TERMS & CONDITIONS
Below are MOSUMART DESIGN – (throughout this document will be referred to as MOSUMART) standard terms and conditions. It is vital that you (Client) please take time to read through thoroughly and ensure you fully understand these terms and conditions and their implications before you commence any project with MOSUMART.
All design work is carried out MOSUMART on the understanding that the client has agreed to abide by MOSUMART terms and conditions. Please also note that these Terms and Conditions supersede any previous Terms and Conditions distributed in any form by MOSUMART. From time to time MOSUMART may need to alter these terms and conditions without notice. Please contact us if you do not understand any of the terms and conditions in this document.
Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Malaysian Law.
Deliverables means the services and work product specified in the Proposal to be delivered by MOSUMART to Client, in the form and media specified in the Proposal.
Designer Tools means all design tools developed and/or utilized by MOSUMART 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, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
Final Art means all creative content developed or created by MOSUMART, or commissioned by MOSUMART, 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, modifications to Client Content, and MOSUMART’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
Final Deliverables means the final versions of Deliverables provided by MOSUMART and accepted by Client.
Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by MOSUMART and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
FEES & CHARGES
Fees quoted are the professional fee charges by MOSUMART for the service provided.
In consideration of the Services to be performed by MOSUMART, Client shall pay a 50% deposit of the quoted amount to commence any design project, with the balance payable prior to delivery. Once research, resources allocated or digitizing design, 25% of work has commenced on a project, this deposit is non-refundable. In the case of a change of mind by Client this deposit is non-refundable.
Client shall pay MOSUMART’s expenses (if any) incurred in connection with service engagement as follows:
• 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.
• Travel expenses including transportation, meals, and lodging, incurred by MOSUMART with Client’s prior approval.
Additional Costs. 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, photo stock, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for.
All invoices are payable within Seven (7) days after confirmation of Final Artwork. MOSUMART reserves the right to withhold delivery and any transfer of ownership of any current work or Final Art 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 Terms & Conditions 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.
Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment.
SUPPLY OF MATERIALS & CONTENT
Client is to provide Client Content for MOSUMART. Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
Client represents, warrants and covenants to MOSUMART that:-
• Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
• 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,
• Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
• Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
• Coordination of any decision-making with parties other than MOSUMART;
• 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; and
• 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.
Where Client fail to supply materials, and that prevents the progress of the work, we have the right to invoice you for any part or parts of the work already completed.
PROJECT & SERVICES
MOSUMART is an independent contractor, not an employee of Client or any company affiliated with Client. We shall provide the Services under the general direction of Client, but shall determine, in our sole discretion, the manner and means by which the Services are accomplished.
Every Project or Services are subjected to ‘first come first serve’ basis. Client Project or Services is subjected to our workflow que system that shall be abide by the Client strictly.
MOSUMART shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, MOSUMART shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
MOSUMART provide variation of services and products. Each service and product has its own Standard Operating Procedure (S.O.P) and may varies from one another. We will provide the Services identified in a professional and workmanlike manner and in accordance to our S.O.P with all reasonable professional standards for such services.
MOSUMART ensure that to except for Third Party Materials and Client Content, the Final Deliverables shall be the original work.
To the best of MOSUMART’s knowledge, the Final Art provided shall 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. 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 contrary to the terms and conditions noted herein, all representations and warranties of MOSUMART shall be void.
We are pleased to offer you the opportunity to make revisions to the design. However, we have the right to limit the number of design proposals as per our S.O.P.
General Changes. Unless otherwise provided in the S.O.P, 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 MOSUMART’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal or Initial Term of Agreement, despite any maximum budget, contract price or final price identified therein. MOSUMART may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
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, MOSUMART shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by MOSUMART.
TIMING & PROJECT DELAY
Any time frames or estimates that we give are contingent upon your full co-operation. MOSUMART will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal.
During the Deliverables there is a certain amount of feedback required in order to progress to subsequent phases. Client agrees to review Deliverables within the time identified for such reviews and to promptly either,
• Approve the Deliverables in writing or • Provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to MOSUMART.
In the event of delay caused by Client, MOSUMART reserve the right to bill the delay or extension of project timing in accordance to MOSUMART’s standard hourly rate, unless otherwise stated in writing between both parties.
It is required that a single point of contact be appointed from your side and be made available on a daily basis in order to expedite the feedback process.
Consequential Lost. MOSUMART shall not be liable for any loss or damage which you may suffer which is in any way attributable to any delay in performance or completion of our agreement, however that delay arises.
APPROVAL OF WORK
Client will be notified upon completion of Deliverables and will be given the opportunity to review the work. The time frame for review is in accordance to our S.O.P.
Any unsatisfactory point, Client shall notify MOSUMART in writing for further amendment(s) and change(s) to be made in accordance to our S.O.P.
Once approved, or deemed approved, the Deliverables becomes Final Deliverables which cannot subsequently be rejected and the 50% balance of the fee will become due.
If Client reject or not satisfy with the Final Deliverables, or not approve subsequent work performed by us to remedy any points recorded as being unsatisfactory, and MOSUMART, acting reasonably, consider that Client have been unreasonable in any rejection of the work.
MOSUMART reserve the right to treat this agreement as at an end and take measures to recover payment for the completed work.
Client shall entitled for the Final Artwork upon the settlement of the 50% balance of the Fee.
ACCREDITATION OR PROMOTIONS
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in MOSUMART’s name in the form, size and location as incorporated by MOSUMART in the Deliverables, or as otherwise directed by MOSUMART. MOSUMART retains the right to reproduce, publish and display the Deliverables in MOSUMART’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 other’s 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.
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:
• Becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
• Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) working days from receipt of written notice of such breach.
In the event of termination, MOSUMART shall be compensated for the Services performed through the date of termination in the amount of
• any advance payment,
• a prorated portion of the fees due, or
• Hourly fees for work performed by MOSUMART or MOSUMART’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.
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.
MOSUMART shall not be deemed in breach of this Agreement if we are unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of MOSUMART or any local, state, federal, national or international law, governmental order or regulation or any other event beyond MOSUMART’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, MOSUMART 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.
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.
LIMITATION OF LIABILITY
The services and the work product of MOSUMART are sold “as is.” In all circumstances, the maximum liability of MOSUMART, its directors, officers, employees, design agents and affiliates (“designer 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, tort or otherwise, shall be limited to the net profit of MOSUMART. In no event shall MOSUMART 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 MOSUMART, even if MOSUMART has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
This Terms & Conditions 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 Terms & Conditions. In the event of a conflict between the Proposal, Design Brief and any other Agreement documents, the terms of this Terms & Condition together with the S.O.P by MOSUMART shall control.
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 MOSUMART a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with MOSUMART’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
All Third Party Materials are the exclusive property of their respective owners. MOSUMART 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 MOSUMART 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 MOSUMART 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.
MOSUMART retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to MOSUMART within ten (10) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of MOSUMART.
MOSUMART 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 MOSUMART within thirty (30) days of completion of the Services.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, MOSUMART assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by MOSUMART for use by Client as a Trademark. MOSUMART 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 MOSUMART 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.
All Designer Tools are and shall remain the exclusive property of MOSUMART. MOSUMART hereby grants to Client a nonexclusive, 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 any Designer Tools comprising any software or technology of MOSUMART
GOVERNING LAW AND DISPUTE RESOLUTION
The formation, construction, performance and enforcement of this Terms & Condition shall be in accordance with the laws Federation of Malaysia.
By using this website and the services provided by MOSUMART, the parties hereto have indicate that they have read and agreed to all of the terms and conditions. This acceptance represents that Client has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.