1. The following definitions and rules of interpretation apply in these conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Change Order: has the meaning given in clause 5.2.
Charges: the charges payable by the Customer to Territory Studio for the supply of the Services in accordance with clause 6 (Charges and Payment).
Confidential Information: means all confidential information (however recorded or preserved) disclosed by a party (including its employees, officers, representatives and advisers) to the other party (including its employees, officers, representatives and advisers), including but not limited to: (i) any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party, (ii) any information developed by the parties in the course of carrying out this Contract.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.4.
Contract: the contract between Territory Studio and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Territory Studio.
Deficiency: means material failure or defect in the function of the Deliverables.
Deliverables: the deliverables set out in an Order produced by Territory Studio for the Customer.
Intellectual Property Rights: patents, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, copyright in design, drawings, photographs, artwork and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services as set out in the SOW or as otherwise agreed in writing between the Customer and Territory Studio.
Services: the services, including the Deliverables, supplied by Territory Studio to the Customer as set out in the Order.
Statement of Work or SOW: a detailed plan, agreed in accordance with clause 5, describing the Services to be provided by Territory Studio and the related matters listed in the template statement of work set out in Schedule 1.
Territory Studio: Territory Studio Limited registered in England with company number 07440212.
Website: Territory Studio’s website with link: www.territorystudio.com .
1.2.1. A reference to a statue or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.2.4. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5. A reference to writing or written includes email.
2. Basics of Contract
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when Territory Studio issues written acceptance of the Order or a SOW is signed by Territory Studio (whichever comes first) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Any samples, drawings, descriptive matter or advertising issued by Territory Studio, and any descriptions or illustrations contained in Territory Studio’s brochures, marketing material or Website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1. Territory Studio shall supply the Services to the Customer in accordance with the Order.
3.2. Territory Studio shall use all reasonable endeavours to meet any performance dates specified in the Order or otherwise, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3. Territory Studio warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s Obligations
4.1. The Customer shall:
(a) ensure that the terms of the Order and any information it provides to Territory Studio for the purposes of providing the Services are complete and accurate;
(b) co-operate with Territory Studio in all matters relating to the Services;
(c) provide Territory Studio, its employees, agents, consultants and subcontractors, with access to the Customer’s property and other facilities or assets as reasonably required by Territory Studio for the provision of the Services;
(d) ensure that Customer property or assets provided to Territory Studio are fully insured;
(e) inform Territory Studio of all health and safety and security requirements that apply at the Customer’s premises, if Territory Studio visits such premises;
(f) provide Territory Studio in a timely manner with such information, feedback and materials as Territory Studio may reasonably require in order to supply the Services, and ensure that such information is complete and accurate;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(h) comply with any additional obligations as set out in the Order.
4.2. The Customer accepts full responsibility for:
(a) checking the Deliverables’ artwork, facsimile of the artwork or graphics for corrections and communicating to Territory Studio any desired changes before such Deliverables are finalised; and
(b) all proofreading and copy-checking of the Deliverables before any of them are made available to the public, become live, go to print or to be manufactured.
4.3. If Territory Studio’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Territory Studio shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Territory Studio’s performance of any of its obligations;
(b) Territory Studio shall not be liable for any costs, losses or additional Charges sustained or incurred by the Customer arising directly or indirectly from Territory Studio’s failure or delay to perform any of its obligations as a result of a Customer Default; and
(c) the Customer shall reimburse Territory Studio on written demand for any costs or losses sustained or incurred by Territory Studio arising directly or indirectly from the Customer Default.
5.1. An Order may be agreed by the Customer and Territory Studio, following the Customer’s request for specific Services and Territory Studio’s reasonable request of information for the purposes of assessing the Services and drafting the Order. For the avoidance of doubt, Territory Studio shall not be obliged to accept the provision of Services proposed by the Customer.
5.2. Once an Order has been agreed and, if an SOW, signed by the parties it may only be amended if the proposed changes are agreed or signed by both parties. Where the proposed change relates to technical specifications, an Order may only be changed in accordance with a Change Order signed or agreed in writing by both parties which should set out the proposed changes and effect that those changes will have on the Deliverables, Charges, timetable for the Services and any of the other terms of the relevant Order.
5.3. Each Order shall automatically become part of these Conditions once signed (relevant to an SOW) and agreed by both parties and shall not form a separate contract to them.
5.4. Unless the relevant Order states otherwise, the following procedures will govern the Customer’s acceptance of Deliverables:
5.4.1. The Customer shall have fifteen (15) Business Days (Testing Period) to test and evaluate the Deliverables under an Order.
5.4.2. If the Customer does not notify Territory Studio in writing of any Deficiency or requested modifications to the Deliverables, including changes to the artwork, design or graphics, within the Testing Period, then the Deliverables will automatically be deemed accepted by the Customer.
5.4.3. If the Customer notifies Territory Studio in writing of a Deficiency with the Deliverables, then upon Territory Studio’s receipt of such notice, Territory Studio will have up to thirty (30) Business Days to review the Customer’s notice and may provide appropriate remedies to the Customer. The Customer shall then have an additional Testing Period to evaluate and test the Deliverables modified by Territory Studio.
6. Charges and Payment
6.1. The Charges for the Services shall be calculated as follows:
6.1.1. the Charges will be set out in the Order. If no Charges are quoted, the Charges will be calculated in accordance with Territory Studio’s daily rates on the basis of an eight-hour day from 9:30am to 6:30pm, UK time, worked on Business Days; and
6.1.2. Should the Customer request Territory Studio to provide Services that are outside the scope of the SOW, then those Services shall incur additional costs and charges payable by the Customer to Territory Studio. The Charges for providing such Services may be agreed by the parties prior to work commencement of that particular Service.
6.2. The Customer agrees to pay 50% of the Charges to Territory Studio in advance and in any case, within ten (10) Business Days from the creation of the Contract (Advance Payment).
6.3. The Advance Payment shall not be refundable, unless Territory Studio decides otherwise at its own discretion.
6.4. Territory Studio shall invoice the Customer for the balance of the Charges in accordance with the payment schedule set out in the Order, or if none is provided, on completion of the Services.
6.5. Unless otherwise stated in the Order, all amounts payable to Territory Studio by the Customer, including the Charges stated in an Order, may be exclusive of costs, expenses and disbursements which Territory Studio, or the individuals whom Territory Studio engages in connection with the Services, may incur and Territory Studio shall be entitled to charge these to the Customer supplementary to the Charges. Such costs shall include, but shall not be limited to:
(a) travelling expenses;
(b) hotel costs;
(c) photography, copywriting, printing, working file costs;
(d) the cost of services provided by third parties and required by Territory Studio for the performance of the Services; and
(e) the cost of any materials.
6.6. All amounts payable to Territory Studio by the Customer are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.
6.7. Any modification of the Services requested by the Customer after the Testing Period, shall bear an additional charge calculated on the same basis as the Charges and shall be payable by the Customer to Territory Studio.
6.8. The Customer shall pay each invoice submitted by Territory Studio:
6.8.1. within thirty (30) days of the date of the invoice; and
6.8.2. in full and in cleared funds to a bank account nominated in writing by Territory Studio.
6.9. If the Customer fails to make a payment due to Territory Studio under the Contract by the due date, then, without limiting Territory Studio’s remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.10. Subject to clause 11.5, all amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.1. The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public; and
(b) the parties agree in writing is not confidential or may be disclosed.
7.2. Each party shall keep the other party’s Confidential Information confidential and shall not use such Confidential Information except for the purpose of performing its rights and obligations under or in connection with this Contract (Permitted Purpose).
7.3. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by court, and to the extent that it is legally permitted to do so, it shall give the other party a reasonable notice of such disclosure.
7.4. On termination of the Contract and to the extent that it does not obstruct the Customer from using the Deliverables, each party shall:
(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
(b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties; and
(c) certify in writing to the other party that it has complied with the requirements of this clause.
7.5. The provisions of this clause 7 shall continue to apply after termination of the Contract.
8. Intellectual Property Rights
8.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Territory Studio.
8.2. Until full re-payment of the Charges, Territory Studio grants to the Customer a worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables for the purpose of receiving and using the Services. The Customer shall not sub-license, assign or otherwise transfer rights granted in this clause 8.2. For the avoidance of doubt, this does not release the Customer from its obligation to pay all amounts due under the Contract to Territory Studio.
8.3. Unless otherwise agreed by the parties, ownership of the Intellectual Property Rights referred to in clause 8.1 shall be transferred to the Customer on full settlement of the Charges and of all amounts due by the Customer to Territory Studio in relation to the Services.
8.4. The Customer grants Territory Studio a fully paid-up, non-exclusive, royalty-free, non-transferrable licence to copy and modify any materials provided by the Customer to Territory Studio for the term of the Contract for the purpose of providing the Services to the Customer.
8.5. Subject to clause 8.1, the Customer shall undertake to ensure that it has all necessary licenses or ownership rights of Intellectual Property Rights in any materials provided to Territory Studio (such as the Customer’s logo) and warrants to Territory Studio that it has the right to use them for the purposes of providing the Services.
8.6. The Customer shall indemnify Territory Studio and hold it harmless against any liability, loss, damage, cost (including reasonable legal and professional adviser costs) or expense that Territory Studio suffers or incurs as a result of any claims against Territory Studio in respect of actual or alleged infringement of a third party’s Intellectual Property Rights arising out of the Services.
8.7. The Customer hereby gives permission to Territory Studio to use photos and/or videos of the Deliverables on the Website, social media profiles, presentations and any other marketing material for the purposes of promoting Territory Studio’s business. The Customer shall have the right to withdraw such consent at any time by giving written notice to Territory Studio.
9. Limitation of Liability
9.1. Nothing in this Contract shall limit or exclude Territory Studio’s liability for:
(a) death or personal injury cause by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 13 of the Supply and Services Act 1982 (reasonable care and skill) or any other liability which cannot be limited or excluded by applicable law.
9.2. Subject to clause 9.1, Territory Studio shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data of information;
(f) loss of or damage to goodwill; or
(g) any indirect or consequential loss.
9.3. Where the parties have agreed that for the purposes of completing an Order and delivering or in connection with the Deliverables, the services and expertise of another professional has to be sought, such as an advisor, a manufacturer, or a supplier, the Customer shall be subject to that professional’s terms and conditions in relation to any work provided by them and Territory Studio shall not accept any liability for such professional’s acts, omissions or quality of work even if that professional was recommended to the Customer by Territory Studio.
9.4. Subject to clause 9.1, Territory Studio’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 100% of the total Charges paid under the Contract.
9.5. This clause 9 shall survive termination of the Contract.
10.1. Without affecting any other right or remedy available to it, either party may terminate the Contract or an Order by giving the other party one (1) month’s written notice.
10.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(b) the other party suspends, threatens to suspend, or ceases or threatens to cease to carry on all or substantial part of its business;
(c) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
10.3. Without affecting any other right or remedy available to it, Territory Studio may suspend the supply of Services under the Contract or an Order or any other contract between the Customer and Territory Studio if the Customer fails to pay any amount due under the Contract on the date for payment, the Customer becomes subject to any of the events listed in clause 10.2, or Territory Studio reasonably believes that the Customer is about to become subject to any of them.
11. Consequences of Termination
11.1. On termination of the Contract all existing Orders shall terminate automatically.
11.2. On termination of the Contract or an Order:
(a) the Customer shall immediately pay to Territory Studio all of Territory Studio’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Territory Studio shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) the Customer shall immediately return to Territory Studio any property or materials owned by Territory Studio and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Territory Studio may enter the Customer’s premises and take possession of them. Until they have returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
11.3. Termination of the Contract or an Order shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.4. If at any stage of the Contract or Order, any party terminates the Contract or Order in accordance with clause 10, the Customer agrees to pay Territory Studio, irrespective of whether the Services have been completed:
11.4.1. for all costs incurred by Territory Studio in accordance with clause 6.5 up to the date of termination; and
11.4.2. for Charges of a full day’s rate (as detailed on the Order or as otherwise agreed by the parties) corresponding to the number of days for which Territory Studio has provided Services to the Customer up until the termination date.
11.5. The Customer agrees that the charges referred to in clause 11.4 shall be owed to Territory Studio in addition to the Advance Payment. Territory Studio reserves the right to use, at its own discretion, the Advance Payment to cover costs and charges set out in clause 6.5. If Territory Studio exercises such discretion and an amount is owed to Territory Studio by the Customer over and above the Advance Payment used against the charges in clause 11.4, the Customer agrees to pay the balance to Territory Studio.
11.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2. Assignment. Neither party may assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligation under the Contract without the other party’s prior written consent.
12.3. Entire agreement. The Contract (including all Orders) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, proposals, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. If the terms of an Order directly conflicts with this Contract, then the provisions of this Contract shall prevail unless the Order specifically (i) describes the conflict and (ii) states that it is intended for the provisions in the Order to prevail.
12.4. Variation. Except as set out in this Contract, no variation of the Contract or the Order shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach of default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other remedy.
12.6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.7. Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email at the last known email address. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, at 9am on the next Business Day after transmission.
12.8. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9. Governing law. The Contract, and any dispute or claim (including non-contractual disputes of claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England.
12.10. Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.