Terms of Service
Last modified: January 1st, 2022
These Terms of Service (the “Agreement”) available at https://www.wearewhim.com/termsofservice govern the provision of services by WHIM DETROIT, LLC (hereinafter “WHIM”), a Michigan limited liability company, to Client (hereinafter “Client”) (each a “party” and collectively, the “parties”). By engaging WHIM for services or otherwise accepting services provided by WHIM, Client agrees to be bound by this Agreement.
- Scope. The scope of this Agreement encompasses any and all Services provided by WHIM to Client during the Term of this Agreement.
- Quotations and Estimates. Any estimate or quotations provided by WHIM, whether made orally or in writing, are provided solely as a courtesy for budgetary purposes only and are non-binding.
- Statements of Work. During the Term of this Agreement, WHIM may provide Services pursuant to one or more mutually agreed upon Statements of Work (“SOW”) in the form of Exhibit A (or other form generally understood between the parties to describe certain work to be performed). A SOW shall be valid and enforceable under the terms of this Agreement upon being accepted by the parties and, upon its acceptance, shall be incorporated into this Agreement.
- Services. Pursuant to a SOW, WHIM will provide Client with such Services as may be specified, which may include, but are not limited to, custom technology solutions, computer software and hardware design, architecture, and development, hardware and software system integration, hosting, help desk support, testing and debugging, product engineering, implementation, consulting, and training (collectively, the “Services”).
- Joint Efforts; Client and Third-Party Responsibilities; Expectations.
5.1 Joint Efforts. Client acknowledges that WHIM’s ability to perform its obligations hereunder is contingent upon Client’s cooperation, which may include Client supplying certain access, information, specifications, feedback, and other items as WHIM may determine. Client hereby agrees to provide such cooperation in a timely manner upon WHIM’s reasonable request.
5.2 Client and Third-Party Responsibilities. WHIM’s performance may be subject to the timely satisfaction of certain Client and/or third-party responsibilities as specified on an applicable SOW (“Client Responsibilities”). WHIM takes no responsibility for delays or failures to perform or deliver resulting from a failure relating to Client Responsibilities.
5.3. Expectations. WHIM’s performance is conditioned on the presence and continuation of certain expectations as may be specified on an applicable SOW (“Expectations”). WHIM takes no responsibility for delays or failures to perform or deliver resulting from changes in Expectations.
- Work Product. “Work Product” means the tangible results of Services, including source code and schematics, as well as any ideas, concepts, processes, discoveries, developments, formulae, information, materials, improvements, designs, artwork, content, software programs, other copyrightable works, and any other work product created, conceived or developed by WHIM, alone or jointly with others, in the course of performing the Services hereunder or as a result of providing such Services, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection, and any and all related patents, patent applications, trademarks, copyrights, trade secrets, and other proprietary rights.
6.1 Limited License. Upon its creation by WHIM, WHIM hereby grants Client an exclusive (except as to WHIM), worldwide, nontransferable, revocable license to use, reproduce, and distribute Work Product for Client’s internal business purposes only. WHIM reserves the right to revoke such license upon a breach of this Agreement by Client.
6.2 Assignment. Upon Client’s acceptance of any Work Product and WHIM’s receipt of payment in full, WHIM shall assign to Client all right, title and interest in and to all such Work Product created hereunder, except as is otherwise provided in this Agreement. In the event Client, in its sole discretion, determines to not apply for a patent concerning any Work Product developed hereunder and desires to grant WHIM permission to pursue a patent on any such Work Product, the terms and conditions by which WHIM may pursue such a patent shall be set forth in a separate written agreement between the parties.
- Preexisting Intellectual Property. Notwithstanding anything in this Agreement to the contrary, any and all routines, methodologies, processes, libraries, tools, or technologies created, adapted or used by WHIM in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the exclusive property of WHIM, and Client shall have no interest in or claim to the Development Tools, except as may be necessary to exercise its rights in any Work Product. In addition, notwithstanding any provision in this Agreement to the contrary, WHIM shall be free to use any ideas, concepts, or know-how developed or acquired by WHIM during the performance of this Agreement to the extent obtained and retained by WHIM’s personnel as impression and general learning. Nothing in this Agreement or otherwise shall be construed to preclude WHIM from using the Development Tools for use with third parties or for the benefit of WHIM.
- Fees. WHIM’s fees, including any hourly rates, shall be as described in an applicable SOW or Rate Card. If WHIM provides any service according to an hourly rate, WHIM reserves the right to change its hourly rate(s) upon providing Client with sixty (60) days written notice prior to such change taking effect.
- Subcontractors. WHIM reserves the right to utilize subcontractors in the performance of its obligations under this Agreement in its sole discretion without notice.
- Change Order. If the parties mutually agree to make changes to a SOW, they shall issue a Change Order. A Change Order shall be valid and enforceable under the terms of this Agreement upon being signed by the parties and, upon its acceptance, shall be incorporated into this Agreement.
- Deposit; Payment Terms; Fast Pay Discount.
11.1 Deposit. Upon the execution of a SOW (or a Change Order that involves additional cost or expense), WHIM may require Client to pay an upfront deposit to be applied against future billings on the SOW (the “Deposit”). Upon exhaustion of the Deposit, WHIM reserves the right to request subsequent Deposits of equal amounts before performing additional work. If any portion of a Deposit remains unbilled upon the completion of a SOW or upon termination of this Agreement in accordance with its terms, Client shall be entitled to apply such amount towards another SOW or to receive a refund of such amount within thirty (30) days of requesting such refund in writing. Any refunds not requested by Client or applied to another SOW within twelve (12) months of such time shall be deemed earned by WHIM and no longer subject to refund.
11.2 Payment Terms; Invoicing. Except as otherwise provided in an applicable SOW, any amounts billed for Services performed under a SOW (not covered by a Deposit) shall be due within thirty (30) days of invoice – Net 30. WHIM reserves the right to stop work to Client as a result of late payment. Past due amounts may be subject to up to 1.5% annual interest to be applied in WHIM’s discretion. Any payments more than sixty (60) days past due shall be deemed a material breach of this Agreement by Client. Whim may invoice client for services performed according to a schedule Whim deems appropriate.
11.3 Fast Pay Discount. WHIM may, in its sole discretion, offer Client a percentage discount for faster payment. In such case, such discount will be provided on the applicable invoice.
- Support Services. Upon mutual agreement, the parties may enter into a Support Agreement (“SA”) in the form of Exhibit C, which shall provide for Support Services to be provided by WHIM on a subscription basis. A SA shall be valid and enforceable under the terms of this Agreement upon being accepted by the parties and, upon such acceptance, shall be incorporated into this Agreement.
- Support Term; Payment for Support Services. Following the execution of a SA, Support Services shall commence on the Start Date specified in the SA and shall continue on a month-to-month basis until either this Agreement is terminated according to its terms or the SA is cancelled by a party by giving written notice of cancellation to the other party, whichever comes first. Payment for Support Services shall be due at the beginning of each month that Support Services are to be provided. If Client fails to timely pay for Support Services, WHIM may deem the SA to either be lapsed or cancelled.
- Qualified Expenses; Support and Maintenance.
14.1 Qualified Expenses. Client shall reimburse WHIM for reasonable out-of-pocket and incidental expenses (collectively, “Expenses”), including those that are project related, i.e. software as a service (SaaS) fees, hosting fees, etc., and those that are travel related, i.e. transportation, lodging, mileage, meals, and WHIM’s own time in transit, incurred by WHIM in performing this Agreement. WHIM shall obtain Client’s prior authorization before incurring any individual expense. All Expenses not paid directly by Client shall be paid within thirty (30) days of invoice.
14.2 Support and Maintenance. Any support or maintenance, including training, shall be billed to Client on a time and material basis at WHIM’s then applicable hourly rates for such services. WHIM reserves the right to add a reasonable markup to any material supplied.
- Taxes. Client shall pay, reimburse, and/or hold WHIM harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income taxes, which are levied or imposed by reason of this Agreement.
- Form of Payment. Unless otherwise agreed, all payments made to WHIM under this Agreement shall be in United States currency and paid in the form of company check, cashier’s check, electronic wire transfer, or other method as may be mutually agreed.
- Timing of Delivery. Regardless of any specific timing or delivery schedules or estimates provided in an applicable SOW or Change Order, Client acknowledges that the Services rendered hereunder are of a complex nature and that occasional delays in delivery sometimes occur. Minor delays in delivery by WHIM shall not constitute a breach of this Agreement. If WHIM expects a delay in delivery to occur, WHIM will make commercially reasonable efforts to keep Client apprised of such delay.
- Acceptance; Right to Cure. Within thirty (30) days of the delivery of any Services provided hereunder, Client shall notify WHIM of any dissatisfaction it may have with WHIM’s performance relating thereto, including with respect to any “acceptance testing,” otherwise, Client’s acceptance of such Services shall be presumed and any claim(s) Client may have concerning such matter shall be deemed discharged and waived.
Within thirty (30) days of WHIM receiving notice of any such dissatisfaction, WHIM shall have the right to (1) object to or provide an explanation concerning such dissatisfaction; (2) resolve any such dissatisfaction through as many separate attempts as may be necessary within thirty (30) days; and/or (3) refund some or all of Client’s payment or payments related to such Services to Client’s satisfaction to resolve the matter. Upon accepting any such resolution, the matter shall be deemed finally settled and Client agrees fully release and forever discharge WHIM from and against any and all such claims, actions, demands, rights, causes of action, and liabilities, whether in law or in equity, with respect to such matter. The parties agree that any statements or admissions by WHIM, whether made orally or in writing, in an attempt to resolve or settle a matter shall be considered “settlement negotiations” as contemplated under Rule 408.
- Term; Renewal. The term of this Agreement shall be twelve (12) months from the Effective Date (plus any extension necessary for the completion of any work in process under a SOW), after which this Agreement shall automatically renew on its anniversary for additional one (1) year terms until terminated in accordance with this Agreement.
- Termination. Either party may immediately terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is acquiesced in and not dismissed within sixty (60) days or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties, or obligations under this Agreement. Either party may terminate this Agreement for any reason or no reason at all by providing sixty (60) days written notice to the other party. Termination shall not relieve Client of its obligation to pay any amount owed under this Agreement.
- Confidentiality. Unless the parties otherwise agree in writing, no information disclosed by Client, either directly or indirectly, shall be considered confidential or proprietary and Client agrees to release WHIM from any claim or liability relating thereto.
- Employee Nonsolicitation. Client agrees not to solicit WHIM’s employees or subcontractors during the Term of this Agreement and for a period of one (1) year thereafter without the prior written permission of WHIM. Client acknowledges that WHIM provides a valuable service by identifying and assigning personnel for Client’s work and further acknowledges that Client would receive substantial additional value, and WHIM would be deprived of the benefits of its work force, if Client were to employ or retain WHIM’s personnel after they have been introduced to Client by WHIM.
- Disclaimer. EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN OR IN AN APPLICABLE SOW, ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WHIM DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WHIM DOES NOT WARRANT THE WORK AND SERVICE(S) PROVIDED HEREUNDER WILL BE UNINTERRUPTED AND/OR ERROR FREE. PROVDIER DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AGAINST LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE. WHIM HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO COMPLIANCE WITH ANY LAW, REGULATION, OR COMPLIANCE REQUIREMENT, INCLUDING, BUT NOT LIMITED TO, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), THE GRAMM-LEACH-BLILEY ACT (GLBA), THE EUROPEAN UNION GENERAL DATA PROTECTION REGULATION (GDPR), THE CALIFORNIA CONSUMER PRIVACY ACT (CCPA), AND ANY OTHER SIMILAR REQUIREMENT. WHIM HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT, OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE PROVISIONED BY THIRD PARTIES. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF CLIENT, AND DO NOT EXTEND TO ANY THIRD PARTY.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WHIM BE LIABLE TO CLIENT OR ANY THIRD PARTY, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. WHIM’S TOTAL POSSIBLE LIABILITY UNDER THIS AGREEMENT SHALL BE STRICTLY LIMITED TO DIRECT DAMAGES LIMITED TO THE LESSER OF $25,000.00 OR THE TOTAL AMOUNT CLIENT HAS PAID WHIM ON THE MOST RECENT SOW, IF ANY. CLIENT FURTHER AGREES THAT NO TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER, SHAREHOLDER, BENEFICIARY, EMPLOYEE OR AGENT OF WHIM SHALL BE HELD TO ANY LIABILITY, JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM, DEMAND, JUDGMENT, DECREE, LIABILITY OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT, OR OTHERWISE) ARISING OUT OF THIS AGREEMENT.
- Class Action Waiver. THE PARTIES AGREE THAT ANY DISPUTE SHALL ONLY BE RESOLVED IN THE PARTIES’ RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
- Indemnification. To induce WHIM to enter into this Agreement, Client specifically agrees to indemnify WHIM, its officers, directors, employees, agents, vendors, contractors, associates, and assigns (collectively, “Indemnitees” and each an “Indemnitee”) and pay on demand for the defense of Indemnitee or Indemnitees (including any costs, expenses, and attorneys’ fees) from and against any and all claims, suits, demands, enforcement actions, fines, liabilities, damages, losses, costs and expenses arising out of or in any way related to this Agreement except as may be the result of WHIM’s own negligence.
- Force Majeur. In no event shall WHIM be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, pandemics, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer (software or hardware) services.
- Information Security. Client is solely responsible for its own information security policies and practices, including for adequately securing any product, service, or system provided or made available by WHIM or otherwise under this Agreement. Client agrees to immediately notify WHIM upon discovering a security threat to WHIM or any information asset or computer system concerning this Agreement. Client agrees to pay WHIM on demand the reasonable costs of addressing and remediating any security threat to WHIM’s systems or environment resulting from Client’s own negligence.
- Legacy Systems and Third-Party Products. Client acknowledges that third-party products, services, technologies, and the like, that may be (collectively “Third-Party Products”) supplied to Client or made available as part of WHIM’s services are subject to the terms and conditions of such third parties and that WHIM takes no responsibility for such Third-Party Products or for any “legacy systems” that WHIM may inherit from or is provided by Client. Accordingly, WHIM takes no responsibility whatsoever for any legacy architecture. Client agrees to assume full responsibility for its compliance with all Third-Party Product licenses, agreements, and terms of service, including that such licenses are properly maintained and abided. WHIM shall not be responsible for and hereby disclaims any and all liability for or relating to Client’s improper or impermissible uses of Third-Party Products and the use of unlicensed, out-of-support, or deprecated software and may deny or limit the provision of service for reasons relating thereto. Client’s use of or access to any Third-Party Products provided under this Agreement shall be strictly limited to and governed by any such agreements, licenses, terms of service, or the like associated with such Third-Party Products. Client’s sole and exclusive remedy concerning a Third-Party Product shall be limited any remedy against that third-party that may be made available by such third party and that under no circumstances will Client look to WHIM for any such remedy.
- Access Rights; Insurance. WHIM, its employees, agents, designees, and assigns shall be permitted access to Customer’s facilities upon reasonable request for the purposes of fulfilling its obligations hereunder. However, Client shall remain responsible for ensuring the security of its facilities and IT systems prior to, during, and following such access. To the extent that WHIM’s personnel may perform work at Client’s premises, Client shall maintain comprehensive general liability insurance, including broad form property damage coverage, with limits of at least one million dollars ($1,000,000) combined single limit for personal injury and property damage for each occurrence.
- 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 WHIM at [email protected] and to Client at Client’s primary email address then on file.
- Effective Date. This Agreement shall be effective as of the date of the engagement letter signed by the parties concerning the provision of WHIM’s services to Client or upon Client’s otherwise engagement of WHIM for its services or Client’s acceptance of services by WHIM.
- Survival. The expiration or termination of this Agreement shall not release Client of its obligation to make any payments owed under this Agreement. Further, the parties agree that the following provisions shall indefinitely survive this Agreement: Section 7 concerning preexisting intellectual property; Section 23 concerning disclaimer; Section 24 concerning limitation of liability; Section 25 concerning class action waiver; Section 26 concerning indemnification; Section 32 concerning notice; and Section 41 concerning governing law, forum selection, expenses and fees. Furthermore, the employee non-solicitation provision set forth in Section 22 shall survive for its respective term as provided in this Agreement.
- Modification. You acknowledge and agree that WHIM may, in its sole discretion, modify this Agreement from time to time, and that modified terms become effective sixty (60) days from the date of such modification. You will be notified of modifications through notifications or posts on https://www.wearewhim.com/termsofservice and/or by direct email communication. Client is responsible for reviewing and becoming familiar with any such modifications. Client’s continued engagement of WHIM after the effective date of the modifications will be deemed acceptance of the modified terms.
- Independent Contractor. The parties agree that WHIM is an independent contractor and not an employee, partner, agent, or joint venture of Client.
- Assignment; Successors and Assigns; No Third-Party Beneficiaries. This Agreement may be assigned by WHIM in its sole discretion upon notice. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, heirs, and assigns. There are no intended beneficiaries other than the parties hereto.
- Waiver. Any waiver or failure to enforce any provision of this Agreement by WHIM on one or more occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any term or other provision of this Agreement is 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.
- Construction. 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.
- 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 state or federal court of competent jurisdiction located in Wayne County, Michigan. Client shall pay on demand WHIM’s expenses and fees (including reasonable attorneys’ fees) incurred by WHIM in enforcing its right to payment under this Agreement.
- Opportunity to Review. Each party hereto acknowledges that it had sufficient time and opportunity to review and consult with legal counsel prior to entering into this Agreement.
- Export Regulation; U.S. Government Rights.
43.1 Export Regulation. The Services/Work Product provided utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services/Work Productor or the software or technology included in the Services/Work Product to, or make the Services/Work Product or the software or technology included in the Services/Work Product accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services/Work Product or the software or technology included in the Services/Work Product available outside the US.
43.2 U.S. Government Rights. Each of the software components that may constitute the
Services/Work Product and Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Services/Work Product and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
- Guaranty. WHIM, in its discretion, may require Client to provide a personal guaranty (“Guaranty”) attached hereto in the form of Exhibit D, which, if so required, shall be entered into contemporaneously with this Agreement and is specifically incorporated into and considered part of this Agreement.
- Entire Agreement. This Agreement, together with any SOW, Change Order, SA, and Guaranty duly entered into hereunder constitute 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.
- Authority. The parties to this Agreement hereby represent and warrant that they are legally authorized to enter into this Agreement and that each has the full power and authority to execute, deliver, and perform this Agreement and has taken all actions required to authorize the execution and delivery of this Agreement.