TERMS & CONDITIONS
All services provided by Magnetic Studio Ltd to the client are subject to the following general terms and conditions.
Definitions: The Client: The company or individual requesting the services of Magnetic Studio Ltd. Magnetic Studio Ltd: Primary designer/developer & employees or affiliates.
1. Any proposal(s) supplied by Magnetic Studio Ltd shall be deemed to include these terms and conditions and an acceptance of any such proposal or tender shall be deemed to be an acceptance of these terms and conditions.
2. The copyright design rights and all other types of intellectual property right in any proposal and any draft designs shall at all times remain with Magnetic Studio Ltd. Any tender draft or proposal shall be treated as confidential information by the client who shall not divulge nor permit any of its servants, agents or employees to divulge the contents thereof.
3. In the event any proposal is not accepted by the client all copies of the proposal together with any accompanying documentation shall remain confidential.
4. A proposal is deemed to be accepted where agreement is provided either by email, telephone, mail or fax (“the Commission”).
5. Any costing or timetable provided by Magnetic Studio Ltd shall be provided on the basis of the Commission shall hold good for 30 days and if not accepted within that period may be subject to review and adjustment by Magnetic Studio Ltd.
6. Any statement by Magnetic Studio Ltd as to the date of completion of the Commission is an estimate only. Magnetic Studio Ltd will use reasonable endeavours to comply with any timetable but will be under no liability to the client or any other person in the event the Commission is not completed by the agreed date. Magnetic Studio Ltd alone shall specify when the commission or any stage thereof has been completed.
7. Any alteration to the Commission agreed between the client and Magnetic Studio Ltd shall entitle Magnetic Studio Ltd to review and adjust any costing or timetable provided to the client.
8. Unless otherwise agreed in writing any costing of the Commission will be exclusive of VAT disbursements and reasonable expenses incurred by Magnetic Studio Ltd. Magnetic Studio Ltd shall have absolute discretion regarding the use of specialist materials or services in completion of the Commission [including (without prejudice to the generality of the foregoing): photography, type-setting, courier services, express deliveries, long distance telephone calls and facsimile transmissions and the client shall fully reimburse Magnetic Studio Ltd for the cost of such items] and may sub-contract such elements of the Commission as it deems appropriate.
9. All fees charges and disbursements shall be paid within 30 days of the submission of Magnetic Studio Ltd’s account (unless otherwise agreed) in default of which interest shall accrue on the gross amount of the account so outstanding at a rate of 4% above the base rate of [HSBC Bank Plc] from time to time and Magnetic Studio Ltd reserves the right to stop work on the Commission should any account not be paid. Non payment will result in legal action being taken if necessary.
10. Magnetic Studio Ltd reserves the right to require the client to provide sums on account of the fee for the Commission or any disbursement or to require that the client obtain or provide to Magnetic Studio Ltd any specialist material or service.
11. Magnetic Studio Ltd shall provide such information regarding the amount of costs incurred as the client may reasonably require.
12. Unless otherwise agreed in writing Magnetic Studio Ltd may submit interim accounts for payment notwithstanding that the Commission has yet to be completed.
13. Materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the deliverables including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Magnetic Studio Ltd a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with the production of the Deliverables.
14. The client warrants that the information given to Magnetic Studio Ltd in the Commission does not infringe any patent copyright or design right; is not information received by the client in confidence from a third party; is not defamatory and does not contravene any act of Parliament any subsidiary legislation any order of any Court or any other restraint and agrees to indemnify Magnetic Studio Ltd against any claim arising from the use thereof in breach of any such matter.
15. The client acknowledges that each Work is created according to its own instructions and Magnetic Studio Ltd makes no warranty as to its quality or suitability for any purpose or compliance with any rules regulations standards or criteria save that the Work will reasonably conform to the Commission. Where pre-production proofs or drafts are submitted for approval to the client the client shall be responsible for the correction of errors or omissions and Magnetic Studio Ltd shall bear no liability whatsoever in respect of any errors or omissions subsequently discovered.
16. Magnetic Studio Ltd shall not in any circumstances be liable for any loss of profit or any consequential loss suffered by the client or by any third party and in any event any claim against Magnetic Studio Ltd shall be limited to the amount of Magnetic Studio Ltd’s fees and charges for the Commission. The client shall indemnify Magnetic Studio Ltd against any liability over and above the said amount absolutely.
17. Magnetic Studio Ltd warrants that it has not knowingly infringed any copyright design right or patent in the completion of the Commission and subject thereto the client agrees to indemnify Magnetic Studio Ltd against any claim for infringement of any such right.
18. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Design Services or otherwise integrated into the Final Art. Under such circumstances, Magnetic Studio Ltd shall inform Client of any need to license.
19. Where the Commission includes printing by Magnetic Studio Ltd the client acknowledges that due to the nature of the process there may be some non-material variation in colour tone or printing quality. Magnetic Studio Ltd warrants it will use reasonable care and skill in the production of the printed items.
20. Without prejudice to its existing rights Magnetic Studio Ltd may terminate this contract immediately if the client is in default of any term of any contract between Magnetic Studio Ltd and the client or if the client becomes insolvent. Either party may terminate this contract by the giving of two months written notice to the other. Upon such termination the client will pay Magnetic Studio Ltd any fees due, including fees for the period up to the end of the notice, together with any VAT and disbursements and will return all of the Works forthwith.
21. Any goods or chattels supplied by or on behalf of the client to Magnetic Studio Ltd are insured for their replacement value only and the client shall bear the risk of any addition loss or damage from the date of the contract.
22. Nothing in this agreement shall operate so as to create a partnership or joint venture of any kind between Magnetic Studio Ltd and any other person.
23. The client may not assign the benefit of this agreement or any right arising there from in any way whatsoever.
24. On completion of the Commission and payment of all Magnetic Studio Ltd’s accounts Magnetic Studio Ltd shall grant to the client a license to exploit the finished version of the works created in connection with the Commission for the purposes specified in the Commission.
25. Magnetic Studio Ltd reserves such rights as are necessary for Magnetic Studio Ltd to use the Works for its archive and/or any advertising of its business (if any).
All email marketing services provided by Magnetic Studio Ltd to the client are subject to the following terms and conditions. Definitions: The Client: The company or individual requesting the services of Magnetic Studio Ltd. The Agency: Magnetic Studio Ltd. Whereas Agency is providing Web-based email marketing software and related services; and Client is interested in engaging the services of Agency; and “Software” refers to the software being provided by Agency to Client for the purposes of interacting with its audience through email; both parties agree to the following:
1. Licensing & ownership - Client’s use of this Software confers no title or ownership to Client. Agency is providing Client temporary, non-exclusive access to email marketing software and services, along with certain entitlements and privileges, that will endure as long as Client (a) continues to provide payment for service in a timely manner, and (b) continues to abide by the terms of this Agreement. Client agrees not to copy, modify, re-package, reverse-engineer, disassemble, modify or otherwise use the Software or its components in ways not explicitly allowed by this Agreement. Client also agrees not to remove any proprietary notices or labels from the software.
2. Permission marketing - Client agrees to use its account for permission-based email marketing and communications, and to send emails using this Software that are truthful in nature and accurately identify the purpose of the email and the identity of the sending organization. Client agrees to include its physical address in all campaigns, as required by legislation, and to adhere to the full Spam guidelines as well as any other applicable English, UK and International laws. The client agrees to use the software provided by Agency to email people who meet at least one of the following criteria: - The recipient has opted in to receive Client’s emails, using a form that clearly indicates that by submitting his or her email address he or she will receive emails from Client; or - The recipient has provided his or her email address to Client, via business card, conference or similar, with the understanding that Client will send the recipient emails; or - The recipient has a clear relationship with Client, as (a) a member who pays dues to belong to Client’s organization, (b) a subscriber who pays a subscription fee to gain access to Client’s services, or (c) a customer who has purchased a good or service from Client within the past eighteen (18) months, in the course of which Client has obtained that customer’s email address. If any recipient, regardless of his or her prior opt-in status or relationship to Client, has indicated to Client its desire not to receive emails - either during or prior to Client’s use of this Software - Client may not use this Software to email that recipient. Client agrees to not use the Software to send to email addresses that have been purchased, rented or otherwise obtained from a third party, or which have been collected using a script or other harvesting method, or which have been obtained without the email address owner’s knowledge. Sending emails to any address or list obtained using one or more of these methods may results in immediate termination of Client’s email marketing account. Client agrees to not use the Software to break any English, UK or International laws or regulations (including but not limited to those related to spamming, e-commerce, obscenity, defamation or privacy); or to encourage or facilitate any illegal activities; or to harass, threaten or embarrass any person or organization; or to promote MLM (multi-level marketing) or Ponzi schemes; or to distribute illegal, pornographic or potentially harmful or offensive information, photos, software or materials, or include links to Web pages containing any such items (Agency reserves the right to use its own judgment in determining what is offensive). Agency reserves the right to suspend or terminate Client’s account access and privileges in cases where a mailing sent by or on behalf of Client receives an unreasonable number of complaints from Internet Service Providers or email watchdog groups (with Agency having the right to determine what qualifies as unreasonable). Client will also be responsible for paying any fines incurred by Agency as a direct result of one of its mailings, in cases where clear and direct evidence is presented to Agency by the fining organisation.
3. Opt out policy - Client agrees to use the opt-out link and process provided by this Software, to ensure that every recipient who requests to be opted out is removed instantly and permanently. In cases where recipients do not opt themselves out and instead request that Client opt them out, Client agrees to opt such recipients out within five (5) business days, or prior to the next mailing sent through Client’s account, whichever comes first.
4. Account use and content - Client understands that it is responsible for everything that happens in Client’s account, including the email addresses that are added, imported and stored, as well as the content published, distributed or linked to from Client’s email campaigns. Client agrees to take full responsibility for any and all content distributed through Client’s account, and to abide by all pertinent copyright laws.
5. Data storage and privacy - Agency agrees to hold Client’s account information, lists and data in strict confidence. Agency will not rent, sell or in any way share Client’s email addresses with any third party. The only time Agency will ever share ANY information related to Client’s use of the Software with an outside organization is if (a) the outside organization is processing Client’s payment to Agency for use of the Software and requires certain information necessary for the transaction, (b) the outside organization is the federal government or other organization empowered to require Agency to divulge Client’s personal or account information, (c) Agency is highlighting examples of Client’s email campaigns or success, with Client’s prior approval to do so, or (d) Agency is reporting on Agency’s overall customer base and activity, in which case only general, aggregate (non-personally identifiable) information will be divulged. Client will be provided with a username and password that grants it access to certain account data. Agency stores an encrypted version of the password for added security, but Client understands and acknowledges that it is ultimately responsible for maintaining control of that username and password and ensuring its proper use by authorised personnel only.
6. Data Privacy Principles - The email marketing platform provided by Agency to Client adheres to the data privacy principles of the European Union’s Directive on Data Protection and the Safe Harbor program, designed to provide U.S. companies with guidance on how to provide adequate protection for personal data.
7. Payment for services - Client agrees to pay Agency in a timely manner for services rendered, on “Net 30” terms. Failure to pay on time may result in temporary or permanent suspension of Client’s access to the Software and service.
8. Right to inspect - For the purposes of providing Client service and support, and to ensure that the terms of this Agreement are being followed, Agency reserves the right to inspect and monitor Client’s account and data at any time, without notice, and to limit access to Client’s account at any time should Agency have reason to believe that Client has already violated, or may at some point in the future violate, any terms set forth in this Agreement.
9. Termination - Unless otherwise agreed upon in writing, Client’s use of the Software requires no long-term contracts and therefore may be terminated at the end of any monthly billing cycle. Any request to terminate will take effect at the end of that month, and Client will be responsible for payment for any services rendered up through the termination date. If Client has paid in advance for a certain period of time for the Software and service, or any portion thereof, and terminates prior to the completion of that period, that payment is non-refundable. Agency may terminate this Agreement if:
a) payment for services rendered becomes at least 60 days overdue, b) Agency determines that Client is in breach of any of the terms set forth in this Agreement. Following termination, Agency will work with Client to help retrieve Client-owned email addresses and other vital account data, within a reasonable period of time. Agency makes no guarantees as to the availability of Client’s data for more than 30 days following the date of termination by either party.
10. Modifications to this Agreement - Agency may, from time to time, edit, append or otherwise modify the terms of this Agreement. Client will be notified to any changes made. After such notification, Client’s continued use of the Software indicates its acceptance of those changes and agreement to abide by them. If Client disagrees with any changes made to this Agreement, Client may terminate its account as set forth in the ‘termination’ section above.
11. Warranties and disclaimers - This Software and related services are provided “as is,” and Agency expressly disclaims all warranties or conditions of any kind (express, implied or statutory), including without limitation the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose. Agency and its technology partners and providers will not be liable for any lost profits or special, incidental or consequential damages arising out of or in connection with the Software or this Agreement. Client agrees to indemnify and hold harmless the agency and its officers, employees and business partners, from any claims arising from Client’s use of the Software.
12. Headers - The headers in this Agreement are provided as visual aids only and are not to be considered legally binding in any way.
13. Miscellaneous - This Agreement says everything there is to be said about the use of the Software by Client and, therefore, it supersedes any other agreement about those topics. Client cannot transfer any of its rights or responsibilities under this Agreement. Agency may transfer any of its rights and responsibilities under this Agreement. Both parties agree to sort out any dispute arising from this Agreement through arbitration in the county in which Agency is located. If any provision of this Agreement is held to be invalid, that provision will be enforced to the extent possible and all other provisions of this agreement will be given full effect. If Agency fails to act to enforce any of the provisions of this Agreement, that inaction will not be a waiver of Agency’s right to act and will not affect Agency’s ability to act later.
This agreement shall be construed in accordance with the laws of England.
Website Design & development Services
All Website Design & development Services provided by Magnetic Studio Ltd to the client are subject to the following terms and conditions
Definitions: The Client: The company or individual requesting the services of Magnetic Studio Ltd. Magnetic Studio Ltd: Primary designer/developer & employees or affiliates.
1. Whilst every endeavour will be made to ensure that the website and any scripts or programs are free of errors, Magnetic Studio Ltd cannot accept responsibility for any losses incurred due to malfunction, the website or any part of it.
2. The website, graphics and any programming code remain the property of Magnetic Studio Ltd until all outstanding accounts are paid in full.
3. Any scripts, cgi applications, php scripts, databases or software (unless specifically agreed) written by Magnetic Studio Ltd remain the copyright of Magnetic Studio Ltd may be used in future Magnetic Studio Ltd projects as required and may only be commercially reproduced or resold with the permission of Magnetic Studio Ltd.
4. Any additions to briefs provided will be carried out at the discretion of Magnetic Studio Ltd and where no charge is made by Magnetic Studio Ltd for such additions, Magnetic Studio Ltd accept no responsibility to ensure such additions are error free and reserve the right to charge an according amount for any correction to these or further additions.
5. The client agrees to make available as soon as is reasonably possible to Magnetic Studio Ltd all materials required to complete the site to the agreed standard and within the set deadline.
6. Magnetic Studio Ltd will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
7. Magnetic Studio Ltd will not be liable or become involved in any disputes between the site owner and their clients and cannot be held responsible for any wrongdoing on the part of a site owner. eg. Any disputes re content/images that have been provided to us for inclusion on the site.
8. Magnetic Studio Ltd will not be liable for any costs incurred, compensation or loss of earnings due to the work carried out on behalf of the client or any of the clients appointed agents.
9. Magnetic Studio Ltd will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by its agents.
10. Magnetic Studio Ltd does not guarantee that any scripts, cgi applications, php scripts, databases or software will be immune from hacking or malicious tampering. Magnetic Studio Ltd will not be liable for any costs incurred, compensation or loss of earnings caused as a result of hacking.
11. Magnetic Studio Ltd cannot take responsibility for any losses incurred by the use of any software created for the client. Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the client in ensuring that all software is functioning correctly before use.
12. Where applications or sites are developed on servers not recommended by Magnetic Studio Ltd, the client is expected to provide or seek any information, additional software, support or
co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed, it is the clients responsibility to provide a suitable testing environment which is identical to the final production environment.
13. The client is expected to test fully any application or programming relating to a site developed by Magnetic Studio Ltd before being made generally available for use. Where “bugs”, errors or other issues are found after the site is live, Magnetic Studio Ltd will endeavour (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief.
14. Magnetic Studio Ltd will endeavour to ensure that any developed/designed site or application will function correctly on the server it is initially installed in and that it will function correctly when viewed on the most recent versions of Mozilla Firefox, Safari, Google Chrome browsers. Magnetic Studio Ltd can offer no guarantees of correct function with all browser software.
All Website hosting services provided by Magnetic Studio Ltd to the client are subject to the following terms and conditions.
Definitions: The Client :The company or individual requesting the services of Magnetic Studio Ltd. Magnetic Studio Ltd: Primary designer/developer & employees or affiliates.
1. Website Content. All services provided by Magnetic Studio Ltd may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United Kingdom, United States Federal, State or City, or any International laws is prohibited. This includes, but is not limited to: Copyrighted material, Material we judge to be threatening or obscene, Material protected by trade secret and other statute. The subscriber agrees to indemnify and hold harmless Magnetic Studio Ltd from any claims resulting from the use of the service, which damages the subscriber or any other party.
2. Also prohibited are sites that promote any illegal activity or present content that may be damaging to our servers or any other server on the internet. Links to such materials are also prohibited. Examples of unacceptable content or links: pirated software, pornography, violations of copyrights, hacker programs or archives, Warez sites and hate propaganda. Magnetic Studio Ltd will be the sole arbiter as to what constitutes a violation of this provision.
3. Data Transfer. Web hosting accounts are prohibited from hosting file distribution websites (including but not limited to music, video and software), adult content orientated websites, hosting banners, graphics or cgi scripts for other websites, storing pages, files or data as a repository for other websites or personal computers, giving away web space under a domain, sub domain or directory.
4. Web space Usage. Web space is available for genuine web site content; content must be linked into web pages. Clients are prohibited from using the server as a file/backup repository. Clients are expected to employ good house keeping when maintaining their account.
5. Server Usage. Should your account use more than 5% of the servers processing power and as a result have a detrimental effect on other Clients we will discuss with you alternative solutions for your hosting requirements.
6. Acceptable Use Policy. The website and use of the Services may be used for lawful purposes only and the Client may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Client agrees not to:
7. Use the Services or the website in any way to send unsolicited commercial email or “spam”, or any similar abuse of the Services.
8. Send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities.
9. Publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights (for the avoidance of doubt this includes licensed software distributed as Warez), via the Services or on the Website.
10. Threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others.
11. Engage in illegal or unlawful activities through the Services or via the Website.
12. Make available or upload files to the website or to the Services that the Client knows contain a virus, worm, trojan or corrupt data.
13. Obtain or attempt to obtain access, through whatever means, to areas of Magnetic Studio Ltd network or the Services which are identified as restricted or confidential. This includes leaving your home directory whilst using SSH access to servers.
14. Operate or attempt to operate IRC bots or other permanent server processes.
15. The Client has full responsibility for the content of the Website. For the avoidance of doubt, Magnetic Studio Ltd is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services. If the Client fails to comply with the Acceptable Use Policy outlined in Clause 6 Magnetic Studio Ltd shall be entitled to withdraw the Services and terminate the Client’s account without notice.
16. Resources. When a website is found to be exceeding the resources agreed Magnetic Studio Ltd reserves the right to suspend that site immediately. This policy is only implemented in extreme circumstances. Clients may be offered an option whereby Magnetic Studio Ltd continues hosting the website for an additional fee.
17. Data Backup. The Client is responsible for undertaking any data back up programs, database, web files or other digital material.
18. Payment. All accounts are set up on a prepay basis. Although Magnetic Studio Ltd reserves the right to change prices of accounts or services at any time all pricing is guaranteed for the period of prepayment. Payment is due each anniversary year following the date the account was established. Magnetic Studio Ltd reserves the right to suspend this and other services until any outstanding debt is cleared. Magnetic Studio Ltd will not be responsible for any data lost due to non-payment closure of an account. The Client is responsible for all money owedon the account from the time it was established to the time that the Client sends a written cancellation request. Reinstatement of an account is at Magnetic Studio Ltd’s discretion. Magnetic Studio Ltd reserves the right to charge a reinstatement fee of 50 (fifty) pounds per account.
19. Cancellations and Refunds. All fees charged on a prepay basis are non-refundable
20. Indemnification. The Client agrees that it shall defend, indemnify, save and hold Magnetic Studio Ltd harmless from any and all demands, liabilities, losses, costs and claims, including reasonable solicitor’s fees asserted against Magnetic Studio Ltd, its agents, its Clients, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Magnetic Studio Ltd against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Magnetic Studio Ltd’ server; (2) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to Client from Magnetic Studio Ltd’s server.
21. Disclaimer. Magnetic Studio Ltd will not be responsible for any damages your business may suffer. Magnetic Studio Ltd makes no warranties of any kind, expressed or implied for services we provide. Magnetic Studio Ltd disclaims any warranty or merchantability or fitness for a particular purpose. The includes loss of data resulting from delays, nondeliveries, wrong delivery, and any and all service interruptions caused by Magnetic Studio Ltd and its employees. Magnetic Studio Ltd reserves the right to revise its policies at any time.
22. Severability. In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.