Terms and Conditions of Business
Interpretation
In these conditions 'Dot Com Imaging' means Pixel Imaging Limited of 34 Calder Avenue, Nether Poppleton, York YO26 6RG.
'Client' means the person, firm or company who accepts a Quotation of Dot Com Imaging for web design consultancy or other
services.
'Conditions' means the standard financial terms and conditions set out in this document and includes any
special terms and conditions agreed in writing between Dot Com Imaging and the Client.
'Contract' means the Contract
for the supply of web design consultancy or other services by Dot Com Imaging to the client.
'Force Majeure' means in
relation to either party an event or circumstance beyond the reasonable control of that party (including without limitation
any strike, lock out or other industrial action, civil disturbances, actions or inaction of government authorities, war,
earthquakes, fire, vandalism. Burglary, acts of God or a public enemy in each case materially affecting the performance of
the contract.)
Acceptance
Web design fees and costs quoted are valid for three months from the date of proposal (exclusive of VAT at the standard rate). Acceptance of these Financial Terms and Agreements is applicable to all dealings and all projects. Client Authorisation details are at the end of this letter and are required to be signed by the commissioning client, company, firm or individual and returned to Dot Com Imaging before commencement of each individual project.
Priority assignments
Priority assignments can be undertaken by prior agreement by both parties. Additional financial terms and agreements will be applicable. Notably such priority assignments will be charged at cost plus 50%.
Billing procedures
Upon client authorisation of the project, Dot Com Imaging will invoice the first third of the professional fees and estimated expenses, these amounts being due immediately. On completion of the project, Dot Com Imaging will invoice the second third of the professional fees and estimated expenses, these amounts being due immediately. Thirty days after completion of the project, On completion of the project, Dot Com Imaging will invoice the final third of the professional fees and estimated expenses, these amounts being due immediately. Cheques are to be made payable to Dot Com Imaging.
Additional design work/delays
Additional design work and expenses caused by delay in receiving clients instructions or by changes in those instructions shall be additionally charged on an hourly basis. Any alteration, correction or additional instruction shall be made in writing by the client to Dot Com Imaging.
Additional design work and meetings outside of company premises at the clients request will be charged at double hourly rate per person plus transit time plus expenses.
Clients should consider carefully the assumptions stated in the proposal. We do our utmost to keep our Clients informed of the cost implications of additional items and alterations or changes made to the clearly stated assumptions. Such additional costs would be billed at the time or on completion of the project.
Overtime
An overtime charge of double the agreed day rate will be invoiced if we are required to keep our offices open on a weekend at your request.
Security
Every effort will be made to maintain the strictest confidence concerning any material, copy, plans or policies divulged to us in the course of our relations with a client. Ultimately it is the client’s sole responsibility to ensure security. Dot Com Imaging cannot be held responsible for any actions that result in information being divulged through the course of our normal working practice.
Confidentiality and protection of interests
a) Each party expressly undertakes to retain in confidence the terms of this Agreement, all information and know-how transmitted to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and will make no use of such information and know-how except under the terms and during the existence of this Agreement. Either party may disclose the terms of this Agreement to its outside legal and financial advisors in the ordinary course of business. Any press release or other announcement relating to this Agreement shall be subject to the prior approval of both parties (both as to timing and content).
b) Dot Com Imaging’s consultants, employees, freelance sub-contractors and associates are under special contracts which protect Dot Com Imaging’s clients by restricting the divulging of confidential information. They are also bound by an agreement not to seek or accept any form of employment directly with our clients, or indirectly through third parties, without our prior consent. The Client agrees that no type of employment or engagement shall be offered to any consultant, employee, freelance sub-contractor or associate, either at the time he or she is involved in a project or assignment, or within a period of treeyears after he or she has left our employment, again without our prior consent.
c) In the event of termination of this contract the party to the contract Client shall not approach Dot Com Imaging clients or business associates with any business offers nor shall the Client approach Dot Com Imaging employees with any offers of employment.
Copyright
The copyright of all designs and copy remain the property of Dot Com Imaging until payment of all costs, fees and expenses due to Dot Com Imaging. Usage of all designs and copy will be assigned and costed only for each outlined project. Photographs and illustrations always remain the property of the photographer/illustrator. Dot Com Imaging will undertake to negotiate copyright on a usage basis unless instructed to negotiate a buy out arrangement with the photographer/illustrator.
All rights in and to all source materials supplied to Dot Com Imaging by the Client shall remain with the Client. The Client, by providing such materials to Dot Com Imaging confirms that Dot Com Imaging has the right to use, modify, adapt and edit such materials for use in the Project and shall indemnify Dot Com Imaging against any third party claims relating to such materials
All rights in and to the source code, documentation, tools data files, algorithms, flow charts and other materials used in the execution and completion of the Project shall remain with Dot Com Imaging.
All rights in the delivery items’ for the Project in electronic form only shall vest in the Client on the date upon which final payment in cleared funds has been received from the Client. Dot Com Imaging shall on such date assign to the Client all its right title and interest in such delivery items, subject to any royalties which may be due to third parties in respect of licensed software (as set out in the Scope and Objectives document).
Title of ownership and rights of use
All rights in the physical property in the delivery items will pass to the Client once Dot Com Imaging has been paid in full for all the work supplied.
Any equipment or materials supplied to the Client on a hire basis remains the property of Dot Com Imaging or its sub-contractors.
Originating materials such as artwork, computer graphics, program source code, video, film rushes, scripts, master copies, etc. will be kept by Dot Com Imaging for a limited period of time after completion of the work commissioned under this Agreement. Unless additional orders are received within reasonable period of time or at regular intervals Dot Com Imaging reserves the right to dispose of the originating materials unless it has specifically been agreed in writing with the Client otherwise.
Dot Com Imaging reserves the right to use all or part of any programme, services or materials produced for acquired on behalf of the client by Dot Com Imaging for demonstrating Dot Com Imaging’s expertise to potential Clients.
Design rights
The design, name, marks or other material in final form that is approved by a client and selected for the outlined project usage will become the exclusive property of the client, upon payment of all fees, costs and expenses. All other designs, names, marks, intellectual property rights and materials developed in the course of the project remain the property of Dot Com Imaging, as is customary in the profession. The clients ownership of legal rights in the final form of the item it selects is exclusive to the extent provided by applicable national and international laws and treaties. Legal protection and appropriate registration of a design, name, marks or other material developed by Dot Com Imaging is the client’s sole responsibility and should be done promptly after final approval to preserve such rights.
Visuals
Clients should take note of the colour difference between printed visuals and the final view displayed by a computer monitor. All visuals, (colour representation of design concepts), submitted for clients appraisal, are representative of the final colour and not exact to the colours when viewed digitally on screen. Clients should also be aware that the final view can vary slightly depending on different computers, monitors and software platforms.
Speculative 'Pitch' work
All such work is undertaken on the basis that intellectual propertyright copyright to all designs, marks, names, source code and material produced belong to Dot Com Imaging. No designs, marks, names, source code or material may be used or further developed without the acknowledgement and involvement of Dot Com Imaging. Such materials become the property of clients only upon the completion of payment of fees and costs. All visuals remain the copyright of Dot Com Imaging and only become the property of the client upon payment of all fees, costs and expenses. The visuals are to be returned to Dot Com Imaging.
Jurisdiction
All terms and conditions relating to our agreement shall be subject to the Laws of England and the jurisdiction of the court of England.
Exclusivity
Exclusive services covering any one industry are made by special arrangement only.
Responsibility
Dot Com Imaging will take all reasonable care to check designs, specifications, production proofs and/or samples, source code, but it takes no responsibility for accuracy of text. Final responsibility rests with the client to approve each stage of project development and subsequent artworks, hence all artwork, proofs and text submitted to the client must be approved and ‘signed off’ by the client before the next stage commences. It is the client’s sole responsibility to ensure this takes place.
Insurance
For the avoidance of doubt, insurance of products supplied to us is at the Clients liability whilst in transit and whilst on our premises.
Cancellation
If a project is cancelled before a design has been formally presented, thirty-three percent of the design fee plus all expenses incurred to that date will be invoiced.
If the project is cancelled after the formal presentation has been accepted, seventy-five percent of the design fee plus all the expenses incurred will be invoiced.
If the project is cancelled during the mechanical stage, one hundred percent of the design fee and all the expenses to that date will be invoiced.
If the client should make any voluntary arrangement with its creditors or become subject to an administration order or bankrupt or if a company goes into liquidation or if an incumbrancer takes possession or a receiver is appointed of any of the property or assets of the client or the client ceases or threatens to cease to carry on business or if Dot Com Imaging reasonably apprehends that any of these events is about to occur or that the client is insolvent, then without prejudice to any other right remedy available to it, Dot Com Imaging shall be entitled to cancel the contract or suspend any further work under the contract without any liability to the client.
Interest on late payment
If the client fails to make payment to Dot Com Imaging on the date when payment is due without prejudice to any other rights or remedy available to Dot Com Imaging, Dot Com Imaging shall be entitled to :-
(1) Cancel the contract or suspend any further work to the client and
(2) Appropriate any payment made by the Client to such work carried out by Dot Com Imaging under the Contract as Dot Com Imaging may think fit (notwithstanding any purported appropriation by the client) and
(3) Charge theClient interest (both before and after any Judgment) on the amount unpaid at the rate of four per cent (4%) per annum above Lloyds Bank Plc base rate from time to time until payment in full is made (a part of a month being treated as full month for the purpose of calculating interest).
Intellectual property indemnity
If any claim is made against Dot Com Imaging that the text or other information or material supplied to Dot Com Imaging by the Client infringes the copyright, design, trademark or other industrial or intellectual property rights of any other person the Client shall indemnify Dot Com Imaging against all loss damages costs and expenses awarded against or incurred by Dot Com Imaging in settlement of the claim.
Client acceptance points
A Client sign-off procedure will be followed to signify that elements of the project are completed and satisfactory. These acceptance points may be used as billing dates where so arranged. It is our Clients’ responsibility to ensure that their corporate requirements are properly checked and that content is accurate.
Delays
The budget has been prepared on the basis of project continuity being maintained. Unreasonable delays requested or caused by the Client may cause additional costs, such as the need to charge for staffing or supplies and services already committed to. In such circumstances Dot Com Imaging also reserves the right to bill the value of the project to date.
Project completion
At each development milestone and upon completion, the Client’s project manager shall review the Project prototype and accept or reject the same in writing. Any rejection shall be based only on non-conformity with the Scope and Objectives document, and shall be in writing and set out the reasons for the rejection. If the Client’s project manager rejects the Product, Dot Com Imaging agrees promptly to rectify any errors, inaccuracies or other problems.
Consequential loss
Dot Com Imaging shall have no liability to the Client for any consequential loss of the Client arising out of or in connection with the provision of any goods or services pursuant to the Contract (except in respect of the death or personal injury resulting from negligence) and the total liability of Dot Com Imaging for any other loss of the Client so arising in any twelve month period shall not exceed the fees, costs and expenses payable by the Client to Dot Com Imaging for the service provided by Dot Com Imaging to the Client for that year.
All research, designs and recommendations in any document, letter or verbal communication are made in good faith and on the basis or the information before Dot Com Imaging at the time. Their achievement must depend among other things on the effective co-operation of the Client’s staff. In consequence no statement by Dot Com Imaging or any of its employees agents or contractors in any document or letter is deemed to be in any circumstances a representation, undertaking, warranty or contractual condition unless expressly set out in this Agreement.
Force Majeure
1) If either party is affected by force majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
2) Notwithstanding any other provision of this Agreement neither party shall be deemed to be in breach of contract or otherwise liable to the other for any delay in performance or the non-performance of any of its obligations under the Contract to the extent that the delay or non-performance is due to any force majeure of which it has notified the other party and the time performance of that obligation shall be extended accordingly.
3) If a default due to an event of force majeure shall continue for more than ninety days then the party not in default shall be entitled to terminate the Contract. Neither party shall have any liability to the other in respect of the termination of the Contract as a result of an event of force majeure.
Dot Com Imaging shall carry out the design consultancy work in accordance with the proposal which is accepted by Dot Com Imaging subject to these conditions which shall govern the contract to the exclusion of all other terms and conditions subject to which the proposal is accepted and no variation to these conditions shall be binding unless agreed in writing between the authorized representatives of the client and Dot Com Imaging
Arbitration
Any dispute arising out of or in connection with the Contract shall be referred to by arbitration by a single arbitrator appointed by agreement or in default of agreement nominated on the application of either party by the Chairman of the Chartered Society of Designers after a period of one month from when the dispute occurs.
Publicity
The Client agrees to give Dot Com Imaging credit, where appropriate, in all initial press handouts and publicity material and agrees to an announcement of our appointment as Web Design Consultants.
VAT
VAT will be added to your invoice at the current rate, where appropriate.