These terms and conditions (the ‘Terms’) govern all commissions and/or contracts for the provision of design and/or print and/or digital support services and products by Cyberfish Designs (‘Cyberfish Designs’), to our Clients (‘You’). Please read these Terms carefully.
You, the Client, have been provided with notice of the Terms in advance of any agreement being entered into between us. Your decision to proceed with the procurement of our services, and your written instructions to so proceed, will indicates your deemed acceptance of these Terms. We shall not commence the provision of any services until we receive written confirmation of your instructions. We reserve the right to refuse commissions, without obligation. Where a commission requires ancillary or extra work over and above any worked anticipated by any quote or estimate provided by us and you notify us that you wish us to proceed and encompass that work within your instructions to us, then our acceptance of that further commission will be deemed to be on these Terms. All quotes and/or estimates will expire upon 30 days of their issue. Hosting costs (and other ‘rolling’ charges) are subject to periodic variations and will be notified to you during the currency of your ongoing instructions to us. All quotations or estimates are based on the current rate for such charges.
2. Charges & Payment
We shall ordinarily provide you with an initial quotation or, where a job is large or diverse, an estimate of our charges for the services we are requested to provide or the project in which you wish to instruct us. Unless otherwise agreed with you in writing beforehand, you agree to the payment to us of a non-returnable Commission Fee of 50% of our quote or estimate prior to our commencing any work for you and before any work (over and above any illustrative work contained in our quote or estimate) is supplied to you for approval or review. Once a project has been completed (and/or any defined phase of any agreement for the provision of continuing services has concluded) you agree to pay to us the balance of any sum due and owing to us according to our quotation and/or estimate, including any fee for services procured from Cyberfish Designs by you subsequent to your acceptance of these Terms and/or our issue of a quote an/or estimate, within 30 days of our request for payment. Payment shall be directed to such of our trading addresses or bank accounts as shall be notified by us to you in writing upon our request(s) for payment. Determination of the point of ‘completion’ or ‘conclusion’ of a project (or any phase of it) shall be at the sole discretion of Cyberfish Designs. We reserve the right to suspend the release of design data and/or its uploading until payment is received in full. We accept payment by BACS, and whilst we also accept banker’s cheques we are unable to commence work on a project until we are in receipt of cleared funds. Cyberfish Designs have a pro-active debt collection policy, and we reserve the right to assign all debts outstanding beyond 30 days to 3rd party debt collectors. Where you are a commercial undertaking, we reserve the right to charge interest and compensation pursuant to The late Payment of Commercial Debts (interest) Act 1998.
3. Incidental Disbursements
You agree to indemnify and reimburse Cyberfish Designs for the cost to us of any additional 3rd party expenses (not inclusive within our quotation) where these relate to your instructions throughout your project requiring our use and inclusion of 3rd party images, designs, fonts, or code; where such use or inclusion incurs an acquisition or licensing fee.
4. Client Review
When providing our quotation or estimate to you, Cyberfish Designs will normally provide details of how & when we shall permit you the opportunity to review the appearance of any design or digital product and/or the design & content of any website produced to your commission, according with the nature of your project. Where a review is provided and no request for modification is received from you within 48 hours all designs, products, materials, etc will be deemed to be acceptable to and approved by you. All projects, designs, materials, etc will be deemed to have been completed to your satisfaction if no request for modification is received from you within 72 hours of completion of your project (or any appropriate stage of it) as determined in accordance with clause 2 hereof. Requests for modification and/or amendment MUST be issued in writing, to reach us before the expiry of 72 hours from our notification of completion; and will preferably be sent by you to us by email.
5. Response Time and Timetabling
Our ambition is to supply all projects to you, or upload the same to a nominated server, and make the same publicly available, within the timeframe targeted in any quotation or estimate provided by us. Cyberfish Designs retains the services of a diverse team of highly flexible consultants and designers, with comprehensive capabilities, who will endeavor to deliver your objectives rapidly. However, your instructions to us, and the consistency of these same, are paramount in such objectives being achieved. We require your nomination of a single individual as being our Primary Contact, and you agree that throughout our conduct of your project we should accept instructions from that person alone; irrespective of the seniority of the nominated person within your organization if you wish to change the identity of the Primary Contact then any such must be notified by you to us in writing; and such changes must be limited to no more than once in any working week and/or twice in any working month. You understand that Cyberfish Designs do not offer any ‘on-call’ support or enquiry service. Whilst we will endeavor to respond to your enquiries within 48 hours we cannot guarantee any specific reaction within any specific timeframe. It assists us if all enquires are directed to us by email, addressed in the first instance to the Designer or Consultant allocated to your project, and also copied to firstname.lastname@example.org. As a significant proportion of our client projects involve a large element of artistic design work, and as we seek to fulfill your project brief to your ultimate satisfaction, and as we are aware that realizing your design ambitions can require repeated subtle amendments, we are highly dependent upon the Primary Contact issuing clear, firm, and timely instructions. But we are also aware that this may not always be possible for you. For that reason, whilst you can rely upon our best reasonable endeavors to meet anticipated timescales and deadlines, in terms of this agreement and these Terms time is not to be deemed to be of the essence in our delivery of any project or brief to its completion and/or any specific phase.
6. Project Content & Provision of Materials
It is commonly the case that a project will require the provision of data and images by you. Ideally you will provide the data and images to be used before we are instructed to commence your project. We can work with most common image and word processing formats. Please do not supply text data as manuscript or in an image format. Please do not instruct us to commence your project until you are certain to be able to provide us with all components requiring supply by you. Where we are instructed to commence your project and we have scheduled and allocated working time to your project, and you have then failed to supply any necessary data or images (or failed to supply any necessary extra items within a reasonable period of our requiring them), thus preventing us from completing your project during the time allocated, we reserve the right to impose a surcharge of 25% of the project cost to cover our wastage of allocated project time. If you fail to provide us with required data or images within one week we reserve the right to determine the project concluded, retain the Commission Fee, and present our account for any balance required to cover our working time allocated to your project. You agree and confirm that in respect of all materials and data supplied by you to us you hold either the necessary intellectual property rights or have obtained sufficient licences or similar for your/our use of the same. You further agree to indemnify Cyberfish Designs (without set-off) against any claim brought against us by any party whomsoever in respect of intellectual property rights relating to images or data supplied to us by you for use and/or inclusion in your project; such indemnity to extend to the costs and disbursements of any pre-action legal advice or representation we deem it necessary to seek. Where we have concerns over the legitimate use or licensing of materials or data supplied by you we reserve the right to refuse to accept or employ such material until and unless proof of sufficient intellectual property rights is supplied by you to us.
7. Third Party Web-Browsers
Cyberfish Designs endeavors to ensure that all of our website products and projects are compatible with and viewable by the current four mainstream web-browsers. Those would typically be: Internet Explorer, Safari, Google Chrome, and Firefox. We will not test products against other browsing software unless specifically requested to do so prior to our delivering you our quotation. Compatibility with other platforms and web-browsers is not guaranteed unless your instructions and/or our quote or estimate has specifically anticipated so. It is not possible to accurately anticipate future changes to be made to web-browsers by their authors, and so we regret that we cannot accept any liability or complaint in respect of any error in display or functionality arising as a consequence of the updating of 3rd party web-browsers after the completion of your project. If your project is a ‘rolling’ project and you instruct us to maintain compatibility with web-browser updates we reserve the right to provide a quote for and charge a separate fee for that work.
8. Website Hosting arranged by Cyberfish Designs
Our preference is to arrange website hosting for you through a range of 3rd party hosts. This permits us to select the host that we deem best suited to the requirement of your project. In arranging such hosting we act as your agents. Our fees to you in respect of 3rd party hosting will include an arrangement and administration fee. Where 3rd party hosting has been agreed as being supplied to you through us, you authorize us to enter into any necessary agreements for the provision of hosting your project for up to a maximum of 12 months (and rolling thereafter) from date of uploading of your project and you agree to indemnify us for all such hosting charges for the duration of any such hosting agreement or its notice period (where earlier termination is possible). It is understood and agreed by you that no guarantees or warranties are or can be given by us on behalf of 3rd party hosts with regards to the availability of or lack of interruption to the hosting service taken up. Equally, Cyberfish Designs will not be liable to you for any breach of intellectual property rights, privacy, security, data loss, or financial loss, arising as a direct or indirect consequence of the acts, default, or omissions of 3rd party hosts. We are able to offer you a range of services to mitigate loss or damage in respect of websites and/or webhosting. Specifically: (1) Security – by way of a malware monitoring service; and (2) Data Backup – typically weekly backups of your website, its content, databases and core files. Such services will not be supplied unless specifically requested or specifically anticipated by our quotation/estimate.
9. Website Hosting arranged by You
Whilst we are happy to provide you with a ‘boxed’ product ready for upload to a suitable host, we are unable to provide technical or similar support with regard to the hosting of data projects, websites, and similar products upon hosting platforms arranged by you directly with 3rd party suppliers. Equally, we are unable to provide (retrospectively or otherwise) Security or Backup services to such 3rd party hosts.
10. Cyber Security & Privacy
Whilst we always endeavor to incorporate industry standard security factors within our projects, we are also acutely conscious of the capabilities of determined hackers, decoders, spammers, and similar. We are able to provide the extra security measures referred to in the preceding clauses. However, we are unable to warrant that any product or project supplied by us is impregnable to a determined and sophisticated attack or abuse, and consequently we are unable to accept any liability for direct, indirect, or consequential loss sustained by you as a consequence of any criminal or unlawful act of any 3rd party. We do not sell or share your personal information, save with regard to the procurement of any agreed web-hosting or licensing or regulatory requirement. You agree that Cyberfish Designs may share your personal information with any 3rd party engaged by us to provide any project services to you, as part of the project or its ancillary requirements.
11. Default & Suspension of Service
Where any balance of payment is due from you to us for 30 days or more, whether in respect of our charges or in respect of 3rd party charges in respect of which you indemnify us, we reserve the right to suspend and/or remove your product or project from any hosting medium arranged by us; and you agree that we are liberty to take such steps without further recourse to you. It is agreed that this is a reasonable step designed to mitigate Cyberfish Designs’s exposure to potential liabilities, and that we shall not be liable for any consequential loss or damage occurring as a consequence of such removal or suspension. Our removal of data or suspension of such hosting services does not obviate any continuing financial obligation by you to us under these Terms. We reserve the right to charge a reasonable fee for the reinstatement of any hosted material or project.
12. Termination of Rolling contracts
If you wish to end our provision of rolling services to you then you must provide written notice of termination to us. The period of notice will be 30 days in respect of services provided by Cyberfish Designs to you. In respect of any 3rd party services arranged by us for you, the notice period (in respect of those distinct services) and the period for which you will indemnify us in respect of any 3rd party charges (including our administration fee) will accord with the minimum notice period provided for in any contract for the provision of those 3rd party services. You agree that we shall be entitled to invoice you for services provided by Cyberfish Designs to you directly, and also for any 3rd party charges in respect of which you indemnify us, for the duration of the relevant notice period.
13. Lawful Use
We shall not be obliged to assess the lawfulness or otherwise of any use or content of any project or website provided by Cyberfish Designs to you upon your instructions. Further, you agree to indemnify Cyberfish Designs and hold us harmless against any 3rd party claims made against us arising as a consequence of any use made of your project by any party, and all damage or loss arising as a direct or indirect consequence thereof.
14. Intellectual Property
You will retain all rights to and in all data, images, and other materials, provided by you to Cyberfish Designs during the currency of the project. Notwithstanding this reservation, you confirm that you have agreed to grant to Cyberfish Designs all licenses necessary for Cyberfish Designs’s processing and employment of that same data, images and materials within your project. It is further agreed that the graphical layout/design of any website, any original graphics or images supplied by Cyberfish Designs, and any programming code shall remain the intellectual property of Cyberfish Designs until all accounts and fees are settled in full. In the case of rolling projects, full settlement will be deemed to have occurred when any final account has been presented and paid in full by you. Please specifically note that it is hereby agreed between us that any and all original ‘Applications’, PHP Scripts, and/or active software written by or otherwise employed by us within your project shall remain the intellectual property of Cyberfish Designs at all future times, and shall not be resold or commercially used or reproduced by you without the written permission of Cyberfish Designs. We shall be deemed to have licensed use of our intellectual property for the limited purposes of your project (alone) for the duration of such a period as might be reasonably construed from your instructions to us and the project brief. Upon any suspension or early termination of service occurring as a consequence of your default (as defined above) all such licenses shall be deemed to have been immediately revoked.
15. Design Credit
Cyberfish Designs reserve the right to insert a design credit within any data or code produced by us to your commission, or upon any graphical display or image or website, subject only to such design credit being of an appropriate size and subtle nature according to the design and appearance of your project. We shall remove any design credit upon your request and your payment of a fixed fee equivalent to 7.5% of our overall fee(s) in relation to your project. You agree that Cyberfish Designs shall be entitled to credit itself with production of your project (for marketing purposes) and feature facsimiles, reference and/or links to websites and other materials in our portfolio(s).
16. Incidental Liability
It is agreed that Cyberfish Designs shall hereby exclude itself, its sub-contractors, its independent consultants, and or its 3rd party host service providers, from any liability for loss or damage:
Arising as a direct or indirect consequence of any inaccuracy, where that inaccuracy has been approved or deemed approved by you or your Primary Contact;
Caused by omission; where that omission has been approved or deemed approved by you or your Primary Contact;
To any original materials supplied by you to us for inclusion in your project, where such loss or damage is incidental to our ordinary use or processing of those materials.
17. Limitation of Overall Liability
The overall liability of Cyberfish Designs in relation to any claim or aggregation of claims (whichever is the greater) made against us by you or anyone authorized by you to pursue all and any such claims, shall be limited to a sum equivalent to the aggregate charges levied by us to you under the Terms of and during the currency of this agreement excepting and subtracting from that last-mentioned sum any charges or fees levied and recharged to you for the provision of 3rd party hosting fees, copyright licensing fees paid on your behalf, and any other similar disbursement made by us on your behalf.
18. Force Majeure
Cyberfish Designs shall not be liable, in damages or otherwise, for any delay or default in performing its obligations under these Terms if such delay or default is caused by conditions beyond its control including, but not limited to, Acts of God, Government restrictions (including the denial or cancellation of any necessary license), wars, insurrections, loss of power, catastrophic machine failure, fire, flood, and/or any other cause beyond the reasonable control of Cyberfish Designs.
In the event of any one or more of the provisions of these Terms being held to be invalid, illegal or unenforceable, the remaining provisions of these Terms shall stand alone as valid, binding, and enforceable, and any contract arising upon these (or upon remaining components of these) Terms shall not be void.
20. Governing Law
This Agreement shall be governed by the Laws of England and Wales.