Every design project is different and the best outcomes result from trust between the client and the designer. The most effective way to assure trust meets both client and designer expectations in any engagement, is to clarify the relationship with a written agreement. The following lays out Twinbrush’s terms and conditions. These are implemented unless otherwise specifically stated via email or written correspondence.
Please read these carefully. If you have any questions or queries regarding these terms, please get in touch.
1. Definitions
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Terms and Conditions document, the Proposal or emailed quotation, together with any other Supplements or documentation designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation/creation of agreed Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.K. Copyright Law.
1.4 Deliverables means the services and work product specified in the Proposal or emailed quotation to be delivered by Twinbrush to Client, in the format specified in the Proposal or emailed quoatation.
1.5 Twinbrush Tools means all design tools developed and/or utilized by Twinbrush in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, hardware, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Art means all creative content developed or created by Twinbrush, or commissioned by Twinbrush, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, CGI, 3D Visualisations, modifications to Client Content, and Twinbrush’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by Twinbrush and accepted by Client.
1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, preparation models/images, physical or sketched prototypes or other alternate or preliminary designs and documents developed by Twinbrush and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal, Design Brief or emailed quotation.
1.10 Services means all services and the work product to be provided to Client by Twinbrush as described and otherwise further defined in the Proposal, Design Brief or emailed quotation.
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustrations.
1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
1.13 Working files means files used to create Client’s Final Art. Working files are created by such programs as Adobe, Indesign, Illustrator, Dreamweaver and Photoshop. Working files in the case of Indesign (when ‘packaged’) consist of a primary file, a related images folder and a fonts folder. Working files can also be defined as ‘layered files’ or ‘editable files’, as well as preliminary sketches and illustrations and are different to Final Art.
2. Proposals, design briefs and quotations
The terms of the Proposal, Design Brief or emailed quotation shall be effective for 10 working days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, Design Brief or emailed quote, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. Fees, charges and payments
3.1 Fees. In consideration of the Services to be performed by Twinbrush, Client shall pay to Twinbrush fees in the amounts and according to the payment schedule set forth in the Proposal or emailed quotation, and all applicable value added or other taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. Client shall pay Twinbrush’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Twinbrush’s standard markup of twenty percent (20%), and (b) travel expenses including transportation, meals, and lodging, incurred by Twinbrush with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes Twinbrush’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal or emailed quotation.
3.4 Invoices and Payments. All invoices are payable within thirty (30) days of invoice date. A weekly service charge of 10 percent is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Twinbrush reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes. Final Art will only be delivered to Client by Twinbrush on clearance of final agreed invoice payment; not on date of payment sent.
3.5 Overtime/Rush Charges. Estimates and quotations are based on normal and reasonable time schedules, and may have to be revised to take into consideration any “rush”requests requiring overtime or weekends. Knowledge of Client’s deadline is essential to provide an accurate estimate of costs. Twinbrush overtime incurred at the Client’s request will be billed at a rate of 1.5 times the standard hourly rate. The Client will also be responsible for additional charges imposed by outside suppliers, such as pre-press or printers, to meet “rush” requests. To the extent possible, Twinbrush will advise Client of all situations that require overtime and/or rush charges, and the amount of additional compensation that will be charged to meet such requirements. Rush or overtime fees may be incurred if the Client does not meet approval, feedback or content deadlines which have been established to meet the desired schedule.
4. Changes and amendments
4.1 General Changes. Unless otherwise provided in the Proposal or emailed quotation, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Twinbrush’s standard hourly rate (please check for latest rate). Such charges shall be in addition to all other amounts payable under the Proposal or emailed quote, despite any maximum budget, contract price or final price identified therein. Twinbrush may extend or modify any delivery schedule or deadlines in the Proposal or emailed quote and Deliverables as may be required by such Changes. Each agreed fee will include a number of rounds of changes permitted and these will be detailed in either the emailed quote, or the confirmation of instruction to proceed email. Any changes beyond this will be chargeable at Twinbrush’s standard hourly rate.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of thirty percent (30%) of the time required to produce the Deliverables, and or the value or scope of the Services, Twinbrush shall be entitled to submit a new and separate Proposal or emailed quotation to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal or emailed quotation and, if required, any additional retainer fees are received by Twinbrush.
4.3 Timing. Twinbrush will prioritize performance of the Services as may be necessary or as identified in the Proposal, Design Brief or emailed quotation, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal, Design Brief or emailed quotation. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Twinbrush. Twinbrush shall be entitled to request written clarification of any concern, objection or correction. All feedback and comments should be received within five (5) working days of receipt of the final art, otherwise approval will be assumed and the project invoiced as complete. Twinbrush reserves the right to use artistic licence if Client instructions are vague and all reasonable attempts to contact the Client result in no further communication. Such work will not be subject to abortion. Client acknowledges and agrees that Twinbrush’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal or emailed quotation and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Twinbrush’s obligations under this Agreement. Any impact to deadlines or release date as a result of these changes will be solely the Client’s responsibility. Twinbrush hods no responsibility over the failure of any third party if failure to meet deadlines arise, due to, but not limited to, third party time management or production schedule, equipment malfunction or repair, shipping delays, or illness.
4.4 Testing and Acceptance. Twinbrush will exercise commercially reasonable efforts to test Deliverables, (requiring testing) and to make all necessary corrections prior to providing Deliverables to Client. Client shall notify Twinbrush, in writing, within five (5) business days of receipt of each Deliverable, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, Design Brief or emailed quotation, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Twinbrush will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted. On web/online/app based projects Twinbrush accepts no responsibility for any 3rd party servers, hosting, plugins or applications used and any stability, security or other problems that arise as a result of usage. All websites are developed to be compatible with the browsers and to the specification mentioned in the Proposal, Design Brief or emailed quotation. No responsibility will be taken for problems occurring with older/out-dated browsers or future upgrades which may result in parts of the site not functioning as per the original specification.
5. Client responsibilities
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than Twinbrush; (b) ensure all comments and feedback have been seen and approved by senior management or key decision makers before being forwarded to Twinbrush and work on any changes commences; (c) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal, or emailed quote; (d) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors; and (e) proofing of final colours and tones for projects involving a print run. Client will have final responsibility for checking and approving colour information between files supplied and final printed material. All responsibilities for the technical accuracy of colours, tones, darks, lights, 3D models or printed material lay with the client.
6. Accreditation, promotion and advertising
All projects may bear accreditation in Twinbrush’s name in the form, size and location as incorporated by Twinbrush in the Deliverables, or as otherwise directed by Twinbrush. Twinbrush retains the right to reproduce, publish and display the Deliverables in Twinbrush’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the others reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
7. Confidential information
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal, Design Brief or emailed quote except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. Relationship of the parties
8.1 Independent Contractor. Twinbrush is an independent contractor, not an employee of Client or any company affiliated with Client. Twinbrush shall provide the Services under the general direction of Client, but Twinbrush shall determine, in Twinbrush’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Twinbrush and the work product or Deliverables prepared by Twinbrush shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Twinbrush Agents. Twinbrush shall be permitted to engage and/or use third parties or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Twinbrush shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Twinbrush, employee or Design Agent of Twinbrush, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Twinbrush shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Twinbrush, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 Non Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Twinbrush, and Twinbrush shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Twinbrush.
9. Warranties and representations
9.1 By Client. Client represents, warrants and covenants to Twinbrush that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Twinbrush (a) Twinbrush hereby represents, warrants and covenants to Client that Twinbrush will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) Twinbrush further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Twinbrush and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Twinbrush, Twinbrush shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Twinbrush to grant the intellectual property rights provided in this Agreement, (iii) to the best of Twinbrush’s knowledge, the Final Art provided by Twinbrush and Twinbrush’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties and (iv) Twinbrush makes no warranties or representations of any kind that any web hosting undertaken will be uninterrupted, error-free or that the website or the server that hosts the website are free from viruses or other forms of harmful computer code. In no event shall Twinbrush, its employees or agents be liable for any direct, indirect or consequential damages resulting from the hosting of websites on our, or third party servers. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or emailed quote or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Twinbrush shall be void. (c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, Twinbrush MAKES NO WARRANTIES WHATSOEVER. Twinbrush EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
10. Indemnification / Liability
10.1 By Client. Client agrees to indemnify, save and hold harmless Twinbrush from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Twinbrush shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defence and all related settlement negotiations; and (b) Twinbrush provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Twinbrush in providing such assistance.
10.2 By Twinbrush. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Twinbrush agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Twinbrush’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Twinbrush in writing of the claim; (b) Twinbrush shall have sole control of the defence and all related settlement negotiations; and (c) Client shall provide Twinbrush with the assistance, information and authority necessary to perform Twinbrush’s obligations under this section. Notwithstanding the foregoing, Twinbrush shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Twinbrush.
10.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF Twinbrush ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF Twinbrush, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“Twinbrush PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF Twinbrush. IN NO EVENT SHALL Twinbrush BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY Twinbrush, EVEN IF Twinbrush HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. Term and termination
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party: (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
11.3 In the event of termination, Twinbrush shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Twinbrush or Twinbrush’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Twinbrush grants to Client such right and title as provided for in Section 13 of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
11.6 In the event the Client cancels this Agreement prior to the completion of the Project, within five (5) business days of such cancellation, Client shall pay (a) Twinbrush for all work performed by Rogue Element up to the date of termination, (b) for all contracted for Outside Expenses and commitments that have been incurred and cannot be cancelled and (c) a cancellation fee equal to 30% of the remaining fees that would otherwise have been paid to Twinbrush if the Agreement were to have been fully performed.
12. I.P. and rights to deliverables other than final required artwork(s)
12.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Twinbrush a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Twinbrush’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
12.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Twinbrush shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Twinbrush shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Twinbrush from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
12.3 Preliminary Works. Twinbrush retains all rights in and to all Preliminary Works, Prototypes, Drafts, Unchosen or Abandoned Concepts and any 3D models created as part of the project. Client shall return all Preliminary Works to Twinbrush within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Twinbrush.
12.4 Original Artwork. Twinbrush retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Twinbrush within thirty (30) days of completion of the Services.
12.5 Design / Working or Construction Files and Unused Concept Files – Working files, construction files and unused concepts include, (but are not limited to) Maxon Cinema 4D, 3DSMax, Unity, Adobe Indesign, Adobe Illustrator, Adobe Photoshop – remain the property of Twinbrush. A release fee is required if Client wishes to have working files or any parts thereof. This is determined on a case by case basis. In the event of Termination, prior to the completion of the Services, the Client, upon proper payment of all outstanding Fee(s) for work undertaken, may request the release of the collected working files.
12.6 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Twinbrush assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Twinbrush for use by Client as a Trademark. Twinbrush shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Twinbrush from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
12.7 Designer Tools. All Designer Tools are and shall remain the exclusive property of Twinbrush. Twinbrush hereby grants to Client a non-exclusive, non-transferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify, sell or hire any Designer Tools comprising any software or technology of Twinbrush.
12.8 Usage and Rights. Twinbrush hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal, Design Brief or emailed quote and in accordance with the terms and conditions of this Agreement. Any sketches, prep-work, layouts and preliminary photography and illustrations created in association with the project will remain the property of Twinbrush. Twinbrush retains the rights to any files or design work, such as those created in, but not limited to, Adobe Photoshop, Adobe Illustrator and Adobe Indesign. Clients may request these files, but they are available at an additional cost and at the discretion of Twinbrush.
13. General
13.1 Modification / Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Twinbrush’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
13.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
13.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
13.4 Force Majeure. Twinbrush shall not be deemed in breach of this Agreement if Twinbrush is unable to complete the Services or any portion thereof by reason of fire, earthquake, terrorism, labour dispute, act of God or public enemy, death, illness or incapacity of key members of Twinbrush or any local, national or international law, governmental order or regulation or any other event beyond Twinbrush’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Twinbrush shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
13.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United Kingdom without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through any forum mutually agreed to by the parties.
13.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
13.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
13.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal, Design Brief or emailed quotation and any other Agreement documents, the terms of the Proposal, Design Brief or emailed quotation shall control. This Agreement comprises of this General Terms and Conditions document, the Proposal, Design Brief or emailed quotation.
