TERMS AND CONDITIONS
1. Cooperation between the parties to the contract
1.1 ACS shall receive from the client all the documents, information, and data necessary to deliver the agreed services in the form as requested by ACS. As far as ACS creates or adapts designs or provides design services for the client under this Contract, the client shall provide to ACS a complete requirements specification as well as all the required test data in the form that ACS requests. The user requirements specification shall become binding as soon as ACS consents to it in writing. Upon request, ACS shall provide support to the client in drawing up the user requirements specification against separate compensation.
1.2 The client shall use its best efforts to support ACS in delivering the services and take all the measures required to attain the project goals which do not expressly fall under the obligations of ACS. The client shall keep additional copies of all data handed over to ACS on its own premises to ensure that restoration will be possible in case the data is damaged or lost. Support as well as services and products to be supplied by the client shall be provided at no cost to ACS.
1.3 Each party shall name to the other party an appropriately qualified employee who shall be capable of providing relevant information required for the Contract to be executed and of either taking or initiating any necessary decisions.
2. Service delivery
2.1 The schedule and the detailed services shall be defined in the Contract. Unless otherwise agreed upon, ACS shall deliver the services on its own premises. As far as ACS performs activities on the client’s premises, the client shall provide adequately equipped workplace(s).
2.2 In delivering the services, ACS shall have the right to use third parties or other partnering companies. Unless otherwise agreed upon, the delivery of training services by ACS shall not be included in the Contract.
3. Changes in any project
The Client must assume that all additions, alterations, changes in content, layout or process changes requested, will alter the time and cost. The Client shall offer ACS the first opportunity to make any changes. All requests for changes shall be in writing. The client has a total of 3(three) opportunities to request for changes in a project.
Atlantis Creative Studios retains all rights of ownership of all pre-final production work samples, sent to client for approval. All samples sent to a client via any media shall be for approval and disapproval purpose only. The client shall not reproduce, distribute, edit or use these samples without documented consent from ACS. The client is obligated to respond to samples soonest possible. If the client does not respond within 48 (forty eight) hours after receiving a sample of work, it will be assumed as an approval by the client to continue with the project as it is.
5.1 In the event of cancellation of an assignment, ownership of all copyrights and the original artwork shall be retained by Atlantis Creative Studios, unless the client requests for the work as it is. Cancellation fee for work completed, and expenses already incurred, shall be paid by the Client.
5.2 Cancellation fee is based on the hours submitted, if the project is on an hourly basis or a percentage based on the time estimate for the entire job. A 100% cancellation fee is due once the project has been finished, whether delivered to the client or not. If the project is on an hourly basis and the project is canceled by the client, the client agrees to pay no less than 100% of the hours already billed for the project at the time of cancellation. Cancellation shall be in writing.
6. Changes in deadlines and scope of services
6.1 The scheduled deadlines agreed upon in the Contract shall be extended appropriately if ACS is prevented from delivering the agreed services for reasons for which ACS is not responsible. Reasons for which ACS is not responsible shall, without limitation, include any delays or substandard products/services/support supplied by the client, also mobilization of troops, war, insurrection, natural disasters, changes in laws after the conclusion of the Contract, strikes or lockouts (“force majeure”). Any additional expenses arising to ACS from such events shall be borne by the client.
6.2 Changes in the scope of services in terms of quality and/or quantity (change requests), especially changes in the client requirements specification or the accepted specifications, shall be subject to written agreement, with the related deadlines and compensations having to be adjusted accordingly. Unless otherwise agreed upon, ACS shall provide extra services only against applicable payment to be agreed in advance in writing.
7. Remuneration and retention of title
7.1 The Client shall reimburse Atlantis Creative Studios for all expenses arising from this assignment, including the payment of any sales taxes due on this assignments, and shall advance Atlantis Creative Studios for payment of said expenses, including but not limited to Stock Photography, Artwork, Voice Artists and or any other material needed for the project. Duplication costs are not included at the time the quotation is prepared, unless the client request’s.
7.2 Unless otherwise agreed upon, ACS shall calculate the amounts payable in compensation on the basis of hourly rates specified in the Contract. The amounts payable shall be charged at the end of each month on the basis of the reports on services delivered submitted by ACS.
As far as ACS provides services at fixed prices (fixed or all-in prices), ACS shall be entitled to request an advance payment of at least fifty percent (50%) of the fixed price (fixed or all-in price); and payment dates shall be agreed in the Contract dependent on the progress of service delivery (“milestones”). Irrespective of the pricing model, ACS’ prices shall be always considered net prices exclusive of VAT or any other applicable taxes, which shall be charged separately.
7.3 Service delivery on site at the client’s shall be charged at a half day’s rate at least. The markups generally applicable at ACS shall be charged for services delivered outside normal working hours (Sunday to Thursday, 10.00 a.m. to 7.00 p.m.); on Fridays, Saturdays or public holidays as well as on days which are generally non-working days at ACS.
7.4 Payment shall be due within ten (10) days from the date of invoice without deductions unless there is a documented payment agreement. If the client defaults in payment, ACS shall be entitled to claim interest on arrears as legally applicable. Should the client’s default in payment exceed fourteen (14) days, ACS shall have the right to cease the delivery of all services without the need of so notifying the client in advance and to make the compensation for all services already provided immediately due and payable notwithstanding any dates fixed for payment. For Web Design services, ACS shall have the right to take down the website without the need of notifying the client should they default in payment.
7.5 The grant in full, of any license right of copyright including login details for website is conditioned on receipt of full payment. Client is to pay for all services and products provided by ACS whether they use the products or not, since the work has already been done as requested.
7.6 Travel time of ACS employees shall be considered working time. In addition, the client shall reimburse travel costs at the same rate as they occur. In the case of travel by car, the legally applicable mileage-based flat rate shall be charged. In the case of travel by airplane, the price for the ticket shall be charged. Other ancillary expenses, such as telephone costs, shall be charged as incurred.
7.7 The client shall not have the right to withhold or offset payment on the grounds of any warranty claims or other claims unless approved of in writing by ACS or asserted by court order. Until the compensation due to ACS has been paid up in full, plus interest and cost,
7.8 ACS shall reserve the title to all goods delivered by ACS. Unless otherwise agreed upon, the client shall not have the right to use the products and services delivered by ACS until having fully paid up all amounts due to ACS.
7.9 All fees, taxes and duties arising under this Contract, such as for instance legal transaction fees, import taxes or withholding taxes, shall be borne by the client. In case ACS is charged with any such fees, taxes or duties, the client shall fully indemnify ACS against any payments thereof.
The fees and expenses shown are minimum estimates only unless an hourly fee has been agreed upon. That fee will be Hourly Fee per hour and Atlantis Creative Studios shall keep the client apprised of a tally of hours within a reasonable period of time. Final fees and expenses shall be shown when invoice is rendered. The fees and expenses shown are minimum estimates only unless the quote and/or invoice is clearly marked Firm Quote, otherwise the stated hourly fee will be payable on all time over that which was quoted with a minimum in 30 minute increments.
All invoices are payable within 30(thirty) days of receipt unless there is a documented payment agreement. A 5% per month service charge is payable on all overdue balances for reissuing each invoiced at 45, 60, 75 and 90 days from the date of original invoice.
10. Acceptance and Warranty
10.1 As far as the design services (shortly called “designs”) are to be created or adapted by ACS, such designs shall be submitted to acceptance procedures by the client immediately after they have been made available for acceptance. If defects are identified during acceptance, ACS shall remove the defects within a reasonable period of time at no cost to the client and then make the designs available for renewed acceptance. If the client fails to perform acceptance procedures for any reason other than the presence of a major defect that significantly impairs the use of the designs, the designs shall be considered accepted 1(one) week after having been made available for acceptance, but in any case as soon as it is being used or passed on by the client. These provisions shall apply mutatis mutandis to documents, such as detailed specifications or client requirements specifications, to be drawn up by ACS under the Contract. After acceptance by the client, such documents shall be regarded as the only basis for service delivery by ACS.
10.2 Defects that occur within a warranty period of 1 month (for game designs- six (6) months) after acceptance of the designs are duly given notice of by the client in writing shall be cleared by ACS within a reasonable period of time at no cost to the client. Client shall submit all documents, information and data necessary for fault clearance purposes as may be requested by ACS.
10.3 As regards design scopes which the client has extended, ACS shall provide warranty up to added extension. In all other respects, warranty for designs modified by the client without the prior consent of ACS shall be excluded, even if a fault occurs in a non-modified part, unless the client proves that there is no causal relationship between the fault and the modifications made by the client.
10.4 The warranty provisions set forth in Section 7 shall apply mutatis mutandis to deliveries and services provided by ACS. However, as far as the delivery of services by ACS includes the delivery of services and products supplied by third parties, the special terms and conditions of warranty of the respective vendor shall prevail.
10.5 Any claims for warranty raised by the client exceeding those mentioned in the present General Terms and Conditions shall be excluded, irrespective on which legal grounds they might be based.
11.1 To the extent permitted by mandatory law, ACS shall in no case be liable for indirect damage, loss of information or data, operating interrupts, loss of earnings and other consequential damages.
11.2 Client agrees, shall not hold ACS agents or employees liable for any incidental or consequential damages that arise from ACS failure to perform any aspect of the project in a timely manner, if such failure was caused intentionally, unintentionally or negligent acts or omissions of Client, any client representatives or employees, a third party or factors beyond the control of Atlantis Creative Studios e.g.
Breakdowns, Power Blackouts, Riots etc. The client shall be updated incase such unforeseeable circumstances occur.
11.3 The Client shall indemnify ACS against all claims and expenses, including attorney’s fees, due to the uses for which no release was requested in writing or for uses that exceed authority granted by a release.
11.4 Any warranty and damage claims from the client other than those expressly mentioned in these General Terms and Conditions, irrespective of the legal grounds they might be based on, in particular those due to loss or damage resulting from consulting, support in the implementation of design products, or software product defects, shall be excluded unless there is an obligatory liability, as for instance for damage caused intentionally or by gross negligence proved by the client.
12. Dispute Resolution
12.1 All disputes arising out from a Contract, including or related to it, including those arising from or concerning its interpretation, invalidity, performance or termination, as well as the disputes for filling gaps in a Contract or its adaptation to newly established facts, shall be settled by an amicable effort of both parties.
12.2 Any disputes in excess of maximum limit for small-claims court arising out of this Agreement shall be submitted to binding arbitration before a mutually agreed-upon arbitrator pursuant to the rules of the Kenyan Law. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The client shall pay all arbitration and court cost, reasonable attorney’s fees, and legal interest on any award of judgment in favor of ACS. All actions, whether brought by client or by ACS will be filed in ACS’s county of business.
13. Term of Contract
13.1 ACS shall deliver the consulting and design services either for the duration of the project agreed upon with the client or for the duration agreed upon in the Contract. As far as services under this Contract are provided on an ongoing basis, each of the parties to the Contract shall have the right to terminate the Contract in writing by registered mail giving 1-month‘s notice. Any designs not yet accepted at the time the Contract is terminated shall in any case be completed and compensated for under the terms and conditions of the Contract.
13.2 In all other respects the parties to the Contract shall have the right to prematurely terminate, in writing by registered mail, a Contract concluded for an indefinite period of time for good cause.
Good cause shall exist, in particular, when the other party’s property and assets are subjected to insolvency proceedings or when the opening of such proceedings is rejected due to a lack of assets, or when the other party to the Contract violates material obligations under the Contract, in particular, payment obligations, so that the terminating party can no longer be reasonably expected to continue the Contract.
13.3 Each page of this contract and other related contracts must have ACS’s official stamp and signature from an authorized representative of ACS for it to be legally binding.
14. Concluding clauses
14.1 Collateral agreements and alterations to the Contract need be made in writing in order to be effective.
14.2 ACS shall have the right to transfer the Contract with all its rights and obligations to third parties. Client must not transfer rights and obligations under the Contract without ACS’s prior written consent.
14.3 If any of the provisions of the Contract is or becomes invalid, this shall not serve to invalidate the remaining provisions thereof. In such cases, the parties shall make every effort to find provisions whose business result would match those of the invalid provision as closely as possible.
15. Changes to Terms and Conditions
WEB DESIGN TERMS AND CONDITIONS
Please read these Web design and development Terms carefully, as they set out our and your legal rights and obligations in relation to our web design and development services.
You should print a copy of these Terms for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our Website in future.
These Terms are available in the English language only.
If you have any questions or complaints about these Terms or our Services, please contact Atlantis Creative Studios by email to [email protected]
1. Definitions and interpretation
1.1. In this Agreement:
“Acceptance Criteria” has the meaning given to it in Clause [5.2];
“Acceptance Period” means the period of 5 Business Days beginning on the date of actual delivery of the Website to the Customer;
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
“Agreement” means this agreement and any amendments to it from time to time;
“Business Day” means any week day, other than Saturday or Sunday or a bank or public holiday in Kenya;
“Business Hours” means between 08:00 and 17:00 (Kenyan time) on a Business Day;
“Fees” means the amounts payable by the Customer to Atlantis under or in relation to this Agreement;
“Confidential Information” means:
a) any information supplied by one party to the other party (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
b) the terms (but not the existence) of this Agreement;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer Works” means the works and materials provided to Atlantis by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;
“Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of:
a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors;
b) an incompatibility between the Website and any other application, program or software (other than the Customer Works and the Third Party Works).
“Delivery Date” means the date for delivery of the Website;
“Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:
a) the Customer Works; and
b) the Third Party Works;
“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Services” has the meaning given to it in Clause [3.1];
“Software Elements” means the Website excluding:
a) the Design Elements;
b) the Customer Works; and
c) the Third Party Works;
“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);
“Term” means the term of this Agreement;
“Unlawful Content” has the meaning given to it in Clause [7.1];
“Website” means the website or web application to be developed by Atlantis for the Customer under this Agreement; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilized in this Agreement will not be limited by any specific examples or instances utilized in relation to such a concept or category.
This Agreement will come into force on