The Agreement incorporating these terms of engagement (“the Terms of Engagement”) is between the Client and Brave Media (“the Parties”). The Terms of Engagement may form part of a legally binding contract, and set out the terms and conditions upon which Brave Media will supply services. Unless explicitly stated otherwise, these Terms of Engagement will apply upon commencement of your Project.
1. Defined Terms:
- "Agreement": Agreement refers to the general agreement between the two Parties for the associated Project, comprising the Terms of Engagement, any associated documentation provided by Brave Media, and the Client’s written acceptance. The Agreement will represent the whole or entire agreement between Brave Media and the Client.
- "Brave Media": Refers to Brave Media Limited (trading as Brave Media), the Party who is providing work for the Client.
- "Client": Refers to the Party receiving work from Brave Media, generally yourself or your company.
- "Fees": Fees refer to the fees for services quoted, as well as additional fees, or any other fees (whether fixed or variable) outlined in the Agreement, and fees to cover unexpected costs. Fixed fees refer to those quoted for a fixed amount of work whereas variable fees refer to fees relating to an unspecified amount of work yet done and are subject to change.
- "Intellectual Property Rights": Intellectual Property Rights refers to patents, trademarks, service marks, trade names, design rights, copyrights, database rights and other Intellectual Property rights whether registered or unregistered including applications for the grant of such right.
- "Network": Refers to the online networks that Brave Media and any Service Providers use in order to connect the Client's online services, including but not limited to websites, platforms, and emails.
- "Project": Refers to the job contracted out by the Client to Brave Media as outlined in the quote, estimate, or any other documentation (whether verbal or expressly written) for which the Agreement is based, and includes both one-off products and ongoing and/or recurring services.
- "Service Provider": Refers to third party service providers such as online hosting or email providers that Brave Media may engage.
2. Engagement of Brave Media
- The Client engages Brave Media to perform, and Brave Media agrees to provide, the Project on the terms and conditions set out in these Terms of Engagement.
- An Agreement is formed when Brave Media receives the written approval for the Project and these Terms of Engagement from the Client, or an appointed representative.
3. Intellectual Property Rights
- Subject to the below, nothing in the Agreement entitles either Party to use the other Party’s name, logo, trademark, or other Intellectual Property Rights in any way without written consent from the other Party.
- Any materials incorporated into the Project that are not owned by Brave Media or the Client, such as stock photography provided under licence, remain the exclusive property of the respective owners(s) of those materials.
- The Client grants Brave Media a non-exclusive, non-transferable royalty-free licence to use, reproduce, modify, display and publish any content supplied by the Client for the purposes of delivering the Project and for the purposes of clause 3(d) below.
- The Client grants Brave Media a non-exclusive, non-transferable royalty-free licence to use, reproduce, modify, display and publish any content it has completed for the Client and add the Project to its portfolio and list of case studies, as well as the right to add a small link to Brave Media within the Client’s online services.
- At the time when all payments under the Agreement have been made in full, the ownership in any final artwork created or commissioned by Brave Media as part of the Project is deemed to be assigned by Brave Media to the Client.
- At the time when all payments under the Agreement have been made in full, Brave Media also grants to the Client a royalty-free non-exclusive licence to use, reproduce, modify, display and publish any other works attracting Intellectual Property Rights which were created by Brave Media in delivering the Project. For the avoidance of doubt, the Client shall be free to modify the property licenced under this clause as they see fit, however the Client may not transfer or dispose of any of the property licenced under this clause without the prior written consent of Brave Media.
- Unless otherwise agreed in writing, Brave Media retains all proprietary rights in and to any and all concept and preliminary works, project documents prepared by Brave Media, working files including research documents, design flats and any similar documents. Brave Media may separately sell such working documents to the Client at Brave Media’s sole discretion.
- Each Party acknowledges that in connection with the Agreement it may receive certain confidential or proprietary technical and business information and materials to the other party. Each party shall hold and maintain in strict confidence this confidential information, shall not disclose it to any third party (except where required by law), and shall not use it except as may be necessary to perform its obligations under the Agreement.
5. Fees, Invoicing & Payments
- All Fees (whether fixed or variable) relating to the Project to be paid by the Client are set out in the Agreement, and are exclusive of both GST, and fees for additional services outside of the scope of the Project unless otherwise stated. Brave Media agrees to abide by all fixed Fees agreed upon in the Agreement while working on the Project within scope, though reserves the right to review and update variable Fees from time to time.
- Brave Media may charge the Client expenses incurred in relation to the Project, including all reasonable out-of-pocket costs (such as airfare, hotel, car rental and copying of documents).
- Unless agreed otherwise, a minimum deposit of 10% of the total Project Fees is required for Brave Media to begin work on the Project, with periodic balance instalments to be paid in advance for each phase of the Project to be completed. Brave Media also requires all Fees for the Project be paid in full before any online service component of the Project is uploaded online and launched live, unless otherwise agreed.
- The Client may be required to pay a retainer for Brave Media's performance of ongoing services which form part of the Project such as hosting. Brave Media will determine the retainer amount and scope of work in agreement with the client as needed.
- If payments are not made to Brave Media by the due date in the relevant invoice unless otherwise stated or agreed, Brave Media has the right to stop all work immediately and obtain full ownership of the Project and all related content which Brave Media is, and has been, working on for the Project. Any Fees not paid to Brave Media by their due date are subject to late penalties, and Brave Media has the right to take further actions to claim said funds.
- Brave Media may recover any costs incurred by enforcing the provisions of the Agreement, including debt collection costs and any legal costs as between solicitor and client on an indemnity basis.
- Unless agreed otherwise, all hosting Fees are to be paid one (1) month in advance, with the charge for a month of hosting occurring at the beginning of said month. If the Client is more than one (1) month behind hosting payments, Brave Media has the right to discontinue hosting until all outstanding sums (including those to be paid in arrears) are paid in full. Brave Media also has the right to invoice in advance for any additional hosting or service costs that occur during a period of hosting.
- Web development related Projects are developed to be compliant with the latest mainstream (standards compliant) web browsers at the time of the live launch of the Project, and the Client agrees to pay additional funds to increase development compatibility or performance if required by Brave Media.
- The Client agrees that Service Provider charges (such as hosting) may vary without notice (for services not yet consumed). Such changes in charges will be a direct reflection or result of costs passed onto Brave Media by its various Service Providers, and the Client will be notified accordingly.
- If any dispute arises relating to, or in connection with, the Agreement which both Parties are unable to resolve through their respective CEOs (or equivalent positions) within thirty (30) days of the dispute arising, then the dispute shall undergo a thirty (30) day period of mediation. After this further thirty (30) days, if the matter has not yet been resolved it shall be referred to the arbitration of a single arbitrator (unless both parties have reached an agreement). Such arbitration shall be carried out in accordance with the provisions of the Arbitration Act 1996.
7. Limited Liability
- The Client agrees that Brave Media is not liable to the Client in contract, tort or otherwise for the loss of any business opportunity, any consequential, indirect or pure economic loss suffered by the Client as a result of any defect in the Project or any failure by us to perform our obligations under this Agreement, even if such loss was, or should have been, within our contemplation.
- The Client also specifically agrees that Brave Media is not liable to the Client or any other Party for any failure to provide full online coverage, internet coverage, email services, or any other third party service, whether arising from a Service Provider, failure with the Network, a failure due to actions of the Client (such as delayed payments, inappropriate or missing content), or otherwise.
- Without restricting any other provision of the Agreement which limits or excludes liability to the Client, any claim which the Client may have against Brave Media, whether in contract, tort or otherwise as a result of the Project shall be limited, at the option of Brave Media to either:
i. Brave Media remedying any defect by providing additional services at its cost; or
the amount paid by the Client to Brave Media in respect of the defective Project.
ii. the amount paid by the Client to Brave Media in respect of the defective Project.
- Without limiting any rights or remedies of Brave Media, the Client indemnifies Brave Media, as a continuing indemnity, against all costs, losses, liabilities, claims, demands, damages, fines, and penalties or incurred by Brave Media arising directly or indirectly out of, or in connection with, any breach of the Agreement by the Client. The indemnity in this clause includes any circumstance where the Client fails to properly secure or otherwise arrange for any necessary third-party licences.
8. Term & Termination
- This Agreement shall be valid as long as the Client is in any form of business with Brave Media, which includes on-going hosting, or the Client's using of content created or used by Brave Media for the Project.
- Brave Media may at its discretion suspend or terminate the Agreement by written notice to the Client if any invoice is not paid when due.
- Either Party can terminate the Agreement by providing one (1) month’s written notice. The Client agrees that upon their voluntary termination of the Agreement, Brave Media has no obligation to provide the Client with any content relating to their Project, nor refund any deposit(s) paid to Brave Media for the Project.
- Upon termination of this Agreement:
i. the Client shall return all working documents in its possession or control to Brave Media;
ii. the Client shall pay Brave Media all outstanding Fees; and
iii. this clause and clauses 3, 4, 5(e), 5(f), 6, and 7 and all other provisions of the Agreement that are expressed to, or intended by the parties to, continue in full force and effect will do so.
- Unless expressed otherwise, no variation to the Agreement will be effective unless it is in writing and signed by both Parties.