Terms and Conditions

These DEVELOPMENT TERMS AND CONDITIONS, together with the Quote for Services and the Statement of Work provided by 2:45 Tech, LLC (“Developer”) in response to a party’s request for Services from Developer and executed by such party (“Client”), collectively form a legally binding agreement (the “Agreement”) by and between Client and Developer, effective as of the date of Client’s execution of the initial Quote (“Effective Date”). Capitalized terms, not otherwise defined, shall have the meaning ascribed to such terms in Section 11. The executed Quote and Statement of Work are referred to herein collectively as the “Order,” which is further defined in Section 11.
1. Payment for Products and Services.
1.1 Fees. Client shall timely remit payment of all fees and charges provided for in the Order, according to the provisions and any payment schedule included therein.
1.2 Expenses. Notwithstanding any other provision herein to the contrary, expenses for third-party software, licenses, and products, including, without limitation, photographs, and all travel expenses will be billed to Client at cost, unless otherwise specified in the Order.
2. Provision of Services.
2.1 Scope. By signing the associated Order, Client retains Developer to provide Services according to the provisions of the Agreement.
2.2 Changes to Scope. Client shall submit an additional written order for any and all requested additions, modifications, or deletions to the Order (“Change Order”). No Change Order shall be effective unless agreed to and signed by both parties. Developer reserves the right, in its sole discretion, to refuse to sign any Change Order in the event that Client is in breach of the Agreement or any Associated Agreement, Developer cannot reasonably and timely accomplish the requested changes, or Client has not agreed in writing to provide reasonable additional compensation. Developer agrees to provide consultation to Client regarding the availability of additional requested Services and Product at times convenient to Developer. Developer shall notify Client in the event that Developer’s provision of Services hereunder is likely to be delayed or impaired by any factor, occurrence, or event known to Developer. Developer, in its sole discretion, may elect to extend all affected time schedules, deadlines, and estimated dates of completion as it deems necessary to accommodate an effective Change Order.
2.3 Conflicting Provisions. The Order and any Associated Agreements are hereby incorporated by reference as if fully restated herein. In the event of a conflict between the provisions of the Agreement and the Order or any Associated Agreement, the provisions of the Agreement shall control. In the event of a conflict between the provisions of the Order and these Development Terms and Conditions, the provisions of the Order shall control.
3. Product Design.
3.1 Initial Design. All Product development and Services rendered shall be in material compliance with the Order. Except as otherwise provided in the Agreement: (i) Client shall timely supply all Client Furnished Items; (ii) Product development will occur on Developer’s systems; (iii) During development, the Product shall be available for Client’s review as provided in the Order, or according to the mutual agreement of the parties; and (iv) Product shall not be available for use during development.
3.2 Prototyping. Developer shall provide Client access to a prototype of the Product for review and testing (“Prototype”), as provided in the Order. After Client’s review and testing of the Prototype, Developer and Client shall reasonably cooperate to: (i) determine if any modifications or changes to the Prototype are required within the scope of the existing Order, which modifications or changes shall be memorialized in a Change Order and provided to Client at no additional cost; and (ii) execute any additional Change Orders agreed to by Developer and requested by Client prior to Developer’s release of the Final Version. All Change Orders executed after Developer’s provision of any Prototype and prior to Developer’s provision of the Final Version Materials are referred to herein collectively as the “Final Change Orders.” As used herein, to “provide” a Product means to grant access to the Product to the Client (in the case of a Prototype), or to the target customers of the Client (in the case of a Final Version).
3.3 Final Version. Developer shall complete any Final Change Orders according to the terms and scheduling contained therein, and thereafter provide the Final Version Materials to Client. Client shall hold Developer harmless for all errors in the Final Version, whether functional or content-based, that are not addressed in the Final Change Orders.
3.4 Accessibility. Notwithstanding any other provision contained herein, Developer shall not be required to make Product available for general or commercial use until Developer completes the Final Version and receives Client’s payment in full of all amounts due to Developer hereunder.
3.5 Hosting and Support. Developer may elect to provide Product hosting or support services in Developer’s sole discretion. Any such services agreed to by Developer shall be provided according to a separate agreement that is negotiated in good faith and mutually agreed upon by the parties. Notwithstanding any provision herein to the contrary, Developer shall not be required to enter into any such agreement, or provide hosting or support services hereunder.
4. Cooperation of Client. Client shall cooperate with Developer to complete the Final Version in a commercially reasonable manner, in accordance with the following provisions.
4.1 Client Knowledge and Tasks. Client shall reasonably cooperate with Developer in Developer’s provision of the Services, including, without limitation, timely: (i) providing all information and performing all tasks requested from or assigned to Client in the Agreement; and (ii) providing all other information and assistance reasonably requested by Developer for its provision of the Services hereunder.
4.2 Client Furnished Items. Client shall be responsible to provide all Client Furnished Items at its own expense, and at the times and in the manner specified in the Order or otherwise upon Developer’s request. Developer shall not have any obligation to provide, install, service, maintain, repair, or support any Client Furnished Items, except as provided in the Order. Client shall not provide and Developer reserves the right to reject any Client Furnished Items that contain incompatible, obscene, pornographic, or illegal content, hidden elements (such as deceptive metatags), or malicious or destructive programming or scripting. Client may provide an alternative Client Furnished Item to replace any Client Furnished Item reasonably rejected by Developer hereunder.
4.3 Scheduling. In the event of Client’s failure to comply with the provisions of this Section 4, Developer, in its sole discretion, may elect to extend all affected time schedules, deadlines, and estimated dates of completion as it deems necessary, or may terminate the Agreement for cause, according to the termination provisions of Section 6. Developer shall not be held in breach of the Agreement as a result of or arising from Client’s failure to timely comply with any provision of the Agreement.
5. Intellectual Property Rights.
5.1 Ownership of Product. Client acknowledges and agrees that all Product is the valuable property of Developer, and that Developer has all right, title, and interest (and all Proprietary Rights) in and to all such Product, until such time that Client has remitted payment in full according to the provisions of Section 1 and Developer has provided the Final Version Materials to Client. No right or title to or ownership of any Product, or any Proprietary Rights associated therewith, shall be transferred to Client or any other Person until such time.
5.2 Additional Protection of Proprietary Rights. Client will not infringe or violate, and will take appropriate steps and precautions for the protection of Developer’s Proprietary Rights in the Product during all periods of Developer’s ownership thereof. Without limiting the generality of the foregoing, Client will: (a) prevent any Unauthorized Use; (b) not make any Product that is not publicly available, available to any third party without the prior written consent of Developer; and (c) otherwise use its best efforts to prevent any Unauthorized Use of the Product, during all periods of Developer’s ownership thereof.
5.3 Perpetual License. Client hereby grants Developer an irrevocable, worldwide, royalty free, perpetual, nonexclusive, fully paid, unrestricted, and transferable license, with the right to sub-license, use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, access, view, and otherwise exploit all source code, scripts, queries, macros, and functions comprising all or any part of any Product (“License”). Such License shall not give Developer any Proprietary Rights in the overall “look and feel” of the Final Version.
5.4 Third Party Software. Developer may use third party software in its provision of Services and development of Product hereunder. In the event that any component of the Final Version requires the use of third party software not otherwise provided as a Client Furnished Item, Developer shall secure such third party software or licenses thereto in Client’s name and at Client’s cost, notwithstanding any other provision herein to the contrary, except as otherwise provided in the Order.
6. Term and Termination.
6.1 Term. The Agreement shall begin on the Effective Date and shall terminate upon Developer’s receipt of payment in full of all amounts owed hereunder, unless prior terminated according to any of the following provisions.
6.2 Termination by Mutual Agreement. The Agreement may be terminated at any time by mutual written agreement between the parties, according to the terms and conditions provided therein.
6.3 Termination for Cause. Either party may terminate the Agreement for cause upon the other party’s breach or failure to abide by any covenant in the Agreement after receipt of thirty (30) days’ written notice specifying the nature of the breach in reasonable detail and opportunity to cure; however, in the event such breach (other than a payment default) cannot reasonably be remedied within the thirty (30) day period, such party shall have such additional period of time as is reasonably necessary in which to cure the breach, provided such party diligently pursues a cure and provided that such additional period of time shall not exceed sixty (60) days.
6.4 Abandonment of Development. In the event that Client fails to cooperate (as provided in Section 4) with Developer in good faith for Developer’s provision of Services and Product hereunder or otherwise becomes inactive or takes actions that work to prevent Developer’s good faith attempts to commence, continue, or complete its provision of Services or Product hereunder, for a period of thirty (30) days, Developer may immediately terminate the Agreement for cause upon written notice to Client. In the event Client shall fail to pay any amounts due to Developer, Developer may suspend its Services until such payment is received.
6.5 Effect of Termination for Cause. In the event that Client terminates the Agreement for cause according to the provisions hereof, Client may receive, in Developer’s discretion, either: (i) the then current version of the Product after payment in full of all amounts then owed to Developer hereunder; or (ii) a full refund of all amounts paid by Client hereunder and forfeit any and all Product. In the event that Developer terminates the Agreement for cause according to the provisions hereof, Developer shall retain all amounts paid hereunder and any and all Product produced by Developer hereunder along with any amounts held by Developer as a retainer as liquidated damages and not as a penalty.
6.6 Effect of Early Termination. Notwithstanding the foregoing, in the event that the Agreement is terminated for any reason after Developer’s provision of access to a Prototype and Client’s payment in full of all amounts owed to Developer hereunder and prior to Developer’s provision of the Final Version Materials, Client shall be permitted to request and receive a copy of the Prototype for its own hosting; provided that such request is made in writing no later than ten (10) days after termination and provided all amounts due and owing to Developer have been paid. Notwithstanding any provision in the Agreement to the contrary, in no event shall Developer be required to host, service, maintain, support, or provide third-party software or products for any Product that is not a Final Version for which Developer has received payment in full hereunder.
7. Compliance with Laws. The parties shall comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction, including, without limitation, the U.S. Export Administration Act, regulations of the U.S. Department of Commerce, and other export controls and regulations of the United States of America.
8. Warranties.
8.1 No Conflict. Although Developer regularly provides Services to third parties substantially similar in nature to those provided for herein, Developer represents and warrants to Client that it is not party to any obligation or restriction that would tend to conflict with its provision of Services hereunder. Client agrees that Developer’s provision of Services to other parties shall not constitute any breach or violation of the Agreement.
8.2 Workmanship. Developer represents and warrants that it will develop the Final Version in a workmanlike manner and that the Final Version will materially conform to the specifications given in the Order, subject to the limitations in Section 8.3. Notwithstanding any other provision herein to the contrary, in the event that Developer and Client agree that additional, reasonable modifications are required to bring the Final Version into conformity with the warranties herein after Client’s receipt of the Final Version materials and payment in full of all amounts owed hereunder, such modifications shall be memorialized in a Change Order agreed to and executed by both parties and Developer shall provide such modifications at no additional cost to Client; provided that Developer determines that it is reasonably able to complete any such modifications within ninety (90) days following Developer’s provision of the Final Version Materials to Client.
8.3 Limitations. Except as otherwise specifically provided for herein, the following provisions apply. DEVELOPER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, COMPLETENESS, OR USEFULNESS WITH RESPECT TO THE SERVICES AND/OR PRODUCT AND CLIENT HEREBY WAIVES ANY RIGHT TO THE SAME. THE SERVICES AND PRODUCT ARE PROVIDED AS IS, WHERE IS, AND WITH ALL FAULTS. DEVELOPER DOES NOT WARRANT THAT THE SERVICES AND PRODUCT, INCLUDING, WITHOUT LIMITATION THE FINAL VERSION, ARE FREE OF ERRORS, OMISSIONS, DEFECTS, OR HARMFUL COMPONENTS.
CLIENT ASSUMES ALL RISK OF LOSS, INCLUDING, BUT NOT LIMITED TO LOSS OR CORRUPTION OF DATA, LOSS OF BUSINESS, OR DAMAGE TO ANY PERSON’S COMPUTER SYSTEMS OR SOFTWARE WITH RESPECT TO THE SERVICES AND/OR PRODUCT AND ANY OTHER SOFTWARE, HARDWARE, OR INFORMATION PROVIDED, CREATED, DEVELOPED, OR MANUFACTURED BY CLIENT OR ANY THIRD PARTY.
8.1 Client Furnished Items. Client represents and warrants that all Client Furnished Items are owned by Client or have been properly licensed from such items’ owners and hereby agrees to defend and hold Developer harmless for any violation of any third party’s Proprietary Rights caused by Client’s provision of the Client Furnished Items. Developer represents and warrants that all items, which are not Client Furnished Items, forming part of the Final Version are owned by Developer or have been properly licensed from such items’ owners. Developer hereby agrees to defend and hold Client harmless for any violation of a third party’s Proprietary Rights with respect thereto.
9. Limitations of Liability; Indemnification.
9.1 Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Developer be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business revenue or profits, business interruption, loss of business data or information, loss of use of the system(s) or any other pecuniary loss) related to the Services and Product, even if Developer has been advised of the possibility of such damages or such damages could reasonably have been foreseen by Developer. Furthermore, in no event shall Developer be liable for errors, delays, or non-performance due to any events beyond its reasonable control, including, but not limited to, acts of God, failure of power or communication, changes in laws or regulations or other acts of governmental authority, strike, weather conditions, or transportation.
9.2 Indemnification. Client shall indemnify, defend, and hold harmless Developer, its affiliates, agents, and their respective officers, directors, members, employees, and agents from any and all liabilities, claims, expenses and damages, including reasonable attorneys’ fees and costs, arising out of or in any way related to Client’s provision or use of the Services and Product, including without limitation any claims by third parties based upon tort, contract, negligence, strict liability, or any other legal or equitable theory that in any manner relate to the Services and Product or Client’s use thereof, or which constitute claims for special, incidental, indirect, or consequential damages, including, without limitation, all court costs, reasonable attorney’s fees, paralegal fees, accountant’s fees, expert witness fees, and other legal expenses. Provided, however, that the foregoing indemnification obligations shall not apply to the extent that any such claim or damages results from Developer’s material and uncured breach of the Agreement, or Developer’s intentional, or grossly negligent actions or omissions.
9.3 Assumption of Risk for Information Handling. Client acknowledges that Product may provide processing of Sensitive Information or link to other services or providers who process Sensitive Information. Notwithstanding any other provision of the Agreement to the contrary, CLIENT ASSUMES ALL RISK AND LIABILITY REGARDING USE, TRANSMISSION, STORAGE, SAFEGUARDING, AND RETENTION OF SENSITIVE INFORMATION VIA ANY PRODUCT.
10. Miscellaneous Provisions.
10.1 Entire Agreement, Amendment, Assignment. The Agreement, along with the Order and Associated Agreements as applicable, represents the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements, understandings, and communications, whether oral or written. No provision of the Agreement may be amended, modified, revoked, or waived except by a writing signed by a duly authorized representative of each of the parties hereto. The parties agree that neither party may assign the Agreement to a third party without the consent of the other party hereto.
10.2 Force Majeure. Notwithstanding any other provision herein to the contrary, including, without limitation, any termination provisions, either party shall be liable for any failure of or delay in performance of its obligations (except for payment obligations) under the Agreement to the extent such failure or delay is due to acts of God, acts of a public enemy, fires, floods, power outages, wars, civil disturbances, epidemics, pandemics, sabotage, terrorism, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and/or within the party’s power to satisfy), failure of common carriers, Internet Service Providers, or other communication devices, acts of cyber criminals, terrorists or other criminals, acts of any governmental body (whether civil or military, foreign or domestic), failure or delay of third parties or governmental bodies from whom a party is obtaining or must obtain approvals, authorizations, licenses, franchises or permits, inability to obtain labor, materials, power, equipment, or transportation, or other circumstances beyond its reasonable control (collectively referred to herein as “Force Majeure Occurrences”). Any such delays shall not be a breach of or failure to perform the Agreement or any part thereof and the date on which the obligations hereunder are due to be fulfilled shall be extended for a period equal to the time lost as a result of such delays. Neither party shall be liable to the other for any liability claims, damages or other loss caused by or resulting from any Force Majeure Occurrences.
10.3 Governing Law and Venue. The Agreement is entered into in, and shall be governed by, and construed according to the laws of the State of Tennessee, without regard to its principles of conflict of laws. In the event of a dispute, the courts of Knox County, Tennessee shall be deemed the proper forum for litigation and the parties consent to jurisdiction in such courts. Each party expressly submits and consents to the jurisdiction of such courts and waives any objection that it may have to any action or proceedings brought in such court and any claim that such action or proceeding brought in such court has been brought in an inconvenient forum. Process in any such action or proceeding may be served anywhere in the world.
10.4 Interpretation/Construction. The headings of paragraphs herein are included solely for the convenience of reference and shall not control the meaning or interpretation of any of the provisions of the Agreement. Each party has read and agreed to the specific language of the Agreement; therefore no conflict, ambiguity, or doubtful interpretation shall be construed against the drafter.
10.5 No Third Party Beneficiaries. Except as expressly set forth herein, the Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of the Agreement.
10.6 No Waiver. Failure by either party to require performance by the other, or to claim a breach of the Agreement, will not waive any right accruing under the Agreement, nor will it affect any subsequent breach hereof, limit the effectiveness of any provision of the Agreement, or prejudice either party in any subsequent action to enforce strict compliance with the Agreement as to such breach or any subsequent breach.
10.7 Notice. Any notice required or permitted to be given pursuant to the provisions of the Agreement shall be in writing and shall be deemed to have been given when (a) personally delivered, (b) delivered to a valid E-mail account for the recipient, or (c) deposited with the United States Postal Service, registered or certified, postage prepaid. In each case, such notice shall be delivered or addressed in accordance with the contact information listed in the Order, or as otherwise agreed to by the parties.
10.8 Severability. If, for any reason, any provision of the Agreement is held invalid, such invalidity shall not affect any other provision of the Agreement not held so invalid, and each such other provision shall, to the full extent consistent with law, continue in full force and effect. If any provision of the Agreement shall be held invalid in part, such invalidity shall in no way affect the rest of such provision, and the rest of such provision, together with all other provisions of the Agreement, shall continue in full force and effect to the full extent consistent with law.
10.9 Survival. All provisions of the Agreement which by their nature should reasonably survive termination shall survive termination, including, without limitation, provisions related to payment, intellectual property rights, warranty disclaimers, indemnity, and limitations of liability.
11. Definitions.
11.1 “Associated Agreements” means all agreements between Developer and Client related to Developer’s provision of Services hereunder, including, without limitation, Developer’s privacy policies, hosting agreements, acceptable use policies, service level agreements, terms of use, terms of service, etc. Client may view Developer’s Acceptable Use Policy and Service Level Agreement, which are available online via http://245.Tech/legal. Any and all other Associated Agreements shall be provided to Client upon request.
11.2 “Client Furnished Items” means any and all items and services required for the proper styling, use, and functionality of any Product and which are not otherwise required to be furnished by Developer according to the Order, including, without limitation, software, hardware, networks, peripheral devices, system information, database entries, photographs, graphic designs, font selections, compatibility and versioning information, login information, travel expenses, etc.
11.3 “Final Version” means the product of the Services provided by Developer after incorporation of any Final Change Orders.
11.4 “Final Version Materials” means the credentials and access codes necessary to access the Final Version’s configurable features, access to the Final Version, all source code and scripts created by Developer upon which the executable Final Version is based (upon the Client’s written request), and any documentation of the Final Version provided for in the Order.
11.5 “Order” means the Quote for Services and Statement of Work submitted to Client by Developer that have been executed by Client, as amended by any Change Orders that have been approved as provided for herein.
11.6 “Product” means any combination of websites and applications, or any components thereof, provided by Developer hereunder, including, without limitation any Prototype and/or Final Version.
11.7 “Proprietary Rights” means any patent, copyright, trademark, trade secret or other intellectual property right protected under the laws of the United States of America or any state of the United States of America.
11.8 “Quote” means the quote for Services submitted to Client by Developer, which lists, without limitation, the total estimated cost of Services to be provided to Client hereunder.
11.9 “Sensitive Information” means any information subject to statutory or regulatory authority regarding sharing, storage, or transmission, including, without limitation, personally identifiable information, financial information, health-related information, and others.
11.10 “Service” or “Services” means website development, software/application development, programming, consulting, hosting, support, and any other work specified in the Quote. Developer’s necessary good faith preparation for its provision of Services shall also be deemed to be Services.
11.11 “Statement of Work” means the statement of work for Services provided to Client by Developer, which lists, without limitation, development tasks to be provided to Client hereunder.
11.12 “Unauthorized Use” means any use, reproduction, distribution, disposition, possession, disclosure, or other activity involving any Product that is not expressly authorized under the Agreement, Associated Agreements, or otherwise in writing by Developer.