Elbow Creative Ltd
Terms & Conditions
Elbow Creative’s office hours are 9am - 5.30pm, Monday to Friday. Please note that staff do not have business mobile telephones.
These terms and conditions shall apply to this project and to all projects with us to the exclusion of any other terms or conditions.
These terms and conditions (‘Conditions’) along with project description, scope and scale, budget breakdowns, cost estimates, proposals, and/or project timetables form a contract (‘Contract’), and is made between us Elbow Creative Ltd (‘Elbow Creative’) and between you and your authorised consultants and agents (‘Client’), and pertains to any ideas, products, materials or services (‘Work’) we, or our authorised sub-contractors and agents, produce on your behalf.
No variation of these Conditions shall be binding unless agreed in writing between the authorised representatives of Elbow Creative and Client.
If the Client assigns authority to a third-party to act on their behalf, these Conditions apply.
Elbow Creative services include brand research and brand consultancy; creative idea generation; design services; procurement of third-party design and related services; and account, project and print management.
Due to the nature of electronic communications, we cannot guarantee that any email sent to Elbow Creative or its representatives will be received. All critical communications should be sent or at least confirmed by personal delivery, post or fax.
We will accept and act on the instructions communicated to Elbow Creative by the Client. It will not be our responsibility to seek clarification of such instruction, or whether the person providing the instruction has the authority to do so.
Each party shall treat all information relating to the other party’s business, know-how, trade secrets or otherwise of a confidential nature and shall not use it, disclose it or permit it to be disclosed by any other third party other than to those of its employees who need to know in the proper performance of the contract. Such obligation shall not apply to information which the recipient can show was i) in the public domain at the time of the relevant disclosure; ii) was known by Elbow Creative prior to the relevant disclosure; iii) was subsequently disclosed to it by a third party who was entitled to make such disclosure; or iv) is required to be disclosed by any competent authority or court.
3. Client’s duty to provide information
The Client will be an expert in its field and on its services/products. Accordingly it should be its responsibility to provide Elbow Creative with the information that it needs on such matters (including information about any relevant laws, regulations or codes of practice) and the Elbow Creative should be able to rely on this information and should not be held responsible if it is incomplete or inaccurate.
4. Fees and Costs
Fees and costs encompass any consultative, creative, management or administrative time Elbow Creative spends on Client Work; studio materials and costs such as high resolution digital output, bulk photocopying, bindery, presentation and prop production materials, hire equipment, proof printing; out-of-pocket expenses related to project work or travel; third-party costs; handling and rush charges, VAT and local taxes, where applicable.
Third-party costs will be imposed prior to commissioning any Work and Elbow Creative reserves the right to wait until such costs have been paid before commencing any Work with the third-party.
Elbow Creative provides cost estimates. These are based on type of resource, and the amount of time required for a resource to complete activities and stages of a project by a delivery date; materials to be used; third-party costs and services charges, as applicable; contingency, if allowable; and charges, as required, to expedite the project within a compressed time frame.
All estimates include one round of client corrections or up to 2 hours, whichever comes first, unless otherwise agreed. Additional client corrections, outside of those agreed, are billable at the prevailing rate at the time the amends were made. Complete re-writes to copy, after submission to us as final copy, and integrated into the Work, will be re-quoted on a case-by-case basis.
Whilst we shall endeavour to adhere to the estimates issued by us, they are merely estimates created in good faith, and do not constitute an offer and are in no way binding on us.
Estimated fees and costs shall be valid for a term of 30 days only. Fees are calculated on hourly or day rates applicable at the date of the Estimate. Elbow Creative calculates all fees and costs in British pounds sterling. All fees and costs are quoted exclusive of VAT.
We reserve the right any time before the completion of the contract, to increase our fees to reflect any increase in cost to us which is due to any factor beyond our control, including but not limited to, a significant increase in the cost of materials or third-party fees; any variation in exchange rates; or any delay caused by any instructions given by the Client, or failure to give us adequate information or instructions.
5. Service Charge
Materials and/or services purchased on your behalf shall carry an industry standard 15% service charge when re-invoiced to you. This covers our administration and additional risks.
6. Invoicing and Payment
50% of the quoted project fees and costs will be invoiced in advance at the discretion of Elbow Creative for new accounts and 50% for services purchased on the Clients behalf for all accounts an as detailed on cost estimates, work shall not commence until payment has been received. Remaining estimated fees and costs to be divided equally and billed at the end of each month with a final invoice settling all outstanding fees, costs and expenses.
Any queries pertaining to invoices received shall be made within 14 days of receipt of the invoice in question. Invoices are deemed to be accurate and approved, in the absence of the aforementioned notification and time period.
Invoices are strictly payable within 30 days.
Elbow Creative is entitled to charge interest and to claim compensation on overdue sums in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. The current interest rate is calculated as, the official base rate of the Bank of England plus 8%.
The Client will be responsible for any expenses incurred in connection with the recovery of monies owed by the Client.
Any complaint concerning our Work must be notified to us in writing within 7 days of receipt by you; and in the absence of such notice, you shall be conclusively deemed to have accepted such Work.
We shall endeavour to ensure that our Work complies with your instructions. You will check our Work and inform us of any error within 7 days of receipt. In the event of any error being made by us, our liability shall be limited to the replacement or correction of our Work.
(a) Digital work
Content for digital projects is to be provided in final digital format by the client.
We shall endeavour to test websites that we have designed to a reasonable level, and that within reason we have ensured that Internet and interactive sub-contractors have adequate testing procedures covering Mac and PC environments encompassing the most popular Internet browsers operating at the time the website is developed.
For websites that are CMS or E-commerce based, the input of text, images and products are not included in the costing.
Websites that have been transferred to the care of Elbow Creative, and their Internet sub-contractors, for the purposes of design enhancement or content updates, are not subject to browser testing, and it is acknowledged by the client that these websites are transferred to the care of Elbow Creative, and its sub-contractors, as is, unless otherwise agreed in writing.
Once you have accepted Work or have been deemed to accept it in accordance with the clauses above then further expenditure in respect of our Work whether on printing or otherwise shall be your liability. Every effort will be made to obtain the best possible colour reproduction on customer's work but because of the nature of the processes involved, Elbow Creative cannot guarantee an exact match in colour or texture between any materials with which you supply us, and the printed article
Print Proof Agreement (Print Only)
If the sales representative has provided you with a proof, your signing this agreement confirms that you agree to the design and contents of the printed document as depicted on the proof. By signing this agreement, you absolve Elbow Creative’s of all liability for any errors, omissions or discrepancies which may be present on the proof. Once you have signed this agreement and proof if supplied, you are not able to make any changes to the final product, nor are you able to hold Elbow Creative responsible for anything you are unhappy with. This contract revokes your right to take any kind of action against Elbow Creative for any aspect of the work with which you are later dissatisfied. Signing this contract means that, as long as the finished product is as discussed with the sales representative and consistent with the proof if supplied, you must pay in full for the work. This fact applies whether or not you later take issue with any aspect of the product. These terms are final and non-negotiable. This is your final opportunity to make changes to the content.
Making Changes After Proof Stage (Print Only)
If a change is requested, we will do everything we can to make the correction before the printing starts, but we cannot guarantee this. We accept no responsibility, under any circumstances, for any mistakes present on the completed work, as the signing-off of a proof absolves Elbow Creative of all liability (see "Proof Agreement" above). Once the proof is signed off or agreed, whether verbally or via email, we incur a film / plate(s) charge and this is passed on to you as part of the total charge. Any changes made after a proof is signed off will result in a further film / plate(s) charge.
We shall endeavour to ensure that our Work is provided by the estimated or contractual date. Time may not be of the essence of the contract when we agree delivery dates.
Notwithstanding the clause above, we shall not be liable for any loss or damage arising from delays caused by any incident or matter beyond our reasonable control.
Notwithstanding the two clauses above, we shall not be liable for any indirect or consequential loss or damage suffered by you or as a result of any delay.
It is the Client’s responsibility to ensure that enquiries are handled in a timely fashion to enable Elbow Creative to meet any agreed time scales.
Elbow Creative is not responsible for the production or implementation of any design, packaging or signage Work produced, unless otherwise agreed. The Client is responsible for implementation, and obtaining the relevant licenses for package distribution, signage or electronically displayed designs. Failure to consult with Elbow Creative prior to implementation of Work may result in unsatisfactory implementation.
You have a right to terminate your contract with us at any point in writing, provided that you have paid for the materials and services actually provided to you, or booked on your behalf, at the point at which the contract is being terminated, and that we are fully reimbursed for cancellation costs associated with booking studio time, scheduling resources and procuring third-parties to meet the needs of the project.
In the event of your bankruptcy, liquidation, winding up or the appointment of a Receiver over all or any of your assets, or should you enter into an arrangement with your creditors such as an IVA; we shall be entitled forthwith to cancel this contract; and all other contracts with you and recover our accrued fees and costs.
If the Client cancels the Contract, or does not proceed to complete outstanding Work, intellectual property rights will not pass to the Client for Work in progress. If there is a portion of Work completed that has been paid for completely by the payments received, if agreed with Elbow Creative, the intellectual property rights for that portion of Work will pass to the Client. Jobs put on hold or cancelled by the client during production will be invoiced at current stage and materials. This invoice must be paid in full together with any VAT that falls due accordingly.
Rejected ideas, presentations, design concepts and approaches remain the property of Elbow Creative.
We have the right to terminate a project if, after 30 days, we receive no response from communications whether email or voice from the Client who commissioned the work. All fees paid on account will be forfeited.
Title to and property in our Work shall not pass until it has been paid for in full and all other sums outstanding from you to us under this contract or otherwise have been paid.
12. Intellectual Property Rights
(a) Graphic Designs (including electronically displayed designs)
The Work includes Elbow Creative’s Copyright in the final design chosen by the Client for implementation (“the Final Graphic Design”) which expression includes the software written by the Company which is exclusively used only for the purpose of displaying the Final Graphic Design itself but not any other software, code or script. The Client agrees not to exploit such copyright outside the market category and territory for which the Work was provided except with Elbow Creative’s written consent.
(b) Three-dimensional Designs
Elbow Creative grants and the Client accepts an exclusive licence to use the copyright and/or design right in any final three dimensional design chosen by the Client for implementation (“the Final 3-D Design”) but excludes all other intellectual property and the Client agrees not to exploit the Final 3-D Design outside the market category and territory for which the Work was provided except with Elbow Creative’s written consent. This licence will be automatically revoked if the Final 3-D Design is not commercially exploited within 2 years of the date of selection.
(c) Reservation of Technical and Artistic Concepts
Elbow Creative will not infringe the final graphic design or final 3-D design chosen by the Client for implementation but reserves the exclusive right to use all other designs software concepts ideas or intellectual property developed during the course of the Work.
(d) Multi Designs
If more than one design is chosen by the Client and this was not provided for in the agreed brief for that Work an additional fee may be payable by the Client.
Elbow Creative (or its subcontractors) will retain all intellectual property rights in relation to the computer software (including code) developed for the Client during the course of the Work (“the Software”).
(f) Sub-contractors Intellectual Property
Elbow Creative will use all reasonable endeavours to secure the relevant intellectual property rights of its sub-contractors. Clients are reminded that illustrators usually retain ownership of the original illustration and may demand its return undamaged although this should not restrict the Client’s use of any illustration within the negotiated usage rights.
Elbow Creative warrants that its own design work is original and that it will not knowingly or negligently infringe the rights or intellectual property of a third party but (unless expressly agreed to the contrary) it is under no obligation to make any enquiry in this respect and it shall have no liability to the Client in respect of any infringement or alleged infringement of intellectual property or passing off.
(h) Further Assurance
Elbow Creative will on demand and at the cost of the Client execute such documents and do such things as are necessary to give effect to this clause.
(i) Pitch Work
In the event of an unsuccessful Pitch the will not use any design documents concepts ideas or information provided as part of the Pitch and will return all materials delivered to it as part of the Pitch.
13. Moral Rights
Elbow Creative asserts its moral rights in work of arising in respect of the performance of the contract.
14. Limitation of Liability
Any indemnity you may have against us in respect of actions, proceedings, liability claims, damages, costs and expenses in relation to or arising out of Work being in breach of any third party’s copyright or other intellectual property rights or any other rights whatsoever shall be limited to the amount of our costs and fees for the project.
Liability of Elbow Creative under the contract or in tort (other than in respect of death or personal injury) shall not exceed the greater of the sum paid by the client under the contract for such sum as shall be receivable by Elbow Creative in respect of any claim under the insurance policy effected by Elbow Creative.
Elbow Creative and their sub-contractors accept no responsibility or liability for inaccuracies for incorrect or liable copy and/or links posted to the Client’s website on their behalf.
Elbow Creative and their sub-contractors accept no responsibility or liability for photography, illustrations or other visual representations, given to us or procured by us on your behalf, which is used outside of the stated licence usage terms.
Elbow Creative and their partners accept no responsibility or liability for unauthorised use of the website, including but not limited to, copying, downloading, or uploading content of any sort.
Elbow Creative shall not be responsible for any errors apparent in artwork, copy or proofs that have been signed off by or on behalf of the Client.
The Client accepts reasonable tolerances in relation to the Service including in respect of, inter alia, paper quality and colour.
We cannot accept responsibility for the compliance with Parts 1 and 2 of the Consumer Protection Act 1987 of any item manufactured by you on the basis of our Work.
The Client warrants that it either owns or holds the necessary licenses in respect of the materials supplied to Elbow Creative in connection with the provision of the service, and that they will indemnify us against all costs, claims, liabilities, and losses, if this is not the case.
When the Client’s Work is in the public domain, Elbow Creative shall have rights of reasonable publicity, and if so requested, the Client shall provide Elbow Creative with free sample of the Work of Elbow Creative use.
We will, as a courtesy, provide our initial press releases to you for review and comment, before submission to the press, and you agree not to unreasonably withhold permission for its use.
Subject to agreement, you will allow Elbow Creative to use and reproduce photographic material, whether commissioned by you or us, which is relevant and applicable to the project; to publicise such photography together with background copy for the purpose of promoting our business.
(b) Credit of Work
You will allow us to credit our Work, on printed and electronic material, in a manner appropriate and generally accepted for the type of medium on which it will be applied.
This contract is made in England and shall be construed in all respect in accordance with the laws of England.
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T 020 8123 9566