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Terms and Conditions

0. INITIAL TERMS

0.1 These terms & conditions constitute a valid and binding agreement between Cuckooo Design Studio and you, the client, for any services provided or work ordered. By asking us to participate in any form of work for you, or on your behalf, you are agreeing to these Terms and Conditions.

1. DEFINITIONS

As used herein and throughout this Agreement.

1.1 Agreement means the entire content of this Terms and Conditions document, and our Proposal documents including Estimates, Quotations and/or Schedules.

1.2 Client Content means all materials, information, imagery, copy and other creative content provided by The Client for use in the preparation of and/or incorporation in the Deliverables.

1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.K. Copyright Law.

1.4 Deliverables means the services and work product specified in the Proposal documents to be delivered by Cuckooo Design Studio to The Client, in the form and media specified in the Proposal documents.

1.5 The Client means the company or individual who has agreed to take out work with Cuckooo Design Studio.

1.6 Final Artwork means all creative content developed or created, or comissioned, by Cuckooo Design Studio, 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, typographic treatments and text, modifications to The Client Content, and Cuckooo Design Studio’s selection, arrangement and coordination of such elements together with The Client Content and/or Third Party Materials.

1.7 Final Deliverables means the final versions of Deliverables provided by Cuckooo Design Studio and accepted by The Client.

1.8 Preliminary Artwork means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Cuckooo Design Studio and which may or may not be shown and or delivered to The Client for consideration but do not form part of the Final Artwork.

1.9 Project means the scope and purpose of the The Client’s identified usage of the work product as described in the Proposal documentation.

1.10 Services means all services and the work product to be provided to The Client by Cuckooo Design Studio as described and otherwise further defined in the Proposal documentation.

1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.12 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.

2. PROPOSAL

The terms of the Proposal documents shall be effective for 30 days after presentation to The Client. In the event that this Agreement is not executed by The Client within the time identified, the Proposal, together with any quotations, estimates, related terms and conditions and deliverables, may be subject to amendment, change or substitution.

3. FEES AND CHARGES

3.1 Fees. In consideration of the Services to be performed by Cuckooo Design Studio, The Client shall pay to Cuckooo Design Studio fees in the amounts and according to the Proposal documentation.

3.2 Additional Costs. Any and all outside costs including, but not limited to, image production, stock imagery, copywriting, proofreading, equipment rental, artwork licenses, prototype and/ or proof production costs, hosting fees, will be billed to The Client unless specifically otherwise provided for in the Proposal documentation.

3.3 Invoices. All invoices are payable within 15 days of receipt. In special circumstances a deposit will be required. We understand and 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 agreed credit terms. Interest is charged at 8% above the Bank of England base rate of the overdue balance. 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. Cuckooo Design Studio 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, Taxes, Expenses, and Fees, Charges or the costs of Changes.

3.4 Project End. All deliverables shall be deemed complete once The Client has signed off the work or indicated satisfaction either verbally, in writing, via e-mail, post or other methods. If The Client fails to communicate with Cuckooo Design Studio for a period of more than 30 days without explanation, the project shall be deemed satisfactory and complete.

4. 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 Cuckooo Design Studio’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal documentation, despite any maximum budget, contract price or final price identified therein. Cuckooo Design Studio 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, Cuckooo Design Studio 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 Cuckooo Design Studio.

4.3 Timing. Cuckooo Design Studio will prioritise performance of the Services as may be necessary or as identified in the Proposal documentation, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal documentation. 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 Cuckooo Design Studio. Cuckooo Design Studio shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that Cuckooo Design Studio’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 documentation 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 shall not constitute a breach of any term, condition or Cuckooo Design Studio’s obligations under this Agreement.

5. THE CLIENT RESPONSIBILITIES

The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) Coordination of any decision-making with parties other than Cuckooo Design Studio; (b) Provision of The Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal documentation; (c) Final proofreading. 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.

6. CREDITATION/PROMOTIONS

Cuckooo Design Studio retains the right to reproduce, publish and display the Deliverables in Cuckooo Design Studio’s portfolio(s) and website(s), 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.

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 (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 documentation 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. RELATIONSHIP OF THE PARTIES

8.1 Independent Contractor. Cuckooo Design Studio is an independent contractor, not an employee of The Client or any company affiliated with The Client. Cuckooo Design Studio shall provide the Services under the general direction of The Client, but Cuckooo Design Studio shall determine, in Cuckooo Design Studio’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 authorised to act as agent or bind the other party except as expressly stated in this Agreement. Cuckooo Design Studio and the work product or Deliverables prepared by Cuckooo Design Studio 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 Cuckooo Design Studio Agents. Cuckooo Design Studio shall be permitted to engage and/or use third parties or other service providers as independent contractors in connection with the Services (Design Agents). Notwithstanding, Cuckooo Design Studio 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 six (6) 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 Cuckooo Design Studio employee or Design Agent of Cuckooo Design Studio, whether or not 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 Cuckooo Design Studio 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 The Client. Cuckooo Design Studio, 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. 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 Cuckooo Design Studio, and Cuckooo Design Studio shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Cuckooo Design Studio.

9. WARRANTIES AND REPRESENTATIONS

9.1 The Client represents, warrants and covenants to Cuckooo Design Studio 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.

9.2 To the best of Cuckooo Design Studio’s knowledge, the Final Artwork provided by Cuckooo Design Studio and Cuckooo Design Studio’s 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 Cuckooo Design Studio shall be void. The Client agrees to fully indemnify and hold Cuckooo Design Studio 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 Cuckooo Design Studio on behalf of The Client, will remain the property of Cuckooo Design Studio and/or our suppliers unless otherwise explicitly stated.

10. INDEMNIFICATION/LIABILITY

10.1 By The Client. The Client agrees to indemnify, save and hold harmless Cuckooo Design Studio 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 Cuckooo Design Studio shall promptly notify The Client in writing of any claim or suit; (a) The Client has sole control of the defence and all related settlement negotiations; and (b) Cuckooo Design Studio 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 Cuckooo Design Studio in providing such assistance.

10.2 By Cuckooo Design Studio. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Cuckooo Design Studio 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 Cuckooo Design Studio’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 Cuckooo Design Studio in writing of the claim; (b) Cuckooo Design Studio shall have sole control of the defence and all related settlement negotiations; and (c) The Client shall provide Cuckooo Design Studio with the assistance, information and authority necessary to perform Cuckooo Design Studio’s obligations under this section. Notwithstanding the foregoing, Cuckooo Design Studio 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 unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Cuckooo Design Studio.

10.3 Limitation of Liability. The services and the work product of Cuckooo Design Studio are sold as is. In no event shall Cuckooo Design Studio 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 Cuckooo Design Studio, even if Cuckooo Design Studio has been advised of the possibility of such damages.

11. TERMINATION

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, Cuckooo Design Studio shall be compensated for the Services performed through to 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 Cuckooo Design Studio or Cuckooo Design Studio’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.

11.4 In the event of termination by The Client and upon full payment of compensation as provided herein, Cuckooo Design Studio 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.

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.

11.6 Projects that have passed 30 days without contact or further instruction from The Client are deemed to be final.

12. GENERAL

12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Cuckooo Design Studio’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 addresses identified on the Proposal document, 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. Cuckooo Design Studio shall not be deemed in breach of this Agreement if Cuckooo Design Studio 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 Cuckooo Design Studio or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Cuckooo Design Studio’s control (collectively, Force Majeure Event). Upon occurrence of any Force Majeure Event, Cuckooo Design Studio 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 in accordance with the laws of the United Kingdom without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. 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 Cuckooo Design Studio 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 Cuckooo Design Studio 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.

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.

13. RIGHTS TO DELIVERABLES OTHER THAN FINAL ARTWORK

13.1 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 Cuckooo Design Studio a nonexclusive, non-transferable license to use, reproduce, modify, display and publish The Client Content solely in connection with Cuckooo Design Studio’s performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.

13.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Cuckooo Design Studio 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 Cuckooo Design Studio shall inform The Client of any need to license, at The Client’s expense, and unless otherwise provided for by The Client, Cuckooo Design Studio 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 art, The Client hereby indemnifies, saves and holds harmless Cuckooo Design Studio 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 Artwork.

13.3 Preliminary Works. Cuckooo Design Studio retains all rights in and to all Preliminary Works. The Client shall return all Preliminary Works to Cuckooo Design Studio within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Cuckooo Design Studio.

13.4 Original Artwork. Cuckooo Design Studio retains all right and title in and to any original artwork comprising Final Artwork, including all rights to display or sell such artwork. The Client shall return all original artwork to Cuckooo Design Studio within thirty (30) days of completion of the Services.

13.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-ofpocket expenses due, Cuckooo Design Studio assigns to The Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Cuckooo Design Studio for use by The Client as a Trademark. Cuckooo Design Studio 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 and federal registration and do not otherwise infringe the rights of any third party. The Client hereby indemnifies, saves and holds harmless Cuckooo Design Studio 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.

14. RIGHTS TO FINAL ARTWORK

14.1 Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, Cuckooo Design Studio 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.