The following terms and conditions refer to The Barefaced Movement Limited (“the Agency”) and its relationship with its Clients and potential Clients (“the Client”).
It is agreed as follows:
Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine, and vice versa. The headings contained in this Agreement are for convenience only and do not affect their interpretation.
The following expressions shall have the following meanings:
1.1 “Agency” means Barefaced Studios, trading name of The Barefaced Movement Ltd, 85 Stroud Green Road, London, N4 3EG;
1.2 “Client” means any person or company who purchases Services from the Agency;
1.3 “Proposal” means a proposal, quotation or similar object describing the Agency Services;
1.4 “Services” means the Agency Services as described in the Proposal;
1.5 “Fee” means the monies due to the Agency from the Client for providing the Services;
1.6 “Intellectual Property Rights” or “Intellectual Property Provisions” (henceforth “IPR”) means any patent, trademark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, above, and any other Intellectual Property Right recognised in any part of the world whether or not presently existing or applied for;
1.7 “Agency Terms” means the terms and conditions of supply of Services which are available on https://barefacedstudios.com/agency-terms/
1.8 “Agreement” or “Contract for the Provision of Services” means the contract between the Agency and the Client for the Provision of the Services incorporating the below terms and conditions;
1.9 “Amendment”, sometimes referred to as a “Revision” or “Development” means any change requested by the Client that needs to occur with regards to design and/or content and is split into two categories- “Minor Amendments” and “Major Amendments”;
1.10 “Agency Rate Card” or “Agency Rates” means the standard chargeable agency rates assigned to various types of Services;
1.11 “Deliverables” means all final Work required as set out in the Confirmation Note or Scope of Work;
1.12 “Project” means the total number of Services as set out in the Confirmation Note or Scope of Work;
1.13 “Work” means any work created by the Agency as part of their Services as set out in the Confirmation Note or Scope of Work;
1.14 “Final Work” means any Work created by the Agency that is fully complete, either by virtue of reaching the scope of the Work as set out in the Confirmation Note, and/or by agreement and approval of both parties;
1.15 “Third Party Materials” means any materials not created and owned by the Agency or Client.
1.16 “Design Route” or “Route” means a proposed design idea or mock-up that is not yet fully developed, usually created by the Agency to allow the Client to choose from several Design Routes or Routes before then developing the work further;
1.17 “Redesign” means the creation of a new design from scratch or where the Client wants a significant amount of Major Amendments to a design that may significantly change or distort the original design;
1.18 “Scope of Work” means a list of the Deliverables for the creation of one or multiple pieces of Final Work usually set out in a Confirmation Note or in another form of written agreement which must either be signed by both parties or confirmed as accurate and approved by the Client by return email;
1.19 “Confirmation Note” means a formal written document containing details of the Scope of Work, usually for a Project consisting of several Services, sent by the Agency to the Client before the commencement of any Work, which must be signed by both parties in order to commence any Work.
1.20 “Retainer Agreement” or “Retainer” means a contract between Client and Agency whereby the Agency provides the Client with assured access to their Services each month, as outlined in a Confirmation Note, often at a discounted Fee, whereby the Client pays a lump sum upfront or, more commonly, makes a recurring monthly payment.
1.21 “Client Content” means any imagery, moving image, branding, copy, or any other information or visual asset provided by the Client.
2.1 The Agency agrees to produce project materials (the “Work”) at the request of the Client for Fees agreed upon in advance and delivery of the Work by an agreed upon deadline.
2.2 Any stated timescale is reliant upon the Client providing all required, finalised, high-quality and usable information, copy, images, or other assets within the time set out at project initiation.
2.3 The Fees agreed between the Agency and the Client are subject to an agreed Scope of Work, which may be laid out in a Confirmation Note or in writing by email, and agreed upon prior to work commencing. Any changes to the Scope of Work may result in additional Fees being charged to the Client by the Agency and may affect any agreed delivery time.
2.4 The Agency will cooperate with the Client in editing and otherwise reviewing the Work prior to completion and launch subject to the terms of the Confirmation Note or Scope of Work.
2.5 The Agency shall not be required to provide any Services, advice and assistance in addition to the Deliverables set out in the Confirmation Note or Scope of Work, and any requests to provide such additional Services, advice and assistance shall be subject to the prior approval of the Agency and agreement between the Agency and the Client as to the level of Fees payable for such additional Services, advice and assistance. In the event that such additional Services, advice and assistance is agreed, the Agency must notify the Client of the Terms upon which these will be provided, including details of any new Fee arrangements, in order that the Fee arrangement between the Agency and Client as set out in the Confirmation Note may be adjusted accordingly together with adjustments to the payment terms.
2.6 No variation or alteration of these Terms shall be valid unless approved by the Client and the Agency in writing, except where changes are necessary to comply with applicable safety and other statutory requirements, in which case the Agency may make such necessary changes without prior notification to the Client.
3. Change Requests
3.1 The Fee quoted in the Confirmation Note or attached to the Scope of Work is inclusive of change requests, called Amendments, at specific stages of the project completion. These Amendments are split into two categories – Major Amendments and Minor Amendments, an explanation of which are detailed below under points 3.7 and 3.8. The total number and type of Amendment requests for any given design component of any given Project will be determined in the Confirmation Note or Scope of Work.
3.2 Any additional Amendments, individual or multiple, will be charged extra in line with the current Agency Rate Card.
3.3 All Amendment requests must be submitted via written electronic communication which will be confirmed in writing by the Agency.
3.4 The Client agrees that additional, delayed or late Amendment requests may affect the project completion date of any Work and that their project completion date will be delayed by a reasonable period of time to be defined by the Agency. This will not affect the payment schedule whereby all monies will still be due per the original payment schedule.
3.5 Any Fees for additional Amendments shall be in addition to all other amounts payable under the Confirmation Note or Scope of Work, despite any maximum budget, contract price or final price identified therein.
3.6 If Amendments are noted in the Confirmation Note as a ‘round’ the Client must send across all final Amendments together as a collated list. Any amendments submitted separately to this list may not be accepted or may be charged for by the Agency in addition to the project Fee.
3.7 Major Amendments refer to any bigger and more complicated changes. This means revisions such as considerable changing of layouts (moving pictures, texts and images around), changing the order of copy or pages, adding large volumes of copy or significant amounts of copy enough to impact upon the layout, adjusting typography or making changes to illustrations.
3.8 Minor Amendments refers to any smaller and less complicated changes. This can mean revisions such as changing short phrases of text, substituting one picture for another without changing the layout, colour tweaks.
3.9 The Client accepts that it is impossible to include every scenario here, and some changes fall between minor and major, in which case it will be at the Agency’s sole discretion as to whether they determine that an Amendment is classed as minor or major.
3.10 Multiple Design Routes or Routes may be submitted to the Client by the Agency as part of the Scope of Work, in which case the Client has a specified amount of time, as agreed between the Agency and Client, to choose their one preferred Route, provide any feedback and submit any Amendments or rounds of Amendments as specified in their Confirmation Note. The amount of time is dependent upon allocated time frames and deadlines but often falls between 48 hours and one week.
3.11 Once the Agency has received the Client’s Amendments or round of Amendments, the Agency will provide a new version and that’s the end of that round of development. In the instance where by more than one round of Amendments has been included in the Confirmation Note this process will continue again until all included rounds of Amendments have been accounted for.
3.12 If the Client wishes to make more Amendments to the design exceeding the number of Amendments or rounds of Amendments agreed in the Confirmation Note, the Client must submit a collated list of all desired Amendments to the Agency by email. The Agency will then send the Client a quote by email for the additional Amendments requested.
3.13 In most instances the Agency will include a minimum of two x Design Routes or Routes, but in some exceptional cases the Agency may only include one x Design Route or Route. Such instances where only one x Route is included in a Scope of Work may be a result of the Agency trying to help a Client with a limited budget or tight turnaround times. The same process in regards to Amendments or rounds of Amendments will be followed as per points 3.9 to 3.11 above, however the Client will not benefit from having more than one Route to choose from.
3.14 If the Client does not like any of the Routes created by the Agency and does not wish to proceed further with any of them, they may choose to opt for a Redesign or a new Design Route. In this instance the Agency will provide a quote for the Redesign or new Design Route, including any rounds of Amendment, and the process will begin again.
3.15 If the Client does not like any of the Design Routes or Routes included in their Confirmation Note and does not wish to proceed further with any of them and decides they no longer wish to continue working with the Agency they may then cancel the contract in line with our cancellation terms (please see section 8 “Cancellation” and 20 “Intellectual Property”).
3.16 If the Confirmation Note or Scope of Work does not include or mention Amendments for any or all of the Services or Work outlined then the Agency will perform a maximum of 2 x rounds of Minor Amendments for each package or piece of Final Work included in the Confirmation Note or Scope of Work as standard.
4.1 Each party acknowledges that in connection with an agreed Project it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation “Confidential Information”.
4.2 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 Confirmation Note or Scope of Work, 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.
4.3 Both parties agree to protect the confidentiality of both party’s proprietary information and all physical forms thereof, whether disclosed to either party before any Agreement is signed or afterward.
4.4 Unless strict confidentiality or an embargo is requested in writing by the Client in advance of any Agreement being signed, and agreed to in writing by the Agency, the Agency can display materials, preliminary work, conceptual work and final work created for Client on the Agency’s websites, social media channels, portfolio and any other promotional source or media – whether digital or in print.
5. Quotes + Fees
5.1 All quotes and estimates are valid for 30 days from the date of submission.
5.2 Quotes and estimates are based upon the information provided by the Client, including, but not limited to, detail on quantities, structure, scope and functionality. Any quote or estimate may therefore be subject to change should the Client’s requirements change at any time.
5.3 Unless otherwise stated VAT will be charged extra.
5.4 If the contract or hourly Fee has not been fixed for the term of a contract, the hourly agency rates will apply (please see the Agency Rate Card).
5.5 The Agency reserves the right to alter the Agency Rates at any time as business needs dictate.
5.6 Quotes/estimates are based upon the Agency’s current costs of production and, unless otherwise agreed, are subject to amendment on or at any time after acceptance to meet any rise or fall in such costs.
5.7 Any stated timescale is reliant upon the Client providing all required, finalised, high-quality and usable information, copy, images or other assets within the time set out at project initiation.
5.8 If any images or other assets provided by the Client are not of high enough quality to be used by the Agency, or other issues arise that may cause delays to the production of the work, such as but not limited to issues with usage rights or amendments to copy submitted after the work has commenced, the Agency reserves the right to charge the Client additional fees should these issues result in extra time being spent by the Agency to create the Deliverables.
5.9 Any estimates given by the Agency as to the time of completion or performance of its services (whether completion of the whole or a part of those services) shall be estimates only and time shall not be of the essence.
5.10 The Project Fees include the Agency’s Fees 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 Confirmation Note or Scope of Work.
6. Invoices + Payment
6.1 Due to the nature of the Work and the often tight turnaround times, payment must be made no more than 5 working days after the date of invoice unless otherwise agreed by both parties in writing in advance prior to commencing any Work.
6.2 The Agency understands and will exercise their statutory right to interest under the Late Payment of Commercial Debts (Interest) Act 1998 amended by the European Directive 2000/35/EC if we are not paid according to these Terms.
6.3 All invoices are subject to UK VAT at the current rate, unless a valid exemption certificate is provided.
6.4 All payments must be in UK Pounds Sterling.
6.5 If the Agency incurs any costs as a result of the Client’s neglect or default, the Agency may charge those costs to the Client in addition to the contract price.
6.6 The Client shall pay for any preliminary work which is produced at their request, whether experimentally or otherwise. All preliminary work shall be charged at the relevant agency rate (please see our agency rate card) unless a fee is otherwise agreed by the Agency.
6.7 When payment is overdue, the Agency may suspend work, service and/or delivery without notice and without prejudice to any other legal remedy until due payment has been made. Furthermore, any work started but incomplete may be suspended and payment therefore becomes immediately due and payable, notwithstanding anything expressed herein, and any monies in respect of.
6.8 The Agency may require full payment in advance, or a non-refundable deposit of at least 25% of the total quote prior to instigating work on an order. A non-refundable deposit of 50% of the total quote may be required prior to instigating work on any order subject to the following situations: new clients; clients with a poor payment history; projects valued under £3,000; large, lengthy or complex projects. Where a deposit is required, the balance shall be due in increments of 25% of the total fee due, payable at a time scale agreed prior to the commencement of the project, with the final balance payable no later than 2 weeks upon completion of the work, unless otherwise agreed by the Agency in writing in advance.
6.9 If any project exceeds the estimated timeline agreed or extends beyond 12 weeks from approval of quotation (whichever occurs first), the Agency reserves the right to invoice 25% of any outstanding balance, or for the full amount owed for any Work completed to date.
6.10 Any Clients who have signed a Retainer Agreement for regular monthly work must issue payment for the monthly bill in full, upfront, before any work is commenced. Unless otherwise agreed by the Agency in writing, the Client must pay the agreed rate for the Retainer Services by the 1st of each month. Any changes to the agreed fees for a Retainer Service must be agreed to by the Agency in writing with no less than one months’ notice of the month from which the Client wishes to cease the Retainer or alter the Retainer.
6.11 If the Client’s payment is returned by the bank as unpaid for any reason, the Client will be liable for a charge of £50 + VAT for each occurrence.
6.12 The Project pricing includes the Agency’s fees only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs, travel, transport for specialist equipment, accommodation outside of the M25, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to the Client unless otherwise specifically agreed in writing or otherwise provided for in the Confirmation Note or Scope of Work.
6.13 Following full payment of the final invoice the Agency will send across or make live all final deliverables.
6.14 If, in good faith, the Agency has sent across or made live any final deliverables prior to the final invoice being paid in full and the Client is late to pay or refuses to pay the final invoice in full, the Agency reserves the right to request the immediate return of any or all final deliverables and/or may withhold access to or make any digital deliverables inaccessible by the public, until the final invoice has been paid in full.
6.15 The Agency reserves the right to withhold delivery and any transfer of ownership, including all Intellectual Property Rights, of any Work produced by the Agency if accounts are not current or overdue invoices are not paid in full.
6.16 All grants of any license to use or transfer ownership of any Intellectual Property Rights are conditional 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 Amendments.
7. Client Approval
7.1 Upon acceptance of the Work, the Client accepts responsibility for any further processes in which this Work is used (e.g. film outpost, printing, etc.).
7.2 The Agency is not responsible for errors found in the Work or projects related to this Work after acceptance of the Work by the Client. Any requests to correct any errors found by the Client or any third party following acceptance of the Work will be charged in addition by the Agency.
8.1 Both parties understand that the Client or the Agency may terminate the Services at any time if, for any reason, the relationship is deemed unsatisfactory by either party – providing written notice is given to the other party with 30 days notice.
8.2 The Client shall have no right to terminate a contract, allege a breach of contract, or seek any cancellation, reduction or repayment of costs on the basis of style or composition.
8.3 Upon written cancellation the Client is responsible for full payment of all expenses incurred by the Agency, any Work performed by the Agency towards the completion of the project based upon the percentage of the project completed that is determined by the Agency.
8.4 The Agency retains the right to charge cancellation fees in line with these Terms.
8.5 Should the Client cancel the project following its completion, the full Fee is still liable and the Client is responsible for paying the full agreed Fee and any additional expenses incurred by the Agency. The Client will also be liable for any third-party costs, including cancellation Fees.
8.6 In the event of cancellation, the Agency retains ownership of all copyright and the full Intellectual Property of all original Work created by the Agency.
8.7 The Agency reserves the right to charge a cancellation fee on any scheduled work including, but not limited to, design, photography, videography and copywriting for any late cancellations made by the Client as per the following fee structure:
8.7.1 Cancellation by the Client with two working days’ notice or less – 100% of Fee + any and all expenses.
8.7.2 Cancellation by the Client with three to five working days’ – 75% of Fee + any and all expenses;
8.7.3 Cancellation by the Client with six to 29 working days’ notice – 50% of Fee + any and all expenses.
9. Severance and Public Restrictions
9.1 If the provision of any Agreement between the Client and the Agency is declared void or unenforceable by any judicial or administrative authority, this shall not nullify the remaining provisions of any Agreement between the Client and the Agency, provided that the cancellation of such provision does not substantially alter the economic interest of either party in the continued performance of any Agreement.
10. Governing Law And Jurisdiction
10.1 This Agreement is governed and interpreted in accordance with English law. Any dispute arising in connection with this Agreement and which cannot be settled on an amicable basis shall be submitted to the exclusive jurisdiction of the English Courts.
11.1 Each party will indemnify and hold harmless the other party, as permitted by law, from and against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever to the extent that any of the foregoing is directly or proximately caused by the negligent or willful acts or omissions of the indemnifying party or its agents or representatives and which result from or arise out of the indemnifying party’s participation in any Agreement or Work. This indemnification shall survive the termination of any Agreement between the Client and the Agency.
12. Limitation Of Liability
12.1 It is understood and agreed that the Agency will not be liable to the Client, or any agent or associate of the Client, for any mistake or error in judgement or for any act or omission done in good faith and believed to be within the scope of authority conferred or implied by this agreement.
13. Warranties And Representations
13.1 The Client represents, warrants and covenants to the Agency that:
13.1.1 the Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content;
13.1.2 to the best of the Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, 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;
13.1.3 the Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; and
13.1.4 the Client shall comply with all laws and regulations as they relate to the Deliverables.
13.2 The Client further acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
13.2.1 coordination of any decision-making with parties other than the Agency;
13.2.2 provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Confirmation Note or Scope of Work;
13.2.3 final proofreading and, in the event that the Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors;
13.2.4 ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in the Client’s industry.
13.3 The Agency hereby represents, warrants and covenants to the Client that:
13.3.1 the Agency will provide the Deliverables identified in the Confirmation Note or Scope of Work in accordance with all reasonable professional standards for such Services, and;
13.3.2 the Agency further represents, warrants and covenants to the Client that:
13.3.3 except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of the Agency and/or its contractors; and
13.3.4 in the event that the Deliverables include the work of contractors commissioned for the Project provision of the Deliverables by the Agency, the Agency shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for the Agency to grant all Intellectual Property Rights to the Client as provided for in the Agreement; and
13.3.5 to the best of the Agency’s knowledge, the Deliverables provided by the Agency do 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 the Client or third parties modify or otherwise use the Deliverables outside of the Scope of Work or for any purpose not identified in the Confirmation Note or Agreement or contrary to the Terms noted herein, all representations and warranties of the Agency shall be void;
13.3.6 except for the express representations and warranties stated in these Terms, the Agency makes no warranties whatsoever. The Agency explicitly disclaims any other warranties of any kind, either expressed or implied, including but not limited to the warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
14.1 The Agency reserves the right to sub-contract the fulfillment of an order or project, or any part thereof.
14.2 Any images supplied electronically to the Agency will be incorporated into designs without charge – provided that they are of suitable quality. All images need to be supplied as EPS illustrator vectors for logos and Photoshop tiffs (300dpi min) for pictures. Any logos that need to be redrawn will be charged extra to the Client. All supplied images requiring scanning or alterations to be charged extra to the Client. Images sourced from external image libraries may incur additional licence/royalty charges that must be paid directly by the Client.
14.3 Should the Client supply text, artwork or images, the Agency is not obliged to edit, check or guarantee the correctness thereof in any way whatsoever, and the end product shall be made at the entire risk of the Client.
14.4 The Agency shall be indemnified by the Client in respect of any claims, costs and expenses arising out of any libelous matter or any infringement of copyright, patent design or any other proprietary or personal rights contained in any material supplied by the Client. The indemnity shall extend to any amounts paid on a lawyer’s advice in settlement of any claim.
14.5 The Client’s property and property supplied to the Agency on behalf of the Client, while it is in the possession of the Agency or in transit to or from the Client, will be deemed to be at the Client’s risk unless otherwise agreed and the Client should insure accordingly.
14.6 The Agency may charge rent for storage of goods retained at the Client’s request, or items left with the Agency before receipt of the order or after notification to the Client of completion of the work.
14.7 When required to expedite project delivery ahead of the time needed for proper production of a given deadline, the Agency shall not be liable for defects occasioned thereby. Should such delivery require payment of overtime wages, delivery charges or other additional costs, all such extras will be for the Client’s account.
14.8 The Agency shall not be required to use, print, upload or hold any matter which, in its opinion, is or may be of an illegal or libelous nature or an infringement of the proprietary or other rights of a third party.
14.9 Unless otherwise agreed in writing, work will usually commence within 10 working days of receipt of the deposit payment – subject to all briefs, assets, copy, images and other information being submitted in full and to spec to the Agency. Any anticipated completion date provided by the Agency is subject to options chosen and Client co-operation in the provision of information, resource (logos,images etc) and approval. The Agency will do its very best to ensure that agreed timelines are adhered to, but please be aware that circumstances, amends requested, or additional requirements may potentially result in delays. Timelines provided are estimated but the Agency will not be held liable if the project overruns due to delays caused by the Client failing to provide information, content or approval in good time, or any third-party issues or force majeure (act of God).
15.1 Proofs, pull samples, specimens, sketches, photographs, links or any representation, whether partial or total, of the finished article may be submitted digitally to the Client for approval. The Agency are not able to provide printed proofs – it’s up to the Client to arrange and pay for printed proofs, if desired, through a print supplier or similar.
15.2 After approval the Client shall have no claim against the Agency for errors in the exemplar as approved by them. In the event that the Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors.
15.3 Clients should be aware that due to a variety of factors there will often be variance in colours shown between in-house proofs, colours on screen, printer’s proofs, and final printed items. These factors are determined by the source of the print or visual (each output source e.g. the client’s printer, image setter, the monitor etc will differ from the other), the types of inks or make-up of colours (even Pantone colours can vary significantly and often surprisingly depending on what stock or substrate they are printed on), the type of print process (short-run digital, longer-run litho printing), the substrate (paper, card, plastic etc) used, individual preferences (ambient light, personal computer settings etc) and several other reasons. As a result of this the Agency is unable to guarantee 100% consistency and accuracy of colour on all items and may not always be able to achieve the exact result expected by the Client. In the case of printed items, the only true guide as to what is likely to be produced, is to request a ‘wet-proof’ on the actual intended substrate with the actual inks to be used – this must be arranged and paid for by the Client with their preferred print supplier. However, as long as the Client accepts there may be inconsistencies across work produced, this step may not be necessary. The Agency does not accept any responsibility for colour variations as a result of these indeterminate factors.
16. Dispute Resolution
16.1 In the event that a dispute arises out of or in connection with the Agreement, Confirmation Note, Scope of Work or Intellectual Property Provisions, the Parties will attempt to resolve the dispute through friendly consultation.
16.2 If the dispute is not resolved within a reasonable period then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not available or is not successful in resolving the entire dispute, any outstanding issues will be submitted to final and binding arbitration in accordance with the laws of the Country of England. The arbitrator’s award will be final, and judgement may be entered upon it by any court having jurisdiction within the Country of England.
17. Prior Agreements
17.1 The Agreement together with the Confirmation Note and any Intellectual Property Provisions constitutes the entire agreement between the Parties relative to the matters referred to herein and supersedes any other agreement, whether verbal or written, which may have existed between the Agency and the Client.
17.2 Any modification or amendment of the Agreement, the Confirmation Note or Intellectual Property Provisions shall be in writing and shall become effective if and when signed by both parties.
18. Time Schedules And Testing
18.1 The Agency will prioritise performance and delivery of the Deliverables as may be necessary or as identified in the Confirmation Note or Scope of Work, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Confirmation Note or Scope of Work.
18.2 The Client agrees to review Deliverables within the time identified for such reviews and to promptly 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 further written clarification of any concern, objection or correction.
18.3 The Client acknowledges and agrees that the Agency’s ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Confirmation Note or Scope of Work and that any delays in the Client’s performance or Amendments in the Services or Deliverables requested by the Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, condition or the Agency’s obligations.
18.4 The Agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. The Client, within five working 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 Confirmation Note, or of any other objections, corrections, changes or Amendments the 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 our Agency Terms. In the absence of such notice from the Client, the Deliverable shall be deemed accepted.
19.1 The Agency retains the right to reproduce, publish and display the Deliverables or any Work created as part of the project, whether Final Works or Working Files or any other relevant Work created by the Agency 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.
19.2 The Agency retains the right to credit themselves on any website built for a Client in the form of short disclaimer, citing the Agency’s business and/or trading name, their role in creating the website and a link to the Agency website in the footer of the Client’s website, which must remain on the website for a minimum of five years, or following a full redesign of the website by another agency or contractor, whichever is first.
19.3 Where the Agency performs discounted or pro-bono work the Agency retains the right to credit themselves by way of a disclaimer and/or link to the Agency website on any work produced. The credit must not be removed by the Client. The Client must also credit the Agency wherever the work appears by way of citing the Agency trading name, accompanied by a disclaimer and a link to the Agency website. The Agency will provide an appropriate disclaimer to be used.
19.4 Prior to the commencement of any pro-bono or discounted work the Agency will issue the Client with an Agreement which will outline how the Work may be used. This will include the type of media the Work may be used on, how long for, in what territories and how the Work must be credited.
20. Intellectual Property
20.1 It’s the Client’s responsibility to check they have the right to use any material that they supply to the Agency and that they aren’t infringing copyright, patent or any other laws in doing so.
20.2 The Client shall provide the Agency with copies of all trademarks and other intellectual property that represents the branding of the Client which are to be included in the performance of the Services. The Client hereby grants the Agency a royalty free licence to use, copy and reproduce such trademarks and branding for the purpose of developing the Work created by the Services.
20.3 The Client agrees that upon completion or termination of this Agreement the Agency shall be entitled to use the Work created by the Services for its own internal and external promotional purposes, including but not limited to displaying the Work on the Agency’s website, portfolio, social media sites, submission to awards programmes and publications, for the Agency to promote and sell their Services.
20.4 Full ownership of all commissioned Final Work will reside with the Agency until full payment of all Fees and expenses has been received, at which point the Agency will surrender to the Client, all claims of ownership for the Final Work only (not including alternative designs, concepts, options, source files, working files, images or documents developed throughout the process). Ownership of all unused, working or rejected files, documents and designs will reside with the Agency for non-exclusive future use. If the Client does not pay, in full, all fees and expenses owed to the Agency, then all Work created by the Agency, including all Final Work, remains under the full ownership of the Agency and the Agency retains the right to halt or restrict the use of and/or charge additional licensing fees to the Client for the use of any or all of the Work created by the Agency.
20.5 The Agency will retain full ownership of all pro-bono Work produced, unless otherwise agreed by the Agency in advance in writing and signed by both parties.
20.6 For all web related projects, unless specifically stated, the Client will retain 100% ownership of the web page design and content only, subject to the payment of all Fees and expenses in full. Ownership is not applicable to proprietary software and programs or source code, such as databases, e-commerce and/or content management systems, web application source code or flash files/animations. Web code is specific to each project and is non-transferable to other projects or third parties.
20.7 The Agency cannot guarantee the Client exclusivity of any marketing concept, strategy, design or other intellectual property provided. Therefore the Agency will not accept liability for any alleged claim from the Client or any Third Party as a result of unintentional similarity in part or whole of a Third Party’s copyright protected or registered trademark or brand, identity, strap line, colour usage, image style and content, product or otherwise.
20.8 Following submission of the final Deliverables the Agency may keep a copy of original source files for a minimum of one year as a back-up, with exception for any Retainer Clients for whom the Agency may keep source files indefinitely at the sole discretion of the Agency. The Agency may decide to keep source files for longer periods of time or indefinitely, however it is the Client’s responsibility to safely store any Final Works or to purchase and safely store any source files delivered from the Agency and cannot hold the Agency responsible for any loss or removal of Final Work, Work or source files once they have been sent to the Client.
20.9 The Client agrees not to exploit the copyright of any Work produced by the Agency outside of the market category for which the Work was created, except with the Agency’s written consent.
20.10 It is the responsibility of the Client to ensure that all published content is truthful and can be substantiated so as to comply with the British Code of Advertising Practice (for the time being in force), consumer protection legislation and other codes under the general supervision of the Advertising Standards Authority.
20.11 If the Client cancels the Contract, or does not proceed to complete the outstanding Work, ownership and all Intellectual Property Rights will not pass to the Client. If there is a portion of Final Work completed that has been paid for in full, if agreed in writing by the Agency, the IPR for that portion of Work may be passed to the Client.
20.12 The Agency will use all reasonable endeavours to secure the relevant IPR from its contractors.
20.13 Work created by the Agency as part of an unsuccessful pitch shall remain under the full and exclusive ownership of the Agency.
20.14 The Client must not attempt to ‘pass off’ any Work, whether Final or otherwise, created by the Agency as their own or that of another Agency. The Client is responsible for the use of any original Work created by the Agency. In the instance that the Client decides to work with another Agency, freelancer or other third party, it is the Client’s responsibility to ensure that the third party does not pass off the Work created by the Agency as their own or misrepresent the origin of the Work in order to lead consumers to believe that the Work has been created by another business.
20.15 In the instance that the Agency is working on a project overseen by a representative for the Client, henceforth referred to as a “Partner”, rather than working directly with a Client (for example, if the end Client is represented by a Partner who may be a third party such as another Agency, or a contractor or consultant), then the same licensing rights between Agency and Client apply as detailed in these Terms. If the Partner wishes to use any imagery, words, designs or other Intellectual Property owned by the Client or by the Agency on their own website or other promotional materials, this must first be agreed with the Agency in writing. The Agency may charge the Partner a fee for the use of such Intellectual Property and/or require a suitable method of crediting the Work, which must be agreed upon by the Agency in writing prior to the use of the Intellectual Property in this way.
20.16 If a choice of Work is presented, only one solution is deemed to be given by the Agency as fulfilling the contract. All other designs, copy and other work remain the property of the Agency and cannot be used by the Client. The Agency may allow the Client to use any other Work not deemed as Final Work but this must be agreed in writing by the Agency and the Agency may charge a Fee for the use of this Work.
20.17 The Client may request in writing from the Agency, the necessary permission to use materials (for which the Agency holds the copyright) in forms other than for which it was originally supplied, and the Agency may, at its discretion, grant this and may or may not charge a Fee for this service. Such permission must be obtained in writing before the Agency will allow any of the aforesaid artwork, images, text, or other data to be used.
20.18 Any web systems, including eCommerce and Content Management Systems, provided to the Client remain the Intellectual Property of the Agency and as such no access is given to the source code or database.
21. Source Files
21.1 Artwork or source-files are not supplied- only compiled, flattened or print-ready files will be supplied for printing or deployment.
21.2 The source files will only be supplied upon written request and may be subject to additional Terms and a pre-agreed release Fee.
21.3 Actual font-files are not supplied and the Client is responsible for purchasing the appropriate licenses for any fonts that are used.
22.1 If the Client ceases to pay their debts in the ordinary course of business or cannot pay their debts as they become due or is deemed to be unable to pay its debts or has a winding-up petition issued against it or being a person who commits an act of bankruptcy or has a bankruptcy petition issued against him, the Agency without prejudice to other remedies shall:
22.1.1 Have the right not to proceed further with the contract or any other work for the Client and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Client. Such charge to be an immediate debt due to them;
22.1.2 In respect of all unpaid debts due from the Client have general lieu on all goods and property in its possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards such debts.
23. Force Majeure
23.1 The Agency shall be under no liability if it shall be unable to carry out any provision of the Agreement for any reason beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the Client may by written notice to the Agency elect to terminate the Agreement and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.
24. Information Provided by The Client
24.1 The Client warrants that the name, address and payment information provided when they place their order with the Agency will be correct and they agree to notify the Agency of any changes in the name, address and/or payment details.
24.2 The Client agrees that the Agency may disclose the Client’s name and address where any inquiries are made.
24.3 The Client warrants that they possess the legal right and ability to enter into any Agreement and to use the Agency’s services in accordance with any Agreement.
25.1 All notices shall be made by email or registered mail or by courier to the usual business address or email address of each party.
26. Rights Of Access For Website Construction
26.1 The Client agrees to allow the Agency all necessary access to computer systems and other locations, as required, in order to complete a website project and until all due funds are cleared, including the necessary read/write permissions, usernames and passwords.
26.2 The Client also agrees to allow the Agency access to any computer systems, usernames and passwords required to remove data and/or sites for failure to comply with these Terms.
26.3 The Client agrees to supply the Agency with all necessary materials, electronic, or otherwise, required to create and complete the project, and to supply them in a timely manner.
27.1 After the closing of the transactions the Client will not, directly or indirectly solicit without written approval from the Agency for employment any current employees, contractors, or consultants of the Agency or any of its subsidiaries.
27.2 For a period of one year after the closing of the transactions the Client will not, directly or indirectly solicit without written approval from the Agency for employment any former employees, contractors, or consultants of the Agency or any of its subsidiaries.
27.3 In the event of a breach (or threat of a breach) of these Terms, the Agency is entitled to immediate and appropriate injunctive relief, or a decree of specific performance of the Agreement, without the necessity of showing any irreparable injury or special damages.
28. 1 Naming Services will be validated by domain name research and by reasonable UK Trademark Register search dated at time of search. However, the Agency cannot guarantee legal qualification of any name, and therefore the Agency recommends that Client undertakes full legal qualification for any brand or trading name or other name suggestion.
29.1 Unless clearly specified as otherwise within the Confirmation Note or Scope of Work, all website copy will be provided by the Client. Copywriting by Team Underscore LTD beyond basic editing for grammar, spelling and tone-of-voice will be viewed as out of scope, and will incur additional charges.
29.2 The uploading of content to any website is the responsibility of the Client, unless clearly agreed as otherwise in the Confirmation Note or Scope of Work.
29.3 Unless explicitly stated within the Confirmation Note or Scope of Work, website hosting and other ongoing digital charges are not included, and will be priced separately.
29.4 Future and ongoing content management system costs, unless clearly specified within the Confirmation Note or Scope of Work are deemed out of scope, unless the Client decides to contract the Agency to manage their content management system and website as part of a Website Maintenance Package or Retainer.
29.5 Quoting for web hosting will take place once the website content is finalised.
29.6 Purchase of URLs, unless clearly specified within the Confirmation Note or Scope of Work are deemed out of scope and are the responsibility of the Client.
29.7 On-page SEO principles will be considered during website design. This does not include specific targets, and the Agency cannot bear responsibility for a failure to improve any search engine rankings or website visitor numbers.
29.8 During the review of proposed wire-frames, the Agency reserves the right to deem out-of-scope any requested changes to functionality that will require significant studio or development time.
29.9 Feedback on all stages must be consolidated and supplied by a maximum of two named stakeholders.
29.10 Feedback otherwise supplied will be referred back to the Client.
29.11 The completion/sign off point is defined by the ‘Go Live’ date. After this date the Client has a period of 30 days to feed back on any inconsistencies within the site performance. This does not include copy errors, image errors or other such issues that are not related to site performance or that fall outside of the Confirmation Note or Scope of Work and only include site performance inconsistencies that are not the fault of the Client, and which may include broken links, slow loading times or error warnings.
29.12 Any issues with site performance thereafter, are considered Amends and will need to be quoted for by the Agency, unless the Client decides to contract the Agency to manage their content management system and website as part of a Website Maintenance Package or Retainer.
29.13 If the Client chooses to use a third party developer to build a website or application designed by the Agency, we will not bear responsibility for the failure of said third party to deliver the website or application effectively.
29.14 All extensions, external and internal API and time taken for code mining will be billed separately.
29.15 The Agency cannot be held liable if the Client or any third party or representative of the Client makes any changes to the website or makes any mistakes uploading content to the website causing errors, breaks or other such issues. In such instance, if the Client wishes for the the Agency to rectify the issue any such work on the site by the the Agency will incur additional Fees payable by the Client.
29.16 The Agency may include training within the Confirmation Note or Scope of Work whereby the Agency will provide a limited amount of training for the Client in how to use the content management system or back end of the website. The Agency cannot be held liable nor takes any responsibility for any mistakes made by the Client that effects the website following training, any training session is held as a helpful guide for the Client and is not a guarantee of any sort. If training sessions are not included in the Confirmation Note or Scope of Work the Client may request such training but it will be charged in addition by the Agency.
29.17 The Agency holds no responsibility in training any third party as to how to use the website.
30. Acceptance of Terms:
30.1 By signing any Agreement or Confirmation Note issued by the Agency or by issuing a payment to the Agency, the Client confirms that they have read, understood, and are considered legally bonded to these Terms.
30.2 The Agency reserves the right to change these Terms at any time, at its sole discretion, without notice. Any change binds you as soon as you use the Agency’s Services and the Agency therefore strongly recommends that Clients check these Terms on a regular basis.
30.3 The Agency reserves the right to seek all remedies available by law and in equity for any violation of these Terms. Any rights not expressly granted herein are reserved. The Agency reserves the right to release information to the proper authorities, as a result of a violation of these Terms, or unlawful acts, if the information is subpoenaed and/or if we deem it necessary and/or appropriate. Further, you agree that the Agency may, at its sole discretion, at any time terminate your access to any Works created by the Agency and any account(s) you may have in connection with the Agency.
30.4 These Terms supersede any previous versions. By agreeing to these Terms, your statutory rights are not affected.