These “Terms” apply to the provision of Services by MLC and form part of the MSA entered into between MLC and Client. These Terms include important provisions around payment terms and intellectual property, so please read them carefully.
1.1 MLC agrees on a non-exclusive basis to provide the Services set out in the SOW(s) under the terms of the Agreement. MLC is free to decide how to provide the Services but generally MLC agrees to: (a) perform the Services with all reasonable skill and care; (b) to the best of its knowledge, act in accordance with all relevant laws and regulations; (c) comply with Client’s reasonable requests; and (d) keep Client reasonably informed about progress of the Services. MLC may use subcontractors in its provision of the Services, provided that MLC will remain liable for the performance of the obligations it subcontracts to such subcontractors.
2.1 In order for MLC to be able to provide the Services effectively and on time, Client will: (a) ensure that the description of the Services and the SOW are complete and accurate; (b) co-operate with MLC in all matters relating to the Services; (c) provide MLC with information and materials MLC may reasonably require to supply the Services and ensure that such information and materials are accurate in all material respects; and (d) obtain and maintain all necessary licences, permissions and consents which may be required for the supply of the Services before the date on which the Services are to start.
3.1 Client will conduct acceptance testing of each Deliverable with reference to the Acceptance Criteria within 5 (five) days of delivery by MLC. If Client approves a Deliverable it will notify MLC in writing (email being sufficient). If Client determines reasonably and in good faith that a Deliverable does not meet the Acceptance Criteria, it may reject the applicable Deliverable. If Client rejects a Deliverable it will notify MLC in writing (email being sufficient) and the steps required to remedy such rejected Deliverable in reasonably sufficient detail. If Client fails to approve or reject a Deliverable within such 5 (five) day period Client will be deemed to have accepted such Deliverable.
3.2 If a Deliverable is rejected, MLC shall use its reasonable endeavours to remedy such Deliverable and redeliver updated Deliverables to Client as soon as reasonably practicable following Client’s rejection for further review in accordance with clause 3.1 above.
3.3 If Client rejects a Deliverable, the deadlines for the delivery of all other Services or Deliverables set out in the applicable SOW will be extended on a day for day basis to reflect any additional remediation work required by MLC.
4.1 If MLC’s provision of the Services is prevented or delayed by any act or omission of Client, or if Client fails to perform any of its obligations under clause 2 (Client Obligations) (each a “Client Default”) MLC will, without limiting its other rights or remedies:
4.1.1 have the right to suspend performance of the Services until Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays MLC’s performance of any of its obligations under the Agreement;
4.1.2 not be liable for any costs or losses sustained or incurred by Client arising directly or indirectly from MLC’s non-performance or delay to perform any of its obligations under the Agreement due to a Client Default; and
4.1.3 Client will reimburse MLC on written demand for any costs or losses sustained or incurred by MLC which arise directly or indirectly as a result of the Client Default.
5.1 Deliverables. If and when the Transfer Trigger is satisfied: (a) all right, title and interest held by MLC in the applicable Deliverables related to that Transfer Trigger will automatically and immediately be assigned to Client; and (b) MLC waives and releases any claim regarding moral, personal or publicity or other similar rights which it may have regarding such Deliverables.
5.2 Third Party IP. If MLC uses any Third Party IP in any of the Deliverables, MLC shall provide the Client with details of such Third Party IP upon delivery of the Deliverables. In addition, MLC hereby grants to Client a sub-licence over such Third Party IP in order for Client to fully exercise its rights hereunder in respect of the relevant Deliverables, provided that MLC only grants such sub-licence to the extent permitted (if at all) by the applicable licence terms of such Third Party IP. It is Client’s sole responsibility to ensure the terms of such Third Party IP licences are sufficient for its intended purposes, and to procure from the relevant Third Party IP rightsholder its own licence if needed.
5.3 MLC IP. MLC will remain at all times the sole and exclusive owner of the MLC IP.
6.1 General. The parties agree to the Payment Terms. All amounts are stated exclusive of VAT. The parties will be responsible for payment of their own taxes in respect of the Services and the Agreement. All sums under this Agreement will be paid in whole without deduction or set-off.
6.2 Exchange and Transfer Fees. Client is responsible for ensuring that MLC receives full payment in accordance with the Payment Terms. The price stated in the Payment Terms does not include any currency exchange fees, transfer fees or any other fees unless otherwise agreed between the parties.
6.3 Invoices. All invoices issued by MLC are payable within 14 days of receipt unless otherwise agreed in the applicable SOW.
6.4 Late Payments. If Client fails to make any payment due to MLC under the Agreement by the due date for payment then Client will pay interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time in force. Such interest will accrue on a daily compound basis from the due date until actual payment of the overdue amount, whether before or after judgment, and be payable monthly on demand.
6.5 Expenses. Client will reimburse MLC for any expenses MLC reasonably incurs in connection with the Services which have been agreed between the parties.
7.1 Agreement Termination Right. If there are no active SOWs, either party may terminate the Agreement on thirty (30) days written notice to the other party.
7.2 Termination of the Agreement. Without affecting any other right or remedy available to it, either party may terminate this Agreement, in whole or in part, with immediate effect by giving written notice to the other party if:
7.2.1 the other party commits a material breach of any term of this Agreement (which includes any failure by Client to pay any amount due under the Agreement) and (if such breach is remediable) fails to remedy that breach within 30 days after being notified to do so; or
7.2.1 the other party suffers an Insolvency Event.
7.3 Effect of Expiry or Termination.
7.3.1 If the Agreement is terminated in its entirety, the parties’ rights and obligations under it will end immediately, but not their accrued rights and obligations and any provisions of the Agreement necessary for their interpretation or enforcement which will remain in full force and effect.
7.3.2 If the Agreement is terminated in part in relation to a particular SOW, the parties’ rights and obligations under the terminated SOW will end immediately, but not their accrued rights and obligations and any provisions of the applicable SOW necessary for their interpretation or enforcement. Any parts of the Agreement that are not terminated will remain in full force and effect.
7.3.3 If the Agreement is terminated in whole or in part, Client will immediately pay to MLC: (a) all outstanding invoices; and (b) a pro-rated share of the fee detailed in the Payment Terms in respect of Services which have been provided by MLC (regardless of whether or not any work in progress or Deliverables have been accepted by Client under clause 3) up to the point of termination (such pro-rated share to be determined by MLC in its sole but reasonable discretion, acting in good faith).
8.1 Non-Solicitation. In order to protect the legitimate business interests of MLC, Client will not, whether on its own behalf, or on behalf of, or jointly with, any other person at any time during the term of the Agreement or 12 (twelve) months thereafter solicit or entice away, or endeavour to solicit or entice away, or enter into any commercial arrangement or agreement with any customer, director, employee, agent, consultant, subcontractor or other staff member of MLC, with whom Client had any business dealings or discussions of any kind in the 12 (twelve) months preceding the date of termination or expiry of the Agreement, whether or not such person(s) would breach any obligations owed to MLC by so doing, unless Client obtains MLC’s prior written approval.
8.2 Restrictions Validity. Each undertaking in this clause 8 (Non-Solicitation) will be treated as independent of the other undertakings so that, if one or more is held to be invalid as an unreasonable restraint of trade or for any other reason, the remaining undertakings will be valid to the extent that they are not affected and with any modifications necessary to ensure their enforceability.
9.1 Confidential Information. Each party undertakes that it will not at any time during the Agreement and for a period of 5 (five) years thereafter disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, nor any of the terms of this Agreement, except as permitted by clause 9.2 (Permitted Disclosures).
9.2 Permitted Disclosures. Each party may disclose the other party’s Confidential Information:
9.2.1 to its employees, consultants, subcontractors, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall procure that its employees, consultants, subcontractors, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with the obligations set out in this clause as if they were a party to this Agreement; and
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 Intended Purpose. Neither party will use any other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
10.1 Mutual Warranties. The parties warrant and represent to each other that they have all necessary power to enter into this Agreement and that they are not a party to any arrangements which could reasonably be expected to hinder or prevent the performance of their obligations under this Agreement.
10.2 MLC Warranties. MLC warrants to Client:
10.2.1 as far as it is aware, the Services and Deliverables will not: (a) infringe any third party’s Intellectual Property Rights; or (b) contain any malicious code, such as “worms,” “viruses,” or other unauthorized hidden programs;
10.2.2 it will not intentionally do anything which creates any obligation on Client to a third party; and
10.2.3 it will: (a) use its reasonable commercial endeavours to protect the Deliverables from unauthorised access; and (b) not allow any person to have access to the Deliverables if MLC knows that such person is likely to fail to treat such Deliverables as Confidential Information.
11.1 General. The maximum and total aggregate liability of MLC in connection with each SOW will be an amount equal to the payments actually received by MLC from Client under that SOW. In no event will either party be liable to the other party for any indirect or consequential loss or damage, except in relation to a Client Default.
11.2 Exceptions. Nothing in this Agreement will limit:
11.2.1 Client’s payment obligations under the Agreement; or
11.2.2 liability which cannot be legally limited, including death or personal injury caused by negligence, or fraud or fraudulent misrepresentation; or
11.2.3 liability arising from a party’s deliberate default.
12.1 Neither party will be in breach of the Agreement nor be liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party will be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for 30 (thirty) days, the party not affected may terminate the SOW in question or where circumstances permit, the entire Agreement, by giving 30 (thirty) days written notice to the affected party.
13.1 Entire Agreement. The Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between them regarding its subject matter. Each party acknowledges that, in entering into the Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in the Agreement.
13.2 No Agency, Joint Venture or Partnership. This Agreement does not create any exclusive relationship between the parties nor any agency, joint venture, employment or partnership between them.
13.3 Variation. No variation of the Agreement will be effective unless made in writing and signed by each of the parties.
13.4 Notices. Any notice given to a party in connection with the Agreement must be in English and sent by email to the addresses set out in the SOW. Notice sent by email will be deemed served at the time of transmission, or, if this falls outside business hours in the place of receipt, when business hours resume. The foregoing does not apply to the service of any proceedings or other documents in any legal action or where applicable, any other method of dispute resolution, in which case such notices must be delivered to a party’s registered office.
13.5 Severance. If any provision or part of a provision of the Agreement shall be, or be found by any authority or court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of the Agreement, all of which will remain in full force and effect.
13.6 Rights and Remedies. The rights and remedies provided in the Agreement are cumulative and not exclusive of any rights and remedies provided by law or otherwise.
13.7 Waiver. No breach by any party of any provision of the Agreement shall be waived or discharged except with the express written consent of the other party.
13.8 Delay. No failure or delay by any party in exercising any right, power or privilege under the Agreement will operate as a waiver of that right, power or privilege and no single or partial exercise by any party of any right, power or privilege will preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
13.9 Third Parties. The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
13.10 Assignment. The Agreement shall be binding on and endure for the benefit of each party’s successors in title. No party shall assign, or otherwise dispose of all or any part of its rights or benefits under this Agreement save in accordance with the Agreement.
14.1 The Agreement will be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts as regards any claim or matter (including non-contractual disputes or claims) arising in relation to this Agreement.
15.1 In the Agreement, where the context so admits, the following words and expressions shall have the following meanings:
| 15.2 Acceptance Criteria | means a Deliverable which: (a) fails to conform with the relevant SOW in any material aspect, taking into consideration that a reasonable margin of difference between the specification or concept art can be reasonably expected in producing the Deliverables (for example, the inherent differences that come with translating from 2D to 3D formats, or taking into account an artist’s artistic licence to fulfil the brief); and/or (b) contains reproducible, material technical errors that are unacceptable within reasonable industry standards. |
| 15.3 Agreement | means the MSA entered into between Client and MLC, which these Terms and any SOWs form part of. |
| 15.4 Client Default | has the meaning set out at clause 4.1. |
| 15.5 Confidential Information | means any information, assets or materials which are or can reasonably considered to be confidential and/or commercially sensitive (whether or not marked as such) and in whatever form or format held (whether verbal, written, digital or otherwise), including but not limited to: (i) assets, information and materials relating to interactive entertainment products (whether released or unreleased and at whatever stage of development) including concepts, designs, plot, setting, characters, gameplay, mechanics and look and feel; (ii) assets, information and materials relating to business methods, corporate plans, management systems, finances, human resources, real estate, research and development and marketing or sales of any past, present or future product or service; (iii) secret formulae, processes, inventions, designs, know-how and other technical information relating to the creation, production or supply of any past, present or future product or service; (iv) details of clients, potential clients and suppliers or the arrangements made with any client or supplier; and (v) any information in respect of which either party owes an obligation of confidentiality to any third party. |
| 15.6 Deliverable | means any product or work (including but not limited to drawings, documents, designs, photos, graphics, artwork, models, videos, logos, typographical arrangements, software, source code and object code, audio, audiovisual, mechanics, gameplay, user interface, text, characters, story, plot, setting and all other materials in whatever form) created or carried out by MLC for Client as part of the Services, whether in physical or digital form of any kind, and including preparatory materials, drafts, work in progress and completed versions, modifications and updates, including without limitation the work detailed in a SOW, but in all cases excluding the MLC IP. |
| 15.7 Effective Date | has the meaning set out in the MSA |
| 15.8 Insolvency Even | means in respect of either party: (a) a party becomes insolvent or bankrupt (including being unable to pay its debts as they fall due and/or that the value of its assets is less than the amount of its liabilities taking into account its contingent and prospective liabilities), proposes an individual, company or partnership voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets; (b) if any petition will be presented in good faith, order will be made or resolution passed for its winding up (except for the purpose of amalgamation or reconstruction), bankruptcy or dissolution (including the appointment of provisional liquidators/interim receivers or special managers); or (c) if it will otherwise propose or enter into any composition or arrangement with its creditors or any class of them or if it ceases or threatens to cease to carry on business. |
| 15.9 Intellectual Property Rights | means any and all copyright, trademarks, service marks, trade dress, brand names, logos, goodwill, get up, trade, business or domain names, design rights, rights in characters, rights in get-up, database rights, patents, rights in inventions, know-how, trade secrets and confidential information, rights in databases, rights in computer software (including source code, object code), moral rights, author rights, rental and lending rights, publicity rights, performance rights, synchronisation rights, mechanical rights, publishing, rental, lending and transmission rights and other intellectual property and exploitation rights of a similar or corresponding character which may now or in the future subsist in any part of the world, in all cases whether or not registered or registrable including all granted applications and all applications for registration, division, continuation, reissuance, renewals, extensions, restorations and reversions regarding any of the same. |
| 15.10 MLC IP | means any MLC proprietary products, hardware, software, technology, content or other assets and materials owned or developed by MLC, but not including the Deliverables. |
| 15.11 MSA | means the Master Services Agreement entered into between the parties. |
| 15.12 Payment Terms | has the meaning set out in a SOW. |
| 15.13 Services | means the services provided by MLC to Client (including provision of any Deliverables) as set out in a SOW. |
| 15.14 SOW | means any statement of work between the parties and SOWs means all of them. |
| 15.15 Third Party IP | means with respect to the Deliverables, any Intellectual Property Rights that are: (a) owned by a third party; (b) included in any of the Deliverables; (c) approved by Client in the SOW; and (d) set out in the corresponding SOW. |
| 15.16 Transfer Trigger | has the meaning set out in a SOW. |
| 15.17 VAT | means value added tax and any similar consumption or sales taxes in the world. |
15.18 All capitalised but undefined terms used have the meaning given in the MSA or the SOW.
15.19 Any references, express or implied, to statutes or statutory provisions shall be construed as references to those statutes or provisions as respectively amended or re-enacted or as their application has been modified by other provisions (whether before or after the date hereof) and shall include any orders regulations, instruments or other subordinate legislation under the relevant statute or statutory provision.
15.20 References to clauses are to clauses in these Terms (unless the context otherwise requires).
15.21 Headings are inserted for convenience only and shall not affect the construction of these Terms.
15.22 References to persons shall be deemed to include natural persons, companies and other bodies corporate, unincorporated associations, partnerships, firms and government bodies, governments, states and any other organisations (whether or not in each case having separate legal personality).
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