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Web Design and Development Agreement

WORKS-FOR-HIRE DEVELOPMENT SERVICES AGREEMENT

(”Agreement”) is made effective when initial SOW is signed by both parties (the “Effective Date”) by and between Peak Studios (”Contractor”) and Contractee.

A. Contractor has expertise in the area of website design, web development and implementation.

B. Contractee desires to hire Contractor to design, develop and implement custom website components as described in the Statement of Work (SOW) attached to this agreement, on behalf of Contractee according to the specifications set forth in this agreement, the SOW, and the attached exhibits. Work will be on an “as needed” WORK-FOR-HIRE basis for an hourly rate as outlined in the SOW.

AGREEMENT
1. Services. Contractor agrees to design, develop and implement fully functional website components according to the specifications set forth in the Statement of Work (”SOW”) attached hereto as Exhibit A (the “Services”) for the websites inplacenews, inplacemusic and inplacesports on a Works-Made-For-Hire basis.

Contractor agrees to perform the Services in a professional and workmanship like manner compatible with current website technology and programming languages.

2. Ownership and Use of Deliverables. All work(s) done by Contractor (with the exception of third party software) shall become sole property of Contractee. Other than Third Party Software (as defined below) and Contractor Software (as defined below), all Services performed by Contractor on behalf of Contractee shall be listed in the SOW. The term “Deliverables” shall mean the final executable code (such as HTML or similar website code) apart from Third Party Software and Contractor
Software, graphics, artwork, text, layouts, arrangement and other content delivered to Contractee.

3. Third Party Software. To the extent any portion of the website utilizes Third
Party Software, Contractor represents and warrants that Contractee shall have a non-exclusive, perpetual, royalty-free license to use the Third Party Software in connection with Contractee websites as incorporated and delivered to Contractee by Peak Studios – January 2008 Contractor. Contractor shall ensure that Contractee has the necessary license(s) to use such Third Party Code in connection with all Websites and Contractee shall be deemed a licensee or sublicensee of such Third Party Software notwithstanding Contractee relationship or agreements with Contractor.

Contractor shall deliver to Contractee any and all other terms and conditions pertaining to Contractee right to use such Third Party Software including without limitation to any license or sublicense agreements. Contactor will notify Contractee when Contractee needs to purchase Third Party Software. If Contractee must purchase Third Party Software before Contractor can proceed, Contractor will be allowed an excusable delay as outlined in Paragraph “6. Excusable Delay.” (below) of this agreement.

4. CONTRACTOR Software. To the extent Contractor utilizes software or code owned by Contractor, Contractor hereby grants to Contractee , and its subsidiaries, parent or affiliated companies, a perpetual, royalty-free, nonexclusive license to utilize such software in connection with the Websites. Contractor shall notify Contractee of any and all Contractor Software incorporated into the Services prior to integration of such software or code.

Nothing contained in this Agreement shall prevent Contractee from modifying, updating, upgrading or maintaining, or working with another third party to modify, update, upgrade or maintain Contractee’s Websites, subject to Contractee’s continued right to use the Contractor Software solely in connection with the websites if Contractor is unable, or unwilling to maintain, upgrade, update or modify the website for any reason. Contractor agrees to provide Contractee with source code for the Software or place source code and software documentation with a third party escrow agent to facilitate Contractee ’s ability to maintain, upgrade, update or modify the website if, and only to the extent, Contractor is unwilling or unable to provide such services to Contractee .

5. Payment. As compensation for the Services and the rights granted to
Contractee herein, Contractee shall pay to Contractor;

(i) Contractee will pay 100% for all work with a total under $2000 prior to work being started.

(ii) Contractee will pay 50% or $2000 (whichever is greater) for all work with a total over $2000 prior to work being started.

6. Excusable Delays. To facilitate Contractor’s performance of the Services,
Contractee agrees to promptly provide Contractor with any information and materials reasonably required by Contractor to complete the Services. Any delays that may result from Contractee’s failure to provide such support will constitute an excusable delay, and the performance schedule or other affected provisions shall be revised accordingly.

7. Warranty. Contractor warrants that (a) Contractor will perform the
Services in a professional and efficient manner according to the SOW; (b)
Contractor has the authority to enter into this Agreement; and (c) the
Deliverables shall not infringe upon the proprietary rights of any third party, including, without limitation, any copyright, trademark, patent or trade secret.

8. Confidential Information:
(a) Contractor recognizes that he may have access to certain confidential and proprietary information of Contractee , including, but not limited to, Contractee’s business activities, products, research, know-how, technical knowledge, financial information, Contractee’s lists, business connections, sales representatives, branch offices, procedures, operations, research and development, technology, construction plans, methodologies, trade secrets and other technical or business information, whether obtained by Contractor in writing, verbally or by observation (the “Confidential Information”).

(b) Confidential Information shall not include information: (i) that is in the public domain or comes into the public domain other than as a result of action or inaction by Contractor in breach of this Agreement; (ii) which has been rightfully furnished to Contractor by a third party without restriction on disclosure or use; (iii) which can be demonstrated by documentary evidence to have been in the possession of Contractor prior to disclosure; or (iv) which is disclosed pursuant to judicial or governmental requirement.

(c) Contractor acknowledges and agrees that: (i) the Confidential Information constitutes valuable trade secrets of Contractee; (ii) Contractor will use the
Confidential Information solely in accordance with the provisions of this
Agreement and/or the SOW; and (iii) he will not disclose, or permit to be disclosed, the Confidential Information of Contractee to any third party (including any dealer of Contractee) without Contractee’s prior written consent. Contractor will take all reasonable precautions necessary to safeguard the confidentiality of Contractee’s Confidential Information, including, at a minimum, those precautions taken by Contractee to protect its own Confidential Information.

9. Term and Termination.
(a) Term. This Agreement will commence as of the Effective Date and shall continue for the term set forth in Exhibit A attached hereto, unless earlier terminated as set forth in this section.

(b) Termination. Either party may terminate this Agreement upon one day prior written notice of termination to the other party. Contractor may, upon written notice to Contractee, terminate this Agreement if: (i) Contractee fails to pay Contractor any amount due to Contractor under this Agreement, unless specified differently in SOW; or
(ii) Contractee terminates or suspends its business activities, becomes insolvent, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.

(c) Effective Termination. Upon the expiration or termination of this
Agreement for any reason: (i) upon payment of all fees due and owing to Contractor under this Agreement, Contractor shall deliver to Contractee all Deliverables, documents and other materials relating to the provision of the Services; (ii) Contractor shall return any and all Confidential Information in his possession to Contractee; and (iii) sections 2, 3, 4, 6, 7 and 8 shall survive termination of this Agreement.

(d) Upon written Notice of Termination (by email or other method) Contractor Agrees NOT to enter ANY hosting servers (Virtual or otherwise) belonging, rented or leased by Contractee or altar site direction, code or functionality of ANY of Contractee’s sites. Should Contractor or any third party given access by Contractor enter servers or site(s) Contractee will consider this a gross intrusion and violation and whereas Contractee retains all legal remedy criminal (federal or local) or civil (federal or local).

10. Miscellaneous. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing. Neither party will assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent. This Agreement will be governed by and construed in accordance with the laws of the State of Wisconsin, not including its rules regarding conflicts of law. This Agreement, including any exhibits attached hereto, contains the entire agreement of the parties with respect to the subject matter and supersedes all previous communications, representations, understandings and agreements between the parties with respect to said subject matter.

11. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF COLORADO, AND THE VALIDITY, INTERPRETATION AND LEGAL EFFECT OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO APPLICABLE TO CONTRACTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN THE STATE OF COLORADO (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES UNDERCOLORADO LAW). THE COLORADO COURTS (STATE AND FEDERAL), SHALL HAVE SOLE JURISDICTION OF ANY CONTROVERSIES REGARDING THIS AGREEMENT; ANY ACTION OR OTHER PROCEEDING WHICH INVOLVES SUCH A CONTROVERSY SHALL BE BROUGHT IN THOSE COURTS IN Boulder COUNTY AND NOT ELSEWHERE. THE PARTIES WAIVE ANY AND ALL OBJECTIONS TO VENUE IN THOSE COURTS AND HEREBY SUBMIT TO THE JURISDICTION OF THOSE COURTS. ANY PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY, AMONG OTHER METHODS, BE SERVED UPON BOTH PARTIES BY DELIVERING IT OR MAILING IT, BY REGISTERED OR CERTIFIED MAIL, DIRECTED TO THE ADDRESS BELOW WRITTEN OR SUCH OTHER ADDRESS AS YOU MAY DESIGNATE. ANY SUCH PROCESS MAY, AMONG OTHER METHODS, BE SERVED UPON THE ARTIST OR ANY OTHER PERSON WHO APPROVES, RATIFIES, OR ASSENTS TO THIS AGREEMENT TO INDUCE PARTIES TO ENTER INTO IT, BY DELIVERING THE PROCESS OR MAILING IT BY REGISTERED OR CERTIFIED MAIL, DIRECTED TO THE ADDRESS FIRST ABOVE WRITTEN OR SUCH OTHER ADDRESS AS THE ARTIST OR THE OTHER PERSON CONCERNED MAY DESIGNATE IN THE MANNER DESCRIBED. ANY SUCH DELIVERY OR MAIL SERVICE SHALL BE DEEMED TO HAVE THE SAME FORCE AND EFFECT AS PERSONAL SERVICE WITHIN THE STATE OF COLORADO.

CONTRACTOR: Peak Studios

SOW Basis and References:
1) Work is based on discussions between:
a) Contractee, as designated in SOW.
c) Quince or Jeremy Wyss with Peak Studios or other employees of Peak Studios as designated by Quince or Jeremy Wyss.
d) And, if required, other Contractee contractors working on the task, project, or system implementation associated with the work request.

2) Requirements and proposals described in:
a) Contractee requirement documentation and related documents passed to Peak Studios that may exist for a specific Contractee project, implementation, and/or system development project.
b) Discussions with Contractee.
c) Going forward, future work requests for specific work described in the request and future documents as required sent to Peak Studios.
Work Requests:
1) Work requests can be a fixed dollar price bid, or an estimated range of billable
Hours with hourly wage. The work request items that follow below apply to fixed price bid and estimated billable hours, even though only estimated billable hours may be mentioned.

2) Work requests must have a title and date. In addition, a work request number may be used.

3) Work requests will be sent to Contractor in written form via e-mail, e-mail attachment, fax, or via traditional mail delivery services (e.g., US Mail, UPS, FedEx, etc.).

4) Final approval for work request completion must be approved by
Contractee or other individual(s) designated by Contractee .

5) Contractor and Contractee will approve, and then date and sign the request before work will begin. It will be assumed that people signing work requests have the authority to do so.

6) Contractor must send invoices for work to be performed to receive payment for services. Billable services must be approved by Contractee before Contractor sends invoice.

7) Invoices sent by Contractor will reference the work request by date and title. If a work request number is used, it should be included in the Contractor’s invoice.

8 ) Interim invoices may be sent for services as/if agreed upon by Contractor and
Contractee. For example, work requests that require durations longer than one month, or more than 10 hours of billable work. Contractee and Contractor must agree on the number and period for interim invoices, as well as the final invoice.

9) Contractor work approval and payment:
i) Work must be accepted and approved by Contractee before an invoice will be paid.
ii) All invoices must be approved by Contractee approving authority before payment.
10) Contractor will make an accurate estimate of billable-hours for services
required in work request. Work can be estimated in a range of hours, e.g., 16-
20 hours. If contractor completes a portion of the billable-hours estimate and anticipates that the estimate will be exceeded, Contractee must be notified immediately and Contractor should stop work until the situation can be addressed with Contractee, unless otherwise agreed upon in the work request. This will be considered an excusable delay referenced in Paragraph “6. Excusable Delays” of the “Website Services Development Agreement” that refers to this SOW (Exhibit A) and SOW 11) below.

11) Excusable delays for Contractee are addressed in Paragraph “6. Excusable Delays” of the “Website Services Development Agreement” that refers to this SOW (Exhibit A). Contractor and Contractee will revise schedule and/or delivery deadlines where required.

12) Delivery dates and deadlines will be established for each work request.
Specifically:
a. Dates/deadlines can be ranges, e.g., “between June 4-8, 2008.”
b. Dates/deadlines should include a mutually agreed upon contractor delay notification point. For example, “Contractor will notify Contractee 7 days before delivery deadline that the Contractor cannot deliver by the agreed upon delivery date.” Or, “Contractor will notify Contractee before half the estimated billable hours have been completed.”
c. Resulting action and continuation of Contractor work in terms of delay in delivery, and/or non-performance, is at Contractee discretion and can include one or more of the following:
i. Mutual agreement for new delivery date.
ii. Cancellation of work request.
iii. New work request.
iv. Direct contractor to stop work until further notice. Contractor will be paid for work authorized by Contractee up to the point in time the stop-work notice is sent to Contractor. However, Contractee will not pay Contractor for work remaining/completed after the stop-work notice is sent. Contractee will use standard modes of communication (phone, e-mail, etc.) and contract information (phone number, e-mail address, etc.) provided by Contractor. Initial notification can be oral (e.g., phone, voice-mail, or in person), but will be followed by a written notice, delivered by e-mail, fax, or document deliver service (U.S. Mail, UPS, FedEx, or etc.).
v. No payment for Contractor services in the event of any Contractor agreement breeches.
13) Both Contractee and Contractor will define or specify, and agree on, what is considered “completed work” in terms of work request and invoice payment(s).

14) Contractee can cancel an individual work request for any reason immediately, without notice to contractor. Notification to Contractor will be as soon as
Contractee can contact the Contractor. Contractee will use standard modes of communication (phone, e-mail, etc.) and contract information (phone number, e-mail address, etc.) provided by Contractor. Initial notification can be oral (e.g., phone, voice-mail or in person), but will be followed by a written notice, delivered by e-mail, fax, or document deliver service (U.S. Mail, UPS, FedEx, or etc.). Upon cancellation or “stop-work” notice to Contractor, Contractor will invoice Contractee for unpaid hours worked up to the time notification is sent, as described in this Agreement and SOW.

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