This Design and Development Agreement (“Agreement” or “Design and Development Agreement”) is entered into by and between eCuras LLC, a New Jersey limited liability company (“eCuras LLC” or “eCuras” or “Company”) and you (“Client” or “Customer” or “You”), and is made effective as of the date of electronic acceptance. This Design and Development Agreement provides for eCuras LLC’s design, development and execution of a new or existing website (“Services”) for the Client, and represents the entire agreement between you and eCuras LLC concerning the subject matter hereof.
eCuras reserves the right, in its sole and absolute discretion, to change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this website (“Site”). If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services or Site. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account information current. eCuras is not responsible and assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate or outdated account information.
This Agreement constitutes the entire agreement between the parties concerning the subject matter herein and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter herein. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement.
Terms defined in this section have their assigned meanings and each of the following terms has the meaning assigned to it.
Client Content – all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
Deliverables – the services and work product specified in the Proposal to be delivered by eCuras LLC to Client, in the form and media specified in the Proposal.
Final Art – all creative content developed or created by eCuras LLC, or commissioned by eCuras LLC, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and eCuras LLC’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
Final Deliverables – the final versions of Deliverables provided by eCuras LLC and accepted by Client.
Preliminary Works – all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by eCuras LLC and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
Project – the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
Services – all services and the work product to be provided to Client by eCuras LLC as described and otherwise further defined in the Proposal.
Third Party Materials – proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
Trademarks – trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client
The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
-eCuras LLC will be solely responsible for this project expenses in connection with this project. -All invoices are payable 21 days of receipt. There will be a $15 charge for all returned checks. A $50 service charge is payable on all overdue balances for reissuing each invoice at 45, 60, 75 and 90 days. -Any amount not received after 90 days will collect interest at 10% per month, or the legally allowable maximum if this amount exceeds it. If the Client remains in default for a period exceeding 6 months the outstanding balance will be sent to a collection agency. -The grant of any license of right of copyright is conditioned on receipt of full payment. If the site is being hosted with eCuras LLC, all outstanding fees must be paid regardless of payment of hosting fees, and failure to pay amounts due overrides hosting fees paid.
The fee summary is based on work performed on a fixed cost basis. Should the scope of the project change after acceptance of Agreement and pricing, eCuras LLC will provide a detailed scope change to define additional work and associated costs. If the job changes to an extent that substantially alters the specifications described in the original estimate, eCuras will submit a project addendum to Client, and both parties must agree to the revised or additional fee before further work proceeds.
All work performed and created for Client for which Client has not paid may be retained by eCuras LLC as security until all just claims against the Client are satisfied.
Word-of-mouth advertising is very important to eCuras, so eCuras includes a referral incentive program written right into the Agreement. eCuras offers $150 to anyone who refers a new paying customer.
The project will commence with a discovery process, beginning with Client and Project Manager from eCuras LLC meeting in person or by phone. eCuras will also conduct its own discovery relevant to the project, and follow-up contact by phone or email may continue the discovery process during the project. Therefore, in-contact time on the part of Client is important during the life of the project. The result of the initial discovery will be a Strategy Brief, which will simply and concisely detail the project’s creative and communicative objectives as understood by eCuras LLC. This document will be reviewed, revised if necessary, signed/approved by Client, and then the design portion of the project can begin.
eCuras LLC will redesign the logo for Client. The logo will be produced for print and web use, in color and B/W formats (if applicable). Note that this portion of the project presupposes that this is to be just a simple, extensible logo – not an identity system. Note: Complete Identity Package is offered separately in our ‘Graphics Starter’ package. On a mutually agreed upon date, eCuras will present a small number of logo design candidates (1-3) for review with Client, either in-person or by phone (phone call with internet viewing access). The presented designs will represent differing design directions/ideas, but each will be consistent with the overall objectives of the project as outlined in the strategy brief. At the logo candidate review meeting, eCuras will explain the strategies involved in the presented candidate designs and Client should be prepared to offer some initial feedback as to how closely the suggested candidates meet with their needs and expectations. Within a short internal review time (1-3 days), Client should select the approach that best suits their needs and discuss any points of objectives compatibility or revision with eCuras. The design may be subjected to a limited number of revisions (up to 3 hours) in order to achieve the final logo design. Client will then signoff on the final logo design. At this point, website design can begin.
-Client agrees to exercise due diligence in its direction to eCuras regarding preparation of content materials and must be able to substantiate all claims and representations. -Client is responsible for all trademark, service mark, copyright and patent infringement clearances. -Client is responsible for arranging, prior to publication, any necessary legal clearance of materials eCuras prepares in the scope of a project. -eCuras will assist Client with choosing the most appropriate keywords to be used in page text. The Client is responsible for completing the page texts and submitting them to eCuras in a timely matter.
On a mutually agreed upon date, eCuras will present a couple (AT eCuras LLC DISCRETION) of visual and/or UX design strategies – using mockup(s) or functional prototypes – for review with Client, either in-person or by phone (phone call with internet viewing access). The presented mockups may be different design directions/ideas, but each will be consistent with the overall objectives of the project as outlined in the strategy brief. Each design strategy will consist of 1 to 3 example page design/layout(s). At the design strategy review meeting, eCuras LLC will explain the strategies involved in the presented designs and Client should be prepared to offer some initial feedback as to how closely the suggested designs meet with their general needs and expectations. Within a short internal review time (1-3 days), Client should select the design tactic that best outfits their needs and assemble and deliver a list of any desired discussion points for amendment (if necessary) to eCuras LLC. After proper discussion, the design may be subjected to a limited number of revisions (up to 8 hours) in order to achieve the final design strategy. Client will then approve/signoff on the final design plan. With design approval the further necessary content, template, and modal window layouts will be crafted. With informal approval of these layouts the project enters the website production phase. The design strategy is now produced as the final cross-browser compliant, adaptive HTML/CSS pages.
Desktop Browser Testing
At this point eCuras will test our work in current versions of major desktop browsers: Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), Mozilla Firefox and Opera. eCuras won’t test in other older browsers unless the Client specify otherwise. If the Client requires an enhanced design for an older browser, a separate quote could be provided.
Mobile Browser Testing
Testing popular small-screen devices is essential in guaranteeing that a person’s experience of a design is suitable to the abilities of the device they are using. eCuras tests our code in: iOS: Safari, Google Chrome and Android: Firefox and Google Chrome. If the Client needs eCuras to perform testing using any other mobile/desktop browser a separate quote could be provided for that.
In exchange for payment of the price outlined in this Agreement, eCuras LLC will create and deliver the following items: -1 logo (for Web and print purposes, in color and monochrome formats). -Site source code. -Site database. -Site graphics source files and images. Note: Hosting, Support, and CDN (content delivery network) is offered separately under ‘CloudHostor’ premium cloud hosting package.
After the Final Deliverables were sent, Client may request that eCuras will develop enhancements to the Deliverables, and eCuras shall exercise commercially reasonable efforts to prioritize eCuras LLC’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 eCuras LLC’s then in effect price for such services.
Production schedules will be established and adhered to by both Client and eCuras LLC, according to the following conditions:
Neither party, nor its agents or suppliers, shall not be deemed in breach of this Agreement due to delays caused by a state of war, acts of terrorism, riot, civil disorder, fire, floods, epidemics, quarantine restrictions, labor trouble or strike, accidents, energy failure, death, illness, equipment breakdown, transportation delays, unusually severe weather, delays in shipment by suppliers or carriers, action of government or civil authority, or other causes beyond the control of the Client or eCuras LLC (collectively, “Force Majeure Event”). If so affected: a) The affected party is obligated to provide a fair, timely notice to the unaffected party and also, submit the estimated revisions to the schedule. b) The affected party will use reasonable efforts to avoid and/or remove such causes of delay or non-performance, and shall continue performance with reasonable dispatch whenever such causes are removed. c) If any such delay or non-performance continues for more than 30 days, this Agreement may be terminated by the unaffected party without liability by submitting a written notice to the affected party.
Resources must be allocated by the eCuras LLC to fulfill Client’s project needs according to schedule, as eCuras 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 Agreement and otherwise maintain contact with eCuras during the project timeline. If Client fails to deliver necessary content, resources, or feedback by the time eCuras LLC 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 7 days or more will result in reallocation of eCuras LLC’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 this Agreement. If Client’s inactive or unresponsive time exceeds a period of 30 days, this constitutes abandonment of the project. In such a case, Client will be considered to have cancelled the project, subject to the consequences outlined in section 23 Term and Termination section. Thereupon, eCuras LLC can choose to cease further work on the project. In such case, CLIENT will be granted no right or license to the work and eCuras LLC is absolved of any obligation to resume the project.
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 eCuras 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. In the event that deliverables are made available to Client for approval and Client fails to respond within 10 days to approve or reject, the deliverables are considered to be approved.
‘Support Services’ means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first 30 days following expiration of this Agreement, eCuras shall provide up to 8 Hours covered by Warranty hours of Support Services at no additional cost to Client. Additional time shall be billed separately. Please note: This agreement does not cover maintenance. Site maintenance, hosting and security updates are being offered in our: ‘Site Maintenance’ Premium Hosting Package.
This Agreement does not cover domain name registration and renewal. Client is solely responsible for registering, renewing, and forwarding the nameservers of the domains used for this project.
It is the Client’s responsibility to check proofs, comps, and other deliverables carefully for accuracy in all respects, ranging from spelling to technical illustrations. eCuras will not be liable for errors or omissions. The Client’s consent or that of the Client’s authorized representative will be required for all mechanical elements, websites, or artwork prior to release for printing, digital publication, or other implementation.
eCuras will take all reasonable precautions to safeguard the property the Client entrusts to us. In the absence of negligence on our part, however, eCuras is not responsible for loss, destruction or damage or unauthorized use by others of such property. Although eCuras may use our best efforts to guard against any loss to the Client through the failure of vendors, media, or others to perform in accordance with their commitments, eCuras LLC is not responsible for failure on their part. If the Client selects its own vendors, other than those recommend by eCuras, and may request that eCuras will coordinate their work. If at all possible, eCuras will attempt to do so, but cannot in any way be held responsible for quality, price, performance or delivery.
eCuras LLC shall be permitted to engage and/or use third party designers, programmers, or other service providers as independent contractors in connection with this project. Notwithstanding, eCuras shall remain fully responsible for such ‘Agents’ compliance with the various terms and conditions of this Agreement.
If eCuras has been contracted for design services and if during the project Client introduces any other eCuras LLC into the project or eschews the designs conceived of eCuras LLC’s own processes or rejects eCuras LLC’s design or design recommendations in favor of eCuras LLC’s mere production or reproduction of designs submitted by Client or a third party (including client-created mockups as design revision examples), eCuras LLC may choose to respond to this breach of Agreement by terminating the project. By signing this Agreement, Client acknowledges that eCuras will manage and run the project according to its own processes. Any attempt or requirement by Client to define the project process or otherwise run the project may result in project termination.
According to the Copy right Law of 1976, the rights to all design and art work, including but not limited to printed or digital designs, photography, and or illustration created by independent photographers or illustrators retained by eCuras LLC, or purchased from a stock agency on Client’s behalf, remain with the individual agency, artist, photographer or illustrator. However, once an entire project has been fully paid for by Client and delivered by us, eCuras will assign the reproduction rights of the design for the use(s) described in this Agreement. If no such specific uses are detailed in this Agreement, upon payment in-full, all rights to and ownership of the work is assigned to Client without reservation, except as follows: eCuras reserves the right to photograph, digitally reproduce and/or distribute or publish for the firms, promotional and marketing needs any work eCuras creates for the Client, including mock-ups, screenshots, and comprehensive presentations, as samples for eCuras portfolio, firm newsletter, brochures, slide presentations and similar media. eCuras agrees to store copies of delivered project materials for a period of 90 days beyond the delivery of a job. Thereupon, eCuras reserve the right to discard them.
All displays or publications of the Deliverables shall bear accreditation notice in eCuras LLC’s name in the form, size and location as incorporated by eCuras in the Deliverables, or as otherwise directed by eCuras. eCuras retains the right to reproduce, publish and display the Deliverables in eCuras LLC’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.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
This Agreement shall commence upon the Effective Date and shall remain effective until the project is concluded as outlined in this Agreement, or until terminated by eCuras LLC or CLIENT upon written notice according to the following conditions:
Upon Client’s breach of contract, eCuras LLC may terminate the project upon written notice and will deliver all originally-Client-owned intellectual property in eCuras LLC’S possession. In such case, Client will be granted no right or license to the work. Upon eCuras LLC’s breach of contract, Client may choose to terminate the project. In such case, eCuras will deliver to Client all property and project materials in eCuras LLC’s possession for which Client has paid, as well as all originally-Client-owned intellectual property in eCuras LLC’s possession. Thereupon, Client has the contractually described right or license to the paid-for work. In such case, if Client has paid for work not yet performed, eCuras LLC will refund the outstanding difference.
In the event Client is dissatisfied with the quality of eCuras LLC’s work, Client agrees to inform eCuras of this dissatisfaction and allow eCuras a reasonable chance to amend the issue. If after amendment, Client remains dissatisfied with the quality of the work, Client may choose to terminate the project. In such case, Client will be granted no right or license to the work.
Upon non-breach-of-Agreement project cancellation by Client, Client will, in addition to any costs already paid, pay a “kill fee” of 35% of the outstanding balance outlined in this Agreement within 15 days of the cancellation notice. In such case, Client will be granted no right or license to the work. Upon non-breach-of-Agreement project cancellation by eCuras LLC, eCuras will deliver to Client all paid-for work and will refund 20% of the fees client has already paid to eCuras during the course of the project in question. Upon any planned-for or imposed termination of the project, Client will indemnify and hold eCuras LLC harmless for any loss or expense (including attorney’s fees), and agree to defend eCuras LLC in any actual suit, claim or action arising in any way from our working relationship. This includes, but is not limited to assertions made against Client and any of its products and services arising from the publication of materials that eCuras prepares and Client approves before publication.
Upon expiration or termination of this Agreement: -Each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party. -Other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
Client represents, warrants and covenants to eCuras LLC that: -Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content. -To the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties. -Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
eCuras LLC represents, warrants and covenants to Client that: -eCuras LLC hereby represents, warrants and covenants to Client that eCuras 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. -eCuras further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of eCuras LLC and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by eCuras LLC, eCuras LLC shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for eCuras LLC to grant the intellectual property rights provided in this Agreement, and (iii) to the best of eCuras LLC’s knowledge, the Final Art provided by eCuras and eCuras LLC’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 eCuras LLC shall be void. -Except for the express representations and warranties stated in this agreement, eCuras LLC makes no warranties whatsoever, eCuras LLC explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
Client agrees to indemnify, save and hold harmless eCuras LLC 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 any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances eCuras LLC shall promptly notify Client in writing of any claim or suit; -Client has sole control of the defense and all related settlement negotiations. -eCuras LLC provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by eCuras LLC in providing such assistance.
Subject to the terms, conditions, express representations and warranties provided in this Agreement, eCuras LLC agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with eCuras LLC’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that: -Client promptly notifies eCuras LLC in writing of the claim. -eCuras LLC shall have sole control of the defense and all related settlement negotiations. -Client shall provide eCuras LLC with the assistance, information and authority necessary to perform eCuras LLC’s obligations under this section. Notwithstanding the foregoing, eCuras LLC 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 eCuras LLC.
This Agreement is our entire understanding and may not be modified in any respect except in a mutually-executed written addendum or any urgent extreme time sensitivity expenses paid by eCuras and electronically authorized by the Client. 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.
All notices to be given hereunder shall be transmitted in writing either by electronic mail (email) with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt.
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of New Jersey without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of New Jersey. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that eCuras LLC will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that eCuras LLC shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
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.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between this Agreement and the Proposal or any other documents, the terms of this Agreement will control. By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
The Site and these Services are operated and provided by:
If you have any questions about these Terms, please contact us.
Revised: April 7th 2016