Customer wants to receive certain services (referred to as “Services”) from Ventus, and Ventus agrees to provide these Services to Customer according to the terms and conditions of this Agreement.
Now, in consideration of our mutual promises and agreements, and for other valuable consideration, the Parties agree as follows:
(a) Included Services. You are hiring Ventus to perform website design, hosting, and maintenance services (collectively the “Services”) on Your behalf. The specific Services are described below in this Section, unless otherwise agreed to in writing.
(i) We agree that Ventus is only responsible for the Services listed in this Section unless We mutually agree otherwise.
(ii) We agree that the Services may be modified or expanded during the term of the Agreement, upon written agreement by authorized representatives of both Parties.
(iii) You agree that Ventus may use subcontractors and consultants to perform some of the Services to be provided under this Agreement.
(b) Fees. You will pay Ventus for all Services rendered as specified in this Agreement. The cost for all services (the “Fees”) will be paid in accordance with the terms of this Agreement and do not include taxes, levies, duties, governmental charges, and expenses (except for Ventus’ income taxes), which will be billed separately to and paid by You. The Services requested by You must be agreed to in writing by the Parties. The Fees for each service are set forth below:
Starter Website Setup Fee
| Setup Fee | $599.00 |
| Included Services |
|
Ongoing Monthly Service Fee
(Included for the first month Setup Fee, then automatically billed monthly)
| Hosting Fee | $129.00 monthly automatic charge |
| Included Services |
|
A-la-carte Services
| Hourly Rate | $115.00 |
(c) Expenses and Additional Services. You shall reimburse Ventus for reasonable expenses and services incurred in connection with the performance of the Services, including software licenses, stock media (photography, videos, audio, stock media), additional copywriting, and any requested working files such as Photoshop, Illustrator, or InDesign files.
Monthly auto-payments will be charged to Your credit card. The monthly amount will be based on the selected Services described in Section 1 above. You cannot offset or withhold any payments. Late payments will accrue interest charges at the highest rate allowed by law, payable monthly. If any amounts become past due, Ventus may withhold further Services until all outstanding payments are made, without breaching its obligations under this Agreement.
(a) Ventus will create the website according to Your specifications based on the Strategy Meeting. Further revisions will be made only if Ventus has not accurately implemented Your requests from the Strategy Meeting.
(b) Revisions shall be communicated via email to maintain a comprehensive record and prevent project delays. Video or phone calls for discussing website revisions may incur an additional fee and extend the project timeline. If a video call is allowed, You agree that the call will be recorded.
(c) If You want to introduce new functionality or changes to Your website after work has started, Ventus will determine whether an extra charge is necessary or if a separate project will be needed. If the request requires an extra charge, Ventus will notify You in writing and obtain approval in advance.
Ventus tests websites on the most recent browser versions, excluding any versions of Internet Explorer.
After the initial twelve (12) months and upon full payment of the Setup Fee, You assume responsibility for all software licenses and updates, unless the Maintenance Plan Upgrade is purchased. Failure to keep the website updated may result in malfunctions or security vulnerabilities, for which Ventus is not liable. The Maintenance Plan Upgrade does not include new functionality changes or tasks exceeding one (1) hour of work, which will be subject to the A-la-carte rate of $95.00 per hour, with a one (1) hour minimum charge.
The website cannot be transferred from Ventus’s hosting service until all Setup Fee installment payments are paid in full. After the initial twelve (12) months, if You choose to transfer the website to another host, it will no longer be eligible for the Maintenance Plan Upgrade or permitted to use any of Ventus’s software licenses.
Ventus may recommend graphic designers or digital marketers to You. Ventus is not liable for any complications, errors or damages caused by any such third-party recommendations.
If the project remains stalled for more than thirty (30) days, not due to Ventus’s fault or action, and substantial work has been completed, the remaining balance for the project will be billed to You. The payment plan for the selected Services, including hosting fees, will continue as provided in Section 1, regardless of whether Ventus fulfills its obligations to finalize the website.
Ventus is not liable for any financial loss incurred by You due to website downtime or malfunctions.
Ventus agrees to operate in full compliance with all governmental laws, regulations and requirements applicable to the duties conducted hereunder. Ventus will obtain and maintain in force, at its own expense, all licenses, permits and approvals required for its performance under this Agreement.
Ventus does not guarantee ADA compliance due to the evolving nature of regulations in this domain. Ventus recommends You separately engage AccessiBe for ADA compliance purposes.
Ventus does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Ventus warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. VENTUS DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. VENTUS SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO YOU BY VENTUS DURING THE TERM OF THIS AGREEMENT, PURSUANT TO ANY SOW OR OTHERWISE. YOUR EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
Intellectual property rights in all deliverables created for You under this Agreement belong to You. However, intellectual property rights in pre-existing works and other deliverables made by Ventus remain Ventus’s property, with a non-exclusive license granted to You for internal use. This Agreement does not grant You ownership of Ventus’s underlying template content or website(s). You are responsible for obtaining necessary permissions for materials provided to Ventus, and Ventus disclaims responsibility for any resulting copyright infringements.
You agree to indemnify, defend, and hold harmless Ventus and its affiliates, officers, directors, employees, and agents from any third-party claims, losses, liabilities, damages, expenses, and costs arising from Your gross negligence, willful misconduct, or material breach of this Agreement, including copyright infringement. Your liability will be reduced proportionally if Ventus’ acts or omissions contributed to the liability. Ventus must provide prompt written notice of any claim and cooperate in the defense. This indemnity does not cover claims arising from a failure to provide prompt notice prejudicing the defense.
THIS SECTION STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
IN NO EVENT SHALL VENTUS BE LIABLE UNDER THIS AGREEMENT TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. VENTUS’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY YOU TO VENTUS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
You agree to comply with all of Ventus’ reasonable requests and to provide Ventus’ personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Services under this Agreement.
This Agreement shall commence on the Effective Date and thereafter shall remain in effect until terminated by either Party as set forth in the Termination provisions of the Agreement.
(a) Termination for Breach. Either Party may terminate this Agreement if the other Party breaches a material covenant, commitment, or obligation, which remains uncured after written notice of ten (10) days for monetary breaches and thirty (30) days for non-monetary breaches. The only non-monetary breach available to You that would justify termination under this Section is non-performance by Ventus or untimely performance not cured within thirty (30) days that is not due to any delay on Your part whatsoever. If the website is built to Your specifications stated in the Strategy Meeting and You do not like the final product, You may request a revision subject to Section 3(c), above.
(b) Obligations upon Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. You shall pay Ventus for all Services rendered prior to the effective date of termination.
During the term of this Agreement and for two (2) years following the expiration or termination date of the Agreement, You agree not to directly or indirectly solicit for employment or services of any contractor, employee or personnel of Ventus.
The Parties are independent contractors, and nothing in this Agreement creates an employment, agency, partnership, or joint venture relationship between them.
Neither Party will be liable for any failure or delay in performance under this Agreement, except for payment obligations, due to circumstances beyond its reasonable control, including acts of God, government regulations, war, terrorism, labor disputes, pandemics, epidemics, natural disasters, or failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment.
If there is any dispute arising out of this Agreement, We must first try to resolve the dispute amicably before initiating any legal action. If there is no amicable resolution within thirty (30) days of either’s party’s first attempt to resolve the aforementioned dispute, We must participate in formal mediation conducted by a certified mediator. We agree that We will meaningfully participate in mediation. If there is no resolution at mediation or mediation is not completed within 120 days after either party’s first attempt to resolve the dispute, We may proceed to litigation. Notwithstanding the foregoing, this section does not apply in disputes arising from violation of the Confidentiality and/or Non-Solicitation provisions of this Agreement. In these instances, the aggrieved party may immediately initiate any applicable legal action.
This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any litigation arising out of this Agreement will be brought solely in any state or federal court located in Broward County, Florida. We hereby submit to the exclusive jurisdiction and venue of any such court.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE OUR RIGHT TO A JURY TRIAL IN CONNECTION WITH THIS AGREEMENT, THE TRANSACTION CONTEMPLATED UNDER THE AGREEMENT OR ANY COURSE OF DEALINGS OR ACTIONS BY THE PARTIES RELATING TO THIS AGREEMENT. THIS JURY TRIAL SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
If Ventus incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, You agree to reimburse Ventus for all such costs, expenses and fees.
Neither Party may assign this Agreement, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third-party beneficiaries to this Agreement.
If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via electronic signature shall be deemed as effective as an original executed signature page.
It is agreed and warranted by the Parties that the individuals signing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
All notices or other communications required under this Agreement shall be in writing and shall be deemed effective when received and made in writing by either (a) email, (b) hand delivery, (c) registered mail, (d) certified mail, return receipt requested, or (e) overnight mail, addressed to the Party to be notified at the following address or to such other address as such Party shall specify by like notice hereunder:
| Customer: Via the email address submitted during electronic execution of this Agreement. | Ventus: Ventus Design Studio Attn: Nicole Sauk 1314 E. Las Olas Blvd, #1610 Fort Lauderdale, FL 33301 |
No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
This Agreement, and any exhibits attached hereto, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.
