SERVICE AGREEMENT

TERMS OF SERVICE

Updated on October 2, 2023

Thank you for choosing Blue Million!

By agreeing to work with Blue Million you agree to these Terms of Service. If you do not accept these Terms, please do not use Blue Million in any way.

RECITALS

Client wishes to be provided with the Services as defined in the Service Agreement and Blue Million agrees to provide the Services to Client on the terms of the Service Agreement. These Terms of Service are a part of the Service Agreement.

  1. YOUR AUTHORITY

You represent, warrant, and agree that you have the full power and authority to enter into and perform under the Service Agreement and form a binding contract on behalf of yourself or on behalf of the person, organization, entity, or group that you represent.

  1. ENTIRE AGREEMENT

The Service Agreement and these Terms of Service constitute the entire agreement and forms a binding legal agreement between Blue Million and Client, which is effective on the date Client signs the Service Agreement. The Service Agreement and these Terms of Service constitute the entire understanding and agreement of the parties and supersedes all prior and contemporaneous understandings and agreements between the parties regarding its collective subject matter.

  1. KEY DEFINITIONS

Blue Million LLC (hereinafter, “Blue Million,” “we,” “us,” or “our”) provides design services as well as hosting services via a third-party agreement with Kinsta, Inc., software, and support; and other related websites (collectively, the “Services”). The individuals or organizations which purchase, access, or use the Services are referred to in the Agreement as “Client”, “you”, or “your”.

  1. DESCRIPTION OF SERVICES

Blue Million will design and host a website (the “Website”) for the Client by providing the design and programming services listed on Service Agreement (the “Services”) in a professional and timely manner. The parties may at any time modify the scope of the Services by including desired changes in a written “change order” that explains the changes and the adjustment to the payment for the Services that will result from such changes. Such change order shall become effective when signed and dated by both parties.

  1. PROVISION OF HOSTING SERVICES

Blue Million agrees to provide Client with website hosting services, consisting of website server space, and such additional services, as may be provided by Blue Million from time to time. Blue Million reserves the right to change or modify the features of Client’s service plan from time to time on 90 days written or e-mailed notice to Client. Client’s continued use of Blue Million’s services after receipt of such a notice of modification shall constitute Client’s acceptance of and agreement to be bound by Blue Million’s modification of the Terms of Service of this Agreement.

  1. THIRD-PARTY HOSTING

Blue Million uses the services of Google Cloud and Cloudflare via Kinsta, Inc. for hosting and may use the services of one or more entities who are not a party to this Agreement (“Third Parties”) to deliver any part of the Services. Blue Million will pass through any warranties to the extent that Blue Million receives any from its then-current Third-Party service provider and, at Client request, Blue Million shall provide the relevant terms. Client agrees to comply with any acceptable use policies of Kinsta, Inc. available at https://kinsta.com/legal

  1. DESIGN TEAM

Blue Million will use only qualified personnel to provide the Services (the “Design Team”). Blue Million reserves the right to make changes to the Design Team in its sole discretion.

  1. CLIENT OWNERSHIP RIGHTS

The Client will own all of its proprietary information as included in the Services, as well as all content, graphics, and domain names.

  1. BLUE MILLION’S OWNERSHIP RIGHTS AND GRANT OF LICENSE

Notwithstanding any other provision of this Agreement, the Services may include some programming code that Blue Million has previously developed for its own use (the “Blue Million’s Prior Code”). Blue Million expressly retains full ownership of such code, including all associated rights to use such code. However, Blue Million also grants to the Client and its users a perpetual, non-exclusive license to use Blue Million’s Prior Code. Any programming that includes Blue Million’s Prior Code shall include such copyright notices regarding Blue Million’s Prior Code as Blue Million may require.

  1. CONFIDENTIALITY

Blue Million will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Blue Million, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). Blue Million will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement.

  1. INDEPENDENT CONTRACTOR

Blue Million is an independent contractor with respect to its relationship to the Client. Neither Blue Million nor Blue Million’s employees are or shall be deemed for any purpose to be employees of the Client. The Client shall not be responsible to Blue Million, Blue Million’s employees, or any governing body for any payroll taxes related to the performance of the Services. Upon request, Blue Million will provide evidence of appropriate insurance coverage for workers compensation and general liability insurance.

  1. PROMOTION

Blue Million will not use the names, trademarks, service marks, symbols or any abbreviations of the Client, without the prior written consent of the Client. Blue Million may display “Designed by Blue Million” or similar wording with a link to https://bluemillion.com in the footer of the website.

  1. WARRANTY – BLUE MILLION

Blue Million warrants to the Client that all software programming, web pages, and materials delivered to the Client in connection with the Services are free from defects in materials and faulty workmanship under normal use, and that the Website will operate properly with widely used web browsers. For a 30 day period following completion of Website, Blue Million will correct any software anomalies (“bugs”) that occur because of defects in the source code. After such time, Blue Million will make changes on a fixed hourly rate or a negotiated fixed quote basis. While no website design process is able to guarantee bug-free results, the Services will be provided in a workmanlike manner, within local industry standards and tolerances for commercial applications. This warranty does not cover items damaged, modified or misused after delivery to the Client.

  1. WARRANTY – INTELLECTUAL PROPERTY RIGHTS

Blue Million represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that Blue Million is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any programming or materials included by Blue Million in the Services or trade names related to the Services. In the event of any claim, charge, suit or proceeding by any third party against the Client alleging such infringement, Blue Million shall defend such claim, charge, suit or proceeding. Blue Million shall indemnify and hold the Client harmless from and against any loss, cost, damage or expense (including attorney’s fees and legal expenses) incurred by the Client that may result by reason of any such claim, charge, suit or proceeding. The Client shall have the right, if it so desires, to be represented in any such claim, charge, suit or proceeding by counsel. If any of the programming or materials included by Blue Million in the Services becomes the subject of an infringement suit, the Client may terminate this Agreement. This indemnity shall not apply to materials provided by the Client as contemplated by the following paragraph.

  1. WARRANTY – CLIENT

The Client represents and warrants to Blue Million that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion in the Website, and that the Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such Ownership. The Client shall indemnify and hold Blue Million harmless from all losses and claims, including attorney’s fees and legal expenses, that may result by reason of claims by third parties related to such materials

  1. DISCLAIMERS

No 100% Security Guarantee. Blue Million implements security measures to help protect the Services from security threats, including the measures set forth in Kinsta’s DPA. However, Blue Million cannot guarantee that our security measures will be error-free, that Customer Applications will always be secure, or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.

  1. LEGAL DISCLAIMER

EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BLUE MILLION HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BLUE MILLION MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (i) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; (iv) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES; OR (v) BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS ACTIVITY OR HARMFUL CODE, OR ERROR FREE.

  1. TERMINATION WITHOUT CAUSE
  • Client may terminate this Agreement at any time, for any reason, by contacting Blue Million, either by phone or e-mail, and requesting that Client’s account be canceled no less than 30 days prior to service termination. In the event of a cancellation, Client shall pay for services generated prior to termination.
  • Blue Million may terminate this Agreement at any time, for any reason, by providing written or e-mail notice of termination to Client’s primary website e-mail contact address no less than 30 days prior to the service termination.
  • If either Party terminates this Agreement, upon request, Blue Million will back up all Client’s current Website content and databases as an archive file, and make available to Client.
  1. TERMINATION FOR CAUSE

Client agrees to abide by the terms of this Agreement and by Blue Million’s general use policies as set forth in this Agreement, as those policies may exist from time to time. Blue Million may change its use policies on 90 day written notice to Customer by e-mail message, mail, or facsimile transmission. Any violation by Client of the terms of this Agreement or of Blue Million’s general use policies shall be grounds for immediate termination of Client’s account for cause. If Blue Million terminates Client’s account for a violation of this Agreement, Blue Million shall not be required to refund any amounts billed for the billing period in which Blue Million terminates Client’s services.

  1. PAYMENT TERMS

Client agrees to pay Blue Million a total fee for design services as outlined in the Service Agreement.  Hosting and annual Licenses shall be included in these fees with any annual expenses indicated on Service Agreement due thereafter on the anniversary of this agreement. Blue Million reserves the right to change or modify its charges for Client’s plan from time to time on 90 days notice written or e-mailed to Client. Client’s continued use of Blue Million’s services after receipt of such a notice shall constitute Client’s acceptance of and Agreement to be bound by the Blue Million’s modified charges for its services. Additional charges for add-on services not included in Client’s plan will be made as mutually agreed upon.

  1. MATERIALS AND PRODUCTS

Blue Million, in its sole discretion, may reject material or data that Client has placed on Blue Million’s servers or that Client has requested that Blue Million put on Blue Million’s servers if this material is unsuitable or unusable. Blue Million agrees to notify Client immediately of its refusal of any material or data and provide Client with an opportunity to amend or modify the material or data to meet the Blue Million’s requirements.

  1. WARRANTY AGAINST UNLAWFUL USE

Client warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause.

  1. LIABILITY; NO WARRANTY; LIMITATION OF DAMAGES
  • Client expressly agrees that use of Services provided by Blue Million is at Client’s sole risk.
  • Blue Million guarantees uptime for its Web servers through its third-party agreement Kinsta, Inc. hosted on Google Cloud and CloudFlare. Terms of Service, Data Processing, and a Service Level Agreement are available via Kinsta’s published documents at https://kinsta.com/legal
  • Blue Million, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.
  • Blue Million, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, or unauthorized access to Blue Million’s records, programs, or services.
  • Blue Million makes no warranties or representations of any kind, express or implied, for the services it is providing. Blue Million also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.
  • Blue Million may use certain third party software “plugins” in the construction of the website. Blue Million shall obtain licenses on behalf of Client for this usage and will verify proper function at the time of website launch. Client acknowledges that this software may need to be updated periodically and may need configuration adjustments, or in some instances replacement. Warranties for the operation of these plugins reside with their creator any modification or replacement needed shall be beyond the scope of this agreement.
  1. PATENTS, COPYRIGHTS, TRADEMARKS, AND OTHER INTELLECTUAL AND PROPRIETARY RIGHTS
  • Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, and interest in any product or service provided to Client belongs to Host. These products and services are only for Client’s use in connection with Services provided to Client as outlined in this Agreement.
  • Client expressly warrants to Blue Million that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Blue Million servers.
  1. MUTUAL INDEMNIFICATION.

Each party agrees to defend, indemnify, and hold the other harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against either party, their agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold. Both parties further agree to defend, indemnify, and hold harmless the other party against liabilities arising out of:

  • Any liability arising by virtue of any use of services for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
  • Any injury to person or property caused by any products sold or otherwise distributed in connection with Services;
  • Any material supplied infringing or allegedly infringing on the property or proprietary rights of a third party;
  • Copyright or trademark infringement, or violation of intellectual property rights of any other party; and
  • Any defective product sold or distributed by means of Services.
  • Client agrees that the liability limit of Blue Million shall in no event be greater than the aggregate dollar amount which Client paid during the terms of this Agreement, including any reasonable attorneys’ fees and court costs.
  1. GOVERNING LAW

This Agreement has been entered into in the State of Kentucky, and its validity, construction, interpretation and legal effect shall be governed by the laws of that state applicable to contracts entered into and performed entirely within that state.

  1. SEVERABILITY

In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

  1. WAIVER

No waiver by Blue Million of any breach by Client of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.