STANDARD TERMS AND CONDITIONS

1. DEFINITIONS

1.1 These Standard Terms and Conditions together with the SOW will form a binding agreement (the “Agreement”) between the Client and contractor, and shall constitute the entire agreement between Client and contractor in relation thereto. In the event of a conflict between the SOW and these Standard Terms and Conditions, the terms in the SOW shall govern.

• • “Client Materials” means all content, materials, functional requirements, data and information provided or to be provided by Client including as described in the SOW;
  • “Change” means additional Services or Deliverables or any change to the Services or Deliverables agreed pursuant to clause 5 below;
  • “Defect” means a material defect or error in a Deliverable or material non-compliance with the SOW, caused by contractor, having regard to the applicable stage and intended purpose or use of the Deliverable;
  • “Deliverables” means the artistic or designed works or deliverables, including all records, proofs, originals and design components, to be produced by contractor further to this Agreement, as set out in the SOW;
  • “Dependencies” means the assumptions and dependencies on which the Services are based and the Fees calculated;
  • “Fees” means the sums payable to contractor including as described in the SOW;
  • “IPRs” means all intellectual property rights including (without limitation) copyright, design right, trademark rights, database rights, moral rights, patents, service marks, applications for any of the foregoing, trade of business names, topography rights, know-how, secret formulae and processes, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, rights in confidential information and other rights of a like nature worldwide (registered or not);
  • “Contractor Materials” means all content, materials, text, images, proprietary software, development tools, libraries, engines, subroutines and technology owned by contractor that predate this Agreement or are of general applicability in digital, advertising, animation, audio-visual and/or interactive production, and any modification, adaptation or improvement to the foregoing, including as described in the SOW;
  • “Services” means the goods and/or services to be provided by contractor described in the SOW and each part thereof.

2. PROVISION OF THE SERVICES 
   • contractor agrees to provide the Services in accordance with and subject to the terms of this Agreement.
   • Client will cooperate fully with and act in good faith towards contractor at all times and provide all Client Materials and feedback by the date specified in the SOW or otherwise promptly on request.
   • contractor will assign personnel whom it considers appropriate to perform the Services and contractor may at any time at its discretion, assign, re-assign, or substitute personnel or appoint sub-contractors to carry out all or any of its obligations under the Agreement.

3. DELIVERY 
   • Provision of the Services shall be in accordance with the SOW and contractor will deliver the Deliverables by the applicable Delivery Milestone or other agreed due date. All dates and/or times specified in the SOW for performance of the Services or delivery of the Deliverables are given in good faith but are not guaranteed by contractor.
   • Client shall inspect the Deliverables and each part thereof and shall notify contractor as soon as possible and in any event within five (5) business days if a Defect exists, whereupon contractor shall remedy, correct and re-deliver the Services (or applicable part thereof) as soon as reasonably practicable and in any event within five (5) business days of such notification.
   • If Client does not notify contractor of any Defect within five (5) business days following delivery then Client shall be deemed to have accepted the Deliverable (and the element of the Services related to such Deliverable).
   • The Client shall be deemed to have accepted the Deliverables where the Deliverables are used in a public environment.

4.  PAYMENT 
   • Subject to contractor's compliance with its obligations under SOW, Invoices are to be paid forty-five (45) business days upon reception of a valid invoice and to follow client payments schedule.
   • The Client shall pay the Fees due under the Agreement without deduction or set-off together with any VAT invoiced and payable thereon. The Client shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any Fees paid by the Client to contractor pursuant to the Agreement.
   • Fees payable on signature of this Agreement shall be payable immediately following signature of the Agreement and contractor shall not be required to start the Services until receipt of those Fees.
   • contractor shall be entitled to issue invoices in the event that the Services are delivered, accepted or materially complete but awaiting Client Materials or instructions.
   • contractor shall be entitled to invoice agreed third party expenses, to which the Client has given its prior written approval, as they are incurred.
   • contractor shall be entitled to charge interest on any overdue payment from the day following the one where payment has fallen due up until the day such payment is received by contractor at the rate of 4% over base rate of the Bank of England from time to time.

5. CHANGES, DELAYS AND ADDITIONS 
   • In the event that Client requires any Change it shall notify contractor in writing and Client and contractor shall, prior to such Change being effective or implemented, agree (i) the nature of the Change; (ii) the procedures for implementation of such Change; and (iii) the applicable variations to the SOW including additional payment.
   • Save as agreed with contractor, any out of scope elements will have to be invoiced upfront and prior to the undertaking of such task.
   • contractor shall not be required to supply any additional Services or undertake any Change unless agreed in writing and until any Change is formally agreed between Client and contractor, contractor will continue to perform and be paid for the Services as if the Change had not been proposed.
   • contractor shall not be liable for any delay in the performance of the Services if such delay is caused directly or indirectly by Client or any failure of Client to supply contractor with Client Materials, approvals or instructions requested or required by contractor or any failure or deviation in the Dependencies.
   • In the circumstances described at clause 5.4 above, contractor may charge reasonable additional Fees in accordance with its standard rates and shall be entitled to such other extensions as shall be reasonable.
   • contractor shall not be liable for any exceptional circumstances outside of its control, including changes in third party costs and currency fluctuations.

• • Save and except in respect of clause 6.2 and 6.3 below, all IPRs in the Services and/or Deliverables shall belong to and vest in Client and are hereby assigned to Client (including by way of current assignment of future IPRs).
  • All IPRs in contractor Materials will belong to and vest in contractor or its third party licensors.
  • The Client agrees that if in the course of performing the Services contractor discovers or devises any techniques or know-how, all rights to such techniques and know-how shall belong to and vest in contractor and shall be deemed to be contractor IPRs for the purposes of the Agreement.
  • Client is granted a non-exclusive, perpetual, worldwide, transferable and sublicensable right and licence to use contractor Materials in and as part of the Services, for their ordinary use and operation only.
  • Client shall not modify, adapt, amend or decompile contractor Materials or otherwise use or exploit it in any way inconsistent with the foregoing licence unless approved by contractor.
  • All IPRs in Client Materials shall belong to (or be validly licensed to) Client for use by contractor to allow contractor to provide the Services and/or Deliverables under this Agreement. Client hereby grants contractor a non-exclusive licence to use the same for all purposes relating to the Agreement and the Services and for contractor's promotional purposes including for the use of the Services and Deliverables on contractor's websites, social media, for PR, awards and for its promotional and marketing activities.
  • Client acknowledges that contractor may use third party software in and as part of the Services. Such third party software will remain vested in the third party proprietor of such software and to the extent Client is granted the right and ability to make use of the same, it may be used by Client only on the licence terms applicable to such third party software. Client further acknowledges that contractor gives no other warranties or undertakings in relation to the third party software.
  • Each party undertakes that it will keep secret and confidential the terms of the Agreement and any information supplied by either party in connection with the Agreement or in connection with the business of the other and in connection with the Services and shall only disclose such information or part thereof (except to its own employees and advisers and then only on a need to know basis) with the other party’s prior written consent provided that this clause shall not extend to information which was and can be shown to be rightfully in a party’s possession prior to the commencement of the negotiations leading to the Agreement or which is in the public domain (other than as a result of a breach of this clause).
  • contractor shall be entitled to receive credits to be agreed by each party in respect of the Services.

• • Save that no such warranty is given in respect of the Client Materials, contractor warrants to Client that:
    • it shall perform the Services in a professional and workmanlike manner and using no less than reasonable care and skill;
    • it shall not use any unlicensed materials or software in connection with the Services;
    • it shall comply with all laws, regulations applicable to the Services;
    • on delivery the Deliverables shall accord with the SOW in all material respects;
    • on delivery the Deliverables will be free from Defects and unlawful or legally restricted material;
    • subject to excluding any Client Materials, on delivery the Deliverables will not infringe the IPRs of any third party and contractor shall be in the position to grant the IPRs in the Services and Deliverables to the Client in accordance with the SOW.
  • In the event that any Client notifies contractor of any Defect within 5 working days following delivery of a Deliverable, contractor shall use all commercially reasonable efforts to remedy such defect within 5 days.
  • Except as expressly stated contractor gives no warranty or representation and all warranties, whether express or implied, are excluded to the fullest extent permitted by law. Without limiting the foregoing contractor shall not be liable for and gives no warranty or representation and shall have no liability in respect of:
    • any indirect, incidental, special or consequential loss or damage, or for any loss of profits, business, revenue, data or use, incurred by Client or any third party, whether in an action in contract or tort or otherwise;
    • any Client Materials;
    • any Dependencies;
    • any adaptation or modification of the Services or Deliverables not made by contractor; and/or
    • the operation of the Services or Deliverables on or with any media, platform, software or hardware other than that for which they were created.
  • Nothing in the Agreement shall exclude or limit liability for fraud, fraudulent misrepresentation, death or personal injury caused by contractor’s negligence, or any other liability not able to be excluded or limited.
  • Subject to clause 7.4 above, contractor’s aggregate liability for any and all loss or damage direct or otherwise and howsoever caused whether in tort, contract or otherwise, that is not or cannot be excluded shall not exceed the Fees invoiced by contractor to Client for the Services in the twelve (12) months immediately prior to the event giving rise to such liability.
  • Both contractor and Client will not be liable in any amount for failure to perform any obligation hereunder if such is caused by the occurrence of any unforeseen contingency beyond the control or reasonable control of contractor including national communications and power outages, fire, flood, war or act of God.
  • Each of contractor and Client represents, warrants and undertakes to the other that it has the requisite power and authority to enter into this Agreement and to perform fully its obligations hereunder and that it has not entered into and will not enter into any arrangement which would restrict or inhibit the exercise by the other party of its rights under this Agreement.

• • contractor gives no warranty or representation and shall have no liability in relation to any Client Materials or any third party or user generated content, materials or communication and gives no warranty or representation as to whether they contain or are free from any inappropriate or legally restricted content and explicitly excludes all and any liability in relation thereto. Client warrants that it is fully entitled to grant contractor the right to use Client Materials hereunder and undertakes to indemnify and hold harmless contractor in full and defend at its own expense contractor against all costs, damages and losses incurred by it arising out of its use of Client Materials.
  • contractor is not obliged to review, monitor or moderate and will have no liability for the content of any Client Materials or any third party or user generated content, materials or communication transmitted via the Services.
  • Where the Services include the storage and transmission of Client Materials, third party content or any communication by contractor to any third party for or on behalf of Client, contractor warrants only that it will provide such Services with reasonable skill and care by itself or using such third party as it deems appropriate and implement security measures and practices in line with contractor’s normal business practices and procedures but that it otherwise accepts no liability for the content of such communications or for any such communication being incorrectly sent or received.
  • It is further agreed, acknowledged and understood that the views expressed in any Client Materials or third party communications are not those of contractor unless specified otherwise in writing by contractor and Client shall be responsible therefor and hereby accepts liability in respect thereof and shall indemnify contractor in respect of the same.
  • contractor shall have the right to delete, restrict, remove and / or suspend access to any Client Materials and any third party or user generated content, materials or communication stored or transmitted as part of the Services if it reasonably considers it necessary to do so in order to comply with applicable laws and in such circumstances contractor shall have no liability to Client but shall co-operate with Client to find a solution to such problem.
  • Client will collect all Client Materials within one (1) month of completion of the Services, failing which contractor may dispose of them on giving Client seven (7) days’ notice. contractor shall have the right and ability to delete Client Materials held on contractor’s servers and computer equipment following termination of the Agreement subject to any legal requirement to retain such Client Materials. 

9. TERMINATION
   
   • This Agreement shall continue for the Term (if any) subject to clause 9.2 below.
   • Either party may terminate the Agreement (or applicable part thereof) in the event that the other breaches any term of this Agreement and fails to remedy that breach within twenty eight (28) days of receiving written notice of the same. In the event that Client fails to make any payment due hereunder by the due date therefore contractor shall be entitled to suspend the provision of all or part of the Services until such time as such payment is received in full. In the event that contractor fails to deliver the Services in accordance with the SOW (save if due to Client's fault or circumstances beyond contractor's control) by the due date therefor Client shall be entitled to suspend payment until such time as the applicable Services are delivered, unless expressly provided otherwise by this Agreement. In the event that contractor fails to deliver the Services completely, Client shall be entitled to a full refund of all monies paid.
   • Except as set out at clause 9.2 above Client may not cancel the Services or otherwise terminate the Agreement.
   • During the course of the Agreement and for a period of twelve (12) months afterwards, the Client shall not solicit the personnel, whether contractors or employees, of contractor, nor induce or entice them to transfer their employment or services.
   • In the instance the Client terminates due to contractor's breach under clause 9.2, contractor shall only receive the part of the Project Fees calculated on a pro rata basis for the Services provided to date and any expenses incurred and committed costs to date. In the instance contractor terminates due to Client's breach under clause 9.2, contractor shall receive the full Project Fees and any expenses incurred and committed costs to date.
   • contractor shall be entitled to terminate this Agreement for convenience on no less than fourteen (14) days' notice and in such instance shall only receive the part of the Project Fees calculated on a pro rata basis for the Services provided to date and any expenses incurred and committed costs to date.

10. DATA PROTECTION
    
    • It is not intended that contractor process any personal data as part of the Services. However, if the Services do comprise the request to process any personal data then the parties will enter into a separate Data Processing Agreement. 

• • In these terms “including” means including without limitation.
  • All notices given under this agreement shall be made in writing (including email) and sent by recorded delivery to the postal address or email address of the recipient as set out in the SOW, or such other addresses as may be notified in accordance with this clause.
  • These terms apply to the exclusion of and replace all other terms or conditions of contract either party may propose and shall not be varied unless agreed in writing and signed by both parties.
  • Nothing in the Agreement shall be deemed to constitute a partnership or agency relationship and neither of the parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other.
  • If at any time any part of the Agreement is or becomes unenforceable, such part will at contractor’s option be construed as far as possible to reflect the parties’ intentions or severed from the Agreement and the remainder of the provisions will remain in full force and effect.
  • No forbearance, delay or indulgence by either party in enforcing the provisions of the Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach.
  • Client shall not assign the Agreement in whole or in part without the prior written consent of contractor and contractor shall not assign the Agreement in whole or in part without the prior written consent of the Client.
  • No person who is not a party to the Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
  • This Agreement is made and shall be construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English courts.