final Deliverable.
Elliptic Marketing Portfolio.
Elliptic Marketing may display the Deliverables in Elliptic Marketing’s portfolios and websites, and in galleries, design periodicals and other exhibits for the purposes of professional recognition. Likewise, the Elliptic Marketing may publicly describe its role in the Project. The Client agrees to allow Elliptic Marketing to use the Client’s logos in Elliptic Marketing’s portfolios.
If the Elliptic Marketing incorporates credits into the Deliverables, any use of the Deliverables shall continue to bear the credits in the same form, size and location.
Elliptic Marketing Tools.
The Elliptic Marketing may incorporate certain Developer Tools into the Deliverables.
“Developer Tools” means all development tools developed or used by Elliptic Marketing in performing the Services, including without limitation: pre-existing and newly developed software, Web authoring tools, type fonts, and application tools.
Elliptic Marketing through an agreement may have been provided the use of a 3rd party website template. The template may be used by Elliptic Marketing to build a website for the Client. These templates are owned by the 3rd party provider and the Client agrees they may not put them on a diskette, CD, website or any other medium and offer them for redistribution or resale.
Upon final payment of this contract, the Client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Rights to photos, graphics, source code, source files, computer programs, or any other 3rd-party software or content, are specifically not transferred to the Client, and remain the property of their respective owners.
In the event Developer Tools are incorporated into any Final Deliverable, then Elliptic Marketing grants Client a non-exclusive license to use Developer Tools to the extent necessary to use the Final Deliverables. Elliptic Marketing retains all other rights in the Developer Tools.
Elliptic Marketing and Client Relationship
This Agreement does not create an exclusive relationship. The Deliverables are not a “work for hire” under Copyright Law.
Discretionary Termination, Upon Notice.
Either party may terminate this agreement at any time, on 30 days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that 30 day period.
Discretionary Termination by Client.
IF: Client uses this discretionary termination provision, THEN: Elliptic Marketing will retain all payments already made as of the notification date, and Client shall pay Elliptic Marketing (a) for all expenses incurred as of the date of notification of termination, (b) an early termination fee equal to 25% of the total project fee, and (c) no Intellectual Property (IP) rights will be transferred.
Discretionary Termination by Elliptic Marketing.
IF: Elliptic Marketing uses this discretionary termination provision, THEN: (a) Elliptic Marketing will retain (or, if not paid in advance, will be due) all costs already incurred and a prorated portion of the fees for services performed up to the termination date, (b) Elliptic Marketing will assist Client in transferring the project to a new developer, and (c) Elliptic Marketing will assign sufficient intellectual property rights to Client to allow Client to continue the project.
Termination for Bankruptcy.
Subject to any restrictions imposed by law, either party may immediately terminate this Agreement, if the other party either: (1) ceases to do business in the normal course; (2) becomes insolvent; (3) admits in writing its inability to meet its debts or other obligations as they become due; (4) makes a general assignment for the benefit of creditors; (5) has a receiver appointed for its business or assets; (6) files a voluntary petition for protection under the bankruptcy laws; (7) becomes the subject of an involuntary petition under the bankruptcy laws that is not dismissed within 60 days. In the case of termination for bankruptcy, Elliptic Marketing will retain all payments already made as of the notification date, and Client shall pay Elliptic Marketing (a) for all expenses incurred as of the date of notification of termination, and (b) no Intellectual Property rights will be transferred.
Termination for Breach.
If a material breach of this Agreement is not cured after 15 business days after a party’s receiving written notice of the breach, then the non-breaching party may terminate this Agreement immediately upon notice.
Upon expiration or termination of this Agreement: (a) each party shall return (or, at the disclosing party’s request, destroy) the Confidential Information of the other party, and (b) other than as expressly provided in this Agreement, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
Client represents and warrants to Elliptic Marketing that:
- Client owns sufficient right, title, and interest in the Client Content to permit Elliptic Marketing’s use of the Client Content in performing the Services,
- To the best of Client’s knowledge, Elliptic Marketing’s use of the Client Content will not infringe the rights of any third party,
- Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
- Client shall comply with all laws and regulations governing the Services and Deliverables.
Elliptic Marketing Representations.
Elliptic Marketing represents and warrants to Client that:
- The Final Deliverables will be Elliptic Marketing’s original creative work, except that Elliptic Marketing may incorporate Client Content, work from its Agents and third party material (for example, stock photos, or Software as a Service).
- To the best of Elliptic Marketing’s knowledge, the final Deliverables will not infringe upon the IP rights of any third party. However, Elliptic Marketing will not be conducting any type of IP clearance search (for example, Elliptic Marketing will not be conducting a copyright, trademark, patent or design patent clearance search).
Limitation of Liability
The services and the work product of the Elliptic Marketing are sold “as is.” In all circumstances, the Elliptic Marketing’s maximum liability to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the amount paid by the Client.
In no event shall Elliptic Marketing be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Elliptic Marketing, even if Elliptic Marketing has been advised of the possibility of such damages.
Client understands that additional software and services used the development of the site, requires the acceptance of their respective terms and condition by the Client. Client provides the Elliptic Marketing power of attorney to sign on behalf of the Client any 3rd-party agreements for the user of software or services necessary for the development of services outlined in the Estimate.
Client is responsible for paying all fees necessary for 3rd party services or software required for the correct development of the services outlined in the Estimate including, but not limited, to transaction fees assessed by merchant service providers and Software-as-Service subscriptions.
Except for the express representations and warranties stated in this agreement, Elliptic Marketing makes no warranties whatsoever. Elliptic Marketing explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
Either party may invoke Force Majeure to excuse the failure of its timely performance, if such failure was caused by: fire; flood; hurricane, tornado, or other severe storm; earthquake; act of war; sabotage; pandemic; terrorism; riot; interruption or failure of electrical or telecommunications service (for example, Internet failures); or failure of suppliers, subcontractors, and carriers to substantially meet their performance obligations.
Failure to make a payment may only be considered a Force Majeure event if caused by an interruption in a third-party payment systems that otherwise qualifies as a force-majeure event.
A party invoking force majeure to excuse its failure of timely performance must show that the force-majeure event(s) and their relevant effects (i) were beyond the invoking party’s reasonable control and (ii) could not have been avoided through the exercise of due care by the invoking party.
All notices shall be sent by email. Permissible addresses for notice include those stated in this Agreement and any other address reasonably communicated.
A notice that is sent by email but is not read by the addressee is nevertheless effective if, but only if, it has been (a) sent from an email account that has been designated for notice and (b) delivered to an email account that has been designated for notice. Email accounts designated for notice are identified at the top of this Agreement, and may be amended only by written notice.
Early Neutral Evaluation.
At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to nonbinding early neutral evaluation, in Miami, Florida, in accordance with the Early Neutral Evaluation procedures of the American Arbitration Association.
At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to binding arbitration in Miami, Florida, through the American Arbitration Association. The prevailing party in any dispute resolved by arbitration or litigation will be entitled to recover its costs and attorneys’ fees.
The parties irrevocably consent to the jurisdiction of the state and federal courts located in Miami-Dade County. The parties hereby waive any jurisdictional or venue defenses and consent to service of process by certified mail.
Governing Law. This Agreement will governed by the laws of the state of Florida without regard to its conflict or choice of law rules.
Design Terminology: Any design terminology in the Estimate is defined according to standard web development industry usage. Any dispute as to the meaning or scope of development terminology will be determined in good faith by Elliptic Marketing.
IF / THEN Construction. Use of capitalized “IF:” and “THEN:” in a sentence is intended only enhance readability. It has no special meaning apart from its lower case meaning.
Modification & Waiver. Any modification of this Agreement must be in writing. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.
Headings. Section headings are provided for convenience only and do not affect the meaning of any terms.
Integration. This Agreement comprises the entire understanding of the parties and supersedes all prior agreement and understandings.
Client Content – all materials, information, photography, writings and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables.
Third Party Materials – works that are incorporated into the Final Deliverables, but not created by Elliptic Marketing or owned by Client. Third Party Materials includes, for example, plugins, code libraries, stock photography or illustration.
Preliminary Works – all works including, but not limited to, concepts, prototypes, proofs of concept, sketches, or other alternate or preliminary code and documents developed by Elliptic Marketing and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Deliverables.
Deliverables – the services and work product specified in the Estimate to be delivered by Elliptic Marketing to Client, in the form and media specified in the Proposal.
Final Deliverables – the final versions of Deliverables provided by Elliptic Marketing and accepted by Client.