⦁ You, the client (“Client”), have engaged us, StudioNX Limited & StudioNX Internationl (“StudioNX”) to provide a range of animation production services to you.
1 We shall supply the Services in accordance with these Standard Terms and Conditions of Business (“T&C’s”). The project specifics and details of the deliverables shall be set out in one or more estimates provided by us or Statement of Work (together “SOW”). These T&C’s are incorporated into the estimates and/or SOW by reference and together, are the entire agreement between us (the “Agreement”).
⦁ We shall supply the Services in accordance with the terms of the Agreement.
1 You and where relevant the end client shall fully co-operate and act in good faith towards us at all times and shall provide us with prompt feedback where requested.
2 We shall not be liable for any delay in the performance of the Services caused by you and/or where relevant the end client as a result of a failure to supply prompt feedback or approvals.
3 You shall be solely responsible for ensuring that all information, advice and recommendations given to us either directly or indirectly by you or by your employees, freelancers or agents are accurate, correct and suitable and acceptance of or use by us of such information, advice or recommendations shall in no way limit your responsibility hereunder unless we specifically agree in writing to accept responsibility.
⦁ Delivery of the Deliverables shall be in accordance with the estimate and/or SOW and we shall use all commercially reasonable efforts to deliver the Deliverables by and on a timely basis. All dates and/or times specified in an estimate and/or SOW for performance of the Services or delivery of the Deliverables are given in good faith but are not guaranteed by us.
1 You shall inspect the Deliverables and shall notify us within five (5) days if there is a material defect or non-conformity against the agreed specification as set out in the estimate and/or SOW and we shall remedy, correct and re-deliver the Deliverables to you as soon as reasonably practicable. In the event you do not notify us of any defect within five (5) days then you shall be deemed to have accepted the Deliverables.
2 You shall not unreasonably withhold, delay, or condition acceptance of the Deliverables at any time.
3 You shall be deemed to have accepted the Deliverables where the Deliverables are used in a commercial or public environment.
⦁ In consideration of the provision of the Services by us, unless otherwise agreed in an applicable estimate and/or SOW, you shall pay the fees set out in the estimate and/or SOW as follows:
⦁ 50% payment due within seven (7) days of project commencement; and
1 50% after the date of delivery of the Final Deliverables, within thirty (30) days from the date of invoice.
⦁ For the avoidance of doubt, project commencement may include the commencement of the project on the basis of your instruction by email.
1 We shall have the right to amend any SOW in the event that additional costs are incurred, or likely to be incurred, by reason of:
⦁ material changes by you or any third party in your requirements for the Services or Deliverables;
1 any Client Materials supplied to us for use in connection with the Agreement which, in our reasonable opinion are in any way defective, in an unsuitable quality or format or a different format to that which we are expecting to receive;
2 any information supplied by you or any third party in connection with the Agreement and the Services being inaccurate or incomplete, or failing to give us a full and accurate indication of the work involved and/or time and resources required;
3 exceptional circumstances outside of our control, including changes in third party costs and currency fluctuations;
4 any Client request to work outside of normal business day working hours, such fees for our of hours work shall be charged at 150% of the standard day rate as specified in the SOW.
⦁ You shall pay the fees due under the Agreement without deduction or set-off together with any VAT invoiced and payable thereon. You shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any payment by you to us pursuant to the Agreement.
1 Unless otherwise provided for, all monetary amounts referred to herein will be paid in Great British Pounds (GBP).
2 For the avoidance of doubt, any discounts on fees shall be agreed in good faith and on a project by project basis only. Where a discount is agreed, such discount shall not be automatically applied to any future SOW’s/projects.
3 In the event payment is delayed, we may charge you interest on any overdue payment at the rate of 4% over base rate of the Bank of England from time to time.
4 Without prejudice to any of our other rights under the Agreement or otherwise, we may suspend performance of the provision of the Deliverables and our obligations under the Agreement where you are overdue in paying the fees or other costs set out in the Agreement and we have provided written notice to you of such overdue fees and you have not remedied such non-payment within 7 days of receipt of such notice. We shall not be liable for any delay caused to the Services as a result of such suspension.
⦁ All copyright, design right, registered designs, trademarks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature worldwide whether registered or not of whatever nature in material devised, created or commissioned by StudioNX, in supplying the Deliverable and Services under the Agreement will vest in and belong to StudioNX unless otherwise agreed in writing on the SOW and signed by both parties.
1 You shall have the usage rights set out in the estimate and/or SOW which rights shall take effect and be conditional upon receipt by StudioNX of the fees. Such usage rights shall apply only to those ideas, concepts, proposals and parts of the Deliverables which StudioNX Studio is specifically requested to proceed with and not to any original ideas, concepts or proposals pitched or suggested to you but not further explored by StudioNX for you hereunder, all of which shall be retained by StudioNX. Where no such rights are specified you are granted a non-exclusive licence to use the Deliverables for the purpose specifically described in the SOW. Further usage outside the purpose specifically described in the SOW shall be subject to additional licence terms and fees to be agreed in writing.
2 All IPRs in the Client Materials shall belong to you and you hereby grant to us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use your Client Materials to the extent necessary for us and/or our suppliers to provide the Services and the Deliverables.
3 You agree that if in the course of performing the Services we discover or devise any techniques or know-how, all rights to such techniques and know-how shall belong to and vest in us and shall be deemed to be StudioNX IPRs for the purposes of the Agreement.
4 You agree that we may use third party IPRs in and as part of the Deliverables. Such third party IPRs will remain vested in the third party proprietor and to the extent you are granted the right and ability to make use of the same, you may use it only on the licence terms applicable to such third party materials. You further acknowledge that we give no other warranties or undertakings in relation to the third party materials.
⦁ Without prejudice to any other rights or claims, each party may fully or partially cancel this Agreement by written notice, in case of:
⦁ Material breach;
1 Permanent failure to comply with an enforceable obligation under the Agreement;
2 Bankruptcy; or
3 Termination for legal cause.
⦁ We may terminate this Agreement in an event of Force Majeure, as per clause 7.
1 Notwithstanding clause 6.1 and without prejudice to any other rights or remedies available to you, you may give us written notice of cancellation of the Agreement (and any Services to be provided thereunder), provided that where such notice is received by us:
⦁ cancellation less than seven (7) days before the project start date, 50% of the project fees shall be due;
1 cancellation after project start date but before offline edit review stage, 85% of project fees shall be due;
2 cancellation after offline edit reviews then 100% of project fees shall be due.
⦁ Any provisions of the Agreement which by their nature are intended to survive cancellation or expiry (including clause 6 (Confidentiality) and clause 8 (Liability and Indemnity) shall remain in full force and effect notwithstanding any cancellation or expiry of the Agreement.
Neither party shall be liable to the other for any failure, delay or interruption in the performance of any term under the Agreement due to causes beyond the control of that party that make the performance of the Agreement either illegal, impossible or commercially impracticable, such as, but not limited to, acts of God, war, government regulation, disaster or other casualty, strikes or threat of strikes, acts and/or threats of terrorism, curtailment of transportation services, illness injury (e.g. talent or crew), or other events beyond the control of either party.
⦁ We warrant to you that:
⦁ we shall perform the Services in a professional and workmanlike manner and using no less than reasonable care and skill;
1 we shall deliver the Deliverables in accordance with the SOW in all material respects; and
2 the Deliverables, to the best of our knowledge, shall not infringe any third party rights.
⦁ Except as expressly stated, we give no warranty or representation and all warranties, whether express or implied, are excluded to the fullest extent permitted by law.
1 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability cannot be excluded or limited as a matter of law.
2 Subject to clause 8.3 and without prejudice to any other provision of these the Agreement, you agree that:
⦁ under no circumstances shall we be liable for any indirect, special or consequential loss or damage whatsoever, or for any loss of business profits, business interruption, depletion of goodwill, loss of use or corruption of data or software, whether on a direct or indirect basis; and
1 our entire liability for any direct loss suffered by you under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the actual sums paid by you under the relevant SOW in which the loss was suffered.
⦁ You shall indemnify and hold us harmless from and against all claims or proceedings and all loss and damage of any kind, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, us as a result of or in connection with:
⦁ any defamatory or libellous matter or any infringement or alleged infringement of a third party’s IPRs or other rights arising out of the supply or use of the Client Materials in relation to the Deliverables and/or in the course of carrying out the Services; and
1 any breach by you, including your officers, employees, freelancers and agents of any of the terms in this Agreement.
⦁ Clause 8.5 above shall apply whether you, or your officers, employees, freelancers or agents, have been negligent or otherwise.
1 Any recommendations or suggestions by us relating to the use of the Deliverables are given in good faith but it is for you to satisfy yourself of the suitability of the Deliverables for their own particular purpose. We shall not be responsible for ensuring that the Deliverables comply with any legal or regulatory requirements relating to content in any territory where services are being exploited.
We may publicise, advertise and market the Deliverables on our website(s), reels, in pitches to third parties, on social media site(s), blog(s), and awards submissions or in any other manner, as we may decide for self-promotion.
10. CONFIDENTIALITY OBLIGATIONS
⦁ All information or materials provided to one party by the other party (or by a third party on their behalf) and all information that a party and those working for it or on its behalf may hear, see, or derive in connection with the Services hereunder, which are not the subject of general public knowledge, shall be deemed to be Confidential Information. Each party shall not, during or after this engagement, disclose or use any such Confidential Information without first obtaining the other party’s written authorisation. Each party shall, at the other party’s request, require those engaged by a party to sign agreements, in which such persons agree not to use or disclose the Confidential Information.
1 This Agreement imposes no obligations with respect to information which: (a) was in either party’s possession before receipt; (b) is or becomes a matter of public knowledge through no fault of either party; (c) was rightfully disclosed to either party by a third party without restriction on disclosure; or (d) is developed by either party without use of the Confidential Information as can be shown by documentary evidence. Either party may make disclosures to the extent required by law or court order provided either party makes commercially reasonable efforts to provide the other party with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order and has allowed the other party to participate in the proceeding.
⦁ You acknowledge that it is not possible for us to obtain insurance against any lost costs of production arising from loss or damage to Client Materials or any other materials of any kind supplied by you to us (whether in our possession or otherwise) and it is your responsibility to ensure that you have appropriate back-up copies of all Client Materials and you shall insure all Client Materials to their full value against all risks. You agree that we shall be under no liability whatsoever in respect of any loss or damage to or destruction of the Client Materials.
It is not intended that we 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.
⦁ Any valid alteration to or variation of this Agreement must be in writing and signed by or on behalf of each of the parties.
1 In the event of any conflict between the T&C’s and the estimate and/or SOW, then the terms in the estimate and/or SOW shall apply.
2 Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by first class pre-paid post to StudioNX, 24 Sheepscroft, Chippenham Sn14 6yj for the attention of the Directors. Any notice sent by first class post shall be deemed received two working days after the date of posting.
3 A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
4 No partnership or joint venture is intended or created by the Agreement and neither party shall have authority to act as agent for, to bind, the other party.
5 A waiver of any right or remedy under the Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
6 If any provision of the 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.
7 The Agreement or any dispute relating to its subject matter shall be governed by and construed exclusively in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.
⦁ The following terms shall have the following meaning:
Deliverables
the specific deliverables as set out in the estimate and/or SOW;
Client Materials
all content materials, data, scripts, images and information in any form created or generated by you and supplied by you to us or on your behalf;
Confidential Information
such information as either party may from time to time provide to the other party (in whatever form including orally, written, in electronic, physical or visual form) relating to the Agreement and the Deliverables, and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by either party to the other whether in existence prior to the parties entering into the Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever;
Force Majeure
any event that is not reasonably insurable including but not limited to any act of government, war, industrial dispute, strikes (of its own or other employees), breakdown of machinery or equipment, accident, fire, inability to obtain supplies and raw materials, or by any other cause beyond the parties’ control;
IPRs
intellectual property rights including copyright, design rights, trade mark rights, database rights, moral rights, patents, service marks, applications for any of the foregoing, trade or 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 all other rights of a like nature worldwide (registered or not); and
Services
the animation services under the Agreement and includes the Deliverables.
