As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.3 "Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.4 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression. No copyright activity is undertaken by Why Media and this work is chargeable by hours and third party costs.
1.5 “Deliverables” means the services and work product specified in the Proposal to be delivered by Why Media Limited to Client, in the form and media specified in the Proposal. This is specific to design, marketing and digital activity ONLY.
1.6 “Designer Tools” means all design tools developed and/or utilised by Why Media Limited in performing the Services, including without limitation, 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 web site design, architecture, layout, navigational and functional elements.
1.7 “Final Art” means all creative content developed or created by Why Media Limited exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Why Media Limited’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.8 “Final Deliverables” means the final versions of Deliverables provided by Why Media Limited and accepted by the Client.
1.9 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Why Media Limited and which may or may not be shown and or delivered to the Client for consideration but do not form part of the Final Art.
1.10 “Project” means the scope and purpose of the client's identified usage of the work product as described in the Proposal.
1.11 “Services” means all services (design, marketing and digital) and the work product to be provided to the Client by Why Media Limited as described and otherwise further defined in the Proposal.
1.12 “Third Party Materials” means proprietary third party materials that are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.13 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of the Client.
The terms of the Proposal shall be effective for the length of the contract only. In the event the Client does not execute this Agreement within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution. All items relating to the contract should be raised during the period of the contract.
3.1 Fees. In consideration of the Services to be performed by Why Media Limited, the Client shall pay to Why Media Limited fees in the amounts and according to the payment schedule set forth in the Proposal, any budgets are to be managed at the discretion of Why Media ltd and run for the period shown in the budget or proposal.
3.2 Additional Costs. The Project pricing includes Why Media Limited’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.3 Invoices. All invoices are payable within 30 days of receipt or as stated in the initial set of Terms and Conditions stated on your proposal. A £25+vat service charge is payable on all overdue balances on a daily basis. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by late or default in payment. Why Media Limited reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Fees, Charges or the costs of Changes.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, the Client shall pay additional charges for changes requested by the Client which are outside the scope of the Services on a time and materials basis, at Why Media Limited’s standard hourly rate of £162+vat. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Why Media Limited may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If the Client requests or instructs Changes that amount to a revision in or near excess of fifty percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, Why Media Limited shall be entitled to submit a new and separate Proposal to the Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Why Media Limited.
4.3 Timing. Why Media Limited will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client's concerns, objections or corrections to Why Media Limited. Why Media Limited shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that Why Media Limited’s ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in the Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, condition or Why Media Limited’s obligations under this Agreement.
4.4 Testing and Acceptance. Why Media Limited will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Client. The Client, within five (5) business days of receipt of each Deliverable, shall notify Why Media Limited, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments the Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Why Media Limited will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from the Client, the Deliverable shall be deemed accepted.
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) co-ordination of any decision-making with parties other than Why Media Limited;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that the Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors.
(d) all production and products for marketing are produced by the client and Why Media ltd can not be held responsible for any delays.
(e) for raising any issues or queries in writing for review in advance or during the branding, design, marketing or programming part of the project.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Why Media Limited’s name in the form, size and location as incorporated by Why Media Limited in the Deliverables, or as otherwise directed by Why Media Limited. Why Media Limited retains the right to reproduce, publish and display the Deliverables in Why Media Limited’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its Website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s Website. Any removal or false implication of Why Media’s work can result in fines and or additional costs.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works and (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8.1 Independent Contractor. Why Media Limited is an independent contractor, not an employee of the Client or any company affiliated with the Client. Why Media Limited shall provide the Services under the general direction of the Client, but Why Media Limited shall determine, in Why Media Limited’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Why Media Limited and the work product or Deliverables prepared by Why Media Limited shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to the Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Why Media Limited’s Agents. Why Media Limited shall be permitted to engage and/or use third party Why Media Limited’s or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Why Media Limited shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this Agreement, the Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any Why Media Limited employee or Design Agent of Why Media Limited, whether or not the said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, the Client agrees that Why Media Limited shall be entitled to an agency commission to be the greater of, either (a) 25% of said person’s starting salary with the Client, or (b) 25% of fees paid to said person if engaged by the Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Why Media Ltd, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by Why Media Limited, and Why Media Limited shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Why Media Limited.
9.1 By Client. The Client represents, warrants and covenants to Why Media Limited that (a) the Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of the Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) the Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Why Media Limited. (a) Why Media Limited hereby represents, warrants and covenants to the Client that Why Media Limited will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) Why Media Limited further represents, warrants and covenants to the Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Why Media Limited and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Why Media Limited, Why Media Limited shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Why Media Limited to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Why Media Limited’s knowledge, the Final Art provided by Why Media Limited and Why Media Limited’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event the Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Why Media Limited shall be void. (c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, WHY MEDIA LIMITED MAKES NO WARRANTIES WHATSOEVER. WHY MEDIA LIMITED EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
10.1 By Client. The Client agrees to indemnify, save and hold harmless Why Media Limited from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of the Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Why Media Limited shall promptly notify the Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Why Media Limited provides the Client with commercially reasonable assistance, information and authority necessary to perform the Client’s obligations under this section. The Client will reimburse the reasonable out-of-pocket expenses incurred by Why Media Limited in providing such assistance.
10.2 By Why Media Limited. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Why Media Limited agrees to indemnify, save and hold harmless the Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Why Media Limited’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of the Client provided that (a) the Client promptly notifies Why Media Limited in writing of the claim; (b) Why Media Limited shall have sole control of the defense and all related settlement negotiations; and (c) the Client shall provide Why Media Limited with the assistance, information and authority necessary to perform Why Media Limited’s obligations under this section. Notwithstanding the foregoing, Why Media Limited shall have no obligation to defend or otherwise indemnify the Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Why Media Limited.
10.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF WHY MEDIA LIMITED ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF WHY MEDIA LIMITED, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“WHY MEDIA LIMITED PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF THE “PROPOSAL” UNDERTAKEN WHY MEDIA LIMITED. IN NO EVENT SHALL WHY MEDIA LIMITED 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 WHY MEDIA LTD, EVEN IF WHY MEDIA LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. DAMAGES ARE LIMITED TO THE PROFIT OF THE CONTRACT THAT IS SPECIFIC TO THE PROPOSAL AGREED BY THE CLIENT.
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
11.3 In the event of termination, Why Media Limited shall be compensated for the Services performed through the date of termination in the amount of 80% of the total invoice value; and the Client shall pay all Expenses, fees, out of pocket together with any Additional Costs incurred through and up to, the date of cancellation. Why Media retains 20% of all budgets
11.4 In the event of termination by the Client and upon full payment of compensation as provided herein, Why Media Limited grants to the Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by the Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. The parties may modify this Agreement. Any modification of this Agreement must be in writing, except that Why Media Limited’s invoices may include, and the Client shall pay, expenses or costs that the Client authorises by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure. Why Media Limited shall not be deemed in breach of this Agreement if Why Media Limited is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of an employee of Why Media Limited or any local, national or international law, governmental order or regulation or any other event beyond Why Media Limited’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Why Media Limited shall give notice to the Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the UK Government. The parties hereby submit to the exclusive jurisdiction of the courts of the UK.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal and Schedule A.
By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date or/of the proposal submitted, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
WHY MEDIA LIMITED