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property of Development Firm. All payments already made will first be applied to these charges.
OTHER LEGAL AGREEMENTS
15. Development Firm
will maintain the confidentiality of Client’s source materials,
technical and marketing plans and all other sensitive information. 16. Development Firm and Client agree that any dispute arising out of this Agreement shall first be resolved by mediation, if possible. This contract was entered into in Kings County, New York and any necessary arbitration or litigation will take place in this county. 17.
Development Firm is producing this project as “works for hire” for Client. Upon full
payment of all invoices due, copyright and all rights to page designs, web development source code, and graphic source files produced by Design and Development Firm for Client shall belong to Client. All source materials will be transferred to Client via CD computer media. Secondary materials created by Development Firm during production, including drafts, plans, graphic source files, and templates, remain the sole property of Design and Development Firm unless other arrangements are made. For as long as payments to Development Firm are made within terms, Client may display Copyright on website. 18. Client is solely responsible for the editorial content of the material included on its website. Accordingly, Client agrees that it will defend and indemnify (hold harmless) Development Firm from any suit, demand, or claim resulting from the editorial content of the website. 19. Client represents to Development Firm and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Development Firm
for inclusion in Client’s web site are owned by Client, or that Client
has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend Development Firm and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client. 20. Development Firm will set up web hosting for Client with a professional hosting company known to be reliable. However, Development Firm makes no guarantees as to minimum "uptime", nor shall Development Firm be held responsible for any direct, indirect, special or consequential damages resulting from possible lapses in hosting services. Such possible damages include any lost profits or business interruption or loss of digital data. 21. Client agrees that it shall not hold Development Firm or its agents or employees liable for any incidental or consequential damages which arise from Development Firm
’s failure to perform any aspect of the Project in a timely manner, regardless of
whether such failure was caused by intentional or negligent acts or omissions of Development Firm or a third party. Development Firm will not be liable to Client or to any third party for any damages arising from the use of web site. 22. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
Case 1:13-cv-00745-BMC Document 45-1 Filed 12/02/13 Page 3 of 4 PageID #: 498