1. Engagement of Services : By issuing the foregoing Quotation, MotorCity Digital Marketing offers to the “Client” the goods and services therein identified for the period stated. The Client may accept this offer only by executing, in writing, the Acceptance, set out in the Quotation, without modification to such Quotation or these Terms and Conditions. Upon delivery to MotorCity Digital Marketing of the Client’s written Acceptance, within the period provided, this Agreement shall become effective. MotorCity Digital Marketing shall then provide the goods and services as identified in the Quotation, in the time and manner there designated.

2. Terms of Service : Attached hereto are MotorCity Digital Marketing Terms of Service, as related to the use of the website, identified in this Agreement.  Such Terms of Service are made part of this Agreement, and are incorporated herein by reference. At all times during this Agreement, the Terms of Service shall be accessible by a link on the website’s homepage, and such link shall be plainly labelled “Terms of Service.”

3. Compensation.

3.1 Fees and Approved Expenses : Client shall pay MotorCity Digital Marketing a fee for services rendered by MotorCity Digital Marketing according to the fees listed in the Quotation, and reimburse MotorCity Digital Marketing for its properly documented expenses, incurred in performing the services.

3.2 Invoices : MotorCity Digital Marketing shall present Client with an invoice for services and expenses as set out in the Quotation. Client shall pay MotorCity Digital Marketing the amount listed on ‘the invoice within fifteen (15) days of the invoice date. If any payment is more than fifteen (15) days late, Client shall pay interest calculated from the date the payments were due until the date the payments are actually paid at the lesser of eighteen percent (18%) annually or the maximum rate permitted by applicable law.

4. Independent Contractor Relationship.

4.1 Nature of Relationship : Client and MotorCity Digital Marketing understand, acknowledge and agree that their relationship shall be that of independent entities and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, or employment relationship. MotorCity Digital Marketing is not an agent of Client as a result of or in the course of performing services pursuant to this Agreement. MotorCity Digital Marketing is not authorized to make any representation, contract or commitment on behalf of Client unless specifically requested or authorized in writing to do so by Client.

4.2 MotorCity Digital Marketing Responsible for Taxes and Records : MotorCity Digital Marketing shall be solely responsible for and shall file, on a timely basis, all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to MotorCity Digital Marketing sale of goods, performance of services and receipt of fees under this Agreement. MotorCity Digital Marketing shall be solely responsible for and must maintain adequate records of expenses incurred in the course of performing services under this Agreement. No part of MotorCity Digital Marketing compensation shall be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes.

5. Intellectual Property Rights.

5.1 Non-Disclosure of Protected Information : MotorCity Digital Marketing represents that its performance of all of the terms of this Agreement does not and shall not breach any agreement to keep in confidence proprietary information, knowledge or data of a third party and MotorCity Digital Marketing shall not disclose to Client any confidential or proprietary information or trade secrets belonging to third parties unless such use or disclosure is authorized in writing by such owners.

5.2 Confidential Information : Each party agrees during the term of this Agreement and ‘thereafter to take all steps reasonably necessary to hold in confidence information which it knows or has reason to know is considered confidential or a trade secret by the other party (“Confidential Information”). Each party agrees to use the Confidential Information solely to perform the project(s) hereunder. Confidential Information includes, but is not limited to, technical and business information relating to either parties computer programs, source code, designs and techniques, inventions or products, research and development, costs, financial and legal information and present and future business plans. Each party’s obligations with respect to the Confidential Information also extend to any third party’s proprietary or confidential information disclosed in the course of providing services. This obligation shall not extend to any information which (a) becomes generally known to the public without each of this Agreement, (b) is developed independently or (c) disclosed by a third-party, having the right to disclose.

5.3 Licensing of Libraries.

(a) MotorCity Digital Marketing shall own all right, title and interest in the Software, other than any part of the Artwork & UJ Resources which are modified by or at the request of Client, which shall be owned by Client.

(b) Upon final payment, MotorCity Digital Marketing hereby grants Client a worldwide, irrevocable, perpetual, royalty-free and non-exclusive license to use, sell, distribute or have distributed, market or have marketed the Software in binary form.

(c) Upon final payment, MotorCity Digital Marketing hereby grants Client a worldwide, irrevocable, perpetual, royalty-free and non-exclusive license to use and modify the source code.

(d) Third Party Software. While fulfilling the Project Assignment, and with Client’s prior agreement, MotorCity Digital Marketing may use computer source code, object code, routines, algorithms, libraries, installers, operating systems, application frameworks, compiler glue, language libraries (e.g. ANSI C/C++), platform API libraries (e.g. lnterface Lib), or other third party software (“Third Party Software”). Client shall be responsible for securing licenses to all Third Party Software.

(e) Copyright Notice. Client shall display MotorCity Digital Marketing copyright notice in the splash screen, about box screen, or any other screens, where the Client copyright notice is displayed. MotorCity Digital Marketing copyright notice shall be the same size and format as the Client copyright notice. MotorCity Digital Marketing copyright notice shall read “© 20__ by MotorCity Digital Marketing, All Rights Reserved.”

(f) Authors Credit. Client shall prominently credit MotorCity Digital Marketing and MotorCity Digital Marketing employees, agents and contractors, in the splash screen, about box screen, and any other screens, where Client or other organizations or individuals are credited or where copyright information is displayed.

5.4 Intellectual Property Rights : The party’s warrants to each other that the providing party owns or has a license (or other permission) to any copyrighted material included as an element of the Client’s web design. MotorCity Digital Marketing does not make any representations covering any other property rights for the work it delivers and the MotorCity Digital Marketing Library, including but not limited to, patents and trademarks. MotorCity Digital Marketing does not make any representations whatsoever regarding the Third Party Software.

5.5 Client’s Indemnity : By this Agreement, Client hereby indemnifies and holds MotorCity Digital Marketing, its members and employees absolutely harmless from any claim of infringement or misappropriation of any intellectual property, which Client provided MotorCity Digital Marketing during the course of this Agreement.

6. Warranties and Limitation of Liability
6.1. Warranties. MotorCity Digital Marketing’s applications and the C-Panel / Projex 5 platform are warranted to be free of anomalies (bugs) and will function in the ways specified for a period of 90 days from the date of delivery. During this warranty period, we will provide free telephone and/or email support during our normal business hours. At the conclusion of the warranty period, on-going technical support will be provided for an hourly charge on an “as need” basis. Hardware and network warranties are specific to the manufacturers/models and are not provided as a MotorCity Digital Marketing service. There are no charges for quarterly platform updates (SEO and security related) as provided by the Annual Service Agreement.

6.2 Limitation of Liability : In no event shall MotorCity Digital Marketing be liable to Client in relation to this Agreement, regardless of the form of action or theory of recovery, for any: (a) indirect, incidental, consequential, special, punitive or exemplary damages, regardless of whether MotorCity Digital Marketing has been made aware of their possibility; (b) lost profits, loss of data or business interruption losses; and/or (c) direct damages in an amount in excess of the fees paid by Client to MotorCity Digital Marketing under this Agreement. Any claims relating to this Agreement shall be brought within one (1) year after the party asserting the claim knew, or reasonably should have known, of the existence of the claim.

7. Termination – Non-interference with Business.

7.1 Termination : Either party may terminate this Agreement at any time upon fifteen (15) days prior written notice. All payments received are considered earned and final upon termination of any contract (NO REFUNDS). Upon the date of termination, the parties shall have no further obligations to each other, excepting those accruing prior to the date of termination and those surviving the Agreement, pursuant to the below Section 8.8.

7.2 Non-Interference with Business : During and for a period of two (2) years immediately following termination of this Agreement, both parties agree not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with the other party, nor to hire, employ, contract, or otherwise engage their professional services.

7.3 Interruption of Service : In the event Client defaults in any of its obligations under this Agreement, MotorCity Digital Marketing reserves the right to cease services to the Client. Upon any violation of the Terms of Service, MotorCity Digital Marketing may immediately, at its sole discretion, end, disrupt or disable any service MotorCity Digital Marketing provides to Client, under this Agreement. For any other default, MotorCity Digital Marketing shall provide written notice to Client, identifying the default. Should Client fail to cure such default, within three (3) days of receiving such notice, MotorCity Digital Marketing may at its discretion end, disrupt or disable any service MotorCity Digital Marketing provides to Client under this Agreement.

8. General Provisions.

8.1 Governing Law : This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Michigan, without reference or recourse to its conflicts of law’s provisions.

8.2 Entire Agreement : This Agreement, together with the attached Quotation, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral. The terms of this Agreement shall govern all Project Assignments and services.

8.3 Amendment : This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties.

8.4 Waiver : No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

8.5 Successors and Assigns : Neither party may assign its rights or obligations arising under this Agreement without the other party’s prior written consent.

8.6 Legal Fees : If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief to which it may be entitled.

8.7 Notices : All notices, requests and other communications required to be given under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. Any such notice shall be considered to have been given when received, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. Either party may change its mailing address by notice as provided by this Section.

8.8 Survival : The following prov1s1ons shall survive termination of this Agreement: Article 6 and Sections 7.2, 8.6, 8.9 and 8.10.

8.9 Dispute Resolution :

A. Mediation. In the event of a dispute between the parties to this Agreement, the parties agree to promptly meet and confer with the goal of settling such dispute. If the parties are unable to reach a prompt, amicable agreement concerning such dispute, the parties agree to submit the matter to non-binding mediation. This mediation may be initiated by either party, by giving written notice to the other, at any time, of the desire to mediate. The parties shall have 14 days from the date of the notice to agree upon a mediator. If the parties cannot agree on a mediator, in that time, either party may make a request to the American Arbitration Association, Detroit office (“AAA”) to provide a mediator with expertise in software development agreements. The mediation fee, if any, shall be divided equally between the parties. Mediation shall take place within 45 days of the notice, unless otherwise agreed to by the parties in writing.

B. Arbitration. Failing the resolution of their dispute by mediation, any dispute or claim arising out of this Agreement or any resulting transaction shall be decided by neutral, binding arbitration, and not by court action except as provided by Michigan law for judicial review of arbitration proceedings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties to the arbitration shall have the right to discovery in accordance with the Michigan Court Rules .The arbitrator shall be knowledgeable with respect to practices in the computer software industry, and shall be agreed on by the parties or appointed by request and according to the procedures of AAA.

The losing party shall pay the AAA fees, the other party’s reasonable attorney’s fees, costs and necessary disbursements. The filing of a judicial action to enforce an order of attachment, receivership, injunction or other provisional remedies shall not constitute a waiver of the right to arbitrate (or mediate) under this (or the preceding) provision. The parties retain the right to apply to a court of competent jurisdiction for a temporary restraining order or preliminary injunction to preserve the status quo or prevent irreparable harm.

8.10 Injunctive Relief : In conjunction with the covenants made in Sections 4.2, 4.6,

5.2 and, the parties acknowledge that breach of any one or more of those covenants would cause irreparable harm for which there is no adequate remedy at law. As such, the parties agree that such a breach may be enjoined by a court of competent jurisdiction.

8.11 Time of the Essence : Time is of the essence in the performance of all obligations under this Agreement. Any performance due hereunder, which would otherwise fall on a Saturday, Sunday or Federal holiday, shall be deemed due on the next business day.