Creative & Development Services Policy

If Customer acquires Web or Application Design, Development or Enhancement Services (“Creative Services”), Customer agrees to comply with this Creative Services Policy (this “Policy”) and to remain responsible for its Users. Services rendered under this policy may also be subject to the terms and conditions of the Hosting and Support Policy and the Software and Integrated Services Policy.  Terms not defined herein shall have the meaning set forth in the applicable Master Services Agreement (“MSA”), Estimate, or Statement of Work (“SOW”) (each an “Agreement” and collectively the “Agreements”).

1. Web Design and Development Services—Overview. For Customers who contract for Web Design and Development Services, FMK will design a completely custom website for Customer (the “Website”). The purpose of the Website will be to provide Customer with an online presence and to provide current and prospective clients of Customer with vital information about Customer business operations.  Specific details about the Website will be outlined in an MSA or SOW, and will be further modified collaboratively between FMK and Customer.
   1. Design Process. The Services will comprise the graphic design and implementation of the layout, usability, and visual appearance of the Website, including the “user experience” (UX) and “user interface” (UI) aspects of the Website. The design process will consist of four (4) phases: Concept, Design, Technical, and Testing. In the Concept phase, FMK will begin work by outlining the basic flow and gathering text and images for the Website. In the Design phase, FMK will create digital artwork for the outlined webpages and integrate the images and text. In the Technical phase, FMK will enable the Website server and domains, and add interactive functionality like forms and emails. In the Testing phase, FMK will check the entire Website to make sure it is operating as expected.
      1. Files Provided By Customer. Files provided by Customer shall be provided in HTML ASP, Cold Fusion or other professionally acceptable format, or in standard word-processing text format; or, if images, as bitmaps, TIFFs, GIFs, JPEGs or Photoshop files. 
      2. Design Strategy Review Meeting. On a mutually agreed-upon date, FMK will present one or two (at FMK’s discretion) visual and/or UX design strategies, using mockup(s) or functional prototypes, for review with Customer. If two design strategies are presented, each will represent different design directions/ideas, but each will be consistent with the overall objectives of the project as outlined in the strategy brief. Each design strategy will consist of one (1) to three (3) example page design/layout(s). At this design strategy review meeting, FMK will explain the strategies involved in the presented designs, and Customer will offer initial feedback as to how closely the suggested designs meet Customer’s general needs and expectations. Within five (5) business days (the “Review Period”), Customer will select the design strategy that best suits Customer’s needs, and will assemble and deliver a list of any desired discussion points for revision (if necessary) to FMK. Following the design strategy review meeting, the design may be subjected to revisions in order to achieve the final design strategy. Customer will then approve the final design strategy. With final strategy design approval, the further necessary content, template, and modal window layouts will be created. Following informal approval of these layouts, the design strategy will be produced as the final cross-browser compliant, adaptive HTML/CSS pages. During the Review Period, Customer may address issues not contemplated by the original specifications, and may also specify changes that vary from the original specifications. If such changes from the original specifications involve significant additional work, the Parties will negotiate a fair price for the additional work, or if the Parties cannot agree on a price, Customer may either proceed with the initial specifications or terminate the portion of the SOW associated with Website; provided that, if Customer chooses to terminate the portion of the SOW associated with Website at such time, then Customer shall reimburse FMK for FMK’s properly incurred actual out-of-pocket expenses associated with Website, inclusive of time spent, as evidenced by appropriate written documentation. 
   2. Development Process. The Services will consist of building and maintaining the core structure of the Website, and converting the Website design into a functional website, using the coding languages described below. The development process will include, as necessary, both “front-end” development (programming the visual elements of the Website that users will see) and “back-end” development (coding the database(s) and server). The Website development process will be subsequent to the Website design process, and the development process will consist of three (3) phases: Coding, Testing, and Launch. In the Coding phase, FMK will: (i) write the software code to integrate the images and text and digital artwork from the design process into the designs for the individual webpages; (ii) add special features and interactivity to the static webpage elements that were created during the design process; (iii) write the software code to integrate the individual webpages into the overall design of the complete Website; (iv) install and configure the content management systems (“CMS”), databases, and frameworks that were applied or created during the design process; and (v) perform search engine optimization (“SEO”) for the Website. In the Testing phase, FMK will: (a) test all components of the Website, and the overall functionality of the Website; (b) check all forms and scripts, and run spell-checking software to eliminate typos; (c) run code validation tools to confirm that the software code used to develop the Website conforms to current web standards; and (d) test browser compatibility issues.  In the Launch phase, FMK will: (A) register the Website with Customer’s ISP, and enable the Website server and domains; (B) upload the Website to the hosting server; (C) migrate all Website data to the database(s) used by the hosting server; (D) merge all code; and (E) implement domain name redirects for the Website.
      1. Approval of Prototype. FMK will develop a prototype model of the Website and will have it completed within the timeframes established in the MSA or SOW, assuming  Customer has provided the prototype source materials requested by FMK in accordance with the SOW. The prototype will demonstrate at least one sample of each type of page of the Website. FMK will conduct a "walk through" of the prototype at a date and time mutually agreeable to each Party. Customer shall have five (5) business days from the date of the "walk through" to notify FMK of any requested changes (if reasonable in number and nature) to the prototype and to address issues not contemplated by the original specifications. Within this time Customer may also specify changes that vary from the original specifications. If such changes from the original specifications involve significant additional work, the Parties will negotiate a fair price for the additional work, or if the Parties cannot agree on a price, Customer may either proceed with the initial specifications or terminate the portion of the SOW associated with this Website; provided that, if Customer chooses to terminate the portion of the SOW associated with this Website at such time, then Customer shall reimburse FMK for FMK’s properly incurred actual out-of-pocket expenses and time spent, as evidenced by appropriate written documentation. FMK will implement the changes that Customer specifies for the prototype within two (2) weeks after receiving Customer’s request for changes, and will then provide a "walk through" of the revised prototype at a date, time and place mutually agreeable to Customer and FMK. This review process will continue until such time as the prototype is approved in writing by Customer or until the portion of the SOW associated with this Website is terminated. FMK shall begin construction of the final Website only after Customer has approved the prototype. The prototype may be reviewed by Customer "on line" at any point in lieu of or in addition to any “walk through.”
      2. Approval of Development of Final Version of Website. FMK shall complete the Coding phase of the final version of the Website according to the schedule listed in the table below, and shall conduct a "walk through" of the final version of the Website, prior to the Testing and Launch phases, at a date, time and place agreeable to Customer and FMK within one (1) week of the completion of the Coding phase. The "walk through" process for the final product will be similar to the "walk through" process for the prototype, as described in Section 1.2.1 (“Approval of Prototype”) above, and will continue until the final product, prior to the Testing and Launch phases, is approved in writing by Customer or until the portion of the SOW associated with this Website is terminated.
      3. Files Provided By Customer. Files provided by Customer shall be provided in HTML ASP, Cold Fusion or other professionally acceptable format, or in standard word-processing text format; or, if images, as bitmaps, TIFFs, GIFs, JPEGs or Photoshop files.
      4. Registration of Domain Name. FMK will use its best efforts to register the domain name for the Website for the benefit of Customer (or such other name or names as may be registrable and acceptable to Customer). FMK will immediately assign all rights thereto to Customer. Customer agrees to pay all registration fees associated with such registration or registration(s). 
      5. Accessibility of Website During Construction. Throughout the construction of the prototype and the final version of the Web Site, the Website shall be accessible to Customer via the Internet with the use of user identification codes and passwords that will be supplied by FMK following the approval of the initial prototype.
      6. Project Planning Meetings. Representatives of the Parties, with sufficient familiarity with the project contemplated by this SOW, shall attend project planning meetings at mutually convenient locations and at mutually convenient dates and times, as agreed upon by the Parties, to discuss project planning matters. 
   3. Delivery of Deliverables. Upon Customer’s final approval of the Website following completion of the Coding, Testing and Launch phases, or upon termination of the portion of the SOW associated with this Website, whichever is earlier, FMK shall deliver to Customer all source code, object code, database files, design, analysis or architecture documentation, reports, and other materials, and all changes and enhancements thereto (except third-party operating system software, third-party networking software, web browsers, and hardware) developed by FMK in the course of its development of the Website, and any other items reasonably necessary for the operation of the Website (the “Deliverables”). Documentation shall be delivered in printed or electronic format. All source or object code shall be delivered in electronic format. Files will be provided in HTML, ASP, Cold Fusion or other professionally acceptable format, standard word-processing text format or, if images, as bitmaps, TIFFs GIFs, JPEGs or Photoshop files. FMK shall maintain its backup files and one set of the final materials provided to Customer for a period of twelve (12) months after Customer’s final approval of the Website following completion of the Coding, Testing and Launch phases. If the portion of the SOW associated with this Website is terminated prior to final approval, or at the expiration of such twelve (12)-month period, FMK shall destroy all of its copies of the Website (including all backup files thereof) and “wipe” all files constituting final or working copies of the Website (other than the final copy hosted on FMK’s web server and one backup copy thereof) from FMK’s computers and backup materials, unless otherwise directed in writing by Customer.    
   4. Ongoing Maintenance.  IT IS STRONGLY RECOMMENDED THAT UPON COMPLETION AND DELIVERY OF ANY WEBSITE DEVELOPMENT PROJECT, CUSTOMER ESTABLISHES AN ONGOING SUPPORT AND MAINTENANCE CONTRACT TO ENCOURAGE THE ONGOING MODIFICATION, DEVELOPMENT AND IMPROVEMENT OF WEBSITE FUNCTIONALITY OR APPLICABILITY TO MARKET NEED.
2. App Design and Development Services—Overview. If FMK is engaged to design, develop or consult on an application for Customer (the “App”), the purpose of the App as well as the specific nature of the work to be performed will be clearly defined in the MSA or SOW for the contracted work.
   1. Design Specifications. FMK shall gather the necessary detailed requirements for the App and shall develop and deliver to Customer a set of design specifications meeting Customer’s requirements, including the requirements for the business functionality of the App, and for the look and feel of the user interface and of each page within the App. The design specifications shall include a module overview, logical and data processing flows, module inputs, module outputs, file/database structure, module interfaces, and module processing components. FMK will ensure that as far as reasonably possible the design specifications include provision for necessary third-party software and compatible operating and hardware environments. FMK will use reasonable efforts to raise with Customer any issues which it believes are relevant to the operating and hardware environments relating to the App. Customer will provide FMK with all information requested by FMK regarding the design specifications for the App.
   2. App Design Process. The Services will consist of building the core structure of the App, and converting the App design into a functional mobile application, using the coding languages described below. The development process will include, as necessary, both “front-end” development (programming the visual elements of the App that users will see) and “back-end” development (coding the database(s) and server). FMK will perform software testing of each release to confirm that all source code functions properly. FMK will perform integration testing of each release to confirm that each release functions according to Customer's specifications. Upon the completion of software testing and integration testing, FMK will assist Customer in performing user acceptance testing (“UAT”). UAT shall be scheduled at a time which is convenient for both Parties and in accordance with the agreed-upon schedule for the App design process, and FMK personnel shall be entitled to be present for all UAT. UAT shall include Alpha testing and Beta testing. If the App fails the Alpha or Beta testing, Customer shall so notify FMK in writing within a reasonable period following such failure, specifying the nature of the failure, FMK shall use reasonable efforts to correct the failure, and Customer shall then repeat the Alpha or Beta testing, using the same procedure that revealed the failure.
   3. Approval of Prototype. Once Customer has approved in writing the design specifications for the App described in Section 2.1 (“Design Specifications”) above, FMK will develop a first prototype model of the App.  FMK will conduct a “walk through” of the prototype at a date and time mutually agreeable to each Party. Customer shall have five (5) business days from the date of the “walk through” to notify FMK of any requested changes (if reasonable in number and nature) to the prototype and to address issues not contemplated by the original specifications. Within this time Customer may also specify changes that vary from the original specifications. If such changes from the original specifications involve significant additional work, the Parties will negotiate a fair price for the additional work, or if the Parties cannot agree on a price, Customer may either proceed with the initial specifications or terminate the portion of the SOW associated with this App; provided that, if Customer chooses to terminate the portion of the SOW associated with this App at such time, then Customer shall reimburse FMK for FMK’s properly incurred actual out-of-pocket expenses and time spent associated with this App, as evidenced by appropriate written documentation. FMK will implement the changes that Customer specifies for the prototype, and will then provide a “walk through” of the revised prototype at a date, time and place mutually agreeable to Customer and FMK. This review process will continue until such time as the prototype is approved in writing by Customer or until the portion of the SOW associated with this App is terminated. FMK shall begin construction of the final releases of the App only after Customer has approved the prototype. 
   4. Files Provided By Customer. Files provided by Customer shall be provided in HTML ASP, Cold Fusion or other professionally acceptable format, or in standard word-processing text format; or, if images, as bitmaps, TIFFs, GIFs, JPEGs or Photoshop files.
   5. App Store Requirements. Where applicable, FMK shall ensure that the App is compliant with the technical requirements, but not the business requirements, of the guidelines published by each app store through which which the App is intended to be distributed. Customer acknowledges that it is Customer's responsibility to ensure that the App is compliant with the business requirements of the guidelines published by each such app store.
   6. Project Planning Meetings. Representatives of the Parties, with sufficient familiarity with the project contemplated by this App, shall attend project planning meetings at mutually convenient locations and at mutually convenient dates and times, as agreed upon by the Parties, to discuss project planning matters. 
   7. Delivery of Deliverables. Upon Customer’s final approval of each release of the App, following completion of software testing, integration testing, and user acceptance testing for that release, or upon termination of the portion of the SOW associated with this App, whichever is earlier, FMK shall deliver to Customer all source code, object code, database files, design, analysis or architecture documentation, reports, and other materials, and all changes and enhancements thereto (except third-party operating system software, third-party networking software, web browsers, and hardware) developed by FMK in the course of its development of that release of the App, and any other items reasonably necessary for the operation of that release of the App (the “Deliverables”). Documentation shall be delivered in printed or electronic format. All source or object code shall be delivered in electronic format. Files will be provided in HTML, ASP, Cold Fusion or other professionally acceptable format, standard word-processing text format or, if images, as bitmaps, TIFFs GIFs, JPEGs or Photoshop files. FMK shall maintain its backup files and one set of the final materials provided to Customer for a period of twelve (12) months after Customer’s final approval of that release of the App. If the portion of the SOW associated with this App is terminated prior to final approval, or at the expiration of such twelve (12)-month period, FMK shall destroy all of its copies of that release of the App (including all backup files thereof) and “wipe” all files constituting final or working copies of that release of the App (other than the final copy hosted on FMK’s web server and one backup copy thereof) from FMK’s computers and backup materials, unless otherwise directed in writing by Customer. 
   8. Post-Completion Warranty Period. Notwithstanding Section 14.2 ("Disclaimers—In General") in the MSA, if applicable, the App shall function in substantial conformity with the relevant design specifications for a period of three (3) months after final written acceptance by Customer (the “Post-Completion Warranty Period”). During the Post-Completion Warranty Period, FMK shall, as soon as reasonably possible, correct any defects identified by Customer or FMK at no cost in order to bring the App into substantial conformity with the relevant design specifications. If a Deliverable is discovered by Customer to be not in compliance with the design specifications during the Post-Completion Warranty Period, Customer shall provide FMK with written notice of the defect, and shall provide FMK with reasonable adequate documentation and reproduction or demonstration of such defect, so that the cause of such defect may be traced and corrected. FMK shall then have a reasonable period of time, following such notification by Customer, to correct such defect, where the reasonableness of the response and correction time shall be determined based upon the nature and severity of the defect and the impact the defect is having on Customer's business operations. The warranty provided by this section: (i) shall not include any extension of the application features or the development of any new application features, and (ii) shall not apply with respect to documentation, hardware or software that is provided to Customer by any third party.  IT IS STRONGLY RECOMMENDED THAT UPON COMPLETION AND DELIVERY OF ANY APP DEVELOPMENT PROJECT, CUSTOMER ESTABLISHES AN ONGOING SUPPORT AND MAINTENANCE CONTRACT TO ENCOURAGE THE ONGOING MODIFICATION, DEVELOPMENT AND IMPROVEMENT OF APP FUNCTIONALITY OR APPLICABILITY TO MARKET NEED.