BRSW is in the business of migrating and integrating e-commerce websites and Magento Extensions to, and developing, managing, servicing, and/or optimizing e-commerce websites and Magento Extensions on, the Magento e-commerce platform (www.magento.com
WHEREAS Client desires to retain BRSW to provide certain services concerning Client's e-commerce website, Magento Extensions and the Magento e-commerce platform and WordPress platform, as set forth in more detail herein, and BRSW desires to perform such services, in each case upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1 BRSW Obligations.
Subject to the terms and conditions of this Agreement, BRSW shall provide to Client the following services: migrating and integrating e-commerce websites and Magento Extensions to, and developing, managing, servicing, and/or optimizing e-commerce websites and Magento Extensions on, the Magento e-commerce platform hereto (collectively, the "Services"). BRSW shall be responsible for engaging and managing all personnel necessary to perform the Services, each of whom shall be suitably skilled, experienced and qualified (collectively, the "BRSW Personnel"), and shall be responsible for the payment of all compensation owed to the BRSW Personnel.
BRSW shall appoint (and in its reasonable discretion replace) a representative from the BRSW Personnel to serve as the primary contact with respect to this Agreement who has the authority to act on behalf of BRSW with respect to matters pertaining to this Agreement (the "BRSW Representative").
1.3. Status Reports
. BRSW shall keep Client advised as to BRSW's progress in performing the Services and BRSW shall, upon Client's reasonable request, prepare written reports with respect thereto.
1.4. Client Meetings
. Upon Client's reasonable request, the BRSW Representative shall attend, and shall cause any relevant BRSW Personnel to attend, monthly or quarterly meetings with the Client Representative to discuss the Services. Such meetings may be held in-person or through videoconferencing, teleconferencing or other available technology.2 Client Obligations.
. Client shall appoint (and in its reasonable discretion replace) a Client employee to serve as the primary contact with respect to this Agreement who has the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the "Client Representative").
. Client shall cooperate with BRSW and respond promptly to any BRSW requests for directions, decisions, approvals, information, access, authorizations, administrative privileges and the like that are reasonably necessary for BRSW to perform the Services in accordance with the requirements of this Agreement. 3 Fees and Payment.
3.1. Service Fees
. In consideration of the provision of the Services and the rights granted to Client herein, Client shall pay BRSW in accordance with the work performed during the term of this Agreement in accordance with the fee schedule set forth by BRSW and agreed upon with the Client.
. The fees payable to BRSW pursuant to Section 3.1 shall be inclusive of all costs of materials or other expenses of BRSW in providing such Services. Notwithstanding the foregoing, Client agrees to reimburse BRSW for all actual, documented and reasonable travel and out-of-pocket expenses incurred by BRSW in connection with the performance of the Services that have been approved in advance in writing by Client (the "Reimbursable Expenses").
. Client shall be 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 entity on any amounts payable by Client hereunder ("Taxes"); provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, BRSW's income, revenues, gross receipts, personnel or real or personal property or other assets. If BRSW has the legal obligation to pay or collect Taxes for which Client is responsible pursuant to this Section 3.3, the appropriate amount shall be invoiced to and paid by Client, unless Client provides BRSW with a valid tax exemption certificate authorized by the appropriate taxing authority.
. BRSW shall issue invoices when applicable to Client for the fees and Taxes, if any, that are then payable, together with a breakdown and reasonable evidence of Reimbursable Expenses, if any. Client shall pay all properly invoiced amounts due to BRSW within five calendar (5) days after Client's receipt of such invoice, except for any amounts disputed by Client in good faith and in accordance with Section 3.5. Client shall make all payments by check, via ACH, credit card, debit card, PayPal transfer or wire transfer to an account specified by BRSW.
3.5. Invoice Disputes
. Client shall notify BRSW in writing of any dispute with respect to an invoice, together with a reasonably detailed description of the dispute and any substantiating documentation, within three calendar (3) days from Client's receipt of such invoice. Client will be deemed to have accepted all invoices for which BRSW does not receive timely notification of dispute, and shall pay all undisputed amounts due under such invoices within the period set forth in Section 3.4. The Parties shall seek to resolve all invoice disputes expeditiously and in good faith.
3.6. Late Payments
. Except for invoiced amounts that Client has successfully disputed, if any invoiced amounts are not received by BRSW by the due date, then without limiting BRSW's other rights or remedies, Client shall pay interest on all past due amounts at the rate set forth in the exhibit(s) below on the outstanding balance per month.
3.7. Suspension of Services
. If at any time there is any past due amount by Client under this Agreement, then without limiting BRSW's other rights and remedies, BRSW may suspend provision of the Services to Client until such amounts are paid in full. BRSW will give Client at least seven calendar (7) days' prior written notice, in accordance with Section 12.2, that Client's account is past due before suspending Services to Client. BRSW shall not exercise its rights under this Section 3.7 if Client is then disputing the applicable amount reasonably and in good faith and is cooperating diligently to resolve the dispute. 4 Intellectual Property Rights; Ownership.
4.1. License to Certain Client Intellectual Property
. Subject to and in accordance with the terms and conditions of this Agreement, Client grants BRSW a limited, non-exclusive, royalty-free, non-transferable and non-sublicensable, worldwide license during the term of this Agreement to use solely in connection with the Services and only as reasonably necessary to perform the Services: (i) Client's trademarks and copyrights, whether registered or unregistered, and (ii) Client's domain names, website addresses, websites and URL's. Client grants no other right or license to any of Client's intellectual property to BRSW by implication, estoppel or otherwise.
4.2. Ownership of and License to Deliverables
. Except as set forth in Section 4.3, Client is, and shall be, the sole and exclusive owner of all right, title and interest in and to all documents, reports, work product and other materials that are delivered to Client hereunder by or on behalf of BRSW in connection with the performance of the Services ("the Deliverables"), including all intellectual property therein. BRSW agrees, and will cause BRSW Personnel to agree, that with respect to any Deliverables that may qualify as "work made for hire" as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a "work made for hire" for Client. To the extent that any of the Deliverables do not constitute a "work made for hire," BRSW hereby irrevocably assigns, and shall cause the BRSW Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all intellectual property therein. BRSW shall cause the BRSW Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such BRSW Personnel may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral
with respect to the Deliverables. Upon Client's reasonable request, BRSW shall, and shall cause the BRSW Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect or record its rights in or to any Deliverables.
4.3. Ownership of BRSW IP & Technology
. Notwithstanding anything to the contrary herein, BRSW is and shall remain the sole and exclusive owner of all right, title and interest in and to all BRSW trade-secrets, know-how, methodologies, proprietary information, inventions, algorithms, software, tools, logic, analytics, computer programs, source code, or other backend and background elements, techniques or features incorporated into or utilized in performing the Services, including all associated intellectual property rights therein.
4.4. Names and Logos
. Either Party may use the name and logo of the other Party in external advertising, marketing or promotion materials (including its website) that identify such Party's customers or vendors, provided use of the name and/or logo is in accordance with the other Party's standard logo or trademark usage guidelines, if any. 5 Confidentiality.
From time to time during the term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs and services, confidential information and materials comprising or relating to intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 5 by the Receiving Party or any of its representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any Person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. 6 Non-Solicitation.
During the term of this Agreement and for a period of one (1) year thereafter, neither Party shall directly solicit or induce for employment, or for services as an independent contractor, any person who performed any work under this Agreement who is then an employee or independent contractor of the other Party. For avoidance of doubt, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the Internet, shall not be construed as a solicitation or inducement for the purposes of this Section 6, and the hiring or engagement of any such person who freely responds thereto shall not be a breach of this Section 6. 7 Non-Exclusivity.
BRSW retains the right to perform the same or similar type of services for third parties during the term of this Agreement and thereafter. 8 Representations; Warranties; Disclaimer.
8.1. Mutual Representations
. Each Party represents to the other that it is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its formation; it has the full right, power and authority to enter into this Agreement; the execution of this Agreement by its representative whose signature is set forth at the end hereof and the delivery of this Agreement by the Party has been duly authorized by all necessary corporate action of the Party; this Agreement constitutes the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
8.2. BRSW Warranties
. BRSW warrants that the Services will be performed in a professional and diligent manner consistent with industry standards and good business practice, using efforts comparable to those customarily used for similar services.
8.3. Client Representations and Warranties
. Client represents and warrants to BRSW that it has provided BRSW with a copy of any applicable internal policies or procedures and a written description of any specifications or other requirements or restrictions that apply to any of the Services; that it has, and shall maintain throughout the term of this Agreement, all rights, licenses and consents required in connection with the Services, including any such right or licenses required to lawfully use, and to authorize BRSW to use, any personal or corporate names, copyrighted materials, trade names, trademarks, and any other item or technology provided to BRSW for use in connection with the Services.
8.4. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE
. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 8, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 8 OF THIS AGREEMENT.
. CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT BRSW, INC. IS NOT MAGENTO, INC. OR AN AFFILIATE OF MAGENTO, INC. CLIENT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT BRSW HAS NO CONTROL OVER THE TERMS, CONDITIONS, POLICIES, FEATURES, FUNCTIONALITY, OR OTHERWISE WITH RESPECT TO ANY MAGENTO, INC. PRODUCTS OR SERVICES. 9 Indemnification.
9.1. Mutual Indemnification Obligations
. Each Party shall defend, indemnify and hold harmless the other Party and its officers, directors, shareholders, employees, agents, affiliates, successors and permitted assigns, from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising out of or resulting from any third-party alleging breach by such Party or its personnel of any representation, warranty, covenant or other obligations set forth in this Agreement.
9.2. Indemnification Procedures
. A party seeking indemnification under this Section 9 (the "Indemnified Party") shall give the Party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
9.3. EXCLUSIVE REMEDY
. THIS SECTION 9 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 9. 10 Limitation of Liability.
10.1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES
. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. MAXIMUM LIABILITY
. EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO BRSW PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
. The exclusions and limitations in Section 10.1 and Section 10.2 shall not apply to damages or other liabilities arising out of or relating to a Party's infringement or misappropriation of intellectual property, a Party's failure to comply with its obligations under Section 5 (Confidentiality), Section 6 (Non-Solicitation), or Section 9 (Indemnification), or a Party's gross negligence, willful misconduct or intentional acts, or Client's breach of undisputed payment obligations. 11 Term; Termination.
. The term of this Agreement shall commence on the Effective Date and continue in perpetuity until terminated in accordance with the terms of this Section 11.
11.2. Termination without Cause
. Either party, in its sole discretion, may terminate this Agreement for any reason or no reason on thirty (30) days' prior written notice to the other party.
11.3. Termination for Cause
. Either Party may terminate this Agreement upon written notice to the other Party: (a) if the other Party breaches this Agreement, and such breach is incapable of cure, or, if the breach can be cured, it is not cured by the other Party within thirty (30) days after receipt of written notice of such breach, (b) if the other Party (i) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; (v) is dissolved or liquidated; or (c) if the other Party is unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event that lasts for more than sixty (60) days.
11.4. Effect of Termination
. Upon the termination of this Agreement, each Party shall promptly (a) destroy all tangible documents and materials containing, reflecting, incorporating or based on the other Party's Confidential Information; and (b) permanently erase all of the other Party's Confidential Information from its computer systems. Upon the request of either Party, the other Party shall confirm in writing that it has complied with the requirements of this Section 11.4. Any amounts owed by either Party to the other prior to termination of this Agreement shall remain owed after termination.
11.5. Surviving Provisions
. Section 4 (Intellectual Property Rights), Section 5 (Confidentiality), Section 6 (Non-Solicitation), Section 7 (Non-Exclusivity), Section 8 (Representations; Warranties; Disclaimers), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11.4 (Effect of Termination), Section 11.5 (Surviving Provisions), and Section 12
(Miscellaneous) shall survive any termination of this Agreement. 12 Miscellaneous.
12.1. Entire Agreement
. This Agreement, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
. All notices hereunder (each, a "Notice") shall be in writing and addressed to the parties at the address set forth beneath the signature hereto of their respective representative (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 12.2.
. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
. If any term or provision of this Agreement is determined by an arbitrator, by a court of competent jurisdiction, or by mutual agreement of the Parties to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement, and such term or provision shall be modified and interpreted so as to best accomplish the objectives of the original term or provision to the fullest extent permitted by law.
12.5. Amendment and Modification
. No amendment to or modification of this Agreement is effective unless it is in writing, identified as such, and signed by each Party.
. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
. As a contract for services, BRSW may not assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of Client, which Client may withhold in its sole and absolute discretion. Client may not assign any or all of its rights or obligations under this Agreement without the written consent of BRSW, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may, upon written notice to the other Party, assign this Agreement to a successor-in-interest by consolidation, merger or operation of law or to a purchaser of all or substantially all of the Party's assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
12.8. No Third-party Beneficiaries
. This Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
12.9. Choice of Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Utah without giving effect to any conflict of laws provisions thereof.
12.10. Dispute Resolution
. Any dispute arising out of or relating to this Agreement, including breach, termination, interpretation, or the validity of any provision, shall be resolved in the following manner. Within thirty (30) days after any party delivers to the other party hereto written notice of a dispute (the "Dispute Notice"), the Parties and/or their respective representatives with authority to settle the matter shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. If the dispute is not settled within sixty (60) days of the initial Dispute Notice, then upon notice by any Party to the other, any unresolved dispute shall be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, and judgment may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator in Provo, Utah. Any negotiations pursuant to this Section 12.10 are confidential and shall be treated as compromise and settlement negotiations for all purposes. The arbitrator may grant injunctions or other equitable relief in such dispute. The arbitrator shall award the prevailing party, if any, as determined by the arbitrator, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. Notwithstanding the foregoing, the parties shall have the right to conduct reasonable discovery as permitted by the arbitrator and the right to seek temporary, preliminary, and permanent injunctive relief in any court of competent jurisdiction during the pendency of the arbitration or to enforce the terms of an arbitration award.
12.11. Force Majeure
. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, except for any obligations to make payments to the other Party under this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party's control, including without limitation acts of God, flood, fire or explosion, war, terrorism, invasion, riot or other civil unrest; national or regional emergency, Internet service providers, shortage of adequate power or telecommunications, or any other event which is beyond the reasonable control of such Party (each of the foregoing, a "Force Majeure Event"). During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until such time as the affected Party resumes performance.
12.12. Relationship of Parties
. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. BRSW is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.