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The Client: The company or individual requesting the services of Black Bear Creative Ltd.
Black Bear Creative Ltd: Primary supplier and employees or affiliates.
These general terms and conditions apply to all services provided by Black Bear Creative Ltd to the Client. Additional terms relating to online Commissions are also included.
- Any proposal supplied by Black Bear Creative 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.
- 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 Black Bear Creative 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.
- In the event any proposal is not accepted by the Client all copies of the proposal together with any accompanying documentation shall remain confidential.
- A proposal is deemed to be accepted where agreement is provided either by email, telephone, verbally, post or fax (the Commission).
- Every Commission (unless specifically agreed) remains the exclusive property and copyright of Black Bear Creative Ltd and may only be reproduced or resold at the absolute discretion of and with the permission of Black Bear Creative Ltd at additional cost.
- Any costing or timetable provided by Black Bear Creative Ltd shall be provided on the basis of the Commission and shall hold good for 30 days and if not accepted within that period shall be subject to review and adjustment by Black Bear Creative Ltd.
- Any statement by Black Bear Creative Ltd as to the date of completion of the Commission is an estimate only. Black Bear Creative Ltd will use reasonable endeavours to comply with any timetable but will be under no liability to the Client their appointed agents or any other person for costs incurred, compensation or loss of earnings in the event the Commission is not completed by the estimated date. Black Bear Creative Ltd alone shall specify when the commission or any stage thereof has been completed.
- The Client agrees to make available as soon as is reasonably possible to Black Bear Creative Ltd all materials required to complete the Commission to the agreed standard and within the set deadline.
- Any alteration to the Commission agreed between the Client and Black Bear Creative Ltd shall entitle Black Bear Creative Ltd to review and adjust any costing or timetable provided to the Client.
- Unless otherwise agreed in writing any costing of the Commission will be exclusive of VAT disbursements and reasonable expenses incurred by Black Bear Creative Ltd.
- Black Bear Creative 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, design, artwork, coding, software development, hosting services, courier services, postage, express deliveries, long distance telephone calls and travel and the Client shall fully reimburse Black Bear Creative Ltd for the cost of such items] and may sub-contract such elements of the Commission as it deems appropriate.
- All fees charges and disbursements shall be paid within 30 days of the submission of Black Bear Creative Ltd’s account (unless otherwise agreed) in default of which interest shall accrue on the gross amount of the account so outstanding calculated on a day-to-day basis at a rate of 4% above the base rate of HSBC plc and Black Bear Creative 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.
- Black Bear Creative 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 Black Bear Creative Ltd any specialist material or service.
- Black Bear Creative Ltd shall provide such information regarding the amount of costs incurred as the Client may reasonably require. Unless otherwise agreed in writing Black Bear Creative Ltd may submit interim accounts for payment notwithstanding that the Commission has yet to be completed.
- On completion of the Commission and payment of all Black Bear Creative Ltd’s accounts Black Bear Creative Ltd shall grant to the Client a license to exploit the finished version created modified or used in connection with the Commission for the purposes and in the territories specified in the Commission or if no such territories are specified the United Kingdom.
- The license granted shall extend to the Commission in a tangible form only. If the Client requires a license in respect of electronic copies of the Commission this may be granted at the absolute discretion of Black Bear Creative Ltd at additional cost.
- Black Bear Creative Ltd reserves such rights as are necessary for Black Bear Creative Ltd to use the Commission for its archive and/or any advertising of its business (if any).
- The Client acknowledges that each Commission is created according to its own instructions and Black Bear Creative 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 finished version 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 BLACK BEAR CREATIVE LTD incorporated and registered in England and Wales with company number 10734266 whose registered office is at Abacus House, 14-18 Forest Road, Loughton, Essex IG10 1DX. Registered VAT number: 269 4609 62. 1correction of errors or omissions and Black Bear Creative Ltd shall bear no liability whatsoever in respect of any errors or omissions subsequently discovered.
- Black Bear Creative 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. In any event where the Commission is defective for any reason including negligence any claim against Black Bear Creative Ltd shall be limited to rectifying such defect to the Client’s satisfaction or to the amount of Black Bear Creative Ltd’s fees and charges for the Commission. The Client shall indemnify Black Bear Creative Ltd against any liability over and above the said amount absolutely.
- Black Bear Creative 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 Black Bear Creative Ltd against any claim for infringement of any such right.
- The Client warrants that the information given to Black Bear Creative 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 Black Bear Creative Ltd against any claim arising from the use thereof in breach of any such matter. Black Bear Creative Ltd reserves the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.
- Where the Commission includes production via printing or digitally by Black Bear Creative Ltd the Client acknowledges that due to the nature of the various processes there may be some non-material variation in colour tone or quality. Black Bear Creative Ltd warrants it will use reasonable care and skill in the production of the Commission.
- Any goods or chattels supplied by or on behalf of the Client to Black Bear Creative Ltd will be held worked on and carried at the Client’s risk.
- Without prejudice to its existing rights Black Bear Creative Ltd may terminate this contract immediately if the Client is in default of any term of any contract between Black Bear Creative 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 Black Bear Creative 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 components of the Commission forthwith.
- Nothing in this agreement shall operate so as to create a partnership or joint venture of any kind between Black Bear Creative Ltd and any other person.
- The Client may not assign the benefit of this agreement or any right arising there from in any way whatsoever.
- Black Bear Creative Ltd reserves the right to revise these terms and conditions and its policies at any time.
- These conditions and all other expressed or implied terms of this agreement shall be governed and construed in accordance with the laws of England.
These terms supplement our general Terms and Conditions.
All online Commissions including (without prejudice to the generality of the foregoing) : website design, hosting services, software, scripts, applications, email marketing and advertising provided by Black Bear Creative Ltd to the Client are subject to the following terms and conditions.
- Whilst every endeavour will be made to ensure that the Commission is free of errors Black Bear Creative Ltd cannot accept responsibility for any losses incurred due to malfunction of the Commission or any part of it.
- Any alterations or additions to briefs provided will be carried out at the discretion of Black Bear Creative Ltd and Black Bear Creative Ltd will accept no responsibility to ensure such alterations or additions are error free and reserve the right to charge an according fee for any alterations or additions or corrections to these or further additions.
- Black Bear Creative Ltd will not be liable or become involved in any disputes between the Client and their Clients, agents or associates and cannot be held responsible for any wrongdoing on the part of the Client including (without prejudice to the generality of the foregoing): any disputes re content or images that have been provided to us for inclusion on the Commission.
- Black Bear Creative Ltd will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the Commission, its servers, software or any material provided by its agents.
- Black Bear Creative Ltd does not guarantee that any Commission will be immune from hacking or malicious tampering. Black Bear Creative Ltd will not be liable for any costs incurred, compensation or loss of earnings caused as a result of hacking.
- Black Bear Creative Ltd cannot take responsibility for any losses incurred by the use of any Commission created for the Client. Whilst every care has been taken to ensure the Commission is problem free and accurate, the ultimate responsibility lies with the Client in ensuring that all software is functioning correctly before use.
- Any scripts, applications or software (unless specifically agreed) written by Black Bear Creative Ltd our sub-contractors or associates remain the copyright of Black Bear Creative Ltd and may be used in future Black Bear Creative Ltd projects.
- Where applications or websites are developed on servers not recommended by Black Bear Creative 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.
- The Client is expected to test fully any application or programming relating to a Commission developed by Black Bear Creative Ltd before being made generally available for use. Where “bugs”, errors or other issues are found after the Commission is live, Black Bear Creative Ltd will endeavour (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief.
- Black Bear Creative Ltd will endeavour to ensure that any developed/ designed Commission will function correctly on the server it is initially installed in and that it will function correctly when viewed on the most recent 2 versions of Microsoft Internet Explorer and Mozilla Firefox browsers. Black Bear Creative Ltd can offer no guarantees of correct function with all browser software.
- Website content. All services provided by Black Bear Creative Ltd may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any English, UK 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 Black Bear Creative Ltd from any claims resulting from the use of the service which damages the subscriber or any other party.
- Also prohibited is content that promotes any illegal activity or presents 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 include but are not limited to: pirated software, pornography, violations of copyrights, hacker programs or archives, Warez sites and hate propaganda. Black Bear Creative Ltd will be the sole arbiter as to what constitutes a violation of this provision.
- 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.
- Web space usage. Web space is available for genuine website 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.
- 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.
- 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:
- Use of the services or the website in any way to send unsolicited commercial email or “spam”, or any similar abuse of the services.
- Send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities.
- 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.
- Threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others.
- Engage in illegal or unlawful activities through the services or via the website.
- Make available or upload files to the website or to the services that the Client knows contain a virus, worm, trojan or corrupt data.
- Obtain or attempt to obtain access, through whatever means, to areas of Black Bear Creative Ltd network or the services which are identified as restricted or confidential. This includes leaving your home directory whilst using access to servers.
- Operate or attempt to operate bots or other permanent server processes.
- The Client has full responsibility for the content of the website. For the avoidance of doubt, Black Bear Creative 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 Black Bear Creative Ltd shall be entitled to withdraw the services and terminate the Client’s account without notice.
- Resources. When a website is found to be exceeding the resources agreed Black Bear Creative Ltd reserves the right to suspend that site immediately. This policy is only implemented in extreme circumstances. Clients may be offered an option whereby Black Bear Creative Ltd continues hosting the website for an additional fee.
- Data backup. The Client is responsible for undertaking any data back up programs, databases, web files or other digital material.
- Payment. All accounts are set up on a prepay basis. Although Black Bear Creative 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 (unless otherwise agreed) following the date the account was established. Black Bear Creative Ltd reserves the right to suspend this and other services until any outstanding debt is cleared. Black Bear Creative Ltd will not be responsible for any data lost due to nonpayment closure of an account. The Client is responsible for all money owed on 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 Black Bear Creative Ltd’s discretion. Black Bear Creative Ltd reserves the right to charge a reinstatement fee.
- Cancellations and refunds. All fees charged on a prepay basis are non-refundable
- Indemnification. The Client agrees that it shall defend, indemnify, save and hold Black Bear Creative Ltd harmless from any and all demands, liabilities, losses, costs and claims, including reasonable professional fees asserted against Black Bear Creative 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 assignees. The Client agrees to defend, indemnify and hold harmless Black Bear Creative Ltd against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Black Bear Creative Ltd’s 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 from Black Bear Creative Ltd’s server.
- Disclaimer. Black Bear Creative Ltd will not be responsible for any damages your business may suffer. Black Bear Creative Ltd makes no warranties of any kind, expressed or implied for services we provide. Black Bear Creative Ltd disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non deliveries, wrong delivery, and any and all service interruptions caused by Black Bear Creative Ltd and its employees.
- 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.
The 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. The Client also agrees not to remove any proprietary notices or labels from the software.
Permission marketing. The Client agrees to use its account for permission based email marketing and communications and to send emails that are truthful in nature and accurately identify the purpose of the email and the identity of the sending organisation. The 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 and services provided by Black Bear Creative Ltd to email people who meet at least one of the following criteria:
- The recipient has opted in to receive the Client’s emails, using a form that clearly indicates that by submitting his or her email address he or she will receive emails from the Client; or
- The recipient has provided his or her email address to the Client via business card, conference or similar with the understanding that the Client will send the recipient emails; or
- The recipient has a clear relationship with the Client as (a) a member who pays dues to belong to the Client’s organisation, (b) a subscriber who pays a subscription fee to gain access to the Client’s services, or (c) a customer who has purchased a good or service from the Client within the past eighteen (18) months, in the course of which the Client has obtained that customer’s email address.
If any recipient, regardless of his or her prior opt-in status or relationship to the Client, has indicated to the Client their desire not to receive emails either during or prior to the Client’s use of the software the Client may not use the software to email that recipient.
The 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 result in immediate termination of the Client’s email marketing account.
The 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 organisation; or to promote 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. Black Bear Creative Ltd reserves the right to use its own judgment in determining what is offensive.
Black Bear Creative Ltd reserves the right to suspend or terminate the Client’s account access and privileges in cases where a mailing sent by or on behalf of the Client receives an unreasonable number of complaints from Internet Service Providers or email watchdog groups with Black Bear Creative Ltd having the right to determine what qualifies as unreasonable.
The Client will also be responsible for paying any fines incurred by Black Bear Creative Ltd as a direct result of one of its mailings in cases where clear and direct evidence is presented to Black Bear Creative Ltd by the fining organisation.
Opt Out Policy. The Client agrees to use the opt out link and process 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 the Client opt them out, the Client agrees to opt such recipients out within five (5) business days or prior to the next mailing sent through the Client’s account, whichever comes first.
Account use and content. The Client is responsible for everything that happens in their account including the email addresses that are added imported and stored as well as the content published distributed or linked to from the Client’s email campaigns. The Client agrees to take full responsibility for any and all content distributed through their account and to abide by all pertinent copyright laws.
Data storage and privacy. Black Bear Creative Ltd agrees to hold the Client’s account information lists and data in strict confidence. Black Bear Creative Ltd will not rent, sell or in any way share the Client’s email addresses with any third party. The only time Black Bear Creative Ltd will ever share any information related to the Client’s account with an outside organisation is if (a) the outside organisation is processing the Client’s payment to Black Bear Creative Ltd and requires certain information necessary for the transaction, (b) the outside organisation is an organisation empowered to require Black Bear Creative Ltd to divulge the Client’s personal or account information, (c) Black Bear Creative Ltd is highlighting examples of the Client’s email campaigns or success, or (d) Black Bear Creative Ltd is reporting on Black Bear Creative Ltd’s overall customer base and activity in which case only general aggregate (non-personally identifiable) information will be divulged.
The Client will be provided with a username and password that grants them access to certain account data and the Client understands and acknowledges that they are responsible for maintaining control of that username and password and ensuring its proper use by authorised personnel only.
Data Privacy Principles. The email marketing platform provided by Black Bear Creative Ltd to the Client adheres to the data privacy principles of the European Union’s Directive on Data Protection and the Safe Harbor program, designed to provide companies with guidance on how to provide adequate protection for personal data.
Right to inspect. For the purposes of providing the Client service and support and to ensure that the terms of this agreement are being followed Black Bear Creative Ltd reserves the right to inspect and monitor the Client’s account and data at any time without notice and to limit access to the Client’s account at any time should Black Bear Creative Ltd have reason to believe that the Client has already violated or may at some point in the future violate any terms set forth in this agreement.
Termination. Unless otherwise agreed upon in writing the Client’s use of the software requires no long-term contracts and therefore may be terminated at the end of any billing cycle. Any request to terminate will take effect at the end of that period and the Client will be responsible for payment for any services rendered up to the termination date. If the 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.
Black Bear Creative Ltd may terminate this Agreement if: a) payment for services rendered becomes at least 60 days overdue, b) Black Bear Creative Ltd determines that the Client is in breach of any of the terms of this agreement.
Following termination Black Bear Creative Ltd will work with the Client to help retrieve Client owned email addresses and other vital account data within a reasonable period of time and Black Bear Creative Ltd reserves the right to charge a fee for this service. Black Bear Creative Ltd makes no guarantees as to the availability of the Client’s data for more than 30 days following the date of termination by either party.
The software and related services are provided “as is” and Black Bear Creative Ltd 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. Black Bear Creative Ltd 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.
The Client agrees to indemnify and hold harmless Black Bear Creative Ltd and its agents, associates and employees from any claims arising from the Client’s use of the software.
Black Bear Creative Ltd takes no responsibility for the loss of emails due to server downtime, domain repointing, DNS modification or Clients exceeding allocated quotas or for any other reason. It is the responsibility of the Client to setup their email programs and email Clients using the information Black Bear Creative Ltd supplies regarding usernames, passwords and server address (POP/SMTP). It is also the responsibility of the Client to make sure they do not exceed email quotas or incoming emails will not be deliverable. We advise Clients to modify their email settings such that emails are deleted from the server after being downloaded, or at most one week after.
Black Bear Creative Ltd cannot be held responsible for the loss of email data or website functionality during transfer of domain names (however long it takes) or changes to the name servers or any other domain-related record and as such cannot accept liability for any economic losses (including revenues and profits), loss of goodwill, reputation or any other consequential or indirect losses the Client may suffer due to the loss of website functionality, loss of email data or their inability to access the email data.
In the event that a Client requires the ownership of their domain name to be changed to a third party, this will generally require a fee to cover administration and must be paid before the transfer is initiated.