BORN DIGITAL CREATIVE LIMITED TERMS AND CONDITIONS (Company number 07826293)
TERMS AT A GLANCE
We will always do our best to fulfil your needs and meet your goals, and we believe that it's best to have a few things written down so that we both know what's what, who should do what and what happens if something goes wrong. We want what's best for the safety of both parties, now and in the future.
What do both parties agree to do?
As our customer, you have the power and ability to enter into a contract with us on behalf of your company or organisation. You agree to provide us with everything that we'll need to complete your project (including text, images and other information) as and when we need it and in the format we ask for. You agree to review our work, and to provide feedback and approval in a timely manner. Deadlines work two ways and we’ll both be bound by any dates that we set together. You agree to stick to the payment schedule set out in our contract with you.
We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner. Along the way we will endeavour to meet all the deadlines set but we cannot be held responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off our work on-time at any stage. We will always maintain the confidentiality of any information that you give us.
If requested we will write content for you and as with all creative services you may or may not like it. A number of amendments come included in the price (if stated) however if you do not wish to continue with the service once copy has been produced for feedback you will be liable for the costs until the point of cancelling.
You will be required to supply us with digital photographs for your design work. If you choose to buy stock photographs we can suggest vendors of stock photography. If you require us to source photography for you we can do that at a cost. Any time which we spend searching for appropriate photographs will be charged at the rate set out in your contract with us.
Changes and revisions
We know from experience that fixed-price contracts are rarely beneficial to you, as they often limit you to your first idea about how something should look, or how it might work. We don't want to limit either your options or your opportunities to change your mind.
The estimated prices which we provide you at the beginning of a project are based on the number of hours or days that we estimate we'll need to accomplish everything that you have told us you want to achieve. If you do want to change your mind or add extras that won't be a problem. You will be charged the rate set out in your contract with us. Along the way we will ask you to put requests in writing so we can keep track of changes. We’ll normally require you to do this via basecamp or email.
If any provision of your contract with us, or these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
For all digital work we will develop your project on our test server, then, when we receive final payment, we will provide you with a copy of all of the files for your website and will upload these files to one server of your choice. Should you require the files to be uploaded to multiple servers, this will incur an additional charge.
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide to us for inclusion in your projects are either owned by you, or that you have permission to use them.
We love to show off our work and share what we have learned with other people, so we reserve the right to display a link to your completed project as part of our portfolio and to write about the project on websites, in magazine articles and in books unless we agree not to in relation to white label work. We also reserve the right to include a byline on your website, unless our contract with you states otherwise.
We are sure you understand how important it is as a business that you pay the invoices that we send you promptly. As we're also sure you'll want to develop a long lasting relationship with us, you agree to stick to the payment schedule which we have agreed. Our general terms are as follows:
We have summarised our terms in brief above but please also take the time to read our more detailed STANDARD TERMS AND CONDITIONS set out below.
STANDARD TERMS AND CONDITIONS
These are the STANDARD TERMS AND CONDITIONS referred to in the contract between us [BORN DIGITAL] and you [the Client ]
1. DEFINITION OF TERMS
BORN DIGITAL - Born Digital Creative Limited
The Client - the entity which enters into a contract with BORN DIGITAL
Domain Name - the root address of a website, e.g. www.webaddress.com. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
Downtime - time when the website is not accessible via the Internet. This may be because of a technical failure of the Host or because work is being carried out on the site.
Email setup and support - setting up of the agreed number of email accounts on the server and providing the client with login details and the initial support needed to set up their devices to receive emails.
Host - the company on whose system the Website physically resides
Hosting - provision of an agreed number of gigabytes of physical space on a server and technical maintenance of that server to ensure optimal performance.
Link, Hyperlink - a ‘clickable' link embedded on a web page which may take the form of a graphic or text.
Search Engine - a website which contains a directory of websites on the Internet enabling users to find websites by subject matter classification.
Website - a collection of web pages and associated code which forms an integrated presence.
The Work - the subject matter of the contract between the Client and BORN DIGITAL.
2.1 Fee Payable
For all phases of work over £200 a non refundable deposit of 50% of the total fee payable under the contract will be due immediately upon the signing of the contract.
For all phases of work over £10,000 stage payments will be agreed (usually 50%, 30%, 10% and 10%). These payments will become due when the Work is completed to the reasonable satisfaction of the Client but subject to the terms of Clause 4.3 Approval of Work and Clause 4.4 Rejected Work hereof. BORN DIGITAL reserves the right not to begin the Work until the deposit has been paid in full. The fee quoted in your contract does not include the cost of domain registration, hosting set up fee or hosting.
2.2 Maintenance Fees
Maintenance, if included in the contract, shall be on a month to month basis, with a minimum of £65 payable in any month where updating is necessary. Fees will be assessed on an hourly basis at £65 per hour or part thereof for the first hour and £50 per hour for subsequent hours. No fee will be required in a month where no updating is necessary.
We are a VAT registered company and all of our invoices carry VAT at the standard rate. Our VAT registration number is 125 4017 503.
3.1 Third Parties
BORN DIGITAL can take no responsibility for services provided by third parties through us or otherwise, including the Hosting of the Client's Website, although BORN DIGITAL will endeavour to ensure that Website downtime is kept to a minimum.
3.2 Maintenance and Correction of Errors
BORN DIGITAL takes no responsibility for the functionality or maintenance (unless a maintenance contract is in place) of the Website after the Work has been completed. Errors (both technical and typographical) attributable to BORN DIGITAL will be corrected free of charge within 4 weeks of the completion of the contract, but BORN DIGITAL reserves the right to charge a reasonable fee for correction of errors for which BORN DIGITAL is not responsible, including, but not limited to malicious modification of the Website by a third party and typographical errors contained in materials provided to BORN DIGITAL by the Client.
3.3 Extent of Work
Installation on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality.
3.4 Consequential Loss
Under no circumstances will BORN DIGITAL be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its software. The Client should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software failure.
3.5 Status and Duration of Offers
Proposals and offers are valid for a period of 60 days from the date issued. BORN DIGITAL is not bound to honour offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed by both parties. This timetable must be agreed within the time frame that the offer is valid. If an acceptable timetable has not been approved by both parties within 60 days of the offer being made, the offer is deemed to have expired.
3.6 Search Engine Listings (optional)
BORN DIGITAL does not guarantee listings on Search Engines and the Client accepts that it is Search Engines and not BORN DIGITAL who determine whom they list and whom they will not. The Client further understands there is no guaranteed placement or rank on the Search Engines and that a new website may never appear on Search Engines at all. BORN DIGITAL does not control Search Engines' algorithms and huge shifts can appear daily, weekly and even hourly.
4. COMPLETION OF WORK AND PAYMENT
4.1 Completion of Work
BORN DIGITAL warrants completing the Work in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client. BORN DIGITAL will not charge more than the amount previously agreed unless the Client has varied the specifications of the Work since the agreement. BORN DIGITAL will not undertake changes to the specifications of the Work which would increase the cost, without prior written authorisation from the Client.
4.2 Supply of Materials
The Client is to supply all materials and information required for BORN DIGITAL to complete the Work in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written-copy, logos and other printed materials. Where the Client's failure to supply such materials leads to a delay in completion of the work, BORN DIGITAL has the right to extend previously agreed deadlines for the completion of the Work by a reasonable amount. Where the Client's failure to supply materials prevents progress on the Work for more than 21 days, BORN DIGITAL has the right to invoice the Client for any part or parts of the Work already completed.
4.3 Approval of Work
On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify BORN DIGITAL, in writing, of any unsatisfactory points within 7 days of receipt of such notification. Any of the Work which has not been reported in writing to BORN DIGITAL as unsatisfactory within the 7 day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected, and the contract will be deemed to have been completed and the balancing payment under Clause 2.1 Fee Payable will become due. The Contract will remain in effect until all obligations have been completed in terms of this Clause.
4.4 Rejected Work
If the Client rejects the Work within the 7 day review period, or will not approve subsequent Work performed by BORN DIGITAL to remedy any points reported by the Client as unsatisfactory, and BORN DIGITAL considers that the Client is unreasonable in his repeated rejection of the Work, the contract will be deemed to have expired and BORN DIGITAL can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
Upon completion of 7 day review period, BORN DIGITAL will invoice the Client for the balancing payment in accordance with Clause 2.1 Fee Payable hereof, which, in the absence of agreement to the contrary, is to be paid by the Client within 7 days of the date that the invoice was issued.
4.6 Remedies for Overdue Payment
If payment has not been received by the due date, BORN DIGITAL has the right to suspend ongoing work for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 7 days after the due date, BORN DIGITAL has the right to replace, modify or remove the Website and revoke the Client's licence of the Work until full payment has been received. By revoking the Client's licence of the Work or removing the web site from the Internet, BORN DIGITAL does not remove the Client's obligation to pay any outstanding monies owing.
4.7 Hosting and email setup and support
Born Digital will deploy the completed Work to a single server of choice. If the Client chooses to host their website with BORN DIGITAL then BORN DIGITAL will provide up to 2 hours initial support to assist the Client with the initial setup of devices to receive email. Any additional support required will be charged at standard rates as set out in this contract, unless a support contract is in place.
5. INTELLECTUAL PROPERTY
5.1 Offers and Proposals
Offers and proposals made by BORN DIGITAL to potential clients should be treated as trade secrets and remain the property of BORN DIGITAL. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from BORN DIGITAL. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
5.2 Warranty by Client as to Ownership of Intellectual Property Rights
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to BORN DIGITAL for inclusion on the Website. The conclusion of a contract between BORN DIGITAL and the Client shall be regarded as a guarantee by the Client to BORN DIGITAL that all such permissions and authorities have been obtained and that the inclusion of such material on the Website would not constitute a criminal offence or civil delict. By agreeing to these terms and conditions, the Client removes the legal responsibility of BORN DIGITAL and indemnifies the same from any claims or legal actions however related to the content of the Client's site.
5.3 Domain Name
Any Domain Name obtained will belong to the Client. The Client agrees to indemnify BORN DIGITAL, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
Once BORN DIGITAL has received full payment of all outstanding balances relating to the Work and the Work has been approved by the Client in accordance with Clause 4.3 hereof, the Client will be granted a licence to use the software and its contents.
5.5 Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which BORN DIGITAL or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from BORN DIGITAL. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which BORN DIGITAL or their suppliers owns the copyright. BORN DIGITAL acknowledges the intellectual property rights of the Client. Information passed in written form to BORN DIGITAL, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
6. RIGHTS AND RESPONSIBILITIES
6.1 Right to Terminate
BORN DIGITAL reserves the right to refuse or break a contract without prior notice, if it is believed that the working relationship has become untenable or if it is believed that the Client, their Website, or any material is illegal, immoral or otherwise unacceptable.
6.2 Events Beyond the Control of BORN DIGITAL
BORN DIGITAL will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of BORN DIGITAL.
6.3 Supply and Pricing of Services
BORN DIGITAL reserves the right to use whoever it feels appropriate at the time for third party software and services, and to alter its prices as necessary without prior notice and without affecting existing contractual pricing agreements.
This Agreement shall be governed by the laws of this country which shall claim venue and jurisdiction for any legal action or claim arising from the contract between BORN DIGITAL and the Client. The said contract is void where prohibited by law.
7.2 Survival of Contract
Where one or more terms of the said contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
7.3 Change of Terms and Conditions
These terms & conditions may change from time to time. The Client will be informed of revisions as and when they are issued.
Standard Terms and Conditions v7 2nd January 2014
We are: Born Digital Creative Limited, Clavering House, Clavering Place, Newcastle upon Tyne, NE1 3NG
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