TERMS OF ENGAGEMENT OF AGILITY FILMS
Agility Films trades under the registered sister company of Agile Ability Ltd.
This document sets out the terms and conditions upon which Agile Ability Ltd with company number 12157090 with registered address at 2 De Clare Court, Bletchingley, Redhill, Surrey, England, RH1 4GA (“AgileAbility”) has agreed to provide its services to you, as the Client (“Terms”). Your acceptance of any Agile Ability or Agility Films quotation or service indicates your explicit and/or tacit acceptance of the terms of engagement listed below, and any Annexures attached.
RELATIONSHIP BETWEEN THE PARTIES
1.1 Agile Ability and Agility Films is a service provider and has no employment relationship with the Client. Nothing contained in these Terms shall be deemed to constitute a partnership, joint venture, employer/employee agreement or the like between them. Agile Ability and Agility Films shall not, by reason of the actions of any of the other parties, incur any personal liability as co-partner to any third party.
1.2. The relationship between the Parties under this Agreement is and shall remain non-exclusive. Both Parties are free to enter into similar relationships with other parties.
THE SERVICES
2.1. Agile Ability and Agility Films will provide its services based on the requirements communicated by the Client and set forth in the Quotation Order Form (“the Services”). From the Services, Agile Ability and Agility Films will create the deliverables for the client (“the Deliverables”).
2.2. Agile Ability and Agility Films reserves the right to update and change the Terms of Service by posting updates and changes to the http://agileability.co.uk/termsandconditions/ website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you. and if you do not accept such amendments, you must cease using the Services.
2.3. The Quotation Order Form is valid for the period stipulated therein, and after the expiry date Agile Ability and Agility Films reserves the right to alter or decline any Services listed in the Quotation Order Form not accepted and/or paid for by the Client.
2.4. Once the Quotation Order Form has been accepted and the Deposit is paid by the Client, where applicable, Agile Ability and Agility Films will begin providing the Services.
2.5. The Client understands that Agile Ability and Agility Films will require certain information, equipment or action from the Client and/or its contracted third-party service providers in order to properly render the Services. Failure or delay by the Client in providing this action or information will lead to delays in provision of the Services, for which Agile Ability and Agility Films will not be liable.
2.6. Agile Ability and Agility Films shall use all reasonable endeavours to meet any performance dates agreed to between the Parties in writing but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services.
PRESENTATION OF THE DELIVERABLES
3.1. Prior to the final Deliverables being delivered to the Client, Agile Ability and Agility Films will provide the Client with an opportunity to review the appearance and content of the Deliverables during multiple instances throughout the design phase and once the overall development of the Deliverables is completed prior to the Deliverables being published live, including a review on the Client’s server.
For each such presentation by Agile Ability and Agility Films, the Client will provide written feedback (“change request”) and thereafter Agile Ability and Agility Films will alter the preliminary versions of the Deliverables based on the change request within a reasonable timeframe of not more than 5 (five) working days from the receipt of such change request (unless otherwise advised in writing by Agile Ability and Agility Films). Where the Services involve website development, upon delivery, the Client shall have a period of 15 (fifteen) Business Days (the “Testing Period”) to test the website thoroughly. For the purposes of this clause 3.1, “testing” shall be deemed to include (but not necessarily be limited to):
3.1.1. testing the functionality of all code on each individual page of the website;
3.1.2. checking the integrity of all links;
3.1.3. checking animated or other video content for errors;
3.1.4. testing the functionality of all interactive features; and
3.1.5. testing the website on all mainstream web browsers.
3.2. All change requests must be deemed, in Agile Ability and Agility Film’s sole and unfettered discretion, to fall within the initial scope of work as set out in the Quotation Order Form. Should the Client seek to introduce aspects or features in addition to those set forth in the Quotation Order Form, Agile Ability and Agility Films shall be entitled to amend the Quotation Order Form, or to issue a new Quotation Order Form for such additional aspects or features.
3.3. A presentation of the preliminary Deliverables created by Agile Ability and Agility Films will be considered accepted and completed if the Client, following receipt of the presentation, has not submitted any change requests within a period of 10 (ten) days from the date upon which the preliminary Deliverables are presented to the Client.
3.4. Should the Client submit a change request after the final presentation, Agile Ability and Agility Films may, in its sole discretion, charge an additional fee to the Service Fee. The additional fee will be communicated to the Client in advance.
FEES AND PAYMENT TERMS
4.1. Agile Ability and Agility Films will charge a fee for the Services. This fee, including any necessary disbursements or additional costs as detailed in the Quotation Order Form, is detailed in the Quotation Order Form and subsequent related invoice/s (“Service Fee”). Where the Service Fee is described as an estimate, it shall be based on a good-faith assessment of the number of hours required to provide the Services. Whilst every effort is made to ensure that costing estimates are accurate, the Client acknowledges that this is an estimate only and the Services shall be invoiced in accordance with the actual number of hours spent thereon.
4.2. The Service Fee does not include any import/export fees, collection/release charges, international taxes, licensing fees or other incidental fees which may arise through Agile Ability and Agility Film’s provision of the Services for the Deliverables. These additional costs will be for the Client’s account, and may include (without limitation) such items as special fonts, third party plugins, licences, hosting, server‐side applications, clip art, “back‐end” applications, music, stock images, or any other components, products or rights. All additional costs shall require the Client’s prior approval before they are incurred.
4.3. Invoices will reflect the Service Fee and any additional disbursements or costs, inclusive of Value Added Tax, where applicable.
4.4. Invoices will be paid free of exchange, bank fees or set off, by the Client into Agile Ability’s bank account nominated in writing for that purpose, or as displayed on the Quotation Order Form and/or an invoice.
4.5. Once the Quotation Order Form has been accepted by the Client, the Client will pay Agile Ability as follows (unless the Client has agreed otherwise with Agile Ability in writing):
4.5.1. 50% (fifty percent) of the Service Fee will be paid to Agile Ability upon
acceptance of the Quotation Order Form by the Client (“the Deposit”);
4.5.2. Any tranches, fees or payments agreed upon during the execution of the
project/work shall be paid on the agreed-upon due dates thereof; and
4.5.3. the remainder of the Service Fee and any additional costs or disbursements
necessary for provision of the Services will be paid on presentation of the
final Deliverables, whereafter the Deliverables created out of the Services
will be published live.
4.6. The Client shall be liable for any transfer or bank charges applicable to payment of the Service Fee. Where payments are made in foreign currency, the payment will be made in the foreign currency of Agile Ability’s domestic bank.
4.7. Agile Ability reserves the right to suspend the Services in its sole discretion should any payment be delayed.
4.8. Should an invoice remain unpaid for more than 30 (Thirty) calendar days, interest will be charged on any outstanding amounts at a rate equal to the Bank of England base rate plus 6% (six percent) per annum calculated from the due date of the payment to the date of payment in full (both days inclusive), compounded monthly, in arrears. The Client undertakes to pay any such interest along with the Service Fee, where necessary.
4.9. The Client acknowledges and agrees that it is not a valid reason to withhold payment of the Service Fee due to the Client not being paid by a third party, and accordingly, the Client will pay the Service Fee timeously, regardless of whether it has been paid by a third party or not.
VIDEO PRODUCTION
9.1. Where the Services involve video production, the parties agree to meet from time to time to consult in good faith with each other over the editorial content and artistic direction of the video provided that the Client shall, in its absolute discretion but with full discussion with Agile Ability and Agility Films and giving good faith consideration to Agile Ability and Agility Film’s views as a professional production company, have final editorial and artistic control over the video. The Client authorises Agile Ability and Agility Films to insert credit as the producer of the video on the end credits of the video, with its name and web address printed on all hard copies of the video and included alongside all online versions of the video.
9.2. The Client shall be provided with clearly defined opportunities to review certain phases of the video production process. Once a phase has been marked as final, the Client shall not be entitled to request changes to any subsequent production phase.
9.3. Upon presentation of the first draft edit of a video created out of the Services, the Client shall be entitled to request certain editorial changes relating to the manner in which the clips in the video are edited, but shall not be entitled to request changes that would require Agile Ability and Agility Films to re-shoot, or re-record any part of the materials, or that would require an amount of editing beyond the initial quoted scope of work.
THIRD PARTY SUBCONTRACTORS
10.1. Agile Ability and Agility Films shall be entitled to utilise sub-contractors for any of the rights or obligations contained in these Terms, provided that such sub-contractors are bound to the same standard of service as Agile Ability and Agility Films. Agile Ability and Agility Films will be responsible for the conduct of its chosen sub-contractors.
10.2. The Client shall not be entitled to contact any of Agile Ability and Agility Film’s chosen sub-contractors, and any engagement with such sub-contractors shall be done through Agile Ability and Agility Film.
NON-SOLICITATION
11. The Client agrees that it will not, without the prior written consent of the other Party, whether directly or indirectly, during the provision of the Services or for a period of 12 (twelve) months from the termination of this Agreement directly or indirectly canvas with a view to offering or providing employment to, offer to contract with or entice to leave any employee of or contractor to Agile Ability and Agility Films, or solicit, entice, induce or encourage an existing customer of Agile Ability and Agility Films to transfer or remove custom from Agile Ability and Agility Films.
CANCELLATION OF THE SERVICES
12.1. Should the Client wish to cancel the Services, the following will occur:
12.1.1. unless otherwise provided, the Client must give Agile Ability or Agility Films ten (10) calendar days’ written notice of its intention to cancel the Services;
12.1.2. where the Services are provided on a retainer basis, the Client must give Agile Ability or Agility Films thirty (30) calendar days’ written notice of its intention to cancel the Services;
12.1.3. Agile Ability and Agility Films shall provide the Client with a final invoice which will cover all expenses, disbursements or Services already incurred or provided by Agile Ability and Agility Films prior to the date of termination. The Client understands that the final invoice will include any reasonable loss Agile Ability and Agility Films has suffered from cancellation with its third-party suppliers or from the cancellation of the Services generally;
12.1.4. Agile Ability and Agility Films will firstly use the Deposit to set off the final invoice. In the event that there is an insufficient amount to cover the final invoice in the Deposit, the Client will be liable to pay the difference to Agile Ability and Agility Films within 7 (seven) calendar days of receiving an invoice; and
12.1.5. the parties will hand over to the other party any document, film, storyboard, hard-drives, equipment or confidential information belonging to that party.
12.1.6. Should the Client advance or postpone the Production Schedule for any reason, including bad weather or availability of location, such advancement or postponement must be carried out at a time convenient to Agile Ability and Agility Films.
OWNERSHIP OF THE DELIVERABLES
13.1. All ownership and copyright in the final presentation of the Deliverables created out of the Services will remain Agile Ability and Agility Film’s property until the Service Fee has been paid in full. Upon full and final payment being made by the Client, Agile Ability and Agility Films shall assign ownership of the Deliverables to the Client. Agile Ability and Agility Films reserves the right to withhold or revoke any permission given to the Client to use the Deliverables in the event that the Service Fee is not paid in full.
13.2. The Client will have no rights, title or interest to any of the contact details, information or database of contacts which Agile Ability and Agility Films utilizes in providing the Services. Agile Ability and Agility Film’s database of contacts, media and suppliers will at all times remain the intellectual property of Agile Ability and Agility Films. Passing on these details will be at the discretion of Agile Ability and Agility Films, unless previously agreed.
13.3. Unless otherwise agreed between the parties, Agile Ability and Agility Films shall supply to the Client the object and source code of the Deliverables upon payment in full by the Client of the Service Fee and any other costs applicable to the provision of the Services. Where the Client requires the Agile Ability and Agility Films to provide training, support and maintenance in relation to the Software, both parties shall enter into a separate support and maintenance agreement, the terms of which shall be agreed between the parties.
CREDIT FOR THE SERVICES
14.1. Agile Ability and Agility Films reserves the right, subject to the Client’s prior written approval, to publish any case studies, performance metrics, or materials involved in the creation of the website through the provision of the Services.
14.2. A link to the Agile Ability and Agility Films websites or contact details will be published in the footer of the website created out of the Services.
INDEMNITY AND LIABILITY
15.1. Each party agrees to indemnify and hold the other harmless from and against any and all actions, claims, demands, proceedings or judgments (collectively “claims”) and any and all losses, liabilities, damages, costs, charges and expenses (collectively “losses”) of whatever nature and in whichever jurisdiction, which may be instituted, made or alleged against, or are suffered or incurred by a party relating to its own breach of obligations or warranties under this Agreement.
15.2. The Client specifically agrees to indemnify Agile Ability and Agility Films, its employees, sub-contractors and/or agents, and hold them harmless from and against any claims and/or losses of whatever nature and in whichever jurisdiction, which may be instituted, made or alleged against, or are suffered or incurred by the Client as a result of:
15.2.1. inaccuracy;
15.2.2. omission;
15.2.3. delay or error (whether as a result of negligence or any other cause);
15.2.4. loss of or damage to artwork/photos belonging to the Client (immaterial of whether such loss or damage occurred as a result of negligence).
15.3. In any event, the entire liability of Agile Ability and Agility Films to the Client in respect of any claims or losses whatsoever or breach of this Agreement, whether arising out of negligence or otherwise, shall be limited to the Service Fees paid by the Client to Agile Ability and Agility Films in relation to the project or instruction under which the Services were provided.
BREACH
16.1. Either party (“the innocent party”) shall have the right, at its election, to terminate this Agreement forthwith by notice in writing to the other party (“the breaching party”) in the event that:
16.1.1. on written notice to that effect by the innocent party should the breaching party commit any breach or permit the commission of any breach of any material obligation or warranty contained in this Agreement and, in respect of such a breach capable of remedy, fail to remedy that breach within 5 (five) Business Days after the giving of written notice to that effect by the innocent party to the breaching party; or
16.1.2. the breaching party repeatedly breaches any of the terms and/or conditions of this Agreement in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of this Agreement.
16.2. In the event of cancellation of this Agreement in the circumstances contemplated in clause 13.1, written notice of any such cancellation shall be given and such cancellation shall take effect on the giving of such notice.
16.3. The cancellation of this Agreement or exercising of any right conferred by this clause 13 shall be without prejudice to any claims hereunder then accrued or to any further or other rights or remedies of either party, whether under this Agreement or otherwise in law, and whether for damages or otherwise.
FORCE MAJEURE
If either party is prevented, whether in whole or in part, or delayed from performing any of its duties, functions or obligations under this Agreement, whether timeously or at all, due to an act of god (which for the purposes hereof shall mean war, political riots, civil commotions, legal prohibitions or restrictions, electrical load-shedding or surges, fire, floods, storms, epidemic, pandemic, widespread disease, earthquakes or other similar natural disasters), then such failure shall not constitute a breach under this Agreement, and the obligation to perform shall be suspended to the extent and during the continuance of such prevention provided that the parties shall use their reasonable commercial endeavours to minimise any delay occasioned thereby.
DATA PROCESSING
1.1. The parties understand and agree that they may, during the term of this Agreement, operate as a “processor” of personal information, as defined in the United Kingdom’s General Data Protection Regulation made in terms of the Data Protection Act 2018 (“UK GDPR”), and the EU’s General Data Protection Regulation, 2017 (“GDPR”) respectively.
1.2. Accordingly, the parties warrant that they shall adhere to all applicable duties and obligations of a “processor” as defined and required under the GDPR and the UK GDPR, as applicable, when processing any personal information derived from the other party and/or its data subjects.
1.3. Further, both parties expressly indemnify the other party against any third-party claims which may be brought against either party for the party’s failure to adhere to their duties as prescribed under the GDPR and the UK GDPR related to their role as either or both the relevant data controller and/or processor.
1.4. The Client also aware that Agile Ability and Agility Films is not necessarily the “Data Controller”, as defined by the GDPR and the UK GDPR, when processing the personal data of its customers or clients, and as such, the Client may be required to engage a third party to ensure that its duties under the GDPR and the UK GDPR are satisfied.
1.5. Should the parties have any additional particular terms and conditions relating to how exactly each party must process personal information provided to it by the other party, such additional conditions of processing must be contained in a distinct Data Processing Agreement between the parties.
1.6. The parties also warrant to and in favour of the other party that they have no criminal convictions or judgments recorded against them which relates to crimes relating to fraud, unlawful use of personal information or any crime related to illegal use or processing of personal information in any way,
1.7. The Client also understands and agrees that for data continuity and risk-mitigation purposes, should this agreement be terminated for any reason, and unless otherwise provided for in another data processing agreement between them and Agile Ability and Agility Films, Agile Ability and Agility Films will immediately cease all processing of personal data provided to them by the Client, as well as permanently delete/destroy any personal data of the Company’s on/within their systems. To assist each other in this process, the Client will provide Agile Ability and Agility Films with whatever information or tools are needed in order to action this destruction as required.
1.8. Any data provided by the Client to Agile Ability and Agility Films shall be dealt with in accordance with Agile Ability and Agility Film’s privacy policy.
CONFIDENTIALITY
2.1. For the purposes of this clause, “Confidential Information” means any and all information that is disclosed by one party to the other party and that relates to the parties’ business relationship hereunder, including, but not limited to, information relating to the business methods, finances, systems, proprietary interests, marketing plans and any and all information exchanged between the parties pursuant to this Agreement.
2.2. Unless otherwise agreed to in advance, in writing, or except as expressly permitted by this Agreement, the parties will not, except as required by law or court order, use Confidential Information belonging to the other party or disclose any Confidential Information to any third party.
2.3. The parties shall use the same degree of care to avoid disclosure of the other party’s Confidential Information as that party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
2.4. Upon the termination or expiration of this Agreement for any reason, or upon the other party’s earlier request, each party will deliver to the other party all of the Confidential Information in tangible form that the party may have in its possession or control which belongs to the other party and provide a warranty that all other Confidential Information has been destroyed.
DISPUTE RESOLUTION
3.1. Should any dispute or difference arise between the parties in relation to this Agreement, the parties shall meet within 2 (two) Business Days of such notice and negotiate in good faith to resolve such dispute.
3.2. Should the parties fail to resolve such dispute or difference in the aforesaid manner or within such further period as the parties may agree to during their negotiation, either party shall be entitled to give notice of arbitration, provided that such notice shall not be given within 7 (seven) Business Days from the date that the parties first met as contemplated in clause 17.1 above.
3.3. The arbitration shall be held in accordance with the Commercial Arbitration Rules of Chartered Institute of Arbitrators (“CIArb”), by an arbitrator agreed upon between the parties, or, failing agreement within 7 (seven) Business Days, appointed by CIArb.
3.4. Unless otherwise agreed by the parties in writing the arbitration shall be held in London or Surrey in the United Kingdom, or such other place as the parties may agree in writing. It is specifically provided that in order to accommodate the strictures created by the Covid-19 pandemic and the government-instituted lockdown in light thereof, and further to ensure the health of the parties and their representatives, the parties shall be entitled to hold the arbitration contemplated in this clause remotely via the internet on any platform that the parties may agree to in writing.
3.5. The parties both agree that in no circumstance will either party publicize the dispute on any public platform, including social media platforms. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim.
GENERAL
4.1. Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause whatsoever shall not release either party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination.
4.2. Entire agreement and Variation: No alteration, consensual cancellation, variation of, or addition to this Agreement shall be of any force or effect unless reduced to writing and signed by both parties. This Agreement contains the entire agreement between the parties and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
4.3. Counterparts: This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
4.4. Indulgences: No indulgence, leniency or extension of time which the Client may grant or show to Agile Ability and Agility Films shall operate as an estoppel or in any way prejudice the grantor or preclude the Client from exercising any of its rights in the future.
4.5. Governing law: This Agreement shall be governed by and interpreted in accordance with the law of England and Wales. All disputes, actions and other matters in connection with this Agreement shall be determined in accordance with such law.
4.6. Invalidity: Any provision of this agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
4.7. Severability: Each undertaking in this Agreement shall be construed as a separate undertaking and if one or more of the undertakings contained in this Agreement is found to be unenforceable or in any way unreasonable the remaining undertakings shall continue to bind the parties. To the extent possible in any jurisdiction to which this Agreement may apply or in which this Agreement may be enforced, if any undertaking contained in this Agreement is found to be void but would be valid if the period of application thereof were reduced or if some part of the undertaking were deleted, the undertaking in question shall apply with such modification as may be necessary to make it valid and effective.
4.8 Cumulative Rights and Remedies: The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.