BRASH Terms & Conditions
1. Introduction
1.1 You, the client (“Client”, “you”, “your”), have engaged us, BRASH STUDIO Limited (“BRASH”, “we”, “us”, “our”) to provide a range of digital, post- production and production services as a creative studio to you.
1.2 We agree that the Services shall be supplied in accordance with these Standard Terms and Conditions of Business (“T&C’s”). These are the main legal terms that will govern the relationship between both parties. The project specifics and deliverables, along with the commercial terms of the engagement, shall be set out in one or more Project Bid. These T&C’s are incorporated into the Project Bid by reference and together, constitute the entire agreement (the “Agreement”).
2. Definitions
Where the context allows or requires, the following expressions shall have the meanings set out below: “Project Bid” refers to the bid or cost proposal issued by us in relation to the Services; “Deliverables” means the specific outputs and materials to be produced by us, as detailed in the Project Bid; “Client Materials” refers to all content, data, scripts, imagery and other information of any kind created or owned by you and provided to us directly or on your behalf; “Confidential Information” means all information disclosed by either party to the other, in any form (including oral, written, digital, visual or physical), relating to the Agreement, the Services or the Deliverables, together with all technical, financial, commercial, operational, scientific or strategic information, whether pre-existing or created after the commencement of the Agreement, including all copies or records thereof; “Force Majeure” means any event outside the reasonable control of the parties and not reasonably insurable, including but not limited to acts of government, war, industrial action, equipment failure, fire, accidents, or shortages of materials or supply; “IPRs” means all intellectual property rights, including copyright, design rights, trade marks, database rights, moral rights, patents, service marks, applications for any such rights, business and trading names, domain names, know-how, trade secrets and rights in confidential information, whether registered or unregistered and worldwide; “Services” means the digital, post-production, production or related services to be provided under the Agreement, including the Deliverables.
3. Services
3.1 We shall provide the Services in accordance with the terms and conditions set out in the Agreement.
3.2 You agree to co-operate fully and act in good faith at all times, including providing timely feedback, instructions, and responses when requested.
3.3 We shall not be held responsible for any delay or failure in performing the Services where such delay results from your failure to provide prompt feedback, approvals, or other required input.
3.4 You acknowledge that you are solely responsible for ensuring the accuracy, completeness, and suitability of all information, materials, advice, and recommendations supplied to us by you or on your behalf (including by your employees, freelancers, or agents). Our use or acceptance of such information shall not limit or reduce your responsibility unless expressly agreed by us in writing.
3.5 We shall allocate personnel as we consider appropriate for the delivery of the Services and may, at our discretion, reassign or replace such personnel, or engage subcontractors, to perform any part of our obligations under the Agreement.
4. Delivery and Acceptance
4.1 Delivery of the Deliverables shall be carried out in accordance with the Project Bid, and we shall use commercially reasonable efforts to complete and deliver the Deliverables in a timely manner. Any dates or timeframes specified in the Project Bid for the performance of the Services or delivery of the Deliverables are provided in good faith and shall not constitute a guarantee.
4.2 Upon receipt, you shall review and inspect the Deliverables and must notify us promptly of any material defect or non-conformity with the specification outlined in the Project Bid. Where such notice is given, we shall, within a reasonable timeframe, correct, remedy and re-deliver the Deliverables.
4.3 If you do not notify us of any defect within five (5) days of delivery, the Deliverables shall be deemed accepted.
4.4 You shall not unreasonably delay, condition or withhold acceptance of the Deliverables.
4.5 Acceptance shall also be deemed to have occurred if the Deliverables are used in any commercial or public context.
5. Fees and Payment
5.1 In consideration for our performance of the Services, and unless otherwise expressly stated in the Project Bid, you agree to pay the fees detailed in the Project Bid according to the following schedule:
50% payable within seven (7) days of project confirmation; and
50% payable within thirty (30) days of the invoice date following delivery of the final Deliverables.
5.2 For the avoidance of doubt, project confirmation may be deemed to occur where you instruct us to commence work, including by email.
5.3 We reserve the right to revise or adjust any Project Bid where additional costs are incurred, or are reasonably anticipated to be incurred, as a result of:
5.3.1 substantial alterations by you or any third party to the scope or requirements of the Services or Deliverables;
5.3.2 Client Materials supplied by you (or on your behalf) being defective, unsuitable in quality or format, or materially different from what we reasonably expected to receive;
5.3.3 any information provided by you or any third party being inaccurate, incomplete, or insufficient to give a full and accurate understanding of the work involved or the resources required; or
5.3.4 extraordinary events or circumstances beyond our reasonable control, including fluctuations in third-party costs or currency variations.
5.4 All fees payable under the Agreement shall be made in full, free of any deduction or set-off, together with any VAT properly chargeable. You are responsible for paying any withholding or similar taxes applicable to the Services or otherwise required by law.
5.5 If any payment becomes overdue, we may apply interest on the outstanding amount at a rate of 8% above the Bank of England base rate from time to time.5.6 Without prejudice to any other rights or remedies available to us, we may suspend the performance of the Deliverables and our obligations under the Agreement if you fail to pay any fees or charges when due, provided we have issued written notice of the overdue amount and you have not remedied the non-payment within seven (7) days of receiving such notice. We shall not be liable for any delay to the Services caused by such suspension.
6. IPRS and Materials
6.1 Deliverables and Client Materials
6.1.1 Except as provided in clauses 6.2 to 6.3 below, or unless otherwise agreed in a Project Bid, all IPRs in the Deliverables shall transfer to you only once all fees due under the Agreement have been paid in full and received by us as cleared funds. To the extent necessary for you to obtain the benefit of the Deliverables, the parties may agree licensing terms for any BRASH IPRs (or any part thereof) incorporated into the Deliverables.
6.1.2 All IPRs in the Client Materials shall remain vested in you. You hereby grant to us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use the Client Materials as required for us and/or our suppliers to perform the Services and create the Deliverables.
6.2 BRASH IPRs
6.2.1 You acknowledge that we (or our third-party licensors) shall retain ownership of all rights, including IPRs, in our proprietary software, tools, utilities (in both source and object code), libraries, engines, subroutines, and technologies that predate the Agreement or are generally applicable to digital or interactive production, as well as any modifications or improvements to such items, including anything described in the Project Bid, and any underlying models, rigs, animation data, or project files (together, “BRASH IPRs”). We shall never be required to supply or deliver any BRASH IPRs to you as part of the Deliverables.
6.2.2 Original animation and creative concepts. Copyright in any animation uniquely designed, created, or developed by us for inclusion in the Deliverables shall remain owned by us. If you wish to use such animation in any media or for any purpose other than that agreed in the Project Bid, the parties shall negotiate the applicable media, usage and any related licence or buyout fee. We shall retain ownership of all IPRs in any original character designs, concepts, ideas, or creative material developed by us in connection with the Agreement unless otherwise agreed in writing.
6.3 You agree that any techniques, methods, or know-how conceived or identified by us during the performance of the Services shall vest solely in us and shall be treated as BRASH IPRs for the purposes of this Agreement.
6.4 We may incorporate third-party IPRs into the Deliverables. Such rights shall remain the property of their respective owners, and to the extent you are granted rights to use them, you may do so only in accordance with the applicable third-party licence terms. We provide no warranties or undertakings regarding such third-party materials beyond those expressly stated.
6.5 PROJECT MATERIALS
BRASH will securely retain and archive project materials for a period of one (1) year following completion of the Services, unless otherwise agreed in writing. You acknowledge that maintaining your own copies of any materials supplied to BRASH is your responsibility. After the one-year storage period expires, BRASH may delete or dispose of such materials without further notice. BRASH shall not be liable for any loss, damage or destruction of materials while stored or during disposal. Should you wish to retrieve materials before the expiry of the storage period, you may do so by submitting a written request, and any related retrieval or administrative fees shall be borne by you.
7. Confidentiality
7.1 Confidential Information
All information or materials provided by one party to the other (or supplied by a third party on their behalf), as well as any information observed, accessed, or derived by a party or its personnel during the provision of the Services, which is not publicly known, shall be treated as Confidential Information. Neither party may disclose or use any Confidential Information, during or after this engagement, without the prior written consent of the other party. Upon request, each party shall require its employees, contractors, or other personnel to enter into written agreements restricting the use and disclosure of such Confidential Information.
7.2 Exclusions
This Agreement does not impose confidentiality obligations with respect to information that:
(a) was already in a party’s possession prior to receipt from the other party;
(b) becomes publicly available through no breach of this Agreement;
(c) is lawfully disclosed to a party by a third party without any confidentiality restrictions; or
(d) is independently developed by a party without reference to the Confidential Information, as evidenced by written records.Either party may disclose Confidential Information where required by law, regulation, or court order, provided that it uses commercially reasonable efforts to promptly notify the other party and to limit the scope of such disclosure, including seeking confidential treatment or a protective order. The party compelled to disclose shall also allow the other party a reasonable opportunity to participate in any related proceedings.
8. Cancellation
8.1 Without prejudice to any other rights or remedies available, either party may terminate this Agreement in whole or in part by providing written notice in the following circumstances:
8.1.1 Material breach. If the other party commits a material breach of any provision of this Agreement (including failure to pay any amount due) and does not remedy such breach within twenty-eight (28) days after receiving written notice requiring it to do so. If you fail to make any payment by its due date, we may suspend delivery of all or any portion of the Deliverables until full payment has been received.
8.1.2 Permanent inability to perform. If the other party becomes permanently unable to fulfil any enforceable obligation under the Agreement.
8.1.3 Insolvency. If the other party is declared bankrupt, enters insolvency proceedings, or is granted suspension of payment (whether temporary or otherwise).
8.1.4 Legal prohibition. If applicable law, or an enforceable order of a governmental body or court, prevents either party from performing its obligations, that party may immediately suspend performance.
8.2 Notwithstanding clause
8.1, and without limiting any additional rights or remedies available to you, you may cancel this Agreement (and any Services to be performed pursuant to a Project Bid) by providing written notice to us. Where such notice is received:
8.2.1 fewer than seven (7) days before the Services are scheduled to commence, you shall be liable for 50% of the total project fees;
8.2.2 after the Services have commenced but before the content review stage, you shall be liable for 75% of the project fees;
8.2.3 after the content review stage has begun, 100% of the project fees shall be payable.
8.3 We may terminate this Agreement in the event of a Force Majeure occurrence, in accordance with clause 10.
9. Liability and Indemnity
9.1 Warranties
We warrant that we shall:
9.1.1 perform the Services in a professional manner and with no less than reasonable care and skill; and
9.1.2 deliver the Deliverables in all material respects in accordance with the Project Bid.
9.2 Except as expressly set out in this Agreement, no other warranties or representations (whether statutory, express or implied) are provided, and all such warranties are excluded to the fullest extent permitted by law.
9.3 Nothing in this Agreement shall exclude or limit either party’s liability for fraud, death or personal injury caused by negligence, or any other liability that cannot lawfully be excluded or limited.
9.4 Subject to clause 9.3, and without prejudice to any other provision of this Agreement, you acknowledge and agree that:
9.4.1 this Agreement sets out the full extent of our responsibilities and liability in relation to the Deliverables and the performance of the Services;
9.4.2 we shall not, under any circumstances, be liable for any indirect, special, incidental, or consequential loss or damage, including (but not limited to) loss of profits, business interruption, loss of goodwill, or loss, corruption or degradation of data or software, whether arising directly or indirectly; and
9.4.3 our total aggregate liability to you for any direct loss arising out of or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—shall be limited to the total sums paid by you under the relevant Project Bid to which the loss relates.
9.5 You agree to indemnify and hold us harmless against all claims, actions, damages, losses, costs, expenses (including legal and professional fees) incurred by us as a result of:
9.5.1 any defamatory or unlawful content, or any actual or alleged infringement of third-party IPRs or other rights, arising from the use or supply of Client Materials in connection with the Deliverables or the Services;
9.5.2 any damage to property caused by us in the course of performing the Services, where such damage results from any act or omission by you or your personnel (including officers, employees, freelancers or agents); and
9.5.3 any breach by you or your personnel (including officers, employees, freelancers or agents) of the terms of this Agreement.
9.6 The indemnities set out in clause 9.5 apply regardless of whether the relevant act or omission by you or your personnel was negligent or otherwise.
9.7 Any recommendations, suggestions or guidance given by us regarding the usage or application of the Deliverables are provided in good faith. It is your responsibility to determine whether the Deliverables are suitable for your intended purpose. We shall not be responsible for ensuring the Deliverables comply with any legal, regulatory, or content-specific requirements (including the CAP Code or equivalent regulations in any territory in which the Deliverables may be used or exploited).
10. Force Majeure
Neither party shall be liable to the other for any failure, delay or interruption in the performance of any obligation under the Agreement to the extent such failure results from causes beyond that party’s reasonable control, including but not limited to acts of God, war, government, war, regulation, disaster, casualty, strikes, acts or threats of terrorism, curtailment of transportation, breakdown of machinery or equipment, accident, fire or other events of a similar nature.If a Force Majeure event prevents a party from performing its obligations for a continuous period of thirty (30) days, either party may terminate the Agreement immediately by written notice to the other.
11. Insurance
11.1 You shall obtain, maintain, and keep in force at all times insurance policies with reputable insurers that are adequate to protect you against all risks, losses, liabilities, and claims that may arise out of or in connection with the Agreement and your obligations under it.
11.2 You acknowledge and agree that we are unable to procure insurance that would cover losses or production costs resulting from damage to, or destruction of, Client Materials or any other materials supplied by you (whether held by us or otherwise). It is therefore your sole responsibility to maintain complete and up-to-date back-up copies of all Client Materials and to insure such materials to their full replacement value against all risks. You further accept that we shall have no liability whatsoever for any loss, damage, or destruction of Client Materials, including - without limitation - any costs associated with required re-shoots or other remediation arising from such loss or damage.
12. Publicity Rights
We may publicise, advertise and market the Deliverables on our website(s), in pitches to third parties, on social media, in award submissions, or in any other manner at our discretion.For the avoidance of doubt, nothing in this clause permits the disclosure of your Confidential Information.
13. Data Protection
It is not intended that we process any personal data as part of the Services. However, if the Services do comprise the request to process any personal data then the parties will enter into a separate Data Processing Agreement.
14. General
14.1 No amendment or variation to the Agreement (including any changes to the Services or Deliverables) shall be effective unless set out in writing and signed by or on behalf of each party. No employee, freelancer, or agent acting for us has authority to amend this Agreement, nor to make any representation regarding the Services, their suitability, or any related matter.
14.2 If there is any conflict between these Terms & Conditions and the Project Bid, the terms of the Project Bid shall prevail.
14.3 Any notice or communication required under this Agreement shall be in writing and may be delivered by first-class pre-paid post to BRASH STUDIO Limited, St George's House, Knoll Rd, Camberley GU15 3SY, for the attention of the Directors, or by email to hello@brash.studio (or such updated address as may be notified from time to time).
14.4 A waiver of any right or remedy under the Agreement shall only be effective if made in writing and shall apply solely to the matter for which it is given. No delay or failure by either party to exercise any right or remedy shall constitute or be interpreted as a waiver of that right or any other right.
14.5 Nothing in the Agreement shall be construed as creating a partnership, joint venture, or agency relationship between the parties. Neither party has authority to act for or bind the other.
14.6 If any provision (or part thereof) of the Agreement is determined by a court or competent authority to be invalid, unlawful, or unenforceable, that provision shall be treated as removed to the extent necessary, and the remaining provisions of the Agreement shall remain in full force and effect.
14.7 A person who is not a party to the Agreement shall have no rights to enforce any term of the Agreement under the Contracts (Rights of Third Parties) Act 1999.
14.8 This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and interpreted exclusively in accordance with the laws of England and Wales. The parties submit irrevocably to the exclusive jurisdiction of the courts of England and Wales.
