DEFINITIONS

• The developer refers to Piotr Sitko t/a TPUK Dev
• Client refers to individual or business set out in any communication, quote, or any other document provided by the Supplier (in the absence of such information, the buyer who placed the order and pays the bill)
• Agreement/Contract refers to Project Proposal, Terms & Conditions and any other attached and relevant documents.
• Project means the scope and purpose of the Client’s identified usage of the work product as described in the Project Proposal.
• Services refer to work product to be provided to the Client by Developer as described and otherwise further defined in the Project Proposal.
• Final Deliverables means the final versions of Deliverables provided by the Developer and accepted by the Client.
• Deliverables mean the services and work product specified in the Project Proposal to be delivered by Developer to Client.
• Client Content means all materials, writing, images or other creative content provided by the Client used in preparing or creating the Deliverables.
• Third-Party Materials means proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
• Developer Tools means all design tools developed and/or used by the developer in performing the services, including pre-existing and newly developed software including source code, Web authoring tools, type 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.

DEVELOPER SERVICES

The developer shall perform the services listed in the Scope of Work according to the Work Plan and Milestones schedule.

PROPOSAL

The terms of this Agreement expire 30 days after being submitted to the Client. If this Agreement expires, Developer may modify the Agreement and re-submit it to the Client.

PAYMENT ARRANGEMENTS

Fees:

Client agrees to pay Developer the fees listed in the Project Proposal, including all relevant taxes.

Expenses:

The client will reimburse the Developer for any additional expenses, including but not limited to:

1. a) Secondary or unpredictable out of our control expenses at cost plus Developer standard markup of 10 per cent
2. b) Mileage reimbursement, other than regular commuting, at £0.40 pence per mile.
3. c) Travel expenses, other than regular commuting, but including airfare and rental vehicles, with client approval.

Additional Costs:

Project Proposal costs include only Developer fees; however, any other expenses, such as web hosting, graphics art licensing or photography, will be billed to the Client on a prior agreed basis.

Web Hosting Final Deliverables:

The developer will host the project in the development stage on the developer’s web space while is under construction. In case the project s not is not fulfilled by the completion date listed in the Project Proposal, and the delay is not caused by Developer directly, the Client will be obligated to pay Developer £15 per month for the web hosting costs until the Final Deliverables are transferred to the Clients server. Unless otherwise agreed or alternative arrangements have been made.

PAYMENT

Payment Schedule:

Unless otherwise stated in the proposal/agreement:

1. 10% deposit is due when you confirm and book the agreed project.
2. 40% is due at the first stage of the project (subject to agreement)**
3. 35% stage two – approximately halfway through the project’s agreed duration **
4. 15% once the development stage is completed project transferred to the client’s servers and all have been verified successfully as fully functional on the date of the transfer – issues that appeared after successful verification while on our client server are beyond our control and will be charged extra to solve.

**Changes to the primary agreement will increase the project cost and therefore stage payments will be re-evaluated and a new proposal with added cost for new add-ons, content material changes, alterations to already completed design or core programming, additional research and analytics will be produced.

« Projects carried out on our CLIENT SERVER will be evaluated individually and charged based on agreed terms »

Invoices: All invoices are payable within seven days of receipt. Invoices shall list any expenses and additional costs as separate items.

Please note that some projects might require a new agreement to be drafted due to the complexity of the project.

LATE PAYMENT

Late Fee:

A monthly service fee of 4 per cent above the Bank of England’s base rate, or the maximum allowed by law, is payable on all overdue balances.

Crediting Late Payments:

Payments will be credited to late payments first, then to unpaid balances.

Collection Expenses:

Client shall pay all collection or legal fees caused by late payments.

Withholding Delivery:

The developer may withhold delivery and transfer of ownership of any agreed work if accounts are not up-to-date or overdue invoices are not paid in full.

Withholding License:

All grants of any license to use or transfer ownership of any intellectual property rights under this agreement are conditioned on full payment, including all outstanding additional costs, expenses, fees, or any other related charges.

CHANGES TO PROJECT SCOPE

Change Request:

If the Client decides to change the Scope of Work after acceptance of this Agreement, the Client shall send the Developer a written change order describing the requested changes in detail. Within three days of receiving a change/alterations order, Developer will respond with a statement proposing the Developers’ availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. The developer will evaluate each change order at its standard rate and charges.

Major Change:

If client change requests are beyond 10 per cent of the project scope time required to produce deliverables or the value of the Scope of Services, the developer will be entitled to submit a new and separate Proposal to the Client for written approval. The developer shall not begin work on the revised services until he receives a fully signed revised proposal and any additional fees approved.

Minor Change:

If Client requests are not regarded as “Major Changes”, Client will be billed on a time and resources basis at Developer’s hourly rate of £25.00 per hour. Such charges shall be in addition to all other amounts payable under this Agreement, despite any maximum budget, contract price or final price identified. The developer may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.

Acceptance/Rejection:

The client will have three business/working (excluding weekends or bank holidays) days to respond in writing accepting or rejecting the new proposal. If the Client rejects the proposal, the developer will not be obligated to perform any services beyond those in the original Agreement Scope only.

DELAYS

Developer Delays: The developer shall use all reasonable efforts to meet the Work Plan and Milestones delivery schedule. The developer may extend the due date for any Deliverable due to unforeseen circumstances beyond our control by giving written notice to the Client. The total of all extensions shall not exceed 30 days.

Client Delays: The client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by the Client will result in a day-for-day extension of the due date for all Deliverables and might be charged at daily rates for each day of the delay.

General Delays: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension of any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of the agreement, power failure, fire, flood, acts of God, labour disputes, riots, acts of war, terrorism and epidemics etc.;

EVALUATION AND ACCEPTANCE

Testing: The developer will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to the Client.

Approval Periods: The client shall, within five business days after receiving each Deliverable, notify the Developer in writing of any failure to comply with the specification of the Project Proposal or any other objections, corrections or changes required. The developer shall, within seven business days of receiving the Client’s notification, correct and submit a revised Deliverable to Client. Client shall, within five business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after three corrections by Developer, the Client finds the Deliverables are not acceptable, the Client may terminate this agreement subject to the termination clauses of this Agreement. If the Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement. Issues related to provided by client web hosting services or beyond our control are regarded as not our fault, and we shall not be made responsible financially or otherwise.

CLIENT RESPONSIBILITIES

The client acknowledges that it is responsible for performing the following in a reasonable and timely manner:

1. a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Developer, unless otherwise specified in the Project Proposal;
2. b) Proofread all Deliverables. The client will be charged for correcting errors after the acceptance of any Deliverable;
3. c) Make decisions regarding other parties.

ACCREDITATION AND PROMOTION

Endorsement:

The developer shall be entitled to place credits in the form of a hyperlink in the footer on each page of the Final Deliverables unless otherwise agreed with the client

Promotion:

Developer retains the right to reproduce, publish and display the Deliverables in Developer’s portfolios and websites, in galleries, design publications and other media or exhibits for recognition of creative excellence or professional advancement, and to be credited with authorship (not ownership unless otherwise agreed) of the Deliverables in connection with such uses.

Promotional Approval:

Either party, subject to the other’s reasonable approval, may describe its role in the project on its website and other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s site.

CONFIDENTIAL INFORMATION

1. a) Client’s “Confidential Information” includes information that the Developer should reasonably believe to be confidential.
2. b) Developer’s “Confidential Information” consists of the source code of any Developer Tools.

All material considered confidential by either party shall be regarded as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform agreed tasks/projects.

Confidential Information shall not include information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure

RELATIONSHIP OF THE PARTIES

Independent Contractor:

The developer is an independent contractor. The developer shall determine, in its sole discretion, the manner and means by which the services are fulfilled. No agency, partnership, joint venture, or employee-employer relationship is intended/considered or created by Project Agreement/Contract. Neither party is authorised to act as an agent or bind the other party except as expressly stated in the Agreement/Contact. The developer and the work produced or deliverables prepared by the developer shall not be deemed work for hire as defined under Copyright Law. All rights granted to the Client are contractual and are expressly set by Project Agreement/Contract.

Design Agents.

The developer shall be allowed to use third parties as independent contractors in connection with the services (“Design Agents”). The developer shall remain fully responsible for Design Agents’ compliance with this Project Agreement/Contract.

No Exclusivity. This Agreement does not create an exclusive relationship between the parties. The client is free to engage others to perform services of the same or similar nature to those provided by Developer, and Developer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services provided by the developer.

REPRESENTATIONS AND WARRANTIES

By Client.

Client represents and warrants to Developer that:

1. a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party;
2. b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials;
3. c) The client will obtain all necessary and appropriate rights and licenses to grant the permit to the Developer to use Third Party Materials.

By Developer:

Developer represents and warrants to Client that:

1. a) The developer will provide the services identified in the Agreement/Contact in a professional manner.
2. b) The developer shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Developer Tools, sufficient for Developer to grant the intellectual property rights provided in this Agreement;
3. c) To the best of the Developer’s knowledge, the Deliverables will not violate the rights of any third parties;
4. d) If the client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of the Developer shall be void.

Except for the express representations and warranties stated in this agreement, the developer makes no warranties whatsoever. The developer 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.

INDEMNIFICATION AND LIABILITY

By Client:

Client shall indemnify the developer from any damages, liabilities, costs, losses, expenses or attorney fees 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 Agreement/Contract. The developer shall promptly notify the Client in writing of any third-party claim or suit. Client shall have the right to fully control the defence and any settlement of such claim or suit.

By Developer:

In the case of a  third-party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, the developer may at his own expense, replace any infringing content with non-infringing content.

Limitation of liability:

The services and the work product of the developer are sold “as is.” In all circumstances, the maximum liability of the developer, its directors, officers, employees, design agents and affiliates (“developer parties”), to the client for damages for any and all causes whatsoever, and the client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of the developer. In no event shall the developer 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 the developer, even if the developer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

TERM AND TERMINATION

Term:

Project agreement shall begin when both parties sign the Agreement/Contact, the initial payment has been issued and shall continue until all services are completed and delivered, or until the Agreement is Terminated.

Termination for Cause:

Either party may terminate the Agreement/Contract at any time, on 30 days prior written notice if the other party breaches any of its material, responsibilities or obligations under the Agreement/Contract rules and fails to cure that breach during the 30-day period.

Termination for Insolvency:

Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors:

1. is liquidated or otherwise dissolved
2. becomes insolvent
3. files a petition for bankruptcy

Termination by Mutual Agreement:

This agreement might/can be terminated by the mutual agreement of the parties.

Termination for Convenience:

Either party may terminate this agreement at any time and for any reason by giving 30 days written notice to the other party. If the client terminates the Agreement/Contract under this section, the developer shall, at the Client’s reasonable discretion, complete any work assigned or scheduled during the notice period following the terms and conditions of the Agreement/Contract.

Termination Fees:

In the event of termination, Client shall pay Developer for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.

Intellectual Property:

If the client terminates and on full payment of compensation, the developer grants the Client right and title as provided by the Agreement/Contract with respect to those deliverables supplied and accepted by the Client as of the date of termination.

Confidential Information:

On expiration or termination of  Agreement/Contract:

1. a) each party shall return or, at the disclosing party’s request, destroy any Confidential material of the other party
2. b) all rights and obligations regarding Confidential Information shall survive.

RIGHTS TO FINAL ART

License:

Developer grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables under the Agreement/Contract rights. The rights granted to the Client are for the use of the Final Deliverables in their original form only. The client may not change, create derivative works or extract portions of the Final Deliverables without prior consent.

Liquidation for unlicensed use: 

Additional use of any Deliverables by the client outside the scope of the license granted above requires additional fees. The developer shall be entitled to further compensation equal to 50 per cent of the total original Project fee unless otherwise agreed in writing by both parties. In the event of nonpayment, Developer shall be entitled to pursue all remedies under law and equity.

RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

Client Content:

Client Content is the exclusive property of the Client. Client grants Developer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Developer’s performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.

Preliminary Works:

The developer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Developer within thirty (30) days of completion of the Services.

Developer Tools.

All Developer Tools are and shall remain the exclusive property of the developer. The developer grants the Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Developer Tools solely to the extent necessary with the Final Deliverables for the Project.

SUPPORT SERVICES

Warranty Period:

During the first two months following the expiration of the Agreement/Contract, Developer shall provide up to …x…. (subject to agreement) hours per month of Support Services at no additional cost to the client. Support Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or deficiencies. Requests for additional support will be billed at the developer’s standard rate plus the cost of additional technology aspects provided.

Maintenance Period:

After the Warranty Period expires and at the Client’s option, Developer will provide Support Services based on a new maintenance agreement or based on standard hourly rates.

No Enhancements:

The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.

Enhancements

During the Maintenance Period, the Client may request that Developer develop improvements to the Deliverables. The developer shall exercise commercially reasonable efforts to prioritise Developer’s resources to create such improvements. Client understands Developer may have preexisting obligations that may delay requested improvements. The developer shall provide any upgrades, and they shall be provided on a time and materials basis at the developer’s standard rate.

Alterations.

Alteration of any Deliverable is prohibited without the express permission of the Developer. The developer will be given the first opportunity to make the required alterations. Unauthorised modifications shall constitute additional use and will be billed accordingly.

DISPUTE RESOLUTION

Negotiation: 

Parties agree to attempt to resolve any dispute by negotiation between the parties.

Arbitration/Mediation:

If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.

Attorney Fees:

The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.

GENERAL

Modification/Waiver:

The Developer reserves the right to change this agreement at any time. Any changes will be submitted to the Client in writing. If the Client does not agree with the proposed changes, both parties have the right to terminate the existing agreement within the termination clause.

Notices. All notices under this Agreement shall be given in writing either by:

1. a) Email, with return confirmation of receipt;
2. b) Certified or Registered mail, with return receipt requested.

Notice will be valid when received, or in the case of email, on confirmation of receipt.

No Assignment:

Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.

Governing Law: 

This contract and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed under English law, and each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of England and Wales.

Severability:

If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible, the invalid or unenforceable provision shall be interpreted in such a manner as to be effective and valid under applicable law.

Headings:

Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the Project Agreement, and shall not have any legal effect.

Complete Agreement:  

This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement

DEFINITIONS

1. Designer/Developer refers to Mr Piotr Sitko t/a TPUK Dev
2. Client refers the person/individual/business named in any quotation, offer or other documents related to provided services (or, in the absence of such information, the person who placed the order and who pays the bill)
3. Delivery Date refers to any delivery date stated in the Estimate
4. Estimate means the document provided, by the Designer/Developer, that outlines the project scope, hours required to complete the project and delivery dates,
5. The agreement/contract implies a set of Terms and Conditions and any other attached documents related to the agreed project.
6. Services mean all the labour to be provided to the Client by the Designer/Developer as described.
7. Final Deliverables means the completed versions of Deliverables provided by the Designer/Developer and accepted by the Client.
8. Deliverables relate to labour and technology specified in the Project Proposal to be delivered by the Designer/Developer to Client.
9. Client Content means all materials, writing, images or other creative content provided by the Client used in preparing or creating the Deliverables.
10. Third-Party Materials means proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration, themes, coding, and software.
11. Designer/Developer Tools refers to all tools developed and/or used by the Designer/Developer in performing the services, including pre-existing and newly developed software including;

• source code
• web authoring tools
• type fonts
• application tools together with any other software,
• inventions whether or not patentable
• general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements

used and distributed under the GPL licence.

DESIGNER/DEVELOPER SERVICES

The designer/Developer shall perform the services requested by the client according to the scope of the project.

DEADLINES

Within five business days of receiving a brief for work from the Client, the Designer/Developer will provide the estimated hours required to complete the project and the assumed completion date.

COMPENSATION

Standard Fees:

All freelance work is charged at £ 25.00 per hour

Accelerated Project:

Client agrees to pay Designer/Developer £ 31.00 per hour, including all taxes if the Client requires the work to be completed before the estimated completion date – requires reshuffling already contracted work schedule (sometimes even private arrangements need to be rearranged). 

Expenses:

The client will pay Designer/Developer expenses, including but not limited to:

1. a) Incidental and out-of-pocket expenses at cost plus Designer/Developers standard markup of 10 per cent.
2. b) Mileage reimbursement, other than regular commuting (10 miles within HQ), at £0.40 pence per mile;
3. c) Travel expenses, other than regular commuting, but including airfare and rental vehicles, with client approval.

Additional Costs:

Pricing in the Estimate includes only Designer/Developer fees. Any other costs, such as hosting, art licensing or photography, and technology will be billed to the Client beforehand.

PAYMENT

Invoices: All invoices are payable within seven days of receipt. Invoices shall list any expenses and additional costs as separate items.

LATE PAYMENT

Late Fee: A monthly service fee of 4 per cent above the Bank of England’s base rate, or the maximum allowed by law, is payable on all overdue balances.

Crediting Late Payments:

Late payments will be credited to late payments first, then to unpaid balances.

Collection Expenses:

Client shall pay all collection or legal fees caused by late payments.

Withholding Delivery:

The Designer/Developer may withhold delivery and transfer of ownership of any current work if accounts are not balanced or overdue invoices are not paid in full.

Withholding License:

All grants of any license to use or transfer ownership of any intellectual property rights under the agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other related charges.

CHANGES TO ESTIMATE

Change Request:

If the Client wants to change the Scope of Work after acceptance of the Agreement, the Client shall send the Designer/Developer a written Change Order describing the requested changes in detail. Within two business days of receiving such Change Order, the Designer/Developer will respond with a statement proposing the Designer/Developer availability, additional fees, changes to delivery dates, and any modification to the Project Terms and Conditions. The designer/Developer will evaluate each Change Order at its standard rate and charges.

Acceptance/Rejection:

The client will have two business days to respond in writing accepting or rejecting the new proposal. If the Client rejects the proposal, the Designer/Developer will not be obligated to perform any services beyond those in the original Agreement.

DELAYS

Designer/Developer Delays:

The designer/Developer shall use all reasonable efforts to meet the estimated timeline. The designer/Developer may extend the due date for any Deliverable by giving written notice to the Client. The total of all extensions shall not exceed seven business days.

Client Delays:

The client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by the Client will result in a day-for-day extension of the due date for all Deliverables.

General Delays:

Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach of the agreement and will result in a day-for-day extension of any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of any delays. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of the agreement, power failure, fire, flood, acts of God, labour disputes, riots, acts of war, terrorism and epidemics or other.

EVALUATION AND ACCEPTANCE

Testing:

The designer/Developer will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to the Client.

Approval Periods:

Client shall, within five business days after receiving each Deliverable, notify the Designer/Developer in writing of any failure to comply with the specification of the Project Proposal or any other objections, corrections or changes required. Designer/Developer shall, within seven business days of receiving the Client’s notification, correct and submit a revised Deliverable to Client. Client shall, within five business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after three corrections by the Designer/Developer, Client finds the Deliverables are not acceptable, the Client may terminate this agreement subject to the termination clauses of the Agreement. If the Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of the Agreement.

CLIENT RESPONSIBILITIES

The client acknowledges that it is responsible for performing the following in a reasonable and timely manner:

1. a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by the Designer/Developer, unless otherwise specified and approved in the Project Proposal
2. b) Proofread all Deliverables. The client will be charged for correcting errors after the acceptance of any Deliverable
3. c) Make decisions regarding other parties

ACCREDITATION AND PROMOTION

Accreditation:

Designer/Developer shall be entitled (unless otherwise stated in the approved agreement) to place credits, as a hyperlink on each page of the Final Deliverables (footer of the page)

Promotion:

The designer/Developer holds the right to reproduce, publish and display the Deliverables in the Designer/Developer’s portfolios and websites, in galleries, design periodicals and other media or exhibits for recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

Promotional Approval:

Either party (subject to mutual agreement), may describe its role in the Project on its website and other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.

CONFIDENTIAL INFORMATION

Client’s “Confidential Information” includes information that the Designer/Developer should consider to be confidential. Designer/Developer’s “Confidential Information” consists of the source code of any Designer/Developer Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform agreed tasks.

Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.

RELATIONSHIP OF THE PARTIES

Independent Contractor:

The Designer/Developer is an independent contractor. The Designer/Developer shall determine, in its sole discretion, the manner and means by which the services are provided. No agency, partnership, joint venture, or employee-employer relationship is intended or created unless otherwise stated in the Agreement. Neither party is authorised to act as an agent or bind the other party except as expressly stated in the Agreement. Designer/Developer and the work product or Deliverables prepared by Designer/Developer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly set by the Agreement.

Design Agents:

The Designer/Developer shall be allowed to use third parties as independent contractors in connection with the Services (“Design Agents”). The Designer/Developer shall remain fully responsible for Design Agents’ compliance with this Agreement.

No Exclusivity:

Written verbal Agreement does not create an exclusive relationship between the parties. The client is free to engage others to perform services of the same or similar nature to those provided by the Designer/Developer, and the Designer/Developer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer/Developer.

REPRESENTATIONS AND WARRANTIES

By Client:

Client represents and warrants to Designer/Developer that:

1. a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party
2. b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials;
3. c) The client will obtain all necessary and appropriate rights and licenses to grant the license to Designer/Developer to use Third Party Materials.

By Designer/Developer:

The Designer/Developer represents a warranty to the Client that:

1. a) Designer/Developer will provide the Services identified in the Agreement in a professional manner.
2. b) Designer/Developer shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Designer/Developer Tools, sufficient for the Designer/Developer to grant the intellectual property rights provided in the Agreement.
3. c) To the best of the Designer/Developer’s knowledge, the Deliverables will not violate the rights of any third parties.
4. d) If the client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of the Agreement, all representations and warranties of the Designer/Developer shall be void.

Except for the express representations and warranties stated in the agreement, the designer/developer makes no warranties whatsoever. The Designer/Developer 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.

INDEMNITY AND LIABILITY

By Client:

Client shall free the Designer/Developer from any and all damages, liabilities, costs, losses, expenses or attorney fees 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. The Designer/Developer shall promptly notify the Client in writing of any third-party claim or suit. Client shall have the right to fully control the defence and any settlement of such claim or suit.

By Developer:

In the case of a  third-party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, the Designer/Developer may at its own expense, replace any infringing content with non-infringing content.

Limitation of liability:

 The services and the work product of the Designer/Developer are sold “as is.” In all circumstances, the maximum liability of the Designer/Developer, its directors, officers, employees, design agents and affiliates (“Designer/Developer parties”), to the client for damages for any and all causes whatsoever, and the client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of designer/developer. In no event shall the Designer/Developer 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 Designer/Developer, even if Designer/Developer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

TERM AND TERMINATION

Term:

This agreement shall begin when both parties sign and shall continue until the Agreement is Terminated.

Termination for Cause:

Either party may terminate the agreement at any time, by giving 30 days written notice if the other party breaches any of its material responsibilities or obligations under the Agreement and fails to cure that breach during those 30 days.

Termination for Insolvency:

Either party may terminate the agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its ordinary course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.

Termination by Mutual Agreement:

This agreement may be terminated by the mutual agreement of the parties at any time.

Termination for Convenience:

Either party may terminate the agreement at any time and for any reason giving 30 days written notice to the other party. If Client terminates the Agreement under this section, Designer/Developer shall, at Client’s reasonable discretion, complete any work assigned or scheduled during the notice period following the terms and conditions of the Agreement.

Termination Fees:

In the event of termination, Client shall pay the Designer/Developer for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.

Intellectual Property:

If Client terminates and on full payment of compensation, Designer/Developer grants Client the right and title as provided by the Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.

Confidential Information:

On expiration or termination of the Agreement:

1. a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party
2. b) all rights and obligations regarding Confidential Information shall survive.

RIGHTS TO ART

License:

Designer/Developer grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables following the Agreement. The rights granted to the Client are for the use of the Final Deliverables in its original form only. The client may not change, create derivative works or extract portions of the Final Deliverables.

Liquidation for unlicensed use: 

Additional use of any Deliverables by the Client outside the scope of the license granted above requires additional fees. The Designer/Developer shall be entitled to further compensation equal to 50 per cent of the total original Project fee unless otherwise agreed in writing by both parties. In the event of nonpayment, the Designer/Developer shall be entitled to pursue all remedies under law and equity.

RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

Client Content:

Client Content is the exclusive property of the Client. Client grants Designer/Developer a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer/Developer’s performance of the Services and limited promotional uses of the Deliverables as authorised in the Agreement.

Preliminary Works:

The Designer/Developer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer/Developer within thirty (30) days of completion of the Services.

Designer/Developer Tools:

All Designer/Developer Tools are and shall remain the exclusive property of the Designer/Developer. Designer/Developer grants Client a nonexclusive, non-transferable, perpetual, worldwide license to use the Designer/Developer Tools solely to the extent necessary with the Final Deliverables for the Project.

DISPUTE RESOLUTION

Negotiation: 

Parties agree to attempt to resolve any dispute by negotiation between the parties.

Arbitration/Mediation:

If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.

Attorney Fees:

The prevailing party shall be entitled to recover its attorney’s fees and costs in any dispute resolved by binding arbitration or litigation.

GENERAL

Modification/Waiver:

The Designer/Developer reserves the right to change the agreement at any time. Any changes will be submitted to the Client in writing or available on the Designer/Developer website (tpuk.dev). If the Client does not agree with the proposed changes, both parties have the right to terminate the existing agreement within the termination clause.

Notices. All notices under this T&C shall be given in writing either by:

1. a) Email, with return confirmation of receipt
2. b) Certified or Registered mail, with return receipt requested.

Notice will be valid when received, or in the case of email, on confirmation of receipt.

No Assignment.

Rights or obligations shall not be transferred, assigned or encumbered without the prior written consent of EITHER party.

Governing Law: 

This contract and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed following English and EU law, and each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of England and Wales.

Severability:

If any provision of the Agreement is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect. Where possible, the invalid or unenforceable provision shall be interpreted in such a manner as to be effective and valid under applicable law.