Terms & Conditions
TERMS AND CONDITIONS
All contracts made by KBCG are subject to these terms and conditions. Your continuing instructions in relation to the works contained in this document will amount to an acceptance of our Terms and Conditions included herein. Estimates / Quotations are based on the information provided by the Client, including but not limited to detail on quantities, scope, and functionality. Any estimates / quotations may therefore be subject to change should the Client’s requirements change at any time and any stated timescale is reliant upon the Client providing all required information/copy/images within the time set out at project initiation. No person other than the proprietors of KBCG has authority to make any representation, give any warranty, or to agree with any valuation or addition to the contract; unless such representations or additions are expressed in writing and signed by the proprietors of KBCG.
TITLE
Until KBCG has received full payment of all sums due from the customer for goods supplied; such goods shall remain the property of KBCG.
COPYRIGHT / INTELLECTUAL PROPERTY RIGHTS
The Copyright/Intellectual Property Rights in any concept, design and programming produced for the customer will be retained by KBCG throughout the world, unless otherwise agreed in writing with the Client.
LICENSED MATERIAL
Licensed material (such as images, video footage, 3D models, music, and soundtracks) that is supplied by KBCG within any design piece is only licensed for that design piece and cannot be removed, accessed and/or used in any other piece by any other third party. KBCG will not be held liable for any third party adding unlicensed content to any material that KBCG has designed, built, or has any affiliation with. KBCG shall not be required to use, print, upload or hold any matter which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of a third party.
DIVISIBILITY CLAUSE
(a) The Company reserves the right to make deliveries/and or services by instalments and to render a separate invoice in respect of each such instalment.
(b) If the Company exercises its right to make deliveries/and or services in accordance with sub-paragraph (a) above, then any delay in the provision of such deliveries/and or service, or failure to deliver any further instalment or instalments, shall not entitle the Buyer to reject the Contract or the delivery/service of any other instalment or to withhold payment in respect of any instalment previously delivered/serviced.
INSOLVENCY
If the customer ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become due or being a company deemed unable to pay its debts or has a winding-up petition issued against it or being a person who commits an act of bankruptcy or has a bankruptcy petition issued against them, KBCG without prejudice to other remedies shall have the right not to proceed further with the contract or any other work for the customer and be entitled to charge for work already carried out (whether completed or not).
FORCE MAJEURE
KBCG shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the Client may by written notice to KBCG elect ‘to terminate the contract and pay for work done and materials used’, but subject thereto shall otherwise accept delivery when available.
LIMITATIONS ON LIABILITY
Nothing in this agreement shall limit or exclude KBCG’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
Subject to the above, KBCG shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect, incidental or consequential loss.
If KBCG’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, including but not limited to the late supply of Client Materials, then, without prejudice to any other right or remedy it may have, KBCG shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client and shall not be liable for any costs, charges or other losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
OWNERSHIP / SOURCE FILES
The ownership of any creative project and copyright therein shall remain with KBCG until payment in full has been received for all sums owing. Once payment has been received, ownership and copyright shall pass to the Client for the end product and graphics specific to the Client; this does not include ownership for any 3D files, imagery (including all rendered frames), post-production files, videos (other than the final end result i.e. the final MP4 file), music, or other outsourced and licenced content, where the ownership remains with the licensee.
Charges related to other types of work including but not limited to Design, do not cover the release of our design source files, including but not limited to .max, .indd, AI, png or source files and raw code.
If a Client requires any of these files, they will be subject to a separate buy-out charge in all
circumstances and at the discretion of KBCG. Any buy out will not include
licences for fonts, audio or imagery where KBCG owns the licence and it cannot
therefore be transferred; separate purchases would be required by the Client in these
circumstances.
Any files are held within the scope of our Data Retention Policy and would only be available for 12
months after the end of any job for any negotiations to take place, unless a Client wishes to pay
for KBCG to store data / files for longer, for which there is a storage fee;
see Data Storage below.
CONTENT
The Client warrants that the receipt and use of the materials in the performance of this agreement by KBCG, its agents, subcontractors or consultants shall not infringe the rights, including any Copyright, Intellectual Property Rights, of any third-party; and The Client shall keep KBCG indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by KBCG as a result of or in connection with any claim brought against KBCG, its agents, subcontractors or consultants for actual or alleged infringement of a third-party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
Wherever content is provided by the Client, whether written, artwork or imagery, they will be
responsible for its accuracy in relation to spelling, grammar and detail. As part of website
testing, KBCG will not be responsible for the testing of supplied or uploaded
written content in terms of fact, spelling and grammar accuracy; unless specifically commissioned
to do so.
DATA
As the data controller, you are responsible for ensuring the use of your person-identifiable
customer data is used in accordance with all current and future (e.g. UK GDPR) regulations. It
falls under your responsibility to ensure all users are opted-in to receive communications under
data protection law. As a data processor, KBCG will perform its obligations to ensure the data is
kept secure and is not provided to third parties. In entering into an agreement with Kbcg/Kevin Boulton, you are accepting full responsibility for the use of your data.
PURCHASE ORDERS
A valid Purchase Order number must be provided prior to commencement of the work outlined in this document or any subsequent Quotation provided.
PAYMENT TERMS
All prices are exclusive of VAT and are valid for 30 days. E mail acceptance of the Quotation and/or provision of a Purchase Order implies acceptance of the included production schedule and invoicing schedule, where applicable.
In the event of a project being suspended, put on hold, or otherwise, by the client or KBCG, payment for all work carried out and expenses where applicable, to that point, will be due immediately.
Invoices will be raised on completion of individual stages of work or in accordance with any invoicing schedule, regardless of any delays in the supply by the customer. Where relevant, responses from customer testing of website work must be advised within the timeframe set by the agreed production schedule.
The customer shall pay for the work done within 30 days from date of invoice, unless agreed otherwise, in writing, before commencement of work, with the Client. If the payment is not made upon the date specified, KBCG may at its absolute discretion charge interest from the specified day on a day-to-day basis at the rate of 3% per annum.
WORK
This document covers only the work specifically described above and is prepared on the basis of the information you have provided to date. It does not include costs for any work not specifically described, for example but not limited to: copywriting, illustration, library images, photography, programming, animation, extensive image manipulation, soundtracks, author’s amendments or couriers, any of which will be quoted additionally if required. It does not include additional costs incurred as a result of inaccurate or incomplete information provided by you for which KBCG shall be entitled to make additional charges.
A subsequent Quotation will be provided, outlining the definitive costs against the final brief. Any subsequent changes to the final brief will be costed separately and may affect the agreed production schedule.
KBCG may, at its discretion, provide legal disclaimers and privacy policies; but it is the responsibility of the Client to confirm with their own legal advisers that these meet their individual requirements, as KBCG accepts no responsibility for their accuracy, relevance or currency.
CANCELLATION OF THIRD-PARTY SERVICES
All projects will be planned within strict timelines in order to meet both the Client and KBCG’s expectation of delivery and service. KBCG, and any contracted third parties, will work to these pre-agreed milestones and delivery dates from the outset of a project. In the event of the customer cancelling or postponing pre-agreed third-party services (such as installation, delivery etc), charges will apply - dependent on; the nature of the work; the notice period served by the customer; and the third party’s own terms and conditions concerning cancellation or postponement of their services.