TERMS & CONDITIONS
In these conditions “the Customer” means the person, firm or company who commissions the services of Say It! with Yawie – Design Studio “the Company/Designer”.
By commissioning the Company to undertake work ‘the project’ on their behalf, the Customer agrees that these Terms and Conditions of Trading define our working relationship. All projects, services or goods that the Company may be contracted to produce or provide for the Customer will be subject to the following:
1. Description of the Project (“Specifications”)
Designer agrees to develop the Project according to the Specifications described in the original design brief and specification.
2. Additional Editing & Changes
Any requested changes to the Specifications shall constitute additional editing and incur additional charges or fees. All additional changes must be submitted and approved by both parties.
In a nutshell:
New work requested by the Customer and performed by the Company after a proposal/estimate has been approved is considered a revision or alteration. If the job changes to an extent that substantially alters the specifications described in the original estimate, we will submit a revised proposal/estimate to you, and both parties must agree to a revised additional fee before further work proceeds. Alterations and other copy changes requested after layouts are completed are billed at our standard hourly rates.
3. Delivery of Project
Designer will use all reasonable efforts in the development of the Project and endeavor to complete and deliver to Customer all agreed print ready files, media and materials related to the Project no later than the agreed upon completion date provided that payment and all requested instructions and material have been received by Designer from Customer.
Any delay in the completion of the Project due to actions or negligence of Customer, transportation delays, illness, or circumstances outside the control of Designer may alter the delivery date. Designer will make reasonable effort to notify Customer of any delays to the estimated delivery date as soon as possible.
4. Exclusion of Liability
Under no circumstances whatever shall the Company be liable for losses special to the particular circumstances of the Customer, indirect or consequential loss including loss of profits, damage to property or wasted expenditure. Without prejudice to the other provisions of these conditions, the Company’s liability shall not exceed the total of the contract fees for the project. The fees for any project are based on the assumption that the liability of the Company and Customer are as set out herein. Nature of copy and property belonging to others The Customer agrees to exercise due diligence in its direction to us regarding preparation of materials and must be able to substantiate all claims and representations. The Customer is responsible for all trademarks, copyright and patent infringement clearances and is responsible for arranging, prior to publication, any necessary legal clearances, licenses, and usage or royalty payments.
This also includes
4.1: Errors and omissions
It is the Customer’s responsibility to check proofs carefully for accuracy in all respects, including but not limited to prices, spelling, dimensions and distances. The Company is not liable for errors or omissions. The Customer’s signature/oral agreement or that of his/her authorised representative is required on all proofs or artwork prior to release for printing or other implementation(s).
The Customer will indemnify and hold the Company harmless for any loss or expense (including legal fees) and agree to defend the Company in any actual lawsuit, claim or action arising in any way from our working relationship. This includes, but is not limited to claims made against the Customer and any of its products and services arising from the publication of material that we prepare and the customer approves before publication.
4.3: Force majeure
Production schedules, storage of files and property belonging to the Client will be established and adhered to by both Customer and the Company, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, industrial dispute or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the Customer or the Company. Where production schedules are not adhered to by the Customer, final delivery date or dates will be adjusted accordingly.
5 Reproduction of Project
Upon successful completion of all compensation terms and outstanding balances owed to Designer.
Customer is granted full and unlimited reproduction rights to the finished brief Project (- Please note: Not source files – see Ownership of Artwork and Source Files).
Designer retains the right to reproduce the Project in any form for marketing, future publications, competitions or other promotional uses. Designer shall at no time reproduce the Project for use in commercial means or for-profit use.
Customer may not reproduce or otherwise use design mock-ups, drafts, sketches etc. created by designer during work on the Project but not included into the final version of the Project. Such artwork belongs solely to Designer who may use it at his own discretion.
6. Ownership of Artwork and Source Files
Except for Customer’s Proprietary Material (defined below) contained in the Project, Designer shall hold all right, title, and interest in all original artwork, whether in draft, mock-up, concept or final development for the Project. Specifically, but without limitation, Designer shall hold all right, title, and interest in and to (1) all text, graphics or digital components of the Project (the “Content”), (2) all layouts, logos, structures or arrangements or other components of any materials presented to Customer that comprises the Project, (3) all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Content, and (4) all copyrights, patents, trade secrets, and other intellectual or industrial property rights in the Project or any component or characteristic thereof. Customer shall not do anything that may infringe upon or in any way undermine Designer’ right, title, and interest in the Project, as described in this Paragraph 4. Notwithstanding the above, Customer shall retain and, Designer shall have no proprietary rights whatsoever in all of Customer’s intellectual property rights in any and all text, images or other components and/or materials owned by Customer, or which Customer has the legal right to use, that are delivered to Designer, including but not limited to software, related documentation, Customer marketing material, logos, and tag lines (“Customer’s Proprietary Material”). Designer agrees that they shall not use Customer’s Proprietary Material for any other purpose than those expressly set forth in this Agreement.
In a nutshell:
Once a project has been delivered by us and is fully paid for by the Customer, the Company will assign the reproduction rights of the design for the use(s) described in the proposal. Final source files (e.g working/core/base files such as FL, INDD, PSD, AI files etc) can never be distributed to the end customer(s). According to copyright law, the rights to all design and artwork, including by not limited to photography, music and or illustration created by independent photographers, artists or illustrators retained by the Company, or purchased from a stock agency on behalf of the Customer, remain with the individual designer, artist, photographer or illustrator. Unless a purchase of ‘All Rights’ (a Buyout) is negotiated on behalf of the Company, you may not use or reproduce the design, work or the property therein for a purpose other than the one(s) originally stipulated. If you wish to use the design we have created and/or the images within it for another purpose or project, including a reprint or exhibition, you must contact us to arrange the transfer of rights and the payment of any additional fees before proceeding. We reserve the right to photograph and/or distribute or publish for our firm’s promotional and marketing needs any work we created for you, including roughs, visuals, mock-ups and presentations, as samples for our portfolio, newsletter, brochures, presentations, website and for entry for awards. We will endeavour to store files on computer disks for a period of 6 months beyond the delivery of a job. Thereupon, we reserve the right to discard them without notice.
For each project, the Customer will receive an estimate outlining the project specifications and estimated fees for our time based on our current hourly (/design package) rate and, where appropriate, any goods and professional services commissioned by us in order to complete the project, such as pictures etc. We will begin work upon the customer’s written or oral approval of the estimate and this will constitute an agreement between us. The Customer agrees to pay the Company in accordance with the terms specified in each proposal/estimate. Estimates are valid for 14 days from the date on the estimate.
Unless otherwise agreed, first-time Customers will be required to pay 50% of the project cost before work can begin, all subsequent balances due are payable upon artwork approval. Customers with certified credit history with the Company will be required to pay 50% of the project cost at specified mid-stage and all subsequent balances upon artwork approval. Payment to be received no later than 30 days, from invoice date unless credit terms agreed. We understand and will exercise our statutory right to interest and compensation for debt recovery costs under the late payment legislation if account(s) is not settled according to agreed credit terms. Interest will be charged at the current reference rate + 5% at every 30 days for invoices exceeding 30 days. We reserve the right to refuse completion or delivery of work until past due balances are paid. The Customer shall pay the Company’s costs, charges and expenses directly or indirectly incurred in obtaining or otherwise enforcing payment of outstanding accounts.
All materials or property belonging to the Customer, as well as work performed may be retained as security until all just claims against the Customer are satisfied.
In return for the Project(s) that are completed and delivered under this Agreement, Customer shall compensate the designer. In the event Customer fails to pay the Designer by the mutually agreed deadline, Designer has the right, but are not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) withhold all files, artwork, source, commitments or any other service to be performed by Designer for Customer, (3) bring legal action. Customer is fully responsible for all material costs and accepts responsibility for all additional material costs that Designer may incur in the development of this Project.
Customer and Designer acknowledge and agree that the Specifications and all other documents and information related to the development of the Project, excluding however, Customer’s Proprietary Material, (the “Confidential Information”) will constitute valuable trade secrets of Designer.
Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Designer’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
11. Limited Warranty and Limitation on Damages
Designer warrant the Project will conform to the Specifications. If the Project does not conform to the Specifications, Designer shall be responsible for the timely correction of the Project, at Designer’ sole expense and without charge to Customer, to bring the Project into conformance with the Specifications.
This warranty shall be the exclusive warranty available to Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Designer is not responsible for the results obtained by Customer’s use of any part of the Project. Customer acknowledges that Designer are not responsible for fixing any problems, errors or omissions on the Project, once mass produced or after Customer has tested, proofed and approved the Project.
This limited warranty shall become void and expire 60 days after the delivery of the Project by Designer.
12. Availability of Materials, Logos, Graphics and other Collateral
Customer agrees to make available to Designer, for Designer’ use in performing the services required by this Agreement, such graphical elements and materials as Customer and Designer may agree in writing for such purpose. Failure to provide Designer with Materials in the requested formats may result in additional delays or fees
13. General Provisions
The validity and enforceability of this agreement will be interpreted in accordance with the laws of England but the Company reserves the right to bring proceedings in connection with this contract in any other court of competent jurisdiction. Failure by the Company to enforce any of these conditions shall not be construed as a waiver of that condition or any other condition.
13.1 Entire Agreement.
This Agreement contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by all of the parties hereto.
13.2 Governing Law
This Agreement is governed by English law. Any dispute arising out or in connection with this agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration (“LCIA”) which Rules are deemed to be incorporated by reference into this clause. The place of arbitration shall be London, England.
13.3 Binding Effect
This Agreement shall be binding upon and endure to the benefit of Customer and Designer and their respective successors and assigns, provided that Designer shall not assign any of their obligations under this Agreement without Customer’s prior written consent.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
13.5 Good Faith
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
13.6 No Right to Assign
Customer has no right to assign, sell, modify or otherwise alter the Project, except upon the express written advance approval of Designer, which consent can be withheld for any reason.
13.7 Right to Remove Project
In the event Customer fails to make payment(s) within the time prescribed, Designer has the right to immediately cease all work on the Project until payment in full is paid.
Customer warrants that everything it gives Designer to include in the Project is legally owned or licensed to Customer. Customer agrees to indemnify and hold Designer harmless from any and all claims brought by any third-party relating to Customer’s Proprietary Material provided by Customer to Designer including any and all demands, liabilities, losses, reasonable associated costs and claims including reasonable attorney’s fees arising out of injury caused by Customer’s Proprietary Material supplied by Customer to Designer, copyright infringement, and defective products sold as a result of Customer’s distribution of the Project.
13.9 Use of Project for Promotional Purposes
Customer grants Designer the right to use the Project for promotional purposes and/or to cross-link it with other marketing venues developed by Designer.
13.10 Right to Style or to Make Derivative Works
Subject to Section 4 above, Designer has the exclusive rights in making any derivative similar works of the Project and any similarities between Customer’s Project and future projects constitutes Designer’s methods and style and shall remain the right of Designer.
13.11 Trademarks, Logos and other Intellectual Property Issues
Customer is responsible for any Copyright or Trademark issues related to the creation and use of Project files by Customer. Customer shall be solely responsible for any Trademark or Copyright searches pertaining to the Project unless otherwise contracted for in the Specifications. Designer will not knowingly copy other rightfully trademarked or copyrighted material.
Both the Customer and the Designer agree that while this Agreement is in force and for a period of twelve (12) months thereafter, they shall not directly or indirectly solicit or offer employment to any of the other’s officers, employees, third party contractors and associates who have been involved in or associated with this Agreement without the other’s prior written consent.
1. Costs and Payments
1.1 You must pay all charges as set out in the Proposal. Price quote and cost estimates provided by SAY IT! WITH YAWIE/DESIGN BOUTIQUE (SAY IT! WITH YAWIE/DESIGN BOUTIQUE) are only valid for a period of 30 days.
1.2 You will remain liable for all fees during any period when Services have been discontinued or suspended due to a failure on your part to comply with these terms and conditions.
1.3 You will be invoiced as agreed in your quote/proposal. All balances are payable before delivery of final design artwork or uploading of final files to live websites.
1.4 All invoices must be paid within 3 days. All intellectual property rights remain with SAY IT! WITH YAWIE/DESIGN BOUTIQUE until payment is cleared.
1.5 You must pay SAY IT! WITH YAWIE/DESIGN BOUTIQUE charges without any set off, counter claim or deduction unless it has been agreed, in writing, between us.
1.6 SAY IT! WITH YAWIE/DESIGN BOUTIQUE reserves the right to prioritise early paying clients, and to charge urgency fees for turnaround within 5 working days.
1.7 Agreed Costing is conditional on your supplying data required for a Website Stage or completion deadline agreed within 10 working days of confirmation of your order. SAY IT! WITH YAWIE/DESIGN BOUTIQUE reserves the right to revise the price if that condition is not met in line with charges applying at the relevant time.
1.8 No final design material or files will be delivered until final invoices are paid in full. Payment by cheque will involve waiting for clearance before the supply of files. Delivery being: Supply of final design digital files to printer, or on disk, or via email, or uploaded to a nominated ISP/Web server. Construction files, or code files, or script files remain the property of SAY IT! WITH YAWIE/DESIGN BOUTIQUE.
1.9 Agreed updates and Alterations made after date of completion and full payment is subject to a variable hourly charge.
1.10 Quotations and proposals must be accepted in writing by letter, or fax, or email, or by signing the quotation or proposal. A 50% deposit must accompany acceptance of the quotation or proposal unless otherwise agreed.
1.11 Deposits should be made via cheque or direct bank transfer and are non-refundable. Payments made to SAY IT! WITH YAWIE/DESIGN BOUTIQUE will not be refunded once design work has begun.
1.12 Design/Website work will not commence until the deposit has been received and cleared.
1.13 Where progress payments are staged in a quotation or proposal, they will fall due and payable as specified in the quotation or proposal. Overdue progress payments may result in suspension of design/website works in progress until all amounts in arrears (including interest) are paid in full.
1.14 (i) SAY IT! WITH YAWIE/DESIGN BOUTIQUE reserves the right to recover all costs associated with recovering unpaid invoices, including legal and administrative costs.
(ii) SAY IT! WITH YAWIE/DESIGN BOUTIQUE reserves the right to recover intellectual property in cases where there is non-payment by any means it sees fit.
1.15 SAY IT! WITH YAWIE/DESIGN BOUTIQUE reserves the right to revise and or alter initial quotes based on changes in website scope, changes or additional work provided by the client in addition to quote provided.
2. Limitation of Liability
2.1 All terms and conditions, warranties, undertakings inducements and representations, whether express or implied, statutory or otherwise relating to the provision of services by SAY IT! WITH YAWIE/DESIGN BOUTIQUE not contained in the Agreement are excluded and SAY IT! WITH YAWIE/DESIGN BOUTIQUE WILL NOT ACCEPT LIABILITY FOR ANY LOSS OR DAMAGE (INCLUDING CONSEQUENTIAL LOSS OR DAMAGE) HOWEVER CAUSED (WHETHER BY NEGLIGENCE OR OTHERWISE) WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY with respect to the service.
2.2 Where any applicable legislation implies any term, condition or warranty into the Agreement or in respect of SAY IT! WITH YAWIE/DESIGN BOUTIQUE’s relationship with you, or otherwise gives you a particular remedy against SAY IT! WITH YAWIE/DESIGN BOUTIQUE and the legislation or any other legislation renders void or prohibits provisions excluding or modifying the application of, exercise of, or liability under such implied term, condition, warranty or remedy will be deemed to be included in the Agreement or as the case may require apply to the relationship between SAY IT! WITH YAWIE/DESIGN BOUTIQUE and you. However, SAY IT! WITH YAWIE/DESIGN BOUTIQUE’s liability for any such breach of such implied term, condition or warranty or under such remedy, will be limited, at SAY IT! WITH YAWIE/DESIGN BOUTIQUE’s option, in any one or more of the ways permitted in that legislation, including, where so permitted if the breach relates to Services the supplying of those services again.
2.3 You acknowledge that web sites cannot be guaranteed to be 100% error free in construction, and acknowledge that any errors falling short of a complete failure of consideration in the site shall not constitute a reason to terminate this agreement.
3. Suspension of Services
3.1 SAY IT! WITH YAWIE/DESIGN BOUTIQUE reserves the right to suspend services in any event where you fail to perform your obligations under this agreement. If payment for services is not received within the terms of payment stated by us, websites may be taken down until payment is confirmed.
3.2 SAY IT! WITH YAWIE/DESIGN BOUTIQUE may from time to time and without notice or liability to you suspend any of the services if the reason for doing so is an event beyond the reasonable control of SAY IT! WITH YAWIE/DESIGN BOUTIQUE.
4.1 SAY IT! WITH YAWIE/DESIGN BOUTIQUE may discontinue services if an amount payable to SAY IT! WITH YAWIE/DESIGN BOUTIQUE is overdue, or take down a website permanently in any case where an amount payable is overdue by more than 7 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties.
5. Contents of Web Pages and Undertakings
5.1 You will be solely responsible for any content of your Web Pages/undertakings. SAY IT! WITH YAWIE/DESIGN BOUTIQUE is not responsible for proofreading any content unless specifically agreed.
5.2 It is your responsibility to ensure that Web Site content or functionality meets your requirements. SAY IT! WITH YAWIE/DESIGN BOUTIQUE makes no representations to you concerning the content or functionality of your Web Site.
5.3 If you provide SAY IT! WITH YAWIE/DESIGN BOUTIQUE with data, goods, material, photographs, film or information to be used in any form, you hereby warrant that these do not infringe the rights of third parties and indemnify SAY IT! WITH YAWIE/DESIGN BOUTIQUE against any action taken against SAY IT! WITH YAWIE/DESIGN BOUTIQUE by any such third party.
5.4 Without limiting the generality of the foregoing, you agree not to infringe the copyright trademark, privacy or personal or proprietary rights of third parties, supply libellous, abusive, obscene material or disparage the products or services of any third party.
5.5 SAY IT! WITH YAWIE/DESIGN BOUTIQUE for its part hereby undertakes not to knowingly infringe the rights of third parties in activities conducted on your behalf.
5.6 You are solely responsible for dealing with persons who access your data or webpage and warrant that you will not refer complaints or inquiries in relation to such data to us.
5.7 You acknowledge that web design and development work does not include the tasks and jobs of SEO (Search Engine optimisation) and W3C validation. These are separate jobs and if you want these to be undertaken by SAY IT! WITH YAWIE/DESIGN BOUTIQUE, you will have to agree with SAY IT! WITH YAWIE/DESIGN BOUTIQUE in writing and will be subject to separate and extra cost.
6. Technical Support, Changes and Maintenance
6.1 Technical assistance will be offered via email. You acknowledge that you will send all technical support or maintenance queries via email.
7. Intellectual Property
7.1 All files created remain the property of SAY IT! WITH YAWIE/DESIGN BOUTIQUE.
7.2 SAY IT! WITH YAWIE/DESIGN BOUTIQUE retains the Copyright in and the right to use all artwork created in advancing the profile of SAY IT! WITH YAWIE/DESIGN BOUTIQUE and to be recognised for artwork created by SAY IT! WITH YAWIE/DESIGN BOUTIQUE.
8. Cancellations & Termination
(a) Cancellation of an agreed quotation or proposal by you must be communicated to SAY IT! WITH YAWIE/DESIGN BOUTIQUE both by telephone and in writing (e.g. email).
(b) Once design work has commenced, the deposit is not refundable. Where the project is cancelled at your request, any costs accrued by SAY IT! WITH YAWIE/DESIGN BOUTIQUE over and above the deposit will be invoiced to you and will be due and payable immediately.
(c) Works in progress can be postponed at your request in writing. All outstanding costs to date will be invoiced to you and be payable immediately.
(d)(ii) Where you postpone a project in accordance with clause (d)(i) of this section, work will be restarted and completed at your instruction in accordance with the specifications of the original quotation.
(d)(iii) Notwithstanding clause (d)(ii) of this section, work resumed after postponement will be subject to cost revision. Work will not restart until revised costing (if any) has been agreed to in writing.
(e) SAY IT! WITH YAWIE/DESIGN BOUTIQUE reserves the right to terminate services where (i) there are outstanding invoices, or (ii) there is a material breach of these terms and conditions.
(f) SAY IT! WITH YAWIE/DESIGN BOUTIQUE will be entitled to cancel any agreement with you where you become insolvent, enter into voluntary arrangements with creditors, enter receivership or cease trading for any reason. This will be done without prejudice to any other rights or remedies available to SAY IT! WITH YAWIE/DESIGN BOUTIQUE. Amounts owing will be invoiced and immediately due and payable.