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Definitions and Interpretation
“Agency” means SMART MEDIA
“Client” means the organisation stated in the project agreement
“Fees” means the payments due from Client to Agency set out in Schedule 1 of this Agreement or as amended by agreement between the parties from time to time.
“Initial Term” means the period specified in the project agreement
“Notice of Termination” means not less than 30 days notice in writing of termination to take effect at any time after the Initial Term.
“Services” means the services defined in the Project Agreement to be provided by the Agency to the Client.
“Project” the products and services to be delivered by the Agency to the Client as described in the Project Agreement
“Project Agreement” means the document (Order Confirmation/Service Agreement) signed by both parties confirming the quotation accepted by both parties.
“Term” means these Terms & Conditions
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Introduction
2.1. These Terms and Conditions (“Terms”) and the Project Agreement (together with any document specifically referred to in either as constituting part of the Agreement) shall constitute the entire agreement (“Agreement”) between the Parties in relation to the provision of Services and supersedes any and all previous agreements entered into between the Parties. No representation, warranty or other statement (whether in writing or otherwise) made by the Agency shall be of any effect (and is expressly disclaimed by the Agency) unless it has been specifically reduced into writing and set forth in the Terms or the Project Agreement. The minimum term of this agreement shall be the Initial Term and the Client shall be liable to pay the Fees in respect of the Initial Term in any event.
2.2. The Agreement shall not come into effect until the Project Agreement has been signed by a director of the Agency and a director or partner of the Client or some other person with the appropriate authority on behalf of the Client. The Client shall have accepted the Project Agreement by signing it or by accepting the provision of Services specified therein.
2.3. In the event of any conflict between the Terms and the Project Agreement, the Project Agreement shall take precedence over the Terms.
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Responsibilities of the Agency
3.1. General
SMART MEDIA will provide one or more Services as specified on the respective Schedule in consideration of the Customer paying the relevant charges. This Agreement shall apply to any additional Schedules or Service Orders. No other services will be provided or implied unless set out herein or in the attached schedule.
3.2. Facilities
The Agency shall provide the necessary computer equipment, communications facilities, software tools, stationery and other consumables that the Agency requires to perform the Services as part of the Project Agreement, unless otherwise specified.
3.3. Reports
The Agency shall produce reports to the Client, in the format specified in the Project Agreement, as and when reasonably required by the Client.
3.4. Domain Name Registration
The Agency acts on behalf of the Client to register and renew domain names. It is the Client’s responsibility to ensure that they adhere to the terms and conditions set out by the Naming Authority for Domain Names and that the Domain Name is renewed when it is due if the Client wishes to retain the use of the Domain Name.
3.5. Hosting
Hosting services are provided accordance with the Agency
3.6. Website Development
If a project timescale has been agreed with the Client, the Agency cannot be held liable for any costs incurred or loss of revenue by the Client if a deadline has not been met, for whatever reason.
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Responsibilities of the Client
4.1. The Client shall provide assistance and technical information to the Agency, as reasonably required by the Agency in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Agency and warrants and undertakes to the Agency that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
4.2. The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by the Agency. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by the Agency.
4.3. In the event that the Client fails to undertake those acts or provide those materials required under this clause within any agreed deadline (and at least within 15 Business Days of the date requested by the Agency) the Agency shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Project Agreement whether or not the Agency has been able to deliver them.
4.4. The Agency require that prior notice be given for any alterations relating to the Client’s website(s) that may affect the services supplied by the Agency. If alterations are made by the Client or a third party to the Client’s site(s) search engine placements may be affected and the Agency cannot be held responsible.
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Prices
5.1. Unless otherwise expressly stated, all prices shall be in Pounds Sterling and shall be exclusive of VAT and other duties. In the event that duties are introduced or changed after the conclusion of an Order, the Agency shall be entitled to adjust the agreed prices accordingly.
5.3. Whilst every effort is made to ensure that costing estimates are accurate, the Agency reserves the right to amend any estimate, should an error or omission have been made.
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Payment
6.1. The Agency shall invoice the Client for the Monthly Costs and Fees in advance on the 1st day of each month for the following month. The Client shall provide the Agency with cleared funds for the amount of that invoice within 30 days of invoice date, but in any event, before the first day of the month in which the Services are to be provided.
6.2. In the event of overdue payment, interest shall accrue on the invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at the rate of 2 per cent over the base rate of Barclays Bank Plc (whichever should be the higher). If the Agency undertakes any effort to collect payment due under this Agreement, the Client shall be liable for all costs associated with collection efforts, including legal fees.
6.3. In the event that the Client fails to make any payment of Fees due on its due date, the Agency shall have the right, at its discretion, to terminate this Agreement and withhold any or all further Services and/or to bring legal action to recover any sums due.
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Warranty and limitation on damages
7.1. The Client agrees to indemnify and hold the Agency harmless with respect to any costs, claims, losses or damages suffered by the Agency which results from the use of any trademarks, trade names, service marks, information or other material provided by the Client to the Agency.
7.2. Whilst the Agency shall use all reasonable efforts to ensure the accuracy of any data or other information or advice presented to Client under the terms of this Agreement, the Agency cannot guarantee that such data, information or advice is accurate or complete in all respects and accordingly cannot be responsible for any action or inaction undertaken by the Client as a result of the provision of such data, information or advice.
7.3. Whilst it is the aim of the Agency to maximise the performance of and traffic to the Client’s websites, the performance of the Services cannot guarantee specific results.
7.4. Neither party shall be liable to the other for any indirect or consequential loss or any loss of profit, business or opportunity.
7.5. Notwithstanding any other term of this Agreement, the maximum aggregate liability for Agency in respect of any matter arising from this Agreement shall be restricted to the sum actually paid to Agency in respect of the Services which are in dispute.
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Ownership rights
8.1. It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property, including text, images and representations, that they provide to the Agency for incorporation into the Services and the Client hereby grants to the Agency an irrevocable licence to use such Property for the purposes of providing the Services for the duration of the Agreement.
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Confidentiality
9.1. Both parties to this Agreement shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the other party, its employees, agents or subcontractors, and any other confidential information concerning the disclosing Party’s business or its products or its services which the receiving party may obtain. The receiving party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the receiving party. This clause shall survive termination of the Agreement.
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Entire agreement
The parties acknowledge and agree that the Agreement supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitute the entire agreement between the Agency and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
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Law and Jurisdiction
11.1. This Agreement shall be governed by and construed in accordance with the laws of England and any dispute arising from it or them shall be subject to the exclusive jurisdiction of the English courts.
