Maintenance Agreement

  1. SERVICES: 

Cornershop shall provide to Customer the services (the “Services”) set out in one or more statements of work to be issued by Customer and accepted by Cornershop (each, a “Statement of Work”).

  1. 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.
  • Access to Customer Systems. Customer will provide necessary credentials for access to Customer’s server, database, domain registrar, analytics, and other necessary tools necessary for website maintenance and troubleshooting.
  • Customer Responsibilities. Customer shall cooperate and comply with the reasonable requests by Cornershop that are required for the hosting, maintenance or support of the website to access information, materials, personnel, and equipment in a timely fashion. 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 agrees to have all rights and licenses for those systems.
  • Term and Termination. Customer may terminate this Agreement or any SOW at any time without cause by providing at least 30 days’ prior written notice to Cornershop. Either party may terminate this Agreement, effective upon written notice to the other party, if the other party materially breaches this Agreement, and (a) such breach is incapable of cure; or (b) such breach is capable of cure but remains uncured 15 days after the non-breaching party gives the breaching party written notice thereof. In addition, Cornershop may terminate this Agreement or any SOW, effective upon written notice to Customer, if Customer fails to pay any amount due under this Agreement, or any other SOW between Cornershop and Customer, on the due date for payment and such default remains uncured five business days after Cornershop gives Customer written notice thereof, or if Customer fails to pay any amount due two or more times in any six-month period (regardless if such defaults in nonpayment are cured). Upon the termination of this Agreement by the Customer for convenience and without cause or by Cornershop for cause, all applicable fees owed by Customer through the end of the current term shall immediately become due and payable. Upon termination of this Agreement by Customer with cause or Cornershop without cause, Cornershop will, on a pro rata basis, refund any pre-paid fees to Customer for the balance of the term. Cornershop will not provide any refunds for early cancellation without cause. Upon termination of this Agreement for any reason, Customer shall immediately cease using the hosting environment and each party shall promptly return to the other all Confidential Information of the other party that it may have in its possession or control. Provided Customer is not in material breach of this Agreement, Cornershop shall provide Customer with reasonable assistant in transitioning Customer’s website to another service provider.
  • 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 hosting environment. Cornershop shall not be liable for any damages arising out of or related to (i) transactions performed using the hosting environment or (ii) modifications to the hosting environment 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 hosting environment 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 hosting environment (such as membership registrations, orders and donor information) (“Customer Assets”). 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 the use of 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 hosting environment, 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 hosting environment except as expressly set forth in this Agreement or the applicable third-party license. All other rights in and to the hosting environment 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 hosting environment, including all intellectual property rights relating thereto, which Customer may acquire.
  1. FEES AND EXPENSES.
  • Invoicing, Payment and Acceptance. For monthly billing, Cornorshop will bill up-front the first month’s fee amount, and then monthly thereafter for the services over a 12-month term. For annual billing, Cornershop will bill up-front the entire annual fee amount, and annually thereafter for the services over the 12-month term(s). All fees are earned when invoiced and are nonrefundable, except as provided herein. Customer shall make payment within thirty (30) days of receipt of Cornershop’s invoice at the address listed for Cornershop above. If Customer is more than 60 days late, Cornershop has the right to stop providing the service and charge interest at the rate of 1.5% per month. All Fees and other amounts payable by Customer under this SOW 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 SOW shall be paid by Customer to Cornershop in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. Aside from fees associated with excess visits, disk space, and bandwidth detailed below, 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.
  • Excess Visits or Disk Space Fee. If hosting on the Cornershop hosting account with Kinsta, Customer is limited to site visit and disk space limits in the table below. If the Customer exceeds these limits, Cornershop may charge the Customer $2 per additional 1000 visits, $5 per 1GB of additional disk space.
Small Medium Large
Max Monthly Visits 12,000 40,000 80,000
Max Disk Space 3 GB 12 GB 20 GB

 

  • Plan Level Change. Should the Customer exceed plan limits as described above in more than three consecutive months, Cornershop may increase the plan level, provided, however, that if Customer exceeds their allotted plan limits, but do not agree to pay the additional required fees to increase their allotted plan limits (as described herein), Cornershop, in its sole discretion, may terminate this Agreement immediately.
  • Required Theme Security Improvements on Cornershop Server. While rare, there may be periodic security updates necessary for the ongoing security and performance of your site. If these security features are related to the theme, it may require additional approved scope. In this situation, the Cornershop support team will provide an estimate for updating the theme, and request approval. If the Customer denies approval, Cornershop will create an offboarding plan to remove the site from our server with the Customer (if budget is the concern, please just talk to us). If the Customer does not approve or deny the additional scope within 10 business days, Cornershop will inform the Customer that Cornershop will implement the features and charge the Customer for the work, given that it could impact the security and performance of your site and the entire Cornershop server.
  • 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.

 

  1. 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. A general, public solicitation not specifically directed at the other party’s employees shall not be deemed a violation of this provision.

  1. 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.

  1. 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.

  1. 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.

  1. MODIFICATION.

Cornershop may periodically update the terms of this Agreement at https://cornershopcreative.com/maintenance-agreement/. Cornershop will provide the Customer written notification of all modifications to this agreement via email communication. Customer will have 15 days to reject the changes before they are irrevocably accepted by the Customer.  No waiver, alteration, or modification of this SOW will be binding or effective unless provided in writing.

  1. 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.

  1. 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.

  1. ENTIRE AGREEMENT.

This Agreement 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.