Terms and Conditions of Business
These terms and conditions apply to all assignments carried out on behalf of you, the client, by us, dtwo Creative Limited trading at Shed 8, The Quay, The Strand, Topsham, Devon EX3 0JB (with registered office at 2 Clyst Works, Clyst Road, Topsham, Devon EX3 0DB registered number 05232713).
(“dtwo”). References to dtwo throughout include our affiliates, agents and sub-contractors where appropriate. You will be deemed to accept these terms and conditions in full unless you notify us before we start work for you and we agree to any variation in writing. These terms and conditions apply across our business including our specialist services.
Our first meeting with you is free of charge and is without obligation. Subsequent time spent on the assignment, including attendance at meetings and other expenses, forms part of the billable assignment.
Generally, at dtwo we charge for our time at an hourly or daily rate quoted to you at the outset. Where appropriate we will agree a fixed package price or a monthly retainer either with a specific deliverable or a set number of days or hours committed. Once sufficient information has been provided to dtwo we will provide you with a written quotation, which is open for acceptance within 30 days unless stated otherwise. You will be deemed to have accepted our quotation upon the earlier of written confirmation or payment by you of the first installment. If the specifications and/or schedules change during the assignment we will discuss with you any impact on the price and will agree a revised quotation with you in writing. We are VAT registered and any VAT invoiced on our fees and expenses is clearly itemised.
Billing and payment terms
At dtwo we generally split the settlement of our bill into two or three payments to ensure both your and our cash flow are maintained. For example, one third of the bill is payable upon acceptance of the written quotation; the second third is due upon approval of the first creative submission; and the final third must be paid within 30 days of completion of the assignment. These due dates will be specified in the quotation. If none is specified, payment is due within 30 days of invoice date. dtwo reserves the right not to commence work on the assignment until the first payment has been received. If any phase of the assignment is delayed for longer than 30 days for reasons outside our control, we reserve the right to invoice for work completed to date. We aim to pay our suppliers on time; and we respect clients who pay us likewise. In order not to penalise those who do, we reserve the right (in accordance with the Late Payment of Commercial Debts (Interest) Act 1998) to charge interest on overdue payments at the rate of 8% per annum above the reference Bank of England base rate accruing daily from the due date.
Duration of contract
Unless we agree a fixed term contract with you our contractual relationship shall be indefinite unless terminated by either party with one monthʼs notice. The duration and notice period for a fixed term contract will be specified in our written proposal to you.
Ownership and intellectual property
Here our general policy (see web code exception below) stands out from the competition. Some advertising and design agencies attempt to restrict the ownership or use of materials generated for a client. We believe that if you have paid us a fair price, then you are entitled to do what you want with it, within reason. So, unless otherwise stated by us in writing, the output from an assignment becomes your property, but only following receipt of the final payment. Of course, we have a reputation to protect: we ask therefore that you notify us in advance of any further use of the materials generated which was not as originally contemplated; and, likewise, please notify us if you or your agents materially manipulate or change any of our creative output. Should you need access to source files, provided your account is up-to-date, dtwo will co-operate fully to provide these within a reasonable timescale, subject to payment of a reasonable administration fee to cover our time costs. In some cases images used for your assignment will be sourced from a third party upon payment of a royalty or licence fee. Where we have notified you in the quotation or otherwise that use of an image is subject to a rights managed fee (as opposed to a once only fee for unlimited use), you will be responsible to the rights owner for any payments resulting from any further use; and you will indemnify dtwo for any claim made against us by the rights owner resulting from your subsequent use. In return for the above transfer of ownership rights in the output material, you give us a royalty-free, indefinite licence to use the material for dtwoʼs promotional purposes, for example, on our website or in our portfolio. Please note it is your responsibility to make sure that all materials supplied for reproduction or inclusion by dtwo – including, but not limited to, all data, images, text, copy, testimonials and logos – may be reproduced legally without infringing the intellectual property rights of any third party. You agree to indemnify dtwo against the full costs of any claim or loss incurred by dtwo as a result of any breach.
While we make every effort to ensure the accuracy of the output material, we cannot be responsible for the correctness of the final copy and will require your written sign-off prior to completion of the assignment. If we do not receive your sign-off in writing, you will be deemed to have accepted the copy within 24 hours of us submitting to you the copy for final review. We will assume that any of your employees or agents who purports to sign off material in writing has your actual authority to do so unless you notify us otherwise in
Limitation of our liability
Hereʼs the small print: the liability of dtwo to you for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances exceed the price of the services or goods supplied. In particular, dtwo shall not be liable for any costs, claims or damage arising out of any act of tort or omission or breach of contract or statutory duty calculated by reference to profits, income production or accruals or loss of such profits, income production or accruals or by reference to such accrual, claim, damages or expenses on a time basis. However, nothing in these terms and conditions excludes or restricts our liability to you in the unlikely event of death or personal injury resulting from the negligence of dtwo.
Confidentiality and privacy
We will treat all materials provided by you confidentially. dtwo is registered under the Data Protection Act 1998: all reasonable steps are taken to ensure that your data is secure. Please note that unless you specify otherwise we will use email as the preferred medium for sending you material for approval and you accept the risks of doing so.
Conflict of interest
As dtwo is involved in advertising and marketing we will not accept new instructions from a prospect who, to the best of our knowledge and in our opinion, is your direct competitor. However, we reserve the right to work for businesses in the same sector as your business where we feel we have developed a specialist niche. In such cases if there appears to be an indirect conflict of interest we will ask the first client permission before accepting the assignment of the second client.
Complaints and resignation
The team at dtwo is responsible for providing you with material which we believe best reflects your creative brief. The team at dtwo wants you to be happy with our work. We realise you may occasionally take a different view as ideas and creativity are so subjective; if so, please notify us immediately to give us an opportunity to rectify or clarify the matter. If we cannot satisfy your needs dtwo will resign from the assignment and make all reasonable efforts to find an alternative solution, whether in-house or externally. If we resign from an assignment or you choose not to use any material we have completed following your instructions, we will only invoice for the amount of time spent on it.
Sub-contracting and third party costs
There may be aspects of the assignment which are supplied by a third party, for example, website development, website and email hosting, copywriting and printing. We will only notify you of the identity of a third party if dtwo is merely introducing you to the third party, in which case you will be contracting directly with the provider and responsible to them directly for payment. In all other cases dtwo is responsible for the performance of our affiliates, agents and sub-contractors. Where we incur external costs on your behalf we may require advance payment, and we reserve the right not to proceed with the assignment if prompt payment is not received.
Together with you we will compile and agree a specification at the outset. Any subsequent change to the specification will be charged extra. dtwo reserves the right to release and upload the final website only following payment of the final account. There will be circumstances where we retain the rights to certain generic programming code. Where this is the case, for example, because we have developed a generic code for use across other clients, dtwo grants you a non-exclusive indefinite licence to use that element of the code for the original purpose. Should you decide to move the hosting of your site to another provider, provided your account is up-to-date, dtwo will co-operate fully and within a reasonable timescale, subject to payment of a reasonable administration fee to cover our time costs.
Your own website terms and conditions
Search engine optimisation and registration
The optimisation of a website is an “art not a science”. At dtwo, unlike some of our competitors, we make no rash promises that we can get you to the top of every search engine. We or our subcontractors will use all reasonable endeavours within the budget you allocate us to optimise and register the site in whatever manner we feel is appropriate and in our absolute discretion.
Direct marketing including by telephone, mail and email
dtwo will use all reasonable endeavours within the budget you allocate us to maximise the effectiveness of your campaign in whatever manner we feel is appropriate and in our absolute discretion. We make no warranty as to results. While we do ensure that coverage is monitored by the use of “seeds” and random checks, we make no specific warranty as to results or coverage.
dtwo is proud of its organisational abilities. Sometimes, however, there are circumstances beyond our reasonable control. Our liability is limited as set out above. We recommend that you consider taking out specific insurance to cover cancellation and other risks.
dtwo assumes no risk for losses or damage to products once they have left our agentsʼ office, workshop, print works, warehouse or similar. Please consider insuring any goods in transit or making arrangements for personal collection of valuable items.
dtwo reserves the right to make reasonable amendments to these terms and conditions, such changes shall be deemed to come into effect within 30 days of us notifying you of the changes by email or letter.
These terms and conditions are governed by English law, and you and dtwo submit to the exclusive jurisdiction of the courts of England and Wales.