General Terms and Conditions: Blue Gorilla Digital, LLC Digital Design and advertising Services
These general terms and conditions are part of the contract to which they are attached (the “Agreement”) and apply to your use of marketing or email data or digital graphics services provided by Blue Gorilla Digital, LLC. or its affiliated companies (hereinafter referred to as “Blue Gorilla”), email data mailing lists, marketing, adverising, data or other graphics services are referred to collectively as the “Data.”
(a) The term “Blue Gorilla Property” means all programs, files, systems, documentation, information, content, graphics, page layouts, site designs, user interfaces, or mailing lists utilized or provided by Blue Gorilla, work product produced by Blue Gorilla, and derivate works of any of the foregoing, including, without limitation, the website or websites made available to you by Blue Gorilla, any HTML programming performed as part of providing you with Data and any other special programs, functionalities, interfaces and other work product, ideas, concepts or techniques which Blue Gorilla may develop, use or rely upon in providing the Data to you.
(b) All Blue Gorilla Property shall be and will remain the property of Blue Gorilla.
(c) As between you and Blue Gorilla, Blue Gorilla shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the Blue Gorilla Property and the Data. To the extent that automotive manufacturer and dealer logos and artwork created and owned by automobile manufacturers and dealers are used in connection with the Data and services provided, the rights holder(s) to those logos and artwork shall retain their rights and shall grant a limited license for you and Blue Gorilla to use such intellectual property solely for the use intended pursuant to this Agreement.
2. Limited License.
Upon your execution of the Agreement and the payment of all amounts due Blue Gorilla, you are granted a personal, nontransferable and non-exclusive license to use the Data solely for your direct marketing, mailing and customer prospecting purposes, in strict accordance with the terms of the Agreement. Upon expiration or termination of the Agreement, you shall discontinue use of the Data and, as requested by Blue Gorilla, either (a) return the Data to Blue Gorilla without retaining any copies thereof or any notes or other information thereon or (b) provide a certificate, executed by you, in form and substance satisfactory to Blue Gorilla, that the Data has been destroyed in such a manner to render the Data permanently unreadable and unrecoverable.
3. Limitations on Use.
(a) Unless specifically authorized in advance and in writing by Blue Gorilla, you will not share, sell, transfer or otherwise make the Data available to any third person or entity and you will use your best efforts to prevent the misuse or unauthorized use of the Data by any third person or entity.
(b) Unless specifically authorized in advance and in writing by Blue Gorilla, you will not name or refer to Blue Gorilla or your use of the Data in any of your advertisements or promotional or marketing materials.
(c) You will not use the Data for consumer credit purposes, employment purposes or for any other purpose covered by the federal Fair Credit Reporting Act or for any other purpose not expressly authorized by the Agreement.
4. Your Responsibilities; Use of Email Data; Review and Audit by Blue Gorilla.
(a) Your use of the Data will comply with all applicable federal, state, local and foreign laws, statutes, rules and regulations (“Laws”), including Laws regarding direct mail, telemarketing, email and facsimile marketing, customer solicitation and all applicable guidelines of the Direct Marketing Association (“DMA”). If you are not a member of the DMA, you will use your best efforts to comply with the DMA’s guidelines.
(b) Your use of any email Data will comply with all applicable Laws, including the CAN-SPAM Act, COPPA, and any State Registry laws.
(c) Blue Gorilla reserves the right to review your use of the Data to ensure compliance with this Agreement, but any failure of Blue Gorilla to review such use will not constitute acceptance of such use or waive any of Blue Gorilla’s rights hereunder or limit any of your obligations with respect to the Data. At any time upon at least three (3) days’ notice, Blue Gorilla may audit your records to determine whether you are in compliance with this Agreement and you will make available to Blue Gorilla or its representatives all records necessary for the conduct of such an audit.
5. Disclaimer of Warranties; Limited Warranty.
THE DATA IS PROVIDED ON A STRICTLY “AS IS” BASIS. BLUE GORILLA DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE DATA AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, BLUE GORILLA DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
6. Limitation of Liability.
Blue Gorilla will not be liable for any claim, demand, loss, liability, damage, injuries, cost or expense (including reasonable attorneys’ fees and legal costs), whether general, direct, special, incidental, consequential or other damage caused in whole or in part or directly or indirectly by any use of the Data or any alleged or actual failure by Blue Gorilla to comply with the terms of the Agreement, whether or not any such damages were foreseeable or whether Blue Gorilla was advised of the possibility of such damages. Blue Gorilla’s maximum liability under the last sentence of Section 5 will not exceed the amount you paid Blue Gorilla under the Agreement within the 12 months preceding the event which gave rise to Blue Gorilla’s liability. Additionally, under no circumstances shall Blue Gorilla ever be liable for mail that was late, lost or not delivered.
(a) Blue Gorilla is not responsible for manufacturer guidelines for compliance approvals and co-op reimbursement. All appropriate disclaimers must be provided to Blue Gorilla with initial work order. Final submissions for manufacturer compliance and coop approvals are the responsibility of the Auto Dealer prior to design.
7. Your Indemnification of Blue Gorilla.
You shall indemnify, defend and hold harmless Blue Gorilla, its stockholders, directors, officers, employees, independent contractors and agents against any claim, demand, loss, liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises, directly or indirectly, out of your act or omission with respect to the Data or any violation of the Agreement or any violation of Laws.
8. Interruption of Service.
You acknowledge that, given the technical nature of resources Blue Gorilla requires to provide the Data to you, temporary interruptions may occur in the provision of Data and that any such interruptions shall not result in Blue Gorilla having any liability to you or others and shall not suspend or eliminate your payment obligations to Blue Gorilla or provide you with any refund rights for amounts previously paid to Blue Gorilla.
9. No Assignment by You.
You may not assign your rights or obligations under the Agreement to any other person or entity without the prior written consent of Blue Gorilla, whether by operation of law or otherwise, and any attempt to do so shall be void.
10. Additional Remedy of Termination.
In addition to all other legal rights and remedies available to Blue Gorilla for any apparent, threatened or actual breach or violation of the Agreement by you, Blue Gorilla has the right to terminate the Agreement and demand immediate return or destruction of the Data at any time if Blue Gorilla believes you are not complying in full with the Agreement.
11. Governing Law; Jurisdiction.
The Agreement shall be governed by and construed under the laws of the State of Florida, without regard for the principles of conflicts of law of that State or any other state. Any litigation or other dispute relating to or arising under the Agreement shall only be brought in the state or federal courts located in Palm Beach County, Florida and you agree to submit to the exclusive jurisdiction of those courts and waive any objections to the venue of any such proceeding in those courts.
(a) Payment: You agree to pay Blue Gorilla a fee in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Fees charged are nonrefundable.
(b) For any Graphic Design and HTML for Web Banners, E-Blast, E-newsletters, Retargeting Banners, Landing Pages, payment is due prioe to receipt. Annual contracts are billed monthly, even if you are not actively using the products.
(c) The agreement will begin in the month of the first service rendered. A minimum guarantee of 3 months is required to receive contracted rate. There are no refunds for any fees paid. To cancel services with Blue Gorilla Digital, LLC you must submit to us in writing within 30 days of the date such charges are incurred.
(d) Any additional products ordered, not outlined in your contract, will be billed accordingly to our fee schedule.
13. Entire Agreement; Amendment or Waiver.
The Agreement contains the entire understanding between you and Blue Gorilla and supersedes any prior understandings or agreements, oral or written, relating to the subject matter of the Agreement. The Agreement may only be amended by a document signed by you and Blue Gorilla. No waiver of any breach of the Agreement shall be deemed a waiver of a future breach, whether of a similar or different nature, and no waiver shall be effective unless in writing signed by the waiving party.
14. Execution; Counterparts.
The Agreement may be executed in its original, by facsimile or in electronically transmitted portable document format and it may be executed in any number of counterparts, each of which shall be deemed an original of the same document.