The Terms and Conditions of Marketing Services and Deliverables performed and produced by Blue42 are as defined below:
As used herein and throughout this document:
1.1 “Agreement” means the entire content of this document, the Proposal document(s) (if any), and the SOW, together with any other Supplement, Exhibits, or additional Schedules as may be attached hereto and incorporated herein by reference.
1.2 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.4 “Deliverables” means the services and work product, as mutually agreed upon by Client and Blue42, to be delivered by Blue42 to Client, in the form and media specified in the SOW.
1.5 “Blue42 Tools” means all tools developed and/or used by Blue42 in performing the Services, including, without limitation, pre-existing and newly developed 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.
1.7 “Final Deliverables” means the final versions of Deliverables provided by Blue42 and approved and accepted by Client.
1.8 “Preliminary Works” means all materials including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents, developed by Blue42 and which may or may not be shown and or delivered to Client for consideration.
1.9 “Project” means the scope and purpose of Client’s identified usage of the work product.
1.10 “Services” (or “Blue42’s Services”) means all services and the work product to be provided to Client by Blue42 as described and otherwise further defined in the Deliverables.
1.11 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations.
1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services.
1.13 “SOW” means Statement of Work and/or the agreed upon service deliverables.
2.1 Client Content. Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Blue42 a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Blue42’s performance of the Blue42’s Services and the production of the Deliverables.
2.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Blue42 shall inform Client of all Third Party Materials that may be required to perform the Marketing Services or otherwise integrated into the Final Work. Under such circumstances, Blue42 shall inform Client of any need to license.
2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Blue42 shall assign to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Blue42 as part of the Final Work and Final Deliverables for use by Client. Blue42 shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.
2.4 Assignment of Final Work. Upon completion of the Services, and subject to full payment of all fees, costs and expenses due, Blue42 hereby assigns to Client all rights, title and interest, including without limitation, copyright and other intellectual property rights, in and to the Final Deliverables and the Final Work. Blue42 agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
3.1 In consideration of the Services to be performed by Blue42, Client shall pay to Blue42 fees in the amounts and according to the Payment Terms and Schedule (provided on invoice).
3.2 In the process of creating and in order to complete the Final Work, Blue42 may need to incur expenses including, but not limited to, font licenses, software licenses, stock photography, or other Third Party Materials. Blue42 will make every effort to gain written approval for expenses from Client before incurring them. Unless explicitly specified in SOW, such expenses are not included as part of this Agreement and Blue42 may request reimbursement by Client.
4.1 Timing. Blue42 shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Blue42.
4.2 Acceptance. Client, within 5 business days of receipt of each Deliverable, shall notify Blue42, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Blue42 shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client within said stated time period, the Deliverable shall be deemed accepted.
Client acknowledges that he/she shall be responsible for performing the following in a reasonable and timely manner:
(a) Coordination of any decision-making with parties other than the Blue42;
(b) Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation; and,
(c) Final proofreading pursuant to Provisions.
Blue42 retains the right to reproduce, publish and display the Final Deliverables in Blue42’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses.
Each Party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other Party, including, but not limited to, Preliminary Works (“Confidential Information”). Each Party, its agents and employees shall hold and maintain in strictest confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations pursuant to this Agreement, except as may be required by a court or governmental authority. Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8.1 Independent Contractor. Blue42 is not an employee of Client or any company affiliated with Client. Blue42 shall provide the Services under the general direction of Client, but Blue42 shall determine the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither Party is authorized to act as agent or bind the other Party, except as expressly stated in this Agreement. Blue42 and the Deliverables prepared by Blue42 shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the Parties and the various terms and conditions of this Agreement.
8.2 No Exclusivity. The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the Parties. Client is free to engage others to perform services of the same or similar nature to those provided by Blue42, and Blue42 shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Blue42.
9.1 By Client. Client represents, warrants and covenants to Blue42 that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content; and,
(b) To the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties.
9.2 By Blue42.
(a) Blue42 hereby represents, warrants and covenants to Client that Blue42 will provide Blue42’s Services and produce the Deliverables as identified in a professional manner and in accordance with all reasonable professional standards for such services.
(b) Blue42 further represents, warrants and covenants to Client that
(i) The Final Deliverables shall be the original work of Blue42; and,
(ii) To the best of Blue42’s knowledge, the Final Work provided by Blue42 does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties.
10.1 By Client. Client agrees to indemnify, save and hold safe Blue42 from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, Client shall promptly notify Blue42 in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations. Blue42 shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section.
10.2 By Blue42. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Blue42 agrees to indemnify, save and hold safe Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Blue42’s representations and warranties made, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.
11. TERM AND TERMINATION
11.1 This Agreement shall remain effective until the Services are completed and the Final Deliverables and the Final Work are delivered or all further requests for assistance are terminated.
11.2 This Agreement may remain effective for Services requested in the future if both Parties agree to continue using it, until explicitly terminated by either Party according to Provision 11.3, or Agreement is superseded.
11.3 This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties.
All invoices carry Due upon receipt payment terms.
Payment for invoiced services to Blue42 are payable by check, credit card or ACH Payment.
13.1 Assignment of Work. Blue42 may employ Subcontractors to assist in completing Deliverables. Blue42 assumes responsibility for all Work created by Subcontractors and said Subcontractors are bound by all sections and clauses of this Agreement in a manner consistent with Blue42.
13.2 Modification/Waiver. This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
13.3 Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and Minnesota or the conflict of law provisions of any other jurisdiction.
13.4 Integration. This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of this Agreement.
By their execution, the Parties have agreed to all of the terms and conditions, and has the full authority to bind her/his respective Parties to all of the included terms and conditions.
The Website Standard Terms and Conditions contained on this webpage, shall govern your use of this website, including all pages within this website. These Terms apply in full force and effect to your use of this Website and by using this Website, you expressly accept all terms and conditions contained herein in full. You must not use this Website, if you have any objection to any of these Website Standard Terms And Conditions.
Other than content you own, which you may have opted to include on this Website, under these Terms, Blue42 owns all rights to the intellectual property and material contained in this Website, and all such rights are reserved.
You are expressly and emphatically restricted from all of the following:
publishing any Website material in any media;
selling, sublicensing and/or otherwise commercializing any Website material;
publicly performing and/or showing any Website material;
using this Website in any way that is, or maybe, damaging to this Website;
using this Website in any way that impacts user access to this Website;
using this Website contrary to applicable laws and regulations, or in a way that causes, or may cause, harm to the Website, or to any person or business entity;
engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this Website, or while using this Website;
using this Website to engage in any advertising or marketing;
Certain areas of this Website are restricted from access by you and Blue42 may further restrict access by you to any areas of this Website, at any time, in its sole and absolute discretion. Any user ID and password you may have for this Website are confidential and you must maintain the confidentiality of such information.
In these Website Standard Terms And Conditions, “Your Content” means any audio, video, text, images or other material you choose to display on this Website. With respect to Your Content, by displaying it, you grant Blue42 a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media.
Your Content must be your own and must not be infringing on any third party’s rights. Blue42 reserves the right to remove any of Your Content from this Website at any time, and for any reason, without notice.
This Website is provided “as is,” with all faults, and Blue42 makes no express or implied representations or warranties, of any kind related to this Website or the materials contained on this Website. Additionally, nothing contained on this Website shall be construed as providing consult or advice to you.
In no event will Blue42, nor any of its officers, directors and employees, be liable to you for anything arising out of or in any way connected with your use of this Website, whether such liability is under contract, tort or otherwise, and Blue42, including its officers, directors and employees shall not be liable for any indirect, consequential or special liability arising out of or in any way related to your use of this Website.
You hereby indemnify to the fullest extent Blue42 from and against any and all liabilities, costs, demands, causes of action, damages and expenses (including reasonable attorney’s fees) arising out of or in any way related to your breach of any of the provisions of these Terms.
If any provision of these Terms is found to be unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and such provisions shall be deleted without affecting the remaining provisions.
Blue42 is permitted to revise these Terms at any time as it sees fit, and by using this Website you are expected to review such Terms on a regular basis to ensure you understand all terms and conditions governing use of this Website.
Blue42 shall be permitted to assign, transfer, and subcontract its rights and/or obligations under these Terms without any notification or consent required. However, you shall not be permitted to assign, transfer, or subcontract any of your rights and/or obligations under these Terms.
These Terms, including any legal notices and disclaimers contained on this Website, constitute the entire agreement between Blue42 and you in relation to your use of this Website, and supersede all prior agreements and understandings with respect to the same.
These Terms will be governed by and construed in accordance with the laws of the State of Minnesota, and you submit to the non-exclusive jurisdiction of the state and federal courts located in Minnesota for the resolution of any disputes.