1.1 In these terms and conditions the following definitions apply:
of a party means any entity which directly or indirectly owns or controls, is directly or indirectly owned or controlled by, or is in common ownership or control with, that party;
means a day other than Saturday, Sunday and public holidays;
means the date specified in the Order;
means the standards terms and conditions of business set out in this document;
means all non-public commercial, financial or technical information relating to the products, services, plans, knowhow or trade secrets, which is obviously confidential or has been identified as such, or which is developed in performing its obligations under, or otherwise pursuant to this Contract;
means the agreement for the Supplier to supply the Services to the Customer in accordance with the Order;
means the individual or company named on the Order as being the customer;
means all information, data, software, media files and documents (and the media on which they are recorded), equipment and materials supplied by the Customer to the Supplier;
means all documents, products and materials produced by the Supplier or its agents in relation to the Services and to be supplied to the Customer including without limitation any data, programs, reports, software and specifications, as set out in the Order;
‘Intellectual Property Rights’
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:
(i) whether registered or not,
(ii) including any applications to protect or register such rights,
(iii) including all renewals and extensions of such rights or applications,
(iv) whether vested, contingent or future,
(v) to which the Supplier is or may be entitled and
(vi) in whichever part of the world existing;
means the Supplier’s online order form identifying the Services to be provided by the Supplier to the Customer;
means the free resources made available to the Customer by the Supplier subject to these Conditions;
means the services set out in the Order to be supplied by the Supplier to the Customer;
means the specification detailed in Schedule 1 of these Terms for the Services set out in the Order;
means all documents, materials, data, proprietary software (and the media on which they are each recorded), which are owned by the Supplier at the date of this agreement or created independently of this agreement or created as a result of performing the Services;
means the address specified in the Order;
means Animation Explainers Limited
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to the Contract includes the Conditions, the Order and its schedule (if any);
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 clause headings do not affect their interpretation;
1.2.6 general words are not limited by example; and
1.2.7 references to legislation include any modification or re-enactment thereof.
2 The Order and incorporation of the Conditions
2.1 An Order will be deemed to be an offer to purchase Services from the Supplier under the Conditions of the Contract.
2.2 Orders are not binding until accepted by the Supplier in writing.
2.3 Quotations issued by the Supplier are valid for 10 Business Days from issue. They do not constitute an offer to sell or supply. If the Customer wishes to purchase Services the subject of a quotation, it will need to place an Order.
2.4 Marketing and other descriptive matter relating to Services are illustrative only, and do not form part of the Contract. The Customer agrees that, in placing an Order, it has not relied on any representation or statement by the Supplier not set out in the Contract.
2.5 These Conditions alone will apply to and will form part of the Contract for the supply of the Services by the Supplier to the Customer. They supersede any previously issued terms and conditions of supply.
2.6 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.
2.7 No variation of the Conditions or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
3 Price and payment
3.1 The price for the Services will be as set out in the Order.
3.2 The price is payable 50% on acceptance of the Customer’s Order and 50% on completion of the Deliverables.
3.3 The Supplier may vary its prices for Services from time to time but no more than once every 3 months. The Supplier will give the Customer not less than 30 days’ written notice of such variations.
3.4 Orders accepted by the Supplier at the time of notification of price variations under clause will be fulfilled at the original prices quoted.
3.5 The Supplier will invoice the Customer when the price has been paid in full. Invoices will include all information necessary to enable the Customer to check their accuracy.
3.6 The Customer will pay all invoices (unless disputed in good faith):
3.6.1 in full, without deduction or set-off other than as required by law, in cleared funds;
3.6.2 to the Supplier’s nominated bank account specified in the Order.
3.6.3 Time of payment is of the essence.
3.7 Where sums due hereunder are not disputed in good faith and are not paid in full by the due date:
3.7.1 the Supplier may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of Barclays Bank from time to time in force;
3.7.2 interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
3.8 VAT will be charged by the Supplier and paid by the Customer at the then-applicable rate.
3.9 Should the Customer require to initiate a refund, the Customer must follow the Refund Policy.
4 Provision of services
4.1 The Supplier will provide the Services to the Customer in accordance with the Contract, the Specification and in line with the Delivery Policy.
4.2 The Services will begin on the Commencement Date and be performed until provision is complete or earlier termination of the Contract.
4.3 Whilst the Supplier will use all reasonable endeavours to meet any milestone dates set out in the Order, such dates are approximate only, and time of performance is not of the essence.
4.4 The Supplier will not be liable for any delay in or failure of performance of the Services (including any failure to achieve any milestone or other date) so far as caused by an event of Force Majeure or the Customer’s failure to perform its obligations under the Contract.
4.5 The Supplier may make any changes to the Services
4.5.1 needed to comply with applicable law or safety requirements; or
4.5.2 which do not materially affect the nature or quality of the Services;
and will notify the Customer in advance of such changes.
5 Supplier’s obligations
5.1 The Supplier will:
5.1.1 perform the Services using reasonable care and skill;
5.1.2 use sufficient personnel who have appropriate skills and experience for their duties;
5.1.3 ensure that the Services comply with the Specification;
5.1.4 obtain and maintain all licenses, permits and other consents required for its performance of the Services;
5.1.5 comply with all applicable laws and regulations;
5.1.6 observe all rules and regulations notified to the Supplier and in force at the Supply Location and other Customer sites; and
5.1.7 on completion of the Services or earlier termination of the Contract return all Customer Materials.
6 Customer’s obligations and warranties
6.1 The Customer will pay the price for the Services in accordance with the Contract.
6.2 The Customer will:
6.2.1 afford the Supplier access to the Supply Location and other Customer sites and prepare them for supply of the Services;
6.2.2 afford the Supplier reasonable access to the Customer personnel; and
6.2.3 provide the Supplier such facilities, information and assistance (ensuring that information is complete and accurate); in each case as required to allow the Supplier to perform the Services.
6.3 The Customer will also:
6.3.1 co-operate fully with the Supplier and follow the Supplier’s reasonable instructions in relation to the performance of the Services;
6.3.2 obtain and maintain all necessary licenses and consents for the performance of the Services;
6.3.3 keep all documents, equipment, materials and other Supplier property (Supplier Materials) at the Supply Location or other Customer premises safely and at its own risk and in the same condition as they were in when supplied (fair wear and tear excepted); and
6.3.4 not dispose of or use any Supplier Materials without the Supplier’s prior written agreement.
6.4 The Services are provided at the Customer’s request and the Customer is responsible for verifying that the Services are suitable for its own needs.
6.5 The Customer warrants that the Customer Materials:
6.5.1 are free from any defects, viruses, malware or other similar harmful software code; and
6.5.2 do not infringe any other party’s Intellectual Property Rights; and
6.5.3 do not contain any unlawful or offensive material; and
6.5.4 do not promote any unlawful activity.
6.6 The Customer will indemnify and keep indemnified the Supplier and its employees from and against all losses suffered or incurred by them arising out of or in connection with the contents of the Customer Materials.
7.1 The Supplier warrants that:
7.1.1 at the time of delivery to the Customer any media on which the results of the Services are supplied will be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
7.1.2 it has clear title to the Deliverables and the right to provide them to the Customer; and
7.1.3 that the documentation provided by the Supplier will provide adequate instructions to enable them to effectively use the Deliverables.
7.2 Where Services fail to comply with clause 7.1, the Supplier will, at its option, re-perform them to comply with the Contract, provided that:
7.2.1 the Customer informs the Supplier in writing within 5 Business Days of delivery of the Services that the Services do not comply with clause 7.1; and
7.2.2 the Customer gives the Supplier a reasonable opportunity to investigate any defective Services.
7.3 The terms of the Contract will apply to any re-performed Services.
7.4 The Supplier will not be liable for any failure of any Services to comply with clause 7.1 to the extent:
7.4.1 caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Services;
7.4.2 caused by the Supplier following any Specification or other instruction from the Customer;
7.4.3 where the Customer alters the Services or the results of the Services without the Supplier’s prior written agreement; or
7.4.4 where the Customer uses the Services or the results of the Services after notifying the Supplier that the Services do not comply with clause 7.1.
7.5 Except as set out in this clause 7:
7.5.1 the Supplier gives no warranty in relation to the Services; and
7.5.2 will be under no liability for their failure to comply with the warranty in clause
8 Failure of or delay in performance
8.1 If the Supplier is prevented or delayed in performing the Services by any cause attributable to the Customer, the Supplier (without prejudice to its other rights):
8.1.1 may suspend performance of the Services until the Customer remedies its default;
8.1.2 will not be liable for any costs or losses sustained by the Customer as a result of such suspension; and
8.1.3 may charge the Customer (and the Customer will pay in accordance with the Contract) costs or losses incurred by the Supplier arising from the Customer’s default, subject to clause 9.
9.1 Except as expressly stated in this Agreement, all warranties and conditions whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
9.2 The Supplier does not exclude its liability:
9.2.1 for death or personal injury caused by its negligence; or
9.2.2 for fraud or fraudulent misrepresentation.
9.3 Neither party will be liable for:
9.3.1 loss of data or use;
9.3.2 any form of indirect, consequential or special loss; or
9.3.3 any loss of or failure to realize expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect;
and, in each case, however arising.
9.4 Other than as set out above, the Supplier limits its liability (however arising) in respect of or in connection with the Services, and otherwise in connection with the Contract, to the total price of Services which are the subject of the Contract.
10 Intellectual Property Rights
10.1 Nothing in this Contract will affect the rights (including Intellectual Property Rights) in the Supplier Materials which are and shall remain vested in the Supplier.
10.2 To the extent that the Supplier Materials are used or incorporated into the Services or any part of the Deliverables then the Parties acknowledge and agree that the Customer is licensed to use the same upon the terms set out in clause 10.3.
10.3 The Supplier hereby grants to the Customer a royalty-free, worldwide license, revocable only for breach by the Customer of the terms of the Contract, to use the Supplier Material solely to the extent necessary to use the results of the Services. The Customer:
10.3.1 will not use the Supplier Materials for any other purpose;
10.3.2 will not modify or reverse engineer or take any similar action in relation to any propriety software of the Supplier (except so far as required for interoperability);
10.3.3 may sublicense its Affiliates to use the Supplier Materials on the terms of this clause 10.3, and provided that the Customer is liable for any breaches by them of such terms, but will not otherwise assign, sublicense or deal with the Supplier Materials;
10.3.4 hereby assigns to the Supplier, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Supplier Materials or the results of the Services.
10.4 The Supplier will defend or, at its option, settle any action brought against the Customer arising from any claim that the receipt by the Customer of the Services or use by it of the results of the Services, in both cases in accordance with the Contract, infringes any third party intellectual property right, and indemnify the Customer against all reasonable costs and expenses incurred by the Customer in connection with such claim.
10.5 The Supplier’s obligations under clause 10.4 will not apply to Services received, or where their results are modified or used, by the Customer other than in accordance with the Contract. The Customer will indemnify the Supplier against all reasonable costs and expenses incurred by the Supplier in connection with any claim arising from such receipt, modification or use.
10.6 The Supplier’s obligations under clause 10.4 are conditional on the Customer:
10.6.1 promptly advising the Supplier in writing of any claim or action;
10.6.2 making no admission as to, or settlement or compromise of any claim or action without the Supplier’s prior written consent;
10.6.3 giving the Supplier sole conduct of any defence and any settlement negotiations; and
10.6.4 co-operating fully with the Supplier at the Supplier’s expense and providing the Supplier with all reasonable assistance in the defence or settlement of such claim or action.
10.7 The Customer’s reasonable costs of compliance with clauses 10.6.3 and 10.6.4 will be paid by the Supplier.
10.8 The provisions of this clause 10 set out the Supplier’s entire liability and the Customer’s sole right in respect of third party infringement of any intellectual property right.
11 Partner Resource Usage
11.1 The Supplier will make available to the Customer access to the Partner Resources subject to the restrictions on use contained in this clause 11.
12.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:
12.1.1 any information which was in the public domain at the date of this Contract;
12.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of this Contract or any related agreement;
12.1.3 is independently developed by the other party without using information supplied by the first party; or
12.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of this Contract.
12.2 This clause 12 will remain in force for a period of 5 years from the date of the Contract.
13 Force Majeure
13.1 Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required by for performance of the Contract. 13.2 Failure to pay is not Force Majeure.
13.3 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
13.3.1 promptly notifies the other of the Force Majeure event and its expected duration; and
13.3.2 uses reasonable endeavours to minimise the effects of that event.
13.4 If, due to Force Majeure, a party:
13.4.1 is or will be unable to perform a material obligation; or
13.4.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 30 days;
the parties will, within 30 days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent.
14.1 The Contract may be terminated forthwith at any time by either party on written notice to the other if:
14.1.1 the other commits a material breach, or series of breaches resulting in a material breach, of the Agreement and such breach is not remediable or is not remedied within 14 days of written notice to do so;
14.1.2 the other: (i) suspends or threatens to suspend payment of its debts, (ii) is unable to pay its debts as they fall due or (iii) is unable to pay its debts (being a company) within the meaning of s 123 of the Insolvency Act 1986 or (being an individual) within the meaning of s 268 of the Insolvency Act 1986 or (being a partnership) there is any partner to whom any of the foregoing applies;
14.1.3 the other: (i) negotiates with its creditors for rescheduling of its debts, (ii) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (iii) makes an application to court for protection from its creditors generally;
14.1.4 the other passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the other, other than solely in relation to a solvent amalgamation or reconstruction;
14.1.5 a receiver or administrative receiver may be or is appointed in relation to the other or any of its assets;
14.1.6 any creditor of the other attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the other’s assets, and such attachment or process is not discharged within 14 days;
14.1.7 the other takes or suffers any action similar to any of the above in any jurisdiction;
14.1.8 there is a material change in the management, ownership or control of the other;
14.1.9 the other suspends trading, ceases to carry on business, or threatens to do either;
14.1.10 the other (being an individual) dies or ceases to be capable of managing his own affairs; or
14.1.11 the other is subject to an event of Force Majeure under clause 13.
14.2 In addition to its rights under clause 14.1, the Supplier may terminate the Contract at any time:
14.2.1 on 30 days’ written notice to the Customer;
14.2.2 immediately on written notice to the Customer if the Customer has failed to pay any amount due under the Contract on the due date.
14.3 On termination of the Contract for any reason:
14.3.1 the Customer will immediately pay all invoices of the Supplier then outstanding and not disputed in good faith;
14.3.2 the Supplier will, within 5 Business Days, invoice the Customer for all Services provided but not yet invoiced and the Customer will pay such invoice within a further 30 Business Days (unless the invoice is disputed in good faith);
14.3.3 each party will within 20 Business Days return any materials of the other then in its possession or control; if it fails to do so, the other may enter onto any premises of the first party and take possession of them. Pending such return or taking possession, the first party will be responsible for such materials and will not use them for any purpose not connected with the Contract;
14.3.4 the accrued rights and liabilities of the parties will not be affected; and
14.3.5 clauses which expressly or by implication are to survive termination will do so.
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions.
15.2 No set-off
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of these Conditions is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the remaining provisions of the Conditions will otherwise remain in full force.
Notices under this Agreement will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
15.5.1 by first-class post: two Business Days after posting;
15.5.2 by airmail: seven Business Days after posting;
15.5.3 by hand: on delivery;
15.5.4 by facsimile: on receipt of a successful transmission report from the correct number, and
15.5.5 by e-mail: on receipt of a delivery or read receipt mail from the correct address.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
15.7 Rights of Third Parties
This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The terms of the Conditions prevail over those of the Order or Schedule (if any).
15.9 Entire Agreement
This Contract will bind and benefit each party’s successors and personal representatives.
15.11 Governing Law & Jurisdiction
15.11.1 This Contract will be governed by the law the Isle of Man.
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