1. Scope of Contract
(a) Fudge is an independent creative studio whose work includes, developing creative concepts and identities; creative campaigns; concept creation and development; 2D and 3D digital media; digital campaigns; graphic design; motion design; scriptwriting; and other services relating to the design, and promotion of the Client’s goods and/or services. Fudge will provide such advice in accordance with a written Statement of Work (the “SOW”) (which may be in the form of, and therefore includes, an estimate) (‘the Service’).
(b) These terms and conditions are to be read together with any SOW provided by Fudge to the Client.
(c) Fudge will provide the Service to the Client using reasonable skill and care (unless Fudge is prevented by circumstances beyond its reasonable control) and usually in accordance with an agreed SOW.
(d) Save in exceptional circumstances for minor projects where Fudge issue a written order confirmation, all Client orders must be in writing and either incorporate/detail all of the work to be undertaken by Fudge, the charges for the work and the agreed time schedule or refer to the appropriate SOW.
(e) A binding contract for the provision of the Service, incorporating these terms and conditions, will only be made when Fudge confirm in writing an order received from the Client. Where an order is placed for work outlined in a SOW then Fudge will give written confirmation of that order identifying the SOW. Where any changes are agreed to any aspect of a SOW then Fudge will issue a revised SOW incorporating the agreed changes.
(f) Subject to the provisions of Clause 11 the Client shall be expected to carry out a reasonable examination of the Service supplied by Fudge as soon as is reasonably practicable following delivery and if the Client shall have any complaint about the Service then written notice shall be given to Fudge within 7 days of examination of the Service. In the absence of such notification the Client shall be deemed to have accepted the quality of the Service.
(g) Fudge will accept and act upon instructions communicated to it by any means by the Client and/or its representatives, agents or authorised persons and is not obliged to seek verification of such instructions.
(h) During the course of the Service Fudge and/or the Client may suggest modifications to the agreed SOW including delivery estimates and specification of the work. Any such modifications must always be agreed in writing. Fudge reserve the right to charge the Client additional fees and expenses for any modifications to the Service which results in additional work having to be undertaken by Fudge.
(i) It is the practice of Fudge to maintain computer records of its work following the completion of a project but it is not required to do so unless this has been expressly agreed as part of the Service. Fudge reserve the right to charge the Client for the retrieval of work from storage.
(j) All original preparatory and development materials including but not limited to sketches, scamps, notes, mock ups, storyboards, animatic, prototypes etc, as well as any source material, both digital and physical, produced by Fudge as part of the Service remains the property of Fudge unless expressly agreed in writing to the contrary and shall be promptly returned undamaged and unmarked at the end of the project under which they were created or upon Fudge’s request.
2. Client's Obligations
(a) The Client shall be solely responsible for providing Fudge with all necessary instructions, information concerning its goods/services (including the scope of use required, rules of use, any relevant restrictions, any relevant statutory and regulatory controls and, if applicable, industry codes of practice), for the market. Fudge shall not be responsible for any shortcomings in such information. The Client accepts that its knowledge and experience in its industry sector and of its goods/services is vital in this regard.
(b) Any advertising material supplied by or on behalf of the Client must comply with all trade description and consumer protection legislation and any other applicable laws and regulations. Any performance benefit or product claims must be substantiated and verified by the Client before being notified to Fudge.
(c) The Client shall be responsible for procuring all necessary permissions, licences and consents in any jurisdiction which may be required for the provision of the Service unless Fudge has expressly agreed in writing to be responsible.
(d) The Client warrants that it owns or holds the necessary licence(s) in respect of material(s) supplied by it to Fudge in connection with the provision of the Service and shall indemnify Fudge against all costs, claims, liabilities and losses it incurs if this is not the case.
(e) The Client shall be responsible for signing off work when requested in accordance with any agreed time schedule and generally in a timely manner. It is the Client’s obligation to ensure that the approval and sign off of work is undertaken by a representative of the Client of appropriate seniority. If Fudge is required to amend/redo work that has previously been signed off then an additional charge will be incurred which shall be invoiced in accordance with clause 5.
(f) Where there is a delay in sign off that is attributable to the Client or if the Client requires Fudge to make changes to work that it has previously signed off, this is likely to affect the ability of Fudge to meet subsequent deadlines and lead-times. Fudge reserves the right in such circumstances to require any time schedule to be adjusted accordingly to enable Fudge to meet its commitments.
3. Pitches
(a) All intellectual property rights in and title to any material created by Fudge and shown at a pitch remains with Fudge.
(b) All ideas and concepts of Fudge which are disclosed to the Client as part of a pitch are confidential and shall remain the property of Fudge and unless the same shall come into the public domain (other than by reason of a breach of a duty of confidentiality due to Fudge) the Client shall not use any such ideas or concepts itself or disclose them to a third party without written permission from Fudge.
(c) All pitches (other than those where purely the credentials of Fudge are shown) shall be charged for at a previously agreed fee.
(d) Save where Fudge is commissioned in response to a pitch, all pitch materials including, but not limited to, sketches, storyboards and mood boards must be promptly returned to Fudge and no copies thereof shall be kept by the Client.
4. Delivery
(a) Fudge will use its reasonable endeavours to meet Client timescales however the delivery times of the Service stated by Fudge are reasonable estimates and Fudge shall not be responsible for any delay that is not directly attributable to the fault of Fudge due to circumstances beyond Fudge’s reasonable control. Time shall not be of the essence unless expressly agreed in writing.
(b) The Client must supply Fudge with all required materials in accordance with agreed work schedules and the Client recognises that failure to do so is likely to result in delay and/or additional charges.
(c) The Client must inform Fudge if any materials to be supplied as part of the Service are not received either on the due date of delivery or within a reasonable period of time following the client being notified of them being sent.
(d) Fudge is not responsible for any loss of material after it has been delivered to the Client or in accordance with its instructions.
(e) Digital delivery will be via WeTransfer, USB or CD.
5. Project Fee/Title
(a) The fee for the Service is as set out in any estimate (usually given within the SOW which may include the cost of suppliers of goods/services from third parties). Any agreed additional work or modifications for the Service outside of the scope of any agreed estimate will be charged as an additional fee.
(b) In addition the Client shall be responsible for all reasonable expenses incurred by Fudge in the delivery of the Service including but not limited to materials, electronic costs, courier fees, travel, accommodation and subsistence which will be charged to the Client at cost and itemised on the invoice. VAT and any other local taxes will be charged as appropriate.
(c) The fees, cost of third party suppliers not included in the fees, other charges made pursuant to these terms, expenses and taxes shall constitute the contract price (“Contract Price”).
(d) Any estimate given of the whole or any part of the Contract Price is based upon Fudge’s current hourly rates and any third party costs (which are known at the time the estimate is given) and unless otherwise specified shall remain valid for 30 days, all errors and omissions excepted. All estimates must be treated as an estimate only and are given in good faith based upon information known to Fudge at the time. Fudge reserve the right to withdraw or amend an estimate at any time prior to the formation of contractual relations.
(e) Fudge may require Clients to make a payment of part (usually 50%) of the total estimated Contract Price before the commencement of work.
(f) Fudge will provide to the Client in advance of commencement of the work an invoice for the entire Contract Price. In accordance with clause 5(d) the Client shall pay 50% of this fee up front and the Client shall on completion of the Service pay the remaining balance due. Delivery of the final selected animation will only be made where the Contract Price has been paid in full to Fudge.
(g) Any estimate of the Contract Price assumes delivery of the Service to the principal business address of the Client (if by USB/CD) or as stipulated in the agreed SOW and additional charges may be incurred if delivery is required to another address.
(h) All estimates assume all content supplied by the Client to Fudge (including but not limited to logos, brand images and text) is in a finished format suitable for reproduction into the animation or otherwise as appropriate unless otherwise stated in the SOW.
(i) The Client must contact Fudge with any queries concerning an invoice within 5 working days of receipt.
(j) Payment of the Contract Price shall be made in GB Pounds Sterling. Fudge shall be entitled to charge interest at the statutory rate as set out in legislation in force from time to time from 30 days after the remaining balance falls due (as set out within the SOW) until the actual date of payment.
(k) Where Fudge provide the Client with an invoice in respect of third party costs not included within the estimate or additional costs for changes to the Service, such invoice shall be payable within 30 days of the date of the invoice. Fudge reserves the right to charge interest on any late payments in accordance with clause 5(i).
(l) The Client may not withhold payment of any part of the Contract Price or any expenses or other monies due to Fudge by reason of claims or alleged claims against Fudge unless the amount to be withheld has either been agreed in writing by Fudge as due to the Client or has been awarded in adjudication, arbitration or litigation in favour of the Client in relation to the same project and save as aforesaid (or where a claim is based on fraud) all rights of deduction and/or set off are excluded.
(m) In accordance with clause 6, licence to use any property or intellectual property forming part of the Service shall pass to the Client only when the full Contract Price for the Service has been paid.
(n) The Contract Price will usually be payable in accordance with a payment plan agreed with the Client in writing and which forms part of the contract. Fudge reserve the right to withhold or suspend the Service (to include withholding the delivery of work created or procured by Fudge as part of the Service) where any payment or part thereof is outstanding. If the work schedule is changed at the request of the Client (or as a consequence of its actions) this shall not affect the due date of any payment in accordance with the original payment plan unless agreed in writing by Fudge.
(o) Any estimate given by Fudge does not include third party costs, travel (unless indicated in writing as part of a SOW) or the rent of studio space for testing or other such costs as identified by Fudge.
(p) The estimated Contract Price will where appropriate include the cost of the hire of a studio. Where a client cancels the Service in accordance with clause 8, the cost of the studio shall be payable by the Client whether work has commenced or not.
(q) All approved third party costs may be invoiced prior to commissioning and Fudge reserves the right to wait until such costs have been paid before commencing work.
(r) The Client shall pay Fudge’s expenses incurred by or in connection with recovery of monies owed by the Client to Fudge.
(s) All estimates make provision for up to two rounds of Client amends in respect of the Service within each appropriate stage (other than where the work is concept only). All additional work that is undertaken by Fudge as a result of further amends requested by the Client will be charged for as additional work at Fudge’s current hourly charge rates.
(t) Fudge reserve the right to charge for additional time at its current hourly rate as set out in the SOW or otherwise if the Client requests changes to the product/service specification in the middle of a project and work has to be redone.
(u) If Fudge is required to proof materials supplied by a third party then additional charges will be incurred unless this has been expressly agreed as part of the Service.
6. Intellectual Property
(a) On completion of the Service and payment of the Contract Price in full and subject to any third party rights in the work (as identified by Fudge) the Client shall receive;
(i) an exclusive licence in the copyright and design rights belonging to Fudge in the final Front End work selected for implementation including any two dimensional graphic design solution, branding, logo, logo-type, corporate identity, music, film, photographs, digital page layout, front-end user interface and front end content (“the Creative Front End”).
(ii) a non-exclusive licence (exclusive where expressly agreed in writing as part of the SOW) to use the intellectual property rights belonging to Fudge in all coding and programming required for the use of the final selected for updating the work or similar programming tools and any other elements of the Service which are not part of the visual appearance of the final selected work (“the Technical Back End”).
(b) The Client shall not, without prior express written approval from Fudge, use the Creative Front End or Technical Back End for any purpose outside of the scope of the brief in respect of which Fudge provided the Service.
(c) Where appropriate Fudge may permit the Client to use the Creative Front End and Technical Back End prior to completion of the Service to enable the Client to review and sign off the work.
(d) Fudge reserve to itself and its subcontractors the right to use and adapt code, software and programming that forms part of the work created for the Client where it is either of a general nature that is commonly found in similar types of work or is not part of bespoke software, programming or code that was created and recorded in writing as being for the exclusive use of the Client.
(e) The Client acknowledges and understands that it shall not have the right, by itself or through any third party, to adapt or modify any of the work created for it by Fudge without the prior written consent of Fudge.
(f) Third Party Software
(i) Fudge may use licensed software in the provision of the Service. Any such use is personal to Fudge and it may be necessary for the Client to obtain its own licence(s) for the enjoyment and use of the work arising from the Service by the Client. In such circumstances Fudge will (where it is expressly agreed as part of the Service), advise upon the licence(s) required and use its reasonable endeavours to assist the Client to obtain the relevant licence(s). Fudge is not liable for the costs thereof or (save to the extent provided) any failure of the Client to hold the necessary licence(s).
(ii) Fudge may use open source software in the provision of the Service. Fudge will not grant any licence or give any warranty in respect of such software.
(g) Reservation of Technical and Artistic Concepts
Fudge will not infringe the rights of the Client in the Creative Front End and Technical Back End but reserve exclusive ownership of and the right to use all other designs, software, concepts, ideas or intellectual property developed during the course of the Service.
(h) Multi Designs
If more than one design solution/concept is chosen by the Client and this was not provided for in the agreed SOW for the Service an additional fee will be payable by the Client.
(i) Subcontractors’ Intellectual Property
(i) Fudge will use reasonable endeavours to procure an assignment of the appropriate rights of its subcontractors, which are incorporated in the final selected work. Fudge will notify the Client if it is unable to procure the relevant rights from subcontractors and will not engage a subcontractor in such circumstances without the approval of the Client.
(ii) Clients are reminded that illustrators and film producers often retain ownership of the original work and may demand that it is returned undamaged, although this should not restrict the Client’s use within any negotiated usage rights.
(iii) Rights in music will always be non-exclusive unless Fudge has expressly agreed to acquire exclusivity of usage for the Client. The Client indemnifies Fudge against any cost, claims and liabilities where it continues to use such work outside the scope of the negotiated usage rights.
(j) Originality
(i) Fudge warrants that its own design work is original and that it will not knowingly or negligently infringe the rights or intellectual property of a third party but (unless expressly agreed to the contrary in writing) it is the Client’s responsibility, not Fudge’s to make all appropriate searches or enquiries in this regard. Beyond the scope of this warranty, Fudge shall have no liability to the Client in respect of any infringement or alleged infringement of intellectual property or passing off beyond the scope of its obligation.
(ii) Fudge gives no warranty as to whether the work meets any criteria for the registration of intellectual property rights therein with any intellectual property organisation or body and shall have no liability to the Client in respect of any subsequent refusals for registration of the same.
(k) Further Assurance
Fudge will, at the cost of the Client, execute such documents and do such things as are reasonably necessary to give effect to this clause.
7. Moral Rights
(a) Fudge hereby reserves and asserts all moral rights in the work created during the Service.
(b) The Client shall identify Fudge as the author of the work as reasonably directed by Fudge.
8. Cancellation of Contract
(a) The Client shall be entitled to cancel the Service upon at least one month’s written notice and upon cancellation shall pay to Fudge all fees due for work undertaken by Fudge up until the date of cancellation. This includes work undertaken by its subcontractors and all disbursements and third party costs commissioned by Fudge which cannot be cancelled.
(b) Save as provided in clause 8(e) following cancellation the Client shall not receive any interest in the intellectual property (in accordance with clause 6) in any of the of the design solutions/concepts that have been presented to the Client prior to the date of termination. Furthermore no right or interest in any software or source files shall pass to the Client.
(c) Any materials relating to any design solutions presented by Fudge prior to termination shall be returned forthwith.
(d) Fudge shall be entitled to terminate the contract immediately if any part of the Contract Price (for any work being undertaken for the Client) is outstanding (but not formally disputed) 30 days after the due date or if the Client shall go into liquidation, receivership (or if proceedings are issued in relation thereto) or equivalent or if it shall enter into an agreement with its creditors. In such circumstances the provision of clause 8(b) shall apply.
(e) Fudge reserve the right to immediately terminate the Contract if in its reasonable opinion the continuing involvement with the Client or the Service might be inappropriate in the circumstances (such as where the relationship has, in Fudge’s opinion, broken down) or is or might be damaging to the goodwill and reputation of Fudge or the nature of the project has materially changed. In such circumstances Fudge will be entitled to be paid for all of its work up until the date of termination [and the Client will be entitled to select one of the concepts/designs that have been presented and will receive the rights therein pursuant to clause 6, which includes the right to develop the selected work].
(f) The Client may suspend provision of the Services for up to such period as is agreed by Fudge and in such circumstances Fudge shall be entitled to invoice the Client for all fees due up to the end of the current stage of the work or if there are no such stages, up to the date of suspension (as set out in the SOW) commenced by Fudge prior to the actual date of suspension as well as all disbursements and third party costs commissioned by Fudge which cannot be suspended or cancelled.
(g) If, by agreement between the Client and Fudge, the provision of the Services has been suspended for a period over 60 days and such suspension then continues for a period of more than 90 days in total then Fudge shall be entitled by written notice to terminate the contract immediately and the provisions of clause 8(a) and 8(b) shall apply.
(h) When work is to resume following any period of suspension of the Service longer than 7 days, Fudge reserves the right to review and where it is appropriate and reasonable, increase any costs or fees (including third party fees where applicable) stated in the SOW. In such circumstances previously agreed time schedules for delivery of the Service will not apply and the Client and Fudge will agree a new timetable for delivery.
9. Duty of Confidentiality
(a) Each party will use its best endeavours to preserve the confidential information of the other and will comply with the other’s reasonable requirements in this regard. The Client recognises that Fudge’s methods of working and pricing structures are proprietary and are not generally in the public domain.
(b) Fudge rely upon the Client to inform it if any information or material supplied to Fudge in connection with the provision of the Service is particularly confidential and where appropriate, all such materials supplied to Fudge should be marked accordingly.
(c) Each party shall comply with the obligations under the Data Protection Act 1998 relating to the use and storage of personal information.
10. Digital Development
(a) The Client acknowledges that any new inventions, designs or processes which evolve in the provision of the Service in the field of digital development shall belong to Fudge unless the development and ownership thereof by the Client was an express part of the engagement of Fudge.
(b) The Client is responsible for ensuring that any agreed SOW contains details of and adequately reflects the Client’s business requirements.
(c) The Client acknowledges that the digital work shall only be compatible or interoperable with the platforms, browsers and operating systems set out in the SOW and will only operate to any performance benchmarks set out in the SOW.
(d) On completion of the work by Fudge, the Client shall carry out an acceptance test for the purposes of confirming that the work has been successfully completed in accordance with the SOW. The Client shall report any errors to Fudge within 14 days of delivery including any additional information which may correct the error. If the Client fails to notify Fudge within this time period the work shall be deemed accepted by the Client and thereafter any amends requested by the Client will be charged for at Fudge’s hourly rate.
(e) Where identified and notified to Fudge it will use its reasonable endeavours to correct any errors and supply a corrected version of digital work to the Client as soon as reasonably possible.
11. Client's Responsibility for Implementation
(a) Unless it is agreed as part of the Service full responsibility for implementation, display, electronic integration and compatibility shall remain with the Client.
(b) The Client shall indemnify Fudge in respect of any claim howsoever arising under consumer protection or other legislation other than due to a breach by Fudge of its obligation under the contract.
12. Limitation of Liability
(a) The liability of Fudge under the contract or in tort (other than in respect of death or personal injury caused by the negligence of Fudge or its agents) shall not exceed the greater of the sums paid by the Client under the contract or such sum as shall be recoverable by Fudge in respect of any claim under any insurance policy effected by Fudge from time to time.
(b) Fudge shall not be liable to the Client for:
(i) any indirect or consequential loss, loss of sales, loss of profit, loss of production, loss of opportunity, loss or damage to goodwill, loss of reputation, or any packaging or distribution cost;
(ii) any default or delay of any third party, subcontractor or supplier but will give reasonable assistance to permit the Client to enforce its rights against them; or
(iii) any act or omission by any third party with whom Fudge has been requested or required by the Client to work with in connection with the provision of the Service.
(c) If the Service includes the provision of subcontractors then Fudge will advise on and procure the services of subcontractors who Fudge are satisfied are reasonably professionally competent.
(d) Where an error is found in any delivered work (of whatever nature), which is the responsibility of Fudge then to the extent permitted by law, Fudge’s liability shall be limited to correcting or replacing (as appropriate) the work at its discretion.
(e) The Client accepts reasonable tolerances in relation to the Service including but not limited to those in respect of overs/unders, colour, type, finish, responsiveness, browser and device inconsistencies.
(f) Where the Service includes digital work created by Fudge the Client accepts that performance of the delivered work may be affected by device specification and/or operability. Fudge shall not be held liable for such incompatibility and the browsers, devices and platforms that the website shall be compatible with are outlined within the SOW.
(g) Fudge shall not be responsible for any errors apparent in artwork, copy or proofs that have been signed off by or on behalf of the Client.
(h) Fudge will not be responsible for any colour discrepancy with design work created as part of the Service unless Fudge has itself signed off proofs in an appropriate form prior to completion of the Service. The Client acknowledges that such changes may arise with the translation of static materials to the animation.
(i) Fudge shall not be responsible for any dissatisfaction attributable to the provision of incorrect information supplied by the Client or its agents and suppliers and Fudge should not be expected to question any such information that is provided to it.
13. Publicity and Examples
(a) Once the delivered work has been made available to the public or has been disclosed to third parties in a non-confidential environment, then Fudge shall have a right of publicity (including, but not limited to case study examples, inclusion in any book or publication or collection of Fudge’s work or in relation to any awards or public recognition) in respect of the work created during the Service and the Client shall provide as requested samples of any printed work derived from the Service.
(b) Fudge shall have the right to identify itself in a reasonable manner as the provider of the Services to the Client. Where appropriate all design and animation work will be accredited to Fudge in the form of a small graphic within the work unless agreed otherwise.
(c) Unless Fudge has agreed in writing to the contrary, the Client shall give reasonable attribution to Fudge whenever appropriate as the creator of the work produced as part of the Service and generally, to include;-
- Reasonable prominent identification and design credit on websites
- Inclusion of Fudge’s logo as part of any attribution
- Reasonable prominent production and design credit on film/video material
(d) Fudge reserves the right where it considers it appropriate to require any reference or attribution to be removed from work provided as part of the Service.
14. Restrictions
The Client agrees that whilst Fudge is providing Services to it and for a period of twelve months thereafter it shall not:-
(a) approach any of the employees, consultants or freelancers of Fudge regarding the possibility of them providing services directly to the Client independently of Fudge.
(b) contract directly with any subcontractor or supplier of Fudge in a manner that might disrupt the relationship of Fudge with that subcontractor or supplier.
15. No Partnership
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, appoint any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
16. Force Majure
Neither party shall be in breach of these terms nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
17. Entire Agreement
(a) This contract with the Client constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in writing or part of the contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18. Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Severance
(a) If any provision or part-provision of these terms 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 these terms.
(b) If any provision or part-provision of these terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. Legal
(a) The agreement shall be subject to English law and under the exclusive jurisdiction of the English Courts.
(b) To the extent permitted by law these terms shall govern the agreement between Fudge and the Client and all other terms implied by law are excluded.
(c) In the event of a dispute a senior representative from Fudge and the Client shall meet to see if it can be resolved and the parties shall consider (but shall not be obliged) to agree to submit to mediation or other alternative dispute resolution otherwise all disputes shall be resolved through the Courts.
(d) Fudge is the trade name of Fudge Animation Studios Limited a company registered in England and Wales under company number 09164755 whose registered office is at The Studio (First Floor), 4C Vulcan Close, Sandhurst, Berkshire GU47 9DD, United Kingdom.