2011年高级商务英语口语教程五

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Lesson FiveContract English
4 s5 x' E/ D0 E% F4 |$ {# |$ k合同英语
- {6 O% g. s! o4 ]/ p
Part I Objectives
2 Main characteristics of a contract
0 E, }0 b! k( P: [9 X合同的特性
2 Contract review: Checking for key elements of a contract
合同的重要组成部分
2 Commonly used legal terms
常用法律用语
2 Some tips on easy understanding of contract lingo
" n  ~% j- m$ Y0 S掌握合同专用语的一些相关技巧
! q" ?, @, }& c$ Q
2 {8 X- t4 X# V( NPart II  The How-Tos
# R/ H% }" r- b0 l! i
What You Should Know About a Contract
2 Why Do I Need A Contract?  为什么需要合同？
, F# Z4 ~' f6 v- x- FYou don’t have to be a lawyer to reap the benefits of writing your own contracts. A little common sense goes a long way and a good contract does more that just cover your rear should you end up in court. Written correctly, a contract can demonstrate business professionalism, weed out insincere clients, organize your duties, speed up your pay, help you get insurance, avoid disputes, make mutual obligations clear and keep you out of court.

( n' z3 _1 B' m3 r+ H0 l+ ^2 What is a Contract?  什么是合同？
! ]; N& O/ q* x: k8 [A contract is a legally binding agreement. Contracts are either formal (written) or simple (verbal). It may be a bilateral contract, performed by both parties, or unilateral, a promise in exchange for an act or performance of a task or deed. Contracts may be voided, that is, the parties may agree to nullify the contract or it may be voided by a court of law. These are some of the characteristics of a contract.

2 Elements of a Good Contract   合同的要素
6 a& F, N4 Y; F1 C, eEvery good contract has four essential component parts. They are: offer and acceptance, mutuality and consideration, competent parties, and a legal object.
An offer is communicated verbally or in writing and has definite terms. Mutuality indicates duties or actions are performed by each party. Consideration means that something of value is exchanged. Competent parties speak to the mental and legal capacity of the parties involved in making the contract. A legal object connotes a legal objective and no criminal intent.
Contracts don’t have to be formal: a letter of agreement is a contract too. In fact, a contract can be anything — it can be oral, can be written on a napkin(though not advised), can be a purchase order or a combination of documents exchanged between parties. It has no particular form. Written is better, though, then the terms are less often questioned.
4 Z) l/ T; Q5 x2 z* Z0 t6 lTo construct your own contract, specify the issues and conditions that matter. Independent consultants, for example struggle with Internal Revenue Service rules that threaten to reclassify them as employees. In an independent contractors contract state “the contractor is an independent contractor and not an employee.” That will protect the business identity and relieve your client of the fear that they will end up having to pay your health insurance premiums and Social Security taxes.
4 f4 p/ A. M% y) VInclude specific services your are to perform and deadlines. Detail a payment schedule that is suitable to both parties. If intellectual property (i.e., software, reports, manuals) is involved, include details about who owns the rights and the extent of those rights. If your work is project-based, include a description of when the job will end. That can be the delivery of the final report, etc.
$ U, _4 e% r* u, \" Q: y/ R2 NSo, how do you write your own contract? It is easier than it may appear. Several software packages exist to help you with the chore. Look also for printed forms. However, they are not as easily customized to your needs as software packages.
# s2 g( [$ ^/ U" y0 cGet a good set of forms, fill them in and spend less on lawyers. Your understanding of the principles of contracts, their uses and limitations are sure ways to cut legal bills or avoid them altogether. It will also prevent murky situations in which inexperienced professionals find themselves and to avoid litigation.

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2 Contract Review - A checklist for you
Start evaluating your contract by doing a quick check of the critical basic elements. In most states, for a written contract to be enforceable, it must at a minimum:
! \  P8 w6 C# k· Identify the Parties. Many form contracts used by small businesses include spaces for the names of the contracting parties, but in a harried workplace, these blocks don’t always get filled in. Avoiding a loss in a contract dispute because the parties to the contract have not been identified should be a "no brainer." Simply make sure that you and your employees ALWAYS (legibly, if done by hand) insert the names of the parties in the appropriate spaces on the contract.
· Describe the Subject Matter. A contract must adequately describe the subject matter of the agreement. In a contract for services, for in stance, the contract should state that the contract is for the performance of services and those services should be clearly described. How ever, if the contract is for the sale of goods, it should clearly indicate that the parties have agreed to a sale of goods. Making it clear that the parties understood and agreed in advance that the contract was for the sale of goods, not services, or vice versa, will make sure that the correct body of law is applied in the event of a dispute. For example, the Uniform Commercial Code (adopted in some form by all states and known as the UCC) applies only to the sale of goods. All other types of contracts are generally governed by the more imprecise and varied statutory and common law of each state. In some cases, it is not always clear whether the contract is for the sale of goods or services. If there is any doubt, you should consult an attorney to determine how to characterize the description of the subject matter of your contract.
· State the Material Terms. Every contract must state the material terms and conditions of the contract. Under the Uniform Commercial Code the only material term necessary for an enforceable contract is a term stating the quantity of goods to be sold. In the event of a dispute, the Uniform Commercial Code permits a court to fill in the unstated or missing terms with what the court deems to be a reasonable price, quality, color, delivery date, interest rate, etc.
· Include a Signature. Every written contract must be signed by the party to be charged in the event of a breach. What this means is that if the seller eventually requires enforcement of a contract against a buyer, the contract must have been signed by the buyer. Conversely, if the buyer wants to force a seller to comply with the terms of a contract, the contract must bear the seller’s signature. A signature by the buyer of goods or services is critical evidence that he or she agreed to the terms of the contract and intended to be bound by them. Most pre-printed form contracts provide the necessary spaces for signatures.
Fine Tuning
3 e3 ?, X7 B4 F" g9 _After checking your contract for the basic elements, consider some of the following more advanced touches to tweak your contract into better form:
· Integration or Merger Clause. Does the contract contain some language to the effect that the terms contained in the written contract are the only terms agreed to between the parties? Including such language can preclude a party, in the event of a dispute, from arguing that additional terms were agreed to orally, or by some other means, at the time the contract was formed. The language could be as simple as stating “This Agreement constitutes the sole agreement of the parties.”
· Choice of Law Clause. Specifying in advance, within the body of the agreement itself, which state’s law will be used in the event of a dispute is a prudent move, for businesses with customers in more than one state. Litigating the same contract in different states under each state’s unique body of contract law can produce widely differing results. By insuring that only a single state’s law is applied, the drafting party can know in advance with some degree of confidence how certain disputes may be resolved. A typical choice of law clause might say: “This Agreement shall be construed and interpreted in accordance with the laws of the State of Oklahoma.”
· Arbitration Clause. It is possible to keep contract disputes from going to court at all by including language in the contract requiring the parties to submit any disputes to arbitration. Arbitration is usually much less expensive and faster than traditional litigation. An arbitration clause in a contract might say: “Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in Oklahoma City, Oklahoma, by and in accordance with the Rules of the American Arbitration Association.”
1 e6 B' I. ^3 F( SForm contracts are critical tools for any business which buys or sells goods or services. They should be reviewed periodically to make sure they comply with the law and provide the drafter with the terms it needs to do business. Consult with an attorney before adding or changing any language in your existing contracts.

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Part III  Let’s Talk Business
) e. ?/ \: a8 u5 g  [( bSuites Without Lawyers
" y3 m: O, G6 X8 LAny person has the right to sue another party for money judgment without a lawyer, or technically speaking "pro se". Pro se (pro-say) means by or for yourself. Each state sets own limits for so called small claims. Such claims usually arise from improper car or appliance repair, defaults in rent or loan payments, return of rent deposit, and so forth. For example, in Illinois the small claims limit is $5,000 dollars. State laws and judges facilitate more expeditions and less formal adjudication of such claims for damages than in other cases and court proceedings.  
, c! E. z, Y& |& s7 D# g1 [A person pursuing a claim in court is called "plaintiff" and a person being sued is called "defendant". Plaintiff files a "complaint" stating plaintiff's and defendant's names, home or business addresses, dates, events and gist of the claim. Copies of receipts, contracts, estimates and pictures must be identified in and attached to the complaint. Every paragraph must be numbered and brief. The complaint has to specify the relief sought by the plaintiff from the court.
Legal entities, such as corporations, partnerships, trusts or associations, may be prohibited by statutes from litigation without attorneys. Minors can be represented by their parents. Anyone who reached the age of majority can be a pro se plaintiff.
A defendant must be served with a summons and a complaint. If the wrong defendant is served, or the service of process is otherwise done improperly, no court judgment will be valid. A defendant may be served by certified mail or through sheriff. Service on a defendant-corporation must be either on any officer of the corporation or its registered agent.
5 F- G2 ~' P! w3 y& G6 V' c1 pIf the properly served defendant does not appear at trial, then a default judgment will be enterd against that defendant. If the plaintiff does not appear at trial, then the case will be dismissed for want of prosecution.
A complaint must identify the parties by names, principal place of business of a company or home address of a defendant, the place of the occurrence, acts of the parties, allegation of the wrong and remedy sought. State statutes proved that the winning party is entitled to costs incurred, such as filing fees, sheriff's charges and cost of subpoenas served on witnesses.
- [3 \6 K4 Z6 k! vAttorney's fees are rarely awarded by judges, unless the statute relied the party specifically gives such a right.
& N; g8 T4 U. b0 NA defendant must file an appearance and pay the appearance fees within thirty days of service upon that defendant. A written answer has to be filed only in cases involving the amounts in excess of $5,000.00 or other minimum limits set by the state law. A defendant also can file a counterclaim against the plaintiff for poor workmanship and resulting damages, or money owed to the defendant-counterplaintiff.
One party may request the other party produce documents and things, answer interrogatories (questions to be answered under oath) and take part in depositions (oral discovery or questioning of a witness or a party in the presence of a court reporter) if the judge or law allows this.
' N' T1 [% w6 h! RWitnesses can be subpoenaed (the subpoenas are issued by the court) for trial. A witness is entitled to a statutory fee plus mileage reimbursement. Witnesses can testify about the events (what they saw or heard) or give opinions on matters within their expertise. For example, a mechanic can opine on the quality of engine repair, a doctor can give opinions about the health problems, a dog trainer about the dog behavior, and so on.
Estimates can be introduced into evidence, or in other words heard by or shown to the judge or the jury, only through the testimony of the estimate prepare or through the plaintiff if the bills were paid. The court will not accept papers prepared by a person who is not present in court, unless an expert incorporates such documents in his or her own opinion.
If the plaintiff does not show up at the court proceedings, the case will be dismissed for want of prosecution. If the defendant does not show up at trial, then the default judgment will be entered against that defendant. If a party cannot come to the court, any representative of that party can ask the judge to continue the trial or the scheduled proceeding.  A trial or hearing is usually continued by the judge to a selected date at the same room and time. Telephone requests for continuance of trial are not proper.
At trial, a party presents own claim or defense by telling the judge their own version of events, presenting witnesses, exhibits (documents, photographs, receipts, contracts) and questioning the opponent and adverse witnesses.
  P9 `! d4 f! ?9 y+ `No arguments with witnesses or the judge are allowed in court. Each request must be funneled only through the judge. In cases where no evidence is presented to the judge except the conflicting stories of parties, the judge may decide the case on the basis of personal appearance, presentation and veracity of statements of parties.
After the judge renders a decision, the winning party prepares an order reflecting the judge's findings. The judge signs that order. A court clerk then stamps a copy of the order and gives it to each litigant. Exhibits are given back to the parties. The judge may award the court costs to the winning party. Such costs include filing or appearance fees, subpoenas and sheriff's charges for serving summonses.   
The parties can settle their claims before, during and after the trial. Judges encourage litigants to settle and assist in reaching such settlements. A party having no funds to pay the judgment award can pay it in installments. The defendant should get from the plaintiff a paper called "Satisfaction of Judgment" after the judgment is paid in full or the judgment is settled. This document must be registered in court and kept for future reference in case the defendant's credit record has not been cleared.
# @. L: ~1 e. c2 M0 m& zA losing party can file an appeal within thirty days of the judgment entered by the court. The appeal takes long time and can be won if the judge abused her discretion in rendering the decision.
. a" S. V* F0 b5 o! h$ Q. sIf the defendant refuses to pay the judgment, the plaintiff can record only a "memorandum of judgment" which will impose a lien or objection to the defendant's property title. Thereby the property will no be transferred to anyone without satisfaction of judgment. This may not be helpful in case the defendant does not own any real estate.                              
Collection of judgment is another legal avenue which must be pursued by the judgment-creditor against the judgment-debtor. Such collection can be accomplished through collection agencies charging a certain percentage for their efforts. The judgment-creditor can also initiate a garnishment action in court. The court may issue a wage deduction order requiring the employer to deduct a portion of wages for payment of judgment. A citation to discover assets issued by the court in the garnishment action forces the judgment-debtor to disclose all assets (real estate, stocks, bonds, bank accounts, cars). In case of failure to disclose such assets, the court can issue an "attachment" for the responsible party's arrest.   
( d. @, D/ H' O6 ?If the defendant leaves the country, has no assets or declares bankruptcy, further collection efforts may become fruitless.

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Part IIII  Exercises and Discussion
5 S) Y4 d9 y( h/ P- P  h, Z! I) j% khttp://www.examw.com/bec/gaoji/kouyu/264101/file:///C:/DOCUME~1/ADMINI~1/LOCALS~1/Temp/ksohtml/wps_clip_image-19962.png
( H+ b$ I" r) Y' L  r2 Give real life examples of:
( E  j  a7 F( G8 _- a written contract
- a verbal contract
7 d5 F, c: o, _$ n- a bilateral contract
/ Y6 G4 V8 H, {5 d- a unilateral contract
; B2 w* c4 Z2 W' j  n' ^- a promise in exchange for an act or performance
Identify the parties, legal objects (subject matter) and considerations in each of the above contracts.
2 Give legal advices to the following scenarios based upon your understanding on legal practices of “small claims” in US. Try to use as many “legal terms” as you can. Such terms had been underlined in Part two and three.
- Mel Chen, the owner of 123 Main St, Anytown, Illinois, is suing one of her tenants, John Dow for a rent overdue of $5,500. Mel was planning  not to have a lawyer because of the high cost. Does she have the right to do so?
; o: ]# A  W2 g* \- Following the above scenario, if the amount of the rent overdue was $4,000, could Mel have a lawsuit without a lawyer? If she could, what capacity will she be acting in? How about John?
- Following the above scenario, if Mel decided not to show up at the court due to some personal reasons, what are some of the consequences she is going to take? What if John doesn't appear at trial?
% X& _0 L5 T9 B/ z) e( q& s9 a/ v- ABC Shoe Manufacturing Inc. is suing an independent contractor, Jay Fox, the plumber, for improper plumbing installation that had caused a damage of the showroom floor for an amount of $800. Does ABC have the right to make a claim in court without a lawyer? Why?
0 o- _1 q# M1 v6 n" K% m; ?' e: o- A rottweiler owned by Joe Marino attacked Jane Dow and she is suing Joe Marino for damage of $4,500. Benny Lee, the dog trainer was subpoenaed to testify on the behavior of the dog. Will Benny get paid for doing so? If Benny failed to appear in court, would a paper prepared by him stating his expertise be a valid piece of testimony to be used at the trial?
3 ?8 y% T  |+ S8 o2 Using the sample contract in part five, identify all aforementioned elements that appear in it.
3 n( `. N+ E, S/ ]  I7 I! }
/ a! b) b2 U+ p6 {7 m  q* x! DPart V Supplementary Notes来自www.Examw.com
# w. u% c( P% e8 P2 Pay attention to the following expressions in contacts, as they may seem similar in form but parts far away in meanings.
$ K6 U5 V/ C2 ~; BGuarantor  保证人
Guarantee
保证

Vendor
卖方
Vendee
买方
Surety
Warranty
0 v! O5 L' L& M# O7 U  P% ^Seller
Buyer
One that makes or gives guaranty
0 ?) g: z5 ~# P5 j: RThe assurance for the fulfilment of a condition
One that vends
4 x' v( m, I8 w2 z5 UOne to whom a thing is sold
: x8 P: o  A0 @. a! V! t% rConsignor
- P3 \' J9 _1 c1 T$ x( S) n委托人
Consignee
, G3 K$ r1 Q9 t受托人
  O1 J6 X6 E) v7 G4 C1 ?
, W3 e. A+ b$ N/ z; O! QPayor/Payer
) V) U9 y+ `: V( V7 a/ u付款人
Payee
领款人
Party sending out the shipment
( Y' ^/ }) C5 D4 XParty receiving the shipment
+ E9 G) `4 O! u  MParty who’s making the payment
Party who the payment is made to
" s, c4 y$ j4 J, J5 d) oThe consignor should send out the goods by Jan 23, 2003.
2 W# j2 W$ @- [9 O9 rA payor should always write down the payee’s name first on a check.
3 @; k5 m; d% ]$ IBailor/bailer
寄托人
1 p( x) j! z$ @5 p" UBailee
保管受托人

Change A to B
将A换成B
9 G( g& s; s& O5 G4 ~Change A into B
将A兑换B
Owner of the object to be bailed
Person safekeeping the subject matter of the bailment
5 {/ }& _/ v' p* w) y. gUsing B instead of A
4 v/ Y7 ?5 p* G2 `$ ^Using for exchanging of currency
# d, c. S, C) e; [. _' H4 N6 AThe term of bailment asked the bailee to pay a security deposit of $50,000.
Both parties agree that change the time of shipment to August and change US dollar into RMB.
Shipping advice
9 x% y7 P( ^5 a# y/ t运输建议
1 c' ]3 ^. @3 F; k  EShipping instruction
% ^% ~7 d% O/ `) b, j9 j运输指示

In
$ a( \! u+ M8 Z* @) s9 o在... 时间之前
After
在... 时间 (不确切)
Notice of shipping
Rules of shipping
A certain day following the time period being set forth in provision
A rough period of time
A shipping advice was sent out by the seller on Nov.31st.
The good shall be shipped per MV “Maria” on Nov 10th and are due to arrive at Rotterdam in 140 days.
Ex 把货送到... 里来
Per 把货送出去

By
* g3 }  y: t8 U6 _# C$ C在... 之内送货
Before
在... 之前送货
An inward shipment
An outward shipment
Including the date indicated
. F) F* [& y& z7 @. cExcluding the date indicated
4 l/ y) X, I4 P" N& g" o6 C7 T7 aThe last batch per/ex/by SS “Victoria” will arrive at London on October.
2 T& R$ |+ h) I  W3 z+ YThe vendor shall deliver the goods to the vendee by June 15.

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2 A sample contract using commentary contract English
& Y& B1 E# r0 ?6 Y* l* IGlass Bottom Design
3 b3 z0 n/ _7 \9 e' X# MWeb Development and Design Contract
Company / Client _______________________________________________________
Phone__________________________FAX__________________________________
Authorized Representative of the Client _____________________________________
Address______________________________________________________________
) H8 g7 Q" E$ I2 K( Q4 }" @City___________________________State________Zip__________Country________
( C* M6 ^; q% s2 q3 R: {E-mail address__________________________________________________________
Present WWW URL (if any):_______________________________________________
7 m1 k* t! h  @User Name___________________________Password__________________________
Terms of Agreement
1. Authorization
, Y9 c* n4 c2 m+ f9 j+ jThe above named client is engaging Glass Bottom Design, a sole proprietor, located at 222 Snell Isle Blvd. #9, St. Petersburg, FL 33704 as an independent contractor for the specific purpose of developing and/or improving a World Wide Web site to be installed on the client's web space located on an Internet Service Provider's (ISP) server.
Hereafter, the client will be known as the "Client" and Glass Bottom Design will be known as the "Developer."
* V" L) }0 e, t) e" QThe Client will establish a separate contract with an Internet Service Provider (ISP) for hosting, or the Developer will establish one for the Client. The Client hereby authorizes the Developer to access this account, and authorizes the Host Provider to provide the Developed with "write permission" for the Client's web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project.
8 o# [1 C. h' J2. Standard Hosting Service
It is agreed that this account will be hosted by Media3.  In the opinion of the Developer this Host Provider offers superior service and affordable value. Media3 is consistently ranked as one of the top ten Host Providers in the nation by independent ranking agencies.
0 f: e& ?: P1 V8 N1 V/ @) l& r$ tDeveloper will either secure this account on behalf of the Client, or the Client may secure the account independently. We offer the Client the ability to secure this account independently as a way to help the Client control cost. If however, the Client is not an advanced user of the Internet, the Client is encouraged to use the services of the Developer to secure and maintain this account.
; x% R& Y+ A& w' ]' D1 w9 YPlease note: Using an alternate host is always an option for the Client. Should the Client desire to use a Host Provider other than Media3, the name of the host provider and the terms of the hosting agreement will be listed in Appendix A.
9 z3 N3 J* x- u5 j3. Domain Registration
( w$ e4 q* R8 @$ T( q$ P& zThe Developer will secure a domain name (www.myname.com) for the Client at the Client's request. All charges incurred in doing so will be billed to the Client as an addition to the base price contemplated by this agreement. These are Internic fees, and are not a source of income for the Developer.
If the Client already has a domain name, the Developer will coordinate redirecting the address to the new host. Should the Client desire a specific domain name which is already owned by another party and negotiations for said domain name must be undertaken by the Developer, additional charges may apply. The Client will be contacted in advance before any negotiations of this nature are undertaken or charges are incurred.
4. Training
+ g/ ]  }, _" ]3 Z: gThe Developer will provide e-mail and telephone assistance to the Client's designated representatives regarding management of the Client's web site. Sometimes, however, training for groups on-site at the Client's place of business is desired. If this is desired the charges incurred by the Client for training and the details of what will be provided will be listed in Appendix A of this agreement.
5. Base Package / Graphic Creation / E-mail
0 j' {, @: q0 ~; L0 z# a  \& AThis agreement contemplates up to 12 standard branding web pages with layout, graphic creation and JavaScript included. This contract also includes a provision to assist the Client with e-mail setup using the maximum number of accounts allowed by Media3 if that is the host chosen by the Client. Current e-mail clients supported by the Developer include all versions of Microsoft Outlook Express and Netscape Communicator.
6. Text.
Final text should be be supplied by the Client unless otherwise specified in Appendix A. 500 words per page approximate standard if not supplied via diskette. Web pages of more than 1,200 words of text may be subject to additional fees for increased formatting time.
' _( M. d% n* v8 H7 x& }7. Links.
This agreement contemplates up to an average of 12 external or relative links per page and an e-mail response link on each web page to any e-mail address the Client designates. This agreement also contemplates making any link the Client desires "pop up" in a new window if requested at the specific dimensions and configuration specified by the Author.
( |9 ^' G5 \+ H6 v- i1 V2 u: |8. Cross Browser Compatibility.
Our agreement contemplates the creation of a web site viewable by both Netscape 4.0 and Microsoft Internet Explorer 4.0. Compatibility is defined herein as all critical elements of each page being viewable in both browsers. Client is aware that some advanced techniques on the Internet, however, may require a more recent browser version and brand or plug-in. Client is also aware that as new browser versions of Internet Explorer and Netscape are developed, the new browser versions may not be backward compatible. In the absence of a Maintenance Agreement time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of our agreement.
9. Graphic Creation / Banner Advertisements.
It is anticipated that the Developer will create, capture or receive from the Client all the graphic elements necessary to complete the Client's web site. This includes creating the company logo, ancillary images, animated graphics and banner advertisements. This also includes photography or scanning services as listed below. This contract does not contemplate, however, the creation of more than 2 banner advertisements. Should the Client need more than 2 animated banners, the charge will be listed in Appendix A..
) `" c0 W. L/ M10. Photography.
* R+ K9 K& b2 g! S' U) M* eFor Client's residing in Hillsborough, Pinellas, or Sarasota County Florida, the Developer will at the request of the Client visit the Client's place of business and capture up to 30 images in digital format for inclusion on the Client's web site. Photographic retouching of these images is included in this agreement. If photographic capture is necessary and the Client's place of business resides outside Hillsborough, Pinellas, or Sarasota County Florida subcontractors may be necessary or the Client may choose to capture the photographs independently.
% B! n- [" m2 k. h: A+ z3 e11. Scanning.
This agreement contemplates scanning up to 10 images for the Client. It is contemplated that this will accommodate the needs of most Clients. If more than 10 images need to be scanned the charge for each will be $5.00 after the 10 image allowance has been reached.
Please note: If you anticipate needing extensive scanning service, please discuss this need with your sales professional. Discounts are available for volume scanning service.
12. Page Redirection / Plug-in Technology
/ `& y) G3 c2 `& X6 L5 F: \Java Script programming necessary to complete the Client's site is included in the base price of this contract. JavaScript programming also includes page redirection based on the presence or absence of a viewer's browser, plug-in, screen resolution and platform. Note however, that if additional pages are necessary to accommodate specific browsers, plug-in technology, screen resolutions, or platforms additional charges may apply if the 12 page maximum contemplated by our agreement is exceeded.
5 U0 s& {0 F# f, H( l- y5 \; {13. Java Applets.
This agreement does not contemplate the use of Java Applets unless specified in Appendix A. Clients are encouraged to not use Java Applets as many viewers on America Online will be served an error when trying to view the page. Java Applets may also 'crash' older computers on download and download times for some viewers can be excessive.
14. CGI / Perl.
This contract contemplates one basic form embedded on the Author's web site with the data captured in each form delivered to the Client at the Client's specified e-mail address. If a specific script beyond this capability is requested by the Client and it must be purchased by the Developer at the Client's request, the charge for the script, if any, will be billed back to the Client.
' j* @# ~6 ~, M" T" y% G( g, E  W" ]15. Macromedia Flash
1 G' k! t4 ~0 O. B0 yMacromedia Flash is always an option to the Client's of the Developer. If chosen, the specific understanding of our arrangement will be listed in Appendix A.   Although Flash work is charged by the hour, the Developer warrants to protect the client by specifying a maximum charge in advance which will be listed in Appendix A.
3 V* _$ M$ A: J( M8 A: cThe Developer warrants to work earnestly to come in under the maximum charge.
16. DHTML
Our base agreement does not contemplate using DHTML technology. However, as with Macromedia Flash this is always an option for the Author.   If DHTML technology is desired by the Author, the rate to program each DHTML page will be specified in Appendix A. The Author understands that DHTML technology may not work in older browsers and some DHTML technology is not cross-browser specific.
. K1 \; Z' E- E17. Real Audio/Video.
Our base agreement does not contemplate using Real Audio or Real Video on the Client's site. If chosen, however, the charges for such will be listed in Appendix A.
: R- s3 d# W: I, m18. QuickTime / QuickTime VR
  }/ J0 T8 d! |6 {2 l- OOur agreement does not contemplate using QuickTime or QuickTime VR technology on the Client's web site. This is, however, certainly an option for the Client. If chosen, the charges for such will be listed in Appendix A.
19. E-commerce.
% \3 |( p7 J/ T3 U, g( `This contract contemplates the possibility of an e-commerce enabled site. If a shopping cart is required for the Client's site, Miva Merchant or Able Commerce will be the default software used and Media3 will be the host. The charges for the shopping cart will be listed in Appendix A as an addition to the base price of this agreement.
1 V) W. @! P0 Y0 O20. Secure Certificate
This agreement contemplates the possibility of an e-commerce enabled site. If the Client selects an e-commerce enabled site, the Client is encouraged to obtain a secure certificate for online transactions. The Client understands that if they do not obtain their own secure certificate, design capabilities on the shopping cart itself may be limited.

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21. Merchant Account
( N  v, V9 L# P) F0 T# jIf the Client's web site requires the ability to accept credit cards, the Client will need a Merchant Account. The Client understands that any charges necessary to secure the Merchant Account are not covered by this agreement. </p>22. CyberCash / Authorize.net
% s( M7 F$ t9 r+ fIf the Client has a high volume / high sales web site, real-time credit card processing will be desired as an addition to Miva Merchant or Able Commerce technology. In this instance, the Developer will assist the Client in obtaining this service. Any charges related to this service are payable to CyberCash or Authorize.net will be billable to the Client as an addition to the base price of this agreement.
23. ASP / Cold Fusion.
1 [4 [: W! A/ e+ P0 [$ J3 YSites requiring database design may require Microsoft ASP or Allaire Cold Fusion technology. Any charges applicable to ASP or Cold Fusion are in addition to the base price of our agreement and will be listed in Appendix A.
24. Databases.
# k/ k9 x& ^+ f9 W$ @1 W: t! vThis agreement does not include a provision for the creation of a database unless specifically listed in Appendix A. If your site requires a database the charges for such will be listed in Appendix A.
25. Payment Terms / Work Flow
A minimum deposit of fifty percent (50%) is required to commence work.
Once the 50% deposit is received by the Developer basic site design concepts will be put online for the Client's viewing and approval. Alternatively, Developer may show Client the designs in person via lap top computer. Communication between the Developer and the Client is crucial during this phase to ensure that the ultimate publication will match the Client's taste and needs. Upon completion of this stage, the Client will be asked to confirm acceptance for the basic site design via e-mail or by signing a printed copy of the design. Once this acceptance is received from the Client, the work necessary to complete the project will begin.
Authors should continue, however, to continually view updates to the site and express their preferences or dislikes to the Developer. Upon completion of the web site, an e-mail or letter and invoice will be sent to the Client advising the Client that the work has been completed. Final payment of the remaining 50% balance plus any additional charges incurred will due within fifteen (15) business days after delivery of this e-mail or letter and invoice. If the fifteen (15) day minimum is not met an additional charge of 10% is due. If payment is not made within thirty (30) days of notification, simple interest will accrue on the balance owed at a rate of 18% from the date the 10% penalty was levied.
/ q' q  P5 J: }* A) S3 i- \Developer reserves the right to remove all web content from the Internet if payment is not made within ten (30) days after delivery of our completion notification. Most frequently, problems making payment timely are the result of poor communication channels in a company's Accounting Department. If a payment delay is anticipated, please contact the Developer to discuss potential problems in advance. If problems are anticipated we may be able to accommodate an alternate arrangement.
26. Client Amends
Developer prides itself in providing excellent customer service. That is the spirit of our agreement and the spirit of the Developer's business. To that end, we encourage input from the Client during the design process.
The Developer understands, however, that Clients may request significant design changes to pages that have already built to the Client's specification. To that end, please note that our agreement does not include a provision for "significant page modification" or creation of additional pages in excess of our agreed 12 page maximum. If significant page modification is requested after a page has been built to the Author's specification, we must count it as an additional page.
Some examples of significant page modification at the request of the Author include:
· Developing a new table or layer structure to accommodate a substantial redesign at the Client's request.
' x9 W& R( ^; R· Recreating or significantly modifying the company logo graphic at the Client's request.
7 t/ @* ^; ^9 ~, }, e· Replacing more than 75% of the text to any given page at the Client's request.
· Creating a new navigation structure or changing the link graphics at the Author's request.
1 M2 u) g! A% u. p· Significantly reconfiguring the Client's shopping cart with new product, shipping or discount calculation if an e-commerce enabled site has been selected by the Client.
5 w/ O; ?# H7 ?; MClients who anticipate frequently changing the look of their site during the design process and Clients who desire to be intricately involved design of each page are encouraged to negotiate an agreement which exceeds the 12 page maximum. If significant page modification is requested by the Client after the 12 page maximum has been reached the charge will be $150.00 for each additional page. Moderate changes, however, will always be covered during our development of the site and also covered by our one month of free maintenance.
Again, we strive to accommodate the needs of each Client and we maintain a liberal redesign policy. We can not, however, provide major redevelopment services to the in excess of the 12 page maximum contemplated by this agreement.
1 ]) R4 J7 d0 K. D" u6 S/ `1 J27. Maintenance Agreements
Maintenance Agreements are negotiated on a Client by Client basis as each Client will have differing needs. This is another way the Developer seeks to help the Client control cost. If you have chosen a Maintenance Agreement the terms of such will be listed as Appendix B to this agreement.
Developer offers two kinds of maintenance agreements. In one, the Client pays a fixed monthly rate for such things as as changing price to an item, adding additional inventory, making moderate graphic changes, and coordinating delivery of the web site with the Host Provider. In the other agreement, the customer pays on an 'as needed' hourly basis.
28. Third Party or Client Page Modification
9 i  ?6 q+ |3 Y8 d- h4 vSome Clients will desire to independently edit or update their web pages after completion of the site as a way to control costs and avoid the expense of a Maintenance Agreement. This is always an option for Clients of the Developer. If the Client desires this capability, it will be specifically listed in Appendix B.
Note however, that if this option is selected and the Client or an agent of the Client other than the Developer attempts to update the web site and damages the design or impairs the ability for the web pages to display or function properly, time to repair the web pages will be assessed at an hourly rate of $75. There is a one hour minimum. In this regard, Clients are encouraged to obtain a Maintenance Agreement.
29. CD Burning.
The Developer will burn one copy of the Client's web site into a CD at the Client's request upon completion of the site. Additional copies of the CD are available for $25.00 each.

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30. Search Engine Registration
The Developer will optimize the Clients web site with appropriate titles, keywords, descriptions and text and thereafter submit the Client's web site to each of the major search engines and directories including Yahoo. The Developer also offers advanced search engine optimization and site promotion services. If advanced search engine optimization and site promotion services are desired the agreement for said services will be listed in Appendix B.</p>The Developer encourages all commercial Clients to obtain advanced Search Engine Optimization and Site Promotion services.
0 C6 i3 t/ A3 c) q/ W2 L5 v0 U31. Assignment of Project
The Developer reserves the right to assign certain subcontractors to this project to insure the right fit for the job as well as on-time completion. The Developer warrants all work completed by subcontractors for this project. When subcontracting is required, the Developer will only use industry recognized professionals.
8 J. a9 r, s& n* T32. Additional Expenses.
' O7 v+ ?6 K( G; {( m$ @( r5 ZClient agrees to reimburse the Developer for any critical Client requested expenses necessary for the completion of the project. Examples would be:
· Purchase of specific fonts at the Client's request,
  D1 L$ S6 _9 H2 W· Purchase of specific photography at the Client's request.
· Purchase of specific software at the Client's request.
  w3 j  W- V8 ]6 J33. Copyrights and Trademarks
" c8 B+ i$ c1 p8 H' _The Client represents to the Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Developer for inclusion in the Client's web site are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
34. Age
! u( |7 s+ X8 z3 ~  A+ Q- [Authorized representative of the Client certifies that he or she is at least 18 years of age and legally capable of entering a contract in the State of Florida on behalf of the Client.
' R9 U, K" r1 B! j- ~* x35. Limited Liability
" o0 U; C  B% @4 G( P2 QAuthor agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or the Developer. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming , advocacy of an illegal activity, and any infringement of privacy..
1 X  g* c% f) n5 |% R: k! VClient hereby agrees to indemnify and hold harmless the Developer from any claim resulting from the Client's publication of material or use of those materials.
It is also understood that the Developer will not publish information over the Internet which may be used by another party to harm another. The Developer will also not develop a pornography or warez web site for the Client. The Developer reserves the right to determine what is and is not pornography.
36. Indemnification.
% m4 J) S# f( b, d6 i+ nClient agrees that it shall defend, indemnify, save and hold the Developer harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees associated with the Developer's development of the Client's web site. This includes Liabilities asserted against the Developer, it's subcontractors, it's agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employee or assigns.
  V7 z1 B5 y3 ^* p$ {6 HClient also agrees to defend, indemnify and hold harmless the Developer against Liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client's web site. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization, or business..
0 a, t/ s7 ^( R* z# C37. Laws Affecting Electronic Commerce.
The Client agrees that it is responsible for complying with the laws, taxes, and tariffs related to e-commerce, and will hold harmless, protect, and defend the Developer and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the client's use of Internet electronic commerce.
  g& k5 ^/ L) IAuthor also understands that the Developer can not provide legal advice.
  ^" Z9 m0 D4 m, z) q38. Ownership to Web Pages and Graphics.
4 j  e; j4 D' p: G: q" TCopyright to the finished assembled work of web pages produced by the Developer and graphics shall be vested with the Client upon final payment for the project. This ownership is to include, design, photos, graphics, source code, work-up files, text, and any program(s) specifically designed or purchased on behalf of the Client for completion of this project.
( y. V; H- Z$ i+ L4 }8 k% z39. Design Credit.
Client agrees that the Developer may put a byline on the bottom of their index.html or main.html web page establishing design and development credit. Client also agrees that the web site created for the Client may be included in the Developer's portfolio.
; }. `: `( w( ~: U# Z) j
40. Nondisclosure.
The Developer its employees and subcontractors agree that, except as directed by the Client, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever. Likewise, the Client agrees that it will not convey any Confidential information obtained about the Developer to another party.
41. Author Referral Commission Program
The Developer recognizes 'word-of-mouth' advertising as our most favorable method of developing new business. As such, we want to reward customers who are pleased with our work and refer us to another individual, business, or organization.
If you refer our services to another party and we ultimately establish a contract with that party, we will provide you, the Client, with two months of free maintenance service. For Clients who regularly help us attract new clients, this can result in a virtually free Maintenance Agreement.
9 {9 F5 P$ }& a# }- d42. Completion Date
The Developer and the Client must work together to complete the web site in a timely manner for both parties to remain profitable.
We agree to work expeditiously to complete this project no later than ___________________________________.
43. Cancellation
  ~$ q5 |" B& C; c# eCancellation of the project at the request of the Client must be made by certified letter. In the event that work is postponed or canceled at the request of the Client by registered letter, the Developer shall have the right retain the original 50% deposit. In the event this amount is not sufficient to cover the Developer for time ($50 per hour) and expense already invested in the project additional payment will be due. If additional payment is due, this will be billed to the Client within 10 days of notification via registered letter to stop work. Final payment will be expected under the same terms as listed in Article 25 above.
44. Arbitration.
- f: k% I2 R8 a# i$ {Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or a mutually agreed upon Arbitrator suitor pursuant to the rules of the American Arbitration Association. The Arbitrator's award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Author shall pay all arbitration and court costs, reasonable attorney's fees and legal interest on any award or judgment in favor of the Developer.
* I  [8 q" W8 h) `( u% ~( M' z! s45. Entire Understanding.
! g8 [3 e: _/ P  _6 p% f* OThis contract and the Appendices attached thereto constitute the sole agreement between the Developer and the Client regarding this project. It becomes effective only when signed by both parties. It is the spirit of this agreement that this will be a mutually beneficial arrangement for the Client and the Developer. Specific details of our agreement will be attached as Appendix A, Appendix B, and Appendix C.
8 ?, ~0 D2 v$ {2 |$ U* B  wBoth parties warrant that they have read and understand the terms set forth in this agreement.
) o5 l1 D% L% `This agreement shall be governed and construed in accordance with the laws of the State of Florida.
3 s* d8 b8 r' Y7 `  ^$ p9 `On behalf of the Client ._______________________
! \& K5 |( U, `1 `5 j* KDate ______________________________________
On behalf of the Developer_____________________
' |* s# X" u; GDate ______________________________________