Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: these Terms and Conditions together with the Project Specification.
Background IP: all Documents, information and materials containing Intellectual Property Rights provided by the Supplier relating to the Services which existed prior to the commencement of this Agreement or which are developed by the Supplier and which are included in the Deliverables but which are generic or non-Project specific and could be used to support other non-competing projects without prejudice to the Client.
Client Equipment: any equipment, systems, cabling or facilities provided by the Client and used directly or indirectly in the supply of the Services.
Client’s Manager: the Client’s manager for the Project, appointed in accordance with clause 4.1.
Content: the video and audio content and other material or components (in whatever form or media including in the Documents) forming part of and/or comprising the Deliverables.
Deliverables: all video, motion graphics, Content and related Documents, products and materials specifically developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Project.
Document: includes, in addition to any document in writing, any specification, diagram, design, story-board, picture or other image, disk or other device or record embodying the Deliverables.
Foreground IP: All documents, information and materials containing Intellectual Property Rights which have been commissioned by and are developed specifically for the Client in accordance with this Project and which form the Deliverables.
In-put Material: all Content, information and materials (whether third party copyright or not) sourced, contributed or provided by the Client relating to or for inclusion in the Deliverable, including, but without limitation, all of the in-put material identified in the Project Specification.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Project: the project as described in the Project Specification.
Project Specification: the agreed specification describing the Project and setting out the estimated timetable and responsibilities for the provision of the Services.
Services: the services to be provided by the Supplier under this Agreement as more particularly set out in the Project Specification.
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client.
Supplier’s Manager: the Supplier’s manager for the Services appointed under clause 3.3.
Term: the period from the Project Start Date to completion of the Project anticipated to be as shown in the Project Specification, subject to earlier termination in accordance with the terms of this Agreement.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality.
1.2 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.3 References to clauses and schedules are to the clauses and schedules of this Agreement.
2. RECITALS, APPOINTMENT AND TERM
2.1 The Supplier, through its employees, consultants and sub-contractors, specialises in creating video animation and motion graphics (and providing related consultancy services) for use on multiple platforms and is able to provide the Services to the Client in accordance with this Agreement.
2.2 The Client has identified a need for the performance of the Services as set out in the Project Specification and requires the Supplier to perform them in consideration for the payments made as set out in this Agreement
2.3 The Supplier shall perform the Services from the Project Start Date until the Project is completed in accordance with the Project Specification unless this Agreement is terminated earlier in accordance with clause 9.
3. SUPPLIER’S OBLIGATIONS
3.1 The Supplier shall use its reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance with the Project Specification.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Project Specification, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Agreement.
3.3 The Supplier shall appoint the Supplier’s Manager in respect of each Project who shall have authority contractually to bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Manager throughout the term of the Project, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) co-operate with the Supplier in all matters relating to the Services and appoint the Client’s Manager in relation to the Project, who shall have the authority contractually to bind the Client on matters relating to that Project;
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as reasonably required by the Supplier;
(c) provide, in a timely manner, such In-put Material and other information as the Supplier may reasonably require, and ensure that it is accurate in all material respects;
(d) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises;
(e) ensure that all Client’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of In-put Material and the use of the Client’s Equipment in relation to the Supplier’s Equipment insofar as such licences, consents and legislation relate to the Client’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
(g) keep, maintain and insure the Supplier’s Equipment and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation.
(h) Comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
4.2 If the Supplier’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
4.3 The Client shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, infringement of third party intellectual property rights, failure to perform or delay in the performance of any of its obligations under this agreement, subject to the Supplier confirming such costs, charges and losses to the Client in writing.
4.4 The Client shall not, without the prior written consent of the Supplier, at any time from the date of this Agreement to the expiry of twelve months after the completion of the Project, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5. CHARGES AND PAYMENT
5.1 The Client agrees to pay the charges, without set off or deduction, specified in the Project Specification.
5.2 The Client shall pay the charges in accordance with any terms of payment specified in the Project Specification or, where no payment terms are specified, within 14 days of the date of invoice.
5.3 The charges will be calculated as specified in the Project Specification which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both.
5.4 Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates;
(b) all charges quoted to the Client shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
(c) the Supplier shall invoice the Client monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 5.4.
5.5 Any fixed price and daily rate contained in the Project Specification excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier; and
(b) VAT, which the Supplier shall add to its invoices at the appropriate rate.
5.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier on the due date, the Supplier may:
(a) claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Client shall pay the interest immediately on demand; and
(b) suspend all Services until payment has been made in full.
5.7 All sums payable to the Supplier under this Agreement shall become due immediately on its termination, despite any other provision.
6. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITIES
6.1 Subject to the licence granted at clause 6.2, the Supplier shall retain all Intellectual Property Rights in any Background IP supplied as part of the Services and/or in the Deliverables.
6.2 The Supplier hereby grants to the Client a non-exclusive royalty-free licence (to such an extent as is necessary to enable the Client to make proper use of the Deliverables and the Services) to use any Background IP contained in the Deliverables.
6.3 The Supplier hereby assigns to the Client all Intellectual Property Rights in the Foreground IP in the Deliverables and the Services.
6.4 Further to the assignment set out at clause 6.3 above, the Client hereby grants to the Supplier a non-exclusive, royalty-free licence to feature the Deliverables without limitation on its websites and, subject to the Client’s consent (such consent not to be unreasonably withheld), to use them (and to be credited for their creation) generally in its marketing and promotional activities.
6.5 Subject to the other terms of this Agreement, the Supplier shall be responsible for the integrity of its own Background IP and for the non-infringement of third party intellectual property rights in the Content that it creates in the Deliverable but, for the avoidance of doubt, the Client shall take no responsibility for the incorporation into the Deliverable of the In-Put Material supplied by the Client.
6.6 The Client acknowledges that, where the Supplier does not own any of the Content, the Client’s use of rights in such material is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Client.
6.7 The Client shall be responsible for (and shall indemnify the Supplier from any claims by third parties that such use is infringing) all In-Put Material and for securing all necessary licences to use all Content incorporated or embedded in the In-Put Material and featured in the Deliverables.
7. CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
7.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Client may obtain.
7.2 The Client may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Client’s obligations under this agreement; and
(b) as may be required by law, court order or any governmental or regulatory authority.
7.3 The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 7.
7.4 The Client shall not use any such information for any purpose other than to perform its obligations under this agreement.
7.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Client (including Background IP and the Supplier’s Equipment) shall, at all times, be and remain as between the Supplier and the Client the exclusive property of the Supplier, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
8. LIMITATION OF LIABILITY
8.1 This clause 8 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
(a) any breach of the Agreement however arising;
(b) any use made by the Client of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
8.3 Nothing in this Agreement limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Supplier.
8.4 Subject to clause 8.2 and clause 8.3:
(a) the Supplier shall not under any circumstances whatever be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the price paid for the Services.
9.1 Subject to clause 9.3 this Agreement shall terminate automatically on completion of the Project in accordance with the Project Specification.
9.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the material terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) a resolution for winding up (other than for the purposes of a solvent amalgamation or reconstruction) is made against the other party or a court shall make any order to that effect, or the other party shall cease or threaten to cease its business or becomes or is declared insolvent or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over its assets or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or any other analogous event or measure of equivalent effect takes place that threatens the ability (or prejudices the party that is not the subject of the event in any way) of that party to perform its obligations (financial or otherwise) under this Agreement.
9.3 On termination of this Agreement for any reason:
(a) the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall, within a reasonable time, return all of the Supplier’s Equipment, Background IP and Deliverables. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 6 (Intellectual property rights), clause 7 (Confidentiality and the Supplier’s property), clause 8 (Limitation of liability), clause 9.3, clause 19 (Notices), clause 20 (Dispute resolution), clause 21 (Governing law and jurisdiction),
10. FORCE MAJEURE
10.1 Neither party shall be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 180 days or more, the party not affected my terminate this Agreement by giving 30 day written notice to the other party.
10.2 If termination occurs under clause 10.1, all sums paid to the Supplier under this Agreement shall be refunded to the Client, except that the Supplier shall be entitled to payment of a quantum meruit basis for all work done before termination, provided that the Supplier takes all reasonable steps to mitigate the amount due.
11.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
12.1 A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
12.2 No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
13. CUMULATIVE REMEDIES
13.1 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
14.1 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
14.2 If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15. ENTIRE AGREEMENT
15.1 This Agreement (incorporating these Terms and the Project Specification constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this Agreement.
15.2 Each party acknowledges that, in entering into this Agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
15.3 Nothing in this clause shall limit or exclude any liability for fraud.
15.4 If any provision contained in the main body of these standard terms shall conflict with any detail contained in the Project Specification then the Project Specification shall prevail and the Agreement shall be interpreted accordingly.
16.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.3 Each party that has rights under this Agreement is acting on its own behalf and not for the benefit of another person.
17. NO PARTNERSHIP OR AGENCY
17.1 Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. RIGHTS OF THIRD PARTIES
18.1 A person who is not a party to this Agreement shall not have any rights under or in connection with it.
19.1 A notice or other communication given to a party under this Agreement shall be in writing in English and shall be signed by or on behalf of the party giving it and sent to the addresses specified in the Project Specification shall be:
(a) delivered personally; or
(b) sent by commercial courier; or
(c) sent by fax; or
(d) sent by pre-paid first-class post or recorded delivery; or
(e) sent by airmail requiring signature on delivery..
20. DISPUTE RESOLUTION
20.1 If any dispute arises in connection with this Agreement, the Supplier’s Manager and the Client’s Manager shall, within 7 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
20.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 7 days after the date of the ADR notice.
20.3 The commencement of a mediation will not prevent the parties commencing or continuing court proceedings or an arbitration.
21. GOVERNING LAW AND JURISDICTION
21.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims