The following terms and conditions apply to all CGI and graphic design services, (the Services) provided by Upspark Digital Limited (Upspark Digital) to the Client, in conjunction with any relevant quotation or invoice provided to the Client by Upspark Digital (Terms), unless otherwise agreed in writing. Acceptance of a quote or invoice, through purchase and/or use of the Services shall be considered acceptance of the Terms.
- Charges
Charges for the Services are defined in the project quotation that the Client receives from Upspark Digital via email. Quotations/Estimates are valid for a period of 30 days. Upspark Digital reserves the right to alter a quotation or decline to provide the relevant Services.
Unless agreed otherwise with the Client, all design services require advance payment of the total agreed project cost. For example, if the total project cost is £4000 then the amount that would be immediately due on contract acceptance would be £4000.
The Client agrees to reimburse Upspark Digital for any additional expenses necessary for the completion of the work. Expenses may include (but are not limited to) time taken to carry out additional design work that falls outside of the work agreed on in the original invoice or is in addition to the two rounds of revisions allowed, or other resources needed to produce additional work.
All Charges do contain VAT. Upspark Digital Limited is registered for VAT.
- Client Review
Upspark Digital will provide the Client with an opportunity to review the appearance and content of works being carried out during the design phase. This is called the ‘Draft stage’. The Client will have two opportunities to ask for revisions made to each image during the Draft stage. After two sets of revisions, Upspark Digital reserves the right to refuse any further revisions or charge additional fees for these additional revisions, or to the enter final rendering process (as set out below) without the consent of the Client .
Once each image has been approved by the Client (or after two sets of revisions), the image will enter the final render stage. At this point, no changes can be made to the image unless agreed to by Upspark Digital. Uspark Digital reserves the right to charge an additional fee for any changes agreed at this stage.
You understand it is your responsibility to highlight all changes you require at the first draft within 24 hours of receiving them. Subsequent drafts are only for confirming that we have completed the required changes highlighted at the first draft stage, unless otherwise agreed.
- Turnaround Time and Content Control
Upspark Digital will supply the Client’s images by the date specified in the project proposal, or at the date agreed with Client upon Upspark Digital receiving payment, unless a delay is specifically requested by the Client and agreed by Upspark Digital. Upspark Digital also reserves the right to change the completion date to a reasonable future date should there be a reasonable reason for doing so.
In return, the Client agrees to provide Upspark Digital promptly with all necessary co-operation, information, materials and data, access to staff and timely decision-making which may be reasonably required by Upspark Digital for the performance of the Services. This shall include the Client delegating a single individual as a primary contact to aid Upspark Digital with progressing the commission in a satisfactory and expedient manner.
During or the before the project begins, Upspark Digital will require the Client to provide detailed and high resolution images of the fireplaces to be modelled, detailed dimensions and/or a line drawing with all measurements, and room reference images, along with any relevant background information.
- Failure to communicate or provide required content
Upspark Digital is a small business, and to remain efficient we must ensure that work we have programmed is carried out at the scheduled time. On occasions we may have to reject offers for other work and enquiries to ensure that your work is completed at the time arranged.
This is why we ask that the Client provides all the required information in advance. You agree to submit all reference images and relevant project files at least one week before the project is due to begin.
Unless otherwise agreed, you agree to be available via email for the duration of the project, including answering all communications within 24 hours
On any occasion where progress cannot be made with the Client’s project because we have not been given the required information in the agreed time frame, and we are delayed as result, we reserve the right to impose a surcharge of up to £500 per day, up to a total of 7 days, wherein if content is not provided, the project will be put on hold indefinitely and all monies includes the penalty fees outlined above will be immediately due. Any fees already paid by the Client to Upspark Digital will not be reimbursed.
- Design Brief
Typically, before a project begins you will be sent a design brief that details what we will be designing for you and the outputs of the project.
It is important that you read this document and agree with what has been proposed, as this document forms the basis of agreement for what will ultimately be produced.
We will always look to make sure you are delighted with the outcome and therefore are happy to deviate from the original brief or plan. However, you understand that this is at our sole discretion and if work has begun or has to be scrapped, and/or time is lost as a result then we reserve the right to charge an additional fee to cover this loss, and/or rearrange the project schedule so other programmed work is not affected by these changes to the plan.
6. Termination
Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice. Email or telephone requests for termination of services will not be honoured until and unless also confirmed in writing. The Client will be invoiced for work completed (including any expenses incurred), to the date of first notice of cancellation for payment in full within thirty (30) days.
7. Indemnity
All Upspark Digital services may be used for lawful purposes only. The Client agrees to indemnify and hold harmless Upspark Digital against all damages, losses and expenses arising as a result of any and all actions or claims resulting from the Client’s use of Upspark Digital’s service.
8. Intellectual property
Background IP means any IP Rights, other than Foreground IP, that is used in connection with these Terms.
Foreground IP means any IP Rights that arise or are obtained or developed by, or by a contractor on behalf of, either party in respect of the services and deliverables under or in connection with these Terms.
IP Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
All Background IP, including but not limited to any IP Rights in data, files and graphical elements provided to Upspark Digital by the Client, is and shall remain the exclusive property of the party owning it (or, where applicable, the third party from whom its right to use the Background IP has derived).
The Client hereby grants to Upspark Digital a non-exclusive licence to publish and use such material, which may be sub-licensed to any contractor acting on behalf of Upspark Digital. The Client must obtain permission and rights to use any information or files that are copyrighted by a third party. The Client is further responsible for granting Upspark Digital permission and rights for use of the same. A contract for Services and/or placement shall be regarded as a guarantee by the Client to Upspark Digital that all such permissions and authorities have been obtained. Evidence of permissions and authorities may be requested. The Client shall indemnify and hold harmless Upspark Digital against all damages, losses and expenses arising as a result of any and all actions or claims that any materials provided to Upspark Digital by or on behalf of the Client infringe the IP Rights of a third party.
All Foreground IP shall vest in and be owned absolutely by the party creating or developing it. Upspark Digital hereby grants the Client a non-exclusive licence of such Foreground IP for the purpose of promoting their products. This will cease at the termination of the contract, unless otherwise agreed by both the Client and Upspark Digital.
All source files including modelling files created in such graphic software as Autodesk will remain the sole property of Upspark Digital.
The Client acknowledges that all images created by Upspark Digital remain the intellectual property of Upspark Digital until such time full payment is made and the project is complete. The Client also acknowledges that any drafts images created during the project remain the exclusive property of Upspark Digital.
The Client also agrees that Upspark Digital can use any images it creates for the Client for the purposes of marketing Upspark Digital.
9. Confidentiality
Each party (the Receiving Party) shall use its reasonable endeavours to keep confidential all information and documentation disclosed by the other party (the Disclosing Party), before or after the date of these Terms, to the Receiving Party or of which the Receiving Party becomes aware which in each case relates to any software, operations, products, processes, dealings, trade secrets or the business of the Disclosing Party (including without limitation all associated software, specifications, designs and graphics) or which is identified by the Disclosing Party as confidential (the Confidential Information) and will not use any Confidential Information for any purpose other than the performance of its obligations under these Terms. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party. This clause shall survive the termination of these Terms for whatever cause.
During the term of these Terms the Receiving Party may disclose the Confidential Information to its employees and sub-contractors (any such person being referred to as the Recipient) to the extent that it is reasonably necessary for the purposes of these Terms. The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under these Terms as if the Recipient was a party to these Terms.
The obligations in this clause 10 shall not apply to any Confidential Information which is:
- at the date of these Terms already in, or at any time after the date of these Terms comes into, the public domain other than through breach of these Terms by the Receiving Party or any Recipient;
- furnished to the Receiving Party or any Recipient without restriction by a third party having a bona fide right to do so; or
- required to be disclosed by the Receiving Party by law or regulatory requirements, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.
All tangible forms of Confidential Information, including, without limitation, all summaries, copies, excerpts of any Confidential Information whether prepared by the Disclosing Party or not, shall be the sole property of the Disclosing Party, and shall be immediately delivered by the Receiving Party to the Disclosing Party upon the Disclosing Party’s request or the termination of these Terms (whichever is earlier). The Receiving Party shall not copy, reproduce, publish or distribute in whole or in part any Confidential Information without the prior written consent of the Disclosing Party.
10. Data protection
For the purposes of this clause, Data Protection Law means the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018, any other data protection and/or privacy laws applicable to Upspark Digital, and any applicable laws replacing, amending, extending, re-enacting or consolidating the above from time to time.
Both parties will comply with all applicable requirements of Data Protection Law. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Law.
The Client will comply with Data Protection Law in connection with the collection, storage and processing of personal data (which shall include you providing all the required fair processing information to, and obtaining all necessary consent from, data subjects), and the exercise and performance of your respective rights and obligations under these terms and conditions, including all instructions given by the Client to Upspark Digital and maintaining all relevant regulatory registrations and notifications as required under Data Protection Law.
The parties acknowledge that if Upspark Digital processes any personal data on the Client’s behalf when performing its obligations under this agreement, the Client is the controller and Upspark Digital is the processor for the purposes of Data Protection Law.
The scope, nature and purpose of processing by Upspark Digital, the duration of the processing and the types of personal data and categories of data subject are set out in our Privacy Notice and the project quotation.
In relation to the processing of personal data under these terms and conditions, Upspark Digital shall:
- process personal data on the Client’s behalf only on and in accordance with the Client’s documented instructions as set out in this clause 11 (as updated from time to time by agreement between the parties), unless required to do so by applicable law; in such a case, we shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
- ensure that persons authorised to process personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- implement and maintain appropriate technical and organisational measures in relation to the processing of personal data; you hereby acknowledge that you are satisfied that our processing operations and technical and organisational measures are suitable for the purposes for which you propose to use our services and engage us to process the personal data;
- promptly refer all data subject requests we receive to you and, taking into account the nature of the processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR;
- assist you in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to us and only in the event that you cannot reasonably be expected to comply with the requirements of Articles 32 to 36 without our information and/or assistance (e.g. you do not possess or otherwise have access to the information requested). We may charge our reasonable costs on a time and materials basis in providing you with such assistance;
- retain personal data in accordance with the retention periods set out in our Privacy Notice;
- make available to you all information necessary to demonstrate compliance with the obligations laid down in Article 28(3) and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you provided: (i) you give us at least 7 days prior notice of an audit or inspection being required; (ii) you give us a reasonable period of time to comply with any information request; (iii) ensuring that all information obtained or generated by you or your auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential; (iv) ensuring that such audit or inspection is undertaken during normal business hours, with minimal disruption to our business; (v) no more than one audit and one information request is permitted per calendar year; and (vi) paying our reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits;
- take reasonable steps to ensure the reliability of anyone who we allow to have access to personal data, ensuring that in each case access is limited to those individuals who need to know or access the relevant personal data, as necessary for the purposes of the Terms; and
- notify the Client without delay (and if possible within 24 hours) upon us or any sub-processor becoming aware of a personal data breach affecting personal data processed on the Client’s behalf, providing the Client with sufficient information to allow you to meet any obligations to report or inform data subjects of the personal data breach.
The Client hereby gives Upspark Digital consent to engage sub-processors for processing of personal data on your behalf. We shall inform the Client before transferring any personal data processed on your behalf to a new sub-processor. Following receipt of such information you shall notify us if you object to the new sub-processor. If you do not object to the sub-processor within seven calendar days of receiving the information, you shall be deemed to have accepted the sub-processor. If you have raised a reasonable objection to the new sub-processor, and the parties have failed to agree on a solution within reasonable time, the Client shall have the right to terminate these Terms with a notice period determined by the Client, without prejudice to any other remedies available under law or contract. During the notice period, we shall not transfer any personal data processed on the Client’s behalf to the sub-processor.
Upspark Digital shall enter into appropriate written agreements with all of its sub-processors on terms substantially similar to these Terms. We shall remain primarily liable to the Client for the performance or non-performance of the sub-processors’ obligations. Upon your request, we are obliged to provide information regarding any sub-processor, including name, address and the processing carried out by the sub-processor.
We will not transfer personal data processed on your behalf to a country outside the United Kingdom which is not recognised by the European Commission to have an adequate level of protection in accordance with Data Protection Law unless the transfer is effected by such legally enforceable mechanism(s) for transfers of personal data as may be permitted under Data Protection Laws from time to time.
11. Standard Media Delivery
Unless otherwise specified in the project quotation, this Agreement assumes that any media will be provided by the Client in electronic format and uploaded to a Google Drive folder which Upspark Digital will provide. It is assumed that such media is in a high resolution format and contains all the necessary information set out in the ‘New Client Project Checklist’ documentation and/or in clause 4 of this document.
12. General
These Terms constitute the entire agreement between the parties and supersedes all previous representations, promises, assurances, warranties, understandings and agreements between them, whether written or oral, relating to their subject matter.
A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
These Terms do not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any part of these Terms.
No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A notice given to a party under or in connection with these Terms shall be in writing and in English, by email or next working day delivery service. Notices to the Client shall be sent to the email address or address last notified to Upspark Digital. Notices to Upspark Digital shall be sent to the email address or address set out at upsparkdigital.com/contact
13. Liability
Nothing in these Terms shall operate to exclude or limit either party’s liability for: (a) death or personal injury caused by its negligence; (b) fraud; or (c) any other liability which cannot be excluded or limited under applicable law.
Upspark Digital shall not be liable under or in connection with these Terms or any collateral contract for any: (a) loss of revenue; (b) loss of actual or anticipated profits; (c) loss of contracts; (d) loss of business; (e) loss of opportunity; (f) loss of goodwill or reputation; (g) loss of, damage to or corruption of data; (h) any indirect or consequential loss; (i) loss or damage caused by any inaccuracy, omission, delay or error, whether as a result of negligence or other cause in the production of the website; or (j) loss or damage to the Client’s artwork/photos supplied for the website, whether as a result of negligence or otherwise.
The entire liability of Upspark Digital to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
14. Severability
In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the original provision.
15. Governing Law and Jurisdiction
These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of Scotland.
Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation