SMITH TERMS AND CONDITIONS

1. Contract

1.1 All quotations or estimates given, orders accepted and Contracts (as defined below) entered into by Smith with a client (‘you’ or ‘your’) for supply by Smith of design and communication services, public relations services, marketing and recruitment literature design, website design and other services (‘Services’) are subject to these conditions of supply (‘Conditions’) which shall apply to the exclusion of all other conditions whether express or implied by law or otherwise. No variation of these Conditions will be effective unless agreed to in writing by an authorised representative of Smith.

1.2 No estimate, proposal,quotation or other document issued by Smith is an offer to sell the Services capable of acceptance by you to form a contract between Smith and you. Your order for the Services (constituted by your signing off the proposal document or by other means including, but not limited to, placing a purchase order with Smith) shall be deemed placed upon these Conditions and shall constitute an offer to purchase the Services which Smith may accept or reject. Smith may accept your order in writing or by other means, including, for example, by commencing the performance of the Services specified in the order. If Smith accepts your offer, there shall be a binding contract between Smith and you (‘Contract’).

1.3 It is your responsibility to obtain authority or purchase order numbers (where required) from your purchasing department or any other representative of yours from whom approval is required prior to placing an order with Smith, and Smith shall not be responsible for any failure by you to obtain any such authority or approval prior to placing an order for the Services with Smith.

1.4 Smith’s employees or agents are not authorised to make any representations concerning the Services unless such representations are confirmed by Smith in writing. In entering into the Contract you acknowledge that you do not rely on any such representations which are not so confirmed.

2 Specifications

2.1 You shall be responsible to Smith for ensuring the accuracy of the terms of any order (including the proposal document and any applicable specification for the Services) submitted by you, and for giving to Smith all necessary information and facilities (including access to premises) relating to the Services within a sufficient time to enable Smith to perform the Contract in accordance with its terms.

2.2 The specification for the Services shall be that set out in Smith's proposal or cost estimate documents or as otherwise agreed in writing by Smith.

3 Price and Payment

3.1 The price of the Services shall be the price quoted by Smith. The price of the Services excludes Value Added Tax and any other sales tax or duties of any kind payable on the Services, which you shall pay to Smith in addition to the price.

3.2 Smith reserves the right to charge you in addition to the price of the Services for travelling and other expenses reasonably incurred by Smith in carrying out the Services.

3.3 Unless otherwise agreed, you shall pay the price of the Services in full without any deduction or set-off within 30 days (including weekends) of the date of Smith’s invoice for the Services. Time for payment shall be of the essence and if you fail to make any payment on the due date then, without prejudice to any other right or remedy available to it, Smith shall be entitled to:

3.4.1 charge you interest on any overdue sum both before and after any judgement on a day-to-day basis at the rate of 4% over National Westminster Bank plc base rate from time to time from the date such sum becomes payable until it has been paid in full together with interest; and/or

3.4.2 terminate the Contract; and/or

3.4.3 suspend or cancel any further supply to you of the Services, whether under this or any other contract.

3.5 You shall indemnify Smith against all costs and expenses (including any legal costs and expenses) incurred by Smith in recovering sums due to you.

4 Intellectual Property

4.1 Unless otherwise agreed, no rights of ownership in any copyright, trade name or mark or any other intellectual property created by Smith in connection with the Services shall pass to you as a result of the supply of the Services to you and any such intellectual property shall be and remain the exclusive property of Smith or its suppliers. You may use such intellectual property rights for the purposes set out in the proposal document and for no other purposes unless otherwise agreed by Smith. You warrant that you own or have the rights to use all designs and other materials supplied by you to Smith for the purposes of Smith carrying out its obligations under the Contract.

4.2 In addition, Smith specifically own the right to use any such copyright, trade name or mark or any other intellectual property created by Smith in connection with the Services for the purpose of the promotion of Smith, its services or products, including but not limited to publication of the Services or part thereof on Smith’s website, marketing materials or portfolio.

5 Performance

5.1 Any dates for provision of the Services are approximate only. Smith shall use reasonable endeavours to meet such dates but so long as it uses such reasonable endeavours it shall not be liable to you in contract, tort or otherwise for any delay in performance.

6 Warranty and Limitation of Liability

6.1 Smith warrants that it will perform all Services under the Contract with reasonable care and skill and, where the Services include the provision of website graphics, code or other deliverables, such graphics code and other deliverables will conform in all material respects to the relevant specification. If Smith is shown to be in breach of this warranty in relation to particular Services then it shall at its option re-perform such Services free of charge, or fix, patch or otherwise remedy any material defects in website graphics, code and other deliverables or refund to you all sums paid to Smith in respect of such Services as do not conform to such warranty.

6.2 The warranty contained in Clause 6.1 is conditional upon your giving written notice of any alleged defect in the Services to Smith within 7 days of the delivery to you of text, graphics, code and other deliverables produced by Smith as part of the Services.

6.3 Smith does not exclude or limit its liability in negligence for death or personal injury or otherwise insofar as any exclusion or limitation of Smith's liability is void, prohibited or unenforceable by law.

6.4 Subject as expressly otherwise stated in the Contract, Smith gives no warranties and makes no representation in relation to the Services or otherwise in relation to the Contract and all such warranties and representations, whether express or implied by law or otherwise, are excluded.

6.5 Subject to Clause 6.3, and as otherwise expressly provided in these Conditions, in no event shall Smith be liable to you, in contract, in tort or otherwise for any consequential loss or damage whatsoever and howsoever caused arising in any way out of or in connection with the Contract and including (without limitation) any loss of profit, business, revenue, goodwill or anticipated savings.

6.6 In the event that notwithstanding the provisions of this clause 6, Smith is found liable for any loss or damage, the entire liability of Smith shall in no event exceed the sum of monies already paid to Smith by you for the Services under the contract.

7 Indemnity

7.1 If any claim is made against you that the Services infringe the copyright of any third party, Smith shall indemnify you against all losses, liabilities, costs and expenses in respect of such claim provided that you:

7.1.1promptly notify Smith in writing of any potential claim of which you have notice and provided that you make no admission and incur no costs or expenses in relation to such claim without Smith’s written consent, and

7.1.2 allow Smith to conduct and settle all negotiations and proceedings arising out of such claim, all costs incurred or recovered in such proceedings being for Smith's account; and

7.1.3 give Smith all reasonable assistance for the purpose of such negotiations of proceedings and;

7.1.4 use your best endeavours to recover under any insurance policy which you may have in relation to such infringement and account to Smith for any sums recovered under such policy.

7.2 Smith’s obligations under Clause 7.1 shall not apply to any infringement claim in respect of Services provided in accordance with your designs, instructions or specification and in such circumstances you shall fully and effectively indemnify Smith against all losses, liabilities, costs and expenses incurred by Smith as a result of any claim that any such Services infringe the intellectual property rights of any third parties.

8 Your Insolvency

8.1 If you are unable to pay your debts as they fall due, cease to carry on business or become bankrupt or insolvent or any steps are taken by any person with a view to your winding-up or dissolution or you enter into any composition or arrangement for the benefit of your creditors, or any trustee, liquidator, receiver or similar officer is appointed over your assets, Smith shall be entitled (without any liability to you arising) to cancel or suspend performance of the Contract and if Services have been supplied but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

9 Charges or Cancellation

9.1 No amendments to or cancellation of all or any part of the Contract shall be permitted unless expressly agreed by Smith in writing. Where there is an agreed amendment or cancellation, you shall , unless otherwise agreed in writing, indemnify Smith against all loss, liability, costs, claims and expenses arising out of such amendment or cancellation.

10 Termination

10.1 If you fail to carry out any of your obligations under the Contract, Smith may immediately terminate the Contract by giving written notice to you. Termination of the Contract for whatever cause shall be without prejudice to Smith’s right to payment for Services supplied under the Contract and without Prejudice to any other right or remedy available to you.

11 General

11.1 Any dispute or claim of whatever nature arising out of or relating to these Conditions or the Contract shall be governed by the laws of England and both parties submit to the non-exclusive jurisdiction of the English courts in respect of any controversy or claim arising out of or in connection with the Contract.

11.2 Smith shall not be liable for failure to perform any of its obligations where that failure is due to illness or incapacity, industrial dispute, acts or delays of suppliers or sub-contractors, non-availability of materials or any other cause beyond the reasonable control of Smith.

11.3 You shall not without the prior written consent of Smith assign or transfer the benefit or burden of the Contract or any part of it. Smith may sub-contract any or all of its obligations under the Contract and assign the Contract.

11.4 Failure by Smith to exercise or enforce any rights under the Contract shall not amount to a waiver of those rights. No waiver of any terms of the Contract by Smith shall be deemed a waiver of any other term of the Contract.

11.5 If the whole or any part or an provision of the Contract is determined to be invalid or unenforceable then such provision or part shall be severed from the body of the Contract which shall continue to be valid and enforceable to the fullest extent permitted by the law.

11.6 You agree to maintain secret and confidential information obtained from Smith pursuant to the Contract or prior to and in contemplation of it and all other information that it may acquire from Smith as a result of the performance of the Contract. All rights in such information shall remain the property of Smith and may not in whole or in part be submitted, disclosed, copied or otherwise made use of by you or any third party without the prior written consent of the Company.