These standard terms and conditions (these “Terms”) are the only terms that govern the provision of products, if any, and services by Kelasan, Inc. d/b/a Beyond Indigo, a Minnesota corporation (“Beyond Indigo”) to the client (“Client”) set forth on the accompanying client-specific contract which has incorporated these Terms by reference (the “Client Contract”).
The Client Contract, including any other exhibits, schedules or annexes, and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Client Contract, the Client Contract shall govern.
These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
2. Terms and Conditions for Services.
Beyond Indigo shall provide the services to Client as described in the Client Contract (the “Services”) in accordance with these Terms. Beyond Indigo may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Client Contract. If Beyond Indigo’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Beyond Indigo shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
3. Terms and Conditions for Custom Websites.
Ownership of Website Design and Content. Subject to and conditioned upon Client’s payment of all applicable fees and expenses and Client’s strict compliance with all terms and conditions set forth in this Agreement, Client will be able to access Client’s purchased website (the “Client’s Website”). Client owns (i) the website design, content, blog and social media posts, and photos (as provided by Client and any stock photos which may be governed by a separate use agreement regarding such photos) associated with the Client’s Website, and (ii) any other deliverables prepared by Beyond Indigo in accordance with this Agreement (“Deliverables”).
License to Tools. Subject to and conditioned upon Client’s payment of all applicable fees and expenses and Client’s strict compliance with all terms and conditions set forth in this Agreement, Beyond Indigo grants Client a non-exclusive, non-transferable, non-sublicensable, limited license to Beyond Indigo’s web servers and the interactive components, aspects, functionality and tools provided by Beyond Indigo to Client in connection with the operation of the Client’s Website (collectively, the “Tools”). Client acknowledges and agrees that the Tools are provided under license, and not sold, to Client. Beyond Indigo and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Tools and all intellectual property rights, including but not limited to, all copyrights, trademarks, patents, source code and trade secrets, arising out of or relating to the Tools, except as expressly granted to the Client in this Agreement. Client shall use commercially reasonable efforts to safeguard the Tools (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
Use Restrictions. Client agrees that Client will not, and will cause its employees, independent contractors, agents, representatives and affiliates not to, directly or indirectly, without the written consent of Beyond Indigo: (a) use (including make any copies of) the Tools beyond the scope of the license granted in Section 3(b); (b) sublicense, assign or transfer any of the Tools; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Tools or any part thereof; or (d) act in a manner that adversely affects or impairs Beyond Indigo’s ownership rights in the Tools.
Linked Content. The Client’s Website may contain links to third-party websites. Beyond Indigo does not endorse the content on any third-party websites. Beyond Indigo is not responsible for the content of linked third-party websites, a website framed within the Client’s Website, or third-party advertisements, and does not make any representations regarding their content or accuracy. Client’s use of third-party websites is at Client’s own risk and subject to the terms and conditions of use for such websites.
4. Fees; Payment Policies and Procedures; Late Fees.
In consideration of the provision of the Services, and if applicable, the delivery of the Client’s Website, the Tools and Deliverables, by Beyond Indigo and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Client Contract in accordance with Beyond Indigo’s payment policies and procedures, as amended from time to time, which have been or will be provided to Client.
Beyond Indigo reserves the right to charge late fees for any due, but unpaid, fees relating to the products and services provided to Client in accordance with its payment policies and procedures.
5. Taxes.
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
6. Termination.
Either party may terminate this Agreement upon breach by the other party of any of the material terms of this Agreement and the failure of the breaching party to cure that breach within 15 days from receipt of written notice from the non-breaching party. Client may terminate this Agreement for convenience upon 30 days’ written notice to Beyond Indigo. Beyond Indigo may terminate this Agreement, effective immediately, if Client files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. Upon expiration or earlier termination of this Agreement, (a) if applicable, the license to the Tools granted hereunder shall also terminate and Client shall cease using and destroy all copies of the Tools and (b) if applicable, Beyond Indigo shall deliver a copy of the Client’s Website to Client in a standard electronic format. No expiration or termination shall affect Client’s obligation to pay all license and service fees relating to the Services or the Client’s Website that may have become due before or at such expiration or termination. No refunds shall be given to Client upon Client’s termination for convenience.
7. Limited Warranty.
Beyond Indigo warrants to Client that the Services shall be performed in a professional and workmanlike manner in accordance with applicable commercial standards. Beyond Indigo shall use reasonable efforts to meet any performance dates specified in the Client Contract, but any such dates shall be estimates only. If contemplated by the Client Contract, Beyond Indigo warrants to Client that the Client’s Website, the Tools and Deliverables will meet the specifications set forth and agreed to by Beyond Indigo and Client in the Client Contract. Client acknowledges that if Client accepts and authorizes the deployment of the Client’s Website then the Client’s Website shall have met all specifications required by Client pursuant to the Client Contract, except that Client and Beyond Indigo may agree in writing to subsequent improvements or additional modifications to the Client’s Website.
8. WARRANTY DISCLAIMER.
Beyond Indigo’s warranties in Section 7 of these Terms are the only warranties concerning the Services, the Client’s Website, the Tools and Deliverables, and are made for the benefit of Client only in lieu of all other warranties and representations, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
9. LIMITATION OF LIABILITY.
In no event shall Beyond Indigo be liable to Client or to any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not Beyond Indigo has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
Client acknowledges that Beyond Indigo’s performance of the Services and delivery of the Client’s Website and Deliverables are dependent on Client’s level of participation and cooperation. Client also acknowledges that Beyond Indigo’s performance of the Services may be based on services, products and policies provided by certain third party service providers (e.g., Google, Facebook, etc.) that may be subject to change without notice. In the event (i) Client fails to reasonably participate or cooperate in the performance of the Services and the delivery of the Client’s Website and Deliverables or (ii) of a change to services, functionality and other similar processes by such third party service providers, Client acknowledges that Beyond Indigo may be unable to provide certain Services due to such failure by Client or such change by the third party service providers and that Beyond Indigo’s failure shall not constitute a breach of this Agreement by Beyond Indigo.
In no event will Beyond Indigo’s and its affiliates’, including any of its or their respective licensors’ and service providers’, collective aggregate liability under or in connection with this Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), and otherwise, exceed the lesser of (i) total amount paid to Beyond Indigo by Client pursuant to this Agreement for the immediately preceding six (6) months prior to the date of the alleged claim or (ii) $10,000. The limitation of liability set forth in this Section 9(a) shall not apply to liability arising from Beyond Indigo’s gross negligence or willful misconduct.
Client must file any cause of action arising under, or related to, this Agreement no later than three (3) months after the claim has accrued.
10. Indemnification.
Client agrees to defend and indemnify Beyond Indigo from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable attorneys’ fees, resulting from, or alleged to result from, Client’s violation of this Agreement.
11. Applicable Law.
This Agreement is governed by the laws of the State of Minnesota, without regard to its conflict of law provisions.
12. Arbitration.
All claims, demands or disputes arising under or in connection with this Agreement, which cannot be settled through correspondence and mutual consultation of the parties, shall be finally settled by arbitration and the parties agree, to the extent allowed by law, that arbitration shall be the sole and exclusive method of resolving such claims, demands and disputes. Arbitration shall be invoked by written notice given by one party to the other stating the nature of the dispute and the claim(s) of the party invoking arbitration. The parties shall mutually select one arbitrator with experience in commercial business matters. In the event they are unable to agree on an arbitrator or either party refuses to participate in the selection of an arbitrator within 30 days after the delivery of notice invoking arbitration, the arbitrator shall be selected by the American Arbitration Association (“AAA”) and the arbitration shall be conducted on an expedited basis by such arbitrator pursuant to the Commercial Arbitration Rules of the AAA then in effect. The arbitration shall be held in a location to be mutually agreed by the parties or, if the parties are unable to agree, in Hennepin County, Minnesota. The arbitrator shall be limited to the terms of this Agreement but shall have the right, to the extent allowed by law, to award all remedies at law or in equity including but not limited to damages and injunctive relief. Any award shall include an award of costs and reasonable attorneys’ fees to the prevailing party. The decision of the arbitrator shall be final and binding and may be entered and enforced by any court of competent jurisdiction.
13. Entire Agreement.
This Agreement together with all annexes, schedules, and exhibits attached thereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Client and Beyond Indigo with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
14. Amendment and Modification.
Beyond Indigo reserves the right to amend these Terms from time to time and such amendment or modification shall become effective as of the date Beyond Indigo provides written notice of such amendment or modification to Client. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15. Assignment.
Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Beyond Indigo. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
16. Force Majeure.
Beyond Indigo shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Beyond Indigo including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
17. Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
