WEB PAGE DESIGN AND HOSTING AGREEMENT



This Web Page Design and Development Services Agreement (the "Agreement"), dated as of ________________, 2000, is between Janice S. Butkowsky D/B/A Jan-Can Web Dezine (with a domain of www.jancanwebs.com), having an office at 198 Pigeon Hill Road, Chenango Forks, New York 13746 (the "Jan-Can"), and ______________________________, a(n) individual/corporation/partnership/ limited liability company, residing/having an office at _____________________________________________ (the "Client").



WHEREAS, Jan-Can is in the business of developing and maintaining web pages.



WHEREAS, the Client desires to engage Jan-Can to provide:

[    ] design and develop services (hereinafter referred to as "DDS".



NOW THEREFORE, in consideration of the mutual agreements, representations and covenants set forth herein, the Parties, intending to be legally bound, hereby agree as follows:



	1.	Web Page Design and/or Design and Development Services, DDS (hereinafter referred to as "DDS").  Jan-Can shall design, create and maintain a World Wide Web Site according to the charges set forth on Schedule "A" annexed hereto and made a part hereof.



	1.1	Additional Services.  Any revisions, additions, deletions or redesign Client wishes Jan-Can to perform not specified in this document shall be considered as "additional" and will require a Separate Agreement and separate payment.

 

	1.2	Client Requested Updates.   Any updates, revisions, additions, deletions or redesign (hereinafter referred to as "Client Requested Updates") Client wishes Jan-Can to perform, not specified in this document, shall be considered "additional" and will require a separate charge and invoice.  Client Requested Updates will be billed to the Client on a quarterly basis.  Charges will be based upon Jan-Can's DDS charged at the time of the requested Client Requested Update.  Payment to Jan-Can for said additional/update invoice(s) is expected within fifteen (15) business days from the date of the additional/update invoice(s).



	1.3	Regular Yearly Maintenance.  A $25.00 yearly regular maintenance fee shall be charged to Client.  This charge represents "regular yearly maintenance" of quarterly updating of the web site to the server and checking and fixing hyperlinks/components, if necessary.  This fee is separate and is not part of Client Requested Updates. 



2.	Fees.  Client shall pay to Jan-Can for its DDS provided under the terms of this Agreement.



 

2.1	Payment Terms for DDS:



		When the web site is approximately one-half complete, Jan-Can will generate and forward to Client an "Interim Invoice" setting forth the detailed charges to date.  Payment to Jan-Can of this Interim Invoice is expected within fifteen (15) business days from the date of said Interim Invoice.  If payment is not received within fifteen (15) business days, Jan-Can reserves the right to cease work on the site and/or any pages/graphics and to remove the uploaded html and image files from the directory on the server.



	When the web site is complete, Jan-Can will generate and forward to Client a Balance Invoice setting forth detailed charges. Upon receipt of full payment, and upon final approval from the Client, Jan-Can will move the html files and image files to Client's ISP.  If payment is not received within fifteen (15) business days from the date of said Balance Invoice, Jan-Can reserves the right to remove all uploaded html and image files from the server.

	

	During the "proofing stage", no one but Jan-Can and the Client shall have access to the site.  During the proofreading stage typographical errors, design changes, and other corrections will be made according to the instructions of the Client.



3. 	Independent Contractor.  The parties recognize that Jan-Can is an independent contractor and is not an agent or employee of Client.



4.	Disclaimer of Warranties.  JAN-CAN MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND/OR MERCHANTABILITY.  UNDER NO CIRCUMSTANCES SHALL JAN-CAN BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT OR INDIRECT DAMAGES.



5.	Limited Liability. 



	The Client agrees that under no circumstances, including negligence, shall Jan-Can, its officers, agents or anyone else involved in creating, producing or distributing it's services, be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use Jan-Can's DDS; or that results from mistakes, omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, or of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Jan-Can's records, programs or services, including but not limited to any mistakes, omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, or of performance.

 

6. 	Indemnification.  Client agrees that it shall defend, indemnify, save and hold Jan-Can harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees, ("Liabilities") asserted against Jan-Can, its agents, its clients, servants, officers and employees, that may arise or result from the following:

		i. 	the breach of any obligation of the Client pursuant to this Agreement;

		ii. 	any DDS provided or performed or agreed to be provided or performed by Jan-Can;

		iii.	any injury or alleged injury to person or property caused by any products or services sold or otherwise distributed by Client in connection with Jan-Can's services under this Agreement; and

		iv.	any infringement or alleged infringement on the proprietary, copyright or trademark rights, under federal and/or state law, of any third party.



	The Client will reimburse Jan-Can, forthwith upon demand, for any payment made by Jan-Can in respect of any liability, claim or other deficiency or obligation to which the foregoing indemnity relates.



7. 	Use of DDS.



	Client shall only use the DDS provided by Jan-Can for lawful purposes only.  Client shall not post to or transmit through Jan-Can or ask Jan-Can to post or transmit any material which violates or infringes upon the rights of others or is unlawful, threatening, abusive, defamatory, invasive of public or private rights, vulgar, obscene or otherwise objectionable or which encourages conduct that would constitute a criminal offense, give rise to a civil liability or violate any other law.  The Client agrees that Jan-Can may deactivate the use of DDS which Jan-Can, in its discretion, decides is or will be in violation of this paragraph, with or without prior notice to Client.



8. 	Intellectual property rights.



	All intellectual property rights with respect to the DDS created by Jan-Can, whether such rights are now existing or which may hereafter come into existence, are reserved to Jan-Can.  Client has no right to make any copies of the DDS, combine the DDS with any other material or make derivative works thereof, in whole or in part, or to sell, transfer, assign, transmit, distribute, download, or otherwise convey the DDS or any derivatives thereof, permit anyone to use, alter, or modify in any way the DDS or any derivative works thereof.  For purposes of this Agreement, the digitized from of the DDS shall be considered to be a derivative work owned by Jan-Can.  Under no circumstances is this Agreement considered work-for-hire and no transfer of any rights are hereby contemplated or made.



 

THIS PARAGRAPH NO. "8"  (above) IN NO WAY LIMITS ANY OF THE RIGHTS OF CLIENT IN AND TO ANY MATERIALS SUPPLIED TO JAN-CAN BY CLIENT (IE., ORIGINAL PHOTOS, ORIGINAL LOGOS AND/OR ORIGINAL TEXT) PURSUANT TO THIS AGREEMENT.  ALSO, CLIENT HEREBY GRANTS JAN-CAN AN IRREVOCABLE AND NON-EXCLUSIVE LICENSE TO ANY AND ALL MATERIALS SUPPLIED TO JAN-CAN BY CLIENT FOR ADVERTISING OR SOLICITATION PURPOSES.



9.   Authorship Credit. 



	Client agrees that Jan-Can may put a byline and/or Jan-Can graphic logo on the bottom of their Web Page establishing design and creation, authorship credit and copyright notice.



10. 	Cancellation. 



	In the event that DDS is postponed or canceled at the request of the Client, Jan-Can shall have the right to bill pro rata for work completed through the date of that request, while reserving all rights under this Agreement.  If additional payment is due, this shall be payable by the Client within thirty (30) days of the Client's notification to stop work.  In the event of cancellation, the Client shall also pay any expenses incurred by Jan-Can and Jan-Can shall own all rights to the DDS. 



11.	Assignment.  This Agreement shall not be assignable by either of the Parties without the prior written consent of the other.



12.	Governing Law.  This Agreement shall be construed in accordance with the laws of the State of New York, without regard to its principles of conflicts of laws.  



13.	Venue.  Any and all legal actions arising out of this Agreement shall be determined by a court of competent jurisdiction located in Broome County, New York.



14.	Notices.  Any notice, communication or request required or permitted to be given, made or accepted by either of the Parties to the other shall be in writing and given by personal delivery, by a recognized national express courier, or by depositing the same in the United States mail addressed to the recipient at his or its address first set forth above, postage prepaid and certified mail, return receipt requested.  Notice by personal delivery shall be effective upon delivery.  Notice deposited in the mail in the manner herein described shall be effective 72 hours after such deposit.  Notice deposited with express courier shall be effective 24 hours after such deposit.  The address for notice of either of the Parties may change by notice given to the other in the manner set forth herein.



15.	Section or Other Headings.  Section or other headings contained in this Agreement are for reference purposes only and shall not effect in any way its meaning or interpretation.

 



16.	Counterpart Executions.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.



17.	Entire Agreement.  This Agreement constitutes the entire agreement and understanding between the Parties.  There are no agreements, understandings, restrictions, warranties or representations between the Parties other than those set forth or provided for herein.  The Parties expressly agree that there are no implied warranties or representations other than those which are the expressed warranties of this Agreement.  No warranty or representation shall be implied by reason of the transactions or relationships hereby created between the Parties.  The only warranties or representations that shall exist are relative to those warranties set forth herein.



18.	Modification.  Neither this Agreement nor any provision hereof shall be amended, modified or deemed amended or modified except by subsequent agreement in writing duly executed with the same formality as this Agreement.



19.	No Waiver of Default.  The failure of either of the Parties to insist on certain performance of any provision of this Agreement shall not affect his or its rights thereafter to enforce the same, nor shall the waiver of any provision of this Agreement be construed as a waiver of (i) any subsequent default of the same or similar nature, or (ii) strict performance of any other provision.



20.	Agreement Binding on Heirs, et al.  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, successors and assigns (permitted or unpermitted).  If this Agreement or any performance of the Company is assigned without the consent of the Seller, except as provided for herein, or in case of a permitted assignment by the Company, the assignee will still be bound by the terms hereof as an assignee and cannot take without the duties of the Company binding such assignee also.



21.	Interpretation.  The parties hereby acknowledge that this Agreement has been prepared by the joint efforts and at the direction of both of them, and therefore shall not be deemed to be the product of, and shall not be enforced or interpreted any more stringently or strictly against, either of them.

 

22.	Severability.  If any provision (or any part thereof) of this Agreement, as applied to either party or to any circumstances, shall be determined by any court of competent jurisdiction to be invalid or unenforceable, the same shall in no way affect any other provision or remaining part thereof of this Agreement, which shall be given full effect without regard to the invalid or unenforceable provision or part thereof, or the validity or enforceability of this Agreement.



	IN WITNESS WHEREOF, the Parties have hereunto set their hands to this Agreement as of the date first written above.



DATE: _________________			Jan-Can Web Dezine

						By:						

							Janice S. Butkowsky

DATE: _________________								

							(Client, Signature Above)

												

							(Client, Print Name Above)