This Master Contractor Agreement (“Agreement”) is made and entered between Webmation LLC (“Webmation”) and (“Client”) listed on the applicable Work Order.
WHEREAS, Client desires Webmation to provide consultation and marketing services meeting the specifications set forth herein (“Services”) and Webmation wishes to provide such services to Client.
NOW THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Webmation and Client agree to the following:
1.1 Engagement of Webmation. Client hereby engages the services of Webmation specified on the various consecutively numbered Work Order’s (e.g. Work Order 1, Work Order 2) that may be attached to this Agreement from time to time (“Work”) upon written agreement by both parties. The Work shall be performed as a “work for hire” and shall be completed according to the schedule stated on the applicable work order.
1.2 Change Control. If Client desires to make any modifications to any of the Services, including the design, layout, or content after having signed off on it, Client shall be responsible for submitting a “Change Order.” Change Orders must be approved in writing by the same Client authorized agent of this agreement and may result in a change to the overall cost and delivery schedule for the project. Change Orders will specify the following information: (i) The nature and description of the requested change; (ii) The individual initiating the request; (iii) The impact of the change on the overall project; (iv) The expected schedule impact of the change; and (v) The expected budget impact of the change. Change requests that are not approved in writing within three (3) business days will be assumed to be rejected, unless Webmation receives notification that Client needs more time to review the requested change.
2.1 Service Fee. In consideration of the services to be performed by Webmation hereunder meeting the specifications set forth and referred to herein, Client shall pay Webmation a service fee (“Service Fee”) equal to the amount listed in the applicable Work Order, which shall be payable as set forth within the given Work Order.
2.2 Commission. Webmation, at its discretion and Client’s acceptance, may provide Client more in-depth business development consulting, management services, and service fee discounts for a percent of the net increase in Client’s contracted and monthly revenue during the term of this agreement, continued use of Webmation’s marketing systems, and lifetime of new customer acquisitions as specified in the appropriate Work Order.
2.3 Pass Through Expenses. Webmation and Client acknowledge and agree that all expenses associated with the Work Order, including but not limited to payment of any licensing fees, software procurement, costs of purchasing graphics, photographs, web content, materials, supplies, third party advertising fees and all other elements shall be incurred by Client. Client is further responsible for all costs, expenses and other services that are not described or covered by this Agreement. Webmation will seek Client’s pre-approval for all pass-through expenses.
2.4 Payment Schedule. Client acknowledges that payments are due upon receipt of invoice and if payment is not received within ten (10) days of invoice Webmation may charge at its discretion a late fee of up to 10% of the total amount due and if payment is not received within thirty (30) days of invoice the maximum interest rate allowed by law will begin to accrue on Client’s account. Client agrees to be responsible for all payments related to collection of unpaid fees.
3.1 Listing in Roster of Webmation Customers. Following completion of the Work Order and final acceptance by Client, Webmation shall be permitted to list Client and Client’s Website on Webmation’s Website and in any of its marketing and advertising as collateral. The material included on Webmation’s Website may include a hypertext link to Client’s Website, screenshot of the Website, company logo, client testimonial, and case study showcase.
3.2 Webmation Credit on Website. Following completion of the Service and final acceptance by Client that includes website development, Client shall include a credit to Webmation on the footer of the Website. The credit to Webmation shall be designed and placed on the Website by Webmation but shall be in form and substance that is reasonably acceptable to Client. The credit will also include a hypertext link to Webmation’s Website and the use of Meta author tags in the HTML source code.
3.3 Limited Trademark License. Webmation and Client hereby give each other a non-exclusive license to utilize the trademark of the other party, in form reasonably acceptable to the trademark owner, for the purpose set forth in Section 3.1 and 3.2 hereof.
4.1 Services as a Work for Hire. Except as provided in Section 4.2 below, the Services provided by Webmation specifically for Client will be considered to be “works for hire.” As such, Client shall be considered the exclusive owner of all proprietary rights in and to such materials.
4.2 Rights to Portions of Services Not Created as Work for Hire. Any computer program, expertise, code, ad or materials developed by or for Webmation independently of this Agreement and which Webmation uses for purposes of its performance under this Agreement is and shall remain the sole property of Webmation. Client shall obtain no rights under this Agreement to any such Webmation code, Website Content, Written Copy, Graphics, Expertise, Methodologies, Ad Accounts or Ad Content, Follow-Up Systems or Services, including but not limited to the Webmation CRM modules, Event Manager, Affiliate Manager, Ecommerce Platform, E-learning System, Webmation Emailer, Social Media Manager, Integrated Telecom system or any future module provided for Client's use under this agreement.
4.3 Copyrights and Trademarks. Client represents to Webmation and unconditionally guarantees that any elements of text, graphics, photographs, designs, trademarks, or other artwork furnished to Webmation for inclusion in Client’s Website are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Webmation and its affiliates from any claim or suit arising from the use of such elements furnished by Client.
4.4 Hold Harmless. Client hereby indemnifies and holds Webmation, its agents, clients, servants, officers, directors, and employees harmless from and against all claims, suits, threats, demands, liabilities, settlements, negotiation costs and expenses, other costs, attorney fees relative to any third party’s claim that the Services provided or any of the Service content or domain name registration, infringes upon or interferes with any proprietary right of such third party, including but not limited to copyrights, trademarks, trade secrets, privacy rights, moral rights, patents, publicity rights, or any other right that may now or at an time in the future exist under any federal or state law.
5.1 Webmation has full and unrestricted power and authority to enter into this Agreement.
5.2 None of the Services provided by Webmation infringes upon the proprietary rights of any third party.
6.1 Webmation and Client acknowledge and agree that during the course of the relationship contemplated hereby that they are likely to come into contact and gain knowledge and access to information and materials that the other party deems to be confidential, proprietary or of strategic importance. Webmation and Client each agree that they shall maintain the strictest confidentiality of all such materials that they receive concerning the other party hereto. They shall not disclose such confidential information to any other party and they shall protect such confidential information from disclose using the same or higher standards as they use to protect their own confidential information.
6.2 Webmation and Client agree that confidential information shall be limited to disclosure within the organization of the recipient to those top management personnel and developers with a bona fide need to know such information as a necessary part of their contribution to the performance under this Agreement.
6.3 For the purpose of this Agreement, confidential information shall include any and all information that is of a proprietary, confidential or trade secret nature, of strategic importance, or is otherwise considered to be confidential or proprietary by the releasing party. Confidential information will include items such as business plans, marketing plans and strategies, formula, processes, data, software source codes, financial information, customer lists, and all other information deemed confidential by the parties. Confidential information shall not include items that are generally available to the public, generally known in the industry, exist in the public domain, is learned from an outside source independent from the relationship established by this Agreement or was known prior to the entering of this Agreement.
7.1 Client agrees that it shall defend, indemnify, save and hold Webmation harmless from any and all demands, liabilities, losses, costs and claims, including attorney’s fees associated with Webmation’s Services. This includes Liabilities asserted against Webmation, its agents, clients, servants, officers, directors, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold or any misinformation which is detrimental to another person, organization, or business by Client, its agents, employees or assigns.
8.1 This Agreement shall remain in effect until three years after the final effective date of a Work Order or the earlier termination of this Agreement as provided in this Article VIII.
8.2 This Agreement may be terminated by Client prior to the end of any term immediately if Webmation breaches any material term of this Agreement and fails to correct the breach within thirty (30) days after receipt of Client’s notice.
8.3 This Agreement may be terminated by Webmation prior to the end of any term immediately if Client breaches any material term of this Agreement and fails to correct the breach within thirty (30) days after receipt of Webmation’s notice.
8.4 In the event, a managed marketing work order is terminated prior to its full-term completion, Client will be responsible for paying (i) Webmation’s normal website development and monthly license rates; (ii) managed marketing service hours in excess of the monthly prorated term allowance at Webmation’s normal $175.00 hourly rate; and (iii) the difference between retail price and discounted price on all previous print and promotional orders made during the term.
8.5 Upon the effective date of any termination of this Agreement, all legal obligation, rights and duties arising out of this Agreement shall terminate except that: (i) Client shall remain obligated to pay any balance due to Webmation for services provided hereunder, including commissions for new customers generated during the term for the life of the customer; (ii) the Confidentiality Restrictions, Ownership of Proprietary Rights Provisions, Indemnity Provisions, Commission, and Independent Contractor Provisions of this Agreement shall continue to apply and shall survive the termination of this Agreement as ongoing covenants between the parties.
9.1. Independent Contractor Status. Webmation is an independent contractor for Client. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership or joint venture between the parties.
9.2. Governing Law. In interpreting the terms of this Agreement, Webmation and Client agree that the laws of the State of Virginia shall be applicable. All suits permitted to be brought in any court shall be venued in Fairfax County, State of Virginia.
9.3. Entire Agreement. This Agreement contains the entire agreement and understanding of Webmation and Client with the respect to the subject matter hereof and supersedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject matter of this Agreement. This Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representative of Webmation and Client. If any provision hereof is deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability of effectiveness of the remainder of the Agreement shall not be affected and this Agreement shall be enforceable without reference to the unenforceable provision. No party’s waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach.
Last Updated: March 11, 2019