As used herein and throughout this Agreement.
Agreement means the entire content of this Terms & Conditions document, the Proposal document(s), together with any other Supplements designated below, schedules or attachments hereto.
Client means the company, organisation, partnership or individual who has agreed to engage Ohh la la ltd to provide Services and Deliverables.
Client Content means all materials, information, photography, writings and other creative content provided by The Client for use in the preparation of and/ or incorporation in the Deliverables.
Copyright(s) mean the intellectual property right(s) in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under UK Copyright Law.
Deliverables means the services and work scope specified in the Proposal to be delivered by Ohh la la ltd to The Client, in the form and media specified in the Proposal.
Designer Tools means all design tools developed and/or utilised by Ohh la la ltd 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 website design, architecture, layout, navigational and functional elements.
Final Artwork means all creative content developed, created or commissioned by Ohh la la ltd, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example but without limitation, all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to The Client Content, and Ohh la la ltd Design's selection, arrangement and coordination of such elements together with The Client Content and/or Third Party Materials.
Final Deliverables means the final versions of Deliverables provided by Ohh la la ltd as specified in the Proposal.
Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Ohh la la ltd and which may or may not be shown and/or delivered to The Client for consideration, but which do not form part of the Final Artwork.
Project means the scope of services provided by Ohh la la Ltd as set out within the Proposal and the purpose of The Client's identified usage of the Final Deliverables as described in the Proposal.
Proposal means the document provided by Ohh la la Ltd setting out the nature of the Client’s business and marketing issues, requirements and the scope, timescale and cost of services to be provided by Ohh la la Ltd of which these Terms and Conditions form an integrated part.
Services mean all services, including the Final Deliverables, to be provided to The Client by Ohh la la ltd as described and otherwise further defined in the Proposal.
Third Party Materials means proprietary third party materials, which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
Trademarks mean 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.
Article 1: Contract and services objectives
The following Terms and Conditions form an integral part of Ohh la la’s Proposal and constitute a valid and binding Agreement between the Client and Ohh la la for any services provided or work ordered.
The communication of a request by the Client to Ohh la la for the supply of services and/or materials specified in the Proposal shall amount to the Client's Order and acceptance of these terms and conditions, which shall take precedence over any terms or conditions of the Client, whether attached to, enclosed with or referred to in any purchase order of the Client or elsewhere.
These terms and conditions may not be varied except by written agreement between Ohh la la and the Client.
Article 2 : Proposal Validity and Acceptance
The terms of the Proposal shall be effective for 30 days after presentation to the Client. In the event the Client does not accept the Proposal within that time, the Proposal, together with any quotations, related terms and conditions and deliverables, may be subject to amendment, change or substitution.
Article 3: Fee and Charges
The Services provided are charged to reflect the time involved in their delivery; the estimative fee being included in the Proposal. All the fees, costs and disbursements quoted are exclusive of VAT unless otherwise stated. VAT will be applied at the current legal rate at the date of invoice. Ohh la la may choose to modify their daily rate at any time but will give the Client at least eight weeks notice before doing so.
In consideration of the Services performed by Ohh la la, the Client shall pay Ohh la la the fees including any additional costs or disbursements in the amounts and according to the payment schedule set out in the Proposal.
Any additional services, or time incurred, at the request of the Client will be invoiced in addition to the agreed fee outlined in the Proposal.
For the avoidance of doubt, the Client’s liability to pay fees shall not be dependent upon Ohh la la issuing a VAT invoice for the relevant amounts.
All invoices are payable within 14 days unless otherwise stated in the Proposal.
Ohh la la will exercise our statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if we are not paid according to the above timescale or any agreed credit terms. Interests are charged daily at 10% over the Bank of England base rate along with EU late payment charges. Payments will be credited first to late payment charges and next to the unpaid balance. The Client shall be responsible for all collection or legal fees necessitated by late or default in payment.
Ohh la la reserves the right at its absolute discretion to withhold delivery of, or otherwise retain control and copyright of, any current work, Final Artwork or Final Deliverables, including for the avoidance of doubt any website or social media account if client payments are not current or and/or until all invoices relating to The Project have been paid in full.
3.3. Disbursements and travel
Ohh la la reserves the right to charge reasonable travel costs for any meetings either as a disbursement (for instance public transport ticket) or at a mileage rate of 45p/mile (to be updated based on HMRC rates) from the company’s registered or operational office base. Any other necessary and reasonable accommodation or related requirements will be recharged at cost. Ohh la la undertakes to notify and discuss these with the Client in advance as far as reasonably possible and practicable.
3.4. Ownership, copyright and intellectual property rights
The Client explicitly acknowledges that ownership, license to use, intellectual property rights and Copyright of any deliverables or artwork will not pass to the Client until receipt of all payments in full by Ohh la la which for the avoidance of doubt shall include any and all outstanding Additional Costs, Taxes, Expenses, Disbursements and Fees, Charges or the costs of Changes.
Article 4: Timing
This Agreement shall commence upon the Effective Date and shall remain effective until the services are completed and delivered.
All deliverables shall be deemed complete once the Client has signed off the work or indicated satisfaction either verbally or in writing, via e-mail or recorded postal delivery.
If the Client fails to communicate with Ohh la la for a period of more than 10 working days without reasonable explanation once the Final Deliverables have been submitted to the Client, the project shall be deemed satisfactory and complete. Any Fees and applicable Additional Costs shall then become due.
In the event a timescale is included in the Proposal as part of the delivery of the services, it should be considered as an estimate only as delays can occur for multiple reasons which may be outisde Ohh la la’s reasonalbe control. In this instance, Ohh la la will notify the Client of the delay (as far as it is reasonably able to do so) the reasons for it and any recommended mitigation (if necessary and appropriate).
The duration of this contract runs to the end of the agreed timescale
Article 5: Executing the Services
5.1. Ohh la la’s obligations
Ohh la la will use its reasonable care and skill in the production and supply to the Client of the Deliverables outlined in the Proposal. Ohh la la will keep the Client informed for the duration of the Project with progress either verbally or in writing.
Unless otherwise agreed in writing Ohh la la will arrange and oversee all design and production specified in the Proposal related to the Project. Should it be agreed that the Client will arrange any production work itself, then Ohh la la shall not be responsible for the booking, supervision or quality control of any relevant production facilities, or be responsible for payment of any related charges.
5.2. The Client’s reponsibilities
The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
Coordination of any decision-making with third parties other than Ohh la la, along with provision of approvals for artwork and deliverables or choices for recommended actions or options provided by Ohh La La within reasonable timescales given the nature of the item or issue requiring approval or decision. For the avoidance of doubt the Client agrees that Ohh La La may charge a reasonable additional fee for excessive time or additional expenses incurred in waiting for or chasing decisions or actions from the Client;
Provision of Client’s Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal, and ensuring all the Client Content is legal, decent, honest and truthful;
Final proof-reading - in the event that the Client has approved the Final Deliverables but errors or omissions, such as but not limited to typographic errors or mis-spellings, remain in the finished product, the Client shall incur the cost of correcting such errors.
5.3. Changes to deliverables and services - checking and acceptance
Ohh la la will exercise reasonable commercial efforts to check Deliverables and to make all necessary corrections prior to providing them to the Client. The Client, within five (5) business days of receipt of each Deliverable or otherwise as specified in the Proposal as the Project may necessarily require, shall notify Ohh la la in writing of any failure of such Deliverable(s) to comply with the specifications set out in the Proposal, or of any other objections, corrections, changes or amendments the Client wishes made to such Deliverable(s).
Any such written notice shall be sufficient to identify with clarity any correction, change or amendment. Ohh la la undertake to make the same in a commercially timely manner. Any and all 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.
5.4. General changes to deliverables and provision of additional services
Unless otherwise provided in the Proposal, the Client shall pay additional charges for changes to Final Artwork and/or Final Deliverables requested by the Client which are reasonably outside the scope of the Services and time allocation (which may necessarily be estimated) specified in the Proposal on a time and materials basis, at Ohh la la ltd’s standard hourly rate of £55 per hour (exclusive of VAT) or such other rate as may be specified in the Proposal. Such charges shall be in addition to all other amounts payable under the Proposal, not withstanding any maximum budget, contract price or final price identified therein. Ohh la la reserves the right to reasonably extend or modify any delivery schedule or deadlines within the Proposal and for Deliverables as may be reasonably required by such Changes.
5.5. Substantive changes to deliverables
If in Ohh La La’s reasonable commercial judgement the Client instructs Changes that amount to a revision in or near excess of 25% of the time required to produce the Deliverables, and or the value or scope of the Services, Ohh la la shall at its absolute discretion 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 fees are agreed and or received by Ohh la la based on the terms of the revised Proposal.
Ohh la la will prioritise 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 expeditiously: (i) review Deliverables within the time identified for such reviews and to promptly either, (ii) approve the Deliverables in writing or (iii) provide written comments and/or corrections sufficient to identify the Client's concerns, objections or corrections to Ohh la la. Ohh la la shall be entitled to request written clarification of any concern, objection or correction.
The Client acknowledges and agrees that Ohh la la's ability to meet any and all timing and 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 the Client may delay delivery of the Deliverables. Any such delay caused by the Client may result in credit-based accounts being invoiced before project completion.
Article 6 : Accreditation and Promotion
Ohh la la retains the right to reproduce, publish and display the Deliverables in Ohh la la's portfolios, websites, in 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.
The Client will, at Ohh la la’s reasonable request, include suitable accreditation for Ohh la la on its website(s) and other Deliverables designed as part of Ohh la la’s Services.
Article 7: Confidential Information
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works. Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, and shall not use it unless needed to perform its obligations under the Proposal or 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.
Article 8: Relationship of the Parties
8.1. Independent contractor
Ohh la la is an independent contractor, not an employee of the Client. Ohh la la shall provide the Services under the general direction of the Client, but Ohh la la shall determine, in its sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party, except as expressly stated in this Agreement. Ohh la la and the work, product or Deliverables prepared by Ohh la la 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. Ohh la la’s subcontractors
Ohh la la shall be permitted to engage and/or use suitably skilled and experienced third party service providers as independent contractors in connection with the Services. Notwithstanding this, Ohh la la shall remain fully responsible for 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 12 months after expiration or termination of this Agreement, the Client agrees not to solicit, recruit, engage, or otherwise employ or retain on any basis, any of Ohh la la’s employees, agents or subcontractors, whether or not said persons have been assigned to perform tasks under this Agreement. In the event of such employment, consultation or work-for-hire event occurs, The Client agrees that Ohh la la shall be entitled to a commission to be the greater of, either (a) 50% of said person's starting salary with the Client, or (b) 50% 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 14 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 the Client. Ohh la la, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4. No exclusivity
Unless otherwise stated in the Proposal, 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 Ohh la la, and Ohh la la to offer and provide their services to others, solicit other Clients and otherwise advertise the services offered by Ohh la la.
Article 9: Warranties and Representations
The Client represents, warrants and covenants to Ohh la la that: (a) the Client owns all rights, titles, 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) the 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.
To the best of Ohh la la’s knowledge, the Final Artwork provided by Ohh la la ltd and its subcontractors does not infringe the rights of any party, and 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 Ohh la la shall be void. The Client agrees to fully indemnify and hold Ohh la la free from harm in any and all claims resulting from The Client in not having obtained all the required copyright, and/or any other necessary permission.
Any artwork, images, or text supplied or designed by Ohh la la on behalf of The Client, will remain the property of Ohh la la and/or our suppliers unless or until transferred to The Client as specified under this agreement.
Article 9: Indemnification and Liability
9.1. By the Client
The Client agrees to indemnify, save and hold harmless Ohh la la 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 Ohh la la shall promptly notify the Client in writing of any claim or suit.
The Client has sole control of the defence and all related settlement negotiations; and Ohh la la ltd 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 Ohh la la in providing such assistance.
9.2. By Ohh la la
Subject to the terms, conditions, express representations and warranties provided in this Agreement, Ohh la la 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 Ohh la la'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 Ohh la la in writing of the claim; (b) Ohh la la shall have sole control of the defence and all related settlement negotiations; and (c) The Client shall provide Ohh la la with the assistance, information and authority necessary to perform Ohh la la obligations under this section. Notwithstanding the foregoing, Ohh la la 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 the Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Ohh la la.
9.3. Limitation of liability
The services and the work products of Ohh la la are sold as is. In all circumstances, the maximum liability of Ohh la la, its directors, officers, employees, agents and affiliates, to the Client for damages for any and all causes whatsoever, and the client's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the lower of the net annual taxable profit of Ohh la la or two hundred and fifty thousand pounds. In no event shall Ohh la la 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 Ohh la la, even if Ohh la la has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
Article 10: Rights to Deliverables Other Than Final Artwork
10.1. The Client content
The Client Content, including all pre-existing Trademarks, shall remain the sole property of the Client or its respective suppliers, and the Client or its suppliers shall be the sole owner of all rights in connection therewith. The Client hereby grants to Ohh la la a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Ohh la la's performance of the Services and promotional uses of the Deliverables as authorised in this Agreement.
10.2. Third party materials
All Third Party Materials are the exclusive property of their respective owners. Ohh la la shall inform the Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Artwork. Under such circumstances Ohh la la shall inform the Client of any need to license, at the Client's expense, and unless otherwise provided for by the Client, Ohh la la shall obtain the license(s) necessary to permit The Client's use of the Third Party Materials consistent with the usage rights granted herein. In the event the Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of third party artwork, the Client hereby indemnifies, saves and holds harmless Ohh la la 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 the Client's failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
10.3. Preliminary works
The Client shall return all Preliminary Works to Ohh la la within five working days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Ohh la la.
10.4. Original artwork
Ohh la la retains all right and title in and to any original artwork comprising Final Artwork, including all rights to display or sell such artwork unless or until transferred to the Client as specified under this agreement. The Client shall return any and all original artwork to Ohh la la within five days of completion of the Services.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Ohh la la shall assign to the Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Ohh la la for use by the Client as a Trademark. Ohh la la shall cooperate with the Client and shall execute any additional documents reasonably requested by the Client to evidence such assignment. The Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce registration and do not otherwise infringe the rights of any third party. The Client hereby indemnifies, saves and holds harmless Ohh la la from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of The Client's use and/or failure to obtain rights to use or use of the Trademark.
Article 11: Rights to Final Artworks
Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, Ohh la la grants to the Client the rights in the Final Artwork as set forth in the Proposal. Any additional uses not identified herein or reselling of the artwork is not permitted without prior written consent.
Article 12: Termination
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.
In the event of termination, Ohh la la shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Ohh la la or Ohh la la's agents as of the date of termination, whichever is greater; and the Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
In the event of termination by the Client and upon full payment of compensation as provided herein, Ohh la la grants to the Client such right and title as provided for in this Agreement with respect to those Deliverables provided to, and accepted by the Client as of the date of termination.
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. Projects that have passed 30 days without contact or further instruction from the Client are deemed to be final.
Article 13: Governing Law and Dispute Resolution
In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its solicitor's fees and costs.
In all other circumstances, the parties specifically consent to the local, and national courts located in the United Kingdom. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. The Client acknowledges that Ohh la la will have no adequate remedy at law in the event the Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Ohh la la shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Article 14: Force Majeure
Ohh la la shall not be deemed in breach of this Agreement if Ohh la la is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God, death, illness or incapacity of Ohh la la or any local, national or international law, governmental order or regulation or any other event beyond Ohh la la's control (collectively, Force Majeure Event). Upon occurrence of any Force Majeure Event, Ohh la la 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.
Article 15: Modification and Waiver
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Ohh la la'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.
Article 16: 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.
Article 17: Notices
All notices to be given hereunder shall be transmitted in writing either email with return confirmation of receipt or by registered first class postal mail, return receipt requested. Notice shall be effective upon receipt or in the case e-mail, upon confirmation of receipt.
Article 18: Severability
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.