Terms and Conditions

Parties

‘Animator Nate Ltd’ a limited company incorporated in England (company number 14239062) and whose registered office is at 76 Shipridge Drive, Spencers Wood, RG7 1TL, (“the Company”).

And:

The Client: As detailed in the given Letter of Engagement

Definitions

In these Terms and Conditions, unless otherwise provided:

"The Client", "Your" or "You" - means the person, firm or company to whom Our Letter of Engagement is addressed and to whom the Services are provided.

“Contract” - means the given Letter of Engagement, together with these Terms and Conditions

“Data Protection Legislation” - means the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any other applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated).

"Letter of Engagement" - means the letter which covers the detail of the Services We are to provide.

"Intellectual Property Rights" - means patents, trademarks, design rights (whether register-able or otherwise), applications for any of these, copyrights, database rights, trade or business names and other similar rights or obligations whether register-able or not in any country.

“Purpose” - means the provision of Services by Us to You.

“The Company”, "Our", "We" or "Us" - means Animator Nate Ltd, its members, directors, staff and agents, and in all cases any successor or assignee.

"Services" - means the Services to be provided by us pursuant to the Contract (or any part of them) as described or referred to in schedule one of the Letter of Engagement.

"Client Materials" - means any information, documentation, source or project files provided by the Client to complete the agreed work

“Third Party Materials” - means any assets purchased or acquired by the Company for use in the Services. For example stock imagery or stock footage which requires a usage license

"Deliverables" - means the output product of any agreed project

General
1. These Terms and Conditions shall apply to all Services provided to You by the Company.
2. Should any of the terms of our Letter of Engagement expressly amend these Terms and Conditions, the former shall prevail. Otherwise, in the event of any conflict, these Terms and Conditions shall take precedence.
3. Either party may request changes to the Services. We will work with you to consider and, if appropriate, to vary any aspect of the Services. If agreed, the amendment will be set out as a variation to the Letter of Engagement, and will become binding upon signature by You and Us.
4. Any variation to these Terms and Conditions must be set out in writing and signed by You and Us.
5. If any provision of this Contract is held to be invalid, in whole or in part, it will be deemed not to form part of the Contract. In any event, the enforceability of the remainder of the Contract will not be affected.
6. Nothing in the Contract will prevent Us from taking all such action as may be required by law or statute or to comply with the regulations of any professional body or regulatory authority.
Fees and expenses
1. Our Fees will be charged on the basis set out in our Letter of Engagement and are payable within 30 days of the invoice date. Where applicable, VAT is charged at the prevailing rate.
2. The Fee rate shall be subject to periodic reviews but the Client will be given a 30-day notice of any such increase.
3. If payment of the Fees or any part thereof is overdue, then unless You have notified Us in writing that such payment is in dispute within 30 days of the receipt of the corresponding invoice We shall notify You in writing of such delay and in the event that such Fees are not paid in full within 10 days of the date of such notice, We may at Our option: (i) suspend provision of all Services for which payment has not been made, and (ii) suspend further delivery of any Service and/or Deliverables until the corresponding overdue fees are paid in full; and/or (iii) treat such as a material breach and terminate this Contract in accordance with Clause 13.
4. Where payment of invoices is late, interest may be charged on a daily basis at 5% over the Royal Bank of Scotland’s base rate from time to time from the date of the bill in cases where payment is not made within 30 days of the date of the invoice. The Company may in the alternative claim interest at its discretion under the Late Payment of Commercial Debts (Interest) Act 1998.
5. You will be liable for the time costs of pursuing payment and the costs of any legal proceedings to recover Our costs and disbursements both before and after any judgment is obtained against You.
Information provided by you
1. Our performance of the Services is dependent upon You providing Us with the appropriate and required briefing, information and assistance for each agreed project. You will provide Us with all necessary Client Materials; documentation and information required and/or requested by Us, in order to enable us to complete the Services.
2. You confirm that the information so provided to Us is aligned to any agreed project and is accurate for the agreed purposes of the Contract and you acknowledge that We may rely upon it. You agree that We shall not be under any duty to verify the accuracy and completeness of any such information. You confirm and represent to Us that You have the right to supply to Us all necessary information for the purposes of fulfilling Our responsibilities pursuant to the Letter of Engagement and that the supply of such information and its receipt and use by Us for the purposes contemplated by the Letter of Engagement will not infringe any rights held by any third party, involve the unauthorised use or disclosure of confidential information belonging to a third party or result in a breach by You of any law, regulatory obligation or fiduciary duty owed to any third party or any Intellectual Property Rights.
Role and responsibilities
1. In performing Our role we would expect to create, edit, design and deliver creative design projects, on a project to project basis, in each case as set out in the Letter of Engagement and agreed by You and Us from time to time.
2. You respect that the services provided by Us are not on the basis that We are members of any statutory body or are operating under the auspices of any regulatory or professional authority but on the basis of our practical commercial background and experience. In the event of any claim, allegation or proceedings claiming that We are or were engaged by you pursuant to the Letter of Engagement contrary to the basis set out in this clause 5.2, You confirm that You will indemnify Us in respect of all costs, claims, legal fees and including any liability We might otherwise have in respect of claims made against Your directors or employees.
Authority and compliance
1. We are hereby authorised by You to do anything which We consider is reasonable or necessary either to perform the Services pursuant to the Letter of Engagement or to comply with any applicable laws, regulations, authorisations, consents or practices as may be reasonable or appropriate.
2. You undertake that You will procure that, including where applicable, those acting "in concert" with You will comply with all relevant laws and regulations in all relevant jurisdictions including, without limitation, all relevant legislation including EU Law and its implementation. Notwithstanding the foregoing, You shall not be liable for Our compliance or noncompliance with such laws except to the extent that it arises directly from Our reliance on information provided by You or your professional advisors as set out in clause 4.
Intellectual property rights
1. The Company acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to the Company a non-exclusive licence during the applicable Project Term to use the Client Materials solely for the purposes of providing the Services and Deliverables.
2. Prior to delivery of the Deliverables, the Company shall obtain licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials. The Company shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies and keeps the Company indemnified against any Losses suffered by the Company as a result of the Client or its Affiliates breaching any such restrictions.
3. Notwithstanding any of the above and save as otherwise expressly provided for in the Services or Letter of Engagement, the Company shall: (i) be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on the Company’s website, in credentials pitches and in its showreel. Any other use by the Company shall be subject to the Client’s prior approval; and (ii) retain all know-how obtained in connection with the Services and Deliverables. During the Term, if the Company is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 7, the Company shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Company is successful in such pitch and the parties agree that such Materials will be used in a Project set out in the Services or the Letter of Engagement.
4. For the avoidance of doubt, the Company shall not be liable under or in connection with the Letter of Engagement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.
5. The terms of and obligations imposed by this clause 7 shall survive the termination of this Agreement for any reason.
Confidentiality and publicity
1. We will keep confidential all information (whether provided orally, in written or in any other form) which You provide to Us for the purposes of the Contract. The Company undertakes that it and its directors, employees, consultants and substitutes shall keep in the strictest confidence all details of trade secrets and confidential information which may come into its possession during the completion of the Contract.
2. We will, however, be free to use any skill, know-how or methodologies employed in performing the Services when performing other services for other clients. In particular, We shall, subject to complying with its obligations under this clause, be free to act for clients whose interests compete with or oppose Yours without having to obtain your consent.
3. Subject to the provisions of clause 8.1, You agree that We have the right to publicise or advertise at Our expense, the Services provided by us pursuant to this Contract. All other public announcements or disclosures by You in connection with the Services may be made only if agreed upon by both the Company and You save as required by any law or the requirement of any relevant regulatory authority. However, we assume the right to refer to You in proposals or other similar submissions made to prospective clients, unless You write to us expressly prohibiting such disclosure.
4. All services provided by Us to You are provided solely for Your use as set out in the Letter of Engagement. Save as expressly agreed to the contrary with Us, they should not be disclosed or provided to any third party without Our prior written consent. In the absence of such consent and an express assumption of responsibility, no responsibility whatsoever is accepted by Us for any consequences arising from any reliance upon Our work by any person other than a person to whom our Letter of Engagement is addressed.
5. You agree that it will be sufficient compliance with Our duty of confidentiality for Us to take such steps as We in good faith think fit to preserve confidential information both during, and after termination of, this Contract.
6. The provisions in this clause 8 restricting disclosure of confidential information shall not apply to any information which: (i) is or becomes public knowledge other than as a consequence of breach of the Contract; (ii) is already in the possession of the other party without restriction before the date of receipt from the disclosing party; or (iii) is required to be disclosed by any applicable law, regulatory authority or order of a court of competent jurisdiction or enforceable request of any recognised competent authority provided that such disclosure is limited to the minimum necessary to comply with such disclosure obligations.
Data protection
1. Both you and we agree to comply with all applicable Data Protection Legislation, and agree to enter into any further agreements required in order to do so, if need be, such as, but not limited to, standard contractual clauses.
Delay
1. We shall not be responsible for any delay to the performance of the Services, where such delay is caused by matters beyond our control (including but not limited to Your failure to provide, in a timely manner, the information referred to in clause 4 above).
Liability
1. We will use reasonable skill and care in the provision of the Services.
2. Nothing in this Contract shall exclude or limit Our liability for (i) fraud or other criminal act, (ii) personal injury or death caused by the negligence of Our employees or sub-contractors in connection with the performance of their duties hereunder or (iii) any other liability that cannot be excluded by law.
3. Subject to clause 11.2, in no event will we be liable under this Contract for any damages resulting from: (i) loss of, damage to or corruption of data, (ii) loss of use, (iii) lost profits, (iv) loss of anticipated savings (v) loss of revenue, (vi) loss of opportunity, (vii) loss of goodwill, (viii) loss of reputation, and/or (ix) any indirect or consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen. For the avoidance of doubt, in the event of loss of, damage to or corruption of data arising from any act or omission of Ours under this Contract, We shall be liable for the cost of restoring such data from backups where available, but not for the value of any lost or corrupted data that could not be so recovered.
4. Except as provided in clause 11.2 and in clause 11.3, Our maximum aggregate liability to You for any cause whatsoever shall be for direct costs and damages only and will be limited to that proportion only of Your actual loss which was directly and solely caused by Us. Our liability will in no circumstances exceed an amount equivalent to 125% of the previous 12 months’ invoices for the Services (excluding VAT).
5. We hereby exclude all liability that we have not expressly accepted in this Contract. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action. For the purposes of this clause 11 “We” includes Our employees, sub-contractors, licensors and suppliers who shall therefore have the benefit of the limits and exclusions of liability set out in this clause 11 in terms of the Contracts (Rights of Third Parties) Act 1999.
6. No action, regardless of form, arising out of transactions occurring under or contemplated under this Contract may be brought by either You or Us more than two (2) years after the cause of action has accrued, unless such action or the results of such action could not reasonably have been discovered sooner.
7. Under no circumstances will We be liable to pay damages to You for losses arising out of or in any way connected with (i) the provision of information to Us by You or (ii) Your failure to provide information or assistance to Us either punctually or at all or (iii) any fraudulent or dishonest act on Your part or that of anyone acting on Your behalf.
8. You agree that You shall not bring any legal proceedings arising from or in connection with the Contract (or any variation or addition thereof) against any of Our directors or employees or agents personally.
Complaints procedure
1. The Company aims to offer the Client an efficient and effective service at all times. We hope that you will be pleased with the work We do for you.
2. If you have a complaint about any aspect of Our Services which cannot be resolved to Your satisfaction, Your complaint should be brought to the attention of a Director of the Company by written notice and sent to Our registered office.
3. Our complaints procedure is as follows: (i) Within three business days of receipt of your letter of complaint, We will send You a letter acknowledging Your complaint and asking You to confirm or explain any details. (ii) If appropriate We will then invite You to meet a Director of the Company to discuss and hopefully resolve Your complaint. We would hope to be in a position to meet with You in this way no longer than 14 days after first receiving Your complaint. (iii) Within three business days of any meeting, We will write to You to confirm what took place and any suggestions that We have agreed with You. In appropriate cases We could offer an apology, a reduction of any bill or a repayment in relation to any payment received.
4. At this stage, if You are still not satisfied, please let Us know. We will then arrange to review Our decision. We would generally aim to do this within 10 days. (i) You agree that you will not take action or commence any proceedings against Us without first addressing your complaint to Us in accordance with this complaints procedure.
Termination
1. In the event that either party is in material or persistent breach of any part of the Contract the other party may terminate the agreement if, upon the expiry of 30 days after serving a written notice on the party in default specifying any such breach, steps have not been taken to remedy the breach to the satisfaction of the party not in default.
2. In the event that one party compounds with or negotiates for any composition with its creditors or allows any judgement against it to remain unsatisfied for seven days or calls any meeting of its creditors or has a receiver of all or any of its assets appointed or enters into any liquidation, the other party may terminate the agreement immediately by written notice.
3. Either party may give 30 days notice of termination to the other party in writing. We shall be entitled to charge, and be paid, for Services rendered pursuant to the Letter of Engagement up to the date of termination, including expenses and disbursements reasonably incurred up to that time.
4. On termination of this Contract, clauses 1, 3, 4.2, 5.2, 6, 7, 8, 9, 12.4, 15, and 16 shall continue in full force and effect.
Electronic communications
1. During the performance of the Contract, We may (unless You expressly ask Us not to do so) communicate with You (and with others for the purposes of the Contract), electronically. You accept that the electronic transmission of information cannot be guaranteed to be secure or free from error and it remains Your responsibility to carry out virus checks of any attachments before launching any document (howsoever received).
Assignment and sub-contracting
1. You shall be entitled to assign the whole or any part of the benefit or in any way transfer the obligations contained in the Contract, provided that You obtain Our prior written consent.
2. The Company shall deliver the Services through its employees or shall be entitled to use specialist subcontractors without Your prior consent, providing that in all cases, the Company shall be liable for the acts and omissions of such specialist subcontractors as though it had made them itself.
Miscellaneous provisions
1. Notices: Any notice to be given by any party in relation to the Contract shall be in writing and sent by first class post and shall be deemed duly served 48 hours after posting.
2. Whole Agreement: The Contract, together with any agreed written variations thereto, set out the entire agreement between the Client and the Company and supersede all prior representations, agreements, negotiations or understandings, whether oral or in writing, other than any misrepresentation which is made fraudulently.
3. Jurisdiction and Governing Law: The Contract shall be governed by and interpreted in accordance with English law. Subject to the provisions of clause 13, the Company and the Client irrevocably agree that the Courts of England shall have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims) which may arise in connection with the Contract.
4. Third Parties: No person other than the parties to the Contract, their respective successors and assignees, shall have the right to enforce any of the terms of the Contract, pursuant to the Contracts (Rights of Third Parties) Act 1999 (or otherwise), except as provided for in clause 15.

Terms and Conditions

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