Terms and Conditions
(Last updated May 20, 2022)
These Terms and Conditions (the “Terms and Conditions”) are applicable to all services performed by be-gan-ik design incorporated d/b/a Mercury Creative Group (“Mercury”), a Minnesota corporation for or on behalf of the client (“Client”) who signs a Mercury Scope of Work (the “SOW”) agreement incorporating these Terms and Conditions to receive certain services from Mercury. These Terms and Conditions shall be effective as of the Effective Date of the related SOW.
- AGREEMENT. The agreement between Mercury and Client shall consist of the SOW and these Terms and Conditions (collectively, the “Agreement”). Mercury will supply the services specified in the SOW (the “Services”) to Client, pursuant to the Agreement. Mercury’s obligation to provide such Services is expressly conditioned upon Client’s acceptance of these Terms and Conditions, notwithstanding any contrary provision contained in Client’s purchase orders or other documents. In the event of any conflict between the SOW and these Terms and Conditions, the SOW shall control.
- FEES AND PAYMENT. Client shall pay Mercury the fees stated in the SOW. Unless otherwise set forth in the SOW, payment is due upon receipt of an invoice from Mercury. If Client does not pay an invoiced amount within terms, Client will pay finance charges on the balance of the lower of one and one-half percent (1.5%) per month or the highest rate allowable by law. Client shall pay any and all legal and collection costs, fees and expenses (including reasonable attorneys’ fees) incurred by Mercury in the collection of amounts due.
- ADDITIONAL CHARGES. Client understands that to perform the Services, Client must provide Mercury the necessary documentation, content and materials (the “Materials”) required by the SOW or requested by Mercury in a timely manner. In the event that Mercury is not able to perform the Services due to Client’s delay in providing Mercury the Materials, Client will be charged a fee for each week that Mercury is unable to provide the Services. Mercury shall not be responsible for any delay caused by Client’s failure to respond to Mercury’s requests for Materials in a timely manner.
- TERM. These Terms and Conditions commence on the Effective Date and, unless earlier terminated under Section 5, will continue with respect to any existing SOW for as long as such SOW is in effect. For avoidance of doubt, this Terms and Conditions shall be of no further force or effect unless there is a binding and enforceable SOW.
- TERMINATION. Mercury shall have the right to terminate these Terms and Conditions or any SOW issued hereunder (i) in the event Client defaults in the performance of any of its obligations under these Terms and Conditions or applicable SOW and such default is not cured within ten (10) days after written notice from Mercury; or (ii) at any time with or without cause upon thirty (30) days written notice to Client.
Client shall have the right to terminate these Terms and Conditions or any SOW issued hereunder (i) in the event Mercury defaults in the performance of any of its obligations under these Terms and Conditions or applicable SOW and such default is not cured within thirty (30) days after written notice from Client; or (ii) at any time with or without cause upon thirty (30) days written notice to Mercury.
Upon termination, Client shall pay all amounts owed for Services completed through the date of termination. In the event the SOW calls for a project-based fee or flat fee, then Client shall pay for such portion of Services as have been completed as of the date of termination in Mercury’s reasonable estimation.
- CHANGE ORDER. Before performing any additional Services outside the scope of the SOW, or modifying, substituting and/or changing the scope of Services, the parties shall execute a written change order. A new estimate will be submitted to Client and must be agreed to by both parties before work can continue, however no additional payments shall be made for changes required to conform to the original project scope. Client shall pay the additional fees for Services rendered pursuant to a change order in accordance with these Terms and Conditions.
- CLIENT WARRANTIES. Client represents and warrants to Mercury that:
- Client will provide the Materials required by the SOW or requested by Mercury in a competent and timely manner.
- Any and all Materials that Client furnishes to Mercury (i) do not infringe any copyright or trademark or other intellectual property rights of any third party; (ii) are not libelous, obscene, harmful, or harassing; (iii) do not invade any person’s right to privacy; and (iv) do not otherwise violate any laws or violate the rights of any third party.
- Client owns or is otherwise authorized to use the Materials that Client furnishes to Mercury to provide the Services.
- MERCURY WARRANTIES. Mercury represents and warrants to Client that Mercury will perform the Services in a professional, competent, and timely manner. In the event of any breach of the warranty specified in this provision, Client’s exclusive remedy will be for Mercury to, at its option, repair or substitute Services at no cost to Client or refund any purchase price paid for such Services. Mercury shall have no liability under the Agreement in the event a breach of the warranty contained in this provision: (i) is a result of circumstances beyond Mercury’s control; or (ii) is due to third party errors or omissions.
- ARCHIVED FILES. At Client’s request, Mercury agrees to retrieve files or data maintained in Mercury’s archives, provided that Client is not then in default under the terms of the Agreement. Client agrees to pay Mercury a reasonable charge for obtaining archived files, not to exceed $200.00 per file ($400.00 for requests for archived files needed within 48 hours).
- INTELLECTUAL PROPERTY. Provided that Client is not in default under the terms of the Agreement, Mercury grants a revocable, nonexclusive, worldwide, transferable license to Client for artwork, graphics, or files for work completed and paid for by Client. The grant of any license or right of copyright hereunder is conditioned on receipt of full payment by Client. Any and all copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Client as of the date of the Agreement or made or conceived by employees of Client during the term of the Agreement shall be and remain the exclusive property of Client. Any and all copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Mercury as of the date of the Agreement or made or conceived by employees of Mercury during the term of the Agreement shall be and remain the exclusive property of Mercury.
- PORTFOLIO DISPLAY RIGHTS. Mercury retains the right and shall receive an irrevocable license from Client to feature Mercury’s work prepared for Client in Mercury’s portfolio, which includes the right to display graphics and other application design elements as examples of its work in its respective portfolio, so long as attribution is made to Client and any affiliated parties.
- NONSOLICITATION OF EMPLOYEES. Neither party will hire or retain the services of any employee or contractor of the other party during the term of the Agreement and for a one (1) year period thereafter without the prior written consent of the other party, such consent to be made at the discretion of the consenting party. Consent for hiring an employee or contractor may be conditioned on payment of a recruitment fee or other payment to compensate the consenting party for the expense of replacing the employee or contractor, as the case may be.
- CONFIDENTIAL INFORMATION. The parties agree to hold each other’s Confidential Information in strict confidence. “Confidential Information” means any information that a party receive or otherwise has access to incidental to or in connection with the Agreement: (i) whose confidential nature has been made known by the disclosing party, orally or in writing, to the receiving party; or (ii) which a reasonable person under like circumstances would treat as confidential due to its character and nature. This Agreement imposes no obligation upon a party with respect to Confidential Information which that party can establish by legally sufficient evidence that: (a) was possessed or known by a party on a nonconfidential basis prior to receipt; (b) is or becomes generally known to the public without violation of this Agreement; and (c) is obtained from a third party who has the right to disclose it. A party will not be in violation of this Section if the party discloses Confidential Information that is required to be disclosed because of a valid court order. However, under such circumstances, the receiving party shall notify the disclosing party in writing, to the extent legally permissible, of the disclosure to permit the disclosing party to seek a protective order. The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than as specified herein. Each party’s Confidential Information shall remain the exclusive property of that party. Notwithstanding termination or expiration of the Agreement, the parties agree that the obligations of confidentiality with respect to Confidential Information shall continue in effect for a period of two (2) years from the date of termination.
- MUTUAL INDEMNIFICATION. Client shall indemnify, defend, and hold harmless Mercury and its affiliates, officers, agents, contractors, owners, and employees from and against any and all claims, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and all related costs and expenses) incurred by Mercury as a result of any claim, judgment, or adjudication related to or arising from any third party claim based on Client’s breach of any representation, warranty, covenant, agreement, or obligation under the Agreement and any claim arising out of the products or services sold or otherwise distributed by Client through its website or in connection with its business. Mercury shall indemnify, defend, and hold harmless Client and its affiliates, officers, agents, owners, and employees from and against any and all claims, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and all related costs and expenses) incurred by Client as a result of any claim, judgment, or adjudication related to or arising from any third party claim based on Mercury’s breach of any representation, warranty, covenant, agreement, or obligation under this Agreement. Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. To qualify for such defense and payment, Client must (i) give Mercury prompt written notice of a claim; (ii) allow Mercury to control the defense and all related negotiations; and (iii) fully cooperate with Mercury in the defense and all related negotiations.
- DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, SERVICES AND PROVIDED ON AN “AS-IS” BASIS. MERCURY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES WHATSOEVER CONCERNING THE PERFORMANCE OF THE SERVICES AND ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY OR FIT FOR ANY PARTICULAR PURPOSE OR USE. MERCURY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. MERCURY MAKES NO WARRANTY CONCERNING POTENTIAL INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. MERCURY DOES NOT ASSUME ANY RESPONSIBILITY FOR THE PRODUCTS, SERVICES OR ACTIONS OF ANY THIRD PARTIES. CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY PRODUCTS AND SERVICES ARE AGAINST THE THIRD PARTY AND NOT AGAINST MERCURY. CLIENT MAINTAINS SOLE RESPONSIBILITY FOR BACKUPS AND RESTORATION OF ITS WEBSITE DATA AND OTHER FILES.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND MERCURY’S TOTAL LIABILITY FOR DAMAGES UNDER THE AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.
- ASSIGNMENT. The Agreement shall not be assignable by either party without the prior written consent of the other party. Except as otherwise provided, the Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
- GOVERNING LAW. The Agreement shall be governed by the laws of the State of Minnesota, without reference to conflict of law principles. Any legal suit, action or proceeding arising out of or relating to the Services or the Agreement shall be commenced in a federal or state court in Hennepin County, Minnesota, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. The parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorneys’ fees, from the other party.
- FORCE MAJEURE. Neither party shall be liable for any failure to perform or delay in performance of the Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
- INDEPENDENT CONTRACTORS. The parties are independent contractors entering into a contract for services; nothing in the Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.
- SEVERABILITY. If any provision, covenant or condition of the Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the Agreement shall remain in full force and effect and will in no way be affected, impaired or invalidated. Any provision of the Agreement that expressly, by implication, or by necessity, contemplates performance or observance subsequent to the termination or expiration of the Agreement will survive termination or expiration of the Agreement, and continue in full force and effect. For avoidance of doubt, all sections relating to payment, ownership, confidentiality, indemnification and duties of defense, and representations and warranties shall survive the termination of the Agreement.
- ENTIRE AGREEMENT. The Agreement (which includes these Terms and Conditions and the SOW) supersede all prior agreements and constitutes a complete and exclusive statement of the terms of the agreement among the parties with respect to its subject matter. There have been and are no representations, warranties or covenants between the parties other than those set forth in the Agreement. No supplement, modification or amendment of the Agreement will be binding unless executed in writing by all of the parties. No waiver of any provisions of the Agreement will be deemed a waiver of any other provisions, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver.