1. Applicability: These terms and conditions apply to any work (“the work”) undertaken by Big Apple Media Developers, New York (“the Agency”) arising from verbal or written instructions given by a Client (‘the Client’) following a provision of an estimate for a specified number of hours required for completion of the work (“the estimate”). These terms and conditions apply unless a variation has been subsequently agreed and confirmed in writing, signed by an authorised representative of Agency and the Client.
2. The work: the Agency will carry out any and all work requested by and agreed with (verbally or in writing) the Client in consideration for a fee based on the hourly rate set out in the estimate.
3. Fee: (i) The applicable rate of fees for the work is hourly rate set out in the estimate. (ii) Any estimates of the whole or any part of the total fee applicable for the work (“the total fee”) is given in good faith and shall be treated as an estimate only and all errors and omissions shall be excepted. (iv) Any estimates of the total fee shall be valid for 30 days from the date of the estimate. (v) The Agency reserves its right to apply additional charges for any work entailed in altering or modifying the deliverables caused by any changes, amendments or additions requested by the Client after the date of the estimate.
4. Payment: (i) Payment of the fees shall be made in US Dollars according to the terms of the invoice. (ii) The Agency shall be entitled to charge interest on overdue sums.
5. Software: Upon Delivery and provided that the Client has complied with its obligations to pay off all sums due for the work, the Agency grants to the Client a non-exclusive worldwide license to use any proprietary software of the Agency used in the creation, development and/or operation of the deliverables (including any sub-routines, sub-elements or other generic parts of such software incorporated into the deliverables which constitute the “building blocks” of the underlying code) (the “Agency Software”) solely in connection with the normal operation of the deliverables and, where applicable, in accordance with the Agency’s express instructions. The Agency shall obtain all such usage rights for the Client in respect of any software owned by a third party used in the creation, development and/or operation of the deliverables (the “Third Party Software”) as are deemed necessary by the Agency. For the avoidance of doubt, the Agency’s assignment under this clause 5 to the Client of any copyright and intellectual property rights in the deliverables shall not include the Agency Software, the Third Party Software or any software distributed under the general public license used by the Agency in the course of the development of the deliverables or incorporated by the Agency into the deliverables.
6. Copyright: Subject to the above clause 5 and provided that the Client has complied with its obligations to pay off all sums due to the Agency from the Client, any copyright and intellectual property rights in all any artwork, photograph, layout, copy, designs or any other material created by the Agency under the Agreement shall be assigned to the Client upon Delivery. The Agency reserves the right to use all creative work or materials for its own portfolio or demonstration purposes. The creation of any materials for the Client by the Agency may involve making use of any artwork, photograph, layout, copy, designs or any other material protected by copyright and intellectual property rights belonging to a third party and in existence at the time it is desired to make use of it for the purposes of the Services (“Existing Work”) or any database or methodologies, system or know-how owned, used or created by the Agency, which is also intended for the Client’s use (“Generic Work”). The Agency shall obtain all such usage rights for the Client in respect of the use the Existing Work and Generic Work as are deemed necessary by the Agency. Unless expressly requested and paid for by the Client the copyright in ‘stock’ photographs obtained from news or photographic agencies for particular deliverables or to photographic or film negatives or to any other medium in which this material may be supplied will not be assigned to the Client.
7. Confidential Information: The parties acknowledge a duty, subsisting during and after the termination of this Agreement between the Agency and the Client, not to disclose without the other’s prior written permission any confidential information either concerning the other’s business, its business plans, customers or associated companies. The Agency acknowledges its responsibility to treat in complete confidence all the marketing and sales information and statistics relating to the Client’s business with which the Client may supply the Agency in the course of any work for the Client. The Agency shall impose obligations in terms equivalent to those in this clause 7 on its own personnel. The restrictions in this clause 7 shall not prevent the disclosure or use of information in the proper performance of the Agency’s duties; disclosure as required by law; and the disclosure of information which has come into the public domain other than through unauthorised disclosure.
8. Warranties and Indemnities: (i) All estimate prepared by the Agency are prepared in good faith and on the basis of instructions and information put before the Agency by the Client at the time of preparation. Their suitability or application of effectiveness will depend on the Client, the Client’s staff and subcontractors to the Client and no proposal is to be taken to warrant achievable or attainable results or performance. (ii) The Agency warrants that having taken such legal advice and undertaken such searches as the Agency considers reasonably necessary, to the best of its knowledge and belief any creative work produced by the Agency as part of the Services will be original to its authors, has not been previously published in any form in the United States (the “US”) and will not infringe the copyright of any third party in the US. (iii) The Client warrants that to the best of its knowledge and belief all information supplied to the Agency in pursuance of this Agreement will be accurate, not in any way contrary to English law and will not contain anything obscene, blasphemous, libellous or otherwise unlawful in the US. The Client warrants that to the best of its knowledge and belief any artwork, photograph, layout, copy, designs or any other material provided to the Agency by the Client for the purposes of incorporation into the deliverables will not infringe any copyright or other intellectual property right of a third party. Should either party or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the other’s breach of this Agreement, the party in breach shall indemnify the other subject to the provisions of clause 9.
9. Limitation of Liability: Nothing in these Terms and Conditions shall exclude or in any way limit the Agency’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this but including any liability arising under any indemnity under these Terms and Conditions: (i) the Agency’s maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed $500,000 ; and (ii) the Agency will not be liable under these Terms and Conditions of Provision of Service for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
10. Termination: Either party may terminate this Agreement forthwith by notice in writing to the other if the other party is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 28 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it. Upon the termination of this Agreement and subject to Clauses 3 and 4 of these Terms and Conditions the Agency shall transfer, assign and make available to the Client all property and materials in the possession or control of the Agency belonging to and paid for by the Client.
11. Variation: No variation of these Terms and Conditions or of any of the documents referred to in it shall be valid unless agreed by the parties in writing.
12. Governing Law and Jurisdiction: These Terms and Conditions shall be governed by and construed in accordance with the law of United States of America.