[Please read our Terms and Conditions carefully before commencing our services]
Design By Lemon Drop Terms & Conditions
Lemon Drop Hong Kong (referred to herein as ‘Agency’, ‘Lemon Drop‘, ‘we’, ‘us’, ‘our’)
The terms and conditions set out below (“Terms”) govern any contract that we enter into with you, the client (referred to as ‘Client’, ‘you’, ‘your’) in respect of our Brand Identity Services (defined below) and apply whether you view our services or communicate with us via our website, mobile applications or social media or whether you communicate with us by telephone, post or any other medium of communication.
Definition of Terms
Amendments: alterations to Work in Progress which results in the estimated lead time as set out in the Creative Brief or the estimated time communicated by the Agency, to complete that Work in Progress or the level of personnel or cost required to perform the Services, being exceeded.
Brand Identity Services: designing the visual identity for a Client’s business, organization, brand, product including but not limited to brand colour palettes, corporate fonts, brand graphic devices, brand illustrations, character design, web design, icons, packaging and it may also include the provision of Naming and/or Logo Design Services.
Business Day: a day other than a Saturday, Sunday or public holiday. Charges: the charges payable by the Client for the performance of the Services in accordance with clause 11.
Creative Brief: means the creative specification produced by us as our interpretation of your Instruction setting out description and scope of Services required to produce the Deliverables and which is agreed between us prior to commencement of the Services and which may be revised as required from time to time upon our mutual agreement.
Deliverables: means any products or services produced by the Agency based upon your Instruction whether that is carried out by us in a single or multiple phases, which may include, the production of the Creative Brief, mood board or other forms of design concept, the proofs, designs, images, photographs, artwork, graphics, models, copy, communications, digital or hard copy, software, footage, features, characters or other deliverables commissioned by you and set out in any Instruction placed by you that are produced by the Agency in accordance with these Terms.
Discovery Process: means that phase in the performance of the Agency’s Services that explores and considers the Client Instruction to produce the Creative Brief.
Final Works: means the final versions of Work in Progress produced by the Agency which shall be submitted to the Client for approval.
Hourly Rate: means the hourly rate set out in our Proposal for performing the Services and agreed between us.
Instruction: means any order, instruction, statement or work, or brief submitted by you for our Services following acceptance of our Proposal based on the Creative Brief or Specification as the case may be.
Proposal: means the estimate of costs that we provide to you for the Services we propose to perform to implement your Instruction and produce the Deliverables which may either be based on time and materials or a fully costed project fee;
Services: includes any or all of our Brand Identity Services, Logo Design Services, or any services related to the production of Deliverables, performed in accordance with any Creative Brief agreed between us.
Work in Progress: any single tranche or any element of output generated and/or produced by us during the performance of the Services, whether in a hard copy or digital format of whatever form or medium including any element of any Deliverables.
1. Application
1.1. These terms and conditions together with the engagement letter to which they are attached(“Confirmation of Acceptance Form”) shall form a binding contract between the Client named on the Confirmation of Acceptance Form (the “Client”) and us and shall constitute the entire agreement between Client and Lemon Drop Hong Kong.
1.2. These terms and conditions shall apply to any trading agreement or other contract or arrangement between the Client and Lemon Drop Hong Kong.
1.3. These terms and conditions apply to the exclusion of all other terms or conditions of the contract the Client may propose and shall not be varied or amended unless agreed in writing and signed by Lemon Drop Hong Kong.
2. Engagement
These Terms set out how we deliver our services and regulate the contract we enter into with you. Receipt by us of your signed Confirmation Acceptance Form (defined at clause 3.6 below) indicates acceptance of our Proposal and your agreement to these Terms.
3. Client Instruction
3.1 You can submit a request for our Services by email to hello@lemondrophk.com or otherwise via our website enquiries forms. If you are an existing Client or your Instruction is part of a larger project that we are undertaking for you, any Instructions placed with your nominated Agency account manager will be processed in accordance with these Terms unless otherwise agreed in writing between us.
3.2 Your Instruction sets out the Services you need from the Agency, any Deliverables you require us to produce and other bespoke or specific requirements that you may have.
3.3 Your Instruction should contain a clear description of your requirements, any brief you wish us to consider and any Deliverables you wish us to produce.
3.4 Upon consideration of your Instruction, we will send you our Proposal including any recommendations of what is required to produce the Deliverables, which may include our suggested timescales and any project methodologies that we consider may be needed to meet your requirements.
3.5 Our Proposal shall only remain valid for a period of 30 Business Days from its date of issue by us. The Proposal does not constitute an offer to provide our Services to you, or that we have entered into any Contract with you.
3.6 The Proposal does not constitute an offer to provide our Services to you, or that we have entered into any Contract with you. When you notify us that you accept our Proposal (either by responding to our email containing our Proposal or otherwise requesting the Agency to proceed on the basis of our Proposal which indicates acceptance), the Agency’s written acceptance of your Instruction (‘Confirmation Acceptance Form’) will be sent to you, which you must sign and return as confirmation of agreement to these Terms.
3.7 The Contract between us shall commence with effect from the date of the signed Confirmation Acceptance Form (“Commencement Date”).
3.8 These Terms apply to the Contract between us to the exclusion of any other terms that you, the Client, or anyone on your behalf, seeks to impose or incorporate, into our agreement with you at any time, or any terms that may implied by trade, custom, practice or course of dealing.
4. Subcontractors
4.1 The Client acknowledges the Agency may, in the rendition of the Services hereunder, engage third party suppliers and other vendors and subcontractors (“Subcontractors”) from time to time to provide certain services. Lemon Drop shall supervise such services and endeavor to guard against any loss to Client as the result of the failure of Subcontractors to properly execute their commitments, but Lemon Drop shall not be responsible for their failure, acts, or omissions, except where such failure, acts or omissions are due to Lemon Drop’s negligence or willful misconduct.
4.2 If Client enters into arrangements with third party vendors, subcontractors, or suppliers regarding the provision of materials or services (“Preferred Suppliers”) and requests that Lemon Drop utilize such Preferred Suppliers in the discharge of Lemon Drop obligations hereunder, Client remains solely responsible for such Preferred Suppliers.
5. Performance of Services
5.1 The Agency shall supply the Services to you in accordance with the Creative Brief and these Terms in all material respects.
5.2 Upon commencement of the Contract the Agency shall prepare the Creative Brief during the Discovery Process.
5.3 If a Creative Brief has been prepared as referred to in clause 3.2 above, we shall send the Creative Brief to you, for final approval and signature which will indicate your acceptance of the Creative Brief prepared by us.
5.4 Where the nature of the Services are such that we consider it appropriate to provide you with an estimate of any phases, performance milestones, or completion dates for the Services, please note such dates shall be estimates only and time shall not be of the essence for performance of the Services or the completion of Deliverables. Time estimates depend on a number of factors that may change during the course of performing the Services, but we shall do our best to communicate any changes to you as soon as possible where you have notified us in your Instruction of key milestones and dates that are important to your business.
5.5 If you do not agree any revised Proposal sent as a result of changes or as a result of changes you require to the Creative Brief you may issue written notice to terminate our Services but please note the Agency is entitled to recoup in full all Charges incurred in respect of Work in Progress carried out up to the date of termination which will be charged on a time and materials basis.
6. Changes to Work in Progress
6.1 The Client shall be entitled to request that the Agency makes changes to the Creative Brief during the course of the performance of the Services. The first two Amendments are included in the Charges set out in the Contract provided that they are not material or result in a change to the Instruction or its scope, the personnel needed to implement the change and/or result in additional time or cost to the Agency, in which case we may need to amend the Charges set out in the Proposal and we shall agree any updated Charges with you prior to implementing any Amendments. However, where you request more than two Amendments to Work in Progress, any such additional Amendments will be charged at our usual Hourly Rate. Where Amendments result in an adjustment to Charges and/or timescale for performance of the Services, we shall notify you prior to continuing the Services and the Proposal shall be updated and sent to you for your acceptance in writing.
6.2 Where multiple versions of Works are produced by us, you are entitled to choose and use only one of the Works representing the Creative Brief (“the Final Works”) subject always to payment in accordance with the provisions of clause 11. If you wish to use additional versions of Works, we can discuss this with you, subject to agreement on additional Charges. If you require more than one version of Final Works, please set out clearly in the Instruction. Any other Works not chosen by the Client remain our property and our copyright in accordance with the provisions of clause 5.3 above.
7 Intellectual Property Rights and Use
7.1 Any samples, drawings, content, images, proofs, descriptive matter or advertising issued by the Agency, or contained in any of our catalogues or brochures or detailed on our Website, whether in connection with the Services or any other services provided by the Agency, are © Copyright Lemon Drop Hong Kong and are issued or published for illustrations purposes only, to enable us to provide a description of our Services. They shall not form part of the Contract or have any contractual force between us.
7.2 Subject to clause 7.3 below, upon payment in full by the Client, ownership and any Work in Progress or Deliverables shall transfer to the Client. Until the Agency has been paid in full for the Services in accordance with clause 11 below, any Work In Progress or Deliverables or any element of the Services shall be owned by the Agency.
7.3 You acknowledge that, you may not always own the copyright or other Intellectual Property Rights where such rights are owned by third parties and licensed for use to the Agency or generally. For instance, the Client does not own the copyright in ‘stock’ photographs’ or film footage, negatives or fonts (unless otherwise agreed between the Agency and the Client and set out in the Proposal) and your use of any third party Intellectual Property Rights is conditional upon the Agency obtaining a written licence from the relevant licensor to entitle us to license such rights to you or incorporate into any Work In Progress or Deliverables we produce for you. If we need to obtain those third party licenses to fulfill the Creative Brief, you shall be solely responsible for the payment of any licensing fees that any licensor charges to the Agency for use of such content. Where the Client requires us to use specific fonts that have been used in your previous branding or other proprietary material or that of any third party, you need to ensure you obtain the licence to use such fonts and you are soley responsible for payment of any related licensing fees which, in order for us to commence the Services, we advise Clients to obtain in advance of the Instruction.
8. Client’s Obligations
8.1 If performance of the Services is prevented or delayed by any act or omission by the Client or failure by you to perform any relevant obligation (“Client Default”)
8.2.1 We shall, without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy the Client Default, and we shall be entitled to rely on the Client Default to relieve us from performance of the Services to the extent performance is prevented or delayed by Client Default;
8.2.2 We shall not be liable for any costs or losses sustained or incurred by you that arise directly or indirectly from Client Default; and
8.2.3 You shall reimburse the Agency on written demand for any costs or losses sustained or incurred by the Agency arising directly or indirectly from the Client Default.
9. Portfolio
9.1 You consent that the Agency may display and exhibit the Deliverables, which may or may not include reference to the Client or your business, products or services, to our prospective clients in any Marketing Materials and on our Website or social media for the purpose of the promotion of our Services.
10. Approval of Final Works
10.1 The Agency shall transmit the Final Works to the Client for proof reading, preview or review and for approval, in an Approved File Format. No Amendments are allowed at this stage as referred to by clause 6.1 above.
11. Charges and Payment
11.1 The Charges for the performance of the Services requested in your Instruction are based on our Proposal, which may, if you have requested changes, be updated and revised from time to time;
11.2 Any additional request for Services to those set out in the Instruction shall be calculated in accordance with our Hourly Rates as notified to you;
11.3 If we provide you with a daily rate this is based on a seven-hour day from 9.00 am to 5.00 pm worked on Business Days;
11.4 We shall invoice you our Charges for the Services on such dates and/or at such intervals that are set out in the Proposal and agreed in writing with you before commencing the Services. It is customary for the Agency to require an element of Charges to be paid in advance of commencing performance of Services and we will send you an invoice for these Charges following your acceptance of the Proposal. Before commencing performance of the Services this invoice must be paid in full, by cleared funds to our Client bank account.
11.5 You undertake to pay each invoice relating to performance of Services:
11.5.1 within 30 days of the date of the invoice; and
11.5.2 in full and in cleared funds to our bank account which will be notified to you.
11.6 If invoices are not paid on time, we shall be entitled to suspend performance of the Services until due and outstanding invoices are paid in full. As referred to above at clause 11.5, we cannot commence performance of Services until the commencement invoice is paid in full and non-payment may lead to cancellation of your Instruction and expiry of the Proposal.
11.7 If the Client fails to make any payment by the due date referred to in clause 11.9 above we shall charge interest on any overdue sums at the rate of 8% percent per annum above. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Client shall pay the interest together with the overdue amount.
12. Force Majeure
Neither Client nor Agency shall be liable to the other for any failure, inability, or delay in performing hereunder if caused by any cause beyond the reasonable control of the party so failing, including, without limitation, an Act of God, war, strike, or fire; but due diligence shall be used in curing such cause and in resuming performance.
13. Limitation of Liability
13.1 The Agency’s entire liability to the Client in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall not be more than the Charges.
14. Termination
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months’ written notice. The Client’s right to terminate under this clause 14.1 is strictly subject to payment in full of all outstanding Charges including accrued interest (if any).
14.2.1 The other party takes any step or action in connection with its entering administration, liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
14.2.2 The other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.2.3 The other party’s financial position deteriorates to such an extent that in the terminating party’s reasonably held opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.3 Without limiting its other rights or remedies, we may, at our discretion terminate the Contract with immediate effect by giving you written notice if:
14.3.1 You fail to pay any Charges due under the Contract on the due date for payment and those Charges remained outstanding for more than 14 days after we notify you to make such payment; or
14.3.2 If we consider in our reasonably held opinion that the Client, its services, products or its business do not conform with our commercial ethos, our business objectives and trading standards.
15. Consequences of Termination
On termination of the Contract for any reason:
15.1 the Client shall immediately make payment to discharge all outstanding unpaid invoices including interest (if any).
15.2 we shall issue an invoice in respect of Charges arising in connection with any Work in Progress completed, which shall be payable by you immediately upon receipt;
15.3 you will immediately return all Proprietary Materials and any Work in Progress or Deliverables which have not been fully paid for (and hence where title has not passed to you) at our request. If you fail to do so, then you agree that we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safekeeping and will not use them for any purpose unconnected with this Contract;
15.4 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
15.5 obligations set out in these Terms that expressly or by implication survive termination shall continue in full force and effect.
16. Entire Agreement
This Agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings, or arrangements relating to the subject matter of this Agreement. Neither party shall be entitled to rely on any agreement, understanding, or arrangement not expressly set forth in this Agreement save for any representation made fraudulently.
17. Variation
No variation of the Contract or of these Terms shall be effective unless it is in writing and signed by both parties.
18. Jurisdiction
This Agreement, and any dispute, controversy, proceedings, or claim of whatever nature arising out of or in any way relating to this Agreement or its formation, shall be governed by and construed in accordance with the laws of Hong Kong.