1. Scope of Application
1.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
1.1.1. “Business Day “means any day other than a Saturday, Sunday or public holiday;
1.1.2. “Calendar Day” means any day of the year;
1.1.3. “Deposit “means an advance payment made to Us;
1.1.4. “Month” means a calendar month;
1.1.5. “Price” means the price payable for the Services as fully detailed in Schedule 2;
1.1.6. “Services” means the services which are to be provided by Us to You as specified in the accepted quotation or selected package;
1.1.7. “You/Your” means the Client,
1.2. Each reference in this Agreement to “writing” and any similar expression includes electronic communications whether sent by e-mail.
1.3. Each reference to a statute or provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time.
1.4. Each reference to “this Agreement” is a reference to this Agreement and the accepted quotation or selected package.
1.5. The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.6. Each reference to the singular number shall include the plural and vice versa.
1.7. Each reference to any gender shall include the other gender.
1.8. References to persons shall include corporations.
2. The Contract
2.1. This Agreement governs the provision of Services by Us and embodies the contract between Us and You. Before accepting this Agreement, please ensure that You have read it carefully. If You are unsure
about any part of this Agreement, please contact Us for clarification.
2.2. A legally binding contract between Us and You will be created upon our mutual acceptance of this Agreement, indicated by Us and You signing this Agreement
3. Price and Payment
3.1. The Price payable for the Services is detailed in the accepted quotation or selected package.
3.2. Before We begin providing the Services, You will be required to pay a Deposit of 60% of the total Price for the Services.
3.3. All payments required to be made pursuant to this Agreement by either Party shall be made in cleared funds, without any set-off, withholding or deduction.
3.4. You are solely responsible for the payment of taxes incurred under this Agreement.
3.5. Your Deposit may not be refunded whether in full or in part.
3.6. The balance of the Price will be payable in accordance with the accepted quotation or selected package.
3.7. If You do not make payment to Us by the due date as shown on the relevant invoice, We may charge You interest on the overdue sum at the rate of 5%.
3.8. Interest will accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment.
3.9. You must pay any interest due when paying an overdue sum.
3.10. During the term of this agreement, You may wish to assign additional projects, products, or services to Us and beyond the Services outlined in the accepted quotation or selected package (“Out-of-Scope
Assignments”). We agree to accept such Out-of-Scope Assignments only upon a separate written agreement regarding additional compensation to be paid to us and other relevant terms and conditions, if
applicable.
4. Providing the Services
4.1. We will begin providing the Services upon receiving Your Deposit.
4.2. We will make every reasonable effort to complete the Services on time (and in accordance with the specification in the accepted quotation or selected package). We cannot, however, be held responsible for
any delays if an event outside of Our control occurs.
4.3. If We require any information from You in order to provide the Services, We will inform You of this as soon as is reasonably possible.
4.4. If the information You provide is delayed, incomplete or otherwise incorrect, We will not be responsible for any delay caused as a result. If additional work is required from Us to correct or compensate
for a mistake made as a result of incomplete or otherwise incorrect information that You have provided We may charge You a reasonable additional sum for that work.
4.5. In certain circumstances, for example where there is a delay in You sending Us information required, We may suspend the Services.
4.6. In certain circumstances, for example where We encounter a technical problem, We may need to suspend the Services in order to resolve the issue. Unless the issue is an emergency and requires immediate
attention We will inform You in advance in writing before suspending the Services.
4.7. If You do not pay Us for the Services as required, We may suspend the Services until You have paid all outstanding sums due. If this happens, We will inform You in writing. This does not affect Our right
to charge You interest.
4.8. You are required to purchase any applicable third-party licenses for any third-party products that are necessary for us to provide and develop the Services.
5. Term
This Agreement will commence on the Effective Date and will continue until final completion of the Services as set forth in the accepted quotation or selected package or until earlier terminated in accordance with this Agreement, subject to the provisions of this Agreement.
6. Effects of Termination
Upon the termination of this Agreement for any reason:
6.1. any sum owing shall become immediately due and payable;
6.2. all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain in full force and effect;
6.3. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or
other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
6.4. subject as provided in this Clause 6 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
6.5. each Party shall immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which
contain or record any Confidential Information.
7. Confidentiality
7.1. Each Party undertakes that, except as provided by a separate Confidentiality Agreement or as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and
for 5 years after its termination:
7.1.1. keep confidential all Confidential Information;
7.1.2. not disclose any Confidential Information to any other party;
7.1.3. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
7.1.4. not make any copies of, record in any way or part with possession of any Confidential Information; and
7.1.5. ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 7.
7.2. Either Party may disclose any Confidential Information to:
7.2.1. any sub-contractor or supplier of that Party;
7.2.2. any governmental or other authority or regulatory body; or
7.2.3. any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
7.2.4. to such extent only as is necessary for the purposes contemplated by this Agreement (including, but not limited to, the provision of the Services), or as required by law; and
7.2.5. use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public
knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
7.3. The provisions of this Clause 7 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
8. Ownership
8.1. All Services developed or prepared by Us, or our employees or Subcontractors for you become the property of You and deemed “Work Product” provided that
8.1.1. the Services are produced in final form by us for you,
8.1.2. You have paid Us all fees and costs associated with creating and, where applicable, producing the Services.
8.2. Notwithstanding any other provision of this Agreement, we retain all right, title and interest in and to, including any intellectual property rights with respect to designs, processes, specifications,
software, applications, source code, object code, utilities, methodologies, know-how, materials, information and skills (and any derivative works, modifications and enhancements thereto) owned, acquired or
developed by Us or our licensors, and regardless of whether incorporated in any Work Product,
8.2.1. prior to the Effective Date;
8.2.2. independently of, or not in connection with the performance of, the Services;
8.2.3. in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or
8.2.4. if generally applicable, non-site specific and unrelated to the “look and feel” of the Services or other deliverables, in connection with the Services.
9. Problems with the Services
9.1. We always use reasonable efforts to ensure that Our provision of the Services is trouble-free. If, however, there is a problem with the Services We request that You inform Us as soon as is reasonably
possible and within 72 hours.
9.2. We will use reasonable efforts to remedy problems with the Services as quickly as is reasonably possible and practical.
9.3. We will not charge You for remedying problems under this Clause 9 where the problems have been caused by Us, any of Our agents or employees or sub-contractors. If We determine that a problem has been
caused by incorrect or incomplete information provided by You, We may charge You for remedial work.
10. Client Data
10.1. You shall own all rights, title and interest in and to all of Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
10.2. You permits Us to use Your Data in anonymized form for further processing and refinement of the services and products.
10.3. If we processes any personal data on Your behalf when performing its obligations under this agreement, the parties record their intention that You shall be the data controller and We shall be a data
processor and in any such case:
10.4. You acknowledge and agrees that the personal data may be transferred or stored outside the USA/EEA or the country where You and the Authorised Users are located in order to carry out the Services and
Our obligations under this agreement.
10.5. You shall ensure that You are entitled to transfer the relevant personal data to Us so that We may lawfully use, process and transfer the personal data in accordance with this agreement on Your behalf;
10.5.1. You shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
10.5.2. We shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by You from time to time; and
10.5.3. each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
10.6. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including without limitation, hardware, software,
networking, and the like.
10.7. You shall also be responsible for maintaining the security of your account, passwords, and files and for all uses of Your account with or without Your knowledge or consent, and You hereby acknowledge
and agree that We shall have no responsibility for such matters.
11. Our Liability
11.1. We will be responsible for any foreseeable loss or damage that You may suffer as a result of Our breach of this Agreement or as a result of Our negligence. Loss or damage is foreseeable if it is an
obvious consequence of Our breach or negligence or if it is contemplated by You and Us when the contract is created. We will not be responsible for any loss or damage that is not foreseeable.
11.2. We make no warranty or representation that the Services are fit for commercial, business or industrial purposes of any kind including resale. By entering into this Agreement, You agree that You will not
use the Services for such purposes. We will not be liable to You for any loss of profit, loss of business, interruption to business or for any loss of business opportunity.
11.3. Nothing in this Agreement seeks to exclude or limit Our liability for death or personal injury caused by Our negligence (including that of Our employees, agents or sub-contractors); or for fraud or
fraudulent misrepresentation.
12. Events Outside of Our Control (Force Majeure)
12.1. We will not be liable for any failure or delay in performing Our obligations under this Agreement where that failure or delay results from any cause that is beyond Our reasonable control. Such causes
include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism, acts of war,
governmental action, epidemic or other natural disaster, or any other event that is beyond Our reasonable control.
12.2. If any event described under this Clause 12 occurs that is likely to adversely affect Our performance of any of Our obligations under this Agreement:
12.3. We will inform You as soon as is reasonably possible;
12.4. Our obligations under this Agreement will be suspended and any time limits that We are bound by will be extended accordingly;
12.5. We will inform You when the event outside of Our control is over and provide details of any new dates, times or availability of Services as necessary;
12.6. If the event outside of Our control continues for more than 30 days We will cancel this Agreement and inform You of the cancellation. Any refunds due to You as a result of that cancellation will be paid
to You as soon as is reasonably possible;
12.7. If an event outside of Our control occurs and You wish to cancel this Agreement, You may do so in writing and with 30 days of a Force Majeure Event.
13. Cancellation
13.1. You are free to cancel the Services and this Agreement without notice at any time before We begin providing them. please not that any deposits paid to us are non-refundable.
13.2. Once We have begun providing the Services, You are free to cancel the Services and this Agreement at any time by giving Us 30 Calendar Days written notice. If We have provided Services that You have not
yet paid for, the sums due will be deducted from any refund due to You or, if no refund is due, We will invoice You for those sums and You will be required to make payment.
13.3. If any of the following occur, You may cancel the Services and this Agreement immediately by giving Us written notice:
13.4. We have breached this Agreement in any material way and have failed to remedy that breach within 90 Days of You asking Us to do so in writing; or
13.5. We enter into liquidation or have an administrator or receiver appointed over Our assets; or
13.6. We are unable to provide the Services due to an event outside of Our control; or
13.7. We wish to change the terms of this Agreement to Your material disadvantage.
13.8. Once We have begun providing the Services, We may cancel the Services and this Agreement at any time by giving You 7 Calendar Days written notice.
13.9. If any of the following occur, We may cancel the Services and this Agreement immediately:
13.10. You fail to make a payment on time as required; or
13.11. You have breached the Contract in any material way and have failed to remedy that breach within 7 Days of Us asking You to do so in writing; or
13.12. We are unable to provide the Services due to an event outside of Our control.
13.13. For the purposes of this Clause 13 a breach of this Agreement will be considered ‘material’ if it is not minimal or trivial in its consequences to the terminating Party. In deciding whether or not a
breach is material no regard will be had to whether it was caused by any accident, mishap, mistake or misunderstanding.
14. Communication and Contact Details
If You wish to contact Us with questions or complaints, You may contact Us by email at info@blugency.net.
15. How We Use Your Personal Information (Data Protection)
We may use Your personal information to:
15.1. Provide the Services to You.
15.2. Process Your payment for the Services.
15.3. Inform You of new products and services available from Us.
15.4. You may request that We stop sending You this information at any time.
16. Class Action Waiver
16.1. Each party agrees that the resolution of any dispute arising from the terms of this Agreement will be resolved by a separate arbitration proceeding and will not be consolidated with other disputes or
treated as a class.
16.2. Neither party will be entitled to join or consolidate disputes by or against others as a representative or member of a class, to act in any arbitration in the interests of the general public, or to act
as a private attorney general. If any provision related to a class action, class arbitration, private attorney general action, other representative action, joinder, or consolidation is found to be illegal or
unenforceable, the entire Arbitration Agreement will be unenforceable.
17. Waiver of Jury Trial
Each of the parties hereto hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this agreement or the transactions contemplated hereby.
18. Subcontractors
18.1. You acknowledge that We may, in the rendition of the Services hereunder, engage third party suppliers and subcontractors (“Subcontractors”) from time to time to provide certain services.
18.2. We shall not be responsible for their failure, acts or omissions, except where such failure, acts or omissions are due to Subcontractors’ negligence or willful misconduct.
19. Relationship of the Parties
Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
20. Legal Fees
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to recover reasonable legal fees and costs from the other party.
21. Third Party Rights
21.1. No part of this Agreement is intended to confer rights on any third parties.
21.2. Subject to this Clause 21 this Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
22. Other Important Terms
22.1. We may transfer (assign) Our obligations and rights under this Agreement to a third party (this may happen, for example, if We sell Our business). If this occurs, You will be informed by Us in writing.
Your rights under this Agreement will not be affected and Our obligations under this Agreement will be transferred to the third party who will remain bound by them.
22.2. You may not transfer (assign) Your obligations and rights under this Agreement without Our express written permission (such permission not to be unreasonably withheld).
22.3. This Agreement is between You and Us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of this Agreement.
22.4. If any of the provisions of this Agreement are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the
remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
22.5. No failure or delay by Us or You in exercising any of our respective rights under this agreement means that such right has been waived, and no waiver by Us or You of a breach of any provision of this
Agreement means that either Party will waive any subsequent breach of the same or any other provision.
23. Governing Law and Jurisdiction
23.1. This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of the State of New
Mexico.
23.2. Any dispute, controversy, proceedings or claim between Us and You relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall
within the non-exclusive jurisdiction of the courts of Santa Fe.
24. Electronic Signatures
24.1. Each party agrees that this Agreement herewith may be electronically signed, and that any electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of
validity, enforceability, and admissibility.
24.2. For the purpose of clarity, the following shall qualify as electronic signature: a) Checking a box or a ‘click to accept’ button; or b) Typing a name; or c) Pasting an image of a signature; or d)
Drawing a name or initial with a stylus or by hand on a touchpad; and e) Electronically signing using an available third-party software application.
24.3. This Agreement has been duly executed in digital format using electronic signatures on the date as set forth above, of which the Parties have taken one copy each.