1.1 Agreement: The entire content of these Terms of Service, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content: All materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights: The property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under UK Copyright Law and International Copyright Law.
1.4 Deliverables: The services and work product specified in the Proposal to be delivered by Bee to Client, in the form and media specified in the Proposal.
1.5 Tools: All design tools developed and/or utilised by Bee in performing the Services, including without limitation pre-existing and newly developed software including source code, web authoring tools, fonts and application tools, together with any other software, or other inventions whether or not patentable and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Art: All creative content developed or created by Bee, or commissioned by Bee, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content and Bee's selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables: The final versions of Deliverables provided by Bee and accepted by Client.
1.8 Preliminary Works: All artwork including but not limited to, concepts, sketches, presentations, or other alternate or preliminary designs and documents developed by Bee and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.9 Project: The scope and purpose of the Client's identified usage of the work product as described in the Proposal.
1.10 Services: All services and the work product to be provided to Client by Bee as described and otherwise further defined in the Proposal.
1.11 Third Party Materials: Proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks: Trade names, words, symbols, designs, marks, logos or other devices or designs used in the Final Deliverable.
2 • PROPOSAL
The terms of the Proposal shall be effective for up to ninety (90) days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3 • FEES AND CHARGES
In consideration of the Services to be performed by Bee, Client shall pay to Bee fees in the amounts and according to the payment schedule set forth in the Proposal and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
Client shall pay Bee's expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls and taxis at cost plus Bee's standard markup of ten per cent (10%) and, if applicable, a mileage reimbursement at USD$1.00 per mile; and (b) travel expenses including transportation, meals and lodging, incurred by Bee with Client's prior approval.
3.3 Additional Costs.
The Project pricing includes Bee's fees only. Any and all outside costs including but not limited to, equipment rental, photographer's costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
All invoices are payable within thirty (30) days of receipt. A weekly service charge of ten per cent (10%) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Bee reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges, or the costs of Changes.
4 • CHANGES
4.1 General Changes.
Unless otherwise provided in the Proposal and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Bee's standard hourly rate of USD$45 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Bee may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes.
If Client requests or instructs Changes that amount to a revision in or near excess of fifty per cent (50%) of the time required to produce the Deliverables and or the value or scope of the Services, Bee shall be entitled to submit a new and separate Proposal to Client for approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Bee.
Bee will prioritise performance of the Services as may be necessary or as identified in the Proposal and will undertake time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or by electronic mail or (ii) provide comments and/or corrections sufficient to identify the Client's concerns, objections or corrections to Bee. Bee shall be entitled to request, in writing or by electronic mail, clarification of any concern, objection or correction. Client acknowledges and agrees that Bee's ability to meet any and all schedules is entirely dependent upon Client's prompt performance of its obligations to provide materials and approvals and/or instructions pursuant to the Proposal and that any delays in Client's performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Bee's obligations under this Agreement.
4.4 Testing And Acceptance.
Bee will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within seven (7) days of receipt of each Deliverable, shall notify Bee, in writing, by electronic mail or by telephone, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such notification shall be sufficient to identify with clarity any objection, correction or change or amendment and Bee will undertake to make the same in a timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5 • CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than Bee; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
6 • ACCREDITATION/PROMOTIONS
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Bee's name in the form, sisz and location as incorporated by Bee in the Deliverables, or as otherwise directed by Bee. Bee retains the right to reproduce, publish and display the Deliverables in Bee's portfolios and websites and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other's reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials and, if not expressly objected to, include a link to the other party's website.
7 • CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works ("Confidential Information"). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8 • RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor.
Bee is an independent contractor, not an employee of Client or any company affiliated with Client. Bee shall provide the Services under the general direction of Client but Bee shall determine, in Bee's sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. Bee and the work product or Deliverables prepared by Bee shall not be deemed a work-for-hire as that term is defined under UK Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written or verbal agreement of the parties and the various terms and conditions of this Agreement.
8.2 Design Agents.
Bee shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services ("Design Agents"). Notwithstanding, Bee shall remain fully responsible for such Design Agents' compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation.
During the term of this Agreement and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any designer, employee or Design Agent of Bee, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Bee shall be entitled to an agency commission to be the greater of, either (a) twenty-five per cent (25%) of said person's starting salary with Client, or (b) twenty-five per cent (25%) of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Bee, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity.
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Bee and Bee shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Bee.
9 • WARRANTIES AND REPRESENTATIONS
9.1 By Client.
Client represents, warrants and covenants to Bee that (a) Client owns all right, title and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client's knowledge, the Client Content does not infringe the rights of any third party and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Bee.
9.2.1 Bee hereby represents, warrants and covenants to Client that Bee will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
9.2.2 Bee further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Bee and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Bee, Bee shall have secure agreements from such contractors granting all necessary rights, title and interest in and to the Final Deliverables sufficient for Bee to grant the intellectual property rights provided in this Agreement and (iii) to the best of Bee's knowledge, the Final Art provided by Bee and Bee's subcontractors does not infringe the rights of any party and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Bee shall be void.
9.2.3 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, BEE MAKES NO WARRANTIES WHATSOEVER. BEE EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
10 • INDEMNIFICATION/LIABILITY
10.1 By Client.
Client agrees to indemnify, save and hold harmless Bee from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client's responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Bee shall promptly notify Client in writing or by electronic mail of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Bee provides Client with commercially reasonable assistance, information and authority necessary to perform Client's obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Bee in providing such assistance.
10.2 By Bee.
Subject to the terms, conditions, express representations and warranties provided in this Agreement, Bee agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Bee's representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Bee in writing or by electronic mail of the claim; (b) Bee shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Bee with the assistance, information and authority necessary to perform Bee's obligations under this section. Notwithstanding the foregoing, Bee shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Bee.
10.3 Limitation Of Liability.
THE SERVICES AND THE WORK PRODUCT OF BEE ARE SOLD "AS IS." IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF BEE, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES ("BEE PARTIES"), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT'S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF BEE. IN NO EVENT SHALL BEE BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY BEE, EVEN IF BEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11 • TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party: (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of notice of such breach.
11.3 In the event of termination, Bee shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Bee or Bee's agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Bee grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party's request, destroy the Confidential Information of the other party and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12 • GENERAL
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing or by electronic mail, except that Bee's invoices may include and Client shall pay, expenses or costs that Client authorises in writing or by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given hereunder shall be transmitted in writing or by electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested and shall be sent to the addresses identified below, unless notification of change of address is given in writing or by electronic mail. Notice shall be effective upon receipt or in the case of facsimile or email, upon confirmation of receipt.
12.3 No Assignment.
Neither party may assign, whether in writing, by electronic mail or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior consent of the other party.
12.4 Force Majeure.
Bee shall not be deemed in breach of this Agreement if Bee is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, severe weather, public enemy, death, illness or incapacity of Bee or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Bee's control (collectively, "Force Majeure Event"). Upon occurrence of any Force Majeure Event, Bee shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law And Dispute Resolution.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of The Cayman Islands without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through a forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys' fees and costs. In all other circumstances, the parties specifically consent to the local courts located in The Cayman Islands. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Bee will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder and hereby agrees that Bee shall be entitled to equitable relief by way of temporary and permanent injunction and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement.
INTELLECTUAL PROPERTY PROVISIONS
IP • 1 RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
IP 1.1 Client Content.
Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Bee a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Bee's performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
IP 1.2 Third Party Materials.
All Third Party Materials are the exclusive property of their respective owners. Bee shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Bee shall inform Client of any need to license, at Client's expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client's use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Bee from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client's failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
IP 1.3 Preliminary Works.
Bee retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Bee within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Bee.
IP 1.4 Original Artwork.
Bee retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Bee within thirty (30) days of completion of the Services.
IP 1.5 Trademarks.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Bee assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Bee for use by Client as a Trademark. Bee shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Bee from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client's use and/or failure to obtain rights to use or use of the Trademark.
IP 1.6 Tools.
All Tools are and shall remain the exclusive property of Bee. Bee hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client's web hosting or internet service providers), perpetual, worldwide license to use the Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Tools comprising any software or technology of Bee.
IP 2 • RIGHTS TO FINAL ART
IP 2.1 Bee hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.