1.1 As used herein and throughout these Terms, the following terms shall be defined as:
“Agreement” means these Terms, the Quote, and subsequent Contract for Services.
“Client” means the person, firm, company or other entity using the Services of Gild Studios.
“Client Materials” means all materials, information, factual, promotional, or other advertising claims, photography, writings, and other creative content provided or made available by the Client for use in the preparation of and/or incorporation in the Deliverables in connection with the Agreement.
“Confidential Information” means all confidential information (in whatever form including orally, written, in electronic, tape, disk, physical or visual form) that each party (including its employees, officers, representatives and advisers) may receive in connection with this Agreement and the Deliverables, and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by Gild Studios to the Client whether in existence prior to the parties entering into the Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever.
“Contract for Services” means any subsequent contract for the provision of Services entered into between Gild Studios and the Client pursuant to these Terms.
“Deliverables” means the services and work product produced by Gild Studios for the Client.
“Gild Studios” means Gild Studios LLC. registered in California, USA.
“Intellectual Property Rights” means 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.
“Quote” means a quote presented by Gild Studios in respect of Services to be provided to the Client.
“Services” means all services, including the Deliverables, to be provided to the Client by Gild Studios.
“Terms” means these terms and conditions as amended from time to time in accordance with clause 13.1.
2.1 The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
2.2 The words “include” and “including” shall not be construed restrictively.
2.3 Any reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time.
2.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.5 A reference to writing or written includes email.
3. Basics of Contract
3.1 The Services will be carried out in accordance with these Terms, any Quote, and any subsequent Contract for Services to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless agreed otherwise in writing by the parties.
3.2 All representations, conditions or warranties, or other terms concerning the Services which might otherwise be implied or incorporated in the Agreement, whether by statute, common law or otherwise are, to the maximum extent permitted by law, excluded from the Agreement or any variation thereof, unless expressly accepted by Gild Studios in writing.
3.3 Any samples, drawings, descriptive matter or advertising issued by Gild Studios, and any descriptions or illustrations contained in Gild Studios’ brochures, marketing material or websites, 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 these Terms or have any contractual force.
3.4 Upon requesting Services from Gild Studios, the Client shall be deemed to have accepted these Terms and these Terms shall become binding as between the Client and Gild Studios, notwithstanding the absence of any formal acknowledgement.
3.5 The Client and Gild Studios may enter into a Contract for Services which will constitute a separate binding contract between the parties which shall incorporate (with any necessary changes) these Terms. In the case of any conflict or inconsistency between these Terms and any subsequent Contract for Services, these Terms shall take precedence.
4. Fees and Payment
4.1 Gild Studios will invoice the Client for the prices quoted in respect of Services to be provided at the times set out in the relevant Quote or Contract for Services.
4.2 In the event that additional costs are incurred, or likely to be incurred, Gild Studios shall be entitled to make an adjustment to any quoted prices. These events include, but not limited to:
4.2.1 the Client Materials (or any part thereof) being, in the reasonable opinion of Gild Studios, in any way defective, in an unsuitable format (or a different format to that which Gild Studios is expecting to receive the same) or of unsuitable quality for normal processing;
4.2.2 any information supplied by the Client or any third party in connection with the Agreement and the Services being inaccurate or incomplete, or failing to give Gild Studios a full and accurate indication of the work involved and/or time and resources required; or
4.2.3 changes by the Client or any third party in its requirements for the Services or Deliverables; or
4.2.4 exceptional circumstances outside the control of Gild Studios, including currency fluctuations and changes in third party costs.
4.3 Except where these Terms provide otherwise, and subject to clause 4.4 below, payment of all fees and charges incurred shall be made to Gild Studios within 30 days of the date of invoice and any interim invoices are payable within 7 days of the date of invoice.
4.4 Gild Studios expressly reserves the right, at its sole option, to require payment by instalments during the performance of the Agreement and/or to require payment of all amounts due to Gild Studios in respect of Deliverables to be provided prior to delivery of such Deliverables.
4.5 Payment of all amounts shall only be made in the currency in which they are invoiced and shall not be subject to any deductions or charges whatsoever.
4.6 All amounts payable to Gild Studios by the Client are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.
4.7 All amounts due under this Agreement 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).
4.8 If the Client fails to make a payment due to Gild Studios under the Agreement by the due date, then, Gild Studios shall be entitled without prejudice to any of its other rights or remedies, to suspend any further performance of the Services without notice, and the Client 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 4.7 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%.
5. Supply of Services
5.1 Gild Studios warrants to the Client that the Services will be provided using reasonable care and skill.
5.2 Unless otherwise agreed in writing between the parties, all times specified in a Quote or Contract for Services for performance of the Services and delivery of the Deliverables are given in good faith but are not guaranteed by Gild Studios.
5.3 Notwithstanding that Gild Studios and the Client may have agreed that time is of the essence in respect of specified Services or Deliverables, the time for performance of the Services or delivery of the Deliverables shall in every case be dependent upon prompt receipt of all necessary information, materials (including Client Materials), final instructions and/or approvals from the Client. The Client acknowledges and agrees that any changes to its requirements and/or the occurrence of any of the circumstances in clause 4.2 may result in delay in performance or delivery, for which Gild Studios shall not be liable.
5.4 Where the Deliverables are to be delivered electronically, the Client acknowledges and agrees that:
5.4.1 electronic delivery is not a completely secure medium of communication and that an unauthorised third party may intercept, tamper with or delete the Deliverables to be delivered electronically; and
5.4.2 electronic delivery may involve reliance upon third party providers and data carriers, over which Gild Studios has no control.
5.5 Gild Studios shall not be responsible for and shall have no liability to the Client or any third party for:
5.5.1 any delay in delivery or any non-receipt of any Deliverables delivered electronically;
5.5.2 any loss or damage (including loss of data) that results from any person gaining unauthorised access to any Deliverables delivered electronically;
5.5.3 use or disclosure of any data obtained by any third party as a result of that third party gaining unauthorised access to any Deliverables delivered electronically; and
5.5.4 any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Deliverables delivered electronically.
6.1 The provisions of this clause shall not apply to any Confidential Information that:
6.1.1 is or becomes generally available to the public; and
6.1.2 the parties agree in writing is not confidential or may be disclosed.
6.2 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 Agreement.
6.3 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.
6.4 On receipt of a written demand, and to the extent that it does not obstruct the Client from using the Deliverables, the Client shall:
6.4.1 destroy or return to Gild Studios all documents and materials (and any copies) containing, reflecting, incorporating or based on Gild Studios' Confidential Information;
6.4.2 erase all Gild Studios' Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties; and
6.4.3 certify in writing to Gild Studios that it has complied with the requirements of this clause.
6.5 The provisions of this clause 7 shall continue to apply after termination of the Agreement.
7. Intellectual Property Rights
7.1 The Client grants Gild Studios a perpetual, non-exclusive, sub-licensable, transferable, royalty-free licence to copy and modify any materials provided by the Client to Gild Studios for the term of the Agreement for the purpose of providing the Services to the Client. The Client shall undertake to ensure that it has all necessary licenses or ownership rights of Intellectual Property Rights in any materials provided to Gild Studios and warrants to Gild Studios that it has the right to use them for the purposes of providing the Services.
7.2 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 Client) shall be owned by Gild Studios.
7.3 The Client acknowledges that Gild Studios (or its third party licensors) owns, and shall retain ownership of the Intellectual Property of Gild Studios, and Gild Studios shall not at any time be required to deliver to the Client any of the Intellectual Property of Gild Studios whatsoever.
7.4 The Client acknowledges and agrees that if in the course of performing the Services (including any processing or production of materials on behalf of the Client) Gild Studios discovers or devises any techniques or know-how, all rights of every kind in and to such techniques and know-how shall belong to and vest in Gild Studios and shall be deemed to be the Intellectual Property of Gild Studios for the purposes of the Agreement.
7.5 Gild Studios shall retain ownership and possession of, and all rights (including all Intellectual Property Rights) in and to, any original character design, ideas or concepts presented or created by Gild Studios in relation to the Agreement, unless otherwise agreed in writing by the parties. Where the Client requires a licence to use any such original character design, ideas or concepts, for whatever purpose, the terms of such licence shall be agreed by the parties in writing pursuant to a Quote and/or any subsequent Contract for Services.
7.6 Until full re-payment of the prices, Gild Studios grants to the Client a worldwide, non-exclusive, royalty-free licence during the term of the Agreement to use the Deliverables for the purpose of receiving and using the Services. The Client shall not sub-license, assign or otherwise transfer rights granted in this clause 7.6. For the avoidance of doubt, this does not release the Client from its obligation to pay all amounts due under the Agreement to Gild Studios.
7.7 Subject to clauses 7.3 to 7.5 above and any other terms agreed pursuant to a Quote or Contract for Services, ownership of the Intellectual Property Rights referred to in clause 7.2 shall be transferred to the Client (excluding the Intellectual Property of Gild Studios) on full settlement of the prices and of all amounts due by the Client to Gild Studios in relation to the Services. To the extent required, the parties may agree on terms for the licence of the Intellectual Property of Gild Studios (or any part of it) incorporated into the Deliverables, to enable the Client to receive the benefit of the Deliverables.
7.8 The Client acknowledges and agrees that Intellectual Property Rights in and to underlying materials processed by Gild Studios in the performance of the Services and/or embodied in the Deliverables may be owned by third parties and that the use by the Client of the Deliverables shall be subject always to the Client obtaining any and all necessary licences and consents from the relevant underlying rights’ owner(s).
8. Term and Termination
8.1 Except where otherwise stated in a Quote or Contract for Services, this Agreement will expire on completion of the Services to be provided pursuant to it.
8.2 This Agreement may be terminated for convenience at any time by either party, without affecting any other right or remedy available to it, effective immediately upon receipt of notice, or the mutual agreement of the parties, or for cause if any party:
8.2.1 becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
8.2.2 breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
8.3 In the even of termination, Gild Studios shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Gild Studios as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of cancellation.
8.4 In the event of termination for convenience by Client, Client shall pay in addition to the above an early termination fee equal to 10% of the total project fee, and Client shall not have rights to use Deliverables except upon written consent from Gild Studios provided after such termination.
8.5 Any provisions of the Agreement which by their nature are intended to survive cancellation or expiry (including clause 6 (Confidentiality) and clause 9 (Indemnification/Liability/Disclaimer) shall remain in full force and effect notwithstanding any cancellation or expiry of the Agreement.
9.1 Client agrees to indemnify, save and hold harmless Gild Studios from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Gild Studios shall promptly notify Client in writing of any claim or suit;
9.1.1 Client has sole control of the defence and all related settlement negotiations; and
9.1.2 Gild Studios provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Gild Studios in providing such assistance.
9.2 Subject to the terms, conditions, express representations and warranties provided in this Agreement, Gild Studios agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out any breach of Gild Studios’ representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
9.2.1 Client promptly notifies Gild Studios in writing of the claim;
9.2.2 Gild Studios shall have sole control of the defence and all related settlement negotiations; and
9.2.3 Client shall provide Gild Studios with the assistance, information and authority necessary to perform Gild Studios' obligations under this section.
9.3 Notwithstanding the foregoing, Gild Studios shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Materials, any unauthorised content, improper or illegal use of any Deliverables provided by Gild Studios.
9.4 The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
9.5 In all circumstances, the maximum liability of Gild Studios, its directors, officers, employees, sub-contractors and affiliates, to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Gild Studios.
9.6 In no event shall Gild Studios be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Gild Studios, even if Gild Studios has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
9.7 The services and the work product of Gild Studios are sold “as is.” Gild Studios makes no warranty, written, oral, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, with respect to the Services, to the extent permitted by applicable law.
10. Accreditation and Promotions
10.1 Gild Studios retains the right and may in its sole discretion decide, without the prior written consent of the Client to reproduce, publish, advertise, market and display the Deliverables in its website(s) and social media site(s), in pitches to third parties, and in galleries, periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
10.2 The Client hereby grants to Gild Studios a perpetual and royalty-free license to use the Deliverables throughout the world for the purposes of clause 10.1 above and in order for Gild Studios to promote its business by whatever means it sees fit.
11.1 Gild Studios reserves the right to assign or sub-contract all or any part of its obligations to the Client.
12. Force Majeure
12.1 Gild Studios shall not be deemed in breach of this Agreement if Gild Studios is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane, or other severe weather, labour dispute, act of war, terrorism, riot, or other sever civil disturbance, death, illness, or incapacity of Gild Studios, or any local, state, federal, national, or international law, governmental order, or regulation, or any other even beyond Gild Studios’ control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Gild Studios may, at its option, suspend performance of or cancel the Agreement, without liability to the Client for any resulting damage or loss, such suspension or cancellation being without prejudice to Gild Studios' right to recover all sums owing to it in respect of Services and Deliverables delivered and costs incurred up to the date of suspension or cancellation.
13.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Gild Studios’ invoices may include, and Client shall pay, expenses or costs that Client authorises by email in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
13.2 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to these Services.
13.3 Severance. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
13.4 Relationship. No partnership or joint venture is intended or created by the Agreement and neither party shall have authority to act as agent for, to bind, the other party.
13.5 Rights of third parties. A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Thirds Parties) Act 1999 to enforce any term of the Agreement.
13.6 Notices. All notices to be given hereunder shall be sent via email or by first class pre-paid post to the addresses and persons listed in the signature box below.
13.7 Governing law. The Agreement, 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.
13.8 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 Agreement or its subject matter or formation.