Client Terms and Conditions
1 . DEFINITIONS
1.1 In these terms and conditions:
“Agreement” means this Agreement between Artist and Client to which these terms and conditions apply, and incorporating the Client Order Confirmation;
“Client Order Confirmation” regards the approval of the work by the Artist (hereafter “COC”);
“Commencement Date” means the Start Date as stated in the COC;
“Artist” means the legal person named in this Agreement as providing the Work;
“Artwork” means the final design for the Work in accordance with general and detailed specifications supplied by the Client excluding preparatory designs such as sketches, graphic works, project development and production drawings, models, characters, prototypes, and other matters; “Business Day” means a day other than a Saturday, Sunday or public holiday in the United States when banks are open for business.
“Client” means a person who commissions the Work;
“Confidential Information” means all confidential information disclosed by the Client to Artist or disclosed by the Artist to the Client (whether in writing, orally or by other means) relating but not limited to the business organization, transactions, finances, technology, and business activities or affairs, of and concerning the Client or the Artist and its customers and suppliers. Confidential Information includes Reference Materials to the extent that they are not in the public domain at the Commencement Date;
“Deliverables” means all output to be provided by Artist to the Client in relation to the Work as specified in the COC;
“Intellectual Property Rights” means patents, copyright, registered and unregistered design rights, utility models, trademarks (whether or not registered), database rights, confidential information, and all other intellectual and industrial property rights and similar or analogous rights existing under the laws of any country and all rights to apply for or register such rights;
“Purpose” means the use for which Work is supplied;
“Reference Materials” means any information, techniques, ideas, concepts, and materials (regardless of the form or medium in which they are disclosed or stored) that are owned by or licensed to the Client;
“Licensed Rights” means the use the Client can make of the Intellectual Property Rights acquired or developed in respect of the Work or Artwork as specified in the COC;
“Work” means the service to be provided by Artist to Client including the production of the Artwork as described in the COC.
2 . PROVISION OF WORK
2.1 The terms and conditions of this Agreement are the only terms and conditions upon which the Artist is prepared to provide the Work to the Client and they shall govern the provision by the Artist of the Work to the exclusion of all other terms and conditions. No changes to this Agreement shall be valid unless agreed in writing by the Artist.
2.2 The Artist agrees to provide the Work in accordance with good professional practice and in accordance with this Agreement.
2.3 The Artist shall use reasonable endeavors to meet any due dates specified by the Client, but any such dates shall be estimates only and time shall not be of the essence.
3.1 The Client shall assume any shipping or insurance costs related to the project. Any alteration or deviation from the above specifications involving extra costs will be executed only upon approval with the Client.
3.2 The Artist shall not incur any liability or penalty for delays in the completion of the project due to actions or negligence of Client, unusual transportation delays, unforeseen illness, or external forces beyond the control of the designer. If such event(s) occur, it shall entitle the Artist to extend the completion/delivery date, by the time equivalent to the period of such delay.
3.3 In the event any material necessary for the production of the project must be shipped to a third party for additional processing, the Artist will incur no liability for losses incurred in transit, or due to the delay of the shipper of the third party.
3.4 The Artist shall use reasonable endeavors to deliver the relevant Deliverables in accordance with the specifications of the Work to the Client by the agreed date and shall notify the Client of any anticipated delay in which case the Client may (unless the delay is caused by the Client) ask the Artist to deliver the relevant Deliverables as agreed in the Schedule or on a mutually agreed date – whatever is the later date.
4. CLIENT’S OBLIGATIONS AND WARRANTIES
4.1 The Client shall:
4.1.1 communicate with the Artist only through the Website, Messenger Chat, or Email unless otherwise agreed with the Artist;
4.1.2 provide the Artist, without charge and within a reasonable time, with all information and Reference Materials needed for the Artist to carry out the Work to the Schedule;
4.1.3 give such assistance and make such decisions as shall be reasonably required to allow the Artist to carry out the Work efficiently and in accordance with the Schedule;
4.1.4 accept or reject Deliverables or any part of it as soon as practicable but not later than three Business Days after receipt;
4.2 The Client warrants that:
4.2.2 it has the capacity to enter and perform its obligations under this Agreement;
4.2.3 that any necessary permissions have been obtained for the use of Reference Materials by the Client or the Client’s Customer.
5. ACCEPTANCE OF OFFER
5.1 If, after the Client has been notified of these Terms and Conditions of Business, the Client shall have been made an offer of Work, that offer shall be deemed to be accepted by the Artist only:
5.1.1 by a COC incorporating these terms and conditions agreed to by the Client; or
5.1.2 by purchase order or other written form incorporating these terms and conditions, confirming the order.
6. PROOFING OF DIGITAL WORKS
6.1 The Artist shall make every effort to ensure the final product is free of any grammatical and spelling errors, before giving the final product to the client.
6.2 It is the client’s responsibility to ensure that there are no spelling or grammatical errors contained in the final product.
6.3 It is agreed that the Artist is not responsible or held liable for any errors contained in the final product after the final product has been committed to print or posted in view of the public.
7. PAYMENT TERMS
7.1 Unless stated otherwise in this Agreement, the Fee is payable in USD, inclusive of all of the Artist’s expenses and preparation time.
7.2 If applicable, delivery costs of hard copy original Artwork will be added to the Fee.
7.3 If the Client has agreed to pay expenses, the Artist will issue an invoice detailing such expenses.
7.4 The Client will pay expenses in accordance with these payment terms.
7.5 All Fees and delivery charges due to the Artist shall be exclusive of any applicable Value Added Tax (“VAT”) or like tax (which shall be additional).
7.6 The Client shall pay a fee as set out in the COC or in a purchase order or like document prior to the Artist starting the Work.
7.7 All payments shall be made to the Artist.
7.8 If and to the extent that VATis payable the Artist will render to the Client a VAT invoice.
7.9 The Client shall pay all invoices within 15 days of receipt of the invoice. The Artist reserves the right to discontinue work in the case of a Client's failure to pay all applicable Fees.
7.10 The Artist will deliver one copy of the Artwork in accordance with the specifications. If additional digital copies or prints are required additional fees will be charged.
7.11 The Artist may, without prejudice to any other rights it may have, set off any liability of the Client to the Artist against any liability of the Artist to the Client.
8. OWNERSHIP OF COPYRIGHT / COPYRIGHT LICENCE
8.1 The copyright in the Work, including all Artwork, commissioned by the Client shall be retained by the Artist.
8.2 The Client or the Client’s Customer (where the Client is acting as an intermediary) is granted a license solely as specified and for the Purpose set out on the face of the COC or otherwise agreed in writing between the parties and such record of the agreed license available in writing.
8.3 For the avoidance of doubt, the Artist shall have the right to use the Work and Artwork for the purpose of self-promotion, unless both parties agree otherwise in writing.
8.4 The Licensed Rights hereby granted are conditional upon the Artist having received payment in full of all monies due. Any permission for prior use without payment will be revoked if payment is not received in full on the date due, or if this Agreement is terminated early in accordance with Clauses 12.4 or 12.5.
8.5 The license hereby granted is personal to the Client and the Client’s Customer (where the Client is acting as an intermediary) and the Licensed Rights may not be assigned or sub-licensed to any third parties without the Artist's prior written consent.
8.6 The Client hereby warrants and agrees that:
8.6.1 it will not, without the Artist's prior written approval, amend, adapt, or use the Work or Artwork for any purpose other than that specifically licensed in this agreement;
8.6.2 it will not without the Artist's prior written approval modify Artwork in any way, nor use Artwork in alternative formats, media or extracts not specified in the Work description or included in the Licensed Rights;
8.6.3 it will not instruct third parties unless otherwise agreed in writing to produce Artwork that is identical or similar to the Work or Artwork of the Artist;
8.6.4 it will not exercise the Licensed Rights under this agreement in any way that is or renders the Work or Artwork in breach of any rights of a third party or of any law in the Territory;
8.6.5 it indemnifies the Artist and shall at all times keep the Artist indemnified against all actions, proceeds, costs, claims and damages whatsoever incurred by or awarded against the Artist and compensation agreed by the Artist in consequence of any breach or non-performance by the Client of any of the warranties and undertakings in this agreement.
8.7 Further use of the Work or Artwork is subject to an additional license to be granted by the Artist. Both parties shall negotiate the terms of the additional license in good faith. The Client is in breach of this Agreement if it uses the Artwork beyond the Licensed Rights granted or for a different purpose than set out in this Agreement without prior written permission by the Artist.
8.8 Unless otherwise agreed in writing, supply by the Artist of source files that include the Artwork in separated or layered form shall not grant the Client the right to use the layers separately or create derivative or montage artworks without prior written permission by the Agency or the Artist.
8.9 The Licensed Rights include the right to print off copies and download extracts of the Artwork for the purpose of exercising the Licensed Rights.
9. CREDITS / MORAL RIGHT
9.1 The Artist’s right to be identified as the author of the Work or Artwork is hereby asserted. The Artist reserves the right to object to or prevent any derogatory treatment of the Work or Artwork in accordance with Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0).
9.2 The Client shall ensure the Artist is credited in any editorial use of the Work. Credits for non-editorial use are not required unless so indicated on the COC or otherwise agreed in writing by the Artist.
10.1 Each party may disclose the other party’s confidential information:
10.1.1 to its employees, officers, representatives, or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 10; and
10.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.2 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
11. LIMITATION OF LIABILITY
11.1 Subject to Clause 10, the Artist’s total aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the Fee.
11.2 Subject to Clause 10, the Client’s total aggregate liability to the Artist, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the Fee. Nothing in this Agreement shall limit or exclude the Client’s liability under the indemnity contained in clause 8.6.5;
11.3 Neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss (including loss of profit, loss of opportunity or any special losses whether or not one party has advised the other of potential indirect or consequential losses) arising under or in connection with this Agreement except where the Artist has had to decline to accept other work from third parties during the period, which the Artist has allocated fully to performing the Work under this Agreement. In this case, the Client will be liable to pay for losses in accordance with clause 12.7.
11.4 Nothing in this Agreement shall limit or exclude the liability of either party for:
11.4.1 fraud or fraudulent misrepresentation;
11.4.2 breach of the terms; or
11.4.3 any other liability which cannot be limited or excluded by the applicable law.
12.1 Upon delivery to the Client of completed Deliverables, the Client shall examine such Deliverables within three Business Days and notify the Artist in writing as to whether it accepts such Deliverables (“Acceptance”) or rejects if, in the Client’s reasonable opinion, they materially fail to conform with the description of the Work or other terms of this Agreement.
12.2 If the Client rejects Deliverables (or any part thereof) under Clause 12.1 it shall inform the Artist in writing as to the reasons for such rejection, and shall require the Artist to correct and resubmit such Deliverables within such period as agreed by the parties in writing for re-examination in accordance with the provisions of this clause 12, at no extra cost to the Client.
12.3 Any Deliverables resubmitted by Service Provider pursuant to Clause 12.2 above shall be subject to the procedure as set out in clause 12.1 one more time.
12.4 If, in Commissioner’s reasonable opinion, the submitted Deliverables (or any part thereof) do not materially conform with the description of the Work or other terms of this Agreement after the Artist has resubmitted the Deliverables, the Client shall at its discretion and without prejudice to its rights and remedies set out in this Agreement, be entitled to:
12.4.1 require the Artist to correct the defects identified by such date as agreed with the Artist; or
12.4.2 terminate this Agreement immediately subject to a cancellation fee as set out in clauses 12.7 and 12.8, unless waived by the Artist.
12.5 If the Client has not notified the Artist within five Business Days in accordance with Clause 12.1 it shall be conclusively presumed that the Deliverables have been accepted. If the Client requests amendments after five Business Days it shall be at the Artist’s discretion to charge an additional fee for such amendments.
12.6 The Client acknowledges that rejection is not permitted on the basis of style if the style is consistent with the style or styles in the Artist’s portfolio as shown to the Client.
12.7 If the Client terminates the Agreement prior to step 1 (delivery of roughs) or rejects the Deliverables (or any part thereof) prior to delivery of the final Artwork the following percentages of the Fee become payable:
12.7.1 25% prior to delivery of roughs;
12.7.2 33% after delivery of roughs;
12.7.3 50% after delivery of color visual;
12.7.4 75% after delivery of any subsequently revised color roughs.
12.8 If the Clients terminates the Agreement or rejects the Deliverables (or any part thereof) at an intermediate step it will pay a fair and reasonable amount on account of the Fee due under this Agreement commensurate with the Schedule performed to date.
12.9 100% of the Fee becomes payable if
12.9.1 the final Artwork is rejected by the Client after delivery; or
12.9.2 the Client uses any Deliverables or any part thereof for the Purpose; or
12.9.3 the Artist has correctly followed the brief as outlined in the description of the Work or as provided by the Client and the Deliverables are consistent with the style or styles in the Artist’s portfolio as shown to the Client.
12.10 If the Artist has had to decline to accept further work from third parties during the period, which the Artist has had to allocate fully to performing the Work under this Agreement, the Artist reserves the right to claim against the Client in respect of those losses. Such a claim for losses together with the percentages of the Fee as set out in clause 12.4 shall not exceed 100% of the Fee.
13.1 If the Client changes the brief and requires subsequent changes, additions, or variations, which substantially change the Work as described in this Agreement or as specified initially by the Client, the Artist will charge an additional Fee for all such additional work. The Artist reserves the right to refuse to carry out changes, additions, or variations, which substantially change the Work or initial brief specified by the Client.
14. ORIGINAL ARTWORK
14.1 If applicable, original Artwork shall not be intentionally destroyed, altered, retouched, modified, or changed in any way whatsoever without the written consent of the Artist.
15.1 The Client may terminate this Agreement at any time.
15.2 Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
15.2.1 the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of that party being notified in writing to do so;
15.2.2 the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, or (being a partnership) has any partner to whom any of the foregoing apply;
15.2.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors.
15.3 Clauses which expressly or by implication survive termination of the Agreement shall continue in full force and effect.
15.4 Termination or expiry of this Agreement shall not prejudice or affect the accrued rights or claims of either party to this Agreement. On termination of this Agreement:
15.4.1 The Client shall pay the Artist all sums due in accordance with the payment terms in Clause 7 or, if terminated early, a percentage of the Fee in accordance with Clause 12;
15.4.2 Upon payment the Artist shall provide the Client with all Deliverables including all specification and other documentation comprised in the Deliverables existing at the date of such termination whether or not then complete, and return all Reference Materials. Until they have been delivered or returned, the Artist shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Agreement;
15.4.3 The Artist will keep an archived copy of the source files and delivered Work for a period of 3 months only.
15.5 For the avoidance of doubt, Deliverables do not include original source files but only files in the format as specified in the Work definition. It shall be at the Artist’s discretion to make original source files available to the Client after termination or expiry for an additional payment amount to be agreed in writing. Usage of source files is governed by the same terms under this Agreement that govern the usage of the Work or Artwork by the Client. Relevant provisions in Clauses 8 and 9 do not terminate after termination or expiry of this Agreement.
15.6 For the avoidance of doubt, on termination of this Agreement, the Artist will have the right to withhold all Deliverables including all specifications and other documentation comprised in the Deliverables existing at the date of such termination and any Reference Materials as far as Reference Materials are used or integrated with the Deliverables and cannot be separated without reasonable effort by the Artist until the Client has paid any outstanding sums due under this Agreement including outstanding expenses.
16.1 Any notice to be given under this Agreement shall be in writing and shall be delivered by e-mail to the address or contact details of the Artist or the Client (as applicable) as set out in this Agreement.
16.2 Each party shall give written notification of change of address or email address to the other party prior to the date of such change.
16.3 Notices are deemed to have been received
16.3.1 if sent by email on the next working day after the e-mail was transmitted;
17.1 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
17.2 The Client shall not, without the prior written consent of the Artist, assign or deal in any other manner with all or any of its rights or obligations under the Agreement.
17.3 No failure or delay by the Artist to exercise any right under this Agreement shall be deemed to be a waiver of that right, nor preclude the exercise or enforcement of it at any later time.
17.4 The Contracts or like legal provisions throughout the world shall not apply to this Agreement.
17.5 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives). For the avoidance of doubt, no document sent by the Client to the Artist after this Agreement has come into effect shall be deemed to be an enforceable variation of this Agreement unless the parties expressly accept the variation in writing.
17.6 The Artist shall not be liable for any failure in the performance of any of its obligations under this Agreement caused by factors outside its control.
17.7 The Artist warrants that it is an independent contractor. Nothing in this Agreement shall render the Artist an agent, partner, or employee of the Client.
17.8 If any provision of this Agreement shall be held to be illegal or unenforceable, the enforceability of the remainder of this Agreement shall not be affected.
17.9 In the event of any conflict between these terms and conditions and any other part of this Agreement, the terms of that other part of the Agreement shall prevail.
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