STANDARD TERMS & CONDITIONS OF BUSINESS
Balance is a creative company delivering creative and visual production capability across development, design and direction, animation, production and post-production. These Standard Terms & Conditions of Business ("T&C's") govern every project we undertake for you, together with the Statement(s) of Work ("SOW") agreed for that project.
1. BACKGROUND
1.1 You, the client ("Client"), have engaged us, Balance Pte. Ltd. ("Balance"), to provide creative and visual production services, which may include creative development, design and direction, animation, production, post-production, and related creative services (the "Services").
1.2 We shall supply the Services in accordance with these T&C's. The project specifics and details of the Deliverables shall be set out in one or more quotes provided by us or a Statement of Work (together, "SOW"). These T&C's are incorporated into the SOW by reference and together form the entire agreement between us (the "Agreement").
2. SERVICES AND DELIVERABLES
2.1 We shall supply the Services with reasonable skill, care and diligence consistent with professional industry standards.
2.2 We shall not subcontract any material part of the Services to a third party without your prior written consent (not to be unreasonably withheld). We remain fully responsible for the acts and omissions of any approved subcontractor as if they were our own.
2.3 You shall fully cooperate and act in good faith towards us at all times and shall provide us with prompt feedback where requested.
2.4 We shall not be liable for any delay in the performance of the Services caused by you as a result of a failure to supply prompt feedback or approvals; the timeline shall be adjusted accordingly.
2.5 You shall be solely responsible for ensuring that all information, advice and recommendations given to us either directly or indirectly by you or by your employees, freelancers or agents are accurate, correct and suitable, and acceptance or use by us of such information, advice or recommendations shall in no way limit your responsibility under this clause, unless we specifically agree in writing to accept responsibility.
3. DELIVERY AND ACCEPTANCE
3.1 Delivery of the Deliverables shall be in accordance with the SOW, and we shall use all commercially reasonable efforts to deliver the Deliverables on a timely basis. All dates and/or times specified in an SOW for performance of the Services or delivery of the Deliverables are given in good faith but are not guaranteed by us, save as set out in Clause 3.5.
3.2 You shall inspect the Deliverables and shall notify us within five (5) days if there is a material defect or non-conformity against the agreed specification set out in the SOW, and we shall remedy, correct and re-deliver the Deliverables to you as soon as reasonably practicable. In the event you do not notify us of any defect within five (5) days, you shall be deemed to have accepted the Deliverables.
3.3 You shall not unreasonably withhold, delay, or condition acceptance of the Deliverables at any time.
3.4 Once the notice period in Clause 3.2 has passed without a defect notice, and where the Deliverables are then used by you in a commercial or public environment, you shall be deemed to have accepted the Deliverables.
3.5 If we cause an unexcused delay of more than ten (10) business days past a delivery date agreed in the SOW (excluding any delay caused by you under Clause 2.4 or a Force Majeure event under Clause 7), you may, by written notice, terminate the affected Deliverable without liability for the portion of the fees attributable to it, without prejudice to your other rights under the Agreement.
4. FEES AND PAYMENT
4.1 In consideration of the provision of the Services by us, unless otherwise agreed in an applicable SOW, you shall pay the fees set out in the SOW as follows:
a) 50% deposit payment due within fourteen (14) days of project commencement; and
b) 50% final payment due after the date of delivery and within thirty (30) days from the date of invoice.
4.2 For the avoidance of doubt, project commencement may include commencement of the project on the basis of your instruction by email.
4.3 We shall have the right to propose an amendment to any SOW, including an adjustment to fees and/or timeline, in the event that additional costs are incurred, or likely to be incurred, by reason of:
a) material changes by you or any third party in your requirements for the Services or Deliverables;
b) any Client Materials supplied to us for use in connection with the Agreement which, in our reasonable opinion, are in any way defective, of unsuitable quality or format, or a different format to that which we are expecting to receive;
c) any information supplied by you or any third party in connection with the Agreement and the Services being inaccurate or incomplete, or failing to give us a full and accurate indication of the work involved and/or time and resources required; or
d) exceptional circumstances outside of our control, including changes in third party costs and currency fluctuations.
No additional charge shall apply unless approved by you in writing.
4.4 You shall pay the fees due under the Agreement without deduction or set-off, together with any VAT invoiced and payable thereon. You shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any payment by you to us pursuant to the Agreement, save that we shall provide reasonable assistance (e.g. a tax residency certificate) to support any applicable tax treaty relief.
4.5 Unless otherwise provided for, all monetary amounts referred to herein will be paid in United States Dollars (USD) or Singapore Dollars (SGD).
4.6 In the event payment is delayed, we may charge you interest on any overdue payment at the rate of 4% over the base rate of a Singapore bank from time to time.
4.7 Without prejudice to any of our other rights under the Agreement or otherwise, we may suspend performance of the Deliverables and our obligations under the Agreement where you are overdue in paying the fees or other costs set out in the Agreement, and we have provided written notice to you of such overdue fees and you have not remedied such non-payment within 7 days of receipt of such notice. We shall not be liable for any delay caused to the Services as a result of such suspension.
5. INTELLECTUAL PROPERTY
5.1 All copyright, design right, registered designs, trademarks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature worldwide, whether registered or not, in material devised, created or commissioned by Balance in supplying the Deliverables and Services under the Agreement, will vest in and belong to Balance unless otherwise agreed in writing on the SOW and signed by both parties.
5.2 You shall have the usage rights set out in the SOW, which rights shall take effect and be conditional upon receipt by Balance of the fees. Such usage rights shall apply only to those ideas, concepts, proposals and parts of the Deliverables which Balance is specifically requested to proceed with, and not to any original ideas, concepts or proposals pitched or suggested to you but not further explored by Balance for you, all of which shall be retained by Balance. Where no such rights are specified, you are granted a non-exclusive licence to use the Deliverables for the purpose specifically described in the SOW. Further usage outside that purpose shall be subject to additional licence terms and fees to be agreed in writing.
5.3 All IPRs in the Client Materials shall belong to you, and you hereby grant to us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use your Client Materials to the extent necessary for us and/or our suppliers to provide the Services and the Deliverables.
5.4 You acknowledge and agree that we (or our third party licensors) shall retain ownership of all rights, including IPRs, in and to our proprietary software, development tools and utilities (in source code and object code), libraries, engines, subroutines and technology, including any model, rigging and animation data and any modification, adaptation or improvement of the foregoing (together, "Balance IPRs"), and we shall not at any time be required to deliver to you any Balance IPRs as part of the Deliverables.
5.5 You agree that if, in the course of performing the Services, we discover or devise any techniques or know-how, all rights to such techniques and know-how shall belong to and vest in us and shall be deemed Balance IPRs for the purposes of the Agreement.
5.6 You agree that we may use third party materials (e.g. stock assets, fonts, music) licensed from a third party ("Third-Party Materials") in and as part of the Deliverables. Such Third-Party Materials will remain vested in the third party proprietor, and to the extent you are granted the right to use them, you may do so only on the licence terms applicable to those materials. We give no other warranties or undertakings in relation to Third-Party Materials.
6. CANCELLATION / TERMINATION
6.1 Either party may fully or partially terminate this Agreement by written notice if the other party commits a material breach of the Agreement which, if capable of remedy, is not remedied within 14 days of written notice; becomes insolvent or bankrupt; or for other lawful cause.
6.2 Subject to Clause 6.1, you may give us written notice of cancellation or postponement, meaning either a rescheduling of the production to a later specific date, or a total cancellation of the project. If such notice is given less than seven (7) working days prior to the commencement of production, you will be liable for all out-of-pocket costs and costs already committed to, incurred up to and including the date of termination.
6.3 If cancellation occurs after commencement of production and is caused or directed by you, you are liable for all costs as set out in the budget. Wherever possible, Balance will use reasonable efforts to mitigate any costs not yet incurred.
6.4 We may terminate this Agreement in the event of a prolonged Force Majeure event under Clause 7.
6.5 On termination, we shall deliver to you all completed or agreed in-progress Deliverables for which payment has been made, and you shall pay for Services properly performed up to the date of termination.
7. FORCE MAJEURE
7.1 Neither party shall be liable to the other for any failure, delay or interruption in the performance of any term under the Agreement due to causes beyond the control of that party that make performance either illegal, impossible or commercially impracticable, such as, but not limited to, acts of God, war, government regulation, disaster or other casualty, strikes or threat of strikes, acts and/or threats of terrorism, curtailment of transportation services, illness or injury (e.g. talent or crew), or other events beyond the control of either party.
7.2 If a Force Majeure event continues for more than 30 days, either party may terminate the Agreement by written notice, in which case Clause 6.5 shall apply.
8. WARRANTIES AND INDEMNITY
8.1 We warrant to you that:
a) we shall perform the Services in a professional and workmanlike manner and using no less than reasonable care and skill;
b) we shall deliver the Deliverables in accordance with the SOW in all material respects; and
c) the Deliverables, to the best of our knowledge, shall not infringe any third party rights.
8.2 Except as expressly stated, we give no warranty or representation and all warranties, whether express or implied, are excluded to the fullest extent permitted by law.
8.3 Each party represents and warrants that it is duly organised, validly existing and has full corporate power and authority to enter into and perform the Agreement, and that doing so will not breach any agreement it is bound by.
8.4 Nothing in this Agreement shall exclude or in any way limit either party's liability for fraud, wilful misconduct, or for death or personal injury caused by its negligence, or any other liability that cannot be excluded or limited as a matter of law.
8.5 Subject to Clause 8.4 and without prejudice to any other provision of the Agreement, you agree that:
a) under no circumstances shall we be liable for any indirect, special or consequential loss or damage whatsoever, or for any loss of business profits, business interruption, depletion of goodwill, loss of use or corruption of data or software, whether on a direct or indirect basis; and
b) our entire liability for any direct loss suffered by you under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the actual sums paid by you under the relevant SOW in which the loss was suffered, save that this cap does not limit our liability under Clause 8.7(b), or for breach of Clause 10 (Confidentiality).
8.6 You shall indemnify and hold us harmless from and against all claims or proceedings and all loss and damage of any kind, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, us as a result of or in connection with:
a) any defamatory or libellous matter or any infringement or alleged infringement of a third party's IPRs or other rights arising out of the supply or use of the Client Materials in relation to the Deliverables and/or in the course of carrying out the Services; and
b) any breach by you, including your officers, employees, freelancers and agents, of any of the terms in this Agreement.
8.7 We shall indemnify and hold you harmless from and against all claims or proceedings and all loss and damage of any kind, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, you as a result of or in connection with:
a) the Deliverables (excluding Client Materials and any Third-Party Materials) infringing a third party's IPRs; and
b) any breach by us, including our officers, employees, freelancers and agents, of any of the terms in this Agreement.
8.8 Without prejudice to Clause 8.7, if it is alleged that the Deliverables infringe a third party's IPRs, we shall, at our own cost and within a reasonable time, use reasonable efforts to: (a) modify or re-perform the affected element without materially reducing its functionality; (b) procure for you the right to continue using it; or (c) if neither is reasonably achievable, refund the portion of the fees attributable to the affected element.
8.9 Any recommendations or suggestions by us relating to the use of the Deliverables are given in good faith, but it is for you to satisfy yourself of the suitability of the Deliverables for your own particular purpose. We shall not be responsible for ensuring that the Deliverables comply with any legal or regulatory requirements relating to content in any territory where the Services are being exploited.
9. PUBLICITY GUIDELINES
9.1 We may publicise, advertise and market final, publicly released Deliverables on our website(s), reels, in pitches to third parties, on social media, blogs, and award submissions, or in any other manner we may decide, for self-promotion purposes.
9.2 We shall not disclose any unreleased products, campaigns, or confidential business information of yours without your prior written consent.
10. CONFIDENTIALITY OBLIGATIONS
10.1 All information or materials provided to one party by the other party (or by a third party on their behalf), and all information that a party and those working for it or on its behalf may hear, see, or derive in connection with the Services, which are not the subject of general public knowledge, shall be deemed Confidential Information. Each party shall not, during or after this engagement, disclose or use any such Confidential Information without first obtaining the other party's written authorisation. Each party shall, at the other party's request, require those engaged by it to sign agreements in which such persons agree not to use or disclose the Confidential Information.
10.2 This Agreement imposes no obligations with respect to information which: (a) was in either party's possession before receipt; (b) is or becomes a matter of public knowledge through no fault of either party; (c) was rightfully disclosed to either party by a third party without restriction on disclosure; or (d) is developed by either party without use of the Confidential Information, as can be shown by documentary evidence. Either party may make disclosures to the extent required by law or court order, provided it makes commercially reasonable efforts to notify the other party as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order, and has allowed the other party to participate in the proceeding.
11. INSURANCE AND DATA PROTECTION
11.1 We shall maintain insurance appropriate to the Services we provide, including commercial general liability insurance and, where applicable, professional indemnity insurance, with reputable insurers, and shall furnish you with reasonable evidence of such cover on request.
11.2 You acknowledge that it is not possible for us to obtain insurance against lost production costs arising from loss or damage to Client Materials or any other materials supplied by you to us. It is your responsibility to ensure you have appropriate back-up copies of all Client Materials, and you shall insure all Client Materials to their full value against all risks. We shall be under no liability for any loss or damage to or destruction of the Client Materials.
11.3 It is not intended that we process any personal data as part of the Services. If the Services later require this (e.g. footage or images of your staff or customers), the parties shall agree the purpose and scope in the applicable SOW, and we shall: (a) process such personal data only for that agreed purpose; (b) apply reasonable technical and organisational security measures; and (c) notify you promptly if we become aware of any unauthorised access to or loss of such personal data.
12. GENERAL
12.1 Any valid alteration to or variation of this Agreement must be in writing and signed by or on behalf of each of the parties.
12.2 In the event of any conflict between the T&C's and the SOW, the terms in the SOW shall apply.
12.3 Neither party may assign or transfer the Agreement without the other's prior written consent, except to an affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets, provided the assignee assumes all obligations under the Agreement.
12.4 Any notice or other communication required under this Agreement shall be in writing and may be sent by email (with confirmation of receipt) or by first class prepaid post to Balance at 10 Anson Road, #10-11 International Plaza, Singapore 079903, for the attention of the Directors, or to you at the address set out in the applicable SOW. A notice sent by post shall be deemed received two working days after the date of posting.
12.5 A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 2001 to enforce any term of the Agreement.
12.6 No partnership or joint venture is intended or created by the Agreement, and neither party shall have authority to act as agent for, or to bind, the other party. We shall not represent ourselves as having any authority to negotiate or make commitments on your behalf.
12.7 Each party shall, and shall procure that its personnel shall, comply with all applicable anti-bribery and anti-corruption laws in connection with the Agreement, and shall provide reasonable documentation to evidence such compliance on request.
12.8 A waiver of any right or remedy under the Agreement is effective only if it is in writing and applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
12.9 If any provision of the Agreement (or part of any provision) is found by a court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions shall not be affected.
12.10 Clauses 5 (Intellectual Property), 8 (Warranties and Indemnity), 10 (Confidentiality) and 13 (Governing Law and Dispute Resolution), together with any other provision that by its nature should survive, remain in effect after termination or expiry of the Agreement.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 The Agreement, and any dispute or claim arising out of or in connection with it, shall be governed by and construed in accordance with the laws of Singapore.
13.2 [Option A — Litigation, as currently published:] The parties hereby submit to the exclusive jurisdiction of the Courts of Singapore.
13.2 [Option B — Arbitration, recommended given your international client base:] Any dispute arising out of or in connection with the Agreement which cannot be resolved amicably through good-faith discussions within 30 days shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre ("SIAC") in accordance with the SIAC Arbitration Rules for the time being in force. The seat of arbitration shall be Singapore, the language shall be English, and the proceedings shall be confidential.
(Pick one of the two 13.2 options above before publishing — see note in my message.)
14. DEFINITIONS
The following terms shall have the following meanings:
Agreement: these T&C's together with the applicable SOW, forming the entire agreement between the parties for a project.
Balance IPRs: has the meaning given in Clause 5.4.
Client Materials: all content materials, data, scripts, images and information in any form created or generated by you and supplied by you to us or on your behalf.
Confidential Information: has the meaning given in Clause 10.1.
Deliverables: the specific deliverables as set out in the SOW.
Force Majeure: any event that is not reasonably insurable including, but not limited to, any act of government, war, industrial dispute, strikes (of its own or other employees), breakdown of machinery or equipment, accident, fire, inability to obtain supplies and raw materials, or any other cause beyond the parties' control.
IPRs: intellectual property rights including copyright, design rights, trade mark rights, database rights, moral rights, patents, service marks, applications for any of the foregoing, trade or business names, topography rights, know-how, secret formulae and processes, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, rights in confidential information, and all other rights of a like nature worldwide (registered or not).
Services: the creative and visual production services described in Clause 1.1, as further specified in the applicable SOW, and includes the Deliverables.
SOW: a quote or Statement of Work provided by Balance and agreed with the Client, setting out project-specific scope, Deliverables, fees and timeline.
Third-Party Materials: has the meaning given in Clause 5.6.