TERMS AND CONDITIONS
This Terms of Service (the “Agreement”) is a legally binding contract between Ariana Digital (the “Company”) and you (the “Client”) that shall govern the purchase and use, in any manner, of services provided by the Company to the Client (collectively, the “Services”). By purchasing or using the Services in any manner, the Client represents that he/she has read, understands, and agrees to all terms and conditions set forth in the Agreement, and that he/she is at least eighteen (18) years old and has the legal ability to engage in a contract. If the Client does not accept the Agreement and all terms and conditions set forth within, he/she should not purchase or use, in any manner, Services from the Company or, if he/she has already purchased Services, he/she should contact the Company immediately to terminate the Agreement. It is further understood that the Agreement is subject to change from time-to-time, in whole or in part, without notice.
1 Terms and conditions
All services are provided subject to these terms and conditions, which (together with the Quote) sets out the entire understanding and agreement between parties.
2 Fees and costs
2.1 In consideration for the Company providing the services, the Client must pay all fees, charges and costs set out in the Quote.
2.2 If the Client requires any services that are not contained in the original Quote, or if there are elements of the services which require additional time, material or resources to be provided by the Company, including if there is a request for changes or further services after approval of a deliverable, then the Company will provide the Client with a quote for the additional services and additional fees required before providing the Client with the additional services.
3.1 Payment for services must be paid in full prior to commencement.
3.2 If the Client requested a Quote for the services, then this will be provided to the Client together with the Company’s invoice.
3.3 The Company’s services will only commence after payment is received. However, should the Company commence work prior to receiving payment, this does not in any way prejudice the Company’s right to seek payment.
The Company will use reasonable commercial endeavours to deliver the services in accordance with any agreed timeframes, but the Company does not guarantee any timing estimates and will not be in breach of its obligations if the Company fails to meet any such timelines.
5 Intellectual Property Rights
5.1 The Client acknowledges and agrees that all Intellectual Property Rights in all creation files, working files, artwork and other documents provided by the Company in connection with the services vests in the Company on its creation. For the avoidance of doubt, this does not include the Client’s Background IP or any licences (such as image licences).
5.2 Upon full payment of our fees, the Company will assign to the Client all Intellectual Property Rights in the project, except in relation to any of the Company’s Background IP. In such case the Company has a perpetual, irrevocable licence to use the relevant project Intellectual Property Rights unless agreed otherwise in writing. For the avoidance of doubt, Intellectual Property Rights that the Company has agreed to transfer to the Client does not include any licences (such as image licences) or other Intellectual Property Rights that the Company is not able to assign.
5.3 Each party retains ownership of its Background IP and grants to the other party a non-exclusive, royalty-free licence as follows:
5.3.1 for the Company, to the extent necessary to enable it to provide the services, exercise its rights in accordance with the provisions of these terms and conditions and otherwise carry out our obligations under these terms and conditions, and
5.3.2 for the Client only for the purpose and scope of the project, unless otherwise agreed in writing.
5.4 If during the course of providing the services the Company develops or discovers, or first reduces to practice a concept, product or process which is capable of being patented, then such concept, product or process will remain the Company’s property and the Client must not use or otherwise appropriate such property without first obtaining the Company’s written consent.
5.5 To the extent permitted by applicable laws and for the Client’s benefit, the Company will, upon your request in writing procure the consent from the holder of any moral rights in the project.
5.6 The Company may purchase rights to images that the Company uses in providing the services to the Client. Such images may be subject to a licence agreement between the Company and a third party that may restrict the Client’s use of those images. Unless otherwise agreed in writing, the Company may at its discretion use images that have been used in providing the services to the Client, with other clients or on other works. If the Client requires specific images, it may be required to pay additional fee(s) for that use. Even if the Company agrees to provide an image to the Client exclusively, the Company cannot be liable for the use of that image by other third parties who may have obtained these images from another party.
5.7 The Company reserves the right to display all designs that it creates for the Client on the Company’s website and its marketing material.
6 Warranties and liability
6.1 The Client warrants that all work and materials provided by the Client (including your Background IP) will be free and clear of all liens and encumbrances and may be lawfully used by the Company without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright trade secret patent or trade mark rights of any third party.
6.1 The Client acknowledges that it has not relied on any advice, representation or warranty given by the Company in connection with the services that is not expressly stated in this document.
6.2 To the extent permitted by law, all warranties, conditions and representations by the Company are excluded. If a term is implied by law into this document and the law prohibits provisions in a contract excluding or modifying liability under that term, then it will be included this document. However, the Company’s liability for breach of such term will be limited, at the Company’s option, to one or more of the following:
6.2.1 the supply of the services again; or
6.2.2 the payment of the cost of having the services supplied again.
6.3 If the Client is not satisfied with the Company’s services, to the extent permitted by law the Company will not provide the Client with a refund, but supply the Client with the services again within reason, until the Client are satisfied with the services.
6.4 To the extent permitted by law, neither the Company nor any of the Company’s officers, employees, agents or related bodies corporate will be responsible or liable in any way (including for negligence) for any loss, damage, liability or costs incurred or sustained by the Client or claims made against the Client, and the Client agrees not to make any claim against the Company, due to or arising out of the Company’s provision of the services.
6.5 Without limitation, the Company will under no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity.
6.6 The Client indemnifies and holds the Company harmless in respect of any and all claims, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of:
any act done by the Company in good faith and purportedly pursuant to a right granted to the Company under the provisions of this document
any infringement by the Client of third-party Intellectual Property Rights, and/or
any breach by the Client of any of the terms of this document.
6.7 The company does not guarantee that its services will provide any specific results. In particular, and without limiting the foregoing, the Company makes no guarantees, warranties or representations as to sales or revenue that may be achieved or that the Client will receive any new or increased numbers or customers as a result of our services.
7.1 “Confidential Information” means all material or information of a confidential nature, received or acquired by the Company or its customers or created either partly or in whole by the Company’s employees during the course of this agreement, relating to the Services and products, including software products, or general business operations of the Company and its customers. Such information or material may include, but is not limited to:
7.1.1 technical information: methods, processes, systems, techniques, products, services, computer programs and research projects;
7.1.2 business information: customer lists, pricing data, sources of supply, financial data and marketing, production, business proposals, plans, production plans and schedules, and
7.1.3 creative development: concept development, names, titles, images, illustrations, logos, motion graphics, designs, computer data and production of all media associated with any project
7.2 The Company agrees that it will treat all Confidential Information as being strictly confidential, and hold it in the strictest confidence, at all times during and after termination of this agreement, and that this requirement is reasonable to protect the Confidential Information of the Company and its clients.
7.3 The Company agrees not to disclose, or cause or allow to be disclosed, Confidential Information to any person, except:
7.3.1 if required to do so by law, although the Company must notify the Client immediately upon becoming aware that it will be required to disclose any Confidential Information in accordance with this clause;
7.3.2 with the Client’s express prior written consent,
7.3.3 to the Company’s agents, employees, or advisers as a necessary part of the proper performance of the Company’s duties and only to the extent necessary to properly carry out those duties.
7.4 The Company agrees that it will not use the Confidential Information, or cause or allow the Confidential Information to be used:
7.4.1 for the Company’s own benefit or advantage
7.4.2 for the benefit or advantage of any third party
7.4.3 to the detriment of the Company or any related entities or the Company’s customers.
7.5. The Company must not make any copy or summary of any Confidential Information, except if required to do so in the course of the provision of the Services.
7.6 The Company acknowledges and agrees that all Confidential Information is and will at all times remain the exclusive property of its customers, as the case may be.
7.7 The Company acknowledges and accepts that the Company may be required to enter into separate confidentiality agreement with the Client.
7.8 The obligations above do not apply to any Confidential Information which is in the public domain other than due to a breach of an obligation of confidence (whether or not under this agreement).
8.1 This agreement terminates six (6) months from the date that the Company commences providing the services.
8.2 If the provision of the services is postponed or terminated by the Client, the Company will retain the development designs for six months from the date that the Company commences providing the services. After that date, if the Client wishes to retain the Company’s services again to continue with the provision of the previous services, the Company will provide the Client with a new Quote.
8.3 The Company reserves the right to suspend services immediately at any time and without liability if the Client fails to perform its obligations under this document, including failing to make payments to the Company by a due date.
8.4 If the Client breaches any term or condition of this document and fails to remedy such breach within 14 days of the Client receiving written notification from the Company indicating the breach and requiring its remedy then the Company may at its discretion treat this document as terminated, in which case the Company will retain the Intellectual Property Rights in the services even if the Company had previously agreed to assign it.
8.5 Termination due to a breach of this document by the Client does not in any way prejudice any of the Company’s rights including the Company’s right to receive payment for services rendered.
9.1 The Client must not during the term of this document, or for a period of 6 months following completion of any project that the Company undertakes for the Client:
9.1.1 employ, contract or hire the services of any of the Company’s personnel, or
9.1.2 induce or attempt to induce any of the Company’s personnel to terminate their agreements or contracts with the Company.
10.1 All notices and consents required or permitted to be given under this document must be in writing and given by personal service, pre-paid postage, a facsimile transmission, or email transmission at the addresses of the parties set out in this document or to such other address as either party may designate to the other by written notice.
10.2 Neither this document nor any rights or obligations of this document may be assigned or otherwise transferred by either party without the prior written permission of the other.
10.3 If the Company does not act in relation to a breach by the Client of this document, this does not waive the Company’s right to act with respect to that or subsequent or similar breaches.
10.4 Nothing stated in this document constitutes the Client and the Company as partners, or creates the relationship of employer and employee, master and servant or principal and agent between the parties. Neither party shall have authority to make any statements, representations or commitments of any kind, or to take any action which shall be binding on the other party, except as expressly provided in this document or authorised in writing.
10.5 If any provision of this document should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be effected or impaired. This document must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
10.6 These terms and conditions are governed by and to be interpreted according to the law of Lithuania. The parties submit to the non-exclusive jurisdiction of the courts of that country.
Background IP means Intellectual Property Rights owned by either party immediately prior to the date of this agreement or developed independently of this agreement.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, know-how, trade marks (whether registered or not), business names (whether or not registered), domain names, inventions, discoveries, patents, patent applications, designs, circuit layouts and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organization of July 1967.
Moral Rights means the right of attribution, the right against false attribution and the right of integrity of authorship as defined in the Copyright Act 1968 (Cth).
Quote refers to any quotation, proposal, statement of work or services description from us as appears on our Website in relation to the services you have purchased, or as provided by us to you from time to time.
Website means the website found at the URL http://www.arianadigital.com/.