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TERMS OF AGREEMENT
By entering into any contract or agreement with Key
Elements Media for products and/or services to be
provided by Key Elements Media, including without
limitation ordering any products or services through
the Key Elements Media web site (hereinafter referred
to as your "Contract" with Key Elements Media), you
hereby agree to abide by, comply with and be legally
bound by the policies, terms and conditions hereinafter
set forth (these "Terms and Conditions").
For purposes of these Terms and Conditions, references
to the products and/or services provided by Key Elements
Media shall include, without limitation, logos, designs,
names, graphics or similar materials or information,
whether or not protectable, printing services, web
design, stationery, brochures, marketing materials,
and other design services, and any and all future
product or service offerings of Key Elements Media.
If you do not agree with any provision of these Terms
and Conditions, you should not order any products
or services from Key Elements Media or enter into
your Contract with Key Elements Media. These Terms
and Conditions are hereby incorporated by reference
into your Contract. To the extent that any provision
of these Terms and Conditions conflicts with any provision
of your Contract, the provision set forth herein shall
be deemed amended so as to be consistent with the
provisions of your Contract.
Key Elements Media reserves the right to modify, amend,
update and change these Terms and Conditions from
time to time with notice via email or other means.
You are responsible for regularly viewing these Terms
and Conditions. You acknowledge and agree that Key
Elements Media shall not be liable to you or to any
third party for any modification, amendment, suspension,
discontinuance or other change to these Terms and
Conditions.
LOGO DESIGN TECHNICALITIES
Colors: The default color model for our logos is
the CMYK format unless you specify that you require
PMS (Pantone) prior to the start of the project. Any
format change after the start of the project will
have an additional charge. File Format: The source
file will be in Adobe Illustrator (.ai) format. The
fonts will be converted into outlines. Other formats
sent will be, JPEG, TIFF, EPS, GIF and PDF. Additional
formats can be required upon request.
PAYMENT
All online services are to be paid in full before
work begins on your project. Key Elements Media shall
be entitled, in its sole and absolute discretion,
to withhold any products or services it is otherwise
obligated to deliver or provide under your Contract
until such time as payment in full has been received
therefore. Key Elements Media will notify you of any
additional charges under your Contract prior to commencing
performance of its obligations there under.
REFUND REQUESTS
In any event, any deposited funds for a project shall
not be subject to refund after delivery of the first
set of proofs for any project. Unless Key Elements
Media cancels or terminates your Contract for a reason
other than your breach or non-performance, Key Elements
Media shall not refund any portion of your purchase
price. If for any reason a refund is granted the $79
deposit will be kept by Key Elements Media, for the
services that have been rendered.
Key Elements Media will only refund your money if
our management team has deemed that Key Elements Media
has not delivered services in an efficient and effective
manner as promised. If a refund is approved, our cash
refund amount is as follows:
Logo Design Refund Policy:
Key Elements Media will retain the following amount:
Full package amount less $99 for the first logo draft
and handling and processing fee. Refunds will not
be granted towards the logo portion of your package,
if you have finalized a logo before requesting a refund.
Stationery Refund Policy:
Key Elements Media will retain the following amount:
$30 for the first draft. Key Elements Media will not
provide refunds on projects that have been finalized.
In no case will the refund amount exceed the pricing
of your stationery design.
Web Design Refund Policy:
Key Elements Media will retain the following amount:
Website design or contract amount less $250 for the
first design draft. Additional design costs to be
charged with refund request: $50 for each draft after
draft 1.
Key Elements Media will not provide refunds on projects
that have been finalized, or if your design has been
converted to HTML, PHP, ASP or flash. In no case will
the refund amount exceed the pricing of your web design
project.
Brochure/Graphic Refund Policy:
Key Elements Media will retain the following amount:
Full brochure package or contract amount less $150
for the first draft. Additional design costs to be
charged with refund request: $50 for each draft after
draft 1. Key Elements Media will not provide refunds
on projects that have been finalized. In no case will
the refund amount exceed the pricing of your brochure
or graphic design.
DELIVERY AND ACCEPTANCE
Upon completion of its products and/or services in
accordance with the terms and conditions set forth
in your Contract, Key Elements Media shall deliver
your product and/or service to a temporary location
designated by Key Elements Media for your review.
Key Elements Media will notify you via e-mail of such
completion and delivery, and the manner in which you
may access the temporary location for purposes of
reviewing your product and/or service. You shall have
60 business days from the date of delivery to said
temporary location to notify Key Elements Media in
writing of your acceptance or rejection of the product
and/or service. Your failure to notify Key Elements
Media in writing of your rejection of the product
and/or service within said 60 day period shall constitute
your acceptance of the product and/or service. In
the event you reject the product and/or service, you
shall notify Key Elements Media in writing of your
rejection within said 60 day period, including a detailed
explanation for such rejection, following which Key
Elements Media shall use commercially reasonable efforts
to provide a substitute or replacement product or
service as soon as practicable. Upon your written
acceptance of the product or service, or any substitute
or replacement product or service, Key Elements Media
shall release and deliver the same to you, to such
location and in such format as agreed upon in your
Contract. This project will be determined to be closed
if we do not have written, phone or in person contact
from 60 days from the last revision. The project may
be re-opened only upon Key Elements Media discretion.
Any notification in the Key Elements Media panel to
"finalize", or written or verbal notification to "finalize"
any project (logo design, stationery design, brochure
design, graphic design, web design, etc.) the project
will be deemed "finalized" and "completed". Key Elements
Media will send you your final files via email or
on disk. Finalization or acceptance of any final files
of any project will fulfill Key Elements Media's Satisfaction
Guaranteed policy.
LOGO DESIGN DELIVERY
Our standard delivery time for first drafts and revisions
is three (3) to five (5) business days.
STATIONERY DESIGN DELIVERY
Our standard delivery time for first drafts and revisions
is three (3) to five (5) business days.
GRAPHIC/BROCHURE DESIGN DELIVERY
Our standard delivery time for first drafts is five
(5) to seven (7) business days. Our standard delivery
time for brochure revisions is three (3) to five (5)
business days.
WEB DESIGN DELIVERY
Our standard delivery time for your first draft and
new concepts is five (5) to seven (7) business days
after initial consultation. Our standard delivery
time for web revisions is five (5) to seven (7) business
days.
SATISFACTION GUARANTEED PROVISION
The "satisfaction guarantee" means that all reasonable
efforts will be made to create a product that meets
your reasonable specifications within the confines
of each package. This means that if you are still
not satisfied after the number of redraws in the package
you ordered and after all revisions have been made
to your final design selection, Key Elements Media
will attempt create a design that will be acceptable
to you. However, if a "reasonable person" defined
under New Brunswick law would be satisfied based on
the design specifications you set out on the order
form, we are not obligated to continue creating logo
designs. If you failed to provide "reasonable" information
that will assist our designers in coming up with a
design, then Key Elements Media will not be held liable.
If Key Elements Media believes the "reasonable person"
would have accepted the logos, your only recourse
is to commence arbitration at your expense with an
arbitrator sanctioned and approved by the Better Business
Bureau. Further, you agree that Key Elements Media's
appearance at said arbitration can be via phone and
that the arbitrator can only make a ruling requiring
Key Elements Media to create additional designs, refund
your amount less the deductions noted in the payment
paragraph, or rule that the current designs would
have been accepted by a reasonable person. If the
arbitrator rules that a reasonable person would not
have been satisfied by our designs, Key Elements Media
will comply with any additional designs ordered to
be created by the arbitrator.
PROPRIETARY RIGHTS
You represent and warrant that you are the owner
of or have the exclusive right to use any and all
proprietary information you provide to Key Elements
Media or refer to Key Elements Media in furtherance
of or in connection with your Contract, including
without limitation any and all trade names, trademarks,
copyrights, graphics, designs, logos, written content/copy
for any use, to include copy for web design and brochures/flyers
and similar materials or information.
Key Elements Media MAKES NO REPRESENTATION OR WARRANTY
THAT IT HAS THE EXCLUSIVE RIGHT, TITLE AND INTEREST
IN AND TO THE PRODUCTS AND/OR SERVICES PROVIDED TO
YOU OR THAT SUCH PRODUCTS AND/OR SERVICES DO NOT AND
WILL NOT INFRINGE ON THE INTELLECTUAL PROPERTY OR
PROPRIETARY RIGHTS OF ANY THIRD PARTY. Key Elements
Media WILL NOT TAKE ANY ACTION IN FURTHERANCE OF PROTECTING
THE PRODUCTS AND/OR SERVICES TO BE DELIVERED UNDER
YOUR CONTRACT, AND WILL DELIVER THE SAME "AS IS" AND
WITHOUT ANY REPRESENTATION OR WARRANTY AS TO YOUR
ABILITY TO USE SUCH PRODUCTS AND/OR SERVICES OR TO
OBTAIN TRADEMARK, COPYRIGHT OR SIMILAR PROTECTION
OF SUCH PRODUCTS AND/OR SERVICES, IN THE UNITED STATES
OR ANY OTHER JURISDICTION.
Upon your acceptance of the product or service and
Key Elements Media's receipt of payment in full therefor,
Key Elements Media will assign, convey, transfer and
deliver all of its right, title and interest in and
to the products and/or services developed by Key Elements
Media for you under the terms of your Contract. Any
products or services, including samples, rejected
or otherwise not delivered by Key Elements Media and
accepted by you shall at all times remain the property
of Key Elements Media and you shall have no right
in or to such products or services.
Key Elements Media retains and reserves the perpetual,
royalty-free right to use any and all products and/or
services developed by Key Elements Media for display
and self-promotional purposes, regardless of your
acceptance and Key Elements Media's delivery of the
same to you. Key Elements Media specializes in designing
custom logos. We can not grant requests duplicate
any designs that have been previously designed by
Key Elements Media or any other company unless you
can provide notarized written notice from an executive
member of the company. Key Elements Media will design
a logo with a similar look and feel as the design
you requested. Refunds will not be provided to companies
who have ordered logos and did not receive an identical
design to an already trademarked or designed logo.
Key Elements Media will work with your company to
develop an original design you are satisfied with.
TERMINATION
Key Elements Media reserves the right, in its sole
discretion and for any reason whatsoever, to reject,
cancel or terminate, permanently or temporarily, your
order for any product or service offered by Key Elements
Media, your Contract and/or your access to the Key
Elements Media web site, at any time and without prior
notice. You agree that Key Elements Media shall not
be liable to you or any third party for any rejection,
cancellation or termination of your order, your Contract
or your access to the Key Elements Media web site.
In the event that Key Elements Media rejects, cancels
or terminates your Contract or your order for a reason
other than your breach or non-performance under your
Contract, Key Elements Media will return any amounts
prepaid by you relating to the rejected, canceled
or terminated Contract or order.
DISCLAIMER OF WARRANTIES
YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE
INFORMATION, SOFTWARE, CODES, PRODUCTS, SERVICES,
TEXT, GRAPHICS, LOGOS OR OTHER ITEMS AND MATERIALS
PROVIDED OR MADE AVAILABLE BY Key Elements Media ARE
PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY
OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY LAW, Key Elements
Media HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF ANY
KIND, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
SUITABILITY, INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE. Key Elements
Media MAKES NO WARRANTY THAT ITS PRODUCTS OR SERVICES
WILL BE PROVIDED IN A TIMELY AND SECURE MANNER, OR
WITHOUT ERRORS OR DEFECTS, OR THAT ITS PRODUCTS OR
SERVICES WILL NOT INFRINGE ON THE INTELLECTUAL PROPERTY
OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. Key Elements
Media DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM
YOUR USE OF THE PRODUCTS OR SERVICES PROVIDED Key
Elements Media WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL Key Elements Media OR ANY SUBSIDIARY, AFFILIATE,
OFFICER, DIRECTOR, SHAREHOLDER, AGENT, EMPLOYEE OR
REPRESENTATIVE THEREOF BE LIABLE TO YOU OR ANY THIRD
PARTY MAKING A CLAIM THROUGH YOU FOR ANY DAMAGES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO ANY SPECIAL, INCIDENTAL,
DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES
WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR
LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION
OR LOSS OF INFORMATION OR THE COST OF PROCUREMENT
OF SUBSTITUTE PRODUCTS OR SERVICES), ARISING OUT OF
OR RELATED TO YOUR CONTRACT, THESE TERMS AND CONDITIONS,
OR THE PRODUCTS OR SERVICES PROVIDED BY Key Elements
Media TO YOU, EVEN IF Key Elements Media HAS BEEN
ADVISED OF THE POTENTIAL FOR SUCH DAMAGES AND WHETHER
SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT,
UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE. NOTWITHSTANDING
ANY PROVISION TO THE CONTRARY CONTAINED IN YOUR CONTRACT
OR THESE TERMS AND CONDITIONS, Key Elements Media's
LIABILITY TO YOU FOR ANY DAMAGES RELATED TO OR ARISING
OUT OF THE CONTRACT OR Key Elements Media's PROVISION
OF PRODUCTS OR SERVICES SHALL NOT EXCEED THE AGGREGATE
AMOUNT PAID BY YOU TO Key Elements Media UNDER YOUR
CONTRACT OR FOR SUCH PRODUCTS OR SERVICES.
PRINTING LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL Key Elements Media OR ANY SUBSIDIARY, AFFILIATE,
OFFICER, DIRECTOR, SHAREHOLDER, AGENT, EMPLOYEE OR
REPRESENTATIVE THEREOF BE LIABLE TO YOU OR ANY THIRD
PARTY MAKING A CLAIM THROUGH YOU FOR ANY PRINTING
DAMAGES WHATSOEVER, (to include for example, yet not
excluding any other printing issues: color variation,
product delivery, pricing, condition of product upon
delivery, necessity or quality of printed proofs,
typing or content errors) as they may relate to print
services that have been fulfilled by vendors or companies
outside of and for Key Elements Media. This includes
any vendors that may be listed on keyelementsmedia.com.
Color variation from your computer screen (RGB) to
printed colors (PMS/Pantone or CMYK) colors can vary
significantly. Key Elements Media highly recommends
that you request a printed proof prior to finalizing
or approving your print materials with your print
vendor. Key Elements Media does not provide printing
services and therefore will not be responsible for
providing refunds for designs or printed materials
as a result of color variation, printing costs or
any other printed expense after you have approved
your final design.
INDEMNIFICATION
You agree to indemnify and hold Key Elements Media,
its subsidiaries, affiliates, directors, officers,
shareholders, agents and employees, harmless from
and against any loss, damage, liability, cost or expense
of any kind, including attorneys' fees, incurred by
Key Elements Media in connection with a third party
claim, demand or otherwise, due to, arising out of,
related to or otherwise attributable to the actual
or alleged infringement or violation of any intellectual
property right asserted by a third party, or otherwise
arising out of or related to (i) any materials or
intellectual property provided by you in furtherance
of the project contemplated by your Contract, or (ii)
your use of any of the products or services provided
by Key Elements Media pursuant to your Contract.
COPYRIGHT AND TRADEMARK NOTICES
All intellectual property of Key Elements Media,
including all web site screens and portions thereof,
graphics, original text elements, site design, logos,
pictures and icons, as well as the selection, format
and organization thereof, constitute proprietary and
confidential information that is protected by applicable
intellectual property and other laws. Except as expressly
authorized by Key Elements Media in writing or otherwise
required by applicable law, any rent, lease, sale,
modification, duplication, distribution, alteration,
retransmission or publication of any intellectual
property or proprietary information of Key Elements
Media is strictly prohibited.
Copyright © 2008 by Key Elements Media. All rights
not expressly granted herein are reserved.
GOVERNING LAW
These Terms and Conditions shall be interpreted,
construed, governed by and enforced in accordance
with the laws of the Province of New Brunswick. Under
no circumstances shall the laws of any other province
be applied, even where such a result would be implicated
by conflict of law principles. You hereby irrevocably
consent to the personal and exclusive jurisdiction
and venue of the federal and provincial courts located
in New Brunswick, Canada regarding any and all disputes
relating to your Contract or these Terms and Conditions.
GENERAL
These Terms and Conditions, together with your Contract,
shall constitute the sole agreement and understanding
between you and Key Elements Media regarding the matters
set forth herein, and any and all previous agreements
and understandings between or among you and Key Elements
Media regarding the subject matter hereof, whether
written or oral, other than your Contract, are superseded
by these Terms and Conditions. No agreement or other
understanding other than your Contract purporting
to modify these Terms and Conditions shall be binding
upon Key Elements Media unless otherwise agreed to
by Key Elements Media in writing. The failure of Key
Elements Media to exercise or enforce any right or
provision of these Terms and Conditions shall not
constitute a waiver of such right or provision. Any
provision of these Terms and Conditions which is invalid
or unenforceable in any jurisdiction shall be ineffective
to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the
remaining provisions hereof; and any such invalidity
or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision
in any other jurisdiction.
Any questions concerning these Terms and Conditions
should be directed to:
Key Elements Media
Attention: Debbie Jones
56 Tanya Avenue Douglas, NB Canada E3A 8A6
Phone: 506-476-5000 (Mon-Fri, 8am - 5pm ATL / Mon-Fri,
7am - 4pm EST)
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