1. THE AGREEMENT. Britten, Inc. and affiliated companies (collectively, “Britten”) agree to provide the goods and labor (collectively, the “Work”) described in Britten’s quote, for good and valuable consideration to the Customer listed below, subject to these terms and conditions agreed to by Britten and the Customer (collectively the “Parties”). This Agreement shall be for the benefit of Britten and Customer and not for the benefit of any other person or entity.
2. Customer’s written or verbal authorization to start work, agreement to make payment, making payment, or otherwise manifesting assent to Britten’s quote constitutes an acceptance of this Agreement.
3. TERMS OF PAYMENT.
3.1 Payment date. Unless expressly stated differently on Britten’s quote, all payments for the Work are due from Customer net 30 days from the date of the invoice (“Due Date”). Payment shall be made to Britten at the address specified on the invoice, without any offset or deduction for any reason. If Customer does not provide a written objection to the invoice or Work by the Due Date, all objections to the invoice and the Work are waived by the Customer and forever barred.
3.2 Delinquent payments.
3.2.1 Any payment not made by Customer on or before the Due Date shall be subject to a late charge on any unpaid balance at a rate of 18% per annum, or the highest interest rate allowed by law, whichever is greater.
3.2.2 If a payment is not made on or before the Due Date, Customer agrees that Britten may elect, in addition to any other remedy at law or in equity, to cease performance under the Agreement and any other agreement between Customer and Britten.
3.2.3 Britten may resort to any legal or equitable remedy to collect any delinquent payment or other outstanding amounts past due. In the event that Britten elects to file a lawsuit against Customer for any unpaid monies and is the prevailing party, Britten shall be entitled to collect from the Customer its costs, interest, and attorney fees incurred related to such lawsuit, in addition to any damages.
4. LIMITED WARRANTY. Britten agrees to undertake and provide the Work in a workmanlike fashion and consistent with the quality of similar Work provided generally in the industry. BRITTEN MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MARKETABILITY OR FITNESS FOR PARTICULAR PURPOSE, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED. If the Work includes the replacement of parts and equipment, which have a manufacturer’s limited warranty, to the extent allowed by law, Britten transfers and assigns to Customer those manufacturers’ warranties, if any such warranty is provided by the manufacturer. In no event shall Britten be liable to Customer for any incidental, consequential, special, exemplary, and/or punitive damages, including without limitations, loss of revenue or profit.
5. Customer is solely responsible for all sales or use taxes imposed on its retail purchase of the Work from Britten, as well as any property taxes, assessments, and any other levies on the Work. Customer may issue to Britten appropriate documents (e.g., exemption or direct pay certificates) designating all or part of the purchase transaction under this Agreement as either sales or use tax exempt or allocating the use of goods and work purchased to one or more taxing jurisdiction. Customer and Britten shall make all reasonable efforts to cooperate with each other to determine Customer’s liability for efforts to minimize such liability as legally permissible. Britten shall make a reasonable effort to cooperate fully with Customer in seeking refunds of sales or use taxes paid to Britten or paid by Customer directly to a taxing authority. In no event will Britten be liable to the Customer or any other entity for any sales taxes, use taxes, property taxes, or any other assessment or levy related to the Work.
6. TERMINATION FOR CONVENIENCE. Britten reserves the right to terminate this Agreement, or any Work or portion of Work under this Agreement, with or without cause, by seven (7) calendar days’ prior written notice to the other Customer. Within thirty (30) business days of notice of termination, Britten will submit a final invoice for the Work performed prior to the effective date of termination, which shall be due and payable as stated under this Agreement. Customer agrees that any payment obligations due and outstanding at the time of termination under this paragraph shall survive this Agreement. Any outstanding unpaid amounts shall be treated as Delinquent Payments under paragraph 3 of this Agreement.
7. MUTUAL INDEMNIFICATION.
7.1 Customer’s indemnification. Customer shall indemnify, defend (using counsel reasonably acceptable to Britten), and hold harmless Britten, its affiliates, owners, directors, officers, employees, contractors, agents, successors and assigns, from any and all liabilities, taxes, damages, claims, fees, fines, penalties, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) which Britten may incur, suffer, become liable for, or which may be asserted or claimed against Britten as a result of the acts, errors, or omissions of Customer, including, but not limited to, a breach of the terms of this Agreement by Customer, the enforcement of this Agreement by Britten, any liability related to Intellectual Property related to this Agreement, or any tax liabilities.
7.2 Britten’s indemnification. Except as otherwise provided in this paragraph, Britten shall indemnify, defend (using counsel reasonably acceptable to Customer), and hold harmless Customer, its affiliates, owners, directors, officers, employees, contractors, agents, successors and assigns, from any and all Losses which Customer may incur, suffer, become liable for, or which may be asserted or claimed against Customer as a result of the acts, errors, or omissions of Britten, including, but not limited to, a breach of the terms of this Agreement by Britten or the enforcement of this Agreement by Customer. Notwithstanding the foregoing, Customer agrees that Britten’s maximum liability to the Customer shall not exceed the amount Customer paid to Britten for the Work under this Agreement, less any insurance payments received by the Customer offsetting any loss or other damages suffered by Customer.
8. INSURANCE PROVISIONS.
8.1 Insurance requirement. During the term of this Agreement, Britten shall carry and maintain insurance at its own cost, with companies that are rated by A.M. Best at minimum of “A-“ or better, or are otherwise reasonably acceptable to the Customer. Britten shall carry the following insurance coverage types with the following minimum primary limits:
8.1.1 Commercial General Liability insurance, insuring against bodily injury, property damage, contractors’ completed operations and contractual liability with a combined single limited of not less than one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the annual aggregate.
8.1.2 Workers’ Compensation and Employer’s Liability insurance, with Workers’ Compensation limits as required by State law, and Employer’s Liability limits of five hundred thousand dollars ($500,000) per claim and in the annual aggregate.
8.2 Additional insured. Upon written request from the Customer, Britten shall add the Customer as an “additional insured” on the policies set forth above in this paragraph (paragraph 8).
8.3 Proof of insurance. Upon written request from the Customer, Britten shall provide Customer with a copy of the certificates of insurance required under this paragraph (paragraph 8), but shall not be required to provide Customer with more than one such copy of any certificate per calendar year.
9. INTELLECTUAL PROPERTY.
Intellectual property. The term “Intellectual Property” means any patents, copyrights, and trademarks, as well as any trade secrets, proprietary methods, or other creative content (regardless of patentability or copyrightability) used in the performance of the Work under the quote.
Customer representations. By entering into this Agreement, Customer represents and warrants that Customer owns or has valid licenses to use, free and clear of all liens, including, without limitation, any claim of ownership or other right, all Intellectual Property that is involved in or is necessary to performance under this Agreement. Such customer content, including pre-existing trademarks, shall remain the sole property of Customer or its respective suppliers, and Customer or its suppliers shall be the sole owner of all trademark, trade secrets, patents, copyrights, and other related rights.
Customer license to Britten. By entering into this Agreement, Customer grants to Britten a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the customer content solely in connection with Britten’s performance of the Work and promotional uses of the Work as authorized in this Agreement. Customer also grants to Britten a nonexclusive, nontransferable license to use any of Customer’s Intellectual Property that is involved in or is necessary to the performance under this Agreement, to the extent that such use is necessary for Britten’s performance under this Agreement.
No infringement. Customer also represents and warrants that prior and current use of its Intellectual Property has not and does not infringe, violate, dilute, or misappropriate the Intellectual Property of any other person; to Customer’s knowledge no person is infringing, misappropriating, diluting, or otherwise violating any of its Intellectual Property; there are no actions (including any oppositions, interferences or reexaminations) settled, pending or, to Customer’s knowledge, threatened (including in the form of offers to obtain a license) alleging any infringement, misappropriation, dilution, or violation by Customer of the Intellectual Property of any person, challenging the validity, enforceability, registrability, or ownership of any of Customer’s Intellectual Property, or by Customer or any other person alleging any infringement, misappropriation, dilution, or violation by any person of any of Customer’s Intellectual Property; Customer is not subject to any outstanding or prospective Order (including any motion or petition therefor) that does or would restrict or impair the use of any of its Intellectual Property, or restrict the licensing of any of its Intellectual Property to any person.
Britten’s reservation of rights in Intellectual Property. Britten expressly retains all Intellectual Property, including property ownership, in and to all preliminary works, working files, underlying work product, digital files utilized by Britten in creating the Work. Britten also expressly retains all Intellectual Property, including property ownership, in all design tools and creative processes developed or utilized by Britten in performing the Work, including without limitation pre-existing and newly developed processes, software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
Limited usage rights. Upon completion of the Work, and expressly conditioned upon full payment of all fees and costs due under this Agreement, Britten grants to Customer limited usage rights in the Work as set forth in this paragraph. All other Intellectual Property in the Work is expressly retained by Britten. Any additional uses by Customer outside the scope of the limited usage rights will require separate pricing.
Limited usage rights:
The category and medium of use are limited to those set forth in the quote. The duration of use is five (5) years from the date of this Agreement, which duration can be modified by the parties in an express writing. The geographic territory of the limited usage rights is worldwide with no limitation.
10.1 No assignment. There shall be no assignment of the Agreement by Customer without the prior written approval of Britten. Any assignment of the Agreement shall not relieve Customer of its obligations under the Agreement, including but not limited to payment by the Due Date.
10.2 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement, other than a payment obligation, due to any cause beyond its reasonable control including without limitation, acts of God or of the public enemy, including terrorism, acts of the government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of the party whose performance is affected (“Force Majeure Events”); provided that the affected party provides the other party prompt notice of the applicable circumstance and uses commercially reasonable efforts to re-commence performance as promptly as possible; provided, further, that if the duration of such Force Majeure Event exceeds thirty (30) days, the other party may terminate the Agreement upon delivery of written notice to the affected party, which termination shall be immediately effective upon such delivery.
10.3 Venue and enforcement. The Parties agree that the laws of the State of Michigan shall apply and any dispute under the Agreement shall be brought in the applicable state or federal court located in Grand Traverse County, Michigan and the Parties waive any right to a jury trial.
10.4 Construction and captions. The Parties acknowledge that each has reviewed the Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Agreement or any exhibits or amendments hereto; and that section headings appearing in the Agreement are for convenience of reference only and they are not intended, to any extent or for any purpose, to limit or define the text of any section or any subsection hereof. In the event any part of the Agreement is found to be ambiguous, such ambiguity shall not be construed against any party.
10.5 Entire Agreement. Unless expressly agreed to otherwise by the Parties in a separate writing, this Agreement constitutes the sole and entire agreement between the Parties and supersedes all prior and contemporaneous statements, promises, understandings or agreements, whether written or oral.
10.6 Amendments. The Agreement may be amended, modified or altered at any time upon the approval of the Britten and Customer; however, any such amendment must be in writing and signed by the Britten and Customer in order for such amendment to be of any force and effect.
10.7 Partial invalidity. In the event that any provision of the Agreement is declared by any court of competent jurisdiction or any administrative judge to be void or otherwise invalid, all of the other terms, conditions and provisions of the Agreement shall remain in full force and effect to the same extent as if that part declared void or invalid had never been incorporated in the Agreement and in such form, the remainder of the Agreement shall continue to be binding upon the Parties.
10.8 Written notice. Written notice under this Agreement shall be provided by the Customer by mail to:
2322 Cass Road
Traverse City, MI 49684
Britten shall provide written notice under this Agreement by mail to the Customer’s last known business address or other address expressly designated by the Customer in writing.
Each party acknowledges it has read and understands this Agreement and agrees to be bound by its terms.