Terms & Conditions
Elbow Creative Ltd / Registered in England & Wales No: 07433086
Registered Office: 36 Brocks Mead, Great Easton, Dunmow, Essex CM6 2HR
Vat Reg No: 104 1492 55
Office Hours
Elbow Creative’s office hours are 9am - 5.30pm, Monday to Friday. Please note that staff do not have business mobile telephones.
1. General
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.
2. Confidentiality
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 is the expert in its field and on it products. Accordingly the Client is responsible for providing information we need on such matters, and Elbow Creative should be able to rely on this information and 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.
7. Quality
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.
(b) Printing
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.
8. Delivery
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.
9. Implementation
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.
10. Termination
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.
Elbow reserve the right to terminate a project in the event of no communication from a client for more than 30 days.
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.
11. Title
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. This does not extend to electronic artwork files used in the development of the final design (Work).
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.
(e) Software
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.
(g) Originality
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.
15. Promotion
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.
(a) Photography
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.
16. Jurisdiction
This contract is made in England and shall be construed in all respect in accordance with the laws of England.
Get in touch ...
t: 020 8123 9566
e: [email protected]
Elbow Creative Ltd // Unit B3, Sutherland House, Sutherland Road, London E176BU
GDPR: DATA PRIVACY NOTICE FOR CLIENTS AND SUPPLIERS
Introduction
This privacy policy explains how Elbow Creative Ltd uses any personal information we collect about you when you use our website or contact us by phone, email or other correspondence. This policy outlines what information we collect, how it is stored and what it is used for. It is our policy not to use any personal information for any purpose other than which it is intended to conduct our business and provide you with information on our courses and services.
This policy and the provisions of the General Data Protection Regulations (GDPR) are designed to protect individual’s information. Business contacts and information are considered to be in the public domain and therefore not covered. The GDPR is in force from 25th May 2018.
Elbow Creative Ltd ("We") are committed to protecting and respecting your privacy.
This policy (together with our terms of use http://www.elbow-creative.co.uk/terms-conditions/ and any other documents referred to on it) sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us. Please read the following carefully to understand our views and practices regarding your personal data and how we will treat it.
The rules on processing of personal data are set out in the General Data Protection Regulation (the “GDPR”).
1. Definitions
Data controller - A controller determines the purposes and means of processing personal data.
Data processor - A processor is responsible for processing personal data on behalf of a controller.
Data subject – Natural person
Categories of data: Personal data and special categories of personal data
Personal data - The GDPR applies to ‘personal data’ meaning any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier (as explained in Article 6 of GDPR). For example name, passport number, home address or private email address. Online identifiers include IP addresses and cookies.
Special categories personal data - The GDPR refers to sensitive personal data as ‘special categories of personal data’ (as explained in Article 9 of GDPR). The special categories specifically include genetic data, and biometric data where processed to uniquely identify an individual. Other examples include racial and ethnic origin, sexual orientation, health data, trade union membership, political opinions, religious or philosophical beliefs.
Processing - means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Third party - means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data.
2. Who are we?
Elbow Creative Ltd is the data controller. This means we decide how your personal data is processed and for what purposes. Our contact details are: tel: 020 8123 9566 or email on ‘[email protected]’ For all data matters contact Elbow Creative and our nominated Data Protection Controller will respond.
3. The purpose(s) of processing your personal data
We use your personal data for the following purposes:
a. To liaise on a day to day basis with our client point of contacts
b. To enable us to adminster account matters in relation to ongoing work contracts
c. To enable us to provide graphic design services to our clients
d. To respond to service requests
e. To communicate with our clients on news related matters as they should arise.
f. Electronic delivery of emails, newsletters and any other internally generated information relating to the events and workshops that we offer.
g. To administer our accounts and billing systems.
h. The supply of any services you request. This may include passing details to third party suppliers with whom we have negotiated or placed an order on your behalf. That supplier may further share those details with third parties, etc.
i. To meet our legal and regulatory obligations
j.Website usage information is collected using cookies.
With the exception of any external organisations listed below we will not sell or share any personally identifiable information collected by us to any third party:
a. HM Revenue & Customs (as required by Law)
b. Xero
We would like to send you information about products and services that may be of interest to you. You have the right at any time to stop us from contacting. If you no longer wish to be contacted for marketing purposes, please email us: [email protected]
We will retain all given information on the following basis:
All information required to administer our accounts system, including bank account details, are stored online with NATWEST Banking and XERO who have their own compliance processes to ensure the security of peronsal data.
We do not collect personal information to use for in email marketing solutions such as MailChimp. If we do so we will seek permissions prior to employing such systems.
All other contact details and information will be retained indefinitely either on a local hard drive or in paper form stored in locked filing cabinets or as such time as a client ceases to retain our services or a contact wishes to longer receive any contact from Elbow Creative Ltd.
Cookies are text files placed on your computer to collect standard internet log information and visitor behaviour information. This information is used to track visitor use to the website and to compile statistical reports on website activity.
4. The categories of personal data concerned
With reference to the categories of personal data described in the definitions section, we process the following categories of your data; Personal data; Client contact names, business telephone numbers and emails only
5. What is our legal basis for processing your personal data?
Our lawful basis for processing your general personal data:
a. We may enter your details into our third party accounting service provided by Xero and our nominated accountant.
b. We hold information from suppliers in the interest of our clients to be able to provide services to them. We may also pass client information to a supplier in the discharge of our contracted obligation which we will notify to the client.
6. Sharing your personal data
a. Your personal data will be treated as strictly confidential, and will be shared only with third parties responsbile to enable the function of our business such as our accountant.
b. We keep your personal data for no longer than reasonably necessary in order to keep historial project information and/or related costs or matters of dispute arising from projects we have delivered. Once we cease a client/supplier relationship we will destroy all personal information after a period of 12 months. We may retain minimal information for historial accounting purposes.
7. Providing us with your personal data
We require your personal data as it is a requirement necessary to enter into a contract and allow us to perform our duties under reasonable client/supplier terms.
8. Your rights and your personal data
Unless subject to an exemption under the GDPR, you have the following rights with respect to your personal data:
- The right to request a copy of the personal data which we hold about you
- The right to request that we correct any personal data if it is found to be inaccurate or out of date;
- The right to request your personal data is erased where it is no longer necessary to retain such data;
- The right to request that we provide you with your personal data and where possible, to transmit that data directly to another data controller, (known as the right to data portability), (where applicable i.e. where the processing is based on consent or is necessary for the performance of a contract with the data subject and where the data controller processes the data by automated means);
- The right, where there is a dispute in relation to the accuracy or processing of your personal data, to request a restriction is placed on further processing;
- The right to object to the processing of personal data, (where applicable i.e. where processing is based on legitimate interests (or the performance of a task in the public interest/exercise of official authority); direct marketing and processing for the purposes of scientific/historical research and statistics).
We do not transfer personal data outside the EEA.
9. Automated Decision Making
We do not use any form of automated decision making via a third party or software.
10. Further processing
If we wish to use your personal data for a new purpose, not covered by this Data Privacy Notice, then we will provide you with a new notice explaining this new use prior to commencing the processing and setting out the relevant purposes and processing conditions.
11. Changes to our privacy policy
Any changes we may make to our privacy policy in the future will be posted on our website and, where appropriate, notified to you by e-mail. Please check back frequently to see any updates or changes to our privacy policy.
12. How to make a complaint
To exercise all relevant rights, queries or complaints please in the first instance contact our Data Protection Officer via email at ‘[email protected]
If this does not resolve your complaint to your satisfaction, you have the right to lodge a complaint with the Information Commissioners Office on 03031231113 or via email https://ico.org.uk/global/contact-us/email/ or at the Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF, England.
© Elbow Creative 2018
London / Essex
+44 20 8123 9566
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