RECITALS
Cornershop is in the business of offering services relating to, among other things, development of websites and related web services, and is willing to provide such services to Customer on the terms and subject to the conditions set forth below. Customer wishes to retain the services of Cornershop, and Cornershop desires to provide such services, on the terms and subject to the conditions set forth below.
The parties, therefore, agree as follows:
1. SERVICES.
1.1 Overview. Cornershop agrees to provide Customer with services for development of one or more the customized web services to be created by Cornershop based on and using certain Cornershop Property (defined below) and Customer Materials (the “Services”). The specific Services to be provided and deliverables (“Deliverables”) for each project shall be defined by the parties in writing by a fully executed Statement of Work (“SOW”).
1.2 Change Orders; Proceeding on Oral Instructions. The parties may agree in writing to modifications to a SOW (each, a “Change Order”), however any changes must be in writing and executed by both parties.
1.3 Acceptance of Deliverables. Cornershop works in collaboration with Customer on the development and completion of each Deliverable under an SOW. Upon completion of a Deliverable, Cornershop will provide such completed Deliverable to Customer for approval. Customer shall then have up to five (5) business days following delivery to either accept or reject the Deliverable. Customer shall have up to thirty (30) days to report any errors after acceptance of final Deliverable within a SOW. A Deliverable may only be rejected if it does not conform with the specifications for such Deliverable set forth in the applicable SOW. If Customer rejects a Deliverable, Customer shall notify Cornershop in writing detailing the nonconformance and Cornershop shall have a period of five (5) business days to correct such nonconformance and redeliver the Deliverable under this Section 1.3 for acceptance or rejection by Customer. If Cornershop is unable to correct such nonconformance for any reason, Cornershop shall refund the fee applicable to such Deliverable as Customer’s sole remedy. If Customer fails to accept or reject a Deliverable within such five (5) business day period, the Deliverable shall be deemed automatically and irrevocably accepted by Customer.
2. CUSTOMER RESPONSIBILITIES.
2.1 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 perform the Service and/or create the Deliverables. Customer acknowledges and agrees that such cooperation and provision of information, materials, personnel, and equipment are essential to Cornershop’s ability to perform the Services and/or create the Deliverables. To the extent that the Services require Cornershop to access or use any third-party content or software provided by Customer, Customer warrants that Customer shall have all rights and licenses of third parties necessary or appropriate for Cornershop to access or use such third party content and software and agrees to produce evidence of such rights and licenses upon the reasonable request of Cornershop.
2.2 ADA Compliance. Title III of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability in places of public accommodation (42 U.S.C. § 12182(a)). Title III does not directly address whether places of public accommodation include websites, mobile applications, or other emerging web-based technologies. However, the Department of Justice (DOJ), the primary federal government agency responsible for enforcing the ADA, has taken the position that Title III applies to all public-facing websites used by companies that otherwise qualify as places of public accommodation. Customer is solely responsible for determining if it qualifies as a place of public accommodation, and whether or not it must comply with Title III of the ADA, and requesting Services and Deliverables specific to ADA compliance pursuant to an SOW for the same. Without limiting the generality of the foregoing, Customer hereby expressly waives and releases, and agrees to indemnify Cornershop against, any and all claims against Cornershop and its officers, directors, manager(s), employees, agents, affiliates, members, successors, and assigns on account of any liability arising out of Customer’s failure to determine that it is a place of public accommodation.
3. FEES, PAYMENT AND TAXES.
3.1 Fees and Expenses. Customer shall pay Cornershop the fees and expenses, in accordance with the payment schedule, set forth in each applicable SOW (the “Fees”).
3.2 Invoicing, Payment and Acceptance. Cornershop shall submit invoices to Customer at the address listed above as outlined in the SOW. Customer shall make payment within thirty (30) days of receipt of Cornershop’s invoice at the address listed for Cornershop above. If any Service or Deliverable reflected on an invoice is in dispute, Customer shall pay the undisputed portion of the invoice when due. Customer shall begin to pay interest on any undisputed amount that is past due after 3 months at the rate of one and one-half percent (1-1/2%) per month (or part thereof), or, the highest rate permitted under applicable law, if less. Interest shall continue to accrue until any unpaid amount is fully paid.
3.3 Taxes. The fees and all other amounts due to Cornershop as set forth in this Agreement are net amounts to be received by Cornershop, exclusive of all taxes, duties, and assessments of any kind (collectively, “Taxes”). Customer shall be liable for all Taxes applicable to any Services and Deliverables. If Customer is tax-exempt, Customer is responsible for submitting documentation of its tax-exempt status to Cornershop or applicable Taxes may be invoiced.
4. TERM AND TERMINATION.
4.1 Term. This Agreement shall begin on the Effective Date and remains in full force and effect, unless terminated as provided herein.
4.2 Termination. Either party may terminate this Agreement and each SOW (a) upon written notice in the event of a breach of the other party’s obligations under this Agreement or a SOW (provided that the breach has not been cured within 15 calendar days of notice), (b) immediately if the other party violates its obligations in Section 8 of this Agreement, (c) with or without cause, upon 30 calendar days’ prior written notice to the other party; and (d) 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 and any or all SOWs if any undisputed invoices are more than 60 calendar days past due.
4.3 Customer Delays. If Customer delays cause a defined billing milestone to be delayed for 30 days, Cornershop reserves the right to bill for work completed to that point and renegotiate any active SOWs.
4.4 Effect of Termination. Upon the termination of this Agreement and/or any SOW, any applicable fees owed by Customer through the date of termination shall immediately become due, and Customer shall immediately cease using (i) the Services and (ii) any Deliverables not fully paid for. If the Custom terminates a retainer SOW in the middle of a billing term, Cornershop will prorate the hours and billing for that final month based on the ending service date, which is 30 days after cancelling the service, unless otherwise agreed to by both parties. Each party shall promptly return to the other party, or permanently delete, all Confidential Information of the other party that it may have in its possession or control except for (a) fully paid Deliverables being used by Customer in accordance with the terms and conditions of this Agreement and the applicable SOW, (b) standard electronic backup and archival copies of Confidential Information stored in the ordinary course; provided, however, that the parties shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information. Notwithstanding the termination or expiration of this Agreement, the rights and duties of the parties under Sections 3, 4, and 6-19 of the Agreement shall survive such termination or expiration and remain in full force and effect.
5. WARRANTIES AND DISCLAIMERS. Unless explicitly set forth in a SOW, to the extent permitted by law, Cornershop makes no warranty, express or implied and hereby expressly disclaims all implied warranties, conditions and other terms, whether statutory, arising from course of dealing, or otherwise, including without limitation terms as to quality, merchantability, fitness for a particular purpose, value, and non-infringement.
6. LIMITATION OF LIABILITY. Except for a party’s indemnification obligations in Section 7 or any breaches of the obligations in section 8, 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 and any SOW or any use of or failure to be able to use the Services or any Deliverables. Cornershop shall not be liable for any damages arising out of or related to (i) transactions performed using the Services or Deliverables or (ii) modifications to the Services or Deliverables 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 will not exceed the Fees paid by Customer for the SOW 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 or a SOW may be brought or asserted more than one (1) year after the cause of action has occurred.
7. INFRINGEMENT INDEMNITY.
(a) Cornershop will defend any suit brought against Customer by a third party and will pay all damages finally awarded in such suit insofar as such suit is based on a claim that the Services or any Deliverable, excluding the Customer Materials, infringes the patent, copyright, trademark, or trade secret of such third party, provided that Cornershop is notified promptly of such claim and at its expense is given full and complete authority (including settlement authority), information and assistance by Customer for such defense. In the event that the Service or Deliverable is held in any such suit to infringe such a right other than as a result of Customer Materials and its use is enjoined, or if in the opinion of Cornershop the Service or Deliverable is likely to become the subject of such a claim, Cornershop at its own election and expense may either (i) procure the right to continue using and distributing the Service or Deliverable, or (ii) modify or replace the Service or Deliverable so that it becomes non-infringing while giving substantially equivalent performance. In the event that (i) or (ii) above are not, in Cornershop’s sole determination, obtainable using reasonable commercial efforts, then Cornershop may terminate this Agreement with respect to that Service or Deliverable and discontinue use of that Service or Deliverable. The indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from: (i) modifications made to the Service or Deliverable by a party other than Cornershop or if made by Cornershop, pursuant to a specification called for by the Customer; (ii) use of such Service or Deliverable contrary to the applicable terms of use; (iii) the combination of the Service or Deliverable with items not supplied by Cornershop; and (iv) the Customer Materials. THIS SECTION STATES CUSTOMER’S EXCLUSIVE REMEDY AND CORNERSHOP’S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.
(b) Customer will defend any suit brought against Cornershop by a third party and will pay all damages finally awarded in such suit insofar as such suit is based on a claim that the use of any Customer Materials by Cornershop in the Services or Deliverables infringes the copyright, trademark or rights of publicity of the third party, provided that Customer is notified promptly of such claim and at its expense is given full and complete authority (including settlement authority), information and assistance by Cornershop for such defense.
8. 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 and any SOW. Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement and any SOW 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 the Agreement and any SOW and, except as otherwise provided in any SOW, in perpetuity. Each party shall use the Confidential Information of the other party only during the term of this Agreement and any SOW, 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 any SOW (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.
9. OWNERSHIP RIGHTS.
9.1 Customer Property. Except as provided below and unless otherwise provided in a SOW, 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 Deliverables that are written or created at Customer’s sole expense and unique to Customer and provided to Customer under this Agreement; and (c) data and information generated during the use and operation of the above property (such as membership registrations, orders and donor information). Customers shall not own property created under subsection (b) above until such time as full payment is made to Cornershop.
9.2 Cornershop Property. Cornershop property includes any pre-existing or reusable materials generated by Cornershop including but not limited to the following: (i) any documentation, ideas, methods, tools, databases, software, invention, development, or innovation that is used in developing or that are embodied in the Customer Property (“Objects”); or (ii) any formats, routines and other software code and/or a portion thereof developed by or on behalf of Cornershop that: (a) accelerate the application development and/or data conversion process; or (b) are a component part of the Customer Property that, in its generic form, may have general usefulness in a variety of other software programs or programming applications (“Tools”). Cornershop retains all right, title, and interest, including all copyrights and patents, to the Objects and Tools, other than the Customer Property, in whatever form (“Cornershop Property”). Cornershop grants to Customer a personal, worldwide, non-exclusive, non-transferable, royalty-free, perpetual, internal use object code license to use such Cornershop Property that is incorporated into the Customer Property to maintain, update and create derivative works of the Customer Property. Customer shall maintain any proprietary notices on Cornershop Property, including, without limitation, copyright notices. Nothing in this paragraph shall be deemed to permit Customer to transfer Cornershop Property to a subsidiary or other affiliate without the prior written consent of Cornershop. Customer acknowledges and agrees that Cornershop is in the business of designing, implementing and maintaining websites, and that Cornershop shall have the right to provide to third parties services and websites which are the same or similar to the Services or Deliverables, and to use or otherwise exploit any Cornershop Property in providing such services.
9.3 As provided in a SOW, the Services and Deliverables may contain third-party licensed software or content. Except as otherwise provided in an SOW, Customer shall have sole responsibility to obtain and pay for any third-party licenses for any such software or content. If Cornershop obtains a third-party license on Customer’s behalf, Customer acknowledges and agrees that it is bound by such third-party license. Among the plugins, Cornershop may use Cornershop-owned unlimited use licenses for the following plugins, free of charge: Advanced Custom Fields Pro; Gravity Forms and all Gravity Form add-ons; SearchWP, FacetWP, Imagify, TranslatePress, Events Calendar Pro, Sugar Calendar, Elementor Pro, BackupBuddy, and other plugins that Cornershop owns or have retained an agency license. Upon termination of this Agreement, Cornershop may request the Customer terminate using all Cornershop licenses.
10. 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.
11. 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.
12. LIMITED USE OF CUSTOMER’S PROPERTY. Cornershop may include Customer’s name, trademark, and/or link to Customer’s website in any and all client lists, both public and private, provided that Cornershop maintains the confidentiality of all proprietary and Confidential. Unless otherwise agreed under an SOW, Cornershop may receive industry standard “Created by” credit on all Customer web services developed under this agreement, which may include Cornershop logo and a link to its own website. Cornershop may use reproductions of its work product for Customer, including screenshots of style tiles, wireframes, and design mockups, for purposes of advertising and marketing Cornershop and its services. Either party may issue press releases or other public announcements, including social media posts, regarding the existence, or general non-confidential business terms of this Agreement and subsequent SOWs hereunder.
13. 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.
14. 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.
15. 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.
16. ORDER OF PRECEDENCE. The terms of this Agreement will be incorporated by reference into each SOW. Should the terms of this Agreement conflict with the terms of any SOW, the terms of this Agreement shall prevail unless specifically stated otherwise in the SOW.
17. 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.
18. 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, 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.
19. 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.