Terms & Conditions
Terms & conditions
This agreement (the “Agreement”) is made by and between "Kokobeani" and, dependent upon either the provision of "Services" or "Goods", the “Client” or the "Consumer". In consideration of the mutual agreement made herein, all parties agree to the following:
As used throughout this Agreement:
Refers to this Terms and Conditions document in its entirety, the Project Proposal, and the Approval Form, together with any additional exhibits, schedules or additional attachments.
As defined and enforceable under U.K. Copyright Law, the property rights in original works of authorship, expressed in a tangible medium of expression.
Any materials, information, photography, writings and/or other creative content supplied by Client for use in the preparation of and/or incorporation in the Deliverables.
Services and work specified in the Project Proposal to be delivered to Client by Kokobeani, in the form and media specified in the Project Proposal.
All design tools developed and/or utilized by Kokobeani in performing the Services, including pre-existing and newly developed software or other inventions whether or not patentable, and general non-copyrightable concepts.
Files used to produce Client’s Final Artwork.
All creative content developed, created or commissioned by Kokobeani, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typography and text, CGI, modifications to Client Content, and Kokobeani’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
The final versions of all Deliverables produced by Kokobeani and accepted by Client.
All artwork including but not limited to concepts, sketches, visual presentations, alternative or preliminary designs, and documents developed by Kokobeani, which may or may not be shown and/or delivered to Client for consideration, but do not appear as part of the Final Artwork.
The purpose of the Client’s identified usage of the work as described in the Project Proposal and Approval Form.
All services and the work to be provided to Client by Kokobeani as described in the Project Proposal and Approval Form.
Third Party Materials
Proprietary third party materials which are incorporated into the Final Deliverables, including stock photography, illustration, and/or 3d models.
Trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods and/or services of Client.
Any individual acting for purposes which are wholly or mainly outside their trade, business, craft or profession.
The Agreement between Kokobeani and Consumer for the supply of Goods.
The Supplier's premises or other location where the Goods are to be supplied, as set out in the Order.
Paper or email, or any other medium that allows information to be addressed personally to the recipient, enables the recipient to store the information in a way accessible for future reference for a period that is long enough for the purposes of the information, and allows the unchanged reproduction of the information stored.
The goods as advertised on the Website, supplied by Kokobeani to Consumer and described as set out in the Order.
The Consumer's order for the Goods from the Supplier as submitted following the step by step process set out on the Website.
The terms which determine how Kokobeani handles any confidential and/or personal information received from Consumer via the Website.
The website kokobeani.com, on which the Goods and Services are advertised.
1. terms for the provision of services
This portion of the Agreement, defined as Section 1, details terms and conditions specific to Kokobeani's provision of Services to Client. The extent of this portion of the Agreement applies only to an Agreement entered into by a Client.
1.1 Project Proposal and Approval form
The terms of the Project Proposal and Approval Form shall be effective for 10 working days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Project Proposal, together with any related terms and conditions and Deliverables, may be subject to change.
1.2 FEES, expenses AND CHARGES
Unless otherwise discussed between Kokobeani and Client; as disclosed within the Project Proposal, Client agrees to pay Kokobeani 50% of the total project cost before commencement of any Services, and the remaining 50% to be paid before transfer of all Final Deliverables to Client.
Client shall pay any of Kokobeani’s expenses incurred in connection with this Agreement as follows: (a) 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 plus Kokobeani’s standard markup of twenty percent (20%), and (b) travel expenses including transportation, meals, and lodging, incurred by Kokobeani with Client’s prior approval.
All invoices are payable within thirty (30) days of receipt. With exception of the Deposit Invoice, a weekly service charge of 10 percent is payable on all overdue balances. Client shall be responsible for all collection or legal fees incurred by lateness or default in payment. If accounts are not current or overdue invoices are not paid in full, Kokobeani reserves the right to withhold delivery and any transfer of ownership of relevant licenses, Preliminary Works, Deliverables, Final Art and/or Final Deliverables.
Estimates and fees are based on normal and reasonable time schedules. Overtime incurred at the Client’s request will be billed at a rate of 1.5 times Kokobeani's standard hourly rate. When possible Kokobeani will advise Client of all situations that may require overtime and the amount of additional compensation that will be charged to meet such requirements. Overtime fees may be incurred if the Client does not meet approval or content deadlines which have been established to meet the desired schedule.
1.3a General Changes
Unless otherwise provided in the Proposal or emailed quote, 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 Kokobeani’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal or emailed quote, despite any maximum budget, contract price or final price identified therein. Kokobeani may extend or modify any delivery schedule or deadlines in the Proposal or emailed quote and Deliverables as may be required by such Changes. Each agreed fee will include a number of rounds of changes permitted and these will be detailed in either the emailed quote, or the confirmation of instruction to proceed email. Any changes beyond this will be chargeable at Kokobeani’s standard hourly rate.
1.3b 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, Kokobeani shall be entitled to submit a new and separate Proposal or emailed quote to Client for written approval. Work shall not begin on the revised services until a fully signed revised Approval Form and, if required, any additional retainer fees are received by Kokobeani.
Kokobeani 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. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Kokobeani. Kokobeani shall be entitled to request written clarification of any concern, objection or correction. All feedback and comments should be received within five (5) working days of receipt of the final art, otherwise approval will be assumed and the project invoiced as complete. Kokobeani reserves the right to use artistic licence if Client instructions are vague and all reasonable attempts to contact the Client result in no further communication. Such work will not be subject to abortion. Client acknowledges and agrees that Kokobeani’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal or emailed quote and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Kokobeani’s obligations under this Agreement. Any impact to deadlines or release date as a result of these changes will be solely the Client’s responsibility.
1.3d Testing and Acceptance
Kokobeani will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Kokobeani, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal or emailed quote, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Kokobeani will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
1.4. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than Kokobeani; (b) ensure all comments and feedback have been seen and approved by senior management or key decision makers before being forwarded to Kokobeani and work on any changes commences; (c) 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 or emailed quote; (d) 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; and (e) proofing of final colours and tones for projects involving a print run. Client will have final responsibility for checking and approving colour information between files supplied and final printed material. All responsibilities for the technical accuracy of 3D models, colours, tones, darks, lights or printed material lay with the client.
1.5. CONFIDENTIALity, accreditation and promotion
1.5a Protection of Proprietary Information
Kokobeani acknowledges potential receipt of and/or access to information / Client Content which relates to Client’s past, present, or future products, vendor lists, creative works, marketing strategies, pending Projects/Proposals, Preliminary Works, and other proprietary information. Each party, including its employees and agents, agrees to protect the confidentiality of proprietary information and all physical forms thereof, whether disclosed to Kokobeani or Client before this Agreement is established or afterward.
1.5b Accreditation of Authorship and Promotion
Unless strict confidentiality is requested by Client in advance of the establishment of this Agreement, Kokobeani reserves the right to display materials and Final Artwork created for Client in Kokobeani's portfolio, throughout Kokobeani's website kokobeani.com, in galleries, articles and other media 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 include a link to the other party’s website.
1.6. RELATIONSHIP OF THE PARTIES
1.6a Independent Contractor
Kokobeani is an independent contractor, not an employee of Client or any company affiliated with Client. Kokobeani shall provide the Services under the general direction of Client, but Kokobeani shall determine, at Kokobeani’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Kokobeani and the work product or Deliverables prepared by Kokobeani shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
1.6b Kokobeani Agents
Kokobeani shall be permitted to engage and/or use third parties or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Kokobeani shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
1.6c No Solicitation
During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Kokobeani employee or Design Agent of Kokobeani, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Kokobeani shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Kokobeani, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
1.6d No Exclusivity
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Kokobeani, and Kokobeani shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Kokobeani.
1.7. WARRANTIES AND REPRESENTATIONS
1.7a By Client
Client represents, warrants and covenants to Kokobeani that (i) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (ii) 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, (iii) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (iv) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
1.7b By Kokobeani
Kokobeani represents, warrants and covenants to Client that Kokobeani will provide the Services identified in the Agreement in a professional manner and in accordance with all reasonable professional standards for such services. Kokobeani further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Kokobeani and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Kokobeani, Kokobeani shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Kokobeani to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Kokobeani’s knowledge, the Final Art provided by Kokobeani and Kokobeani’s subcontractors does 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 emailed quote or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Kokobeani shall be void. Except for the express representations and warranties states in this agreement, Kokobeani makes no warranties whatsoever. Kokobeani explicitly disclaims any other warranties of any kind, either expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
1.8a By Client
Client agrees to indemnify, save and hold harmless Kokobeani 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 any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Kokobeani shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Kokobeani provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Kokobeani in providing such assistance.
1.8b By Kokobeani
Subject to the terms, conditions, express representations and warranties provided in this Agreement, Kokobeani agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Kokobeani’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Kokobeani in writing of the claim; (b) Kokobeani shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Kokobeani with the assistance, information and authority necessary to perform Kokobeani’s obligations under this section. Notwithstanding the foregoing, Kokobeani shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Kokobeani.
1.8c Limitation of Liability
The services and the work product of Kokobeani are sold “as is”. In all circumstances, the maximum liability of Kokobeani, it’s directors, officers, employees, design agents and affiliates (“Kokobeani 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, or otherwise, shall be limited to the net profit of Kokobeani. In no event shall Kokobeani be liable for any lost data or content, lost profits, business interruption or any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Kokobeani, even if Kokobeani has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
1.9. TERM AND TERMINATION
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
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: (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within five (5) days from receipt of written notice of such breach.
In the event of termination, Kokobeani shall be compensated for the Services performed through the date of termination in the amount of (i) any advance payment, (ii) a prorated portion of the fees due, or (iii) hourly fees for work performed by Kokobeani or Kokobeani’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.
In the event of termination by Client and upon full payment of compensation as provided herein, Kokobeani grants to Client such right and title as provided for in Section 13 of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
In the event the Client cancels this Agreement prior to the completion of the Project, within five (5) business days of such cancellation, Client shall pay Kokobeani (i) for all work performed by Kokobeani up to the date of termination, (ii) for all contracted for Outside Expenses and commitments that have been incurred and cannot be cancelled and (iii) a cancellation fee equal to 50% of the remaining fees that would otherwise have been paid to Kokobeani if the Agreement were to have been fully performed.
1.10. I.P. and RIGHTS TO DELIVERABLES OTHER THAN FINAL ARTwork
1.10a Client Content
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 Kokobeani a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Kokobeani’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
1.10b Third Party Materials
All Third Party Materials are the exclusive property of their respective owners. Kokobeani 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 Kokobeani 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 Kokobeani 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.
1.10c Preliminary Works and Assets
Kokobeani retains all rights in and to all Preliminary Works and any Assets created as part of the project. Client shall return all Preliminary Works to Kokobeani within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Kokobeani.
1.10d Original Artwork
Kokobeani 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 Kokobeani within thirty (30) days of completion of the Services.
1.10e Design/Working or Construction Files and Unused Concept Files
Working files, construction files and unused concepts remain the property of Kokobeani. A release fee is required if Client wishes to have working files or any parts thereof. This is determined on a case by case basis. In the event of Termination, prior to the completion of the Services, the Client, upon proper payment of all outstanding Fee(s) for work undertaken, may request the release of the collected working files.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Kokobeani assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Kokobeani for use by Client as a Trademark. Kokobeani 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 Kokobeani 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 Tools are and shall remain the exclusive property of Kokobeani. Kokobeani grants to Client a non-exclusive, 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 Kokobeani.
1.10h Usage and Rights
Kokobeani hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal or emailed quote and in accordance with the terms and conditions of this Agreement. Any models, characters or sketch work created in association with the project will remain the property of Kokobeani. Kokobeani retains the rights to any working files, construction files and unused concepts.
2. terms for the provision of services
This portion of the Agreement, defined as Section 2, details terms and conditions specific to Kokobeani's provision of Goods to Consumer. The extent of this portion of the Agreement applies only to a Contract entered into by a Consumer.
Descriptions of Goods are as defined on the Website, catalogues, brochures or any other form of advertisement. All descriptions are for illustrative purposes only and may contain small discrepancies in details of Goods supplied, including size, colour and weight.
2.1b Special Requirements
In the event of any Goods made to Consumer's special requirements, it is Consumer's responsibility to ensure all information and specification of the Goods are accurate.
All Goods featured on the Website are subject to availability.
Kokobeani reserves the right to make changes to the Goods necessary for compliance with any applicable laws or safety requirements. Consumer will be notified of any undisclosed changes to relevant Goods prior to purchase by Consumer.
2.2 Personal Information
The Consumer expressly agrees that Kokobeani may contact the Consumer through email for promotion of Goods and/or to resolve any issues regarding the purchasing of Goods.
2.3 Basis of Sale
Description of Goods featured on Kokobeani's Website does not constitute a contractual offer to sell the Goods. Upon submission of an Order through the Website, Kokobeani reserve the right to reject said Order for any reason, and will try to inform Consumer of the reason without delay.
2.3b Order Process
The Order process is set out on the Website. Each step allows the Consumer to check and amend any errors before submission of the Order. It is the responsibility of the Consumer to check their correct usage of the ordering process.
2.3c Contract Formation
A Contract will be formed for the sale of Goods ordered only when the Consumer has received an email from Kokobeani confirming the Order (Order Confirmation). The Consumer must ensure that the Order Confirmation is complete and accurate, and must inform Kokobeani of any errors immediately. Kokobeani are not responsible for any inaccuracies in the Order placed by the Consumer. By placing an Order the Consumer consents to Kokobeani providing confirmation of the Contract by means of an email with all necessary information contained within. The Consumer will receive the Order Confirmation within a reasonable time after formation of the Contract, but in any event no later than the delivery of the Goods supplied under the Contract.
Any quotation provided by Kokobeani is valid for a maximum period of 1 day from its date, unless Kokobeani expressly withdraws it at an earlier time.
No variation of the Contract, whether in regards to description of the Goods, Fees or otherwise, can be made after it has been entered into unless a variation is agreed upon in writing by both Kokobeani and the Consumer.
2.4 Price and Payment
The price of the Goods and any additional delivery is that which is set out on the Website at the date of the Order or such other price as both parties may agree to in writing. The Consumer is held solely responsible for any additional costs which may occur during delivery of the Goods, eg - Import Taxes.
2.4c Payment Method
The Consumer must pay by submitting their credit or debit card details with Consumer's Order and Kokobeani can take payment immediately or otherwise before delivery of the Goods.
Kokobeani will ensure delivery of the Goods to the Delivery Location without undue delay and, in any event, not more than 30 days after the day on which the Contract is entered into.
2.5b Delivery Fulfillment
In any case, regardless of events beyond Kokobeani's control, if Kokobeani do not deliver the Goods on time, the Consumer may (in addition to any other remedies) treat the Contract at an end (i) if Kokobeani have refused to deliver the Goods; or (ii) after Kokobeani have failed to deliver on time, Consumer has specified a later period which is appropriate to the circumstances and Kokobeani have not fulfilled delivery within that period.
2.5c Return Payment
If Consumer treats the Contract at an end, Kokobeani will (in addition to other remedies) promptly return all payments made under the Contract.
2.5d Rejection of Goods
If Consumer was entitled to treat the Contract at an end, but did not do so, Consumer is not prevented from cancelling the Order for any Goods or rejecting Goods that have been delivered and, if Consumer does so, Kokobeani will (in addition to other remedies) without delay return all payments made under the Contract for any such cancelled or rejected Goods. If the Goods have been delivered, Consumer must return them to Kokobeani.
2.5e Commercial Units
If any Goods form a commercial unit Consumer may not cancel or reject the Order for some of those Goods without also cancelling or rejecting the Order for the rest of them.
2.5f Delivery Destinations
Kokobeani do not generally deliver to addresses outside England and Wales, Scotland, Northern Ireland, Republic of Ireland, the Isle of Man and Channels Islands. If, however, Kokobeani accepts an Order for delivery outside that area, the Consumer may be required to pay import duties or other taxes on receipt of the Goods.
The Consumer agrees that Kokobeani may deliver the Goods in installments if there is a shortage of stock or other genuine and fair reason, subject to the above provisions and provided Consumer is not liable for extra charges.
2.5h Failure of Receipt
If Consumer or their nominee fails, through no fault of Kokobeani, to take delivery of the Goods at the Delivery Location, Kokobeani may charge the reasonable costs of storing and redelivering them.
2.5i Consumer Responsibility
The Goods will become the responsibility of the Consumer from the completion of delivery. Consumer must, if reasonably practicable, examine the Goods before accepting them. Risk of damage to, or loss of, any Goods will pass to Consumer when Goods are delivered to Consumer.
2.6 Withdrawal, returns and cancellation
2.6a Order Withdrawal
Consumer may withdraw the Order without incurring any liability by informing Kokobeani before the Contract is made.
2.6b Cancellation Rights
Cancellation Rights do not apply to a Contract for the following Goods (with no others) in the following circumstances; (i) goods that are made to your specifications or are clearly personalised, (ii) or in the case of any sales contract, if the goods become mixed inseparably (according to their nature) with other items after delivery.
2.7 Right to Cancel
2.7a Cancellation Options
Subject as stated in these Terms and Conditions, Consumer may cancel this contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day on which Consumer acquires, or a third party, other than the carrier indicated by Consumer, acquires physical possession of the last of the Goods. In a contract for the supply of goods over time (ie subscriptions), the right to cancel will be 14 days after the first delivery. To exercise the right to cancel, the Consumer must inform Kokobeani of the decision to cancel this Contract by a clear statement setting out the decision via email. The Consumer is not obligated to follow any model of language to effectively cancel this Contract, though in any event, Consumer must be able to show clear evidence of when the cancellation was made. The Consumer may also electronically submit a clear statement of the Consumer's decision to cancel the Contract on the Website kokobeani.com. If this option is used, Kokobeani will communicate to the Consumer an acknowledgement of receipt of such a cancellation in a Durable Medium without delay.
2.7b Cancellation Deadlines
To meet the cancellation deadline, it is sufficient for the Consumer to send communication concerning an exercise of the right to cancel before the cancellation period has expired.
2.8 Effects of cancellation in the cancellation period
2.8a Payment Reimbursement
Except as set out below, if Consumer cancels this Contract, Kokobeani will reimburse all payments received by Consumer, including the costs of delivery (except for the supplementary costs arising if Consumer chose a type of delivery other than the least expensive type of standard delivery offered by Kokobeani).
2.8b Deduction for Goods Supplied
Kokobeani may make a deduction from the reimbursement for loss in value of any Goods supplied, if the loss is the result of unnecessary handling by Consumer (ie handling the Goods beyond what is necessary to establish the nature, characteristics and functioning of the Goods). The Consumer would remain liable for that loss and, if that deduction is not made, Consumer must pay Kokobeani the amount of that loss.
2.8c Timing of Reimbursement
Kokobeani will make the reimbursement without undue delay, and not later than (i) 14 days after the day of receipt of Goods supplied, or (ii) (if earlier) 14 days after the day Consumer provided evidence that they have sent back the Goods. If Kokobeani has offered to collect the Goods or if no Goods were supplied, Kokobeani will make the reimbursement without undue delay, and not later than 14 days after the day on which Kokobeani are informed about Consumer's decision to cancel this Contract. Kokobeani will make the reimbursement using the same means of payment as Consumer used for the initial transaction, unless expressly agreed otherwise; in any event, Consumer will not incur any fees as a result of the reimbursement.
2.8d Returning Goods
If Consumer received Goods in connection with the Contract which Consumer cancelled, they are obligated to return the Goods to Eighty81 Creative Workspace, Building 80/81, Ebrington Square, Derry, Co. Derry, BT47 6FA without delay and in any event not later than 14 days from the day on which Consumer communicates to Kokobeani the cancellation of this Contract. The deadline is met if Consumer returns the Goods before the period of 14 days has expired. The Consumer agrees to bear the cost of returning the Goods.
Kokobeani uphold a legal duty to supply the Goods in conformity with the Contract, and will not have conformed if it does not meet the following obligation. Upon delivery, the Goods will (i) be of satisfactory quality; (ii) be reasonably fit for any particular purpose for which the Goods are purchased which, before the Contract is made, Consumer made known to us, unless Consumer does not actually rely, or it is unreasonable for Consumer to rely, on Kokobeani's skill and judgment, and be fit for any purpose held out by us or set out in the Contract; and (iii) conform to their description. It is not a failure to conform if the failure has its origin in Consumer's materials. Kokobeani will contact the Consumer, via email, upon delivery confirmation of the Goods to ensure the quality of the Goods are deemed acceptable.
2.10 Successors and sub-contractors
Either party can transfer the benefit of this Contract to someone else, and will remain liable to the other for its obligations under the Contract.
2.11 Circumstances beyond the control of either party
In the event of any failure by a party because of something beyond its reasonable control (i) the party will advise the other party as soon as reasonably practicable; and (ii) the party's obligations will be suspended so far as is reasonable, provided that that party will act reasonably, and the party will not be liable for any failure which it could not reasonably avoid, but this will not affect the Customer's above rights relating to delivery and any right to cancel.
2.12 Excluding liability
Kokobeani does not exclude liability for (i) any fraudulent act or omission; or (ii) for death or personal injury caused by negligence or breach of Kokobeani's other legal obligations. Subject to this, Kokobeani is not liable for (i) loss which was not reasonably foreseeable to both parties at the time when the Contract was made, or (ii) loss (eg loss of profit) to the Consumer's business, trade, craft or profession which would not be suffered by a Consumer - because Kokobeani believes the Consumer is not buying the Goods wholly or mainly for its business, trade, craft or profession.
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Kokobeani’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given shall be transmitted in writing by 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.
3.3 No Assignment
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
3.4 Force Majeure
Kokobeani shall not be deemed in breach of this Agreement if Kokobeani is unable to complete the Services or any portion thereof by reason of fire, earthquake, terrorism, labour dispute, natural disaster or public enemy, death, illness or incapacity of key members of Kokobeani or any local, national or international law, governmental order or regulation or any other event beyond Kokobeani’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Kokobeani 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.
3.5 Governing Law and Dispute Resolution
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United Kingdom without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through any forum mutually agreed to by the parties.
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.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
This Agreement comprises the entire understanding of the parties on the subject matter contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Project Proposal shall control. This Agreement comprises this Terms and Conditions document, the Project Proposal, and the Approval Form.