1. Definitions
Drafts — drafts, samples, prototypes.
Fees — as defined in clause 7.1
Events Outside our Control — events or circumstances beyond our reasonable control.
IPR — patents, inventions, copyrights and related rights, trademarks, database rights and other intellectual property rights and applications rights to apply for renew or extend the same subsisting now or in the future in any jurisdiction.
Materials — any final materials prepared as part of the Services (excluding Drafts).
Services — the services set out in the SOW or otherwise agreed by us in writing from time to time.
Specification — the specification for the Services set out in the SOW or otherwise agreed by us in writing from time to time.
SOW — the statement of work issued by us incorporating these terms.
We, us, our — Studio Output Limited (No. 4638828).
You, your — the client named on the SOW.
A person includes bodies corporate or unincorporate; words preceded by including, include, in particular or the like shall be illustrative and not limit the sense of preceding words; writing or written includes fax and email.
2. Contract
2.1 Quotes are not offers capable of acceptance by you and an agreement in respect of the Services shall only come into existence in accordance with these terms.
2.2 This agreement only becomes effective (a) after signed by both parties; or (b) if sooner, after (i) you confirm in writing or orally that you agree the SOW and (ii) we confirm such agreement in writing or have commenced work.
2.3 This agreement includes these terms and the SOW. In the event of conflict, the SOW’s express terms prevail.
2.4 The terms of this agreement apply to the exclusion of any other terms which you seek to impose/incorporate or are implied by trade custom practice or course of dealing.
2.5 This agreement is the entire agreement between us. You acknowledge that you have not relied on any statement promise or representation made on our behalf that is not set out in this agreement. Neither party has any remedy in respect of any statement promise or representation not set out in this agreement.
2.6 We do not warrant that the SOW corresponds with your brief to us and any such warranty is excluded.
3. Services
3.1 Subject to payment of Fees, we will use reasonable care and skill in providing the Services and reasonable endeavours to perform to any time scales in the SOW.
3.2 You shall promptly provide requested information/materials.
3.3 We shall not be liable for delay caused by your delay in providing information/materials.
3.4 You hereby indemnify us in respect of any costs (including legal), claims, liabilities, actions or proceedings for which we may be liable as a result of you giving us defamatory illegal or infringing materials.
3.5 If you wish us to use third party IPR in the Materials, you shall comply strictly with the terms of any licence therefor. We do not warrant that such IPR does not infringe any third party’s IPR.
3.6 If we fail to provide Services our liability is limited to an amount equal to: (a) the costs incurred by you in obtaining replacement services of similar description/quality in a reasonably comparable market LESS (b) the fees you would have paid us had we provided the Services.
4. Changes
4.1 No change to the Specification shall be effective unless agreed by us in writing.
4.2 If we have started work when you wish to change the Specification you shall pay (a) the Fees in respect of milestones which are completed; and (b) on a time and materials basis in respect of uncompleted milestones subject to the requested change. We reserve the right to stop work until we have agreed what Fees and payment terms are applicable.
5. Warranty
5.1 We warrant (Warranty) that for a period of 12 months from the invoice date for the Services concerned (Period), the Materials shall conform materially with the Specification when accessed in the operating systems/environments set out in the SOW.
5.2 If you notify us in writing during the Period that the Materials do not comply with the Warranty and we are given a reasonable opportunity to examine them, we shall at our option repair or replace the defective Materials or refund the price of the defective Materials. If you give notice and we find no defect, we reserve the right to charge you for our wasted costs.
5.3 We shall not be liable for the Materials not complying with the Warranty if the defect arises because: you failed to follow our instructions or good trade practice; we followed your instructions; you alter, modify, adapt or develop the Materials without our written consent; you misuse or abuse the Materials; an Event Outside our Control.
5.4 We shall not be liable to you for the Materials not complying with the Warranty, except as set out in this clause. The Warranty applies to any repaired or replaced Materials until the expiry of the Period.
5.5 All terms and conditions implied by law are excluded to the fullest extent permitted by law.
6. Title, risk & IPR
6.1 We will assign IPR of the work created in this SOW by way of our standard form of assignment;
7. Fees
7.1 You shall pay the fees set out in the SOW (on the payment terms set out in the SOW) or as otherwise agreed in writing from time to time (Fees).
7.2 All amounts (including Fees) are quoted ex VAT, which is payable in addition at the prevailing rate.
7.3 In the event that you have paid all or any part of the Fees upfront and then notify us that you no longer wish to receive the Services, we shall be entitled to retain any unused balance of such amounts on account of future services.
7.4 If you fail to make any payment by the due date for payment: you shall pay interest on the overdue amount at 4% pa above HSBC Bank PLC’s base rate, accruing on a daily basis from the due date until payment (before and after judgment); we can terminate this agreement and/or suspend the Services; we can require immediate payment for all Fees
8. Termination
8.1 We or you may terminate this agreement by not less than 30 days’ written notice to the other (Notice).
8.2 We may cease providing Services from the date of the Notice and you shall pay (a) the Fees in respect of milestones which are completed; (b) on a time and materials basis in respect of uncompleted milestones; and (c) subject to the following sentence, all expenses goods or services booked for your benefit before the Notice (whether or not for supply after the Notice), all of which amounts shall fall immediately due. We shall use our reasonable endeavours to cancel any expenses goods or services booked for your benefit.
8.3 We may terminate this agreement immediately at any time by written notice if we believe (a) you are unable to pay your debts as they fall due; (b) a liquidator, administrator, administrative receiver or receiver is appointed in respect of you or any of your assets; (c) you enter any scheme, arrangement or compromise with your creditors; (d) you are the subject of a winding up petition; (e) anything analogous to the foregoing occurs in any jurisdiction.
9. Liability
9.1 Nothing in this agreement shall limit or exclude our liability for death or personal injury, fraud or for any other matter it would be unlawful for us to limit or exclude liability.
9.2 Subject to clauses 9.1 and 9.3, our total liability to you (whether in contract tort (inc. negligence) breach of statutory duty or otherwise) arising under or in connection with this agreement or the Services shall be limited to the higher of £20,000 and 150% of the Fees actually paid in the preceding 12 months.
9.3 Subject to clause 9.1 we shall not be liable to you (whether in contract tort (inc. negligence) breach of statutory duty or otherwise) arising under or in connection with this agreement or the Services for any loss of profit, loss of opportunity, indirect and/or consequential loss.
9.4 We shall not be liable for any failure or delay caused by an Event Outside our Control.
10. General
10.1 We may assign, transfer, subcontract or otherwise deal with any of our rights or obligations under this agreement. You shall not without our prior written consent, assign, transfer, subcontract or otherwise deal with any of your rights or obligations under this agreement.
10.2 We may use, publish, reproduce and disclose the Materials, your name and details of the relevant project on our website and in our publicity materials.
10.3 Notices shall be in writing addressed to a party at its registered office or other address as that party specifies in writing and given as follows (with deemed service as follows) (a) personally (when given) (b) by first-class or recorded post within the UK (two business days after posting) (c) commercial courier (when signed for) (d) fax or email (immediately, provided it is sent on a business day before 5.30pm, otherwise on the next business day), provided that in the case of fax/email no message ‘not received’ or the like is received by the sender.
10.4 To the extent any provision of this agreement is invalid, illegal or unenforceable the relevant wording shall be deemed deleted. The enforceability of the other provisions will not be affected. A waiver is only effective if made in writing. No variation shall be effective unless agreed in writing by you and us. No person other than the parties has any rights hereunder.
10.5 This agreement is governed by English law; the English courts have exclusive jurisdiction.