DESCRIPTION OF SERVICES.
The following is a list of deliverables performed by Cornershop.
- Initial setup and configuration of Cornershop’s proprietary eCard Campaign Builder platform. This includes installation of the platform including all licensed plugins and code, setup of one default eCard campaign with up to six eCard images, configure branding, customize content, and setup of one default eCard email template.
- Hosting for one year. Cornershop will setup the platform on the Cornershop server and be responsible for managing third-party hosting and maintenance of the platform. All assets created by the Customer on the platform are owned by the Customer (“Customer Assets”). Customer is solely responsible for the security and content of all Customer Assets stored in the hosted environment. Customer shall be responsible for maintaining all backups for all Customer Assets.
- Hosting Support for one year. Cornershop will provide basic hosting support to ensure that the platform is working on the third-party hosting environment. Our third party hosting provider, Kinsta, uses commercially reasonable efforts to provide services 24 hours a day, seven days a week, subject to periodic maintenance. Should there be any outages, Cornershop will work with the hosting provider to restore service as soon as possible. Cornershop does not guarantee uptime, nor is responsible for loss of revenue in the event of an outage. Fixing outages is the responsibility of our hosting provider, Kinsta, though Cornershop will work with them to ensure minimal site outages.
- Platform Support for one year. Cornershop will provide updates to WordPress and all third-party plugins related to the platform. Cornershop is also available to answer questions via a support email about strategies on using the platform effectively.
- Support hours. Support is available via email during normal business hours. Support hours in excess of 2 hours per year may be charged at standard out-of-scope rates.
ASSUMPTIONS.
- Customer Dedication and Accessibility
Customer personnel will be sufficiently dedicated to the project so as to make achieving assigned tasks feasible and reasonable within the constraints of the project schedule. Customer personnel will be made available for meetings and consultations so that the schedule and budget constraints can be maintained. To ensure timely resolution of issues that come up during requirements analysis and development, Customer personnel who are involved in this project must have email, voicemail, and web access.
- Access to Customer Systems
Customer will provide necessary credentials for access to Customer’s server, database, domain registrar, analytics, and other necessary tools for web development. If Customer is unable to provide these credentials, Cornershop may be required to charge for additional hours at Cornershop’s standard out-of-scope rates to assist in obtaining these credentials. - Customer Responsibilities
Customer shall cooperate and comply with the reasonable requests by Cornershop to access information, materials, personnel, and equipment, in a timely fashion, as may be necessary for Cornershop to provide the platform as provided in this AGREEMENT. Customer acknowledges and agrees that such cooperation and provision of information, materials, personnel, and equipment are essential to Cornershop’s ability to provide the platform. To the extent that the services require Cornershop to access or use any content or software provided by Customer (whether owned or licensed by Customer), Customer warrants that Customer shall have all rights and licenses of third parties, if any, necessary or appropriate for Cornershop to access or use such content and software and agrees to produce evidence of such rights and licenses upon the reasonable request of Cornershop. For third-party systems used by Cornershop, Cornershop also agreed to have all rights and licenses for those systems. - Term and Termination.
The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until 12 months from such date. This Agreement will automatically renew for a successive 12-month term unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term.
Either party may terminate this Agreement (a) upon written notice in the event of a breach of the other party’s obligations under this Agreement (provided that the breach has not been cured within 15 calendar days of notice), (b) with or without cause, upon 30 calendar days’ prior written notice to the other party; and (c) immediately upon the filing of any voluntary or involuntary petition against the other party under the bankruptcy or insolvency laws of any applicable jurisdiction, which petition is not dismissed within sixty (60) days of filing, or upon any appointment of a receiver for all or any portion of the other party’s business, or any assignment of all or substantially all of the assets of such other party for the benefit of creditors. With written notice, Cornershop may immediately terminate this Agreement if any undisputed invoices are more than 60 calendar days past due.
Upon the termination of this Agreement, any applicable fees owed by Customer through the date of termination shall immediately become due, and Customer shall immediately cease using the platform. Each party shall promptly return to the other all Confidential Information of the other party that it may have in its possession or control in accordance with the terms and conditions of this Agreement.
- Limitation of Liability. Neither party shall be liable for any indirect, special, punitive, or consequential damages of any kind or nature, suffered by the other party, including, without limitation, lost profits, business interruptions or other economic loss arising out of or related to this Agreement or any use of or failure to be able to use the platform. Cornershop shall not be liable for any damages arising out of or related to (i) transactions performed using the platform or (ii) modifications to the platform by Customer, whether modified by Customer or any third party. Cornershop’s total aggregate liability for any damages arising out of or related to this Agreement and the services and platform will not exceed the Fees paid by Customer for the Agreement that is the subject of the action for the six (6) months immediately preceding the date in which the damages are claimed, regardless of the number of claims. No claim, suit, or action regardless of form, arising from or relating to Cornershop’s acts or omissions in the performance of this Agreement may be brought or asserted more than one (1) year after the cause of action has occurred.
- Confidentiality and Nondisclosure. “Confidential Information” means (a) any business or technical nonpublic information of Customer or Cornershop, including but not limited to any information relating to either party’s products, services, prices, marketing plans, business opportunities, system credentials, or personnel, (b) any other information of Customer or Cornershop that is specifically designated by the disclosing party as confidential or proprietary, and (c) the terms and conditions of this Agreement. Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement through no fault of the receiving party, (ii) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party, (iii) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information, or (iv) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Each party shall maintain the Confidential Information of the other party in strict confidence during the term of this Agreement and in perpetuity thereafter. Each party shall use the Confidential Information of the other party only during the term of this Agreement, and shall disclose such Confidential Information only to its employees and independent contractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). In addition, the receiving party may disclose Confidential Information of the disclosing party pursuant to a valid order or requirement of a court or government agency, provided that the receiving party first gives reasonable notice to the disclosing party to contest such order or requirement. Any such disclosure by the receiving party of the Confidential Information of the disclosing party, shall, in no way, be deemed to change, affect or diminish the confidential status of such Confidential Information.
- Customer Property. Except as provided below and unless otherwise provided in this Agreement, Customer shall own all rights to the “Customer Property”, which shall mean: (a) pre-existing source materials to be furnished by the Customer, such as text, graphics (including trademarks and logos), audio and video (“Customer Material”); (b) any materials that are written or created at Customer’s sole expense and unique to Customer and provided to Customer under this Agreement; and (c) Customer Assets, including, without limitation, data and information generated during the use and operation of the platform (such as membership registrations, orders and donor information). Customers shall not own property created under subsection (b) above unless and until such time as full payment is made to Cornershop. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Materials and Customer Assets as are necessary or useful to Cornershop, its subcontractors, personnel, and licensors to enforce this Agreement and exercise Cornershop’s rights and perform its obligations hereunder.
Customer shall indemnify, defend, and hold harmless Cornershop and its officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any action by a third party arise out of or result from, or are alleged to arise out of or result from: (a) Customer Materials or Customer Assets; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer, including Cornershop’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Cornershop; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, or any third party on behalf of Customer, in connection with this Agreement.
- Cornershop Property. All right, title, and interest in and to the platform, including all intellectual property rights therein, are and will remain with Cornershop and, with respect to third-party materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the third-party materials. Customer has no right, license, or authorization with respect to any of the platform except as expressly set forth in this Agreement or the applicable third-party license. All other rights in and to the platform are expressly reserved by Cornershop. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Cornershop an assignment of all right, title, and interest in and to the platform, including all intellectual property rights relating thereto, which Customer may acquire.
FEES AND EXPENSES.
- Invoicing, Payment and Acceptance.
Cornershop will bill up-front the entire annual fee amount, and then will perform the services and provide the platform over the 12 month term. All fees are earned when invoiced and are nonrefundable. Cornershop shall submit invoices to Customer at the address listed above as outlined in this Agreement. Customer shall make payment within thirty (30) days of receipt of Cornershop’s invoice at the address listed for Cornershop above. If Custom is more than 60 days late, Cornershop has the right to turn off the service and charge interest at the rate of 1.5% per month.All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Cornershop’s income.All amounts payable to Cornershop under this Agreement shall be paid by Customer to Cornershop in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).Cornershop may increase Fees no more than once annually for any contract year after the first contract year, by providing written notice to Customer at least 30 days prior to the commencement of such renewal term.
- Out of Scope Services
Should the Customer request any changes that fall outside of the scope of this Agreement, Cornershop will provide an estimate for that work before proceeding with the requested change. Cornershop will invoice for the approved work within minimal variance of the estimate provided, within 20% of the estimate.Work requested and approved by Customer for out-of-scope services will be charged at a standard rate of $175/hour or a rush or after hours rate of $250/hour. Cornershop will obtain Customer’s prior approval before performing any services not covered in the scope of services herein in accordance with the terms of the Agreement. - Additional Host Investigation and Launch Fees
If the Customer is interested in hosting the platform elsewhere, Cornershop may charge additional fees for it to work on other hosting providers and within other WordPress environments. - Licensed Materials and Fees
Customer will provide all logos, fonts, and imagery to be used on the site and will have secured all necessary rights to these materials. Any stock imagery, audio and video clips, special fonts, themes, or premium plugins that are selected for the site by Cornershop will, with Customer approval, be invoiced in addition to Cornershop professional service fees.
RESTRICTIVE COVENANTS.
During the term of this Agreement, and for the period of six (6) months thereafter, the Customer and Cornershop agree that neither party shall directly recruit or solicit for employment, any technical or professional employees of the other assigned to work on the projects under this Agreement without the prior written consent of the other party.
CHOICE OF LAW, JURISDICTION, AND VENUE.
This Agreement shall be governed by Michigan law, without regard to its choice of law provisions. Each party hereby irrevocably submits to the exclusive jurisdiction and venue of a Michigan state court in Washtenaw County or the federal court for the Eastern District of Michigan. The parties agree that any breach of a party’s confidentiality obligations set forth in this Agreement and any SOW will result in irreparable injury to the other party for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of such obligations, the non-breaching party will be entitled to seek equitable relief in addition to its other available legal remedies.
RELATIONSHIP OF PARTIES.
The relationship of Cornershop and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed or implied to (i) give either Party the power to supervise, direct or control the day-to-day activities of the other or (ii) to constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.
NOTICE.
All notices required to be sent under the Agreement shall be in writing and shall be deemed to have been given when (i) personally served upon the receiving party; (ii) transmitted via email; or (iii) sent through the U.S. Postal Service or mail services. Notice shall be addressed to the addresses listed above.
MODIFICATION.
No waiver, alteration, or modification of this Agreement will be binding or effective unless in writing and signed by an authorized representative of both parties.
ASSIGNMENT.
Without the prior written consent of Cornershop, Customer shall not assign or transfer this Agreement or any SOW (in whole or in part) to any person. Notwithstanding the foregoing, Cornershop may provide the Services through its agents and subcontractors.
EXCUSABLE DELAY.
Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly by reason of illness, disease, injury, fire, flood, earthquake, explosion or other casualty, strikes or labor disputes, disruptions of telecommunication systems, inability to obtain supplies or power, war, zombie apocalypse, or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency, or any other act or condition whatsoever beyond the reasonable control, fault or negligence of the affected party; provided the party so affected shall resume performance with dispatch whenever such causes are removed.
ENTIRE AGREEMENT.
This Agreement, including all SOWs, whether incorporated by reference or otherwise, constitutes the entire agreement and supersedes all other oral or written agreements, communications, and documents between the parties with respect to the subject matter hereof. This Agreement may be executed in multiple counterparts, all of the same agreement which, when taken together, shall constitute one and the same instrument.