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Form #1650

Website Design Agreement

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Website Design Agreement with detailed milestones for design and software coding phases and SEO and social media options. Deposit up-front; refundable only if preliminary design unacceptable. Copyright assigned to client after payment in full.

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WEBSITE DESIGN AGREEMENT

 

 

Website Design Agreement, dated as of _____________, 201_ (this “Agreement”) between __________________ (“Designer”), a [state under whose laws created] [corporation, LLC, general partnership, etc.], and [state under whose laws created] [corporation, LLC, general partnership, etc.] (“Client”).

 

 

The Client hereby engages the Designer to design a website for the Client, on the following terms and conditions:

 

 

1.            Defined Terms. For all purposes of this Agreement, the following terms shall have these meanings:

(a)          “Contract Price”: the sum of the Base Price and the prices of any options selected by the Client by checking boxes below, as follows:

Base Price:                                  $______________

Plus:

o Mobile Device Option:            $______________

o SEO Option:                 $______________

o Social Media Option:               $______________

 

Contract Price:                  $______________.

 

(b)          “Deposit”: the amount of $___________.

(c)           “Designated Hosting Service”: _____________. If the Client elects to use the Designer’s own web hosting service, then the Client will sign a separate web hosting agreement with the Designer.

(d)          “Mobile Device Option”: The inclusion among Supported Browsers the respective mobile device versions of those browsers, so that the Website will be accessible on all standard mobile devices [(except ___________)], all as further described in paragraph 2(a)(i) below.

(e)          “SEO Option”: The inclusion of search engine optimization among the Designer’s services, as further described in paragraph 2(a)(ii) below.

(f)           “Social Media Option”: The inclusion in the Website Software of features that maximize compatibility of the Website with social media such as Facebook and Twitter, as further described in paragraph 2(a)(iii) below.

(g)          “Supported Browser”: Any one of the following internet browser programs: Microsoft Internet Explorer (versions __ and up); Google Chrome (versions __ and up); Mozilla Firefox (versions __ and up); Apple Safari (versions __ and up); and Opera (versions __ and up).

(h)          “Website”: The page image(s) that will be displayed on a computer screen when the computer accesses the Website Software over the internet, using a Supported Browser. The Website shall consist of not more than __ web pages.

(i)            “Website Design”: A visual representation or mock-up of all the pages of the Website, displayed on a computer screen or in any other medium.

(j)           "Website Software": The software that Designer is to code under this Agreement, which, when published on the Designated Hosting Service server in accordance with paragraph 5 below and accessed over the internet by means of a Supported Browser, will cause the Website to be displayed in the form of the Website Design and with the functionality required by this Agreement.

(k)          “Written” or “in writing”: Presented by any means, or in any medium, that can be seen.

2.            Designer’s Duties.

(a)          Designer will design the Website and code and upload the Website Software, all in accordance with the terms and conditions of this Agreement. In addition to performing the basic design, coding and uploading services necessary to produce a functional Website acceptable to the Client:

(i)     If the Client has selected the Mobile Device Option, the Designer will also take all steps necessary to achieve compatibility of the Website with standard mobile device versions of Supported Browsers;

(ii)    If the Client has selected the SEO Option, the Designer will also take all steps which in its judgment are likely to increase the ranking of the Website on Google and other widely-used internet search engines to the maximum level compatible with the price paid for the SEO Option; and

(iii)   If the Client has selected the Social Media Option, the Designer will take all steps which in its judgment are likely to maximize the exposure of the Website to users of widely-used social media with which the Client has accounts.

(b)          The Website Software will be coded using PHP, CSS, HTML, and Javascript, and the Website Software and the Website will conform to such technical standards as the Designer may choose.

(c)           The Designer may employ one or more subcontractors to perform all or any portion of its duties under this Agreement, but no such employment shall affect the Designer’s sole responsibility to the Client for the timely performance that this Agreement requires of the Designer or for the work product delivered to the Client.

3.            Milestones; Client’s Duties; Designer’s Retention of Deposit.

(a)          Milestones for the process of producing the Website Design are set out in Annex 1 and those for coding the Website Software are set out in Annex 2. Several milestones require action by the Client. The Client acknowledges that unless it meets its own milestone obligations, on time, the Designer will not be able to deliver the Website on time or, perhaps, at all. Therefore, the Designer will have the right cancel this Agreement (by notice to the Client) if the Client fails to meet any milestone obligation for more than ten business days after its due date as set out in Annex 1 or Annex 2.

(b)          If the Designer cancels this Agreement for the Client’s failure to meet a milestone as permitted by subparagraph (a) above, or if the Client rejects the final Website Design (under milestone 8 of annex 1), then the Designer will retain the entire Deposit as fair compensation for the time, effort and money it has invested in connection with this Agreement; and neither party shall have any further right against the other by virtue of this Agreement.

4.            Price and Payment; Reimbursement of Expenses. The Client shall pay the Designer the Contract Price as follows:

(a)          On the signing of this Agreement, the Client is delivering the Deposit to the Designer. The Designer will hold the Deposit in escrow and use it only in accordance with the terms and conditions of this Agreement. The Deposit will not bear interest.

(b)          Upon the Client’s acceptance of the Website after coding (milestone 3, 6 or 8, Annex 2), or upon its rejection of the Website after final coding (milestone 8, Annex 2), the Deposit shall be deemed released to the Designer. If the Client accepts the Website, then the Deposit shall be credited against the Contract Price and the Client will deliver the balance of the Contract Price together with its written acceptance of the final Website (milestone 8, Annex 2).

(c)           In addition to paying the Contract Price to the Designer, the Client will reimburse the Designer for all out-of-pocket expense that the Designer incurs in performing its duties under this Agreement. Reimbursable expenses do not include overhead or other fixed costs of the Designer’s business, nor do they include any subcontractor’s charges (paragraph 2(c));

they include only those special expenses that the Designer incurs solely for the purpose of providing a service required by this Agreement and only by this Agreement. Such special expenses may include, without limitation, those required for: printing or copying Materials; overnight courier services such as FedEx; printing or otherwise producing physical mockups of the Website for demonstration purposes; and __________.

5.            Uploading and Publishing.

(a)          Unless the Client elects to receive the Website Software by physical delivery as provided in paragraph 6 below, upon the Designer’s receipt of the balance of the Contract Price, the Designer shall publish the Website Software, on behalf of the Client, by uploading it onto a server of the Designated Hosting Service and will, in conjunction with the uploading, make any final adjustments to the Website Software that may be desirable for the optimization of the Website.

(b)          If the Designated Hosting Service is a company other than the Designer, the Client hereby authorizes Designer to deal with the Designated Hosting Service on behalf of the Client for the purpose of publishing the Website Software.

(c)           The Client also hereby authorizes the Designer to submit the completed Website Software to such major web search engines as the Designer may choose. However, unless the Client has selected the SEO Option, the Designer’s submission of the Website Software to search engines will NOT include search engine optimization services.

(d)          The Client understands that if it does not select the Designer as its Designated Hosting Service, it will be required to sign a separate contract with whatever hosting service it does designate, and it will only designate a service that will allow the Designer full access to the Client's account with the hosting service via File Transfer Protocol. The Client will be solely responsible for any and all charges of a Designated Hosting Service.

(e)          Because proper coding depends on the technical characteristics of a particular server, and because different hosting services use different servers, the Client is not permitted to change the Designated Hosting Service. If the Designated Hosting Service should become unavailable for some reason unrelated to an act of the Client, then the Designer will select a replacement Designated Hosting Service for the Client and the Client will contract with that service and pay all its standard fees.

6.            Election to Receive Physical Delivery of the Website Software.

(a)          At any time before the Designer begins to upload the Website Software onto a server, the Client may notify the Designer that it wishes to receive the Website Software in physical form. In that case, as soon as the Designer has received payment of the Contract Price in full, it will deliver to the Client, on whatever standard medium the Client may designate, the

source code, design files, image files, and database files that the Designer has produced under this Agreement (collectively, the “Files”). From the moment when the Files leave the Designer’s possession, the Client shall bear sole responsibility for Files and for the Website Software – including risk of loss and risk of any damage to software or equipment or persons during the upload process (due, for example, to server discrepancy or incompatibility issues with software and/or hardware). Moreover, after delivering the Files to the Client, the Designer will have no duty to keep copies of any Files; it will be the Client’s sole responsibility to keep copies.

(b)          If the Client elects the physical delivery described in subparagraph (a) above, the Designer will not provide any uploading service with respect to the Website Software (paragraph 5 above), unless the Client and the Designer make a separate contract for publishing and uploading.

7.            Functionality. Designer warrants that the Website Software will function fully when it is accessed through a Supported Browser, but makes no warranty whatever as to its functionality when accessed through a non-supported browser. However, the Designer cannot and does not warrant that the functions contained in the Website Software will operate without interruption or error-free.

8.            Website Maintenance and Revisions. At the Client’s request, when the Website is running, the Designer will perform Website maintenance, or make any revisions to the Website that the Client may request, for the fixed fee of $__ per hour of time spent coding by any person designated by the Designer to do such work, or $__ per hour for design. The Designer will invoice the Client for all such work on a monthly basis.

9.            Third-Party Copyrights and Trademarks. The Client unconditionally warrants to the Designer that all copyright, trademark and other intellectual property elements of the Materials are owned by the Client, or that the Client has permission from the rightful owner to use each such element that it does not own.

10.          Intellectual Property Rights: Designer and Client.

(a)          Ownership and Use of Background Technology. The Client acknowledges that the Designer holds valid licenses to use and sublicense various preexisting programs, data and materials ("Background Technology") which the Designer intends to include in the Website Software (“Background Technology”). The Designer shall retain all its intellectual property rights to the Background Technology.

(b)          Website Design and the Website Software Copyright; Assignment to the Client. Nothing produced by the Designer under this Agreement shall be deemed “work made for hire” under the U.S. Copyright Act; the Designer shall own all intellectual property rights (copyright, trademark and patent rights) to the Website Design and the Website

Software. However, when the Contract Price has been received in full by the Designer, the Designer shall be deemed to have assigned all such intellectual property rights [except for rights to the XHTML markup, CSS and other code, which the Designer licenses to the Client for use only in connection with the Website] to the Client, absolutely and irrevocably, and shall be deemed to have granted to the Client a nonexclusive, perpetual, transferable license to use the Background Technology in the Website Software. The Designer will thereafter deliver to the Client any assignment document(s) that the Client may request in order to confirm such assignment.

11.          Promotion Rights. Notwithstanding the assignment of intellectual property rights to the Client (subparagraph 10(b)), the Designer permanently reserves the right to display and link to the completed Website as part of its portfolio and permanently reserves the right to write about the Website on its own websites and those of others, in magazine articles and in books about web design.

12.          Designer as an Independent Contractor. In signing and performing this Agreement, the Designer’s status is that of an independent contractor, and nothing in this Agreement shall be construed to create any other legal relationship between the parties, including but not limited to employer/employee, partnership or joint venture. The Designer shall not be liable for any debt of the Client solely by virtue of its engagement and performance under this Agreement. The provisions of this paragraph shall survive the termination of this Agreement, whatever the reason for termination.

13.          Protection of Confidential Information. Each party shall use its best efforts to protect the confidentiality of confidential information that it receives from the other party, and shall not under any circumstances disclose any such confidential information to any third party (other than to a duly authorized employee of the other party or to the Designated Hosting Service). For this purpose, confidential information shall include, without limitation, any information that the owner of the information designates as confidential; trade secrets; financial information; customer or client lists; personal information about the party’s employees or owners; and any other information that a reasonable person would understand to be confidential in the circumstances. The provisions of this paragraph shall survive the termination of this Agreement, whatever the reason for termination.

14.          Electronic Commerce Laws. The Client agrees that it is solely responsible for complying with any laws or governmental regulations (including without limitation those imposing any tax) that may apply in any way to the services to be provided under this Agreement and/or to the use of the Web Design or the Website. The provisions of this paragraph shall survive the termination of this Agreement, whatever the reason for termination.

15.          Breach and Damages; Limitations on Damages.

(a)          Either party’s failure to perform any duty under this Agreement is a breach. It is also a breach if a party misrepresents or omits to disclose any important fact to the other party in connection with the negotiation and signing of this Agreement. A breach is material if adversely affects the other party’s ability to perform its own duties under this Agreement, if it presents a false picture of a party’s financial strength or technical ability, or if it exposes the other party to possible legal claims from third parties.

(b)          If a party commits a material breach and if that party fails to correct the breach within five calendar days after receiving notice of the breach from the aggrieved party, then the aggrieved party will have these rights against the breaching party:

(i)     It may terminate this Agreement by notice to the breaching party, such termination to take effect on whatever date is specified in such notice;

(ii)    It may commence arbitration under subparagraph 17(a) to recover actual damages that it suffers from the breach;

(iii)   It may, if the breach involves the misuse of intellectual property that belongs to a third party or the dissemination of confidential information in breach of the confidentiality provisions of this Agreement, demand from the arbitrator, and shall have the right to have issued, an appropriate restraining order, a preliminary injunction and/or a permanent injunction, as equity allows in the circumstances; or

(iv)   It may take any combination of the steps described in subparagraphs (i) through (iii) above, simultaneously or in any sequence.

(c)           Notwithstanding any other provision of this Agreement, neither party shall be liable to the other for damages other than those directly caused by the relevant breach, and will not be liable in any circumstance or for any reason for lost profits, lost savings or other incidental, consequential or special damages, even if the aggrieved party had actual, advance knowledge that a breach might result in any such lost profits, lost savings or other incidental, consequential or special damages. The liability of the Designer to the Client shall never, in any circumstance or for any reason, exceed in the aggregate the lesser of (A) the Contract Price or (B) whatever amount has actually been paid by the Client to the Designer under this Agreement.

(d)          In any arbitration, the prevailing party shall be entitled to recover from the other party all its legal fees and other costs directly suffered as a result of such breach and arbitration, including the prevailing party’s share of the arbitrator’s fees.

16.          Indemnification. The following indemnification provisions shall apply even when a party aggrieved by the other party’s material breach may have a right to damages or other relief under paragraph 15 above:

Each party shall, on demand by the other party, indemnify, defend and hold the other party harmless from and against any and all claims, losses and/or damages, of whatever kind and nature (including but not limited to reasonable attorneys’ fees incurred by the indemnified party in defending itself or preparing to defend itself from any such claim), if such any such claim, loss or damage

(i) arises from, out of or in connection with the indemnified party’s performance of its obligations under this Agreement, and

(ii) is asserted by a third party.

The provisions of this paragraph shall survive the termination of this Agreement, whatever the reason for termination.

17.          Dispute Resolution.

(a)          If a dispute arises under this Agreement or with respect to either party’s performance under this Agreement, or with respect to the performance of any agent, employee, successor, or assign of a party (including without limitation any dispute concerning the validity of this arbitration clause) (all such disputes being “Disputes”), then, before having recourse to arbitration, the parties shall first attempt to resolve the dispute themselves or with the aid of a mediator. If the dispute is not resolved within ten business days after the parties’ first attempt at resolution, then the Dispute shall be resolved exclusively by binding arbitration as provided in this paragraph 17.

(b)          Either party may commence arbitration by applying for arbitration by the American Arbitration Association (“AAA”). The AAA arbitration shall be conducted under the then current AAA rules for small commercial arbitration, in [name of city and state] by a single arbitrator appointed by the AAA, who must be expert in the software development industry. The arbitrator must provide a written explanation of his/her award.

(c)           In either case, the award of the arbitrator shall be final and non-appealable, and judgment may be rendered on such award by any court of competent jurisdiction pursuant to the application and filing of either party.

(d)          Each party hereto expressly and irrevocably waives all its rights to have any Dispute adjudicated or reviewed by any court or tribunal other than the AAA as provided above.

18.          Termination.

(a)  If not terminated sooner under other provisions hereof, this Agreement shall expire on the first anniversary of its date.

(b)  Either party may terminate this Agreement at any time, by notice to the other party, if such termination is required or recommended by any court or other governmental agency or authority acting within its lawful powers.

(c)   This Agreement shall terminate automatically upon the death or incapacity of a party who is a natural person and upon the dissolution of a party that is a corporation, partnership or limited liability company.

19.          Notice. Any notice by either party hereto to the other which is required or permitted hereunder must be in writing, and shall be deemed validly given if either (i) hand-delivered or sent by recognized courier service such as FedEx or DHL to the addressee’s physical address set forth below, or (ii) transmitted by fax to the addressee’s fax number set forth below (if the sender keeps physical evidence of the transmission without error to the relevant fax number, and follows the fax transmission within one business day by delivering a physical copy of the notice to the addressee in the manner provided in clause (i) above; but no failure on the part of the sender to send such physical copy shall invalidate any notice otherwise properly sent by fax). All notices shall be deemed “given” or “delivered”

when placed in the possession of the courier (for clause (i) notices) or when transmitted (for clause (ii), faxed, notices), as the case may be.

 

The following addresses and fax numbers are the only valid notice addresses of the respective parties on the date of this Agreement, but may be changed by notice given to the other party at any time and from time to time:

 

Designer:                                                                                             Client:

[street address]                                                                               [street address]

                               

Fax number:                                                                                      Fax number:

 

20.          Modification and Waiver. This Agreement may be modified only by an instrument in writing signed by both parties. No delay or course of conduct whatever on the part of either party shall be deemed to constitute a waiver of such party’s rights hereunder for any purpose.

 

21.          Parties Bound; Assignment. This Agreement shall bind and inure to the benefit of the Designer and the Client and their respective successors. Neither party may assign any right or delegate any duty under this Agreement, except that the Designer may freely assign its rights to receive payment under this Agreement, if such assignment is made for the purpose of financing its operations. Any purported assignment or delegation in contravention of the preceding sentences shall automatically be void ab initio.

 

22.          Entire Agreement. This Agreement expresses the entire agreement between the parties with respect to the subject matter hereof, and no

Annex 1: Milestones: Design Phase

 

1.            Preliminary Agreement on Website Design.

(a)          Immediately upon signing this Agreement, Client will inform Designer of its general requests with respect to the Website Design, including the desired look-and-feel, layout, content and functionality for the Website. The Designer will promptly inform the Client if any of the Client’s requests cannot be met for technical, economic or legal reasons and in each such case will suggest an alternative; the Client will then revise its requests accordingly.

(b)          The Designer will then prepare and deliver to the Client a brief, written summary of the agreed Website Design, together with a list of all materials (the “Materials”) that the Designer will need from the Client in order to create the Website Design (which may include, among other things, sketches, photos or other artwork, text and hyperlinks). On receiving such summary the Client shall initial it to indicate approval and fax or email the initialed summary back to the Designer.

(c)           If, for any reason, the written summary has not been delivered and initialed on or before the ____ business day after the date of this Agreement, then the Designer shall promptly return the Deposit to the Client; and on the Client’s receipt of the Deposit, this Agreement shall terminate as of the date of such receipt and neither party shall have any further right against the other by virtue of this Agreement.

2.            Materials Delivery to Designer. After initialing the summary, the Client will deliver to the Designer all the Materials that the Designer has requested. The Client will complete such delivery within __ business days after the agreed summary has been initialed.

3.            Production of the Initial Design. After receiving all of the Materials from the Client, the Designer will produce an initial Website Design, based on the agreed summary. The Designer will deliver the initial Website Design to the Client within __ business days after the Client’s delivery of all of the Materials is complete, by such means as the parties may agree.

4.            Client’s Review and Revision. After receiving the initial Website Design he Client will, after discussing it with the Designer but in any event within __ business days after the Designer’s delivery of the initial design, submit all its comments on the initial Website Design to the Designer, in writing.

5.            Production of the Revised Design. After receiving the Client’s comments, the Designer will produce a revised Website Design, incorporating whatever modifications the parties may have agreed on in their discussion of the initial design. The Designer will deliver such revised Website Design to

Annex 2: Milestones: Coding Phase

 

As soon as the Client has accepted the Website Design (milestone 8, Annex 1), the Designer will begin coding the Website Software.

1.            Provisional Completion of Coding. The Designer will provisionally complete coding no more than ___ business days after it begins coding. At that time, the Designer will display the results of the coded Website Design to the Client.

2.            First Review of Website after Coding. The Client will promptly review the Website as displayed and will either accept it as it is or communicate any comments or requests concerning the Website to the Designer within __ business days after receiving notice from the Designer that the display is ready for review.

3.            Acceptance (1). If the Client accepts the Website as displayed under milestone 2, then the Website Software shall be deemed complete for the purposes of subparagraph 4(b) – payment of the balance of the Contract Price.

4.            Second Provisional Completion of Coding. If on the other hand the Client communicates comments or requests to the Designer under milestone 2, then the Designer will code any necessary modifications and will complete coding no more than ___ business days receiving the comments or requests. At that time, the Designer will again display the results of the coded Website Design to the Client.

5.            Second Review of Website after Coding. The Client will again promptly review the Website as displayed and will either accept it as it then is or communicate any further comments or requests concerning the Website to the Designer within __ business days after receiving notice from the Designer that the display is ready for review.

6.            Acceptance (2). If the Client accepts the Website as displayed under milestone 5, then the Website Software shall be deemed complete for the purposes of subparagraph 4(b) – payment of the balance of the Contract Price.

7.            Final Completion of Coding. If on the other hand the Client communicates comments or requests to the Designer under milestone 5, then the Designer will code any necessary modifications and will complete coding no more than ___ business days receiving the comments or requests. Coding will then be deemed complete. At that time, the Designer will again display the results of the coded Website Design to the Client.

8.            Acceptance (3). If the Client accepts the Website as displayed under milestone 7, then the Website Software shall be deemed complete for the

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Name of Firm Jonathan Staebler International Business Law
Profession (lawyer symbol)   Lawyer
Number of lawyers in firm 1
Branch of Law Contract, Corporate, Commercial, Property & Real Estate, Banking & Finance,
Location Baltimore, Maryland, United States
Practicing law since 7/1/1975
Education / Certifications Princeton - BA Columbia Law School - JD
Total Forms Contributed 1
Phone 850-450-8851
Email
 Specialist in transactional law, enterprise formation, contracts, software development, real estate development. Client-friendly, results-oriented.

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These forms are provided to assist business owners and others in understanding important points to consider in different transactions. They are offered with the understanding that no legal advice, accounting, or other professional service is being offered by these documents or on this website. Laws vary in the different states. Agreements acceptable in one state may not be enforced the same way under the laws of another state. Also, agreements should relate specifically to the particular facts of each situation. Therefore, it is important to consult legal counsel whenever utilizing these forms. The Forms are not a substitute for legal advice YourFreeLegalForms.com is not engaged in recommending or referring members on the site or making claims about the competence, character or qualifications of its participating members.
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Keywords: website,design,software,coding,source code,copyright,milestone,deposit,look and feel,hosting

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