Terms & Conditions

1. DEFINITIONS:

As used herein and throughout this Agreement:

• “Agreement” means the entire content of this Service Agreement document, the Proposal document(s) together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
• "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 Services.
• “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.
• “Services” means the services and work product specified in the Proposal to be delivered by Vanilla Gecko to The Client, in the form and media specified in the Proposal.
• “Final Art” means all creative content developed or created by Vanilla Gecko, or commissioned by Vanilla Gecko, exclusively for the Services and incorporated into and delivered as part of the Final Services, 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 Vanilla Gecko’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
• “Final Services” means the final versions of Services provided by Vanilla Gecko and accepted by The Client.
• “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Vanilla Gecko 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.  
•  “Third Party Materials” means proprietary third party materials which are incorporated into the Final Services, including without limitation stock photography or illustration.
• “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Services to designate the origin or source of the goods or services of The Client.
• “Proposal Number” is unique number of the Service Proposal referred to in this agreement.
• “Total Costs”, “Third Party Charges”, “Client Content”, “Time Scale” and “Completion Date” refer to the corresponding Sections on the Service Proposal referenced in this Agreement.
• “Inappropriate Material” includes (but is not restricted to) all Adult Content including pornography, or otherwise lewd or obscene content.
• “Website Maintenance” includes (but is not restricted to) changes such as adding or updating images, changing or updating text and/or adding customer feedback to the feedback or testimonials section.

2. PAYMENT SCHEDULE:

• A deposit in an amount equal to 35% of the Total Cost [for website design and logo design, this is subject to a minimum of £150] is required prior to execution of the Services. 
• The remaining balance is to be paid upon completion of the Services and within 15 days from receipt of the final invoice for the completed Services.  A finance charge of 2% above Barclay’s base rate per month shall be added to all overdue balances.  The Client shall be responsible for all collection of legal fees necessitated by late or default in payment.  Vanilla Gecko reserves the right to withhold delivery of 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 conditional upon receipt of payment in full which shall be inclusive of any and all outstanding Fees, Third Party Charges or the costs of Changes.
• The terms of the Proposal shall be effective for ____ days after presentation to The Client.  In the event this Agreement is not executed by The Client within the time identified, the Service Proposal, together with any related terms and conditions and Services, may be subject to amendment, change or substitution.

3. CLIENT RESPONSIBILITIES:

• In addition to responsibilities laid out elsewhere in this Agreement, The Client acknowledges that he/she shall be responsible for performing the following in a reasonable and timely manner:
• Co-ordination of any decision-making with parties other than Vanilla Gecko;
• Provision of Client Content.  Work will commence after all Client Content has been received from The Client.  Due dates and milestone dates mentioned within this Agreement shall be delayed the number of days by which the Client Content is supplied late.
• Final proofreading.  In the event that The Client has approved the Services but errors remain in the finished product (such as, but not exclusively, typographic errors or misspellings), The Client shall incur the cost of correcting such errors.

4. ACCEPTANCE PROCEDURES:

• The Client agrees to review the Services within 3 working days of receipt of a milestone Service and to promptly either,
  • approve the Services in writing or
  • provide written comments and/or corrections.  Minor Adjustments will be made without charge.  All other changes shall be considered a Client Alteration subject to Section 5.
• Vanilla Gecko is not obligated to receive acceptance or any communications submitted by anyone other than the person who signs this Agreement as ‘The Client’ or who has otherwise been designated to do so in writing by The Client.  Vanilla Gecko shall not be held responsible for any delays arising from the failure to comply with this condition.
• If The Client fails to respond within 3 days of receiving a milestone Service, Vanilla Gecko shall assume that The Client has approved the Services.

5. CLIENT ALTERATIONS:

• There will be no charges to The Client for revisions, corrections or alterations made necessary by errors on the part of Vanilla Gecko.
• There will be no charges for any changes made prior to commencement of the Service.  If such changes are significant, it may be necessary to draw up a new Proposal.
• Changes to the Services requested by The Client after the commencement of the Services and which Vanilla Gecko does not consider to be Minor Adjustments are considered Client Alterations.  The Client will be responsible for paying additional charges as laid out in a Change To Services form, which will also state when these charges are payable.  The Terms and Conditions of the Change To Services form shall be governed by this Agreement.
• If the amount charged for Client Alterations is equal to or greater than 50% of the Total Cost laid out in this Agreement, it may be necessary to write a new Proposal for the whole Service.
• No additional payment shall be made for changes made in compliance with the original Proposal.

6. EVENTS THAT AFFECT DELIVERY:

• Vanilla Gecko shall not be deemed in breach of this Agreement if Vanilla Gecko is unable to complete the Services or any portion thereof by reason of any acts, events, omissions, happenings or non-happenings beyond Vanilla Gecko’s reasonable control including acts of God, strike, work stoppages, government regulations, acts or directives, war, riot, fire, flood, civil commotion, or any circumstances beyond the control of Vanilla Gecko (collectively, “Force Majeure Event”).  Upon occurrence of any Force Majeure Event, Vanilla Gecko 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 if it is possible to do so.
• Client Alterations or the acceptance, processing or implementation of the Change To Services form may cause delays which affect the Time Scale and Completion Date.  Vanilla Gecko shall inform The Client of any such delays and alterations to the Time Scale which have not been laid out in the Change To Services Form itself.
• Vanilla Gecko cannot be held responsible for delays caused by Third Parties upon which the Time Scale and Completion Date is dependant.  However, Vanilla Gecko shall inform The Client of any such delays as soon as they become apparent.

7. TERMINATION OF AGREEMENT

• This Agreement may be terminated at any time by either party effective immediately upon notice.

• For Logo Design and Website Design only: In the event that Agreement is terminated, the following termination fees shall be paid by The Client within 30 days of termination:

  • if the agreement is terminated after the delivery of the Preliminary Works, but before the acceptance of the Preliminary Works, the termination fee shall £150. The Client must also pay the outstanding balance for any Client Alterations requested before termination. The remaining balance of the Deposit, if any, shall be returned to The Client; or
  • if the termination is after the acceptance of the Preliminary Work, but prior to the acceptance of the Final Designs, the Deposit amount shall be retained by Vanilla Gecko, plus the termination fee shall be charged on a pro rata basis for the work undertaken up until date of termination; or
  • if the termination is after the delivery of the Final Designs, the Deposit amount shall be retained by Vanilla Gecko plus a termination fee of 100% of the balance of all remaining dues.

• For all other Services: In the event that Agreement is terminated, the Deposit amount shall be retained by Vanilla Gecko.  In addition, the following termination fees shall be paid by The Client within 30 days of termination:

  • if the termination is after the acceptance of the Preliminary Work, but prior to the acceptance of the Final Designs, the termination fee shall be charged on a pro rata basis for the work undertaken up until the date of termination; or
  • if the termination is after the delivery of the Final Designs, the cancellation fee shall be 100% of the balance of all remaining dues.
• Regardless of when the Agreement is terminated, all billable expenses and Third Party Charges already incurred by Vanilla Gecko or which Vanilla Gecko is liable to pay for shall be paid by The Client in full.
• Upon expiration or termination of this Agreement:
  • each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and
  • other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of execution of the Services, shall survive.

8. 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, 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.  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.

9. INTELLECTUAL PROPERTY PROVISIONS (COPYRIGHT):

• Upon completion of the Services and expressly conditional upon receipt of full and final payment from The Client of all invoices due, Vanilla Gecko agrees to hand over the Copyright ownership of all Final Art to The Client.  However, Vanilla Gecko retains the right to reproduce, publish and display the Final Art for the purposes laid out in Section 10 only.
• 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 Vanilla Gecko a nonexclusive, nontransferable license to use, reproduce, modify, display and publish The Client Content solely in connection with Vanilla Gecko’s performance of the Services and limited promotional uses of the Services as authorized in this Agreement.
• All Third Party Materials are the exclusive property of their respective owners.  Vanilla Gecko shall inform The Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art.  Under such circumstances Vanilla Gecko shall inform The Client of any need to license, at The Client’s expense, and unless otherwise provided for by The Client, Vanilla Gecko shall obtain the license(s) necessary to permit The Client’s use of the Third Party Materials.  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 Vanilla Gecko 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.
• Vanilla Gecko retains all rights in and to all Preliminary Works.  The Client shall return all Preliminary Works to Vanilla Gecko within 30 days of completion or termination of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Vanilla Gecko.

10. ACCREDITATION/PROMOTIONS:

Vanilla Gecko retains the right to reproduce, publish and display the Services in Vanilla Gecko’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 Services in connection with such uses.  Either party, subject to the other’s reasonable approval, may describe its role in relation to the Services and, if applicable, the services provided to the other party on its Web site and in other promotional materials, and, if not expressly objected to, include a link to the other party’s Web site.

If you are commissioning website design, the following would also be included in your Service Agreement:

WEBSITE DESIGN:

• Whilst every endeavour will be made to ensure that the website and any scripts or programs are free of errors, Vanilla Gecko shall not be held responsible for any losses incurred due to malfunction, the website or any part of it.
• Compatibility: Vanilla Gecko will endeavour to ensure that any website or application will function correctly on the server it is initially installed on and that it will function correctly or at least at an acceptable level on as many browsers as possible.  Vanilla Gecko can offer no guarantees of correct function with all browser software.
• The Client understands that any web hosting services require a separate contract with a web hosting company. Whilst Vanilla Gecko may recommend certain hosting companies, Vanilla Gecko cannot accept liability for losses or damages caused by the unavailability, malfunction or interruption of the service provided by these companies nor for your general experience with them. The Client agrees to allow Vanilla Gecko full access to the website via FTP for the purposes of uploading/editing the site content. This may mean providing Vanilla Gecko with a username and password (see Section 8).
• E-commerce: Where requested, we will create and design your website incorporating your e-commerce solutions.  Our low cost e-commerce solutions will involve the use of PayPal, and Vanilla Gecko recommends that The Client is conversant with PayPal's Terms & Conditions before choosing to use PayPal.  The client has full responsibility for investigating the advantages and disadvantages of PayPal as opposed to any other merchant provider, and to establish the suitability of PayPal for their needs.  Where PayPal is the chosen merchant provider the client is responsible for establishing a suitable PayPal account and supplying details of this account to Vanilla Gecko. Your decision to use PayPal on your website is made based on information available to you (The Client) supplied by PayPal, and is not influenced by Vanilla Gecko
• Search Engine Submission: Vanilla Gecko will submit The Client’s website to dmoz.org which is a directory used by many search engines.  However inclusion in the directory cannot be guaranteed and even then it can take many weeks for a website to appear in the search results - this is normal.  Vanilla Gecko cannot guarantee top level rankings for the website, although Vanilla Gecko will use its knowledge and experience to gain the best results possible.
• Future Site Problems: Unfortunately malicious software, spyware, viruses and website hacking are facts of life on today’s Internet. It is highly unlikely that these will affect your website, and Vanilla Gecko will endeavour to protect your site from this as much as possible during its creation.  However, Vanilla Gecko cannot be held responsible for problems that develop on completed sites as a result of illegal activity.
• Vanilla Gecko will not knowingly permit the use of any inappropriate material in a website designed or hosted by us, and will only create websites in the English language.
• Website Maintenance: Maintenance will be charged at the standard hourly rate to the nearest 15 minutes. The Client agrees to pay any Maintenance charges due at the end of each calendar month and within 15 days from receipt of the invoice. A finance charge of 2% above Barclay’s base rate per month shall be added to all overdue balances. The Client shall be responsible for all collection of legal fees necessitated by late or default in payment.
• Additional Pages/Major Site Changes: If The Client commissions Vanilla Gecko to make major changes or add additional pages to the site which are not considered to be Website Maintenance, a new Service Proposal shall be issued for the work intended and, if necessary, a new Service Agreement. If a new Service Agreement is not issued, then the terms of this Agreement shall remain valid.

This additional clause would be added to section 9.INTELLECTUAL PROPERTY PROVISIONS (COPYRIGHT):

• Rights to source code, scripts and computer programs specifically are not transferred to The Client, and remain the property of their respective owners.