Terms and Conditions
1. DEFINITION OF TERMS
Brainstorm Creative Studio - The Service provider
The Client – The Client
Domain Name - the root address of a website, e.g. www.google.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.
Host - the company on whose system the Website physically resides in this instance Brainstorm Creative Studio.
Link - 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 Brainstorm Creative Studio
2.1 Fee Payable
A deposit of 50% of the total fee payable under the contract is due immediately upon receipt of the invoice. The remaining balance shall become due and payable 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. Brainstorm Creative Studio reserves the right not to begin the Work until the said deposit has been paid in full. The fee quoted in the contract does not include the cost of domain registration, hosting set up fee or hosting, unless otherwise stated. Brainstorm Creative Studio also reserve the right to request up to half of the remaining balance of the project AT ANY STAGE of the agreement FOR ANY PURPOSE, and The Client agrees to pay this within 3 business days when and if it is requested.
2.2 Maintenance Fees
Maintenance, if not included in the contract, shall be on a month to month basis, with a minimum of £25.00 payable in any month where updating is necessary. Fees will be assessed on an hourly basis at £50 per hour or quarter part thereof. Minimum commitment monthly and annual service plans are available also, which you can request details of by emailing email@example.com.
2.3 Expenses/Call out fees
All support, development, maintainence, tuition and any other work is carried out live across the internet or over the phone. We can, at a clients request, travel to their premises or a location of their choice. All fee's and expenses accrued doing so will be charged to the client. This includes but is not limited to transports costs, time costs, and any call out fees applicable. For those visits that involve an over night stay due to the length of travel involved, the client will also be responsible for hotel costs, food/beverages (up to £40 per day), transport to and from the clients address to the hotel, and any other expenses directly related to the trip. Call out fees are charged at an additional fee of £20 per hour (£70 per hour total) plus £50, including travel time, this call out fee is for the entire duration of the trip from point of leaving to point of return. For example, if we were to leave at 7am on a Monday, and returned at 7am the following Tuesday, the call out fee would be £1490 (24 hours x £70.00 + £50.00 call out fee). These fees are subject to change without notice in line with inflation. It is The Clients responsibility to ensure we have a quality internet connection when we arrive, for the entire duration of our on site work, The Client also accepts that if they have sub standard connectivity (for example slow speeds or a problematic connection) that this may slow the work down causing them higher fees.
2.4 Additional meetings
Brainstorm Creative Studio include one initial meeting within our project packages, the purpose of which is to interview the Client to find out their want's and wishes and to agree on a design and development plan. Brainstorm creative Studio do not design with the client present. All subsequent dealings will be over the phone, via email, or by other electronic communications we deem fit (for example Skype/Facetime). We take no responsibility for these services reliability, and it is The Client's responsiblity to make sure they have the correct technology and technological know how to access these services. However Brainstorm Creative Studio will endeavour to assist the client where they can within reason.
2.5 Technical expertise
Whilst Brainstorm Creative Studio do not expect the Client to be expert web developers, or industry leading designers, there is a certain level of basic understanding of modern technology expected prior to engaging in business. For example, a client must understand how to use the internet, basic web browsers, email and social networks in able to gain the full benefit of our services. A general understanding of how things work on the internet is required also. Brainstorm Creative Studio cannot accept liability for any mistakes made by The Client due to not having these basic skills. The Client accepts it is not Brainstorm Creative Studios responsibility to educate the client on these basic matters, and that if this is required Brainstorm Creative Studio will need to charge The Client for the additional work in training them.
3.1 Third Parties
Brainstorm Creative Studio can take no responsibility for services provided by third parties through us or otherwise, including the Hosting of the Client's Website if through a third party, although Brainstorm Creative Studio will endeavour to ensure that Website downtime is kept to a minimum.
3.2 Maintenance and Correction of Errors
Brainstorm Creative Studio 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 Brainstorm Creative Studio will be corrected free of charge for 12 months after completion if hosted by a third party, or indefinately while hosted by Brainstorm Creative Studio. If hosted by a third party, and the initial 12 months period has lapsed, we reserve the right to charge a small fee. Brainstorm Creative Studio reserves the right to charge a reasonable fee during and after the initial 12 month period after completion for correction of errors for which Brainstorm Creative Studio is not responsible, including, but not limited to malicious modification of the Website by The Client or a third party and typographical errors contained in materials provided to Brainstorm Creative Studio by the Client. The definition of Error does not include updates to the work where other technology has been updated (such as web browsers, mobile phones, computers etc) therefore causing your website/software to stop working as intended.
3.3 Extent of Work
Installation on the Internet is limited to the uploading of all necessary files to the Host, configuration, build, and testing of functionality. No registration of the Website with Search Engines will be undertaken unless otherwise agreed with the Client.
3.4 Consequential Loss
Under no circumstances will Brainstorm Creative Studio 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. If hosting on the Brainstorm Creative Studio servers, backup systems are in place, but are by no means a guarantee that your data will remain safe.
3.5 Search Engine Listings
Brainstorm Creative Studio does not guarantee listings on Search Engines and the Client accepts that it is Search Engines and not Brainstorm Creative Studio 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 even appear on Search Engines at all. Brainstorm Creative Studio does not control Search Engines’ algorithms and huge shifts can appear daily, weekly and even hourly.
If a client elects not to update their website if using web software to display their pages, Brainstorm Creative Studio and their website host reserve the right to suspend their account without notice should it be deemed the website is insecure. The website will be reinstated when the issues have been fixed.
4. COMPLETION OF WORK AND PAYMENT
4.1 Completion of Work
Brainstorm Creative Studio warrants completing the Work in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client. Brainstorm Creative Studio will not charge more than the amount previously agreed unless the Client has varied the specifications of the Work since the agreement. Brainstorm Creative Studio will not undertake changes to the specifications of the Work which would increase the cost, without prior written authorisation from the Client.
Any deadlines agreed upon during the initial proposal stage are simply guidelines to when Brainstorm Creative Studio plan to have the work completed. There will be no refunds, part refunds, or any recompense of any kind for projects that do not meet the deadline. However Brainstorm Creative Studio will endeavour to ensure the work is completed within a reasonable amount of time with all projects.
4.2 Supply of Materials
The Client is to supply all materials and information required for Brainstorm Creative Studio 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, Brainstorm Creative Studio 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, Brainstorm Creative Studio has the right to invoice the Client for any part or parts of the Work already completed.
The Client is to respond to any requests for information/content within 24 hours of them being requested (week days only), so if a request is made on Wednesday at 3pm, we should have received a response by no later than Thursday at 3pm. This does not need to include the information requested, and can be simply an estimate when you will supply us with the content. The maximum delivery time for content/information is 5 working days unless we agree otherwise, however ideally you would have supplied this to us before we started the project. Any content that is not ready prior to the project starting, that we then have to wait for, will cause an increase in the final project deadline, as will any significant pauses in communication.
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 Brainstorm Creative Studio, in writing(via post or email), of any unsatisfactory points within 14 days of receipt of such notification Once approved, or deemed approved, work cannot subsequently be rejected, and the contract will be deemed to have been completed and the remaining balance 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. You will be limited to 2 rounds of revisions/feedback for both artwork and website/software products, and it is the clients responsiblity to ensure these are thorough. The client may not add additional new feedback items not previously addressed after the second round of feedback, including but not limited to items missing from specification, revisions to layout, spelling/content errors and any content not yet provided. At this point it is at Brainstorm Creative Studios sole discretion whether or not to accept and act upon any further feedback or requests made by the client, and any further feedback implemented will not effect reimbursement of funds. The client accepts that it is their responsibility to provide clear and consistent feedback within these limits. These limits do not include bug reports, which will be fixed within the terms of this agreement.
4.3.1 Approval of Web artwork
On completion of the website design work, the Client will be notified and have the opportunity to review it. The Client should notify Brainstorm Creative Studio, in writing(via post or email), of any unsatisfactory points within 5 days of receipt of such notification Once approved, or deemed approved, or client consents to Brainstorm Creative Studio to commence with the development portion of the project, no further edits can be made to the artwork.
4.3.2 Development cycle
Once Brainstorm Creative Studio have commenced with the development of your website, you will no longer be able to request layout and/or design changes. Brainstorm Creative Studio will develop your site to match the artwork proofs sent to you in the design phase of the project.
4.4 Rejected Work
If the Client rejects the Work upon completion, or will not approve subsequent Work performed by Brainstorm Creative Studio to remedy any points reported by the Client as unsatisfactory, and Brainstorm Creative Studio considers that the Client is unreasonable in the Client’s repeated rejection of the Work, the contract will be deemed to have expired and Brainstorm Creative Studio can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
4.4.1 Offer of settlement
If The Client has repeatedly rejected the work, or it is deemed they have become unreasonable, Brainstorm Creative Studio may at any time offer a settlement figure to cease any and all dealings between the parties involved. This will be calculated by removing the cost of any remaining work deemed outstanding from the final balance of the account. Should this offer be accepted, it does not cease the rest of the terms of the contract, and all dealings between the parties involved must remain confidential at all times.
Upon completion of the Work, Brainstorm Creative Studio will invoice the Client for the remaining balance in accordance with Clause 2.1 Fee Payable hereof, which, in the absence of agreement to the contrary, is to be paid immediately. All payments to Brainstorm Creative Studio are non refundable. The Client agrees that it is their responsiblity to review and understand any payment plans offered by Brainstorm Creative Studio and when any fees are due.
4.6 Remedies for Overdue Payment
If payment has not been received by the due date, Brainstorm Creative Studio has the right to suspend ongoing work and services for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 14 days after the due date, Brainstorm Creative Studio 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, Brainstorm Creative Studio does not remove the Client's obligation to pay any outstanding monies owing.
5. INTELLECTUAL PROPERTY
5.1 Offers and Proposals
Offers and proposals made by Brainstorm Creative Studio to potential clients should be treated as trade secrets and remain the property of Brainstorm Creative Studio. 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 Brainstorm Creative Studio. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information. The Client may not discuss any business dealings between The Client and Brainstorm Creative Studio without prior consent from Brainstorm Creative Studio.
Brainstorm Creative Studio reserve the right to take credit for the work both within their online portfolio and by way of a credit link on the Clients website. If this credit link is subsequently removed, Brainstorm Creative Studio may revoke the license to the work. If a client wishes to not have the credit link in place, please contact Brainstorm Creative Studio immediately and they will provide a quote for an uncredited license for the work.
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 Brainstorm Creative Studio for inclusion on the Website. The conclusion of a contract between Brainstorm Creative Studio and the Client shall be regarded as a guarantee by the Client to Brainstorm Creative Studio 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 Brainstorm Creative Studio 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 Brainstorm Creative Studio, 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 Brainstorm Creative Studio has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with Clause 4.3 hereof, the Client is granted a licence to use the Website and its contents. Should the Clients account with Brainstorm Creative Studio ever go into arrears, Brainstorm Creative Studio may terminate all services until the account is paid in full.
5.5 Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which Brainstorm Creative Studio 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 Brainstorm Creative Studio. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which Brainstorm Creative Studio or their suppliers owns the copyright. Brainstorm Creative Studio acknowledges the intellectual property rights of the Client. Information passed in written form to Brainstorm Creative Studio, 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. Any systems that include/contain Brainstorm products such as BrainstormCMS, or any modifications to Open Source systems (other than frontend layout work) are not transferable to 3rd party hosting services due to the trade secrets they contain.
6. RIGHTS AND RESPONSIBILITIES
6.1 Right to Terminate
Brainstorm Creative Studio reserves the right to refuse or break a contract without prior notice, 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 Brainstorm Creative Studio
Brainstorm Creative Studio 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 Brainstorm Creative Studio.
6.3 Supply and Pricing of Services
Brainstorm Creative Studio 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 the United Kingdom which shall claim venue and jurisdiction for any legal action or claim arising from the contract between Brainstorm Creative Studio 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.