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terms of engagement
1. Intros and Applicability
1.1 We are Aiyana Zammit (also trading as DAMNITZAMMIT) (“I, we, us, our”) and we provide creative, advertising, branding, marketing, design and other services related to the marketing, promotion and design of our client’s (“you, your”) brand, identity, and products.
1.2 Your engagement of us in relation to any Services (as defined below) or prospective services (including without limitation by discussing and or agreeing any SOW (as defined below)) constitutes your acceptance of the terms in this document (the “Terms”).
1.3 We may update or otherwise amend these Terms at any time by notifying you of such changes by any reasonable method, including via update on the website aiyanazammit.com. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms. Your continued engagement of us following any changes to these Terms will constitute your acceptance of such changes.
1.4 These Terms and any SOW’s (as defined below) together are referred to herein as the “Agreement”.
2. Our Services
2.1 Subject to and in consideration of payment of the fee in accordance with section 3 below, we will perform the agreed services which are set out in a proposal, e-mail correspondence, cost estimate, statement of work, or/and verbal or other interactive correspondence (each, an “SOW”) (such services, the “Services”). For some Services we will produce a final product that you select for specific implementations as set out in an SOW (the “Work”).
2.2 In the event that there is a conflict between Services agreed in writing and Services agreed via verbal or other interactive correspondence in any SOW, the Services agreed which have more favourable terms to us shall supersede the other Services agreed.
2.3 Any timelines we agree with you for delivering the Services are reasonable estimates only. We will use reasonable efforts to notify you if we expect delays.
2.4 We will use commercially reasonable endeavours to provide the Services to you using reasonable skill and care and in a timely manner. Time is not of the essence for the performance of any of our obligations.
2.5 You are expected to promptly review the Services and Work we provide once delivered. If we do not receive a written complaint from you within a reasonable time, you will be deemed to have accepted the quality as satisfactory.
2.6 We reserve the right to use the services of third parties when carrying out the Services without restriction from, or further obligation to, you.
2.7 We do not guarantee the performance, quality, or solvency of any third parties involved in the Services, whether or not they were recommended or appointed by us. We also do not warrant that any required statutory or regulatory approvals will be granted.
2.8 Our agreements with third parties related to the SOW are governed by their standard or specific contract terms (the “Supplier Contracts”). You acknowledge and accept these terms where they have been disclosed to you and agree to comply with them. You also understand that any work you request can only be performed in accordance with, and subject to, the provisions of these Supplier Contracts—including, but not limited to, terms on cancellations, omissions, and deadlines.
2.9 Our responsibility is limited to ensuring that the Work is suitable for the purpose you have clearly communicated to us in writing and that we have considered when delivering the SOW. Our pricing reflects that specific scope of use. Any extended or alternative use requires our prior written approval and may incur additional charges.
2.10 We may adjust or amend the provision of the Services and Work for any legal, code of conduct or regulatory compliance purposes. In such cases, we will use reasonable efforts to inform you.
2.11 Where we are engaged (usually as part of a larger brief) to provide a marketing strategy or advise on creative mentoring or anything associated therewith, we will give our advice based upon specific information and parameters supplied by you and we cannot be held responsible for any changes out of our control, or/and any information that we were not aware of or which could not reasonably have been anticipated. Any advice given is strictly professional opinion and you agree that implementation of any such advice is strictly at your own risk without further liability to us and that there is no guarantee of any express or implied results of implementing such advice.
2.12 Between you and us, you are solely responsible for the implementation and use of the Services and/or Work.
3. Approvals
3.1 In normal circumstances we will engage with you to set out an SOW to a point where we provide an estimate of the cost of carrying out the proposed work or a fixed fee for your approval.
3.2 Your approval of the SOW, whether in writing or verbal / other interactive communication, constitutes a binding agreement. Once approved, we are authorized to begin work, incur costs, and engage suppliers. Until you give your approval, we may revise or withdraw the SOW or cost estimate. If we state a validity period for an estimate, it will remain open for that duration.
3.3 In the event that there is a conflict between approval given in writing and approval given via verbal or other interactive correspondence in any SOW, the approval which has more favourable terms to us shall supersede the other approval.
3.4 In the event that you request to change or cancel the whole or part of any SOW at any time after you give your approval (i) you will continue to be liable to pay for all work already undertaken by us or/and third parties we engage in relation to the SOW; (ii) we will make reasonable efforts to accommodate any such request where possible (but not in circumstances where any such changes or cancellation cannot be agreed with any third party we engage in relation to the SOW); (iii) any such change or cancellation may result in additional costs which we will use reasonable efforts to advise you of; and (iv) until you confirm any such change or cancellation request in writing, we will continue work based on the original SOW.
3.5 We are entitled to rely on approvals or instructions from anyone who reasonably appears to be authorized to act on your behalf. If that person is unavailable when needed, any resulting delays or issues are your responsibility.
3.6 If third parties are engaged by you in relation to matters which impact the Services (each an “Impacted Third Party”), it is your responsibility to ensure that (i) each Impacted Third Party provides all necessary information and cooperation with us; and (ii) no unreasonable delays in approvals or communications, nor changes to the Services arise from the involvement of any Impacted Third Party. To the extent you engage any Impacted Third Party(ies), (i) they shall be treated as sub-contractors for the performance of your obligations under this Agreement; (ii) you shall ensure that they are also bound by these Terms; (iii) you are not excused of any responsibility or liability under the Agreement caused by actions or omissions of any such third parties; and (iv) you shall be liable for the actions taken by them as if they were your own actions under the Agreement with us (for example and without limitation, in the event that a Service is requested to be amended after your approval and delivery by us as a result of the input of such a third party, such amendment will be taken as an amendment requested by you and we retain the right to increase the Fee and/or our expenses in accordance with section 3.3).
3.7 Once we deliver the Services and/or Work to you, we may, but are not obligated to, allow for a round of feedback where you may request reasonable changes to the Services and/or Work within a period of 7-14 days (such time period to be set at our sole discretion). In the absence of any feedback from you within such 7-14 day period, you shall be deemed to have accepted the Services and/or Work.
3.8 In the absence of, and at all times after the completion of, the feedback round outlined in section 3.7, If you have any concerns about the quality of the Services or Work delivered, you must notify us within the lesser of (i) 14 days of delivery; or (ii) 10 days before the implementation of the Services or Work goes live. If no notice is received within that timeframe, you will be deemed to have accepted the Services or/and Work as applicable. We reserve the right to suspend our provision of the Services while any such complaint is reviewed and resolved. We will normally provide cost estimates for addressing and resolving the issue where we deem appropriate.
4. Fees
4.1 In consideration for us providing the Services, you agree to pay us a fee (the “Fee”) which will be estimated or agreed between us in advance. Unless we have clearly agreed on a fixed fee for specific services in an SOW, all Fee proposals are deemed to be estimates based on the information available at the time.
4.2 The Fee is exclusive of any and all taxes, out-of-pocket expenses and third-party costs (such as but not limited to printing, proofs, photocopying, fonts, postage, courier services, licensing, subcontractor fees, accommodation, travel and meals). The Fee, third party costs and expenses are referred to herein as the “Project Price”.
4.3 We have the right to review and, if we deem (in our sole discretion) appropriate, increase the Fee whenever: (a) you or someone on your behalf: (i) request any changes or additions to the SOW (ii) request us to provide additional Services; (iii) change the timings for delivery of Services or Work; (iv) delay payment; (v) delay the provision of approvals, instructions, or information; (vi) do not supply documents or materials which we need to provide the Services, or provide such documents and materials in an inappropriate format or a format which requires us to prepare in order to use; (vii) require us to proof materials supplied by a third party; (viii) require us to perform any part of the Services physically in any location outside of London; or/and (ix) by nature of your request require us to work between the hours of 8 pm and 6 am in the United Kingdom or, if we notify you in advance, another location where we are physically based at the applicable time; (b) third parties or subcontractors we use to provide the Services or Work increase their charges; (c) we are required to make changes to the Services to comply with applicable law; or/and (d) additional work which could not reasonably have been anticipated when we provide you with a fixed fee or estimate is required to provide the Services or/and Work (for example and without limitation, file conversions, and print quality changes).
4.4 If the Fee or any third-party costs will exceed the estimate or fixed fee, we will normally seek your approval before starting or continuing work on the SOW where it is practical to do so. However, the absence of your specific approval regarding any increases to the estimated or fixed Fee or Project Price will not impair our ability to so increase the Fee or Project Price pursuant to our rights under this section 3.
4.5 You may not withhold payment from or offset any part of the Project Price, our expenses, or any other amounts owed to us.
4.6 If we incur fees from attempts to recover amounts you owe to us, you are liable to pay those fees in addition to all other amounts owed.
5. Payment
5.1 You agree to pay the Fee and any costs or expenses which are submitted to you: (i) in Great British Pounds; (ii) without set-off or deduction; (iii) in advance or on a payment schedule as set out in the applicable SOW; and (iv) within 14 days of us sending an invoice to you.
5.2 You must review and notify us in writing of any errors in invoices in writing within 7 days of the date we send the applicable invoice.
5.3 If you fail to pay any amounts set out in an invoice by the date due, without prejudice to any other rights we may have, (i) you will be liable to pay interest at 4% above the Bank of England’s base rate per annum with effect from the date on which the invoice was due to be settled to the date of payment; and (ii) we may, at our sole discretion, suspend performance of any Services in whole or in part (any such suspension of performance will not incur any liability to you for any loss caused by such suspension of performance).
6. Intellectual Property
6.1 As used herein, (i) “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, those rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; (ii) “Client Materials” means the documents, information, items and materials (whether owned by the you or a third party), which are provided by you (or someone on your behalf) to us in connection with the Services and/or Work.
6.2 Between you and us, all Intellectual Property Rights in the Services and Work, excluding any Client Materials and/or Third Party Materials (as defined below) contained within them (together the “AZ IP”), belong to us and are hereby asserted and reserved subject to the remainder of this section 6.
6.3 Subject to section 6.5 and to us receiving payment of the Project Price attributable to the Services, Work and any expenses or other costs incurred in relation thereto, we grant to you an exclusive, royalty-free, non-transferable, licence to use the AZ IP which belongs to us solely for the limited project implementation purposes (and applicable periods of time related to such purposes) explicitly agreed between you and us in an SOW (the “Project Purpose”).
6.4 You may not sublicense the rights granted in section 6.3 without our prior written consent.
6.5 You acknowledge that the Services and/or Work may include materials belonging to third parties (including without limitation fonts, videos, music) (“Third Party Materials”). You are responsible for obtaining any and all licences, permissions, consents and paying all amounts necessary to use the Third Party Materials (and any Client Materials) which are included within the Services and/or Work. We will use reasonable commercial endeavours to provide you with details of any Third Party Materials used in the Services and/or Work.
6.5 Between you and us, you will retain ownership of all Intellectual Property Rights in the Client Materials. You grant us a non-exclusive, royalty-free licence to use, copy and modify the Client Materials for the purpose of providing the Services and/or Work to you and the other purposes outlined in this section 6. We may grant sublicences of the Client Materials to our subcontractors and other suppliers where necessary for the performance of the Services and/or Work.
6.6 We retain all Intellectual Property Rights which belong to us (excluding any materials belonging to third parties) in any materials we created prior to your engagement of us (“Pre-Existing AZ IP”), even if incorporated into the Services and/or Work. We grant you a non-exclusive license to use such Pre-Existing AZ IP solely for the purposes of the specific project outlined in an SOW.
6.7 If any payment due under any SOW is not received in full within 14 days of the due date, we reserve the right to suspend the licences granted in section 6.3 and/or 6.6 until all outstanding amounts are paid in full.
6.8 Unless expressly stated in writing in an SOW, any licence granted to you in respect of the Work does not include the right to modify it.
6.9 You agree that any new inventions, designs, concepts, ideas, Intellectual Property Rights, or processes developed during the course of the Services and/or Work will belong to us, unless we’ve expressly agreed in writing that they’re to be owned by you.
6.10 We warrant that, to our knowledge, AZ IP and Pre-Existing AZ IP is original and will not, to our knowledge or as a result of our gross negligence, infringe the rights or intellectual property of a third party. Notwithstanding the previous sentence, it is your sole responsibility to make appropriate searches or enquiries in regard to potential infringements at the appropriate times. Beyond the scope of this warranty, we shall have no liability to you in respect of any infringement or alleged infringement of intellectual property of any third party or for passing off.
6.11 We give no guarantee that any of the Services or Work meets any criteria for the registration, qualification or protection of any Intellectual Property Rights. We shall have no liability to you in respect of any aspect of the Service’s or Work’s inability to or failure to register or qualify for protection of any Intellectual Property Rights.
6.12 We reserve and assert all moral rights in the Services and Work (for clarity, section 9 does not impact such reservation and assertion). You agree to provide reasonable attribution to us as the author of the Work whenever appropriate.
6.13 If requested by you, at your expense we will execute any documents and take any reasonable actions necessary to assert your rights under this section 6.
6.14 You will indemnify us against all liabilities, damages, losses, fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and professional costs and expenses incurred by us as a result of any claim that the supply, receipt or use of the Client Materials infringes the Intellectual Property Rights of any third party.
7. Limitation of Liability
7.1 Our total, maximum, aggregate liability to you for any claims or demands arising from these Terms, the Services, or any SOWs (regardless of how they arise) will be limited to a sum equal to the total fees you actually paid us for the specific Services to which the claim relates.
7.2 We are not liable for: (i) any delays, omissions, or errors within the Services or Work, unless they are entirely due to our own negligence; (ii) any costs or losses related to changes to the Work or Services; (iii) any loss of profits (including loss of anticipated savings); loss of business or business opportunity; loss of use or corruption of software, data or information; loss of or damage to goodwill or reputation; or indirect or consequential loss; and (iv) the acts or omissions of any subcontractors or other service providers we use (noting that we will use reasonable commercial endeavours to use reasonably competent subcontractors and service providers if applicable);
7.3 Where an error (other than (i) reasonable tolerances which you shall afford to us; and (ii) any errors in visual materials within the Services or Work which have been approved by you or on your behalf (whether explicitly or by virtue of other provisions of these Terms), for which we shall have no liability to you) is found in the Services or Work which we have created, the extent of our liability in relation to any such error is limited to, where possible using reasonable commercial efforts, correcting the error to a reasonable commercial standard.
7.4 Nothing in these Terms limits or excludes liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977 or liability for fraud or fraudulent misrepresentation.
8. Confidentiality
8.1 “Confidential Information” means all information (however recorded or preserved) that we disclose or make available to you in connection with the Agreement and which would be regarded as confidential by a reasonable business person. It includes any information of a confidential nature relating to the operations, products or customers of us. It does not include information that is or becomes generally available to the public through no fault of you; or was, is or becomes available to the recipient on a non-confidential basis from a person who is under no confidentiality obligation with respect to that information.
8.2 Subject to section 9, each of you undertake that you shall not disclose to any person any Confidential Information of ours, except as permitted by section 8.3.
8.3 You may disclose our Confidential Information: (i) to your employees, officers, representatives, contractors, subcontractors or advisers who need to know that information for the purposes of exercising its rights or carrying out your obligations under the Agreement (“Representatives”). You shall ensure that your Representatives comply with confidentiality obligations which are substantially equivalent to those set out in this section 8.3; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.4 You may not use our Confidential Information for any purpose other than to exercise your rights and perform your obligations under the Agreement.
9. Attribution and Publicity
9.1 Once the Services have been made available to the public or have been disclosed to third parties in a non-confidential environment, we shall have a right to (i) publicise our involvement in, and as the provider of, the Services and Work; (ii) use the Work and other elements of the Services in our portfolio, on our website, in magazines, on social media accounts, and third party media showcasing our services; for an unlimited period of time.
9.2 We reserve the right to require you to (i) include reasonable attribution to us as the creator of the Work and/or Services; and (ii) remove any reference or attribution of us in relation to the Work and/or Services.
10. Data Protection
10.1 Where an agreed SOW requires us to process third party personal data, upon request by us you will enter into a data processing agreement on terms supplied by us.
10.2 In the absence of a request by us pursuant to section 10.1 and for all other uses of personal data (other than use of personal data specific to us which shall not be used for any purpose other than for you to exercise your explicit rights and perform your obligations under the Agreement without further explicit, written consent from us) in relation to this Agreement, we and you shall (i) be considered independent data controllers of the personal data we receive in relation to or as a byproduct of the Agreement; and (ii) comply with applicable data protection laws in using any such personal data.
10.3 Where you provide us with, or otherwise request or require us to use, any personal data in relation to the Agreement, you represent and warrant that you have and shall take all steps necessary under applicable law in order for us to act as an independent data controller of such personal data.
10.4 You shall indemnify and hold us harmless from all liabilities, damages, losses, fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and professional costs and expenses incurred by us as a result of a breach of your representations, warranties, and obligations under section 10.
11. Termination
11.1 The Agreement will terminate automatically upon completion of all SOW’s (i.e., when there are no active, incomplete SOW’s) and full payment of the Contract Price by you in accordance with these Terms.
11.2 Without affecting any other right or remedy available to us, we may terminate any of (at our discretion) the SOW(’s), the Terms, and/or the Agreement (i) by giving you not less than one month’s notice in writing; (ii) upon notice with immediate effect if you suspend, cease, or threaten to suspend or cease, carrying on business; (iii) upon notice with immediate effect if your financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy; (iv) upon notice with immediate effect if in our reasonable opinion, continued involvement with you or any Services becomes inappropriate, such as and without limitation where the relationship has broken down, where it may harm our goodwill or reputation, or where there has been a material change in the nature of the project or your business structure; (v) if you commit a material breach of any of your obligations under the Agreement and do not remedy such breach within 14 days of notice to you of such breach; or (vi) you fail to pay any amounts due within 14 days of the due date upon the end of such 14 day period.
11.3 During any period of notice outlined in section 11.2(i),(v) and/or (vi), you will be obligated to continue to pay all portions of the Contract Price which arise or have arisen as a result of work performed by us during and prior to the period of notice.
11.4 On termination of the Contract for whatever reason, you will immediately pay to us all of our outstanding unpaid invoices and interest and, where no invoice has been submitted for Services supplied, we may submit an invoice, which shall be payable immediately on receipt.
11.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11.6 Termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination
12. Miscellaneous
12.1 The Agreement (and any amendments to the Terms and/or SOW explicitly agreed in writing as amending the Terms or SOW) constitutes the entire agreement between us and you and supersedes and extinguishes any and all other agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
12.2 Any waiver, delay by us or indulgence in relation to breach of these Terms shall not prevent their subsequent enforcement and shall not be deemed to be a waiver of any subsequent breach.
12.3 Any notice required to be given to us under these Terms shall be in writing and delivered personally or sent by first class post to the address at the top of the invoice for Services with an e-mail copy to aiyanazofficial@gmail.com. Notices shall be deemed delivered upon actual delivery if during normal business hours but otherwise upon the start of the next business day.
12.4 These Terms shall be governed by and construed in accordance with English law and you and we submit to the exclusive jurisdiction of the English courts in London.
12.5 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall not affect the validity and enforceability of the rest of these Terms. In such event, the parties agree that the unenforceable provision or part-provision shall be (i) replaced with a valid and enforceable provision that most closely reflects the original intent of us including such provision; or (ii) if there is no such provision pursuant to (i) which can be valid and enforceable, deleted to the minimum extent necessary.
12.6 Any amendments to these Terms must be agreed by you and us in writing and explicitly stated as amendments to these Terms.
12.7 Unless we explicitly agree otherwise in writing with you, we are not obligated to retain files or any other information related to the Services or Work after project completion. Any original materials we create, such as sketches, concepts, or prototypes, remain our property unless we agree otherwise with you in writing. If we provide these to you, you must return them in good condition when the project concludes or upon request.
12.8 You agree that while we are providing Services to you and for a period of twelve months thereafter, you will not engage or otherwise use any subcontractor or service provider of ours in a manner that might disrupt our relationship with them.
1.1 We are Aiyana Zammit (also trading as DAMNITZAMMIT) (“I, we, us, our”) and we provide creative, advertising, branding, marketing, design and other services related to the marketing, promotion and design of our client’s (“you, your”) brand, identity, and products.
1.2 Your engagement of us in relation to any Services (as defined below) or prospective services (including without limitation by discussing and or agreeing any SOW (as defined below)) constitutes your acceptance of the terms in this document (the “Terms”).
1.3 We may update or otherwise amend these Terms at any time by notifying you of such changes by any reasonable method, including via update on the website aiyanazammit.com. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms. Your continued engagement of us following any changes to these Terms will constitute your acceptance of such changes.
1.4 These Terms and any SOW’s (as defined below) together are referred to herein as the “Agreement”.
2. Our Services
2.1 Subject to and in consideration of payment of the fee in accordance with section 3 below, we will perform the agreed services which are set out in a proposal, e-mail correspondence, cost estimate, statement of work, or/and verbal or other interactive correspondence (each, an “SOW”) (such services, the “Services”). For some Services we will produce a final product that you select for specific implementations as set out in an SOW (the “Work”).
2.2 In the event that there is a conflict between Services agreed in writing and Services agreed via verbal or other interactive correspondence in any SOW, the Services agreed which have more favourable terms to us shall supersede the other Services agreed.
2.3 Any timelines we agree with you for delivering the Services are reasonable estimates only. We will use reasonable efforts to notify you if we expect delays.
2.4 We will use commercially reasonable endeavours to provide the Services to you using reasonable skill and care and in a timely manner. Time is not of the essence for the performance of any of our obligations.
2.5 You are expected to promptly review the Services and Work we provide once delivered. If we do not receive a written complaint from you within a reasonable time, you will be deemed to have accepted the quality as satisfactory.
2.6 We reserve the right to use the services of third parties when carrying out the Services without restriction from, or further obligation to, you.
2.7 We do not guarantee the performance, quality, or solvency of any third parties involved in the Services, whether or not they were recommended or appointed by us. We also do not warrant that any required statutory or regulatory approvals will be granted.
2.8 Our agreements with third parties related to the SOW are governed by their standard or specific contract terms (the “Supplier Contracts”). You acknowledge and accept these terms where they have been disclosed to you and agree to comply with them. You also understand that any work you request can only be performed in accordance with, and subject to, the provisions of these Supplier Contracts—including, but not limited to, terms on cancellations, omissions, and deadlines.
2.9 Our responsibility is limited to ensuring that the Work is suitable for the purpose you have clearly communicated to us in writing and that we have considered when delivering the SOW. Our pricing reflects that specific scope of use. Any extended or alternative use requires our prior written approval and may incur additional charges.
2.10 We may adjust or amend the provision of the Services and Work for any legal, code of conduct or regulatory compliance purposes. In such cases, we will use reasonable efforts to inform you.
2.11 Where we are engaged (usually as part of a larger brief) to provide a marketing strategy or advise on creative mentoring or anything associated therewith, we will give our advice based upon specific information and parameters supplied by you and we cannot be held responsible for any changes out of our control, or/and any information that we were not aware of or which could not reasonably have been anticipated. Any advice given is strictly professional opinion and you agree that implementation of any such advice is strictly at your own risk without further liability to us and that there is no guarantee of any express or implied results of implementing such advice.
2.12 Between you and us, you are solely responsible for the implementation and use of the Services and/or Work.
3. Approvals
3.1 In normal circumstances we will engage with you to set out an SOW to a point where we provide an estimate of the cost of carrying out the proposed work or a fixed fee for your approval.
3.2 Your approval of the SOW, whether in writing or verbal / other interactive communication, constitutes a binding agreement. Once approved, we are authorized to begin work, incur costs, and engage suppliers. Until you give your approval, we may revise or withdraw the SOW or cost estimate. If we state a validity period for an estimate, it will remain open for that duration.
3.3 In the event that there is a conflict between approval given in writing and approval given via verbal or other interactive correspondence in any SOW, the approval which has more favourable terms to us shall supersede the other approval.
3.4 In the event that you request to change or cancel the whole or part of any SOW at any time after you give your approval (i) you will continue to be liable to pay for all work already undertaken by us or/and third parties we engage in relation to the SOW; (ii) we will make reasonable efforts to accommodate any such request where possible (but not in circumstances where any such changes or cancellation cannot be agreed with any third party we engage in relation to the SOW); (iii) any such change or cancellation may result in additional costs which we will use reasonable efforts to advise you of; and (iv) until you confirm any such change or cancellation request in writing, we will continue work based on the original SOW.
3.5 We are entitled to rely on approvals or instructions from anyone who reasonably appears to be authorized to act on your behalf. If that person is unavailable when needed, any resulting delays or issues are your responsibility.
3.6 If third parties are engaged by you in relation to matters which impact the Services (each an “Impacted Third Party”), it is your responsibility to ensure that (i) each Impacted Third Party provides all necessary information and cooperation with us; and (ii) no unreasonable delays in approvals or communications, nor changes to the Services arise from the involvement of any Impacted Third Party. To the extent you engage any Impacted Third Party(ies), (i) they shall be treated as sub-contractors for the performance of your obligations under this Agreement; (ii) you shall ensure that they are also bound by these Terms; (iii) you are not excused of any responsibility or liability under the Agreement caused by actions or omissions of any such third parties; and (iv) you shall be liable for the actions taken by them as if they were your own actions under the Agreement with us (for example and without limitation, in the event that a Service is requested to be amended after your approval and delivery by us as a result of the input of such a third party, such amendment will be taken as an amendment requested by you and we retain the right to increase the Fee and/or our expenses in accordance with section 3.3).
3.7 Once we deliver the Services and/or Work to you, we may, but are not obligated to, allow for a round of feedback where you may request reasonable changes to the Services and/or Work within a period of 7-14 days (such time period to be set at our sole discretion). In the absence of any feedback from you within such 7-14 day period, you shall be deemed to have accepted the Services and/or Work.
3.8 In the absence of, and at all times after the completion of, the feedback round outlined in section 3.7, If you have any concerns about the quality of the Services or Work delivered, you must notify us within the lesser of (i) 14 days of delivery; or (ii) 10 days before the implementation of the Services or Work goes live. If no notice is received within that timeframe, you will be deemed to have accepted the Services or/and Work as applicable. We reserve the right to suspend our provision of the Services while any such complaint is reviewed and resolved. We will normally provide cost estimates for addressing and resolving the issue where we deem appropriate.
4. Fees
4.1 In consideration for us providing the Services, you agree to pay us a fee (the “Fee”) which will be estimated or agreed between us in advance. Unless we have clearly agreed on a fixed fee for specific services in an SOW, all Fee proposals are deemed to be estimates based on the information available at the time.
4.2 The Fee is exclusive of any and all taxes, out-of-pocket expenses and third-party costs (such as but not limited to printing, proofs, photocopying, fonts, postage, courier services, licensing, subcontractor fees, accommodation, travel and meals). The Fee, third party costs and expenses are referred to herein as the “Project Price”.
4.3 We have the right to review and, if we deem (in our sole discretion) appropriate, increase the Fee whenever: (a) you or someone on your behalf: (i) request any changes or additions to the SOW (ii) request us to provide additional Services; (iii) change the timings for delivery of Services or Work; (iv) delay payment; (v) delay the provision of approvals, instructions, or information; (vi) do not supply documents or materials which we need to provide the Services, or provide such documents and materials in an inappropriate format or a format which requires us to prepare in order to use; (vii) require us to proof materials supplied by a third party; (viii) require us to perform any part of the Services physically in any location outside of London; or/and (ix) by nature of your request require us to work between the hours of 8 pm and 6 am in the United Kingdom or, if we notify you in advance, another location where we are physically based at the applicable time; (b) third parties or subcontractors we use to provide the Services or Work increase their charges; (c) we are required to make changes to the Services to comply with applicable law; or/and (d) additional work which could not reasonably have been anticipated when we provide you with a fixed fee or estimate is required to provide the Services or/and Work (for example and without limitation, file conversions, and print quality changes).
4.4 If the Fee or any third-party costs will exceed the estimate or fixed fee, we will normally seek your approval before starting or continuing work on the SOW where it is practical to do so. However, the absence of your specific approval regarding any increases to the estimated or fixed Fee or Project Price will not impair our ability to so increase the Fee or Project Price pursuant to our rights under this section 3.
4.5 You may not withhold payment from or offset any part of the Project Price, our expenses, or any other amounts owed to us.
4.6 If we incur fees from attempts to recover amounts you owe to us, you are liable to pay those fees in addition to all other amounts owed.
5. Payment
5.1 You agree to pay the Fee and any costs or expenses which are submitted to you: (i) in Great British Pounds; (ii) without set-off or deduction; (iii) in advance or on a payment schedule as set out in the applicable SOW; and (iv) within 14 days of us sending an invoice to you.
5.2 You must review and notify us in writing of any errors in invoices in writing within 7 days of the date we send the applicable invoice.
5.3 If you fail to pay any amounts set out in an invoice by the date due, without prejudice to any other rights we may have, (i) you will be liable to pay interest at 4% above the Bank of England’s base rate per annum with effect from the date on which the invoice was due to be settled to the date of payment; and (ii) we may, at our sole discretion, suspend performance of any Services in whole or in part (any such suspension of performance will not incur any liability to you for any loss caused by such suspension of performance).
6. Intellectual Property
6.1 As used herein, (i) “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, those rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; (ii) “Client Materials” means the documents, information, items and materials (whether owned by the you or a third party), which are provided by you (or someone on your behalf) to us in connection with the Services and/or Work.
6.2 Between you and us, all Intellectual Property Rights in the Services and Work, excluding any Client Materials and/or Third Party Materials (as defined below) contained within them (together the “AZ IP”), belong to us and are hereby asserted and reserved subject to the remainder of this section 6.
6.3 Subject to section 6.5 and to us receiving payment of the Project Price attributable to the Services, Work and any expenses or other costs incurred in relation thereto, we grant to you an exclusive, royalty-free, non-transferable, licence to use the AZ IP which belongs to us solely for the limited project implementation purposes (and applicable periods of time related to such purposes) explicitly agreed between you and us in an SOW (the “Project Purpose”).
6.4 You may not sublicense the rights granted in section 6.3 without our prior written consent.
6.5 You acknowledge that the Services and/or Work may include materials belonging to third parties (including without limitation fonts, videos, music) (“Third Party Materials”). You are responsible for obtaining any and all licences, permissions, consents and paying all amounts necessary to use the Third Party Materials (and any Client Materials) which are included within the Services and/or Work. We will use reasonable commercial endeavours to provide you with details of any Third Party Materials used in the Services and/or Work.
6.5 Between you and us, you will retain ownership of all Intellectual Property Rights in the Client Materials. You grant us a non-exclusive, royalty-free licence to use, copy and modify the Client Materials for the purpose of providing the Services and/or Work to you and the other purposes outlined in this section 6. We may grant sublicences of the Client Materials to our subcontractors and other suppliers where necessary for the performance of the Services and/or Work.
6.6 We retain all Intellectual Property Rights which belong to us (excluding any materials belonging to third parties) in any materials we created prior to your engagement of us (“Pre-Existing AZ IP”), even if incorporated into the Services and/or Work. We grant you a non-exclusive license to use such Pre-Existing AZ IP solely for the purposes of the specific project outlined in an SOW.
6.7 If any payment due under any SOW is not received in full within 14 days of the due date, we reserve the right to suspend the licences granted in section 6.3 and/or 6.6 until all outstanding amounts are paid in full.
6.8 Unless expressly stated in writing in an SOW, any licence granted to you in respect of the Work does not include the right to modify it.
6.9 You agree that any new inventions, designs, concepts, ideas, Intellectual Property Rights, or processes developed during the course of the Services and/or Work will belong to us, unless we’ve expressly agreed in writing that they’re to be owned by you.
6.10 We warrant that, to our knowledge, AZ IP and Pre-Existing AZ IP is original and will not, to our knowledge or as a result of our gross negligence, infringe the rights or intellectual property of a third party. Notwithstanding the previous sentence, it is your sole responsibility to make appropriate searches or enquiries in regard to potential infringements at the appropriate times. Beyond the scope of this warranty, we shall have no liability to you in respect of any infringement or alleged infringement of intellectual property of any third party or for passing off.
6.11 We give no guarantee that any of the Services or Work meets any criteria for the registration, qualification or protection of any Intellectual Property Rights. We shall have no liability to you in respect of any aspect of the Service’s or Work’s inability to or failure to register or qualify for protection of any Intellectual Property Rights.
6.12 We reserve and assert all moral rights in the Services and Work (for clarity, section 9 does not impact such reservation and assertion). You agree to provide reasonable attribution to us as the author of the Work whenever appropriate.
6.13 If requested by you, at your expense we will execute any documents and take any reasonable actions necessary to assert your rights under this section 6.
6.14 You will indemnify us against all liabilities, damages, losses, fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and professional costs and expenses incurred by us as a result of any claim that the supply, receipt or use of the Client Materials infringes the Intellectual Property Rights of any third party.
7. Limitation of Liability
7.1 Our total, maximum, aggregate liability to you for any claims or demands arising from these Terms, the Services, or any SOWs (regardless of how they arise) will be limited to a sum equal to the total fees you actually paid us for the specific Services to which the claim relates.
7.2 We are not liable for: (i) any delays, omissions, or errors within the Services or Work, unless they are entirely due to our own negligence; (ii) any costs or losses related to changes to the Work or Services; (iii) any loss of profits (including loss of anticipated savings); loss of business or business opportunity; loss of use or corruption of software, data or information; loss of or damage to goodwill or reputation; or indirect or consequential loss; and (iv) the acts or omissions of any subcontractors or other service providers we use (noting that we will use reasonable commercial endeavours to use reasonably competent subcontractors and service providers if applicable);
7.3 Where an error (other than (i) reasonable tolerances which you shall afford to us; and (ii) any errors in visual materials within the Services or Work which have been approved by you or on your behalf (whether explicitly or by virtue of other provisions of these Terms), for which we shall have no liability to you) is found in the Services or Work which we have created, the extent of our liability in relation to any such error is limited to, where possible using reasonable commercial efforts, correcting the error to a reasonable commercial standard.
7.4 Nothing in these Terms limits or excludes liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977 or liability for fraud or fraudulent misrepresentation.
8. Confidentiality
8.1 “Confidential Information” means all information (however recorded or preserved) that we disclose or make available to you in connection with the Agreement and which would be regarded as confidential by a reasonable business person. It includes any information of a confidential nature relating to the operations, products or customers of us. It does not include information that is or becomes generally available to the public through no fault of you; or was, is or becomes available to the recipient on a non-confidential basis from a person who is under no confidentiality obligation with respect to that information.
8.2 Subject to section 9, each of you undertake that you shall not disclose to any person any Confidential Information of ours, except as permitted by section 8.3.
8.3 You may disclose our Confidential Information: (i) to your employees, officers, representatives, contractors, subcontractors or advisers who need to know that information for the purposes of exercising its rights or carrying out your obligations under the Agreement (“Representatives”). You shall ensure that your Representatives comply with confidentiality obligations which are substantially equivalent to those set out in this section 8.3; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.4 You may not use our Confidential Information for any purpose other than to exercise your rights and perform your obligations under the Agreement.
9. Attribution and Publicity
9.1 Once the Services have been made available to the public or have been disclosed to third parties in a non-confidential environment, we shall have a right to (i) publicise our involvement in, and as the provider of, the Services and Work; (ii) use the Work and other elements of the Services in our portfolio, on our website, in magazines, on social media accounts, and third party media showcasing our services; for an unlimited period of time.
9.2 We reserve the right to require you to (i) include reasonable attribution to us as the creator of the Work and/or Services; and (ii) remove any reference or attribution of us in relation to the Work and/or Services.
10. Data Protection
10.1 Where an agreed SOW requires us to process third party personal data, upon request by us you will enter into a data processing agreement on terms supplied by us.
10.2 In the absence of a request by us pursuant to section 10.1 and for all other uses of personal data (other than use of personal data specific to us which shall not be used for any purpose other than for you to exercise your explicit rights and perform your obligations under the Agreement without further explicit, written consent from us) in relation to this Agreement, we and you shall (i) be considered independent data controllers of the personal data we receive in relation to or as a byproduct of the Agreement; and (ii) comply with applicable data protection laws in using any such personal data.
10.3 Where you provide us with, or otherwise request or require us to use, any personal data in relation to the Agreement, you represent and warrant that you have and shall take all steps necessary under applicable law in order for us to act as an independent data controller of such personal data.
10.4 You shall indemnify and hold us harmless from all liabilities, damages, losses, fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and professional costs and expenses incurred by us as a result of a breach of your representations, warranties, and obligations under section 10.
11. Termination
11.1 The Agreement will terminate automatically upon completion of all SOW’s (i.e., when there are no active, incomplete SOW’s) and full payment of the Contract Price by you in accordance with these Terms.
11.2 Without affecting any other right or remedy available to us, we may terminate any of (at our discretion) the SOW(’s), the Terms, and/or the Agreement (i) by giving you not less than one month’s notice in writing; (ii) upon notice with immediate effect if you suspend, cease, or threaten to suspend or cease, carrying on business; (iii) upon notice with immediate effect if your financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy; (iv) upon notice with immediate effect if in our reasonable opinion, continued involvement with you or any Services becomes inappropriate, such as and without limitation where the relationship has broken down, where it may harm our goodwill or reputation, or where there has been a material change in the nature of the project or your business structure; (v) if you commit a material breach of any of your obligations under the Agreement and do not remedy such breach within 14 days of notice to you of such breach; or (vi) you fail to pay any amounts due within 14 days of the due date upon the end of such 14 day period.
11.3 During any period of notice outlined in section 11.2(i),(v) and/or (vi), you will be obligated to continue to pay all portions of the Contract Price which arise or have arisen as a result of work performed by us during and prior to the period of notice.
11.4 On termination of the Contract for whatever reason, you will immediately pay to us all of our outstanding unpaid invoices and interest and, where no invoice has been submitted for Services supplied, we may submit an invoice, which shall be payable immediately on receipt.
11.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11.6 Termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination
12. Miscellaneous
12.1 The Agreement (and any amendments to the Terms and/or SOW explicitly agreed in writing as amending the Terms or SOW) constitutes the entire agreement between us and you and supersedes and extinguishes any and all other agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
12.2 Any waiver, delay by us or indulgence in relation to breach of these Terms shall not prevent their subsequent enforcement and shall not be deemed to be a waiver of any subsequent breach.
12.3 Any notice required to be given to us under these Terms shall be in writing and delivered personally or sent by first class post to the address at the top of the invoice for Services with an e-mail copy to aiyanazofficial@gmail.com. Notices shall be deemed delivered upon actual delivery if during normal business hours but otherwise upon the start of the next business day.
12.4 These Terms shall be governed by and construed in accordance with English law and you and we submit to the exclusive jurisdiction of the English courts in London.
12.5 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall not affect the validity and enforceability of the rest of these Terms. In such event, the parties agree that the unenforceable provision or part-provision shall be (i) replaced with a valid and enforceable provision that most closely reflects the original intent of us including such provision; or (ii) if there is no such provision pursuant to (i) which can be valid and enforceable, deleted to the minimum extent necessary.
12.6 Any amendments to these Terms must be agreed by you and us in writing and explicitly stated as amendments to these Terms.
12.7 Unless we explicitly agree otherwise in writing with you, we are not obligated to retain files or any other information related to the Services or Work after project completion. Any original materials we create, such as sketches, concepts, or prototypes, remain our property unless we agree otherwise with you in writing. If we provide these to you, you must return them in good condition when the project concludes or upon request.
12.8 You agree that while we are providing Services to you and for a period of twelve months thereafter, you will not engage or otherwise use any subcontractor or service provider of ours in a manner that might disrupt our relationship with them.