These terms and conditions of sale (“Terms and Conditions”) are applicable to all services performed by Mercury Creative Group (“Mercury”) for or on behalf of the client (“Client”) who signs a Mercury agreement or proposal (the “Agreement”) to receive Services from Mercury:
1. SCOPE OF AGREEMENT. The agreement between Mercury and Client shall consist of the Agreement and these Terms and Conditions. These Terms and Conditions are integrated into, and form an integral part of, the Agreement. Mercury will supply the services specified in the Agreement (the “Services”) to Client, pursuant to these Terms and Conditions, and Mercury’s agreement 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 Agreement and these Terms and Conditions, the Agreement shall control.
2. PRICE AND TERMS. Unless set forth on the Agreement, payment is due upon receipt of an invoice. If Client does not pay an invoiced amount within terms, Client will in addition 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.
Unless specifically provided otherwise in the Agreement, costs such as paper, printing, mailing and other production costs are not included in the fees charged by Mercury. All expenses incurred in connection with the Services, including sales tax, is the responsibility of the Client. Submission of quotes for production prices, such as printing, will be based on rough verbal specifications and are budget estimates only. Final decisions about the design, format, content and production may change these estimates.
3. TERM AND TERMINATION. Unless otherwise stated upon the face of the Agreement, the term of the Agreement shall begin upon mutual execution of the Agreement by the parties and shall continue until termination by mutual agreement of the parties or as otherwise permitted under this Section 3.
Mercury shall have the right to terminate this Agreement in the event Client defaults in the performance of any of its obligations under this Agreement, and such default is not cured within ten (10) days after written notice from Mercury. Mercury may also terminate this Agreement and all Services at any time with or without cause upon thirty (30) days written notice to Client.
Client shall have the right to terminate this Agreement in the event Mercury defaults in the performance of any of its obligations under this Agreement, and such default is not cured within thirty (30) days after written notice from Client. Except as stated in the Agreement, Client may also terminate this Agreement and all Services at any time with or without cause upon thirty (30) days written notice to Mercury.
4. SCOPE OF WORK. The Client shall be responsible for making additional payments for changes requested by the Client which are outside of the original scope of Services. A new estimate will be submitted 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. Mercury may make a good faith effort to evaluate whether the Client’s proposed work is currently being used by another party, but does not promise that Client will have the legal right to use the work, and Client should hire a lawyer to provide legal advice. It is not within Mercury’s scope of work to provide legal advice concerning intellectual property matters.
5. CLIENT’S MATERIALS. Client represents and warrants that any matter it furnishes for performance of Services (i) does not infringe any copyright or trademark or other intellectual property rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any person’s right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party.
6. 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 any Agreement or these Terms and Conditions. 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).
7. APPROVAL OF PROOFS. Mercury will make every reasonable effort to assure the accuracy of the material produced, but is not responsible for the correctness of copy, illustrations, photographs, or trademarks, nor for obtaining clearance or approvals. Mercury will take normal measures to safeguard any materials entrusted to Mercury. However, Mercury is not responsible for the loss, damage, or unauthorized use of such materials, nor is Mercury responsible for the actions of the vendors or suppliers it utilizes.
8. INTELLECTUAL PROPERTY. Provided that Client is not then in default under the terms of any Agreement or these Terms and Conditions, Mercury grants a revocable, nonexclusive, worldwide, transferable license to Client for artwork, graphics, or files for work completed and paid for 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 this 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 this Agreement shall be and remain the exclusive property of Mercury.
9. NONSOLICITATION OF EMPLOYEES. Neither party will hire or retain the services of any employee or contractor of the other party during the term of this 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.
10. CONFIDENTIAL INFORMATION. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” means any information that parties receive or otherwise have access to incidental to or in connection with this 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. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential Information shall remain the exclusive property of that party. Notwithstanding termination or expiration of this Agreement, the parties agree that the obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a period of two (2) years from the date of termination.
11. MUTUAL INDEMNIFICATION. Client shall indemnify, defend, and hold harmless Mercury (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 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 this Agreement. 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.
12. WARRANTY. Any warranty shall be in writing on the face of the Agreement. With the exception of such warranty, Mercury makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed or any products will be merchantable or fit for any particular purpose or use. Mercury makes no warranty concerning potential infringement of any intellectual property rights of third parties. In the event of any breach of any warranty specified in this provision, Client’s exclusive remedy shall be that Mercury shall, at its option, repair or substitute services at no cost to Client or refund any purchase price paid for such services or products. Mercury shall have no liability under this Agreement in the event a breach of the warranties contained herein is: (i) a result of circumstances beyond Mercury’s control; or (ii) due to third party errors or omissions.
13. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12, SERVICES AND PRODUCTS ARE 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. MERCURY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. 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.
14. 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.
15. ASSIGNMENT. This Agreement shall not be assignable by either party without the prior written consent of the other party. Except as otherwise provided, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Minnesota, without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the services or this Agreement shall be commenced in a federal or state court in Ramsey County, 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.
17. FORCE MAJEURE. Neither party shall be liable for any failure to perform or delay in performance of this 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.
18. SEVERABILITY. If any term provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall remain in full force and effect and will in no way be affected, impaired or invalidated. Any provision of this Agreement that expressly, by implication, or by necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of this Agreement, and continue in full force and effect. For avoidance of doubt, all sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, and representations and warranties shall survive the termination of the Agreement and these Terms and Conditions.
19. ENTIRE AGREEMENT. This Agreement (including the signed Agreement, these Terms and Conditions, and any attached exhibits and schedules) supersedes 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 this Agreement. No supplement, modification or amendment of this Agreement will be binding unless executed in writing by all of the parties. No waiver of any provisions of this 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.