Last Updated: May 2013
PLEASE READ THESE STANDARD WORK TERMS CAREFULLY. BY USING OUR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND BY ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
a) The entire Agreement between Offroad Agency and Contractor or Owner consists of: (1) these Terms and Conditions, (2) the Proposal, (3) the written requirements of Contractor or Owner (if any) and (4) if applicable, the Owner or Contractor's later purchase orders to the extent they do not contain additional, inconsistent or contrary terms or conditions (all of which are expressly rejected by Offroad Agency). In the event of any conflict or inconsistency between these Terms and Conditions and the Proposal, or Owner or Contractor's written requirements (if any), the Proposal shall prevail. To the extent the Proposal is inconsistent with the Owner's or Contractor's written requirements (if any), or any of Owner or Contractor's purchase orders, the Proposal shall take priority.
b) The Agreement may only be modified in writing, executed by both Offroad Agency and the Contractor or Owner. Unless the context otherwise requires, the term "Services" as used herein means all labor, supervisory, technical and creative, execution, consulting or other services provided by Offroad Agency under the Agreement.
2. Offers, Conclusion of Contract, Delivery
a) If Contractor or Owner is arrears in payment for an earlier delivery, and if, after seven (7) days notice by Offroad Agency, the Owner or Contractor does not make payment for the Work in conformity with this Agreement (or, without such notice if the Owner or Contractor has repeatedly failed to make payment in conformity with this Agreement), the Owner/Contractor shall pay, in addition to the amount due to the OFF-ROAD, plus Offroad Agency has a right to suspend the Work until it receives all payments then due, and the amount due Offroad Agency under this Agreement shall be increased by the reasonable demobilization and remobilization costs.
b) Claims for shortages or other errors in delivery must be made in writing to Offroad Agency within five (5) days of delivery, thereafter no claim of whatsoever nature shall be entertained by the Offroad Agency.
c) Offroad Agency is not bound to initiate work on any or all of the project phases unless the Contractor or Owner meets the initial payment milestone.
3. Prices and Payments
a) Unless noted otherwise in this Proposal or mutually agreed in writing between the parties, the Proposal expires thirty (30) days from the date thereof.
b) Unless noted otherwise, the Price does not include the costs for sea-worthy or air-worthy packaging.
c) Payment Currency. All fees and other amounts payable to OFF-ROAD shall be paid in U.S. Dollars or such other currency as OFF-ROAD may specify from time to time. The Owner/Contractor, at its expense, shall convert any other currency to the Payment Currency to the extent necessary prior to making such payment in the Payment Currency to the Offroad Agency.
d) The Price does not include federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other similar taxes. Contractor or Owner agrees to pay or reimburse any such taxes which Offroad Agency or its suppliers/vendors are required to pay or collect. If Contractor or Owner is exempt from the payment of any tax or holds a direct payment permit, Contractor or Owner shall, upon order placement, provide Offroad Agency a copy of any such certificate or permit in a form acceptable to the relevant governmental authorities. In case of failure on the part the Owner or Contractor to provide tax exemption certificate, the OFF-ROAD STUDIO has a right to deduct these amounts from the payments made by the Owner or Contractor.
e) All amounts payable to the Offroad Agency shall be paid by Owner/Contractor without deduction for any withholding, value-added or other taxes, duties or other deductions required under the tax laws.
f)If in the good faith judgment of Offroad Agency the financial condition of Contractor or Owner at any time prior to delivery does not justify the terms of payment specified, Offroad Agency may require payment in advance, or payment security satisfactory to Offroad Agency, or may terminate the order, whereupon Offroad Agency shall be entitled to receive reasonable cancellation charges along with all the damages and other expenses incurred by it on the project. If Contractor or Owner delays delivery, payment shall be due on the date Offroad Agency is prepared to make delivery. Delays in delivery or non-conformities in any installments delivered shall not relieve Contractor or Owner of its obligation to accept and pay for remaining installments, unless a delay in delivery or a non-conformity in an installment substantially impairs Contractor or Owner's ability to perform timely any legal obligation of Contractor or Owner.
g) In case of delayed payments in relations with the agreed payment milestones Contractor or Owner shall pay, in addition to the overdue payment, a late charge of 4% per week of the overdue amount, plus Offroad Agency attorneys' fees and court costs incurred in connection with collection.
h) Regardless of payment mode, the date of payment shall be deemed to be the date on which Offroad Agency may dispose of the amount.
i) Progress payments shall be made by Contractor or Owner to Offroad Agency based on the dates set forth in the Milestone/Payment Schedule issued by Offroad Agency. Unless the milestone corresponding to a particular payment date has not been achieved due solely to the acts or omissions of Offroad Agency or its subcontractors, payments shall be made on the dates set forth in the Milestone/Payment Schedule regardless of whether the corresponding milestone has been achieved or not.
a) Offroad Agency will communicate regularly with Contractor or Owner regarding progress on the Work. Customer will provide sufficient qualified technical assistance to ensure that the specifications for the Work and requirements are communicated to Offroad Agency in a timely and understandable manner consistent with the agreed scope of Work. The parties will take all steps necessary to secure the availability of such technical personnel at appropriate times to coordinate and communicate with each other.
b) Without prejudice to above, the Owner/Contractor shall select and engage, at its expense, such reputable and qualified professionals as Offroad Agency deems necessary or advisable to complete all work required in connection with the Project as set forth in the Agreement.
c)TheOwner/Contractor shall cause its Professionals and all other Persons involved with the Project to cooperate with Offroad Agency in performing its obligations under the assigned Project, including providing promptly upon Offroad Agency' request all information and documentation requested by the Offroad Agency in connection with Offroad Agency's performance of its obligations, and confirmation of Contractor/Owner's compliance with the performance of its obligations under the Agreement.
d) If the Owner or Contractor has repeatedly failed to communicate in a regular fashion, causing delays and affecting the pre-set delivery milestones shall be charged as 4 % of the project cost per week above the final delivery schedule set forth by Offroad Agency in addition to the overdue payment.
e) Any incomplete, incorrect or missed out information, including but not limited to functional requirements, Content, text, links, images, voiceovers, music, sounds, videos resulting in additional work or re-working of Offroad Agency shall result in adjustments to affected provisions, including price, schedule, etc. All files i.e. Content, text, links, images, voiceovers, music, sounds, videos unless noted as to be produced and developed by Offroad Agency or its sub contractors, any information provided by the client will be considered as final.
5. Changes and Delays
a) Notwithstanding the foregoing, if the scope or size of the Project is changed in any material respect and if the same is acceptable to the Offroad Agency, the Owner/Contractor shall pay an increased amount for the changed/altered/additional work to be agreed upon by the Parties and based upon the nature and magnitude of the change in the Project. All the changed provisions including price, schedule, and guarantees shall be mutually agreed in writing prior to implementation of the change.
b) The Offroad Agency is not liable for any delays in the completion of the project and in particular, the delays which are due to the causes beyond its reasonable control and the delays which occurred on account of the acts of Contractor or Owner including but not limited to the failure on the part of the Onwer/Contractor to provide information required for Offroad Agency to complete the Work within the schedule. In case of aforementioned delays, the schedule of the Work will be extended as reasonably necessary to complete for the change.
c) Offroad Agency availability to respond to any query shall be on weekdays only i.e. Monday through Friday.
6. Inspections, Testing and Acceptance.
The following stages shall occur during the project:
a) Functional Specifications. To the extent not already provided, Offroad Agency will prepare concept and project specifications, etc. that describe the particulars of the design, development and execution strategy. The Functional Specifications shall be considered a part of the Agreement. Owner or Contractor must give its approval to the Functional Specifications prior to Offroad Agency proceeding with the Work.
b) Further Design & Development. Following the approval of the Functional Specifications, Offroad Agency will prepare (to the extent appropriate) an Initial design, which sets forth the design & development portion of the Work in greater detail.
c) Acceptance. Following the substantial completion of design and or development or any other service rendered by Offroad Agency, is presented to the client for acceptance. Minor revisions in deliverables would be facilitated by Offroad Agency and would allow a maximum of (3) revisions.
d) Handing over. On completion, Offroad Agency would deliver all files as source files and hand over all rights to the client upon receipt of final payment milestones togetherwith all or any other amounts due and payable by the Contractor/Owner. Offroad Agency is not liable for any delays caused due to delayed payments. In case of failure of making final payments of delivery with in seven (7) days of the milestone date, Contractor or Owner shall pay, in addition to the overdue payment, a late charge of 4% per week of the overdue amount, plus Offroad Agency attorneys' fees and court costs incurred in connection with collection.
7. Title and Risk of Loss
The responsibility for loss or damage to the Service deliverable shall be Contractor or Owner's from the time of delivery. Contractor or Owner is responsible for providing and maintaining adequate insurance to protect the Service against loss or damage of any kind.
8. Warranty and Liability
a) Contractor or Owner shall inspect the Service deliverables immediately upon delivery for any defects, incorrect deliveries or quantity. Written notice must be given within five (5) days after delivery, if there is any discrepancy or defect in the Service delivered and the notice must refer to the project reference number. Owner or Contractor may assert no claim unless the written notice requirements have been met within the prescribed period of time. This warranty is void if more than five (5) days have lapsed after delivery, or if anyone other than Offroad Agency has modified the Services delivered in anyway. Failure to purchase adequate training for those using the source files or equipment will void this limited warranty.
b) Except for these warranties, Offroad Agency makes no representation or warranty of any kind whatsoever, including but not limited to, any warranty of freedom from patent infringement, of merchantability, of fitness for a particular purpose, or arising from a course of dealing or usage of trade or other express or implied warranties.
9. Limitation of Liability
a) Notwithstanding anything to the contrary, in any arbitration, law suit, legal action or proceeding, arising from or relating to the Agreement, the Owner/Contractor unconditionally and irrevocably waives and disclaims, for itself, and its Parent Companies, Equity Owners and Guarantors, and each their respective Affiliates, and each of the shareholders, trustees, beneficiaries, directors, officers, employees or agents of any of the foregoing, to the fullest extent permitted under Applicable Law, all rights to any damages against Offroad Agency.
b) In no event shall Offroad Agency, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the service/equipment or any associated service/equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Contractor or Owner or other third parties for any damages. c) In no event, regardless of cause, shall Offroad Agency be liable for penalties or penalty clauses of any description or for indemnification of Contractor or Owner or others for costs, damages, or expenses arising out of or related to the Equipment and/Services.
d) Under no circumstances will Offroad Agency be liable for any loss, indemnity, damage or delay arising out of it's failure to perform due to causes beyond its reasonable control, including, without limitation, acts of God, interference by others, delays in receiving approvals or necessary information from Owner or Contractor, fires, strikes, floods, war, terrorism, riots, delays in transportation and adverse weather.
10. Laws and Regulations
a) Offroad Agency does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Service/Equipment or Software is the sole responsibility of the Contractor or Owner. Nothing contained herein shall be construed as imposing responsibility or liability upon Offroad Agency for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Service/Equipment.
11. Rights to Tools
a) Contractor or Ownerâ€™s participation in the costs does not entitle it to any rights in the tools used by Offroad Agency.
b) Contractor or Ownerâ€™s shall purchase and provide all third-party licenses, images, music, sound effects, voiceovers and stock videos required to render a service if not set forth in written or included in project scope and shall not be the responsibility of Offroad Agency unless expressed in written by Offroad Agency to provide such third-party licenses, images, music, sound effects, voiceovers and stock videos as part of the project scope or purchase on behalf of the Contractor or the Owner and billed separately.
12. Data Protection
In keeping with the Federal Data Protection Act, Offroad Agency has the right to process information about the Contractor or Owner as concerns the business transaction or in connection with such whether or not Contractor or Owner or a third person is the source.
13. Severability Clause
If any of these terms is invalid for whatever reason, the validity of the remaining terms shall remain unaffected and those terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed.
14. Non-Solicitation of Employees
Notwithstanding any other provision of this Agreement, for a period of one year after the date of final completion of the Work, Contractor or Owner shall not, directly or indirectly, employ, solicit for employment, or advise or recommend to any other person that such other person employ or solicit for employment, any person employed or under contract (whether as consultant, employee, or otherwise) by or to Offroad Agency.
15. Force Majeure
The parties agree that the obligations of the Parties and the time period for the performance of such obligations (other than an obligation to pay any amount hereunder) under this Agreement is excused during any period during which performance is prevented by causes beyond the party's reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production.
Contractor or Owner may terminate this Contract at any time prior to approval of the Functional Specifications and upon giving TEN (10) days notice. Following approval of the Functional Specifications, Contractor or Owner may terminate Offroad Agency only for persistently or repeatedly failing or neglecting to carry out the Work in accordance with the Contract (and only after Offroad Agency fails to take steps to correct the failure following fifteen (15) days written notice by Contractor or Owner). If terminated for whatever reason Offroad Agency shall be entitled to receive payment for the Work executed together with costs incurred by reason of such termination (including any resource re-allocation charges) along with reasonable overhead and profit on Work not yet executed plus liquidated damages on the entire unpaid amount. However, the Owner /Contractor has no right to claim refund for any amount given to the Offroad Agency.
17. Disputes and Arbitration
a) If a dispute arises, parties will attempt in good faith promptly to resolve the dispute by negotiations between representatives who have authority to settle the controversy.
The Parties agree for themselves, and each of their respective Parent Companies, Equity Owners and Guarantors, and each their respective Affiliates, and each of the shareholders, trustees, beneficiaries, directors, officers, employees or agents of any of the foregoing, that all controversies, disputes, or claims arising from or relating to the Agreement/project (including the performance or non-performance of any obligations set forth herein) shall be submitted to final and binding arbitration upon demand by a Party by providing notice to the other Party. The arbitration shall be administered by the courts at Lahore and shall be governed and construed in all respects in accordance with the laws of Pakistan.
That in the event of such a dispute or disagreement cannot be resolved through mediation, the dispute or disagreement shall referred to arbitration, under the applicable laws of Pakistan, by a panel of arbitrators of which one will be chosen by each party together will another as Chairman by mutual consent. The decision of the panel of arbitrators will be final and binding on the parties. The arbitration proceedings shall be conducted at Lahore and all laws of Pakistan shall be followed.
Claim Period. Except as otherwise prohibited or limited by Applicable Law, any failure or delay of the Owner /Contractor in asserting any claim arising from or relating to the Project shall constitute a waiver of such claim and shall preclude the enforcement of any remedy with respect to such claim, unless notice specifying such a claim is provided to the Offroad Agency within 15 days from the date of completion of the Project.
18. Use of Customer Name
Contractor or Owner agrees to allow Offroad Agency to use its name and logo identifying Contractor or Owner as a customer of Offroad Agency. Contractor or Owner agrees to allow use of Contractor or Owner's trademarks, trade names, or service marks (collectively "Trademarks") for Offroad Agency internal and external communications relating to Offroad Agency provision of services to the Contractor or Owner. Offroad Agency acknowledges that the Contractor or Owner is the owner of all right, title and interest in and to all of the Trademarks and shall not take any action that is inconsistent with such ownership. Offroad Agency shall not, by act or omission, use any trademark in any manner that tarnishes, degrades, or disparages or reflects adversely on Contractor or Owner or its business or reputation. Offroad Agency use of Contractor or Owner's Trademarks and logos in conformity with this Agreement shall be royalty -free.
Questions and Contact Information
Questions or comments about the Website or Website Terms may be directed to Offroad Agency at [email protected] or by calling +1.917.470.9168.
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