Terms & Conditions
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The personal information you provide is used only to respond to your request. You may choose not to provide us with a phone number. At the time the information is collected, we will let you know the specific purpose that we are collecting it for. We will not distribute the personal information collected to third-parties without your prior consent.
If you would like information regarding how to protect your privacy, please visit the Information and Privacy Commissioner of Ontario.
Terms and Conditions
- Terms and Conditions Provisions
- Acceptance of Quotes, Project and Terms and Conditions
- Client Responsibilities
- Charges and Payment
- Cancellation and Default
- Copyrights, Trademarks, Ownership and Licensing
- Accreditations and Promotions
- Data Formats and Image Requirements
- 11.1 Rights of Access for Website Construction
- 11.2 Website Design
- 11.3 Hosting Websites
- 11.4 Domain Registration
- 11.5 Search Engine Submission
- 11.6 Unauthorized Access
- 11.7 Hyperlinks and Advertisements
- 11.8 Fifth and Missing Website
- 12.1 Colour Variations
- 12.2 Accepting Proofs
- 12.3 Submitting Artwork
- 12.4 Printer’s Terms and Conditions
- 12.5 General
- 12.6 Samples
- Logo Design
- Design Credits
- Turnaround Times & Deadlines
- Rights of Refusal
“Fifth and Missing” refers to Fifth and Missing Design Group.
“Client” refers to any person, company, sole proprietorship, corporation or similar that approaches or hires Fifth and Missing Design Group for any product or service.
“Services” refer to all services and the work product to be provided to the client by Fifth and Missing as described via email or in discussion with the client and otherwise further defined in the quote.
2. Terms and Conditions Provisions
These Terms and Conditions apply to all products and services provided by Fifth and Missing and can be read on Fifth and Missing’s website.
When clients commission Fifth and Missing for design or advertising work, those clients agree to be bound by these Terms and Conditions. All work is carried out by Fifth and Missing and any of its subcontractors on the understanding that the client has agreed to Fifth and Missing’s Terms and Conditions.
These Terms and Conditions supersede any previous Terms and Conditions distributed in any form. Fifth and Missing reserves the right to change any rates and any of the Terms and Conditions at any time and without prior notice. Fifth and Missing reserves the right to amend these Terms and Conditions. Amendments will be effective immediately. It is the responsibility of the client to refer to the most current Terms and Conditions.
If any of the Terms and Conditions in the Agreement are held to be invalid, unenforceable or illegal for any reason, the remaining Terms and Conditions shall nevertheless continue in full force.
If Fifth and Missing waives any rights under these Terms and Conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
Fifth and Missing accepts no liability for any failure to comply with these Terms and Conditions where such failure is due to circumstance beyond Fifth and Missing’s reasonable control.
To the extent permitted by law, any condition or warranty which would otherwise be implied into these Terms and Conditions is hereby excluded.
3.1 Client Content means all materials, information, photography, writings and other creative content provided by the client for use in the preparation of and/or incorporation in the Deliverables.
3.2 Deliverables means the services and work product speciﬁed in the quote to be delivered by Designer to Client, in the form and media speciﬁed in the Proposal.
3.3 Designer Tools means all design tools developed and/or utilized by Designer 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.
3.4 Final Art means all creative content developed or created by Designer, or commissioned by Designer, 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 Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
3.5 Final Deliverables means the ﬁnal versions of Deliverables provided by Designer and accepted by Client.
3.6 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Designer and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
4. Acceptance of Quotes, Project and Terms and Conditions
Fifth and Missing will provide the client with a quotation for proposed work. A copy of the quotation must be signed by the client and returned to Fifth and Missing. Alternatively, the client may send approval via email correspondence in reply to the quotation. Fifth and Missing will provide services only when a written or email agreement has been entered into.
The placement of an order for design and/or any other services offered by Fifth and Missing and validated by the client’s approval via email reply or signature on the quotation, constitutes acceptance of the quotation and agreement to comply fully with all the Terms and Conditions. This signature or email reply forms a Contract for Business between the signatory and Fifth and Missing.
No project will commence until documented acceptance has been received by Fifth and Missing.
The terms of the quote shall be effective for 30 days after presentation to the client. In the event the agreement is not executed by the client within the time identified, the quote, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
5. Client Responsibilities
The client acknowledges that they shall be responsible for performing the following in a reasonable and timely manner:
- Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
- Provision of accurate and complete information and materials requested by Fifth and Missing including, but not limited to, color/material samples and all applicable codes, rules and regulation information;
- Provision of approved naming, nomenclature; securing approvals and correct copy from third parties;
- Coordination of any decision-making with parties other than Fifth and Missing;
- Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the quote;
- Final proofreading and written approval of all project documents. In the event that the client has approved work containing errors or omissions, including, but not limited to, typographic errors or misspellings, the client shall incur the cost of correcting such errors; and,
- Final proofreading and in the event that the client has approved Deliverables but errors, including, but not limited to, typographic errors or misspellings, remain in the ﬁnished product, the client shall incur the cost of correcting such errors.
6. Charges and Payment
Charges for services to be provided by Fifth and Missing will be set out in the initial quotation. At the time of the client’s acceptance of this quotation and therefore also the Terms & Conditions, a non-refundable deposit of 50% of the quoted fee on all projects totalling $1,000 or more (before shipping and taxes) will become immediately due.
Any additions to the initial design brief made by the client once the project has started may incur additional costs over and above the original quotation.
Total charges, including charges for what Fifth and Missing deem to be additional services over and above the original quotation, will become fully payable at either the next deposit due date or at final invoicing, as applicable.
When projects are complete, Fifth and Missing will require indication by the client that the project has been officially approved. This approval can be given via email correspondence or via a signed approval form.
When projects are complete, Fifth and Missing will issue the final invoice to the client and the amount due will become payable. Accounts which remain outstanding for 30 days after the date of invoice, will incur an extra charge of 2% per month (24% per annum) of the outstanding amount.
Payments may be made by cash, cheque, certified cheque, or previously agreed electronic funds transfer.
Returned cheques will incur an additional fee of $50 per returned cheque. Fifth and Missing reserves the right to consider an account to be in default in the event of a returned cheque.
7. Cancellation and Default
Cancellation of projects must be made in writing. The client will be liable for payment of all work completed up to point of cancellation. An invoice for the amount owing will be issued and payment must be paid within 30 days.
An account shall be considered default if it remains unpaid for 30 days from the date of invoice, or following a returned cheque. Fifth and Missing shall be considered entitled to remove Fifth and Missing’s and/or the client’s material from any and all computer systems, until the amount due has been fully paid. This includes any and all unpaid monies due for services, including, but not limited to, hosting, domain registration, search engine submission, design and maintenance, sub-contractors, printers, photographers and similar. Removal of such materials does not relieve the client of their obligation to pay the amount due.
Clients whose accounts become default agree to pay Fifth and Missing reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions and collection of overdue payments.
8. Copyrights, Trademarks, Ownership and Licensing
Fifth and Missing retains all rights in and to all Preliminary Works. The client shall return all Preliminary Works to Fifth and Missing within thirty (30) days of completion of services and all rights in and to any Preliminary Works shall remain the exclusive property of Fifth and Missing.
Fifth and Missing retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. The client shall return all original artwork to Fifth and Missing within thirty (30) days of completion of services.
All Designer Tools are and shall remain the exclusive property of Fifth and Missing. Fifth and Missing hereby grants to the client a nonexclusive, non transferable (other than the right to sublicense such uses to the 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. The 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 Fifth and Missing.
Fifth and Missing reserves copyright and all other intellectual property rights on all documents and images on all design work including words, pictures, ideas, visuals and illustrations unless specifically released in writing and after all costs have been settled.
Any artwork, images, or text supplied and/or designed by Fifth and Missing on behalf of the client, will remain the property of Fifth and Missing and/or its suppliers.
The client may request in writing from Fifth and Missing, the necessary permission to use materials for which Fifth and Missing holds the copyright in forms other than for which it was originally supplied, and Fifth and Missing may grant this at their discretion. Such permission must be obtained in writing before it will allow any of the aforesaid artwork, images, text, or other data to be used.
By supplying text, images and other data to Fifth and Missing for inclusion in the client’s website or other medium, the client declares that it holds the appropriate copyright and/or trademark permissions. The ownership of such materials will remain with the client, or rightful copyright or trademark owner. By supplying images, text, or any other data to Fifth and Missing, the client grants Fifth and Missing permission to use this material freely in the pursuit of the design.
Fifth and Missing will accept no liability for infringement of copyright resulting from material supplied by the client. It is the client’s responsibility to ensure they are using all text and graphics legally and Fifth and Missing reserves the right to decline to use material if there is sufficient reason to believe a copyright violation is taking place.
Should Fifth and Missing, or the client supply an image, text, audio clip or any other file for use in a website, multimedia presentation, print item, exhibition, advertisement or any other medium believing it to be copyright and royalty free, which subsequently emerges to have such copyright or royalty usage limitations, the client will agree to allow Fifth and Missing to remove and/or replace the file on the site, as appropriate.
It is the client’s responsibility to determine whether use of any printed or web based material satisfies the laws of the jurisdiction where it will be used/viewed/distributed or similar. The client agrees to fully indemnify and hold Fifth and Missing free from harm in any and all claims resulting from the client not having obtained all the required copyright, and/or any other necessary permission.
Any design, copywriting, drawing, idea, system or code created for the client by Fifth and Missing, or any of its contractors, is licensed for use by the client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express written consent of Fifth and Missing and any of its relevant sub-contractors.
All design work, where there is a risk that another party may make a claim, should be registered by the client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. Fifth and Missing will not be held responsible for any and all damages resulting from such claims. Fifth and Missing is not responsible for any loss, or consequential loss, non-delivery of products or services, of whatever cause. The client agrees not to hold Fifth and Missing responsible for any such loss or damage.
Artwork designed by Fifth and Missing will remain the property of Fifth and Missing – this includes but is not limited to flattened concepts, PSD files, sketches and wireframes. Fifth and Missing can supply a copy of the flattened artwork to the client on completion of payment.
Fifth and Missing will store all relevant emails and written communication as a permanent record.
9. Accreditations and Promotions
Fifth and Missing shall have the right to document, photograph or otherwise record all completed designs or installations of the project, and to reproduce, publish and display such documentation, photographs or records for Fifth and Missing’s promotional purposes.
Fifth and Missing retains the right to reproduce, publish and display the Deliverables in Fifth and Missing’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.
10.Data Formats and Image Requirements
Text is to be supplied to Fifth and Missing in electronic format such as MS Word, by CD/DVD, via e-mail or uploaded through access to Fifth and Missing’s FTP site. The client agrees to Fifth and Missing’s definition of acceptable means of supplying data to the company.
Images which are supplied in an electronic format must be of a quality suitable for use. Fifth and Missing will not be held responsible for any image quality which the client later deems to be unacceptable. Fifth and Missing cannot be held responsible for the quality of any images which the client wishes to be scanned from printed materials.
Additional expenses may be incurred for any necessary image work, including, but not limited to, image manipulation, photography and art direction, photography searches, media conversion, digital image processing, or data entry services.
11.1 Rights of Access for Website Construction
The client agrees to allow Fifth and Missing all necessary access to read/write permissions, usernames and passwords until all due funds are cleared in order to complete a website project. The client also agrees to allow Fifth and Missing access to any usernames and passwords required to remove data and/or sites for failure to comply with these Terms and Conditions.
The client agrees to supply Fifth and Missing with all necessary materials, electronic, or otherwise, required to create and complete the project, and to supply them in a timely manner.
11.2 Website Design
Unless otherwise stated in the quotation, Fifth and Missing will provide one initial design concept based on feedback from the initial client meeting. If this concept is not suitable, Fifth and Missing will provide a second concept based on further feedback from the client. Any new concepts after these initial two concepts will be charged on a per hour basis. Once a concept design is chosen, reasonable revisions to this concept are included in the cost of the website construction.
Fifth and Missing will determine what constitutes a “reasonable revision” and will advise the client that revisions are going beyond what was included in the initial quote.
Any revisions to approved pages, or changes to previous client changes will be charged at an hourly rate.
Once a website design is deemed to be complete by either the client or Fifth and Missing, Fifth and Missing will provide the client with the opportunity to review the resulting work. Fifth and Missing will make one set of minor changes at no extra cost within 14 days of the start of the review period. Minor changes include small textual changes and small adjustments to placement of items on the page. Minor changes do not include changes to images, colour schemes or any navigation features.
Fifth and Missing will consider that the client has accepted the original draft, if no notification of changes is received in writing from the client, within 14 days of the start of the review period.
Although every care is taken to provide links to suitable material from this site, the nature of the Internet prevents us from guaranteeing the quality, suitability, completeness or accuracy of any of the material that the client site may be linked to.
Consequently, Fifth and Missing can accept no responsibility for the content of that material including any unsuitable or inaccurate material that the client may want to include.
11.3 Hosting Websites
Fifth and Missing offers hosting services. Refer to Terms and Conditions – Website Hosting (coming soon) for the terms and conditions governing Fifth and Missing’s website hosting services.
11.4 Domain Registration
Fifth and Missing cannot guarantee the availability of any domain name. Where Fifth and Missing is to register a domain name on behalf of a client it will endeavour to do so but the client should not assume a successful registration.
11.5 Search Engine Submission
Due to the number of considerations that search engines use when determining a site’s ranking, Fifth and Missing cannot guarantee any particular placement. Acceptance by any search engine cannot be guaranteed. The time it takes for the website to appear in search results varies from one search engine to another. Rankings will also vary as new sites are added.
11.6 Unauthorized Access
The client agrees to acknowledge that despite all reasonable precautions on the part of Fifth and Missing, there is a risk of unauthorised access to or alteration of transmissions of client data, or of information contained on computer systems or on Fifth and Missing’s website. Fifth and Missing does not accept responsibility or liability of any nature for any such losses which a client may sustain as a result of such activity.
The client must take their own precautions to ensure that the process employed for accessing the internet does not expose themselves to the risk of viruses, malicious computer codes or other forms of interference which may damage your own computer system. Fifth and Missing does not accept responsibility for any interference or damage to client computer systems which arises in connection with client use of Fifth and Missing’s website or any linked website.
11.7 Hyperlinks and Advertisements
When a client requests a hyperlink or advertisement to be included by Fifth and Missing in a website design, the responsibility for the content of hyperlinks or advertisements appearing on that site rests solely with the website operator of the hyperlink or the advertisers. The placement of such advertisements does not constitute a recommendation or endorsement by Fifth and Missing of the advertisers’ products and each advertiser is solely responsible for any representations made in connection with its advertisement.
11.8 Fifth and Missing Website
All of the material published on Fifth and Missing’s website is for information purposes only and does not constitute advice. While Fifth and Missing has no reason to believe that any information contained on their own website is inaccurate, Fifth and Missing does not warrant the accuracy, adequacy or completeness of such information. While Fifth and Missing have made every effort to ensure that information is free from error, Fifth and Missing does not guarantee that the information or images are current, complete or correct and therefore accepts no responsibility. We do not accept responsibility for loss suffered as a result of reliance by anyone upon the accuracy or currency of information contained on the Fifth and Missing website.
Fifth and Missing does not accept liability for errors, omissions in, delays or interruptions to or cessation of access to the Fifth and Missing website, through negligence or for any other reason whatsoever. Fifth and Missing does not guarantee that their website or third party websites will be free from viruses. Fifth and Missing may withdraw completely, or suspend for a period of time, this website, or access to it for any reason.
Fifth and Missing does not accept responsibility for any loss or damage, however caused (including through negligence), which anyone may directly or indirectly suffer in connection with their use of the Fifth and Missing website or any linked website, nor does Fifth and Missing accept any responsibility for any such loss arising out of anyone’s use of, or reliance on, information contained on or accessed through Fifth and Missing’s website.
Fifth and Missing provides printing services and will take all necessary steps to ensure a printed job is completed to the client’s satisfaction. In the event a printed job is not completed to the client’s satisfaction, Fifth and Missing will take reasonable steps to improve the situation.
12.1 Accepting Proofs
Should Fifth and Missing request the client to accept artwork proofs directly, the client is held fully responsible for all content being proofed, including design, spelling, grammar, colour, quantity and similar. It is the client’s responsibility to request another proofed copy if the provided proof is difficult to read or if changes are required. The final accepted proof will be printed. If the client approves the proof but is dissatisfied with the result, Fifth and Missing may, if appropriate, inquire to the printer on the client’s behalf and assist in resolving the matter, but there will be no reprints at Fifth and Missing’s expense.
12.2 Submitting Artwork
Clients who submit their own artwork are fully responsible for the end result of printing. Fifth and Missing will send to print whatever is submitted and take no responsibility for artwork mistakes.
If changes are required to artwork submitted by a client, Fifth and Missing will contact the client before sending the artwork to the printer to avoid possible printing problems from occurring. An artwork fee will be charged for any changes required and there will be no reprints at Fifth and Missing’s expense.
12.3 Colour Variations
There may be colour variations from what the client views on screen, to the colour of the final printed product, and to previous orders. It is the responsibility of the client to approve a proof before the project is printed. Should the client not request or approve a printer proof, Fifth and Missing will not be held responsible for any errors or colour variations deemed unacceptable by the client. There will be no reprints at Fifth and Missing’s expense.
12.4 Printer’s Terms and Conditions
Fifth and Missing and its clients agree to comply with Printers Terms and Conditions which include disclaimers for non-completion on time and the flexibility to supply quantities within a percentage of the total ordered. Fifth and Missing recommend that if an exact quantity is required, then a percentage extra is added to the quantity and extra time made available should the job be delayed.
The percentage difference varies among printers, typically from 2% to 10% depending on quantities.
It is the client’s responsibility to ensure the document/project is thoroughly proof-read before approving Fifth and Missing to send the project to print. Fifth and Missing will not accept liability for mistakes that are discovered as the document is being printed, or after the document has been printed. While Fifth and Missing will make a reasonable effort to ensure every project is free from errors or omissions, Fifth and Missing will accept no responsibility once the client has approved the project to go to print.
Furthermore, Fifth and Missing will accept no liability for losses incurred due to inaccuracy or omission of any printed material.
Fifth and Missing accepts no liability for the actions of the printing company and will not be liable for any costs incurred or loss of earnings following a failure of the printing service. Any dispute of this nature must be settled between the client and the printing company directly.
12.6. Logo Design
The client shall provide Fifth and Missing with at least three (3) of samples of each printed or published form of the Final Deliverables, for use in Designer’s portfolio and other self-promotional uses. Such samples shall be representative of the quality of work produced.
13. Logo Design
Fifth and Missing will provide a minimum of 3 initial logo concepts. If none of these logos are satisfactory Fifth and Missing will provide an additional 2 unique logo concepts based on client feedback. If additional logo concepts are required, additional charges will be incurred.
The client may request to see colour variations of any of their initial logo concepts. Up to 12 colour variations are included in the cost of developing the logo.
Reasonable revisions to concepts as determined by Fifth and Missing, are included in the cost of developing the logo.
14. Design Credits
The client agrees to allow Fifth and Missing to place a small credit and/or a link to Fifth and Missing’s own website on the client’s website. This will usually be in the form of a small logo or line of text placed towards the bottom of the page.
The client also agrees to allow Fifth and Missing to place websites and other designs, along with a link to the client’s site on Fifth and Missing’s own website for demonstration purposes and to use any designs in its own publicity.
15. Turnaround Times & Deadlines
Any indication given by Fifth and Missing of a design project’s duration is to be considered by the client to be an estimation. Fifth and Missing will make every reasonable attempt to fulfill client deadlines but cannot be held responsible for any missed deadlines or project over-runs. Fifth and Missing accepts no liability for failure to meet deadlines due to delays caused by the client, such as not supplying required materials in a timely manner.
Estimated project duration should be deemed to be from the date that cleared funds are received by Fifth and Missing for the initial payment or by date confirmed in writing by Fifth and Missing.
The typical turnaround time for printing is 5-15 working days depending on the project and quantities being printed. This turnaround time is from the time of approval to the time when the client receives their order. Artwork design time is extra.
Fifth and Missing will not be held liable for printing products that are damaged, lost or delayed when delivered by post or courier.
17. Rights of Refusal
Fifth and Missing will not include in its designs, any text, images or other data which it deems to be immoral, offensive, obscene or illegal. It is the client’s responsibility to ensure that all advertising material conforms to all standards given by all relevant advertising standards authorities in all countries/jurisdictions or similar where that advertising will be used.
Fifth and Missing reserves the right to refuse to include submitted material without giving reason. Any images and/or data that Fifth and Missing does include in all good faith, and then finds out that it contravenes these Terms and Conditions, the client is obliged to allow Fifth and Missing to remove the contravention without hindrance, or penalty. Fifth and Missing is to be held in no way responsible for any such data being included.
18. Subcontractors and Other Agencies
Fifth and Missing reserves the right to use the services of sub-contractors, other agencies, agents and suppliers and any work, content, services and usage is bound by their Terms and Conditions. Fifth and Missing will not knowingly perform any actions to contravene these and the client also agrees to be so bound.
Fifth and Missing may use the services of subcontractors and other agencies at their discretion. It is up to the discretion of Fifth and Missing to inform their clients when subcontractors are being used.
Fifth and Missing makes no warranties of any kind, express or implied, for any and all products and/or services that it supplies. Fifth and Missing will not be held responsible for any and all damages resulting from products and/or services it supplies. Fifth and Missing is not responsible for any loss, or consequential loss of data, or non-delivery of products or services, of whatever cause. While we take reasonable steps to investigate the materials we recommend, we accept no responsibility for the performance or quality of materials or any consequential loss arising from their failure. The client agrees not to hold Fifth and Missing responsible for any such loss or damage.
If a choice of design is presented, only one solution is deemed to be given by Fifth and Missing as fulfilling the contract. All other designs remain the property of Fifth and Missing, unless agreed in writing that this arrangement has been changed.
All quotes exclude applicable taxes and shipping unless otherwise stated.