Terms and Conditions
STANDARD TERMS AND CONDITIONS
1.1 In this Agreement the following expressions shall have the following meanings:
Acceptance Acceptance of any part of the deliverables that have been delivered and accepted pursuant to clause 5.
Author’s Corrections Any corrections or variations made to any Deliverables by or at the request of the Customer.
Chalk Studios Chalk Studios Ltd, a company registered in England & Wales number 7457897, having its registered office at 14 Windsor Street, London N1 8QG.
Commencement Date The date the services commence being ………………………………
Customer ………………………………, a company registered in England & Wales number …………, having its registered office at ………………………………………………………………………. ……………………………………………………………………………………………………………………………
Contract Variation A change to the specification of services or any other part of this Agreement agreed in writing by both parties, pursuant to clause 4.
Customer Material Without limitation, documentation, photographs, artwork and other material provided by or on behalf of the Customer to Chalk Studios and approved for incorporation into the Deliverables.
Deliverables Any services provided, including business consultancy, written documentation, software development and design services as detailed in the specification of services agreed by both parties.
Event of Force Majeure An event beyond the reasonable control of a party, including but not limited to:
(a) Strike, lock out or other form of industrial action (not involving the staff of either party);
(b) act of God;
(c) outbreak of hostilities, riot, civil disturbance or acts of terrorism;
(d) fire, explosion or flood; or
(e) theft and malicious damage
provided that no event shall be treated as an Event of Force Majeure if it is attributable to a wilful act or omission or any failure to take reasonable precautions by a party or any failure to take reasonable steps to overcome the event.
Fee The amount to be paid by the Customer to Chalk Studios as set out in Schedule Two.
Intellectual Property Rights All copyright, database rights, design rights, registered designs, patents, trade and service marks (registered and unregistered), production process rights, know-how rights and confidential information and all other intellectual property rights throughout the world for the full term of the rights concerned.
Production Estimate The document(s) provided to the Customer outlining the scope of the work and the related costs, which the Customer’s authorised personnel needs to approve either in writing or by email to Chalk Studios, prior to the commencement of any work.
Project Timetable The timetable for preparation, development and delivery of the Deliverables agreed by both parties as set out in Schedule Three.
Purchase Order An order placed by the Customer to Chalk Studios committing the Customer to the provision of services and/or supply of goods.
Regulations The Transfer of Undertakings (Protection of Employment) Regulations 2006.
2. Summary of Services to be provided by Chalk Studios
2.1 In consideration of the payment by the Customer to Chalk Studios of the Fee and subject to the terms and conditions of this Agreement, Chalk Studios shall perform (or procure the performance of) all services detailed in Schedule One. For the avoidance of doubt, Chalk Studios shall be entitled (at its sole discretion) to sub-contract the provision of all or any part of the services to be provided under this Agreement to any third party sub-contractor, provided that Chalk Studios remains primarily liable for the acts and omissions of any such sub-contractor.
2.2 In the event, for any reason, the Agreement is not fully executed by either party and any Purchase Order is raised by the Customer or a Production Estimate is approved by authorised personnel of the Customer and provided to Chalk Studios then this Agreement will be deemed to be applicable to the subject matter of the Purchase Order or approved Production Estimate notwithstanding that the Agreement may not be completed.
3. Customer’s Obligations
3.1 The Customer shall provide to Chalk Studios all necessary information available to the Customer as may be reasonably required by Chalk Studios for the preparation, development and delivery of the Deliverables including, without limitation, Customer Material that the Customer wishes to be included in the Deliverables.
3.2 The Customer shall provide the Customer Material by the date specified in the Project Timetable or as subsequently agreed between the parties in writing.
3.3 Subject at all times to clause 5.1 whereby the Customer accepts responsibility for and shall rectify any error or omission in the Deliverables after the signing of the acceptance signature, in the event that the Customer identifies any error or omission in the Deliverables prior to the signing of the acceptance signature, the Customer shall provide all reasonable assistance to Chalk Studios to enable Chalk Studios to identify any such errors or omissions and to make appropriate amendments to the Deliverables concerned.
3.4 Prior to delivery of any Customer Material to Chalk Studios, the Customer shall obtain (at its sole cost) all necessary permissions, licences, waivers, authorisations and consents as may be required in order to enable Chalk Studios to incorporate the Customer Material into the Deliverables (and to enable the Customer to subsequently use the Customer Material as part of the Deliverables) without any further fee, royalty, charge or other payment being required to be paid by Chalk Studios to any third party (including any collecting society or similar organisation).
3.5 Chalk Studios shall not be liable for any delay in the delivery of the services to be provided by it under this Agreement or for any other breach of this Agreement which is caused by the Customer’s failure to comply or delay in complying with any of its obligations under this Agreement (including those obligations to provide any information, assistance, instructions or approval as may reasonably be required to enable Chalk Studios to comply with its obligations under this Agreement).
4. Contract Variations
4.1 Should the Customer wish to vary this Agreement including the details contained in the schedules hereto, such request shall be in writing. In the event that Customer requests a Contract Variation, Chalk Studios shall notify Customer in writing within 14 days of the request, (i) whether or not it agrees to the Contract Variation; (ii) any estimated increase or decrease in the Fee in connection with implementing that Contract Variation; and (iii) any alterations to the Project Timetable which will be required. If any Contract Variation is not accepted in writing by Chalk Studios, it shall not be made or implemented (and without limitation to the foregoing, the parties agree that Chalk Studios can refuse to implement any Contract Variation which would require it to perform or provide service which it is not able to provide in the ordinary course of its business).
4.2 If the Customer accepts the estimate and amended Project Timetable, this Agreement shall be amended in writing in accordance with Chalk Studios’ estimate and revised Project Timetable. If the Customer does not accept the estimate and/or revised Project Timetable in writing within 7 days of receipt, this Agreement shall continue in force unchanged.
4.3 If Chalk Studios incurs additional costs and/or fails to meet the Project Timetable due to the Customer failing to comply with any of its obligations under this Agreement, Chalk Studios may at its absolute discretion and without prejudice to its rights under this Agreement (including the right to terminate under Clause 12) request a reasonable Contract Variation to alter the Fee and the Project Timetable as appropriate. The Customer shall not unreasonably withhold consent to a Contract Variation proposed by Chalk Studios under this clause.
4.4 Any requests to cancel this Agreement, and any requested changes to Chalk Studios’ brief or other instructions (whether as a result of any changes in any applicable laws, regulations or guidelines, or otherwise) shall be treated as a Contract Variation and shall be subject to the process outlined in this clause 4.
5. Acceptance of the Deliverables
5.1 All Deliverables will be subject to approval by the Customer, such approval not to be unreasonably withheld or delayed. The Customer will be required to approve and accept the Deliverables at various stages throughout the process by signing an acceptance sticker or confirmation email. Any draft reports or interim presentations given or made by Chalk Studios to the Customer will represent work-in-progress and signature of an acceptance sticker or confirmation email by the Customer representative shall not be deemed to be final acceptance by the Customer of the Deliverables until the final version of the documentation has been produced and approved for publication by the Customer. The Customer agrees to approve the Deliverables in a timely manner and abide by the agreed Project Timetable. The Customer accepts responsibility for any errors or omissions in the Deliverables after the signing of the acceptance signature or confirmation email and shall rectify any errors and further amendments at its own cost.
5.2 In the event that the Customer does not approve the Deliverables in a timely manner and in accordance with the agreed Project Timetable, without prejudice to any other legal remedies that Chalk Studios may have, Chalk Studios shall be entitled to make adjustments to the Project Timetable to extend any applicable deadlines to reflect the delays caused by the Customer.
6.1 The Customer shall pay the Fee without deduction or set-off in the amount and manner as set out in Schedule Two to this Agreement, subject to receipt of a valid VAT invoice.
6.2 In addition to the Fee, the Customer shall also reimburse Chalk Studios for:
(a) any expenditure it is required to incur on disbursements and expenses incurred in the ordinary course of providing the services detailed in this Agreement to the Customer during its term (including but not limited to postal and courier charges; reprographic expenses; travel and hotel expenses incurred by Chalk Studios’ personnel when attending meetings, studios and locations; and any other travel and overnight stays at the request of the Customer); and
(b) subject to clause 6.3 below, the costs of third party suppliers engaged by or on behalf of Chalk Studios in association with the provision of the services detailed in this Agreement, including but not limited to production companies, proofreaders, freelance producers, photographers, artwork suppliers, typesetters, web designers, printers and market researchers.
6.3 In the event that Chalk Studios appoints a third party supplier to provide any aspect of the services to be provided under this Agreement, Chalk Studios will include a management charge to cover administrative handling, risk and supervision, payable by the customer. Before subcontracting any of the services to a third party supplier, Chalk Studios will provide a Production Estimate for the Customer’s prior approval (such approval not to be unreasonably withheld or delayed).
6.4 All invoices submitted by Chalk Studios in respect of the Fee and/or expenses and mark-ups detailed in clauses 6.2 and 6.3 above, are payable by the Customer within 15 days of receipt if credit terms have been agreed between both parties. Otherwise, all invoices are payable by the Customer before delivery or on collection of the deliverables.
6.5 Where the payment of any invoice or any part thereof is not made on the due date, Chalk Studios, without prejudice to its other rights hereunder or in law, shall be entitled to charge interest (before as well as after judgement) on the outstanding amount at the rate of 4% per annum above HSBC Bank Plc’s base rate for the time being in force from the date of the invoice until the outstanding amount is paid.
6.6 Should the Customer fail to make any payment when due under this Agreement Chalk Studios shall have the right to either terminate this Agreement forthwith by notice in writing without affecting its rights under this Agreement or at Chalk Studios’ absolute discretion, to suspend all further design work and the provision of all services and activities for the Customer until the default is made good.
7. Limitations of liability and indemnities
7.1 Chalk Studios’ liability for any breach of this Agreement shall be limited to an amount equal to the Fee under this Agreement other than in respect of death or personal injury.
7.2 Chalk Studios shall have no liability for any representation (unless such a representation was in writing and signed by an authorised officer of Chalk Studios) which was made prior to entering into this Agreement whether the representation was made by itself, its employees, servants or agents or otherwise unless such a representation was a fraudulent representation. No representation (unless such a representation was in writing and signed by an authorised officer of Chalk Studios) shall become a term of this Agreement.
7.3 Chalk Studios shall not otherwise be liable (to the maximum extent permitted by law) to the Customer or any third party for any loss or damage (howsoever caused and even if foreseeable by Chalk Studios):
7.3.1 in relation to, in connection with, or arising from, the content of any Deliverables, or any reliance upon or use by the Customer (or its clients) of any Deliverables, or any other data, information, materials or advice (in each case whether created or originated by Chalk Studios or any third party sub-contractor) which may be provided by Chalk Studios to the Customer in connection with this Agreement from time to time;
7.3.2 in relation to, in connection with, or arising from, any errors or omissions in any interim or final Deliverable (as applicable) which have been accepted or otherwise approved by the Customer in accordance with clause 5 of this Agreement;
7.3.3 in relation to, in connection with, or arising from, any Customer Material or other data, materials or information given to Chalk Studios or its sub-contractors by or on behalf of the Customer for inclusion or use in or in connection with any Deliverables;
7.3.4 in relation to, in connection with, or arising from, any claims first brought against Chalk Studios in the USA or Canada; or
7.3.5 any economic loss including administrative and overhead costs, loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of every description.
7.4 The Customer acknowledges that (notwithstanding any guidance that Chalk Studios may offer to the Customer from time to time based on its practical experience) the Customer is solely responsible for the content of the Customer Material and each of the Deliverables and (prior to publication/production thereof) shall ensure that such content complies with all applicable legislation, regulations and guidelines in any jurisdiction. The Customer shall at its cost seek confirmation from their auditors, legal advisors and any other advisers as necessary before publication/production or taking any action in reliance upon the content of any Deliverables, or other data, information or advice provided to it by Chalk Studios from time to time.
7.5 The Customer shall indemnify Chalk Studios and keep it indemnified fully at all times against all actions, suits, claims, demands proceedings, losses, damages, costs, expenses, fines and charges which are made or brought against or incurred by Chalk Studios as a result of, or in connection with, or in consequence of:
7.5.1 the use by Chalk Studios or any of its sub-contractors of any data, information and/or other materials provided by the Customer, or as a result of performing any services or work requested by the Customer;
7.5.2 copying, producing, publishing and/or providing to the Customer the Deliverables (and the final version of any other documentation) which has been approved for publication/production by the Customer (including any related Author’s Corrections); and
7.5.3 any claim by any third party that the use of the Customer Materials by Chalk Studios or any of its sub-contractors and their incorporation into the Deliverables infringes the Intellectual Property Rights or other rights of any third party in any jurisdiction.
7.6 Chalk Studios warrants that it shall use reasonable skill and care in providing the services to be provided under this Agreement. To the maximum extent permitted by law all implied warranties, representations or undertakings in connection with any of the Deliverables and any data, information, materials and advice provided to the Customer in connection with this Agreement are hereby excluded.
7.7 The Customer agrees to indemnify Chalk Studios against any claims made under The transfer of Undertakings (Protection of Employment) regulations 2006.
8. Intellectual Property Rights
8.1 Subject to clause 8.2, 8.4 and 8.5, and provided that the Customer has fully paid all Fees due to Chalk Studios in connection with the relevant project, Chalk Studios assigns to the Customer all Intellectual Property Rights owned by Chalk Studios in and to the materials developed, originated, written or prepared by Chalk Studios or any employee of Chalk Studios for the purposes of the Deliverables.
8.2 The Customer is not entitled to (and clause 8.1 is not intended to assign) any property rights or Intellectual Property Rights already in existence at the date of this Agreement or any property rights or Intellectual Property Rights in any materials created by any sub-contractor or other third party.
8.3 In the event that Chalk Studios appoints a sub-contractor to perform any aspect of the services, Chalk Studios will negotiate a licence (on a case by case basis) from the sub-contractor, either directly to the Customer or to Chalk Studios on the Customer’s behalf, to use any Intellectual Property Rights owned by the sub-contractor in the results of the commissioned services in the Deliverables for the purposes of this Agreement. Chalk Studios will, where reasonably practical, obtain the approval in writing of such licence for the Customer before the relevant services are commissioned from the sub-contractor. Where any such licence is granted by a sub-contractor to Chalk Studios directly, the Customer undertakes that it shall comply with all the provisions of such licence in relation to its use of the licensed materials as if it were a party to that licence, and shall indemnify Chalk Studios and keep Chalk Studios indemnified fully at all times against any claims, demands, proceedings, damages, losses, costs, expenses, fines and charges which are made or brought against or incurred by Chalk Studios as a result of or in connection with any use of the licensed materials by the Customer (or any of its clients).
8.4 All property and Intellectual Property Rights in and to all proprietary software, software tools, data files, production processes, templates and digital tools and/or materials used by Chalk Studios in providing the services to be provided to the Customer under this Agreement (whether created by Chalk Studios prior to the Commencement Date or during the course of providing such services) shall as between the parties remain solely owned by and vested in Chalk Studios. The Customer shall have no right to use such software, templates and tools, other than to receive the benefit of the services provided to it by Chalk Studios under this Agreement.
8.5 All Intellectual Property Rights in and to any materials or processes (in any media) created or developed by or on behalf of Chalk Studios for use in pitches to the Customer which Chalk Studios is not subsequently successfully commissioned or otherwise contracted to provide to the Customer shall as between the parties remain solely owned by and vested in Chalk Studios.
8.6 The Customer hereby grants Chalk Studios a non-exclusive, royalty-free, worldwide, perpetual licence to use its name and logo solely for the purposes of making factually correct references to the Customer and to the work carried out by Chalk Studios for the Customer pursuant to this Agreement, on and in relation to its website, showreels, and portfolios for the purposes of marketing its credentials and experience, whether during or after termination or expiry of this Agreement.
9.1 The Customer and Chalk Studios shall, during and following termination of this Agreement, each keep confidential all information received or obtained as a result of entering into or performing this Agreement, or which relates to the provisions or subject matter of this Agreement, the other party or the negotiations relating to this Agreement (“Confidential Information”). Neither party shall disclose any Confidential Information to any third party save:
(a) to any officer, employee or contract staff for the time being working for the party concerned who may reasonably need to know it, or to its professional advisers; or
(b) as otherwise required by law or any securities exchange or regulatory or governmental body to which the disclosing party is subject wherever situated;
provided that each party shall be responsible for ensuring that any person to whom Confidential Information is disclosed complies with any conditions of confidentiality applied to such information under this Agreement, and the disclosing party shall be primarily liable for any breaches of such confidentiality obligations by any of its officers, employees or contract staff as if such breaches had been made by the disclosing party itself.
9.2 Nothing in Clause 9.1 shall apply to any information:
(a) which is (or which becomes) available to the public other than by breach of this Agreement or of any other duty;
(b) which the party receiving the information already possesses or obtains or which it originates independently in circumstances in which that party is free to disclose it; or
(c) which was previously disclosed to it by any third party free of any obligations of confidence.
10. Data Protection
10.1 The Customer hereby undertakes to Chalk Studios that Chalk Studios will not be processing as defined in Section 1(1) and paragraph 5 of Schedule 8 of the Data Protection Act 1998 and that the Customer will be exempt from notifying in respect of the Customer Material and the Customer’s data under the said Act by reason of one or more of the provisions for exemption in Part IV of the said Act and the Customer shall indemnify Chalk Studios and keep Chalk Studios indemnified fully at all times against all and any demands, proceedings, damages, losses, claims, costs, expenses, fines and charges sustained or incurred by Chalk Studios in connection with any prosecution of Chalk Studios under the said Act or any civil action brought by any person or persons under the said Act against Chalk Studios in so far as any such prosecution or civil action may be in respect of the Customer Material or the Customer’s data or any activities carried out by or on behalf of Chalk Studios pursuant to this Agreement in relation thereto.
11. Force Majeure
11.1 Neither Chalk Studios nor Customer shall be liable for any delay or failure in performing any of the obligations under this Agreement to the extent that any such delay or failure is caused by an Event of Force Majeure.
11.2 Provided the party suffering the Force Majeure delay promptly notifies the other party in writing of the reasons for, and likely duration of the delay, the performance of that party’s obligations shall be suspended during the period that the circumstances persist and it shall be granted an extension of time for performance equal to the period of the delay.
12. Duration and Termination
12.1 This Agreement shall come into force on the Commencement Date and shall continue for a period up to the date of delivering the services unless terminated earlier by either party pursuant to clause 12.2.
12.2 Either party may by notice in writing to the other, terminate this Agreement if the other party is in material breach of any term, condition or provision of this Agreement and fails to remedy such breach (if capable of remedy) within 28 days of receipt of notice from the terminating party specifying such breach.
12.3 Either party may by notice in writing to the other, terminate this Agreement if:
(a) an encumbrancer takes possession, or a receiver or administrative receiver is appointed, over any of the other’s undertaking, property or assets;
(b) the other becomes subject to an administration order or makes any arrangement or composition with its creditors; Or
(c) the other goes into liquidation or any resolution or petition to wind up the other’s business (other than for the purpose of amalgamation or reconstruction and so that the resulting company effectively agrees to be bound by or assume the obligations imposed on that other under this Agreement) shall be passed.
12.4 The rights of termination under this Agreement shall be without prejudice to any other rights (of termination or otherwise) whether under this Agreement or otherwise (including rights of termination arising at common-law) and such termination shall not be taken to waive the rights of either party to assert or exercise any such rights.
12.5 Where either party has terminated this Agreement in accordance with this clause and the method of charging as set out in Schedule Two has been on a time and materials basis, the Customer shall pay to Chalk Studios within 10 days of termination a sum of money representing the sum of the following:
12.5.1 All outstanding unpaid invoices levied up to the date of termination;
12.5.2 All outstanding unbilled time and materials costs properly incurred on the project;
12.5.3 A charge representing the costs of unwinding the project and the premature termination of the project which shall be the higher of 25% of the remaining unbilled sums under the contract or £10,000. Both parties accept that such is a genuine attempt to estimate the costs of unwinding the project and premature termination; and
12.5.4 All fees relating to services which were scheduled to be provided by Chalk Studios during any applicable notice period following termination (up to and including the final date of that notice period) regardless of whether or not those services have been commenced or completed as at the date the termination notice is served.
12.6 In addition to those sums payable pursuant to clause 12.5, if the Fees include a monthly retainer payable by the Customer to Chalk Studios, the Customer shall continue to pay that monthly retainer (pro rata) during any applicable notice period following termination by either party (up to and including the final date of that notice period).
12.7 In the event that Chalk Studios has reasonable grounds for suspecting that you or any person or organisation connected to you is involved in bribery or other corrupt conduct Chalk Studios will be entitled to immediately terminate any contract with you (whether written or verbal). Chalk Studios also reserves the right to report such conduct to the appropriate authorities.
13.1 Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice its rights to take subsequent action.
14.1 Subject to the requirements of law or the rules of any regulatory authority, no public announcement, press release or circular relating to this Agreement or the arrangements to be performed pursuant to it shall be made or issued by or on behalf of any party without the prior written approval of the others, such approval not to be unreasonably withheld or delayed.
15.1 Each party undertakes that it shall not during this Agreement and for a period of 6 months following expiry or termination solicit the services of any person who is or was employed or engaged by the other. Damages payable under this clause shall be 50% of the annual salary of the individual when last employed by the other party.
16. Unenforceable Clauses
16.1 In the event of any provision of this Agreement being held for any reason to be void, voidable or unenforceable this shall not affect the validity or the enforceability of any other provision of this Agreement or of the remainder of this Agreement as a whole.
17.1 Chalk Studios acts in all its contracts as principal at law.
18. Whole Agreement
18.1 This document constitutes the entire contractual relationship between the parties in relation to the services to be provided by Chalk Studios to the Customer unless such is modified in writing in accordance with the procedures set out in this Agreement.
19. Third Party Rights
19.1 Except where expressly provided to the contrary, the Agreement is not intended to be for the benefit of, and shall not be enforceable by any person who is not specifically named at the date of this Agreement as a party to it or any person who claims rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise, and neither party can declare itself a trustee for the benefit of a third party.
20.1 All notices, approvals and other communications to be given under this Agreement shall be in writing and shall be sent by first class post or facsimile (such facsimile notice to be confirmed by letter posted first class within 24 hours of the transmission of the relevant facsimile) to the address of the other party set out at the head of this Agreement (or to such other address as either party may notify to the other under the provisions of this clause).
21.1 This Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.