NNE DIGITAL, the digital services division of Newspapers of New England, installs, configures, customizes, hosts and supports, with up-to-one hour of basic client requested copy updates each month, a newly designed, responsive WordPress-based websites, using an NNE DIGITAL supplied theme for our clients.
The cost is agreed upon in our Web Design Agreement and includes fees for design and development of the site as well as a monthly hosting fee.
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document, Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1. 4 Deliverables means the services and work product specified in the Proposal to be delivered by NNE DIGITAL to Client, in the form and media specified in the Proposal.
1.5 NNE DIGITAL Tools means all design tools developed and/or utilized by NNE DIGITAL in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Art means all creative content developed or created by NNE DIGITAL, or commissioned by NNE DIGITAL, 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 NNE DIGITAL’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by NNE DIGITAL and accepted by Client.
1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by NNE DIGITAL and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in Schedule A.
1.10 Services means all services and the work product to be provided to Client by NNE DIGITAL as described and otherwise further defined in the Proposal.
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks means 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.
2. TERM AND TERMINATION
2.1 This Agreement shall commence upon the Effective Date and shall remain effective for one year from the Effective Date. After one year, the hosting fee portion of the Agreement will renew automatically unless NNE DIGITAL is notified 15 days in advance. The hosting agreement may be canceled at any time following the initial one-year term without penalty.
2.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any 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 remedied within ten (10) days from receipt of written notice of such breach.
2.3 If the Agreement is canceled by the Client within the first year of the agreement, hosting fees for the remainder of the one-year term will be charged to the Client.
3.1 By Client. Client agrees to indemnify, save and hold harmless NNE DIGITAL 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 NNE DIGITAL shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) NNE DIGITAL 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 NNE DIGITAL in providing such assistance.
3.2 By NNE DIGITAL. Subject to the terms, conditions, express representations and warranties provided in this Agreement, NNE DIGITAL 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 NNE DIGITAL’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 (a) Client promptly notifies NNE DIGITAL in writing of the claim; (b) NNE DIGITAL shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide NNE DIGITAL with the assistance, information and authority necessary to perform NNE DIGITAL’s obligations under this section. Notwithstanding the foregoing, NNE DIGITAL 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 NNE DIGITAL.
3.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF NNE DIGITAL ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF NNE DIGITAL, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“NNE DIGITAL PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF NNE DIGITAL. IN NO EVENT SHALL NNE DIGITAL BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY NNE DIGITAL, EVEN IF NNE DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that NNE DIGITAL’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.
4.2 Notices. All notices to be given hereunder shall be transmitted in writing to NNE DIGITAL by electronic mail to email@example.com, 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 or in the case of fax or email, upon confirmation of receipt.
4.3 No Assignment. 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.
4.4 Force Majeure. NNE DIGITAL shall not be deemed in breach of this Agreement if NNE DIGITAL 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 NNE DIGITAL or any local, state, federal, national or international law, governmental order or regulation or any other event beyond NNE DIGITAL’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, NNE DIGITAL 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.
4.5 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 New Hampshire 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 Hampshire. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that NNE DIGITAL will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that NNE DIGITAL 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.
4.6 Severability. 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.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than the NNE DIGITAL; (b) 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; and (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product. Client shall incur the cost of correcting such errors.
6. WARRANTIES AND REPRESENTATIONS
6.1 By Client. Client represents, warrants and covenants to NNE DIGITAL that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) 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, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
6.2 By NNE DIGITAL (a) NNE DIGITAL hereby represents, warrants and covenants to Client that NNE DIGITAL 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) NNE DIGITAL 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 NNE DIGITAL and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by NNE DIGITAL, NNE DIGITAL shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for NNE DIGITAL to grant the intellectual property rights provided in this Agreement, and (iii) to the best of NNE DIGITAL’s knowledge, the Final Art provided by NNE DIGITAL and NNE DIGITAL’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 NNE DIGITAL shall be void. (c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, NNE DIGITAL MAKES NO WARRANTIES WHATSOEVER. NNE DIGITAL 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.
IP 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
IP 1.1 Client Content. Client Content, including all 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 rights in connection therewith. Client hereby grants to NNE DIGITAL a nonexclusive, non transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with NNE DIGITAL’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
IP 1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. NNE DIGITAL shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances NNE DIGITAL shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless NNE DIGITAL 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 Art.
IP 1.3 Preliminary Works. NNE DIGITAL retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to NNE DIGITAL within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of NNE DIGITAL.
IP 1.4 Original Artwork. NNE DIGITAL retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to NNE DIGITAL within thirty (30) days of completion of the Services.
IP 1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of pocket expenses due, NNE DIGITAL assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by NNE DIGITAL for use by Client as a Trademark. NNE DIGITAL shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless NNE DIGITAL from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
IP 1.6 NNE DIGITAL Tools. All NNE DIGITAL Tools are and shall remain the exclusive property of NNE DIGITAL. NNE DIGITAL hereby grants to Client a nonexclusive, non transferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the NNE DIGITAL Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any NNE DIGITAL’s Tools comprising any software or technology of NNE DIGITAL.
1. NNE DIGITAL will design, install, customize and host an SEO-optimized WordPress web site for the Client. The timeframe of this project will be agreed to by NNE DIGITAL and Client based on mutual schedules, and the Client’s timeframe in providing necessary content for the site, reviews of completed work, etc.
2. NNE DIGITAL will make up to three major revisions during initial design based on Client review and feedback. More extensive design changes will be at standard development rates of $100 per hour.
3. NNE DIGITAL will also provide consulting and advice on best practices for design and content development for the website. This agreement, however, does not include content creation, including photography, copywriting or logo and other graphic design. NNE DIGITAL can provide these services and will provide a quote upon request.
4. NNE DIGITAL will provide one hour of basic posting and site updates for the client per month. Send us content, price updates, etc., we’ll add it. NNE DIGITAL can also teach you to add content to the site. This hour of work includes the standard hosting services NNE DIGITAL will provide each month as part of the base fee. These include WordPress and hosting account updates, plugin testing, security and updates and any other hosting related services.
5. Responsibilities for design and maintenance of the website reside with NNE Digital. Responsibility for content updates of text and images are, after launch, those of Client, beyond basic content updates as provided in the monthly maintenance fee. In the event Client employees or designees alter, disable or damage the website or any components of the website, restoration fees of $100 per hour will apply. All requests for changes should be made through our support ticket system (firstname.lastname@example.org), and each ticket carries a minimum of 15 minutes against the allotted monthly fee or hourly charges.
6. If Client does not own a domain name, NNE DIGITAL will acquire the domain name for Client and cover the standard cost of that name – up to $20. Client will own the domain name if Client decides to take over the hosting after year one. Requested domain name should be emailed to email@example.com.
7. This contract and price for website development requires a commitment of one year of standard monthly maintenance as described in the Website Hosting Agreement. If after year one, Client would like to take over the site management and terminate the monthly maintenance contract, Client will be free to move it to their own hosting account and assume full management of the site. If Client requires assistance with this beyond the hour allocated to the last month, standard hourly development fees will apply.
8. As part of the initial build, we will install and manage Google Analytics on your site, and set up basic regular monthly reports to be delivered to the Customer’s email address(es).
This agreement may be updated at any time at the sole discretion of NNE Digital.
Last updated March 15, 2022