METHOD OF AUTHORIZATION. Client may authorize Blue Sky Sessions, Inc. (“Blue Sky Sessions”) to proceed with work either by signing a Blue Sky Sessions “Authorization” form or by issuance of an acknowledgement, confirmation, purchase order or other communication. Regardless of the method used, these Terms and Conditions shall prevail as the basis of Client’s authorization to Blue Sky Sessions. Blue Sky Sessions objects to and shall not otherwise be bound by any additional or different terms, whether printed or otherwise, in Client’s purchase order or in any other communication from Client to Blue Sky Sessions. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing signed by an authorized representative of Blue Sky Sessions, to the extent they differ from, modify, add to or detract from this agreement, shall not be binding on Blue Sky Sessions. No affirmation, representation or warranty concerning the goods or services to be provided by Blue Sky Sessions made by an employee, agent, salesperson, consultant or representative of Blue Sky Sessions shall be binding on Blue Sky Sessions unless the affirmation, representation or warranty is specifically included with this written agreement. There are no agreements, promises or understandings, either verbal or written, that are not fully expressed herein.
2. HOURLY BILLING RATES. Unless otherwise provided in this agreement, Client shall compensate Blue Sky Sessions for its services at Blue Sky Sessions’s hourly billing rates in effect at the time the services are provided, as set forth in Blue Sky Sessions’s “Fee Schedule.” A copy of this “Fee Schedule” shall be made available to Client at Client’s request.
3. REIMBURSABLE EXPENSES. Unless otherwise provided in this agreement, Client shall compensate Blue Sky Sessions for all costs and expenses incurred for or on behalf of Client, including but not limited to government fees, necessary transportation costs (including mileage at Blue Sky Sessions’s current rate for service vehicles and automobiles), meals and lodging, special equipment services, postage and delivery charges, telephone and fax charges, copying, printing and binding charges, and outside technical or professional services.
4. COST ESTIMATES. Any cost estimates provided by Blue Sky Sessions are estimates only, and not guarantees, nor are they intended to serve as maximum or fixed fee quotations. The ultimate cost of the project may be more or less than the amount estimated.
5. PROFESSIONAL STANDARDS. With respect to its services, Blue Sky Sessions shall be responsible to the generally accepted standards of ordinary and reasonable skill and care usually exercised by other practicing professional technicians and consultants at the time and location such services are rendered. No other warranty or guarantee of any type or nature, express or implied, is given or intended.
6. SUBCONTRACTORS. Blue Sky Sessions may, in its sole discretion, engage subcontractors on behalf of Client to perform any portion of the services to be provided by Blue Sky Sessions hereunder, and Client agrees that Blue Sky Sessions shall not be responsible for, or in any manner guarantee, the performance of such subcontractors, nor shall Blue Sky Sessions be liable for any negligent acts, errors, or omissions of such subcontractors.
7. PRODUCT DELIVERY. All delivery dates are estimated, not guaranteed. Client releases Blue Sky Sessions from liability for any damages or losses arising out of or resulting from any delay in shipment or delivery. Prices for any goods or product shipped are F.O.B. shipping, and exclude all loading, unloading, handling and other charges incidental to transportation, unless otherwise stated. Client assumes all risk of loss of goods or product upon delivery by Blue Sky Sessions to the carrier. Client shall have 15 days from receipt to inspect the product and to return to Blue Sky Sessions any nonconforming goods. All returns shall be at Client’s sole cost, expense, and risk of loss, including transportation, handling and insurance, and shall be in its original packaging and in saleable condition, and shall be subject to Blue Sky Sessions’s standard restocking fee. Notwithstanding the foregoing, Blue Sky Sessions shall have no obligation to accept returns of software once its original packaging has been opened, and such software shall be deemed to have been accepted by Client notwithstanding any defect or nonconformity. Client warrants that all goods returned to Blue Sky Sessions will be in at least as good as condition as that in which they were delivered to Client.
8. FORCE MAJEURE. Blue Sky Sessions shall not be responsible or liable for any delay or failure to deliver product, or to perform services, which directly or indirectly results from or is contributed to by any fire, flood, explosion, strike, accident, foreign or domestic embargo, seizure, act of God, insurrection, war, the adoption or enactment of any law, ordinance, regulation, ruling or order directly or indirectly interfering with or rendering or burdensome the delivery or performance hereunder, or the lack of usual means of transportation, whether or not beyond Blue Sky Sessions’s control.
9. WARRANTY EXCLUSION. WITH RESPECT TO ITS SALE OF GOODS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BLUE SKY SESSIONS MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF SELF-DEFENSE FOR A PARTICULAR PURPOSE. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT THE ONLY WARRANTIES APPLICABLE TO THE GOODS DELIVERED HEREUNDER ARE THOSE, IF ANY, MADE BY THE MANUFACTURER.
10. PAYMENT. Invoices will be issued on a monthly basis, or upon delivery of product or completion of service, whichever occurs sooner, payable upon receipt unless otherwise agreed. Interest at 12% per period (but not exceeding the maximum rate allowed by law) shall be payable on all amounts not paid within 30 days from the date of invoice, payment thereafter to be applied first to accrued interest and then to the principal unpaid amount. Any attorney’s fees, collection agency costs, or other cost incurred in collecting any delinquent amounts shall be paid by Client. Client also agrees to pay, on a current basis, any sales or other taxes pertaining to the products sold or services performed. In addition to any other remedies Blue Sky Sessions may have, Blue Sky Sessions shall have the absolute right to cease performing any further services or shipping additional product in the event the payment has not been made on a current basis.
11. TERMINATION. Either Client or Blue Sky Sessions may terminate this agreement at any time and for any reason by giving written notice to the other party. In the event of termination by Client, Client shall pay Blue Sky Sessions in full for all product shipped and all services performed prior to the effective date of the termination.
12. CONFIDENTIAL INFORMATION. Client agrees to keep confidential, and to not disclose to any third party without the prior written consent of Blue Sky Sessions, any Blue Sky Sessions information which is confidential or proprietary, or which constitutes a trade secret, including without limitation any of Blue Sky Sessions’s pricing information. Client agrees that, except as otherwise expressly provided herein, there is no obligation on the part of Worksighed, either express or implied, to maintain the confidentiality of any of Client’s information.
13. DATA LOSS. Blue Sky Sessions shall not be responsible for, and Client hereby forever releases and discharges Blue Sky Sessions from any liability from, any data loss due to equipment failure or arising from or related to the work or services performed by Blue Sky Sessions or its employees, agents or subcontractors.
14. LIMITATION OF LIABILITY. To the fullest extent permitted by law, Blue Sky Sessions’s total liability to Client for any cause or combination of causes, whether arising out of claims based upon contract, warranty, negligence, strict liability or otherwise is, in the aggregate, limited to an amount no greater than the amounts paid by Client to Blue Sky Sessions under this agreement. In no event shall Blue Sky Sessions be liable for any consequential, incidental, exemplary, special, or punitive damages of any type or nature, including without limitation any damages for loss of profits, business or revenue.
15. INDEMNIFICATION. Client agrees to defend, indemnify, and hold Blue Sky Sessions harmless from any claim, liability or defense costs for damage, injury or loss sustained by any party arising or allegedly arising from, or related to, Blue Sky Sessions’s performance of services hereunder, including, without limitation any claim by an employee or agent of Client alleging an invasion of privacy; provided, however, that Client shall not be obligated to defend indemnity or hold Blue Sky Sessions harmless for any damage, injury or loss caused solely by the gross negligence or willful misconduct of Blue Sky Sessions.
16. LEGAL EXPENSES. In the event of a claim by Client against Blue Sky Sessions, at law or otherwise, for any alleged error, omission or other act arising out of the performance of its services or the delivery of product hereunder, and to the extent Client fails to prove such claim, then Client shall pay all costs, including attorney’s fees, incurred by Blue Sky Sessions in defending itself against the claim.
17. OWNERSHIP OF WORK PRODUCT. Blue Sky Sessions shall remain the owner of all reports and other material provided to Client, whether in paper, electronic or magnetic form. Client shall be authorized to use the copies provided by Blue Sky Sessions only in connection with the work being provided by Blue Sky Sessions hereunder, or with the prior express written consent of Blue Sky Sessions. Any use or reuse by Client or others for any purpose whatsoever shall be at Client’s risk and full legal responsibility, without liability to Blue Sky Sessions.
18. LIMITATIONS PERIOD. Any action by Client arising out of or relating to this agreement or the services performed or product delivered by Blue Sky Sessions, whether for breach of contract, breach of warranty, negligence, tort, or otherwise, must be commenced within one year after the cause of action has accrued.
19. NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries, whether actual, intended or implied, under this agreement. This agreement is solely for the benefit of Blue Sky Sessions and Client and their respective successors and permitted assigns.
20. GOVERNING LAW AND JURISDICTION. This agreement shall be governed, construed and interpreted under the laws of the State of Michigan. Client agrees that the courts of Ottawa County, Michigan and/or the U.S. District Court for the Western District of Michigan shall have jurisdiction and venue over Client and any claims arising from or related to this agreement.
21. ASSIGNMENT. No right or interest in this agreement shall be delegated or assigned by Client without the prior written permission of Blue Sky Sessions. Any attempt at such assignment or delegation shall be void unless made in conformity with this section.
22. WAIVER. No claim or right arising out of breach of this agreement can be waived unless the waiver is supported by consideration and is in writing signed by the party against whom it is asserted.
22. EXPORT COMPLIANCE. Client represents and covenants that all hardware and software supplied by Blue Sky Sessions to Client hereunder, and all applications and uses thereof, are and will be utilized by Client solely within the United States, and not for export. Client further represents and acknowledges that it is the intended end-user of all product supplied by Blue Sky Sessions under this agreement.
WEBSITE DEVELOPMENT ADDENDUM
This Website Development Addendum (“Addendum”) is an addendum to, and is hereby made a part of, the proposal and agreement between (“Client”) and Blue Sky Sessions, Inc., a Michigan limited liability company (“Blue Sky Sessions”) to which this Addendum is attached (the entire agreement between the parties, including without limitation the proposal and agreement and this Addendum, being hereinafter collectively referred to as the “Agreement”).
1. Warranties and Representations. Client represents and warrants to Blue Sky Sessions that (a) Client has the power and authority to enter into this Agreement; (b) all content and materials which Client has provided or will be providing to Blue Sky Sessions under this Agreement (the “Content and Materials”) are original except for material in the public domain and are owned exclusively by Client or properly licensed to Client by the copyright owners thereof; (c) the Content and Materials do not contain any offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory content, any pornographic or obscene content, or any graphic violence or appear to endorse or be supportive of any unlawful behavior or conduct; (c) the Content and Materials do not infringe any trade name, trademark, trade secret, or copyright; and (e) the Content and Materials do not invade or violate any right of privacy, personal or proprietary right, or other common law or statutory right. Client agrees to defend, indemnify, and hold harmless Blue Sky Sessions, its members, managers, employees and agents for any losses, costs, damages, liabilities, and expenses (including attorneys fees and court costs) arising out of or relating to any breach of these warranties and representations.
2. Ownership by Client. All documents, text, photographs, video, pictures, animation, sound recordings, computer programs, and all other works of authorship provided by Client to Blue Sky Sessions during the term of the parties’ Agreement, together with all images, likenesses, voices, and other characteristics contained therein (collectively, the “Client Works”) shall remain the property of Client and its licensors. Client shall also own the web page work product produced by Blue Sky Sessions as part of its services herein to the extent, and only to the extent, that such work product is created using HTML (the “HTML Pages”). Client hereby grants to Blue Sky Sessions the non-exclusive rights and licenses to the Client Works and HTML Pages that are necessary or appropriate to create, modify, distribute, and display the website and to otherwise perform the services under the Agreement.
3. Ownership by Blue Sky Sessions. Other than the Client Works and HTML Pages, all documents, text, photographs, video, pictures, animation, sound recordings, computer programs, and all other works of authorship provided by Blue Sky Sessions or its licensors under this Agreement, together with all images, likenesses, voices, and other characteristics contained therein (collectively, the “Blue Sky Sessions Works”) shall remain the property of Blue Sky Sessions and its licensors. Client acknowledges that Blue Sky Sessions has created, acquired or otherwise has rights in, and may in connection with the performance of services hereunder, employ, provide, modify, create, develop, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques, including without limitation methodologies, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen design; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems (all of the foregoing being referred to herein as “Blue Sky Sessions Technology”). To the extent that Blue Sky Sessions utilizes any of its property, including without limitation the Blue Sky Sessions Technology or any hardware or software of Blue Sky Sessions in connection with the performance of its sources hereunder, such property shall remain the property of Blue Sky Sessions and Client shall acquire no right or interest in such property.
4. License. Blue Sky Sessions hereby grants to Client a worldwide, non-transferable, non-exclusive, perpetual, royalty-free license for Client to use, modify, copy, transfer and maintain the deliverables solely in conjunction with Client’s operation, maintenance, and updating of the Site.
5. Reservation of Rights. Nothing in the parties’ Agreement shall be construed as precluding or limiting in any way the right of Blue Sky Sessions to provide consulting or other services of any kind or nature whatsoever to any person or entity as Blue Sky Sessions in its sole discretion deems appropriate. In addition, and notwithstanding anything in the Agreement to the contrary, the parties acknowledge and agree that (a) Worksighed will own all right, title, and interest in and to the Blue Sky Sessions Technology, including without limitation any and all rights under copyright, patent or other intellectual property laws; and (b) Blue Sky Sessions may employ, modify, disclose, and otherwise utilize the Blue Sky Sessions Technology including, without limitation, providing services or creating programming or materials for other customers.
6. Nonsolicitation. Client will not, either directly or indirectly (except through Blue Sky Sessions) solicit, hire or contract with any employee or consultant placed with Client by Blue Sky Sessions during the term of the Agreement and for a period of one year thereafter. This provision will survive the expiration or termination of the Agreement and will bind Client and its legal representatives, successors, and permitted assigns.
7. Warranty of Services. Blue Sky Sessions warrants that all services provided pursuant to the Agreement will be performed in accordance with the general standards of the industry. THE FOREGOING EXPRESSED LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR SELF-DEFENSE FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE. IN NO EVENT WILL BLUE SKY SESSIONS BE LIABLE TO CLIENT FOR ANY AMOUNT IN EXCESS OF THE FEES PAID HEREUNDER.
8. Client Obligations. Client acknowledges that Blue Sky Sessions’s ability to deliver the services hereunder is dependent upon Client’s full and timely cooperation with Blue Sky Sessions, as well as the accuracy and completeness of any information and data Client provides to Blue Sky Sessions. Therefore, Client will use reasonable efforts to (a) provide Blue Sky Sessions with access to, and use of, all information, data, documentation, computer time, facilities, working space and office services deemed necessary by Blue Sky Sessions, (b) designate a representative or representatives who will provide professional and prompt liaison with Blue Sky Sessions with respect to this project, (c) be available at all times when Blue Sky Sessions’s personnel are at the project site (or designate an alternate with the same level of authority in the event of unavailability caused by illness or other valid reasons), and (d) confer with the Blue Sky Sessions representative at regular intervals to review progress and resolve any issues relating to the services.
9. Identification as a Client. Client agrees that Blue Sky Sessions may identify Client as one of Blue Sky Sessions’s clients for marketing purposes.
10. Acknowledgement of Risks. Client understands and acknowledges that there are certain inherent risks involved in the development, maintenance and operation of a commercial website, including without limitation (a) the risk that the website hosting service may be unreliable or undependable, and subject to down time; (b) the risk of data loss, whether as a result of a server crash or otherwise; (c) security risks, including without limitation the disclosure of confidential information and the loss of valuable data as a result of the work of hackers, or through the introduction of viruses, or otherwise; and (d) the risk of latent or other defects in the third-party software utilized in the project. Client hereby expressly assumes all of the foregoing risks and forever releases and discharges Blue Sky Sessions from any and all liability, loss, damages or expenses arising out of or related to those risks.
11. Terms and Conditions. This Addendum and the parties’ Agreement is expressly made subject to the Terms and Conditions attached hereto and hereby made a part of the Agreement. In the event of any conflict between those Terms and Conditions and the provisions of this Addendum, the provisions of this Addendum shall control.
12. Construction. The parties acknowledge and agree that the Agreement is the product of negotiation between the parties, and that the common law rule of construction which would construe any ambiguous contract term against the drafter of the document shall not apply to the Agreement or any part thereof.
13. Waiver. Neither party’s failure to exercise any of its rights under the Agreement will constitute or be deemed a waiver or forfeiture of those rights.
14. Severability. If any term or provision of the parties’ Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder thereof will not be affected.
15. Stalled Projects. Blue Sky Sessions reserves the right to declare a project stalled following three (3) weeks of delays from the client. A stalled project is subject to a $300 project restart fee and also may be subject to renegotiation of the contract.
15. Entire Agreement. The Agreement, together with the terms of the Blue Sky Sessions proposal accepted by Client and the Terms and Conditions attached hereto, shall constitute the entire Agreement between the parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of the Agreement. The terms and conditions of the Agreement may not be changed except by an amendment signed by an authorized representative of each party.