Case 2:20-cv-00240-JRG Document 51-1 Filed 09/23/20 Page 1 of 7 PageID #: 3434
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`Exhibit 1
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`Case 2:20-cv-00240-JRG Document 51-1 Filed 09/23/20 Page 2 of 7 PageID #: 3435
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`MARSHALL DIVISION
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` Case Action No. 2:20-cv-240
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`MAPLEBEAR INC. DBA INSTACART,
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`CORNERSHOP TECHNOLOGIES, INC.;
`CORNERSHOP TECHNOLOGIES LLC;
`DELIVERY TECHNOLOGIES US, INC.;
`DOES 1-10,
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`Plaintiff,
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`Defendants.
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`v.
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`STIPULATED ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY
`INJUNCTION
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`On July 16, 2020, pursuant to Fed. R. Civ. P. 65, Plaintiff Maplebear Inc. dba Instacart
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`(“Instacart”) moved for a Preliminary Injunction on its claims against Defendants Cornershop
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`Technologies, Inc., Cornershop Technologies LLC, and Delivery Technologies US, Inc.
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`(together, “Cornershop”) for violations of the Computer Fraud and Abuse Act (“CFAA”), 18
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`U.S.C. § 1030, et seq., the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201,
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`et seq., copyright infringement, and related violations of Texas statutory and common law.
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`Instacart further moved for an Order of Impoundment as authorized by the DMCA, 17 U.S.C.
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`§ 1203(b)(2), and the Copyright Act, 17 U.S.C. § 503(a)-(b).
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`The parties wish to resolve Instacart’s motion and therefore stipulate to entry of the
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`following Order.
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`Case 2:20-cv-00240-JRG Document 51-1 Filed 09/23/20 Page 3 of 7 PageID #: 3436
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`DEFINITIONS
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`1.
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`For the purposes of this Order, the term “scraping” shall refer to any system,
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`method, process, or technique by which a computer, computer system, application programming
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`interface, computer program, application, or other logical operation extracts, copies, translates,
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`makes a derivative from, or otherwise records data from any third-party website or application.
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`2.
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`For the purposes of this Order, “affiliate” shall refer to any person or entity
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`related to, associated with, contracted with, partnered with, in a joint venture with, owning,
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`owned by, operated by, under common control with, under the direction of, or with the ability to
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`direct or control Cornershop or any parent or subsidiary thereof, as well as any current and
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`former principal, officer, director, manager, general partner, employee, agent, servant, vendor,
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`parent company, or subsidiary of any such person or entity, including that person or entity’s
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`advisors, consultants, contractors, attorneys, accountants, predecessors, successors, assigns,
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`heirs, administrators, executors, supervisors, or representatives.
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`3.
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`For the purposes of this Order, (a) “platform” shall refer to a party’s owned or
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`operated technology platform, whether accessed by a web-based browser or phone-based
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`application, that processes customer orders placed on virtual retailer storefronts, as well as the
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`application through which the independent service providers with whom a party contracts using
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`the platform receive those orders; and (b) “Instacart platform” shall mean any such platform that
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`is visibly identified as, disclosed to Cornershop, or otherwise known by Cornershop to be owned
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`or operated by Instacart or any entity that Instacart controls, is controlled by, or is under common
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`control with Instacart, directly or indirectly.
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`4.
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`Use of the singular also includes the plural and vice-versa, even for the above
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`defined terms.
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`5.
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`The words “or” and “and” shall be read in the conjunctive and in the disjunctive
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`wherever they appear, and neither of these words shall be interpreted to limit the scope of this
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`Order.
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`ORDER FOR PRELIMINARY INJUNCTION
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`IT IS HEREBY ORDERED that Cornershop and its officers, agents, servants,
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`employees, and attorneys, and other persons who are in active concert or participation with any
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`of the foregoing, are hereby ENJOINED from:
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`1.
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`Displaying, publishing, reproducing, or distributing any copies or derivatives of
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`(i) any of Instacart’s copyrighted images, including without limitation those images identified in
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`Exhibit S of the Romaniuk Declaration attached to Instacart’s Motion for Preliminary Injunction;
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`and (ii) any of Instacart’s package information, file names, metadata, product descriptions,
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`pricing information, catalog information, and data;
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`2.
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`Scraping, or facilitating the scraping of, any Instacart platform, or otherwise
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`copying or facilitating the copying of portions of any Instacart platform, in excess of the license
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`granted by the Terms of Service posted thereon;
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`3.
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`Otherwise accessing and using any Instacart platform in excess of the license
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`granted by the Terms of Service posted thereon;
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`4.
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`Using or displaying any original or altered computer files, data, or other
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`information including but not limited to images, package information, file names, metadata, and
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`catalog information such as pricing, product information, and product availability, originating
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`from scraping, at any time, any Instacart platform, on any platform operated by Cornershop or its
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`affiliates.
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`5.
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`For avoidance of doubt, the foregoing paragraphs shall not prohibit, by a natural
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`person, the viewing, use of, or interaction with an Instacart platform through a browser or
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`Instacart-provided mobile application.
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`6.
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`Nothing in this Stipulated Order shall prevent Cornershop, Instacart, or its
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`attorneys of record, expert witnesses, and others acting on behalf or for the benefit of Cornershop
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`or Instacart from copying, accessing, or using any Instacart platform or any information or
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`content therein solely for purposes of litigating this matter.
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`7.
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`Cornershop hereby confirms, represents, and warrants that it has not provided,
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`transferred, transmitted, or otherwise given any of Instacart’s copyrighted images or images
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`scraped from Instacart’s platform, including without limitation those images identified in Exhibit
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`S of the Romaniuk Declaration attached to Instacart’s Motion for Preliminary Injunction, or any
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`of Instacart’s package information, file names, metadata, product descriptions, pricing
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`information, catalog information, and data to any affiliate (for the avoidance of doubt, other than
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`for purposes consistent with paragraph 6 above and other than through “posting” to the Internet
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`as alleged in Instacart’s complaint or as disclosed in Cornershop’s filings in this litigation).
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`8.
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`Cornershop hereby confirms, represents, and warrants it has complied with the
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`foregoing and that it has changed its business procedures to ensure compliance with this Order.
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`9.
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`Except insofar as necessary to enforce the terms of this Stipulated Order, nothing
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`in this Stipulated Order shall be deemed to be or used as an admission or waiver of any claim or
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`defense.
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`IT IS FURTHER ORDERED that Cornershop will allow The Berkeley Research Group
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`(“BRG”), at Cornershop’s expense, to forensically image all Instacart computer files, data, and
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`information that Cornershop or any entity acting in active concert with Cornershop scraped or
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`copied from an Instacart platform, that are in Cornershop’s possession, custody, or control.
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`Those Instacart files, data, and information include, but are not limited to, the images identified
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`in Exhibit S of the Romaniuk Declaration attached to Instacart’s Motion for Preliminary
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`Injunction as well as Instacart’s images, file names, package information, product descriptions,
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`pricing information, catalog information, and metadata. After these materials have been
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`forensically imaged and preserved, Cornershop will—under the supervision of BRG—remove
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`and delete all such originals, copies, or derivatives of Instacart’s files, data, and information from
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`all of the computers, systems, servers, and files of Cornershop. Upon written certification that it
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`has deleted such information, Cornershop shall make its computers, data, systems, servers, and
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`files available for inspection by BRG to the extent necessary to verify that it has complied with
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`this provision in this Order.
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`IT IS FURTHER ORDERED that if Instacart has good cause to believe that Cornershop
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`is not in compliance with the terms of this Order, Instacart may request from Cornershop or
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`apply to the Court for, as set forth below, permission to have BRG conduct an audit of
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`Cornershop’s systems, servers, and data stores. Instacart shall use reasonable efforts to inform
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`Cornershop, in writing (via email or another method), of its intention to initiate an audit based on
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`Instacart’s good-faith belief that Cornershop has failed to comply with the terms of this Order.
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`This forensic audit will consist of a combination of an on-site and in person audit as well as a
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`remote audit. As part of the forensic audit, Cornershop will make available the necessary
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`personnel and will provide all necessary access to its data, systems, and servers to enable the
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`auditor to perform an audit. For example, and without limitation, the forensic audit may include
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`providing the auditor with credentials to access Cornershop’s AWS environment that is
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`understood to house the data and images that comprise product images, file names, and/or
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`listings on its platform. In the event the auditor determines that Cornershop is not in compliance
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`with the terms of this Order, Cornershop shall bear all cost associated with the auditor; in the
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`event the auditor does not make that determination, Instacart shall bear such cost.
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`IT IS FURTHER ORDERED that, should Instacart assert a request to initiate an audit
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`based on Instacart’s good-faith belief that Cornershop has failed to comply with this Order,
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`Cornershop shall have five (5) calendar days to serve a written response informing Instacart it
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`does not consent to the audit. Should Cornershop fail to serve the written response within that
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`time, Cornershop must submit to the audit provided for by this Order. If Cornershop timely
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`serves a written response and does not consent to the audit, the parties will thereafter meet and
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`confer. In the event that they are unable to resolve the dispute, Instacart shall have fourteen (14)
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`calendar days thereafter, in the absence of an extension agreed upon by the parties or entered by
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`the Court, to file a motion to conduct an audit pursuant to this Order.
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`Any inspection by BRG pursuant to this Order shall be conducted pursuant to appropriate
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`confidentiality restrictions to protect Cornershop’s proprietary information.
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`The Court retains jurisdiction to enforce, modify, extend, or terminate this Order as the
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`equities may require upon a proper showing. This provision is without prejudice to any
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`challenge to venue or jurisdiction.
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`IT IS SO ORDERED.
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