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Updated 7 October 2015
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under UK Copyright Law.
1.4 Deliverables means the services and work product specified in the Proposal to be delivered by Agency to Client, in the form and media specified in the Proposal.
1.5 Designer Tools means all design tools developed and/or utilised by Agency in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Art means all creative content developed or created by Agency, or commissioned by Agency, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Agency’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by Agency and accepted by Client.
1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Agency and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to Client by Agency as described and otherwise further defined in the Proposal.
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3.1 Fees. In consideration of the Services to be performed by the Agency, Client shall pay to the Agency fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. Client shall pay the Agency’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus the Agency’s standard markup of 30%, and, if applicable, a mileage reimbursement at £0.45 per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by the Agency with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes the Agency’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices. All invoices are payable within 14 days of receipt. A weekly service charge of 5% is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. The Agency reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
4.1 General Changes.Unless otherwise provided in the Proposal, and except as otherwise provided for herein, 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 the Agency’s standard hourly rate of the Agency’s £60 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. The Agency may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 20% of the time required to produce the Deliverables, and or the value or scope of the Services, the Agency shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by the Agency.
4.3 Timing. The Agency will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to the Agency. The Agency shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that the Agency’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or the Agency’s obligations under this Agreement.
4.4 Testing and Acceptance. The Agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify the Agency, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and the Agency will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Agency;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) 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 incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in the Agency’s name in the form, size and location as incorporated by the Agency in the Deliverables, or as otherwise directed by the Agency. The Agency retains the right to reproduce, publish and display the Deliverables in the Agency’s portfolios and websites, 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. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
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. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8.1 Independent Contractor. The Agency is an independent contractor, not an employee of Client or any company affiliated with Client. The Agency shall provide the Services under the general direction of Client, but the Agency shall determine, at the Agency’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. The Agency and the work product or Deliverables prepared by the Agency shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Designer Agents. The Agency shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, the Agency shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Agency, employee or Design Agent of the Agency, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that the Agency shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. The Agency, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by the Agency, and the Agency shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by the Agency.
9.1 By Client. Client represents, warrants and covenants to the Agency that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Designer
(a) The Agency hereby represents, warrants and covenants to Client that the Agency will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) The Agency further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of the Agency and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by the Agency, the Agency shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for the Agency to grant the intellectual property rights provided in this Agreement, and (iii) to the best of the Agency’s knowledge, the Final Art provided by the Agency and the Agency’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of the Agency shall be void.
(c) Except for the express representations and warranties stated in this agreement, the Agency makes no warranties whatsoever, the Agency explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
10.1 By Client. Client agrees to indemnify, save and hold harmless the Agency 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 the Agency shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defence and all related settlement negotiations; and
(b) The Agency 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 the Agency in providing such assistance.
10.2 By Agency. Subject to the terms, conditions, express representations and warranties provided in this Agreement, the Agency 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 the Agency’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 the Agency in writing of the claim;
(b) The Agency shall have sole control of the defence and all related settlement negotiations; and
(c) Client shall provide the Agency with the assistance, information and authority necessary to perform the Agency’s obligations under this section. Notwithstanding the foregoing, the Agency 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 unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by the Agency.
10. 3 Limitation of Liability. The services and the work product of the Agency are sold “as is.” In all circumstances, the maximum liability of the Agency, its directors, officers, employees, design agents and affiliates (“Designer 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 the Agency. In no event shall the Agency 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 the Agency, even if the Agency has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon 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 10 days from receipt of written notice of such breach.
11.3 In the event of termination, the Agency 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 the Agency or the Agency’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.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, the Agency 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.
11.5 Upon expiration or termination of this Agreement:
(a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and
(b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that the Agency’s invoices may include, and Client shall pay, expenses or costs that Client authorises by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure. The Agency shall not be deemed in breach of this Agreement if the Agency is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of the Agency or any local, national or international law, governmental order or regulation or any other event beyond the Agency’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, the Agency shall give notice to the 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.
12.5 Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of England and Wales. Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales.
It is agreed that where any dispute or difference relating to this Agreement arises between the Client and the Agency that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.
The arbitrator shall be agreed by the either the Client or the Agency or in the event of failure to agree shall be appointed by the President for the time being of the Law Society of England and Wales.
The arbitration shall take place in Kent and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of that Act for the time being in force.
The Client and the Agency shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.
The Client and the Agency shall require the arbitrator to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable.
The Client and the Agency shall co-operate fully with the arbitrator to achieve this objective.
The Client and the Agency shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon both the Client and the Agency.
The Client and the Agency agree to exclude any right of application or appeal to the courts of England and Wales concerning any question of law arising in the course of the arbitration.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and Name(s) of any other documents.