1. FEES AND CHARGES.

1.1 Fees. In consideration of the Services to be performed by Blue Oxygen, Client shall pay to Blue Oxygen 100% of the cost set forth on BlueOxygen.com prior to project commencement and, if applicable, all applicable sales, use or value added taxes. Additional services may be rendered at an hourly rate set forth by Blue Oxygen at the time of the service request.

2. CHANGES.

2.1 General Changes. Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Blue Oxygen’s standard hourly rate of $110 per hour. Such charges shall be in addition to all other amounts.

2.2 Testing and Acceptance. Blue Oxygen will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within ten (10) business days of receipt of each Deliverable, shall notify Blue Oxygen, in writing, of any failure of such Deliverable to comply with the specifications set forth on BlueOxygen.com, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. In the absence of such notice from Client, the Deliverable shall be deemed accepted after ten (10) business days of receipt of deliverables.

3. CLIENT RESPONSIBILITIES.

Client acknowledges that it shall be responsible for performing the following:
(a) completion of logo questionnaire for logo designs and website questionnaire for website designs
(b) coordination of any decision-making with parties other than Blue Oxygen to approve design concepts, revisions, or content placement in a timely manner;
(c) provision of Client Content (if applicable) in a form that adheres to the guidelines set forth in the content guidelines form.
(d) creating pages and adding content using the Joomla content management system independently of Blue Oxygen.
(e) actively using the support resources on blueoxygen.com as well as on the world wide web to take advantage of all the features included in the PowerPack
(f) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall use the Joomla content management system to correct such errors independently of Blue Oxygen.

4. ACCREDITATION/PROMOTIONS.

Blue Oxygen retains the right to reproduce, publish and display the Deliverables in Blue Oxygen’s portfolios and Web sites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

Blue Oxygen retains the right to re-use and modify portions of any of the designs we create.

5. CONFIDENTIAL INFORMATION.

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority.

6. RELATIONSHIP OF THE PARTIES.

6.1 Independent Contractor. Blue Oxygen is an independent contractor, not an employee of Client or any company affiliated with Client. Blue Oxygen shall provide the Services under the general direction of Client, but Blue Oxygen shall determine, in Blue Oxygen’s sole discretion, the manner and means by which the Services are accomplished. Blue Oxygen and the work product or Deliverables prepared by Blue Oxygen shall not be deemed a work for hire as that term is defined under Copyright Law.

6.2 Blue Oxygen Agents. Blue Oxygen shall be permitted to engage and/or use third party designers, developers, or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Blue Oxygen shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.

7. INDEMNIFICATION/LIABILITY.

7.1 By Client. Client agrees to indemnify, save and hold harmless Blue Oxygen from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Blue Oxygen shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Blue Oxygen provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Blue Oxygen in providing such assistance.

7.2 By Blue Oxygen. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Blue Oxygen agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Blue Oxygen’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Blue Oxygen in writing of the claim; (b) Blue Oxygen shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Blue Oxygen with the assistance, information and authority necessary to perform Blue Oxygen’s obligations under this section. Notwithstanding the foregoing, Blue Oxygen shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Blue Oxygen.

7.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF BLUE OXYGEN ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF BLUE OXYGEN, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“BLUE OXYGEN PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF BLUE OXYGEN. IN NO EVENT SHALL BLUE OXYGEN BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY BLUE OXYGEN, EVEN IF BLUE OXYGEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. TERM AND TERMINATION.

8.1 This Agreement shall commence upon full payment of the services/ and or products, the Effective Date, and shall remain effective until the Services are completed and delivered.

8.2 This Agreement may be terminated at any time by either party effective immediately upon written notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

8.3 Client’s account may be terminated under the following provisions:
(a) Client is unable or unwilling to provide payment for services offered on BlueOxygen.com
(b) Client is sending harassing emails
(c) Client is unresponsive for 30 days (in which case project will be considered abandoned)

8.4 In the event of termination, Blue Oxygen shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Blue Oxygen or Blue Oxygen’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation. No refunds, partial or otherwise, will be granted without prior written request from Client. Written request must be provided within 15 days of termination, otherwise no refund, partial or otherwise, will be provided.

8.5 In the event of termination by Client and upon full payment of compensation as provided herein, Blue Oxygen grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

9. GENERAL.

9.1 Force Majeure. Blue Oxygen shall not be deemed in breach of this Agreement if Blue Oxygen is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Blue Oxygen or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Blue Oxygen’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Blue Oxygen shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

9.2 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of California without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of California. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Blue Oxygen will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Blue Oxygen shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

By agreeing to the Logo Design Questionnaire and/or the Website Design Questionnaire, you, the Client, have agreed to all of the terms and conditions and Schedule A: Intellectual Property Provisions of this Agreement effective as of the date of submission of this form, and the person submitting this form represents that they have the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions and Schedule A: Intellectual Property Provisions herein.

Schedule A: Intellectual Property Provisions

IP 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART.

IP 1.1 Preliminary Works. Blue Oxygen retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Blue Oxygen within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Blue Oxygen.

IP 1.2 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, Blue Oxygen assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Blue Oxygen for use by Client as a Trademark. Client hereby indemnifies, saves and holds harmless Blue Oxygen from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.

IP 2. RIGHTS TO FINAL ART.

IP 2.1 Upon completion of the Services, and expressly subject to full payment of all fees, Blue Oxygen grants to Client the rights in the Final Art as set forth below. Any additional uses not identified herein require an additional license and may require an additional fee. All other rights are expressly reserved by Blue Oxygen. The rights granted to Client are for the usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.

Category of use: Interactive/Web
Medium of use: Internet
Duration of use: Unlimited