Smart Arts (UK) Ltd trading as Applied Digital Marketing Standard Business Terms
Definitions
Scope: This document defines the general terms (and provides additional explanation to clarify and amplify those terms) that shall apply to all consultancy agreements and retainer contracts involving Smart Arts (UK) Ltd.
The parties: Smart Arts (UK) Ltd of England (hereinafter known as ‘Smart Arts’) and the client: 'the client' is the party with whom a contract of supply exists.
Intellectual Property: Non software
The copyright in all artwork and copy and other non-software work produced by Smart Arts rests initially with Smart Arts. The client will not use, without permission and payment of fees, any ideas or creative work. The client will return proposal documents and other material to Smart Arts if requested.
On payment by the client of the relevant consultancy fees and charges in full, the copyright of any work created by Smart Arts is deemed to be assigned to the client, unless other arrangements are made.
Intellectual Property: Software and websites
In terms of software code, on payment of consultancy fees, the client is issued a perpetual license to use the software in a single instance. The client does not own the intellectual property and does not have the right to duplicate or resell either the bespoke aspects of the code or the base modules this work is derived from.
The client is free to transfer the code away from Smart Arts’ servers and maintain, enhance, and modify the software code provided this is not to resell or duplicate it.
Client or its agents will not be granted access to Smart Arts’ servers to make any modifications to code or for any other reason..
Work Execution
Smart Arts shall execute the Work, as indicated in the Proposal, in a professional manner, to best industry practice and in accordance with the standard contract conditions given below.
Terms Of Payment
The client shall pay Smart Arts for the Work as specified in the proposal for work as agreed in writing . Payment shall be made to Smart Arts bank account as stated on the invoice unless otherwise stipulated in the Agreement.
The client shall give Smart Arts 15 days written notice of any disputed items in the invoice. The undisputed part of the invoice shall be settled according to the conditions below.
In the case of work carried out in countries other than the UK prices quoted are exclusive of local taxes.
Payment shall be made within 30 days of invoice unless otherwise agreed in writing. In the event of any payment being delayed beyond this date, Smart Arts reserve the right to charge a penalty under the Late Payment of Commercial Debts (Interest) Act 1998 and to disable any online presence relating to the client. In the event of any debt requiring to be pursued the client shall be responsible for the full costs incurred in the pursuance of said debt.
Any credit issued to the client under this agreement is subject to a maximum limit of £10,000. Any credit granted shall expire and shall no longer be available for use six (6) months from the date of issue. It is the customer's responsibility to monitor their credit balance and expiry date. Unused credits will not be refunded or extended beyond this period.
Changes
The client shall be entitled, upon 7 days written notice, to request an adjustment to the Agreement thereby requesting a change in the Scope of Work, provided that such variation request shall not exceed what Smart Arts could reasonably have foreseen at the start of this Agreement.
All change orders shall be in writing and shall clearly define the changes requested.
The additional Work involved will be billed as agreed in writing between the Parties.
The change will be implemented when both Parties are in agreement regarding the extent of and start of the additional Work and the payment thereof.
Termination
Unless otherwise agreed both the client and Smart Arts shall have the right to terminate this Agreement at any time upon 30 days written notice of such termination to the other Party.
In the event of termination, the client shall reimburse Smart Arts for any and all Work performed up to the time of termination, including all costs and expenses incurred as a consequence of such termination. Smart Arts shall also receive a termination fee to be negotiated in addition to the amount outstanding for work performed.
For training courses, cancellation of a confirmed booking will incur a cancellation charge of 50% of the fee (if cancelled within 28 days of the course start date) and 100% of the fee (if cancelled within 14 days of the course start date).
Confidentiality
Client and Smart Arts mutually agree not to disclose to any third Party without prior written consent of the other Party, any confidential information obtained from each other during the execution of the work.
However, each Party shall be free to disclose such information as is known to one Party before being disclosed by the other Party
Client and Smart Arts may disclose information gained from the other Party to its subcontractors without prior written consent to the extent necessary to complete the Work, provided that written confidentiality agreements are made with such subcontractors.
The obligations of both Parties as defined in this article shall apply notwithstanding the completion of the Work or termination of this Agreement.
Liability And Indemnity
The Parties shall mutually indemnify and hold the other Party harmless form and against any and all claims in connection with the Work as a result of (a) the death of or personal injury to the relevant Party's employees, representatives or subcontractors, or, (b) the loss of or damage to property of the relevant Party, the Party's employees, representatives or subcontractors howsoever caused, excepting only gross negligence and/or wilful misconduct of the relevant Party.
Notwithstanding liability pursuant to 7.1 and 7.2, neither client nor Smart Arts shall be liable to the other Party or to any third Party for loss of earnings or profit or other consequential damages or losses as a direct or indirect result of the Work.
Smart Arts maximum cumulative liability for breach of contract and for any delays in the Work shall be limited to the contractual compensation for the Work or parts of the Work.
Client and Smart Arts agree that the application of the results of the Work shall be at the user's sole risk.
Each Party shall immediately notify the other Party of any circumstance rendering the above sub-articles effective. All claims in connection with this Agreement must be submitted within 12 months of completion date in order to be valid.
Force Majeure
Failure to perform the Work or a delay in the performing of the Work shall not constitute a breach of contract of such failure or delay is due to an act of war, natural disaster, fire, explosion, any event beyond the control of the Party affected with the Party had no reasonable way of preventing or grounds to anticipate. The affected Party shall immediately notify the other Party in writing of the causes and expected duration of any such occurrence.
Law
This agreement shall be subject to and interpreted in accordance with the Laws of England. Any dispute to arise in connection with the Agreement, which cannot be settled through negotiation, shall be finally settled by arbitration in London in accordance with the Arbitration Acts of 1996 and 1950 as amended
Recruitment of Personnel
Each party undertakes not to attempt to solicit or procure the services of staff employed by the other party who are involved in the performance of this contract during the course of this contract and for a period of six months thereafter without the written permission of the other party.
The client agrees to pay Smart Arts a 'finders fee' should the client recruit a Smart Arts consultant to a paid employment position within two years of the conclusion of any work on behalf of the client by that Consultant or of that Consultant being introduced to the client whichever is the later.
In respect of this clause, the definition of 'Consultant' shall include all Smart Arts employees and Associates that are involved in the provision of services to the client under this or any other contract.
The 'finders fee' shall be 30% of the first year's gross remuneration payable by the client or its Associates to the Consultant.
Web Hosting and Domain Names.
We shall not be held liable for any loss or damages caused by the use or misuse, unavailability or removal of services.
If your account is closed, all files (including web pages, etc.) will be deleted.
To protect your privacy we never distribute your name or e-mail address to any third parties.
Upon the client’s request Smart Arts may act as client’s agent and use all reasonable means to register and reregister domain names. The contract for the domain name is between the client and the relevant Naming Authority and Smart Arts shall not be held liable for any loss or damages over and above the cost of the Naming Authority cost caused by the failure to register any domain name, for whatever reason.
Client or it’s agents will not be granted access to Smart Arts’ domain control panel to make changes
Web Page Content
Client will be responsible for obtaining the legal permission for any content your site includes and ensuring that the contents of these pages do not violate UK law.
Client will be held responsible for and accept responsibility for any defamatory, confidential, secret or other proprietary material available via your page(s).
Smart Arts reserves the right to remove material deemed inappropriate from your web pages, without prior notice. We do not allow adult, warez or illegal content on our servers.
Upon the client’s request Smart Arts may act as client’s agent and use all reasonable means to register and reregister domain names. The contract for the domain name is between the client and the relevant Naming Authority and Smart Arts shall not be held liable for any loss or damages over and above the cost of the Naming Authority cost caused by the failure to register any domain name, for whatever reason.
Modifications to these terms
We reserve the right to amend and update these Terms and Conditions at any time without notice.