This Agreement for our services is hereby entered into between AnPat Media (hereinafter referred to as “Designer” “we”, “us”, “our”) and the business/individual to which AnPat Media is providing these services and ultimately work, to (hereinafter referred to as “Client”, “you”, “him”, “his”, “her”, “she”).
To bring clarity into this contract, we are going to define some terms/jargon which we may or may not have used in these terms of Engagement and in your Proposal (where required). Our goal is to develop Terms of Engagement in plain English which are mutually understood by all the parties agreeing to the Terms of Engagement and which minimises flawed beliefs. However we make no warranty/guarantee of accuracy and completeness of the Terms described below. Our definitions should not be considered a definitive list. For the purposes of this agreement:
The parties therefore agree as follows:
Basic Terms and Conditions
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)/Quote, Schedule A, together with any other Supplements designated below and with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, video, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyright means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.K. Copyright Law.
1.4 Deliverables means the services and work/task, product specified in the Proposal/Quote or Package to be delivered by us to the Client, in the form and media specified.
1.5 Package means a set of pre-determined deliverables that have been bundled together for the Client.
1.6 Quote means the work that has been quoted for based on a selected package, Client brief/instructions and initial questionnaire/consultation, which may form part of the proposal.
1.7 Designer Tools means all design tools developed and/or utilized by us 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.
1.8 Final Art means all creative content developed or created by us, or commissioned by us, 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 our selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.9 Final Deliverables means the final versions of Deliverables provided by us and accepted by Client.
1.10 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by us and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.11 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.12 Proposal means the documentation that has been formulated from the client brief/instructions and the initial questionnaire/consultation to provide the client with a plan/scheme for the design work. This will also include all deliverables and the quoted price.
1.13 Services means all services and the work product to be provided to Client by us as described and otherwise further defined in the Proposal/Quote.
1.14 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.15 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.
1.16 SEO means Search Engine Optimisation (SEO), which is the process of improving the amount or quality of traffic to a web site from search engines via “natural” or un-paid (“organic” or “algorithmic”) search results as opposed to search engine marketing (SEM) which deals with paid inclusion.
1.17 Editorial means any work that is involved in the creation of textual content such as, copywriting, copyediting and proofreading.
1.18 Document Design means the creation of the document, which may involve document formatting, typesetting DTP (Desktop Publishing) and document conversion (e.g. convert to ePub standard file format for iPhone, iPad, Kobo eReader, etc…)
1.19 Search Engines means a computer program which is used to retrieve documents from a computer network such as, Google, Yahoo and Bing.
1.20 Client’s Competitor means an individual/company, which is in the same exact niche as the client and is targeting same/identical keywords in same/nearby geographic location(s).
1.21 Keyword means keyword or keyword phrase, which is a search term(s) used to retrieve information through search engines.
1.22 Keyword Stuffing means when a web page is loaded with keywords in the Meta tags or in content. This practice is deemed an unethical SEO technique.
1.23 URL means the address of the web page on the Internet.
1.24 Link Building means an SEO technique which is used to get backlinks for a website.
1.25 Website Usability means how easy it is for visitors to use your website.
1.26 Website Accessibility means how accessible your web pages are to your visitors and search engines.
1.27 Conversion Rate means the percentage of visits which result in goal (can be orders, leads, downloads, pageviews, sign ups, traffic etc…) conversions.
1.28 Confidential Information means information that includes but is not limited to, any and all fees, services, documents, recommendations, reports, e-mails, postal mail, courier, phone, Skype or Webex consultation for the purpose of reporting, recommending or educating/training the client.
1.29 Bespoke means a tailored made solution/service that is not in the form of an off the peg Package.
1.30 Delinquent means a debt or other financial obligation on which payment is overdue.
The terms of the Proposal/Quote 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/Quote, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. Billing and Payments
3.1 Billing. In consideration of the Services to be performed by us, Client shall pay to us fees in the amounts and according to the payment schedule set forth in the Proposal/Quote and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Payments. All invoices must be paid within 7 days after presentation by PayPal/credit cards supported by PayPal, direct debit (GoCardless), bank transfer, bitcoin or cheque. Payment for services is in full unless otherwise stated. Any additional non-prepaid maintenance time charged will be billed weekly at £12.50 / hour. Recurring plans will be invoiced monthly and are due upon presentation. No discount is offered for early payment.
3.3 Leasing Plans. The Client does not own the site, or any of the graphics, images, video/multimedia created in support of the site development. Is subject to a minimum 2 year contract and an early cancellation fee, which will be determined by AnPat Media. Leasing plans are billed monthly via a direct debit. On cancellation of the lease agreemnet the site returns to AnPat Media and any Client documentation/content returned to the client.
3.4 Late Fees. Delinquent bills will be assessed at £15 or 1.5% of the total amount due, whichever is the greater fee, if payment is not received within 10 days of the due date. If an amount remains delinquent 30 days after its due date an additional late fee of £15 or 1.5% of the total amount due, whichever is greater, will be added. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. We reserve the right to withhold delivery, remove web pages from viewing on the internet, discontinue any remaining work until payment is made 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.
3.5 Returned Cheque. If a cheque is returned by the Client’s bank for any reason, Client agrees to pay a returned cheque fee of £30 plus any bank charges incurred in addition to the amount of the cheque. Additional legal, collection and late fees or charges may apply.
3.6 Deposit. Upon acceptance of any Web Design Package or Bespoke Web Design work we require a non-refundable deposit of 50% before commencing work on your Project, with the remainder to be paid on completion.
3.7 Refunds. Due to the nature of our work being time intensive, we cannot offer refunds on completed designs, even where the deliverables have not been used by the Client. We are not obligated to refund the purchase price of any service under any circumstance unless explicitly agreed to by us. If applicable, any refund will be granted within 10 working days from receipt of a request. Price, terms, and availability are subject to change without notice.
3.8 Quoted Price. Our quoted prices are all inclusive and there are no hidden charges.
3.9 Delays. We reserve the right to charge for work undertaken in the event that completion is delayed by the client or by other factors external to us.
4.0 Price. We reserve the right to change the price at any time.
4.1 Discounts. We may offer a price discount and invoicing arrangement to customers with whom we have an ongoing partnership with.
4.1 General Changes. Unless otherwise provided in the Proposal/Quote 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 a standard design hourly rate of £15 per hour. Such charges shall be in addition to all other amounts payable under the Proposal/Quote, despite any maximum budget, contract price or final price identified therein. We may extend or modify any delivery schedule or deadlines in the Proposal/Quote 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 25% of the time required to produce the Deliverables, and or the value or scope of the Services, we shall be entitled to submit a new and separate Proposal/Quote to Client for approval. Work shall not begin on the revised services until a fully signed (electronic signature accepted) revised Proposal/Quote and, if required, any additional retainer fees are received by us.
4.3 Timing. We will prioritize performance of the Services as may be necessary or as identified in the Proposal/Quote, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal/Quote. 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 Client’s concerns, objections or corrections to us. We shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that we have the ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of their obligations to provide materials and written approvals and/or instructions pursuant to the Proposal/Quote 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 our obligations under this Agreement.
4.4 Testing and Acceptance. We 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 working days of receipt of each Deliverable, shall notify us, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal/Quote, 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 we 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.
5. SEO Work
5.1 We have no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s web site may be excluded from any directory or search engine at any time at the sole discretion of the search directory or search engine.
5.2 Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, we do not guarantee top positions or consistent top 10 positions for any particular keyword, phrase, or search term.
5.3 Google has been known to hinder the rankings of new websites/pages until they have proven their viability to exist for more than “x” amount of time or have enough back link strength. We assume no liability for ranking, traffic, indexing issues related to such penalties. Client understands that ranking new websites is much trickier than ranking old and established sites and should not have unrealistic expectations about rankings, traffic and revenues.
5.4 New websites may get a temporary boost in ranking for some targeted keywords for a few days but then settle down to its real place. Consequently Client understands that his new site has not really got top rankings within a month and soon it will go down to its actual position.
5.5 Now and then, search engines will drop listings for no apparent reason. Often, the listing will reappear without any additional SEO work.
5.6 Website SEO ranking can fluctuate daily, any time due to on-going changes in the ranking algorithm, SEO work made by the competitors or both.
5.7 We make no guarantee/warranty of project timeline or added expenses if the SEO work is destroyed either wholly or in parts, either knowingly or unknowingly by any party other than us or without the prior consultation of us. SEO work is considered to be destroyed either wholly or in parts if the following alterations (but not limited to) are made to a website by any party other than us or without first consulting us:
Changes in the file(s) or folder(s) name.
Placing a file in a different folder or inserting a folder into another folder or sub domain.
Making changes in the head section of a document for example, changing the text in the title tag, removing certain HTML tags required for site authentication.
Removing a link, folder, file, web document or sub domain.
Modifying text on a web document such as, altering the formatting of the text or moving the text.
Removing analytics code from the web page which is used to track website traffic.
Linking out to any website without prior consultation with us.
Adding a file, folder, web document, widget or any functionality.
Renaming URLs of existing web documents.
Taking down the website or part of the website.
Renaming, relocating, adding or removing any file, folder or sub domain on a web server including web documents, robots.txt, .htacess file, sitemap.xml, rss.xml etc…
Changes in the site architecture.
Changes in the anchor text.
Making any changes on an optimised web page.
5.8 We make no guarantee/warranty of project timeline or added expenses if:
Client fails to resolve our queries on time.
Make delays in providing required access, documents, permissions or any support for SEO purpose.
Fail to make necessary changes on the website as and when advised by us for carrying out the SEO work.
There is a server outage for prolonged time on Client’s site.
5.9 We are not responsible for Client overwriting SEO work. Client will be charged an additional fee for reconstructing, re-optimising content/web pages, based on the hourly rate of £15.00 per hour.
5.10 Whilst every effort is taken to ensure the accuracy of any SEO work undertaken, we make no guarantee of its accuracy or the effectiveness of any services mentioned.
5.11 Client understands that the SEO alone can’t be held responsible for his/her site’s success or failure. Client understands that he/she needs to work as a partner with his/her SEO, give him/her the necessary time and commitment and follow his/her advice/suggestions on time to make his/her marketing campaigns a success.
6. Document Formatting
6.1 We provide a Document Formatting Service following instructions provided by the Client. We take no responsibility for the subsequent outcome of the document whether a student submits it for grading, a business distributes it to customers or an individual sends it to their publishers.
6.2 We reserve the right to refuse to format a document where the content is deemed unsuitable or the deadline cannot be met.
6.3 By entering into an agreement with AnPat Media you are asserting that you have the right to edit the document and are the copyright holder or have the copyright holder’s permission.
7.1 Copyright. Clients submitting material to us for editorial work retain copyright in such material, and we require no other credit or acknowledgment for work completed other than the fees described on the Editorial Services page. We do not claim any rights to such material by virtue of supplying its editorial work, and will not use or disclose such material for any reason other than providing our services. You represent and warrant: that you own or otherwise control all of the rights to the material that you submit for service; that the material is accurate; that use of the material you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify us and/or our Design Agents for all claims resulting from material you supply. We have the right but not the obligation to monitor and refuse any activity or content. We take no responsibility and assume no liability for any material submitted by you or any third party.
7.2 Content. We may provide advice on changes that you, your publisher, or other third parties may accept, reject, or further amend. Content of any finished work is therefore entirely the responsibility of the Client or other persons to whom the Client delegates, licenses, or otherwise assigns control over his or her work. Our work on any manuscript does not imply any endorsement of its content or of the Client. We expressly prohibit the association of AnPat Media and any AnPat Media trademark, editor, staff, or Design Agents with any published work, including by way of acknowledgment. Comments provided to the Client by us, staff, or Design Agents are provided for personal use only. Credit, rights, and acknowledgment for original works created by us, staff, or Design Agents will be negotiated on a case-by-case basis. It is the Clients responsibility to carry out the final proofreading.
7.3 Quotes. Quotes for editorial work will remain valid for up to seven days from being presented to the Client.
There are a number of ways to secure a site or web application. We will attempt to ensure that Client’s site or web application is secure from intrusion to a basic level; however it is ultimately the Client’s responsibility to check the suitability of any such security measure for their business needs. We do not guarantee the effectiveness of any such security measure and accept no responsibility for any consequential damages to the Client as a result of any intrusion. AnPat Media advice Clients to take regular backups of their websites and to maintain the integrity of passwords and user access to their site.
We may provide general guidance for adhering to Site Terms and Conditions, Privacy and Cookie laws, however as we are no expert in legal matters we strongly suggest that you seek expert advice to ensure your business complies with the law. We make no guarantee of the accuracy, effectiveness or suitability of any advice given.
10. CLIENT RESPONSIBILITIES
Client acknowledges that he/she shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Designer;
(b) provide a detailed project brief and any further information as required;
(c) identify a single decision maker who is empowered with the ability to agree the Proposal/Quote, final drafts and other key decisions;
(d) 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/Quote;
(e) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors, misspellings or information inaccuracies, remain in the finished product, Client shall incur the cost of correcting such errors;
(f) Client undertakes fully to virus-check all data supplied to AnPat Media pursuant to this Agreement; and
(g) for account access the Client agrees to provide Designer full ftp and secure shell access to hosting server. Client understands that some website changes may require a change in hosting services which is not covered by this agreement. The Client is also responsible for the ongoing registration of the hosting and any domain name(s) linked to the site.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in our name in the form, size and location as incorporated by us in the Deliverables, or as otherwise directed by us. We retain the right to reproduce, publish and display the Deliverables in our 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.
12. 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/Quote 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.
13. RELATIONSHIP OF THE PARTIES
13.1 Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer shall provide the Services under the general direction of Client, but Designer shall determine, in Designer’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 authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer 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.
13.2 Designer Agents. Designer 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, Designer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
13.3 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 Designer, employee or Design Agent of Designer, 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 Designer 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. Designer, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
13.4 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 Designer, and Designer shall be entitled to offer and provide design services to others, solicit other Clients and otherwise advertise the services offered by Designer.
14. WARRANTIES AND REPRESENTATIONS
14.1 By Client. Client represents, warrants and covenants to Designer that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of Client Content,
(b) to the best of Client’s knowledge, Client Content does not infringe the rights of any third party, and use of 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) use of 3rd party graphical element may require a statement at the bottom of the web page acknowledging the source of the graphical element. It is agreed by both Client and Designer that such statement shall remain on the web site so long as the graphical element remains. Under no circumstances shall these elements be used in any other media or marketing outside the web site, unless Client receives direct authorization from the 3rd party. It is the responsibility of Client to make sure that required source acknowledgements are placed with appropriate elements.
(d) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(e) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
14.2 By Designer
(a) Designer hereby represents, warrants and covenants to Client that Designer 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) Designer 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 Designer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Designer, Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Designer’s knowledge, the Final Art provided by Designer and Designer’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/Quote or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.
(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER. DESIGNER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSOR 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.
15.1 By Client. Client agrees to indemnify, save and hold harmless Designer 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 Designer 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) Designer 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 Designer in providing such assistance.
15.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer 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 Designer’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 Designer in writing of the claim;
(b) Designer shall have sole control of the defence and all related settlement negotiations; and
(c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer 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 Designer.
15.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF DESIGNER ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF DESIGNER, 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 DESIGNER. IN NO EVENT SHALL DESIGNER 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 DESIGNER, EVEN IF DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
16. TERM AND TERMINATION
16.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
16.2 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.
16.3 In the event of termination, we shall be compensated for the Services performed unless otherwise stated 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 us or our 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.
16.4 In the event of termination by Client and upon full payment of compensation as provided herein, Designer 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.
16.5 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.
17. Policy Amendments
We may update this Agreement from time to time by posting a new version on our website. You should check this page occasionally to ensure you are happy with any changes.
We may also notify you of changes by email.
18. Law and Jurisdiction
19.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes 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.
19.2 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 provided, 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.
19.3 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.
19.4 Force Majeure. We shall not be deemed in breach of this Agreement if we are 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 Designer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Designer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, we shall give notice to Client of our inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
19.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with English law, and any disputes relating to this Agreement will be subject to the non-exclusive jurisdiction of the courts of England and Wales. 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 HM Courts & Tribunals Service, 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 courts of England and Wales. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer 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.
19.6 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.
18.7 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.
The Client agrees to all of the terms and conditions of this Agreement on completion of the Order/Quote Form. Client acknowledges ticking the checkbox for accepting the Client Terms of Engagement represents the electronic signing of this Agreement.
Schedule A: Intellectual Property Provisions
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Designer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Designer 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
1.3 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.
1.4 Original Artwork. Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within 30 days of completion of the Services.
1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer for use by Client as a Trademark. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Designer 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.
1.6 Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer hereby grants to Client a non-exclusive, non-transferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Designer.
2. RIGHTS TO FINAL ART
With respect to such usage, Client shall have:
Exclusive license, with modification rights:
For print AND/OR online/interactive AND/OR three-dimensional media: Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Designer hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal/Quote and in accordance with the terms and conditions of this Agreement.
Supplement 1: Print-specific Terms and Conditions
1. Samples. Client shall provide Designer with at least one sample of each printed or published form of the Final Deliverables, for use in Designer’s portfolio and other self- promotional uses. Such samples shall be representative of the highest quality of the work produced.
2. Finished Work. The printed work and the arrangement or brokering of the print services by Designer, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, Designer shall provide copies of the current or standard trade practices to Client. Notwithstanding, Designer shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.
Supplement 2: Interactive-specific Terms and Conditions
1. SUPPORT SERVICES
1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal/Quote. During the first 6 months following expiration of this Agreement (“Warranty Period”), if any, we shall provide up to 24 hours of Support Services at no additional cost to the Client. Additional time shall be billed at the standard maintenance hourly rate of £12.50, then in effect upon the date of the request for additional support. The Warranty Period will commence following the site launch date, which is regarded as the training day or another agreed date.
1.2 Maintenance Period. Upon expiration of the Warranty Period and at the Client’s preference, we will provide Support Services based on our Maintenance Packages (“Basic”, “Standard”, or “Premium”) over a period of 1-12 months or longer as determined by the Client’s needs. The Client may also request a Bespoke Maintenance Service charged at the standard maintenance hourly rate of £12.50 and paid in advance.
1.3 Website Maintenance Packages. These include (but not limited to) adding new pages, editing existing pages, simple modifications and updates to scripts, templates, applications and databases, running scripts, security scans site backup and recovery. These services are subject to the Maintenance Package ordered. All maintenance packages are paid monthly in advanced. The package prices are determined by the allocated hours. Any unused hours at the end of the month will be lost. Maintenance work is carried out for the purchased hours. All maintenance work will be invoiced monthly based on the package taken out.
1.4 Services Excluded. Unless previously agreed to in writing web site maintenance does NOT include website redesign, custom images or artwork, custom script design. Also excluded are hosting fees, ecommerce related services or fees, like credit card processing fees or shopping cart purchase or rental, SSL (Secure Socket Layer) certificate costs, domain name registration and services provided by any 3rd party. These items would need to be quoted on an individual basis.
1.5 Monthly Website Maintenance. This payment option is ideal for Clients that require regular updates. Recurring billing is monthly until cancelled. There is a 10 day notice of cancellation prior to the next month’s billing required by either party. Notice must be given in writing via email.
1.6 Training. At the end of the project up to 2 hours of training will be provided to help the Client manage and update their website. Client also has access to free training resources for WordPress and Site Studio (Website Builder). If further training is required after the Warranty Period, additional training will be charged at the standard design hourly rate of £15 per hour.
During the Maintenance Period, Client may request that we develop enhancements to the Deliverables, and we shall exercise commercially reasonable efforts to prioritize our resources to create such enhancements. The parties understand that pre-existing obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at ours then in effect price for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Designer represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal/Quote in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Designer, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal/Quote. The parties acknowledge that Client’s sole remedy and Designer’s sole liability for a breach of this Section is the obligation of Designer to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Designer, Designers sole obligation shall be to substitute alternative Third Party Materials.
3.2 Designer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Designer represents and warrants that, to the best of Designer’s knowledge, the Designer Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
3.3 Guarantees. Logo Designs come with a money back guarantee all the way up to the final design, or a whole 90 days from the start of the design project.
4. COMPLIANCE WITH LAWS
Designer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.
5. Data Protection
5.1 AnPat Media retain “Admin” access rights, hosting and email account information, all art work produced and site files/documentation, for as long as the Client uses our services. We will, upon request, delete such information. We keep this information should the Client require support and for any maintenance, site backup and hosting services or site changes.
5.2 We also retain hosting access and billing information for the duration of the hosting plan. We will, upon request, delete such information beyond this period.
5.3 We consider all data provided by the Client as confidential, in accordance with our policies, unless advised otherwise.
6. Laws Affecting Electronic Commerce
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend AnPat Media and its Design Agents from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet electronic commerce.