In view of the fact that McCall Web Design’s work will bring McCall Web Design into close contact with many confidential affairs of Client not readily available to the
public, and plans for future developments, McCall Web Design agrees to keep secret all matters, except for the existence of this engagement generally,
and further agrees not to disclose any such matters to anyone outside of McCall Web Design throughout the term of this agreement, without written
consent from Client.
Confidential information is that which relates to the Client’s or McCall Web Design’s research, development, trade secrets or business affairs and
includes, in the case of McCall Web Design’s confidential information, concepts presented to, but not selected by, the Client; it does not include
information that is generally known or easily ascertainable by third parties. McCall Web Design and the Client shall mutually respect and maintain each
other’s confidential information and shall use it only to perform their respective obligations hereunder. For the avoidance of doubt,
confidential information does not include information, which is public knowledge, was in the recipient’s possession before receipt or is
independently developed by the recipient.
The parties to this Agreement agree that no effort shall be made to solicit employees from the other party, directly or indirectly, and that no
compensation of any kind may be offered or provided to any person currently compensated by the other party without prior written consent
by the prior compensation provider, for the term of this agreement as described below. Neither party shall solicit the other’s employees,
independent contractors or consultants or engage them in any work independent the parties’ relationship under this Agreement during the
term of the Agreement and for two years thereafter.
Any expenses accrued shall be fully reimbursed to McCall Web Design within 30 Days of notification.
Deposits are NON REFUNDABLE. A deposit shall be required for work involving a website build NOT UNDER McCall Web Design’s CONTROL i.e.; a website located in the Customer or Client’s hosting account or anywhere that McCall Web Design can be locked out or access denied. A deposit shall be required for any customer, client or responsible party that is not located within 10 miles of McCall Web Design’s office location. Deposits are NON REFUNDABLE.
In the event that McCall Web Design incurs any loss or expense (including reasonable attorneys’ fees and/or costs) as the result of any claim, suit or
proceeding made or brought against McCall Web Design based upon or relating to any work which McCall Web Design has prepared for Client, with the exception
of any claims based on damages alleged to have been intentionally caused by McCall Web Design, which work is either approved by Client or was
based on materials, statements, ideas or instructions from Client, Client agrees to indemnify McCall Web Design and to hold McCall Web Design harmless from and
against any such loss or expense. The obligation to indemnify McCall Web Design hereunder shall not be deemed terminated upon cancellation.
Liability of McCall Web Design
McCall Web Design shall not be held responsible for delays or nonperformance caused by activities or factors beyond its reasonable control, including
delays and nonperformance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service
providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by
the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party
contractors hired by McCall Web Design or by Client. McCall Web Design shall not be liable for any indirect, third-party, incidental, special, consequential,
exemplary or punitive damages arising out of this Agreement. McCall Web Design’s maximum liability under this Agreement shall not exceed the total
fees received from Client.
Reservation of McCall Web Design Technology
McCall Web Design shall own and retain all rights to any and all programming source code, software, technology, concepts, ideas, designs and other
work, materials and information the creation or development of which predate this Agreement, including all modifications thereto made
during the term hereof (the “Pre-existing Material”). McCall Web Design hereby grants to Client a nonexclusive, royalty-free, perpetual, irrevocable,
worldwide license to use, reproduce, distribute, display and perform McCall Web Design’s programming source code, in compiled machine readable
object code form only, to the extent incorporated into the Project, strictly for the purposes and in the territories set out herein.
Ownership and Usage
Subject to McCall Web Design’s receiving full payment under this Agreement, McCall Web Design assigns to the Client, without representation or
warranty, all rights, title and interest McCall Web Design may have in any work specifically created by McCall Web Design for the Client pursuant to this
Agreement, except that:
(a) McCall Web Design may use and distribute such work as part of its portfolio for promotional purposes;
(b) McCall Web Design shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials
(collectively, “Work”) which have been presented to the Client but not included in the final work product;
(c) McCall Web Design shall own and retain all rights to any technology, technical documentation, inventions, algorithms, software, architecture,
logic, navigation, 3d modeling files, animation files and other source files for front-end deliverables, computer programs, source
codes, game engines or other backend and background elements, files and features incorporated into or utilized by the Work
(collectively, “Background Technology”). Unless the parties agree otherwise in a written and signed Statement of Work, McCall Web Design shall
retain ownership of any and all Background Technology, including any and all associated intellectual property rights. McCall Web Design hereby
grants to Client a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and
perform McCall Web Design’s Background Technology, in compiled machine readable object code form only, to the extent incorporated into
deliverables provided hereunder strictly for the purposes and in the territories set out in the applicable Statement of Work. Use of
Background Technology for any other project, on any other website or in any other medium shall be subject to additional fees and
licenses which may be granted or withheld by McCall Web Design in its sole discretion; and
(d) Subject to the services provided hereunder, McCall Web Design shall retain all rights to any illustrations and other proprietary artwork created
by the McCall Web Design. Except as otherwise set forth in this Section, McCall Web Design grants Client the limited irrevocable right to use the designs.
Governing Law and Dispute Resolution
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United
States and the state of Idaho 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 Ada County, State of Idaho The parties hereby waive any
jurisdictional or venue defenses available to them and further consent to service of process by mail.
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
McCall Web Design shall not be deemed in breach of this Agreement if McCall Web Design is unable to complete the Services or any portion thereof by
reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of McCall Web Design or any local, state,
federal, national or international law, governmental order or regulation or any other event beyond McCall Web Design’s control (collectively,
“Force Majeure Event”). Upon occurrence of any Force Majeure Event, McCall Web Design shall give notice to Client of its inability to perform or
of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.