Terms & Conditions
These Terms and Conditions explain the basis under which the Service Provider will provide the Services to the Client for the price agreed.
The Client should read these Terms and Conditions carefully to make sure that they understand what is agreed.
In these conditions “the Customer or Client” means the person, firm or company who commissions the services of 3 Creative “the Company”. ‘Confirmation of Acceptance’ the Service Provider’s confirmation that the Client’s order has been accepted and a binding agreement has been formed for the supply of the Services.‘Parties’ the Client and the Service Provider. ‘Party’ either one of the Clients or the Service Provider. ‘Service Provider’ the person or company selling the Services, 3 Creative; contact details at the end of these Terms and Conditions. ‘Services’ the services that the Client is purchasing. ‘Terms and Conditions’ this document detailing the rights and responsibilities of the Parties. By commissioning the Company to undertake work “the project” on their behalf, the Customer agrees that these Terms and Conditions of Trading define our working relationship. All projects, services or goods that the Company may be contracted to produce or provide for the Customer will be subject to the following:
The Service Provider is under a legal duty to supply the Services using reasonable care and Skill. The Services will be performed so far as reasonably practicable, at such time or times as the Service Provider shall decide. Any times, dates or periods given by the Service Provider for provision of the Services are estimates only. The Service Provider will make reasonable efforts to comply with any such time estimates and will perform the Services within a reasonable time. However, time is not of the essence in respect of the Service Provider’s performance of the Services.
By ordering Services from the Service Provider, the Client makes an offer to buy the Services for the price given by the Service Provider. There is no binding contract between the Parties at the time when the order is made. The Service Provider will contact the Client by email to confirm the order. This Confirmation of Acceptance is the Service Provider’s acceptance of the order made by the Client. When the Confirmation of Acceptance is received, there will be a binding contract between the Parties in accordance with these Terms and Conditions. The binding contract will only be for the Services that are included in the Confirmation of Acceptance.
Price And Payment
The Client must make payments in accordance with any schedule agreed with the Service Provider. The VAT will be charged at the rate prevailing at the time that payment is due if applicable. Where an estimate of the total price has been provided by the Service Provider, the final price for the Services may be higher or lower than the estimate. Circumstances where the price may be different from an estimate include but are not limited to:
The Services taking longer to complete than could have reasonably been anticipated; The Client making any changes to the Services after the price is agreed; or Changes to the prices charged by any of the Service Provider’s suppliers.
Without prejudice to any other legal right or remedy:
If any agreed payment is not received by the Service Provider by the due date, they can charge interest on the outstanding sum or sums. Interest will be charged at 5% per annum above the Bank of England base rate, accruing daily from the due date until payment is made; If the amounts not paid to the Service Provider when due total 10% or more of the total value of the Services, the Service Provider is entitled to suspend the performance of any remaining Services until the outstanding payments are made; and the Client will not refuse to pay any amount which is owed to the Service Provider where there is only a minor or inconsequential defect or error in the performance of the Services.
The Client shall cooperate fully with the Service Provider in the performance of the Services. Co-operation shall include, but is not limited to:
Responding promptly and properly to any correspondence, request, query or communication from or on behalf of the Service Provider; promptly providing any information, documentation, instruction, support or other assistance as the Service Provider reasonably requires; promptly making any space, resources or facilities available as may reasonably be required by the Service Provider; and paying any and all sums due on time.
If the Client does not comply fully and properly with their responsibilities under this clause, the Service Provider may without prejudice to their legal rights:
Charge the Client for any costs or expenses thereby reasonably incurred; or suspend the provision of the Services until such time as the Client complies, so far as reasonably practicable, with their responsibilities under these Terms and Conditions.
The Service Provider can, at its absolute discretion, choose to retain or instruct sub-contractors to carry out the Services in whole or part.
Agency or Partnerships
Nothing in these Terms and Conditions is intended to or does imply any partnership, fiduciary relationship, joint venture, agency or any other relationship between the Parties, save as provided for in these Terms and Conditions.
Liability And Indemnity
Nothing in these Terms and Conditions seeks to limit the liability of the Service Provider for fraudulent acts or omissions, death or personal injury caused in connection with the provision of the Services, whether arising in contract, negligence, tort, breach of statutory duty or otherwise.
Neither Party shall be liable to the other whether in contract, negligence, tort, breach of statutory duty or otherwise for any loss or damage sustained by the other Party indirectly or consequentially and including but not limited to economic loss or loss of profits, goodwill or business in general.
Subject to the rest of this clause, the Service Provider’s total liability to the Client will not, under any circumstances, exceed the total amount of the price payable by the Client.
In the event that the Client or their servants or agents breach these Terms and Conditions, or are negligent in their actions, the Client will, to the fullest extent permitted by law, indemnify the Service Provider against any liability, loss, claim, damage, expense suffered by the Service Provider as a result.
Exclusion of liability
Under no circumstances, whatever shall the Company be liable for losses special to the particular circumstances of the Customer, indirect or consequential loss including loss of profits, damage to property or wasted expenditure. Without prejudice to the other provisions of these conditions, the Company’s liability shall not exceed the total of the contract fees for the project. The fees for any project are based on the assumption that the liability of the Company and Customer are as set out herein.
Property And Intellectual Property
Any property or intellectual property rights in any material owned by the Service Provider shall belong to the Service Provider and the Client shall not cause or permit anything to endanger those rights or title, or permit, assist or encourage others to do so.
Any property or intellectual property rights in any material owned by the Client shall belong to the Client and the Service Provider shall not cause or permit anything to endanger those rights or title, or permit, assist or encourage others to do so.
This clause is subject to the right of the Parties to use any such material so far as is reasonably required to carry out the agreed Services.
The Client warrants that any material, whether comprising documents, data, records or any other materials that it provides to the Service Provider does not infringe the intellectual property rights of any non-Party. The Client agrees to indemnify the Service Provider against any loss, damage, cost, expense or claim of any kind that may arise as a result of such an infringement.
The Parties will use their best endeavours to keep confidential any confidential information relating to the other Party that is provided or otherwise accessed in the performance of the Services. Neither Party shall disclose any confidential information without the consent of the other Party, except to comply with an order of a court of competent jurisdiction or if required in connection with legal proceedings relating to these Terms and Conditions.
The Parties’ obligations under this clause shall continue after the termination or completion of the Services unless or until the information concerned becomes public knowledge or is otherwise in the public domain through no fault of the Party bound to keep it confidential under this clause.
Amendment and Transfer Of Rights
These Terms and Conditions can only be amended by the agreement of the Parties in writing with signatures on behalf of both.
The Service Provider is permitted to assign or transfer any rights or obligations under these Terms and Conditions or subcontract the same for performance to a third party. The Client is not permitted to assign or transfer any rights or obligations under these Terms and Conditions without the prior written permission of the Service Provider.
If any of the provisions of these Terms and Conditions are unlawful, invalid or otherwise unenforceable, they will be severed from the remainder. The Terms and Conditions which are left will remain valid and enforceable.
For the purposes of the Contracts (Rights of Third Parties) Act 1999, these Terms and Conditions are not intended to and do not confer any rights on any person who is not a Party. Any person who is not a Party does not have the right to enforce any provision of these Terms and Conditions.
Circumstances Beyond The Control of The Parties
The Service Provider shall not be liable for any delay or failure to perform any term or part of these Terms and Conditions due to circumstances beyond the reasonable control of the Service Provider. Such circumstances include – but are not limited to – industrial action, lockout, trade dispute, power failure, internet outage, fire, natural disaster or outbreak of war. As soon as is reasonably possible after the discovery of such circumstances, the Service Provider will notify the Client in writing of any anticipated or existing delay or failure in performance.
If the circumstances referred to in this clause continue for a period of longer than 30 days, the Service Provider can end the contract by giving 30 days’ notice in writing to the Client. All money owing under these Terms and Conditions before the circumstances arose shall be paid immediately.
The Customer may receive an estimate or proposal outlining the project specifications and estimated fees for our time based on our current hourly rate or agreed package and, where appropriate, any goods and professional services commissioned by us in order to complete the project. Some projects will require an upfront payment disclosed either verbally or in a written proposal. We will begin work upon the Customer’s written or oral approval of the estimate and cleared payment of any agreed upfront fees. This will constitute an agreement between us and of the terms and conditions on this page. The Customer agrees to pay the Company in accordance with the terms specified in each proposal/estimate or Invoice. Our standard payment terms are 15 days. Estimates are valid for 30 days from the date on the estimate. Where a written estimate is not received or necessary we will charge for time spent on any project at our current hourly or Daily rate (this is available upon request) once we receive Customer’s written or oral approval to commence work. The Company’s charges and hourly rates are subject to change without notice, outside of any prior agreements.
We reserve the right without notice to charge interest on past due balances at the statutory rate without prior agreement as is our right* and at any rate, agreed otherwise in any contract between The Company and The Customer. We reserve the right to refuse completion or delivery of work until past due balances are paid. The Customer shall pay the Company’s costs, charges and expenses directly or indirectly incurred in obtaining or otherwise enforcing payment of outstanding accounts. More information on *Late Payment of Commercial Debts [Interest] Act 1998
Revisions and alterations on work
Revisions and alterations on work requested by the Customer and performed by the Company after a proposal/estimate has been approved are considered a revision or alteration. If the job changes to an extent that substantially alters the specifications described in the original estimate, we will submit a revised proposal/estimate to you, and a revised additional fee must be agreed to by both parties before further work proceeds. It is normal practice for contact reports to be issued by the Company’s staff of meetings between the Customer and the Company. If the subject matter of a contact report is not questioned by the Customer within three working days of its receipt, it will be taken to be a correct record of the meeting to which it refers. Author’s alterations and other copy changes requested after layouts or mechanicals are completed are billed at our standard hourly rates.
Any files (proofs) submitted or resubmitted to a client should always be treated ‘as new’ and fully checked. The nature of artwork and design files means that all elements can be connected and therefore anything can be affected by a change. Any proofs we supply which are then signed off by the client are expected and presumed to have been checked/read in their entirety – unless we or client specifically states otherwise.
Nature of copy and property belonging to others
The Customer agrees to exercise due diligence in its direction to us regarding the preparation of materials and must be able to substantiate all claims and representations. The Customer is responsible for all trademark, copyright and patent infringement clearances and is responsible for arranging, prior to publication, any necessary legal clearances, licenses, usage or royalty payments.
Errors and omissions
It is the Customer’s responsibility to check proofs carefully for accuracy in all respects, including but not limited to prices, spelling, dimensions and distances. The Company is not liable for errors or omissions. The Customer’s signature or that of his authorised representative is required on return of all proofs or artwork or written confirmation via email or fax prior to release for printing or other implementation.
Completed and outstanding projects
A design project is considered complete upon receipt of the customer’s final approval. Other services such as web development, printing, display production, website uploading, website population, print production, publishing contracted on the client’s behalf constitute a separate project and can be treated as a separate charge. Projects that are left uncompleted by a client for more than 1 month (30 days) without any reasonable progression or further instruction will be invoiced. The invoiced amount will be for the work completed thus far.
Digital Payment Terms: Standard invoice terms are 15 days, however, the very nature of online work means that in order for a project to enter the public domain (websites or HTML email campaigns hosted anywhere) the code must be released, thus the company loses overall control of it. All digital projects must be paid for in full before code can be released. All projects will require an initial agreed deposit in order to commence.
Completed digital projects: CMS Websites by their very nature are editable by their owners and as such can be populated by them too. Should the client have content ready in good time we will populate up to 10 pages of a new website as part of the project costs – prior to clients training on the CMS. (This population guarantee does not apply to pre-existing sites and those being updated. In this case, a quote will be given for any extra population) Should a website or update be in a ‘finished state’** for more than 7 days before a customer has supplied content we will regard the project as complete and raise our invoice for full final payment. If this situation should arise we will always honour the population of 10 pages of the site upon receipt of content, after payment has been made.
** a ‘finished state’ is defined as a website or update that has been fully built with all agreed pages and sections created, all design and layout is as signed off and all the features and functionality working correctly. It does not cover content such as, but not limited to, text or pictures to be supplied by the Customer.
The Company will not be held accountable for the failure of any plugins developed by a 3rd party, but will do its utmost to rectify any issues caused by such for an agreed fee. Any content or plugins added to a Customer’s website, developed by the Company, by the Customer or 3rd party on its behalf are the responsibility of the customer and the Company has no liability for these or any further additions made by the Customer or 3rd party on its behalf.
Website Hosting and Domain Name Registration
If required by the client, the Service Provider will provide the means to host the website at the cost agreed in the agreement. Hosting will begin on completion of the project and when hosting costs have been received. The Service Provider will endeavour to provide a professional, reliable service to the client at all times but cannot guarantee that the website hosting will be available at all times, particularly in the event of a technical failure beyond the control of The Service Provider.
Hosting with The Service Provider is acquired on a yearly contract and upon signing the project contract, the client is entering into a contractually bound subscription for a year, the hosting costs can be paid either in a single one-off payment or on a monthly basis if agreed. On receiving a one-off single payment the client’s website will be hosted for a year. Monthly payments must be made on the same date of each month. If at any point a payment is not made on time then the Service Provider reserves the right to cease hosting a website and will require the remainder of payments be paid. the Service Provider also reserves the right to charge an admin fee for re-activation of a website should this situation arise.
Hosting will run on a yearly contract. At the end of each year, it is the client’s responsibility to contact the Service Provider if they wish to continue hosting the website. the Service Provider will make reasonable efforts to inform the client of any pending hosting renewals.
Domain names will be registered by the Service Provider on behalf of the client and will be registered to the Service Provider. Although the domain name will be registered to the Service Provider it will become the full property of the client on receipt of all payments. the Service Provider will update the details at the point of full payment being received at the request of the client.
Initial costs of domain registration will be included in the project cost and future domain renewal costs will also be detailed, domain renewal costs will be required on a yearly basis. It is a requirement of the client to ensure domains and/or hosting payments are received in advance of their renewal to ensure no downtime of a website. the Service Provider cannot be held responsible for the loss of a domain name should the client not pay the renewal fee on time. the Service Provider will make reasonable efforts to inform the client of any pending renewals.
The domain name requested by the client will normally be registered at the beginning of the project in good faith to ensure the domain name can be acquired.
Where a client renews hosting with the Service Provider, they must also renew their domain name if it is required to keep the site functioning.
If a client chooses not to use the hosting provided by the Service Provider then the hosting of a website and its domain name are the sole responsibility of the client.
A client can move their hosting away from the Service Provider at any point or transfer a domain name away. This can be done on receipt of any outstanding fees and a discretionary £50 admin charge. All payments must be received before the transfer will take place.
If a domain name is purchased through a company other than the Service Provider then it is the client’s responsibility to ensure the domain name is renewed. the Service Provider will not renew a domain name at the point of hosting renewal where the domain name has been bought through a company other than the Service Provider.
The client agrees to allow the Service Provider to place a small text link at the footer of a client’s website simply stating the website was created by the Service Provider. The text link will provide a link back to the Service Providers website.
Overruns and underruns
Some printers’ terms enable them to deliver over or under the quantity ordered and to charge accordingly. In such cases, the Customer will accept overruns or underruns that do not exceed +/- 10% of the quantity ordered and the Company will bill for the actual quantity delivered within this tolerance.
Property and suppliers performance
The Company will take all reasonable precautions to safeguard property entrusted to us. In the absence of negligence on our part, however, we are not responsible for loss, destruction or damage or unauthorised use by others of such property. We will use our best efforts to ensure quality and timely delivery of all printed matter. Although we may use our best efforts to guard against any loss arising from the failure of our suppliers, media, or others to perform in accordance with their commitments, the Company is not responsible for failure on their part. We cannot in any way be held responsible for quality, price, performance or delivery of materials made or supplied by others where the work has been placed directly by the Customer or his agents.
All materials or property belonging to the Customer, as well as work performed, may be retained as security until all just claims against the Customer are satisfied.
Rights of ownership
Once a project has been delivered by us and is fully paid for by the Customer, the Company will assign the reproduction rights of the design for the use(s) described in the proposal or contract. According to copyright law, the rights to all design and artwork, including but not limited to photography, music and or illustration created by independent photographers, artists or illustrators retained by the Company, or purchased from a stock agency on behalf of the Customer, remain with the individual designer, artist, photographer or illustrator. Unless a purchase of “All Rights” (a Buyout) is negotiated on behalf of the Company, you may not use or reproduce the design, work or the property therein for a purpose other than the one(s) originally stipulated. If you wish to use the design we have created and/or the images within it for another purpose or project, including a reprint or exhibition, you must contact us to arrange the transfer of rights and the payment of any additional fees before proceeding. Master artwork including roughs, visuals, mock-ups and presentations is the property of the Company and will not be released or copied for the Client or any third party to use in any way whatsoever without prior written agreement by a director of the Company. We reserve the right to photograph and/or distribute or publish for the company’s promotional and marketing needs any work we create for you, including roughs, visuals, mock-ups and presentations, as samples for our portfolio, newsletter, brochures, presentations and website and for entry for awards. We will endeavour to store files on computer disks for a period of 6 months beyond the delivery of a job. Thereupon, we reserve the right to discard them without notice.
3 Creative retains all rights in and to all initial designs. Preliminary Designs shall remain the exclusive property of 3 Creative.
The Customer will indemnify and hold the Company harmless for any loss or expense (including legal fees) and agree to defend the Company in any actual lawsuit, claim or action arising in any way from our working relationship. This includes, but is not limited to claims made against the Customer and any of its products and services arising from the publication of materials that we prepare and the customer approves before publication.
Production schedules, storage of files and property belonging to the Client will be established and adhered to by both the Customer and the Company, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, industrial dispute or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the Customer or the Company. Where production schedules are not adhered to by the Customer, final delivery date or dates will be adjusted accordingly.
Displaying our work
We love to show off our work and share what we’ve learned with other people, so we reserve the right to display and link to your project as part of our portfolio and to write about it on websites, in magazine articles and in books, unless you specifically ask us not to do so.
The validity and enforceability of this agreement will be interpreted in accordance with the laws of England but the Company reserves the right to bring proceedings in connection with this contract in any other court of competent jurisdiction. Failure by the Company to enforce any of these conditions shall not be construed as a waiver of that condition or any other condition.
The company adheres to the Data Protection Act 1998, the only data we collect from you is freely given and relevant to us to enable the company to perform our work for you. We use advanced technologies to safeguard your data and keep strict security standards to prevent any unauthorised access to it. We do not pass on your details to any third party unless you give us permission to do so, or we are obliged or permitted by law to disclose it.
These Terms and Conditions and the Confirmation of Acceptance taken together are the entire agreement between the Service Provider and the Client and supersede any and all prior terms, conditions, warranties or representations to the fullest extent permitted by law.
Any failure or delay by the Service Provider in using rights or powers provided by these Terms and Conditions shall not constitute a waiver of the whole or any part of these Terms and Conditions. The partial or sole use of any rights or powers provided by these Terms and Conditions shall not prevent any additional use of the same rights or powers. The rights, powers and remedies in these Terms and Conditions are additional to the rights of the Parties provided by law.
Governing Law And Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with English law and the courts of England and Wales will have exclusive jurisdiction in relation to them.
In the event of a complaint of any nature, the Service Provider can be contacted using the details below.
The Service Provider is 3 Creative of 9 Neville Road, Tewkesbury, GL20 5EB and can be contacted at 01242 370461 or email@example.com. In circumstances where the Client is required to contact the Service Provider in writing, they can email them at firstname.lastname@example.org.