Vendor Agreement

DUNE LABS LLC DBA SHRINE DEVELOPMENT AND/OR ITS AFFILIATES (“SHRINE”) WISHES TO RECEIVE SERVICES FROM YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE PERFORMING SERVICES (REFERENCED BELOW AS “VENDOR”), AND VENDOR WISHES TO PERFORM SUCH SERVICES FOR SHRINE, ON THE CONDITION THAT VENDOR ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. SHRINE AND VENDOR MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.

PLEASE READ THIS AGREEMENT CAREFULLY. THESE TERMS AND CONDITIONS OF SERVICE (“AGREEMENT”) CONSTITUTE A LEGAL AND ENFORCEABLE CONTRACT BETWEEN SHRINE AND VENDOR AND ARE INCORPORATED BY REFERENCE INTO ALL STATEMENTS OF WORK AND OTHER ORDERING FORMS. BY ACCEPTING ANY WORK ORDER AS DESCRIBED BELOW, VENDOR AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND SIGNIFIES ITS INTENT TO BE BOUND BY THEM. 

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. ENGAGEMENT OF VENDOR

1.1 Scope; Services. The scope of this Agreement shall encompass all work Vendor performs for Shrine during the Term of this Agreement. Vendor agrees to provide software design, programming, development, testing, quality assurance, implementation, and other services (collectively, the “Services”) to Shrine in accordance with any specifications, requirements, and deliverables (collectively, the “Specifications”). Vendor’s performance of Services in accordance with any Specifications constitutes Work (“Work”) hereunder. Vendor will perform its obligations under this Agreement in compliance with applicable law.

1.2. Work Orders. Shrine may issue written requests to Vendor for the performance of Work in such form as the parties may agree (each, a “Work Order”). A Work Order may describe (1) Vendor’s Services to be provided; (2) applicable Specifications, if any; (3) a time schedule for delivery, which may include certain milestones and other deadlines; (4) a cost schedule, which sets forth Vendor’s hourly rates, fee structures, and/or other billing arrangements, including any “not to exceed” requirements; and (5) any other relevant details. Vendor shall have accepted a Work Order upon taking any action to indicate its acceptance, including starting work on a Work Order. Vendor shall perform Work in accordance with the Specifications and deliver such Work to Shrine according to the time schedule as may be described in the Work Order.

1.3. Change Request. Shrine may request changes to a Work Order by making a written request for changes (“Change Request”), which may be made by email. Vendor will promptly notify Shrine if the requested changes will have any impact to cost and timing and seek Shrine’s approval before proceeding with the changes. Upon the approval of the parties to proceed, the Work Order shall be deemed to have been amended consistent with the Change Request.

1.4. Support and Maintenance. Vendor agrees to supply support and maintenance under this Agreement for any Work rendered. Maintenance includes patch releases of software to correct reported problems, resolution of security vulnerabilities, and bug fixes.

1.5. Scoping Estimates. Upon reasonable request and in a commercially reasonable time, Vendor will provide Shrine with estimates of cost and timing to perform certain requested services. Such estimates shall not be binding on either party.

1.6. Progress Reports. Vendor will provide Shrine with regular progress reports, including as may be reasonably requested, concerning Vendor’s progress on its performance of Work under a Work Order, including the overall status of Work in process, a representative copy of Work in process, and a breakdown of time spent and expenses incurred, if any.

1.4. Support and Maintenance. Vendor agrees to supply support and maintenance under this Agreement for any Work rendered. Maintenance includes patch releases of software to correct reported problems, resolution of security vulnerabilities, and bug fixes.

1.5. Scoping Estimates. Upon reasonable request and in a commercially reasonable time, Vendor will provide Shrine with estimates of cost and timing to perform certain requested services. Such estimates shall not be binding on either party.

1.6. Progress Reports. Vendor will provide Shrine with regular progress reports, including as may be reasonably requested, concerning Vendor’s progress on its performance of Work under a Work Order, including the overall status of Work in process, a representative copy of Work in process, and a breakdown of time spent and expenses incurred, if any.

1.7. Audit/Access to Records. Vendor agrees that Shrine, or any of its duly appointed representatives, at any time during the term of this Agreement or within two (2) years thereafter, with reasonable prior written notice, may examine and review any business records of Shrine related to its performance of services under this Agreement.

1.8. Marketing and Advertising. Vendor shall not use Shrine’s name, service or other trademarks in Vendor’s marketing materials or in any way advertise, promote, or publicly state or announce its relationship to Shrine without Shrine’s prior written permission, which, if given, may be revoked by Shrine at any time in Shrine’s discretion.

1.9. Independent Contractor. VENDOR IS NOT AN EMPLOYEE OF SHRINE. Vendor shall not be eligible for any benefits given by Shrine to its employees. The parties are and remain independent contractors. Nothing in this Agreement will be deemed to create an agency, partnership, or joint venture between the Parties. Neither party has authority to bind the other or incur any liability or otherwise act on behalf of the other party.

1.10. Business Organization. Vendor represents and warrants that it is lawfully organized (or incorporated) as a limited liability company, corporation, or similar entity form. Failure to comply with this provision constitutes a material breach of this Agreement which will relieve Shrine of any of its obligations to Vendor under this Agreement.

1.11. Vendor Agents. With respect to each employee or subcontractor utilized by Vendor hereunder (collectively, “Vendor Agents”), the following provisions will apply:

        a. Vendor will remain liable for all of the acts and omissions of all Vendor Agents;

        b. Vendor will ensure that all Vendor Agents have sufficient expertise and qualifications for the Services to be performed by them and Vendor will not attempt to bill Shrine for any time required by Vendor Agents to become familiar with Shrine’s services or any applicable project;

        c. Vendor will ensure that the insurance it is required to maintain pursuant to this Agreement is applicable to all of the acts, omissions and potential liabilities of its Vendor Agents; and

        d. Vendor will ensure that each Vendor Agent is familiar with its responsibilities under this Agreement, including responsibilities applicable to confidentiality, intellectual property and compliance with laws.

2. ACCEPTANCE OF WORK
Shrine reserves the right to reject nonconforming Work within thirty (30) days of Shrine’s becoming aware of the nonconformance. Any such rejection will be explained to Vendor in writing and Vendor will have two (2) business days to provide Shrine either a written explanation disputing the nonconformance or a timetable for correcting the nonconformance. Vendor shall give written notice to Shrine when the corrections have been completed and deliver to Shrine the conforming Work. Shrine shall promptly review the Work and notify Vendor whether the Work is accepted.

3. COMPENSATION AND PAYMENT

3.1. Fees. In consideration of Vendor’s performance, Shrine will pay Vendor according to the payment schedule specified in the respective Work Order.

3.2. Payment Terms. Vendor shall be paid on a Net 21 basis from Shrine’s receipt of invoice by Vendor through Shrine’s designated invoice portal. Unless otherwise agreed by Shrine, payments made to Vendor will be in United States currency.

3.3. Expenses. Vendor will not be reimbursed for travel and/or out of pocket expenses necessary for performance of Work without prior approval for such expenses by Shrine. Shrine will not reimburse Vendor for the cost of any development software or commercial software libraries that Vendor deems necessary to complete Work.

4. TERM, TERMINATION AND SUSPENSION

4.1. Term; Termination. This Agreement is effective as of the Effective Date and will continue in full force and effect until terminated as provided in this Agreement. Either party may terminate this Agreement immediately if the other party: (i) is adjudicated as bankrupt, voluntarily files a petition for bankruptcy or is the subject of an involuntary petition for bankruptcy that is not stayed or dismissed within thirty (30) days after filing, (ii) makes an assignment for the benefit of creditors, (iii) has a receiver imposed or appointed over all or substantially all of its assets, which appointment is not stayed or dismissed within thirty (30) days, (iv) assigns or transfers, either voluntarily or by operation of law, any or all of its rights or obligations under this Agreement without having obtained the prior written consent of the other Party, or (v) breaches a material provision of this Agreement or a Work Order and fails to cure the breach within thirty days’ notice thereof from the non-breaching Party.

4.2. Suspension. Shrine may suspend Vendor’s performance under a Work Order at any time immediately by giving written notice to Vendor.  If a suspension continues for more than thirty (30) days, either Shrine or Vendor may terminate the Work Order by giving written notice to the other Party.

5. CONFIDENTIALITY

5.1. Confidential Information. All information disclosed to Vendor under this Agreement shall be considered confidential and proprietary (the “Confidential Information”) and Vendor hereby agrees to hold Confidential Information in confidence and to not disclosure Confidential Information to any third party without the express written permission of Shrine, except that Vendor may disclose Confidential Information (1) to its own employees and contractors to the extent necessary to perform Work, so long as such employees and contractors are required to adhere to the same confidentiality obligations as Vendor under this Agreement; and (2) as may be required by law, so long as Vendor provides Shrine with prompt written notice of such disclosure so as to allow Shrine an opportunity to seek a protective order (or other appropriate remedy) or to waive compliance with this provision. Vendor agrees to take reasonable precautions to avoid accidental disclosure of Confidential Information.

5.2. Exclusions to Confidentiality Obligations. Vendor’s obligations under Section 5.1 of this Agreement shall not apply to any portion of the Confidential Information that (a) is or subsequently becomes generally available to the public through no fault of Vendor; (b) was already known to or in Vendor’s possession at the time of its disclosure by Shrine and that was not acquired directly from Shrine; (c) subsequently acquired by Vendor by lawful means from a third party who is under no obligation of confidentiality to Shrine; or (d) is independently developed by Vendor without reference to any non-public Confidential Information of Shrine.

5.3. Survival. Vendor’s confidentiality obligations under Section 5.1 shall survive this Agreement until such obligations are expressly waived by Shrine in writing or until such obligations no longer apply according to Section 5.2.

6. INTELLECTUAL PROPERTY

6.1. Work Made for Hire. Vendor agrees that the development of the Work (but excluding Vendor Tools) is “work made for hire” within the meaning of the Copyright Act of 1976, as amended from time to time, and that the Work shall be the sole property of Shrine. “Vendor Tools” means the materials, information, trade secrets, generic programming codes and segments, algorithms, methodologies, processes, tools, data, documents, notes, programming techniques, reusable objects, routines, formulae and templates that: (a) are developed prior to the Work and utilized by Vendor in connection with the Work; (b) are designed to perform generalized functions not specific to the particular requirements of Shrine or the Work; (c) do not contain any of Shrine’s Confidential Information or other information or items provided by Shrine; and (d) cannot reasonably be expected to provide Shrine an advantage over its competitors.

6.2. Moral Rights. Vendor also hereby irrevocably transfers and assigns to Shrine, and waives and agrees never to assert, any and all “Moral Rights” that Vendor may have in or with respect to any Work made or conceived during performance of this Agreement to the extent such Moral Rights exist. “Moral Rights” mean any rights to claim authorship of any Work, to object to or prevent the modification or destruction of any Work, to withdraw from circulation or control the publication or distribution of any Work, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.”

6.3. Assignment. To the extent any Work performed by Vendor does not qualify as a “work made for hire” under applicable law, Vendor hereby irrevocably and unconditionally assigns to Shrine, without further compensation, all of its right, title, and interest in and to the Work and any and all related patents, copyrights, trademarks, service marks, and trade names in the United States and elsewhere. In the event Vendor fails to deliver the Work, Shrine retains all right, title, and interest to any portion of the Work completed by Vendor up to the delivery date. To the extent any of Vendor’s rights in the Work, including without limitation any moral rights, are not capable of assignment under applicable law, Vendor hereby irrevocably and unconditionally waives all enforcement of such rights to the maximum extent permitted under applicable law. Upon request, Vendor will sign all applications, assignments, instruments and papers and perform all acts necessary or desired by Shrine to assign the Work fully and completely to Shrine and to enable Shrine, its successors, assigns and nominees, to secure and enjoy the full and exclusive benefits and advantages of the Work at no charge to Shrine; however, Shrine shall reimburse Vendor for reasonable out-of-pocket expenses.

7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

7.1. Workmanship. Vendor warrants that Work will be performed in a workmanlike manner and delivered free of material defects. Vendor warrants that delivered Work will be free of errors and bugs and perform substantially in accordance with generally prevailing industry standards. In addition, Vendor warrants that delivered Work is free from any known security vulnerabilities. This provision shall be in effect for ninety (90) days beginning from the date Work is received. Following the expiration of this provision, Vendor is subject to Section 1.8 of this Agreement to ensure the Work remains in proper working form.

7.2. Non-Infringement. Vendor warrants Work will not infringe on any copyright, patent, trade secret or other intellectual property interest of any third party. Vendor will indemnify and defend Shrine from and against all such infringement claims, losses, suits and damages including, but not limited to attorney’s fees and costs. Following any bona fide claim of infringement, Vendor shall promptly correct the Work so as not to be infringing, or secure, at its own expense, the right of Shrine to use the Work without infringement.

7.3. Compliance with Laws. Vendor shall comply with all applicable local, state, national and foreign laws applicable to its activities during the Term of this Agreement, including, but not limited to, those laws related to data privacy, international communications, and the collection, use, processing, transfer, disclosure, and transmission of technical or personal data.

7.4. Information Security. Vendor shall maintain information security measures and practices, including physical, technical, and administrative controls to ensure the confidentiality, integrity, and availability of Shrine’s intellectual property and information assets. Vendor agrees to submit to audits of its information security practices and systems by Shrine (or a third-party designee) upon reasonable notice. Vendor shall immediately notify Shrine upon discovering an information security incident that presents a risk to Shrine’s business interests.

8. NON-SOLICITATION

8.1. Non-Solicitation of Employees. During the term of this Agreement and for a period of twelve (12) months thereafter, Vendor shall not, directly or indirectly solicit, recruit, or employ any employee, agent, or subcontractor of Shrine without the prior written consent of Shrine. The Parties agree that money damages would be insufficient to address a violation of this provision and acknowledge and agree that Shrine shall be entitled to injunctive relief in addition to any other relief that may be granted.

8.2. Non-Solicitation of Customers. During the term of this Agreement and for a period of twelve (12) months thereafter, Vendor shall not contract with any customer of Shrine for the provision of Vendor’s services without the prior written consent of Shrine. The Parties agree that money damages would be insufficient to address a violation of this provision and acknowledge and agree that Shrine shall be entitled to injunctive relief in addition to any other relief that may be granted.

9. NON-DISPARAGEMENT

Vendor shall not, at any time during the Term and thereafter, make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, (in any medium, including via blogging, posting, emailing, social networking, reviewing or otherwise via the Internet) or take any action which may, directly or indirectly, disparage Shrine or any of its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations. Notwithstanding the foregoing, nothing in this Agreement shall preclude Vendor from making truthful statements that are required by applicable law, regulation, or legal process.

10. INSURANCE AND INDEMNIFICATION

10.1. During the Term of this Agreement, if the Vendor is organized in the U.S., Vendor will obtain and maintain in full force and effect, (i) Workers compensation insurance and unemployment insurance as required by law, (ii) Commercial general liability insurance with a per claim limitation of not less than one million dollars ($1,000,000), and (iii) Errors and omissions insurance with a per claim limitation of not less than one million dollars ($1,000,000). Upon request by Shrine, Vendor will provide certificates of insurance demonstrating the foregoing requirements.  If requested by Shrine, Vendor will cause Shrine to be listed as an additional insured on the policies indicated in subsections (ii) and (iii) above.  

10.2. Vendor agrees to indemnify, defend and hold harmless Shrine and its subcontractors, agents, partners, principals, members, officers and employees (an “Indemnified Party”) from and against any and all liability, expenses, including reasonable legal fees, and claims for damages to the extent resulting from the Vendor’s breach of this Agreement, Vendor’s termination of this Agreement other than in accordance with its terms or any cessation or delay of work to be performed by Vendor, or any action or omission of Vendor that results in a third party claim against an Indemnified Party alleging that such Indemnified Party has infringed the intellectual property rights of such third party.  If there is also fault on the part of the Indemnified Party, or any entity or individual acting on the Indemnified Party’s behalf, this indemnification obligation shall be on a comparative fault basis. As a condition to the foregoing indemnity obligations, the Indemnified Party shall provide Vendor with prompt notice of any claim for which indemnification shall be sought and shall cooperate, at the Indemnifying Party’s sole cost and expense, in all reasonable respects with the Indemnifying Party in connection with any such claim.  The Indemnifying Party shall be entitled to control how the claim is handled and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing.

11. GENERAL PROVISIONS

11.1. Notices. All notices, demands, and communications required or permitted in connection with this Agreement will be in writing and shall be deemed effectively given in all respects upon delivery to a party’s principal place of business by registered mail or by personal delivery by a party or a third-party courier or, in the alternative, if delivered by email to Shrine at doug@oldshrine.wpenginepowered.com and to Vendor at Vendor’s primary email address then on file.

11.2. Relationship. This Agreement does not and will not be construed to create a partnership, joint venture, agency, or any other business relationship that would authorize either Party to act on behalf of the other or to have any authority to create any liability or obligations on behalf of or in the name of the other. Each of the Parties is and will remain completely independent of the other.

11.3. Governing Law; Forum Selection; Expenses and Fees. This Agreement shall be governed by and construed in accordance with the internal laws of the state of Michigan without regard to conflict of laws principles. Disputes arising hereunder shall be adjudicated in a Michigan court of competent jurisdiction located in Oakland County, Michigan. Each Party shall pay its own fees and expenses, including attorney’s fees, in enforcing its rights under this Agreement.

11.4. Electronic Signatures; Authority; Counterparts. Any signature associated with a party’s intent to sign, authenticate or accept this Agreement or any counterparts shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by law. Each Party represents and warrants that it has the right, power, and authority to enter into this Agreement, to become a Party hereto and to perform its obligations hereunder. This Agreement may be executed in any number of counterparts (including by facsimile, email, or other electronic means), each of which  shall be deemed to be an original and all of which  shall constitute but one and the same agreement.

11.5. Binding Nature of Agreement; Assignment and Delegation. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators, and permitted assigns. Neither Party may assign or delegate this Agreement without the written consent of the other Party, such consent not to be unreasonably withheld, except that either Party may assign its rights or delegate its performance under this agreement (a) to any subsidiary or affiliate; or (b) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets.

11.6. Entire Agreement; Amendment; Severability; No Third-Party Beneficiaries; Waiver; Construction. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and, upon its effectiveness, shall supersede all prior agreements, understandings and arrangements, both oral and written, with respect to the subject matter hereto. This Agreement may only be amended in a writing signed by the parties indicating the parties’ intention to amend this Agreement. If a court of competent jurisdiction finds any term or other provision of this Agreement to be invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. There are no intended beneficiaries to this Agreement other than the Parties hereto. Any waiver or failure to enforce any provision of this Agreement by Contractor on one or more occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. Unless the context of this Agreement otherwise requires: (1) words importing the singular include the plural and vice-versa, (2) the use of all pronouns shall be interchangeable and considered gender neutral, and (3) section headings and paragraph titles in this Agreement are for convenience only and form no part of this Agreement and shall not affect its interpretation.

The Vendor Agreement (available as of the Effective Date from https://oldshrine.wpenginepowered.com/vendor-agreement/) are an integral part of this Work Order (“Work Order”).  Except as expressly stated otherwise, this Work Order and all work performed hereunder are subject to the Vendor Agreement, which is hereby incorporated by reference as if fully set forth in this Work Order.  The Vendor Agreement, together with the following as signed by both Parties, shall constitute the entire agreement of the Parties (“Master Agreement”): this Work Order and other Work Orders, any Change Order Form(s), and any amendments or attachments thereto.  In consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: