Terms of Service.

GENERAL

In these Terms and Conditions:

1. “Agreement” means any order relating to the Services, and these Terms and Conditions.
2. “Overtime” means work needs to be performed outside of normal business hours, being 9am to 5pm Monday to Friday.
3. “Services” means all Services we will supply to you under an estimate, quote, proposal, order or invoice relating to motion graphics and animation.
4. “We” or “Us” means State of Matter Limited and its successors and assigns.
5. “You” means the person, firm, company or entity buying Services from us.

PRICE

1. Price plus tax: You will pay the price indicated on the invoice, order form or other similar document issued by us (“Price”), together with the amount of any Goods and Services Tax or any other tax which may be payable in respect of the supply of Services or otherwise under these Terms and Conditions.
2. Estimates: Any estimate we have given you for the supply of Services constitutes an invitation to treat and not a binding offer. All estimates lapse after 14 days but we reserve the right to change or withdraw any estimate without notice at any time.
3. Price variations: The Price may be revised during provision of the Services in circumstances including but not limited to:
   1. delays caused by you including failure to meet approval, content or meeting deadlines;
   2. you choose to purchase additional Services or require changes to the agreed scope;
   3. you request additional changes to the final work that were not included in our initial estimate; or
   4. circumstances outside our control.
4. Rush fees: We reserve the right to apply an increase of up to 40% of the relevant hourly rate (Surcharge) in the following circumstances:
   1. where you require the Services to be completed urgently i.e. the project deadline is less than 14 days from receipt of your written brief;
   2. you add deliverables to the scope of Services less than 14 days from before the final deadline;
   3. due to capacity pressures we need to engage external or Overtime resources.
5. We will endeavour to include this Surcharge in our estimate prior to commencement of work but this may not always be possible.
6. Cancellation: You may cancel this Agreement at any time. We reserve the right to cancel this Agreement if you commit a material breach or one of the circumstances in clause 3.4 applies. If cancellation occurs after we have started the work, we will invoice you for work that has already been done.

PAYMENT

1. Payment of balance: You will pay your account by the due date on the invoice or as otherwise agreed.  We reserve the right to not release our work to you until the account has been paid in full.  We also reserve the right not to commence new work until your account is up to date.
2. Expenses: Out of pocket expenses such as stock media will be identified in our invoices.
3. No deductions: All payments by you will be full, free and clear of any deduction, withholding, set-off, counterclaim or other claim.
4. Acceleration: Notwithstanding any credit period, full payment for all unpaid Services will become due immediately upon:
   1. You or any guarantor becoming insolvent or bankrupt;
   2. The commencement of any act or proceeding in which your or any guarantor’s insolvency is involved; or
   3. You or any guarantor resolving to wind up or being ordered to be wound up or having a receiver, liquidator of official manager appointed in respect of all or any of your assets; or
   4. You or any guarantor ceasing to trade.

PENALTY FOR LATE PAYMENT

1. Default interest: Failure by you to make payment in full of any amount payable pursuant to this Agreement on the due date constitutes a default and, without prejudice to any other rights or remedies available to us, simple interest at 1.5% per month will be payable upon demand and from the due date until payment.
2. Legal costs: You will indemnify us against all loss, costs and expenses, including legal costs on a solicitor/client basis, which we may suffer or incur as a result of any failure by you to make due and punctual payment.

PERFORMANCE OF THE SERVICES

1. Time: We undertake to use reasonable endeavours to deliver the Services within the time specified by us but dates we give for performance will be indicative only.  No date specified by you will be binding on us without our written agreement. We reserve the right to sub-contract any part of the Services we consider may be appropriate.
2. Declining Services: We reserve the right to decline any request for work that we consider is contrary to our professional standards or that in our view may be harmful to your or our reputations.  If you object to us declining any work under this clause we have the right to terminate this Agreement with immediate effect.
3. Portfolio: You agree that we may use samples of the work we have prepared on your behalf for the purposes of marketing our services and our business.
4. Storage of data: After we have completed performing the Services we will store the original and edited files for 24 months.  If you require longer storage period you must notify us in writing before that period expires. There may be an additional charge for extended storage.
5. Intellectual Property: We retain intellectual property rights in all original work we have prepared on your behalf as part of the Services. As our work necessarily includes material or technology licensed from third parties, we are not able to transfer intellectual property rights to you. Any work or deliverables provided to you are licensed for one-time-only use by you and you may not modify it, re-use it or distribute it without written consent.

YOUR OBLIGATIONS

1. Nominated person: You will nominate a person in your organisation to be our primary point of contact.  That person will be responsible for complying with your obligations as set out in this clause, including obtaining sign-offs.  We are entitled to rely on written or verbal instructions and sign-offs given by that person and are not required to make further inquiry at any time.
2. Information:
   1. You will provide us with any relevant information and assets required to enable us to perform the Services promptly upon request.
   2. Where information you give us is incorrect and we are required to undertake additional work we reserve the right to charge for such additional work.
   3. Supplied assets must be of suitable quality and supplied in open (editable) format where applicable.  If they are not we may decline to use them.
   4. Requests for changes must be made in writing.  We cannot guarantee that changes requested verbally will be implemented.
   5. It is your responsibility to carefully review all proofs and to ensure that they are free of errors.
3. Third Party Rights: You warrant that:
   1. you own any material you provide to us, free of any claims or encumbrances and are entitled to provide that material to us; and
   2. any material you provide to us is yours and does not violate any existing intellectual property rights including, without limitation, copyright, trade mark, or any other proprietary or contractual rights.

OUR OBLIGATIONS AND WARRANTIES

1. We warrant that:
   1. We have the right to enter into this Agreement;
   2. We will perform the Services to a reasonable standard of care and skill;
   3. We will perform the Services in accordance with relevant laws.

LIABILITY

1. Limitation of liability:
   1. Claims: We will have no liability for unsatisfactory Services unless you notify us in writing of your claim within 7 days after performance of the Services.
   2. We will have the option, exercisable at our discretion, to replace or give credit for any services in respect of which any claim is made or proven or to refund a portion of the Price paid for the Services, thereby fully discharging all our legal liability.
   3. If we are held liable for direct losses arising from a breach of this Agreement or for negligence, our obligation to pay damages or losses is limited to the amount of our insurance cover paid or payable in relation to the event to which the liability relates. This limitation does not apply to any loss or damage caused by fraud, wilful breach or wilful damage.
   4. We are not liable for any loss caused by you, or any loss that results from your failure to take reasonable steps to avoid or minimise your loss.
   5. Notwithstanding any other provision of this agreement, neither party will be liable for indirect, special, consequential or similar damages or losses, including but not limited to loss of profit or revenues or other financial or economic losses of any kind and whether or not the other party has been advised of the potential for such damages.
2. Indemnity: You will be liable for, and will indemnify us against, any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by us, whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill), arising out of any dispute or contractual, tortious or other claim or proceeding brought against us arising from any third party claim that the work product infringes a third party’s intellectual property rights.
3. Business purposes: As you hold yourself out as acquiring the Services for business purposes, you acknowledge that the provisions of the Consumer Guarantees Act 1993 will not apply and are expressly excluded.

GENERAL

1. Events outside our control: If any cause beyond our reasonable control including but not limited to order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring components or equipment, embargo, accident, emergency, natural event interfere with our performance of any of our obligations under these Terms and Conditions then we may at our sole discretion suspend our performance of any such obligation or cancel any contract for the purchase of Services and we will not be liable to you in any respect.
2. Waiver: These Terms and Conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. We will not be deemed to have waived any condition unless such waiver will be in writing and such waiver will only apply to the particular transaction to which it refers.
3. Severability: If any clause or provision of these Terms and Conditions will be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such clause will not apply to this Agreement.  The remaining provisions of this Agreement will remain in full force and effect as if the clause or provision held to be illegal or unenforceable had not been included.
4. Privacy Policy: Any personal information collected by us in connection with this Agreement will only be used or disclosed for the purposes of ensuring performance of this Agreement and any future like arrangement or arrangements. This may include disclosure within our organisation and to other parties involved in performing the Services. We agree to comply with relevant privacy laws in respect of any personal information collected in connection with the provision of the Services and any future like arrangement or arrangements.
5. Electronic Communications: You consent to receive commercial electronic messages from us.  If you wish to opt out of receiving these messages please use the “unsubscribe” function to be removed from the mailing list.
6. Confidentiality: Each party must keep confidential during the term and after termination of this Agreement the existence and terms of this Agreement and all information of a confidential or sensitive nature supplied by the other party to this Agreement except to the extent that disclosure is required by law or where such information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this Agreement.  A party may disclose such information to its legal and other advisers, bankers and other persons who are subject to an obligation of confidentiality.