ANIMATED REMEDY LIMITED – TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES

1.              Interpretation

1.1            Definitions. In these Conditions, the following definitions apply:

Animated Remedy: Animated Remedy Ltd registered in England and Wales with company number 05379997.

Animated Remedy Materials: documents, designs, blue prints, sketches, notes, whether on paper or electronically used or produced by Animated Remedy in the development and preparation of the Services.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 8.

Conditions: these terms and conditions as amended from time to time in accordance with clause 14.8.

Contract: the contract between Animated Remedy and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person or firm who purchases Services from Animated Remedy.

Deliverables: the deliverables set out in the Project Specification, produced by Animated Remedy for the Customer.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Order: the Customer's order for Services as set out in the Customer's purchase order form, or the Customer's written acceptance of Animated Remedy's quotation, as the case may be.

Project: the project as described in the Project Specification

Project Specification: the plan describing the Project (and incorporating the quotation for the Services) and setting out the estimated timetable and responsibilities for the provision of the Services agreed in accordance with clause 3 or as otherwise agreed in writing.

Services: the services, including the Deliverables, supplied by Animated Remedy to the Customer as set out in the Project Specification.

1.2            Construction. In these Conditions, the following rules apply:

(a)         a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b)         a reference to a party includes its personal representatives, successors or permitted assigns;

(c)         a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d)         any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e)         a reference to writing or written includes faxes and e-mails.

2.              Basis of contract

2.1            Animated Remedy shall provide the Services to the Customer on the terms and conditions of this agreement.

2.2            The Order constitutes an offer by the Customer to purchase Services from Animated Remedy in accordance with these Conditions and shall only be deemed to be accepted (and a Contract shall come into existence)  when:

(a)          Animated Remedy issues written acceptance of the Order; or

(b)         (if earlier) Animated Remedy start to provide the Services; and

the Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.

2.3            The Services supplied under this agreement shall continue to be supplied until the Services are completed in accordance with the Project Specification.

2.4            The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Animated Remedy which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by Animated Remedy, and any descriptions or illustrations contained in Animated Remedy's catalogues or brochures, 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 any other contract between Animated Remedy and the Customer for the supply of the Services.

2.5            Should these Conditions conflict with a part of the Project Specification, the terms of the Project Specification shall prevail.

2.6            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.

2.7            Any quotation given by Animated Remedy shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3.              Project Specification

3.1            The Project Specification  shall be agreed in the following manner:

(a)         the Customer shall provide Animated Remedy with a request for a Project Specification, setting out the requirements and specifications of the services which it is requesting from Animated Remedy, including a description of what work is to be done, dates by which it is requested to be started and finished, Deliverables and such other information as Animated Remedy may request to allow it to prepare a draft Project Specification;

(b)         Animated Remedy shall, as soon as reasonably practicable, provide the Customer with a draft Project Specification; and

(c)         Animated Remedy and the Customer agree the Project Specification and when it has been agreed, they shall signify they agreement in writing and it shall become subject to these Conditions.

3.2            Once the Project Specification has been agreed and signed in accordance with clause 3.1(c) (or agreed otherwise in writing), no amendment shall be made to it except in accordance with clause 7.

4.              Supply of Services

4.1            Animated Remedy shall:

(a)         supply the Deliverables to the Customer in accordance with the Project Specification in all material respects; and

(b)         use all reasonable endeavours to meet any performance dates specified in the Project Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services;

4.2            Animated Remedy warrants to the Customer that the Deliverables will be produced using reasonable care and skill.

5.              Customer's obligations

5.1            The Customer shall:

(a)         ensure that the terms of the Order and any information it provides in the Project Specification are complete and accurate;

(b)         co-operate with Animated Remedy in all matters relating to the Services;

(c)         provide Animated Remedy with such information and materials as Animated Remedy may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(d)         provide Animated Remedy with written acceptance of the Project Specification prior to Animated Remedy having any obligation to commence the Services.

5.2            If Animated Remedy's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)         Animated Remedy shall without limiting its other rights or remedies, 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 to the extent the Customer Default prevents or delays Animated Remedy's performance of any of its obligations;

(b)         Animated Remedy shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Animated Remedy's failure or delay to perform any of its obligations as set out in this clause 5.2; and

(c)         the Customer shall reimburse Animated Remedy on written demand for any costs or losses sustained or incurred by Animated Remedy arising directly or indirectly from the Customer Default.

6.              Acceptance

6.1            Unless otherwise provided for in the Project Specification, where any stage of performing the Services requires the approval or acceptance of the Customer, the following shall apply:

(a)         Animated Remedy shall indicate in writing to the Customer that a stage has been reached in the performance of the Services requiring the approval or acceptance of the Customer ("an Approval Notice");

(b)         if the Customer does not notify Animated Remedy of any matters concerning the quality or content of the Services provided to that stage within 7 days of receiving the Approval Notice, then the Customer will be deemed to have approved the performance of the Services up to that stage;

(c)         where Animated Remedy have completed the Services, the Customer will be deemed to have  accepted or approved them within 7 days of Animated Remedy:

(i)          notifying the Customer that the Services had been completed; or

(ii)        sending a final invoice to the Customer.

7.              Change Control

7.1            If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

7.2            If either party requests a change to the scope or execution of the Services, Animated Remedy shall, within a reasonable time, provide a written estimate to the Customer of:

(a)         the likely time required to implement the change;

(b)         any necessary variations to Animated Remedy's charges arising from the change;

(c)         the likely effect of the change on the Project Specification; and

(d)         any other impact of the change on this agreement.

7.3            If the Customer wishes Animated Remedy to proceed with the change, Animated Remedy has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant Project Specification and any other relevant terms of these Conditions to take account of the change and this agreement has been varied in accordance with clause 14.8.

7.4            Animated Remedy may charge for the time it spends assessing a request for change from the Customer on a time and materials basis in accordance with clause 8.

8.              Charges and payment

8.1            In consideration of the provision of the Services, the Customer shall pay the charges as set out in Project Specification, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both.

8.2            Where the duration of a Project exceeds a period of 1 calendar month or has a value in excess of £5,000, Animated Remedy reserve the right to request interim payments for the Services or pay of a deposit from the Customer prior to the commencement of the Services.

8.3            When the charges for the Services shall be on a time and materials basis:

(a)         Animated Remedy's standard daily fee rates for each individual are calculated on the basis of an eight-hour day from 9.00 am to 6.00 pm worked on Business Days;

(b)         Animated Remedy shall be entitled to charge an overtime rate of 50% per cent of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 8.3(a); and

(c)         Animated Remedy shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Animated Remedy engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses.

8.4            The Customer shall pay each invoice submitted by Animated Remedy:

(a)         within 28 days of the date of the invoice; and

(b)         in full and in cleared funds to a bank account nominated in writing by Animated Remedy, and

time for payment shall be of the essence of the Contract.

8.5            All amounts payable by the Customer under the Contract are exclusive of VAT (and other applicable taxes), which shall be charged in addition at the rate in force at the time the Customer is required to make payment.

8.6            Without limiting any other right or remedy of Animated Remedy, if the Customer fails to make any payment due to Animated Remedy under the Contract by the due date for payment (the "Due Date"), Animated Remedy shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current Bank of England's base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

8.7            The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Animated Remedy in order to justify withholding payment of any such amount in whole or in part. Animated Remedy may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Animated Remedy to the Customer.

9.              Intellectual property rights

9.1            On completion of the Services, all Intellectual Property Rights in the Deliverables shall be owned by the Customer.

9.2            The Customer shall grant Animated Remedy an irrevocable licence to the Intellectual Property Rights in the Deliverables

9.3            The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on Animated Remedy obtaining a written licence from the relevant licensor on such terms as will entitle Animated Remedy to license such rights to the Customer.

9.4            All Animated Remedy Materials are the exclusive property of Animated Remedy.

10.            Confidentiality

A party ("Receiving Party") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party ("Disclosing Party"), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 10 shall survive termination of the Contract.

11.            Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

11.1         Nothing in these Conditions shall limit or exclude Animated Remedy's liability for:

(a)         death or personal injury caused 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 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

11.2         Subject to clause 11.1:

(a)         Animated Remedy shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

(i)          loss of profit;

(ii)        loss of data;

(iii)       loss of goodwill; anticipated savings or business opportunity; or

(iv)       indirect or consequential loss arising under or in connection with the Contract; and

(b)         Animated Remedy's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by Animated Remedy's deliberate personal repudiatory breach, shall not exceed £5,000,000.

11.3         Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

11.4         This clause 11 shall survive termination of the Contract.

12.            Termination

12.1         This Contract may be terminated immediately by notice in writing:

(a)         by either party if the other party is in material or continuing breach of any of its obligations under these Conditions and fails to remedy the breach (if capable of remedy) for a period of 10 Business Days after written notice by the other party;

(b)         by either party with immediate effect from the date of service on the other of written notice if a resolution is passed or an order is made for the winding up of the other (otherwise than for the purpose of solvent amalgamation or reconstruction) or the other becomes subject to an administration order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of any of the other's property or equipment.

12.2         Any termination of this Agreement under this clause will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination.

12.3         The provisions of clauses 2, 8, 9, 10, 11, 12, 13 and 14 shall survive termination of the Contract to the extent that still may take effect.

12.4         Without limiting its other rights or remedies, Animated Remedy shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and Animated Remedy if Animated Remedy reasonably believes that the Customer is about to become subject to any of the events listed in clause 12.1 (b) , or if the Customer fails to pay any amount due under this Contract on the due date for payment.

13.            Consequences of termination

On termination of the Contract for any reason:

(a)         the Customer shall immediately pay to Animated Remedy all of Animated Remedy's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Animated Remedy shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b)         the Customer shall return all of Animated Remedy Materials and any Deliverables which have not been fully paid for. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(c)         the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(d)         clauses which expressly or by implication have effect after termination shall continue in full force and effect.

14.            General

14.1         Force majeure:

(a)         For the purposes of this Contract, Animated Remedy shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of an event beyond the reasonable control of Animated Remedy, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Animated Remedy or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

(b)         If such delay or failure continues for at least 30 Business Days, either party will be entitled to terminate the Contract by notice in writing.

14.2         Assignment and subcontracting:

(a)         Animated Remedy may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

(b)         The Customer shall not, without the prior written consent of Animated Remedy, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.3         Notices:

(a)         Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.

(b)         Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

(c)         This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

14.4         Waiver:

(a)         A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b)         Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

14.5         Severance:

(a)         If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b)         If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

14.6         No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

14.7         Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

14.8         Variation: Any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Animated Remedy.

14.9         Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.