Term of Use

2.1. Fees. In consideration of the Services to be performed by ECYC Child Care Center, Client shall pay to ECYC Child Care Center fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, if applicable, even if calculated or assessed subsequent to the payment schedule.

2.2. Expenses. Client shall pay ECYC Child Care Center’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including, by way of example and not limitation, costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus ECYC Child Care Center’s standard markup of thirty-five percent (35%), and, if applicable, a mileage reimbursement at 0.58 cents per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by ECYC Child Care Center with Client’s prior approval.

2.3. Additional Costs. The Project pricing includes ECYC Child Care Center’s fee only. Any and all outside costs including, by way of example and not limitation, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.

2.4. Invoices. All invoices are payable upon receipt. Accounts not paid within the terms of this Agreement are subject to a finance charge on the unpaid balance equal to 1.5 percent or the maximum allowed by law, whichever is lower. Payments will be credited first to late finance charges and next to the unpaid balance. Client shall be responsible for all litigation and collection costs, including reasonable attorneys’ fees and costs necessitated by lateness or default in payment. ECYC Child Care Center reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full in accordance with the terms of this Agreement. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.

3.1. General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at ECYC Child Care Center’s standard hourly rate of $125 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. ECYC Child Care Center may extend or modify any delivery schedule or deadlines in the Proposal and DELIVERABLES as may be required by such Changes.

3.2. Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of ten percent (10%) of the time required to produce the DELIVERABLES, and or the value or scope of the Services, ECYC Child Care Center shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by ECYC Child Care Center.

3.3. Timing. ECYC Child Care Center will prioritize performance of the Services as may be necessary, and as identified in the Proposal or at Webmaster for Hire’s sole discretion, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review DELIVERABLES within the time identified in the proposal for such reviews and to promptly either, (i) approve the DELIVERABLES in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to ECYC Child Care Center. The ECYC Child Care Center shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that ECYC Child Care Center’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of Client’s obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or DELIVERABLES requested by Client may delay delivery of the DELIVERABLES. Any such delay caused by Client shall not constitute a breach of any term, condition or ECYC Child Care Center’s obligations under this AGREEMENT.

3.4. Testing and Acceptance. ECYC Child Care Center will exercise commercially reasonable efforts to test DELIVERABLES requiring testing and to make all necessary corrections prior to providing DELIVERABLES to Client. Client, within five (5) business days of receipt of each DELIVERABLE, shall notify ECYC Child Care Center, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such DELIVERABLE. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and ECYC Child Care Center will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this AGREEMENT and shall be in writing. In the absence of such notice from Client, the DELIVERABLES shall be deemed accepted. In the vent that ECYC Child Care Center makes corrections, changes or amendments so identified by Client in accordance with the provisions of this paragraph

4.4, the aforementioned five (5) business days of receipt by Client of such corrections, changes or amendments shall apply and Client’s failure of object to such corrections, changes or amendments shall be deemed Client’s acceptance thereof.

4.1. Production Schedule. Production schedules will be established and adhered to by both Client and the ECYC Child Care Center, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, labor trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the Client or ECYC Child Care Center. Where production schedules are not adhered to by the Client, final delivery date or dates will be adjusted accordingly.

Resources must be allocated by the ECYC Child Care Center to fulfill Client’s project needs according to schedule, as ECYC Child Care Center is working on multiple projects at any given time. It is necessary that the Client be available to provide approvals, feedback, content, or anything else outlined in the project proposal and otherwise maintain contact with the ECYC Child Care Center during the project timeline.

If Client fails to deliver necessary content, resources, or feedback by the time ECYC Child Care Center deems crucial to any deadline, all deadlines and milestones (except payment milestones) will be adjusted accordingly.

Client’s failure to meet timeline/milestone or content obligations for a period of seven (7) business days or more will result in reallocation of ECYC Child Care Center’s resources and work on the project will be delayed or may cease. Resuming work on the project will require a reassembly period that may equal the time of delay caused by the Client. Please note that any adjustments to project deadlines or milestones caused by Client behavior do not affect payment milestones. All payment will be required at the time(s) initially described in the project proposal.

If Client’s inactive or unresponsive time exceeds a period of thirty (30) calendar days, this constitutes abandonment of the project. In such a case, Client will be considered to have cancelled the project. Thereupon, ECYC Child Care Center can choose to cease further work on the project. In such case, Client is granted no right or license to the work and ECYC Child Care Center is released from any and all obligations to resume the project.

4.2. Approvals. Client acknowledges and agrees that regardless of the number of individuals involved in the project, one individual in their team/company will be appointed to have ultimate responsibility for approvals of the DELIVERABLES ECYC Child Care Center will create and present. Client further acknowledges and agrees that this one individual must be directly involved in the entire project and must participate in significant events during the project, including initial discovery meeting(s), initial design presentation(s), and any planning meetings.

If DELIVERABLES are made available to Client for approval and Client fails to respond within ten (10) business days to approve or reject, the DELIVERABLES are considered to be approved.

Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

5.1. Coordination of any decision-making with parties other than the ECYC Child Care Center;

5.2. Provision of Client Content in a form suitable for reproduction or incorporation into the DELIVERABLES without further preparation, unless otherwise expressly provided in the Proposal;

5.3. Final proofreading. In the event that Client has approved DELIVERABLES but errors are present in such Deliverables, by way of example, and not limitation, typographic errors or misspellings, remain in the finished product, Client shall be solely responsible for the cost of correcting such errors and shall pay to ECYC Child Care Center any such cost; and

5.4. Ensuring that all information and claims comprising Client Content are accurate, do not violate the laws, rules and regulations of the United States of America and / or of the states thereof and municipalities and the intellectual property rights of third parties, and conform, at a minimum, to applicable standards in Client’s industry.

All displays or publications of the DELIVERABLES shall bear accreditation and/or copyright notice in ECYC Child Care Center’s name in the form, size and location as incorporated by ECYC Child Care Center in the DELIVERABLES, or as otherwise directed by ECYC Child Care Center. ECYC Child Care Center retains the right to reproduce, publish and display the DELIVERABLES in ECYC Child Care Center’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the DELIVERABLES in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

7.1. ECYC Child Care Center and Client desire to protect the confidential information of each party to this Agreement, and which confidential information will be disclosed (“Disclosing Party”) to the other party (“Receiving Party”).  Accordingly, the following provisions shall apply to the exchange of such confidential information.

7.2. “Information” means all documents and other information, including, but not limited to, Client lists, prospective Client lists, vendors and vendees, technology (either currently existing or developed in the future), research protocols, market research results, reports, questionnaires, marketing information, video and audio tapes, memorandum, drawings, data, notes, financial information, engineering information, computer code, algorithms, receipts, electronic mail, web based data including analytical data pertaining to any website, and all other information including copies thereof produced by photocopy machines, computer programs, facsimile or otherwise developed by the Disclosing Party either before or after the Agreement is entered into or by Disclosing Party pursuant to this Agreement, for use by the Receiving Party is: (a) confidential and proprietary to the Disclosing Party, (b) Trade Secrets of the Disclosing Party as defined in Section 688.002(4) of the Florida Statutes and/or (c) valuable confidential business information that does not otherwise qualify as a trade secret under Section 688.002(4) of the Florida Statutes.  The parties further agree that the following shall be considered trade secrets and included within Section 688.002(4), Florida Statutes:

7.2.1. Clients Trade Secrets include, by way of example and not limitation: (a) Client’s customer and vendor information, including, but not limited to, identity, contacts, decision makers, financial and legal dealings; (b) customer files, records, or images from any Client project (whether on film, paper, digital or other media); and (c) third-party materials entrusted to Client as confidential, such as scripts, story boards, and identity of technical resources involved in Client projects or potential projects; (d) Client’s business plans, business opportunities, business partners, contracts, negotiations, personnel, finances, legal matters, research, development, information systems, product and software concepts.

7.2.2. ECYC Child Care Center’s Trade Secrets. ECYC Child Care Center’s Trade Secrets shall include, by way of illustration but without limitation: (a) ECYC Child Care Center Tools;  (b) ECYC Child Care Center’s customer, vendor and third-party backlinking websites information, including, but not limited to, identity, contacts, decision makers, financial and legal dealings; (c) ECYC Child Care Center’s business plans, business opportunities, business partners, contracts, negotiations, personnel, finances, legal matters, research, development, information systems, product and software concepts.

7.3. Immediate and Irreparable Injury. Receiving Party expressly acknowledges and agrees that the disclosure of any such Information by Receiving Party to any third party will cause immediate and irreparable injury to Disclosing Party. Accordingly, Receiving Party expressly agrees that the Disclosing Party has legitimate business interests in its Information, including by way of example and not limitation, to its trade secrets, confidential and proprietary information, and valuable confidential business information that does not otherwise qualify as a trade secret. Further, the Disclosing Party has the right to protect itself from unauthorized use and / or distribution of the Information by Receiving Party and the direct and indirect solicitation of existing customers and customer goodwill, and any specialized or expert training given to Receiving Party, including employees, agents, and independent contractors thereof.

7.4. Receipt of Information in Confidence. The Receiving Party shall receive such Information (whether from documents, oral discussions, or observations) from Disclosing Party in confidence and not disclose such Information to anyone other than employees or agents of the Receiving Party involved in the potential business relationship between the parties without first receiving Disclosing Party’s prior written permission.  The Receiving Party further agree not to use the Information shared by Disclosing Party for commercial benefit other than as contemplated by this Agreement.  Excluded from the scope of this Agreement shall only be:

7.4.1. Written Information which Receiving Party can show was in Receiving Party’s prior possession at the time of disclosure by Disclosing Party, and such Information was received or obtained from sources having a right to convey such Information to Receiving Party;

7.4.2. Information received by Receiving Party from a third party who has the legal right to transmit such Information;

7.4.3. Information that the Receiving Party can show is: (i) in the Public Domain other than from a breach of this Agreement by Receiving Party and (ii) that such entered the Public Domain by persons authorized to release such Information or

7.4.4. Subject to Section 8.5 below, Information that is required by Legal Proceedings or the Defend Trade Secrets Act (“DTSA”) to be disclosed. The DTSA provides that certain persons may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

7.5. Legal Proceedings to Compel Disclosure. In the event the Receiving Party becomes legally compelled by deposition, interrogatory, request for documents, subpoena, civil investigation demand, other demand or request by a governmental agency or the application of statutes, rules and regulations or similar process to disclose any of the Information, Receiving Party shall provide Disclosing Party with prompt written notice of such requirement prior to such disclosure to allow Disclosing Party to seek a protective order or other remedy.  In the event that a protective order or other remedy is not obtained, or that Disclosing Party waives compliance with the provisions hereof, Receiving Party agrees to furnish only that portion of the Information that Receiving Party reasonably believes in consultation with counsel is legally required to be furnished.

7.6. Notice to Receiving Party’s Employees. Receiving Party shall inform Receiving Party’s employees and agents involved in matters relating to Disclosing Party of this Agreement.

7.7. Security. Receiving Party further agree to keep the Information in a secure environment so as to fully protect and maintain the confidentiality of the Information and to return to Disclosing Party all written Information shared with Receiving Party, and all copies or reports based on such Information, upon the written request of Disclosing Party.  Only those employees with a “need to know” shall have access to the Information.

7.8. Prior Exchange of Information. This agreement shall be deemed to apply to all Information exchanged between the parties prior to the execution of this Agreement.

7.9. Return of Information. Unless otherwise directed by Disclosing Party, Receiving Party shall return and ensure that all persons or entities to whom it has disclosed the Information of Disclosing Party shall return all copies of the Information (whether prepared by Disclosing Party or Receiving Party or others) to Disclosing Party, upon the earliest of: (a) the fifth (5th) business day after receipt by Disclosing Party of written notice from Receiving Party or (b) written certification by an executive officer of Receiving Party that all Information, including Information described in this Paragraph, had been destroyed and no copies retained.

8.1. Independent Contractor. ECYC Child Care Center is an independent contractor, not an employee of Client or any company affiliated with Client. ECYC Child Care Center shall provide the Services under the general direction of Client, but ECYC Child Care Center shall determine, in ECYC Child Care Center’s sole discretion, the manner and means by which the Services are accomplished. This AGREEMENT does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this AGREEMENT. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written AGREEMENT of the parties and the various terms and conditions of this AGREEMENT.

8.2. ECYC Child Care Center Agents. ECYC Child Care Center shall be permitted to engage and/or use third parties or other service providers as independent contractors (“Third-Party Provider”) in connection with the Services as solely determined by ECYC Child Care Center. Notwithstanding the use of such Third-Party Provider, ECYC Child Care Center shall remain fully responsible for such Agents’ compliance with the various terms and conditions of this AGREEMENT.

8.3. No Solicitation. During the term of this AGREEMENT, and for a period of six (6) months (“Restrictive Period”) after expiration or termination of this AGREEMENT, Notwithstanding agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any ECYC Child Care Center employee, Third Party Provider or Design Agent of ECYC Child Care Center, whether or not said person has been assigned to perform tasks under this AGREEMENT. In the event such employment, consultation or work-for-hire event occurs, Notwithstanding agrees that ECYC Child Care Center shall be entitled to, as liquidated damages and not as a penalty, an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Notwithstanding, or (b) 25 percent of fees paid to said person if engaged by Notwithstanding as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during such employee, Third Party Provider or Design Agent performed services for Notwithstanding. ECYC Child Care Center, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity. Further, it is the intention of the parties that ECYC Child Care Center shall have the benefit of the full Restrictive Period.  Accordingly, the parties agree that the Restrictive Period shall commence on the date that a judgment is entered against Client for violating this No Solicitation provision.

8.4. No Exclusivity. The parties expressly acknowledge that this AGREEMENT does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by ECYC Child Care Center, and ECYC Child Care Center shall be entitled to offer and provide design services to others, solicit other Clients and otherwise advertise the services offered by ECYC Child Care Center; provided, however that provisions of Article 8, “Confidential Information,” is not violated.

9.1. By Client. Client represents, warrants and covenants to ECYC Child Care Center that Client (a) owns all right, title, and interest in, or otherwise has full legal right and authority to permit the use by ECYC Child Care Center, its employees and / or agents of Client Content without any restrictions thereon, (b) the Client Content is accurate, legal, conforms to all legal and ethical standards of the Client’s industry, does not infringe Intellectual Property rights of any third party, and the use of the Client Content by ECYC Child Care Center, its employees and / or agents in connection with the Project does not and will not violate the Intellectual Property rights or contract rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third-Party Materials, (d) Client shall comply with all laws, rules and regulations as they relate to the Services and DELIVERABLES and (e) the individual executing this Agreement on the part of Client has fully authority to enter into this Agreement and contractually bind the Client to the terms and conditions provided for in the contract.

9.2. By ECYC Child Care Center. ECYC Child Care Center hereby represents, warrants and covenants to Client that: (a) ECYC Child Care Center will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services, (b) except for Third Party Materials and Client Content, the Final DELIVERABLES shall be the original work of ECYC Child Care Center and/or its independent contractors, (c) in the event that the Final DELIVERABLES include the work of independent contractors commissioned for the Project by ECYC Child Care Center, ECYC Child Care Center has secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final DELIVERABLES sufficient for ECYC Child Care Center to grant the intellectual property rights provided in this Agreement, and (d) to the best of ECYC Child Care Center’s knowledge, the Final Works provided by ECYC Child Care Center and ECYC Child Care Center’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the DELIVERABLES outside of the scope or for any purpose not identified in the Proposal or this AGREEMENT or contrary to the terms and conditions noted herein, all representations and warranties of ECYC Child Care Center shall be void, and of no further force or effect.

9.3. LIMITATION OF WARRANTIES, GUARANTEES OR REPRESENTATIONS. EXCEPT AS SPECIFICALLY PROVIDED FOR IN PARAGRAPH 10.2, WEBMASTER FOR HIRE DOES NOT MAKE ANY WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, OR CONDITION, PERFORMANCE, SUITABILITY OR DESIGN OR CONFORMITY WITH OR TO ANY LAW, RULE, REGULATION, AGREEMENT OR SPECIFICATION, OR OF INFRINGEMENT OF ANY PATENT, TRADE SECRET, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS. WEBMASTER FOR HIRE SERVICES (INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, CODING AND CONTENT) ARE  PROVIDED BY WEBMASTER FOR HIRE “AS IS” AND WITHOUT ANY REPRESENTATION THAT A WEBSITE DESIGNED HOSTED, SERVICED OR MAINTAINED BY WEBMASTER FOR HIRE WILL WORK ON ANY PARTICULAR COMPUTER, COMPUTER OPERATING SYSTEM, MOBILE PHONE, MOBILE DEVICE OR PLATFORM NOW EXISTING OR IN THE FUTURE MAY EXIST OR THAT SUCH WEBSITE DOES NOT CONTAIN ANY MALICIOUS CODE, INCLUDING, BUT NOT LIMITED TO ANY AND ALL “VIRUSES” OR “TROJAN HORSES.”  WEBMASTER FOR HIRE DOES NOT WARRANT, GUARANTY OR REPRESENT THAT A WEBSITE DESIGNED, HOSTED, SERVICED OR MAINTAINED BY WEBMASTER FOR HIRE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR AT ALL. WEBMASTER FOR HIRE SHALL HAVE NO LIABILITY TO ANY CLIENT (OR ANY OTHER PERSON OR ENTITY ACTING THROUGH OR ON BEHALF OF SUCH CLIENT OR ENTITY OR TO ANY OTHER PERSON OR ENTITY CLAIMING TO BE A THIRD PARTY BENEFICIARY, INCLUDING, BUT NOT LIMITED TO, BUSINESS ASSOCIATES, FRIENDS, FAMILY AND GUESTS OF A CLIENT), NOR SHALL WEBMASTER FOR HIRE, WEBMASTER FOR HIRE’S MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ATTORNEYS BE RESPONSIBLE OR LIABLE FOR ANY LOSS, CLAIM OR DAMAGE OF ANY KIND OR LIABLE FOR ANY LOST DATA OR CONTENT, LOSS PROFITS, BUSINESS INTERRUPTION CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY USE OF ANY WEBSITE DESIGNED, HOSTED, SERVICED OR MAINTAINED BY WEBMASTER FOR HIRE, OR INFORMATION THEREIN CONTAINED, WHETHER KNOWN, UNKNOWN OR KNOWABLE, EVEN IF WEBMASTER FOR HIRE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, BY ANY INCIDENT WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH A WEBSITE DESIGNED, HOSTED, SERVICED OR MAINTAINED BY WEBMASTER FOR HIRE OR THE MANNER AND USE OF SUCH WEBSITE WHETHER IN STRICT LIABILITY, CONTRACT, OR TORT, OR UNDER LAWS RELATING TO INTELLECTUAL PROPERTY RIGHTS OR UNFAIR COMPETITION OR THE COMMON LAW. NO RIGHTS OR REMEDIES CONTAINED IN THE UNIFORM COMMERCIAL CODE ARE CONFERRED ON A Client. THE MAXIMUM AMOUNT OF DAMAGES THAT MAY BE AWARDED AGAINST WEBMASTER FOR HIRE, WEBMASTER FOR HIRE’S MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ATTORNEYS SHALL BE THE NET PROFIT DERIVED BY WEBMASTER FOR HIRE FROM CLIENT FOR THE SPECIFIC SERVICE PROVIDED TO CLIENT WHICH GIVES RISE TO THE ALLEGED CLAIM. THIS LIMITATION OF DAMAGES SHALL APPLY TO ALL CAUSES OF ACTION REGARDLESS OF HOW PLEAD, INCLUDING BUT NOT LIMITED TO, TORT, CONTRACT OR STRICT LIABILITY OR STATUTORILY OR UNDER THE COMMON LAW. WE TRY TO KEEP INAPPROPRIATE CONTENT, INCLUDING PORNOGRAPHIC CONTENT, OFF WEBSITES THAT WEBMASTER FOR HIRE DESIGNS HOSTS, SERVICES OR MAINTAINS AND RESERVES THE RIGHT, IN WEBMASTER FOR HIRE’S SOLE AND COMPLETE DISCRETION TO REMOVE ANY CONTENT THAT WEBMASTER FOR HIRE BELIEVES INAPPROPRIATE FOR ANY REASON, OR FOR NO REASON AY ALL.  LINKS TO THIRD PARTY WEBSITES ARE NOT TO BE TAKEN AS WEBMASTER FOR HIRE’S ENDORSEMENT OF SUCH WEBSITES OR THE CONTENT ON SUCH WEBSITES.  SUCH THIRD PARTY WEBSITES ARE NOT UNDER THE CONTROL OF WEBMASTER FOR HIRE. WEBMASTER FOR HIRE HAS NO CONTROL OVER THE NATURE, CONTENT AND AVAILABILITY OF THOSE SITES AND NO LIABILITY FOR DAMAGES, DIRECT OR INDIRECT ARISING FROM SUCH SITES. 

10.1. Indemnification By Client. Client hereby indemnifies and holds harmless ECYC Child Care Center and ECYC Child Care Center’s employees, contractors, members, officers, directors, shareholders, representatives, agents and attorneys and all subsidiaries and/or affiliates thereof (collectively, “Indemnified Parties”) from and against any and all liabilities, claims, causes of action, suits, proceedings (including threats of suits or proceedings), losses, damages, costs, expenses, judgments, demands, actions, costs and expenses (including reasonable attorneys’ and paralegals’ fees and costs; whether or not such fees and costs were or are incurred in an action in which one or more Indemnified Parties is named as a party) suffered by any of the Indemnified Parties arising out of or in respect to: (a) any inaccuracy in or breach by Client of any representation and warranty provided in this Agreement, (b) breach by Client of, or failure of Client to comply with, any of the covenants or obligations contained in this Agreement to be performed by Client, (c) infringement, or claim of infringement, of a patent, trademark, copyright or trade secret provided by Client as “Client Content,”(d) any violation of law by Client and /or (e) liability imposed on the Indemnified Parties under any theory of tort, strict liability, violation of statute or the common law

10.2. By ECYC Child Care Center. Subject to the terms, conditions, and warranties provided in this Agreement, ECYC Child Care Center agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any material breach of ECYC Child Care Center’s representations and warranties made in this Agreement herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of negligence of Client provided that (a) Client promptly notifies ECYC Child Care Center in writing within ten (10) days of a claim that a material breach by ECYC Child Care Center (“Claim Notice”) has occurred and affording ECYC Child Care Center a cure period of thirty (30) days from receipt of such Claim Notice (“Cure Period”) to cure any such matter specified in the Claim Notice or a reasonable commercial amount of time for the matter or matters specified in the Claim Notice that cannot with reasonable diligence be cured with the Cure Period; (b) shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide ECYC Child Care Center with the assistance, information and authority necessary to perform ECYC Child Care Center’s obligations under this section. Notwithstanding the foregoing, ECYC Child Care Center shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any DELIVERABLES provided by ECYC Child Care Center.

10.3. Settlement Approval. The indemnifying party may not enter into any settlement AGREEMENT without the indemnified party’s written consent.

11.1. Term. This AGREEMENT shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

11.2. Termination. This Agreement may be terminated by the mutual agreement of the parties or by either party if the other party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under this AGREEMENT, which breach is not cured within the later of ten (10) days from receipt of written notice of such breach or a greater cure period is provided for in this Agreement.

11.3. In the event of termination, ECYC Child Care Center shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by ECYC Child Care Center or ECYC Child Care Center’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, and out of pockets through and up to the date of termination.

11.4 In the event of termination by Client and upon full payment of compensation as provided in Sections 3 and 4, ECYC Child Care Center grants to Client such right and title as provided for in Schedule A of this AGREEMENT with respect to the DELIVERABLES.

12.1. Governing Law.  This Agreement shall be governed and construed in accordance with the laws of the State of Florida (federal and state) as applied by courts within the State of Florida to commercial contracts made and performed wholly within the State of Florida.

12.2. Jurisdiction in Case of Controversy / Venue / Waiver of Trial By Jury.  The Parties consent and agree that the Courts having Jurisdiction over Palm Beach County, Florida or the United State District Court for the Southern District of Florida, West Palm Beach Division shall have exclusive jurisdiction and venue over any suit, action, proceeding, or controversy arising under or relating to this Agreement and shall be the sole and proper forum in which to adjudicate any such suit, action, proceeding or controversy. THE PARTIES HEREBY WAIVE TRIAL BY JURY.

12.3. Service of Process.  Service of process shall be deemed effective if made in accordance with the rules of the court specified in paragraph 12 in which the action or proceeding is commenced.  Upon such service of process, venue shall thereupon be deemed correct, proper, and non-changeable and the parties hereby waive any objection which either of them may now or hereafter have to the jurisdiction and the laying of venue in any such suit, action, proceeding, or controversy arising under or relating to this Agreement.

12.4. Return of Documents.  Upon the expiration or termination of this Agreement and regardless of the reason or cause of such expiration or termination, unless otherwise directed in writing by Disclosing Party, Receiving Party shall return and ensure that all persons or entities to whom it has disclosed the Information of Disclosing Party shall return all copies of the Information (whether prepared by Disclosing Party or Receiving Party or others) to Disclosing Party, upon the earliest of: (a) the fifth (5th) business day after receipt by Disclosing Party of written notice from Receiving Party or (b) written certification by an executive officer of Receiving Party that all Information, including Information described in this Paragraph, had been destroyed and no copies retained; provided, however, that  ECYC Child Care Center shall deliver only all paid-for DELIVERABLES (whether or not complete), Client Data, and Client Content to Client. Other than as provided for herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

12.5. Notices.  Any notice, request, demand, offer, payment or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been delivered and given for all purposes if written (a) at the time such notice is delivered personally, (b) at the time of delivery by overnight courier or delivery service provided that such courier or delivery service provides proof of delivery or (c) by registered or certified United States mail, postage and charges prepaid, addressed to the intended recipient, at the address specified in this Agreement, at such time that the intended recipient or the agent thereof signs or executes the receipt or rejects delivery or (d) by electronic mail, provided such notice by electronic mail is confirmed by the use of any other method provided for in this paragraph 16. Notices shall be sent to the addresses specified in this Agreement, or such other address as the appropriate party may advise the other party in writing.

12.6. Entire Agreement.  This Agreement embodies the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces all previous negotiations, understandings, representations, writings, and contract provisions and rights relating to the subject matter hereof.

12.7 No Presumption Against Drafter. The parties to this Agreement acknowledge that the Agreement has been the subject of negotiations between and among the parties. Each party has had an opportunity to be represented by an attorney.  Accordingly, there shall be no presumption against the party who has drafted this Agreement.

12.8. Successors and Assigns.  This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns; provided that this agreement may not be assigned by Client without the written consent of ECYC Child Care Center, which consent shall be at the sole discretion of the ECYC Child Care Center.

12.9. Invalidity.  If for any reason any provision of this Agreement shall be deemed to be legally invalid or unenforceable in any jurisdiction to which it applies by a court of competent jurisdiction, the validity of the remainder of the Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and, in its modified form, such provision shall then be enforceable and enforced.

12.10. Attorneys’ Fees.  In the event of any action, claim, proceedings, or suit between the parties to this Agreement, the party prevailing in such suit shall be entitled to recover, in addition to all other remedies or damages as herein provided or as provided by law, reasonable attorneys’, paralegals’, or expert witnesses’ fees and costs incurred in such suit at trial or on appeal or in connection with any bankruptcy, administrative, post-judgment or similar proceedings.  In the event of an arbitration between the parties, the arbitrators are authorized to enter an award for attorneys’ fees to the prevailing party.

12.11. Counterparts.  This Agreement may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any counterpart to this Agreement, to the extent delivered by means of a facsimile machine or by .pdf, .tiff, .gif, jpeg or similar attachment to electronic mail shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party hereto, each other Party hereto shall re-execute the original form of this Agreement and deliver such form to all other Parties.

12.12. Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that ECYC Child Care Center’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. 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.

12.13. Assignment. Client shall not assign or otherwise encumber or transfer by operation of law or otherwise to any third part without the express written consent of ECYC Child Care Center, which consent shall be in the sole discretion of ECYC Child Care Center.  ECYC Child Care Center shall have the right to assign, in whole or in part, this Agreement to any third party without the consent of Client.

12.14. Force Majeure Events. Neither party shall not be deemed in breach of this Agreement if a party claiming inability to perform any portion of this Agreement by reason of a Force Majeure Event. Upon occurrence of any claimed Force Majeure Event by a party to this Agreement, such party shall give written notice to the other party of such inability to perform or of delay in such performance together with such reasonable time-period in which performance shall be resumed. Notwithstanding the provision of this paragraph, neither party may claim a Force Majeure Event if performance can be conducted by electronic means, by way of example and not limitation, through the use of the internet to provide services by ECYC Child Care Center or payment by Client through electronic funds transfers.

12.15. Dispute Resolution.  The parties desire to resolve any dispute without first resorting to litigation.  Accordingly, the following approach to resolve differences between the parties shall apply.

12.15.1. Step One-Good Faith Negotiation. The Parties agree that, before resorting to any formal dispute resolution process concerning any dispute arising from or in any way relating to this Agreement (“Dispute”), the parties shall first attempt to engage in good faith negotiations in an effort to find a solution that serves their respective and mutual interests, including their continuing business relationship. Party-principals agree to participate directly in the negotiations. Unless otherwise agreed in writing, the Parties shall have five (5) business days from the date the questioning party gives written notice to the other of the particular issue (“Notice”) and to begin negotiations within 10 business days from the Notice to complete these negotiations concerning the Dispute

12.15.2. Step Two- Mediation. If the negotiations do not take place within the time provided above, or if the negotiations do not conclude with a mutually agreed upon solution within that time frame (or its agreed upon extension) specified above, the Parties agree to mediate such dispute before 0ne mediator under the Commercial Mediation Procedures of the American Arbitration Association.  Any mediation shall be held in Palm Beach County, Florida.  The parties shall share equally all of the costs of the Mediation.  Mediation by electronic means is shall be permitted as determined by the Mediator

The Parties shall have 45 calendar days after the appointment of the mediator(s) within which to commence the first mediation session following the conclusion of their Good Faith Negotiations or expiration of the time within which to negotiate a settlement as stated above. The Parties further confirm their motivating purpose in selecting mediation is to find a solution that serves their respective and mutual interests, including, if at all possible, their continuing business relationship.

12.15.3. Step 3-Lack of settlement in Mediation.  In the event that the parties are unsuccessful in the mediation, either party may commence litigation against the other

12.15.4. Restriction on Scope of Mediation. The Mediator shall have no power or authority to diminish the parties’ trademarks, patents, copyrights, trade names, service marks, trade secrets, other intellectual property rights or the No Solicitation provision of this Agreement (collectively, “Mediation Exclusions”) or to vary the terms, conditions or payments contained in this Agreement.  A party wishing to proceed through an action, suit or proceeding with respect to Mediation Exclusions may do so, including, without limitation, protecting any of same against infringement, misappropriation, theft of trade secrets and unfair competition, and recovery damages and/or obtaining injunctive relief.

12.16. Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this AGREEMENT nor shall such headings otherwise be given any legal effect.

12.17. Non-Disparagement. Each of the parties hereto and their respective agents agree that they will not engage in any disparaging communications (whether verbal, written, online or through any social media platform) regarding one another or any of its respective members, employees, officers, directors, or agents.

12.18. Effective Date. Immediately upon signing up for services or plans with ECYC Child Care Center.

Assignment of Rights

1. RIGHTS IN THE FINAL DELIVERABLES

1.1. Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, ECYC Child Care Center assigns to Client all of ECYC Child Care Center’s Copyrights in and to the Final Works, including Trademarks specifically developed by ECYC Child Care Center for Client only, and ECYC Child Care Center shall deliver to Client all Working Files related to the Final Works. ECYC Child Care Center shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment, and Client shall reimburse ECYC Child Care Center for ECYC Child Care Center’s reasonable time and out-of-pocket expenses in connection therewith.

1.2. Trademarks. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall indemnify, save and hold harmless ECYC Child Care Center from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third-party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.

1.3. Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection therewith. Client hereby grants to ECYC Child Care Center a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with ECYC Child Care Center’s performance of the Services and promotional uses of the DELIVERABLES as authorized in this Agreement.

1.4. Third-Party Materials. Intellectual property rights in Third-Party Materials shall be owned by the respective third parties. ECYC Child Care Center shall inform Client of all Third-Party Materials to be procured by ECYC Child Care Center that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, ECYC Child Care Center shall obtain a license for Client to use the Third-Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless ECYC Child Care Center from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.

2. RIGHTS RESERVED TO WEBMASTER FOR HIRE

2.1. Preliminary Works/Working Files. ECYC Child Care Center retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to ECYC Child Care Center all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.

2.2. Original Artwork. ECYC Child Care Center retains property ownership in any original artwork comprising Final Works, including all rights to display or sell such artwork. Client shall return all original artwork to ECYC Child Care Center within thirty (30) days of completion of the Services.

2.3. ECYC Child Care Center Tools. ECYC Child Care Center Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by ECYC Child Care Center. ECYC Child Care Center hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the ECYC Child Care Center Tools solely with the Final DELIVERABLES for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any ECYC Child Care Center Tools comprising software or technology.

1. SUPPORT SERVICES

1.1. Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the DELIVERABLES, including correcting any errors or efficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first thirty (30) days following expiration of this AGREEMENT (“Warranty Period”), if any, ECYC Child Care Center shall provide up to twenty (20) hours of Support Services at no additional cost to Client. Additional time shall be billed at ECYC Child Care Center’s regular hourly rate, then in effect upon the date of the request for additional support.

1.2. Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, ECYC Child Care Center will provide Support Services for the following six (6) months (the “Maintenance Period”) for ECYC Child Care Center’s current hourly fees of $125 per hour. The parties may extend the Maintenance Period beyond six months upon mutual written agreement. ECYC Child Care Center may increase hourly fees upon written notice to Client.

2. ENHANCEMENTS

During the Maintenance Period, Client may request that ECYC Child Care Center develop enhancements to the DELIVERABLES, and ECYC Child Care Center shall exercise commercially reasonable efforts to prioritize ECYC Child Care Center’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at ECYC Child Care Center’s then-in-effect price for such services.

3. ADDITIONAL WARRANTIES AND REPRESENTATIONS

3.1. Deficiencies. Subject to the Warranties, Representations / Disclaimers / Limitation of Liability provided for in this Agreement, ECYC Child Care Center represents and warrants that the Final DELIVERABLES will be free from Deficiencies.  For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final DELIVERABLES by Client or any third party after delivery by ECYC Child Care Center, or the interaction of Final DELIVERABLES with third party applications such as web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and ECYC Child Care Center’s sole liability for a breach of this Section is the obligation of ECYC Child Care Center to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third-Party Materials provided or specified by ECYC Child Care Center, ECYC Child Care Centers sole obligation shall be to substitute alternative Third-Party Materials.

3.2. ECYC Child Care Center Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, ECYC Child Care Center represents and warrants that, to the best of ECYC Child Care Center’s knowledge, the ECYC Child Care Center Tools do not knowingly infringe the rights of any third-party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the DELIVERABLES in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.

4. CONTENT RESTRICTIONS

Client agrees that ECYC Child Care Center will not in ECYC Child Care Center’s sole discretion develop, design or produce content or be asked to develop, design or produce any content that are comprising of adult entertainment, gambling, violence, sexuality, nudity, vulgarity, obscenity, or promoting abuse of alcohol or illegal substances.

5. COMPLIANCE WITH LAWS

ECYC Child Care Center shall use commercially reasonable efforts to ensure that all Final DELIVERABLES shall be designed to comply in all material respects with relevant all federal, state and local statutes, rules, and regulations, applicable to the business of ECYC Child Care Center.  Client, upon acceptance of the DELIVERABLES, shall be solely responsible for conformance with all federal, state and local statutes, rules, and regulations, applicable to Client and Client’s business, including by way of example and not limitation, laws relating to the transfer of software and technology, and compliance with, if applicable, Section 508 of the Rehabilitation Act as amended by the Workforce Investment Act of 1998 and the Americans with Disability Act.