1. TERMS AND CONDITIONS
1.1 These terms and conditions form a binding contract between the the Client ("The Client") and "Smart Video Ltd" which shall constitute the entire agreement between The Client and Smart Video Ltd and apply to any trading agreement or other contract or arrangement between The Client and Smart Video Ltd ;
1.2 These terms apply to the exclusion of all other terms or conditions of contract The Client may propose and shall not be varied unless agreed in writing, signed by Smart Video Ltd.
2. Smart Video Ltd
2.1 In consideration of the payment by The Client to Smart Video Ltd of the Fees as set out in the Registration Form, Smart Video Ltd agrees to provide to The Client the goods and services described on the "Get Started" page in accordance with the Proposal (where one exists), with reasonable and due care in accordance with and subject to these terms.
2.2 Smart Video Ltd undertakes that the Works shall be faithful to the basic conceptualisation of the underlying works, pitch or Proposal (where one exists) and reflect the same standards of quality and integrity.
2.3 This Agreement shall not give rise to any exclusive relationship and nothing in this Agreement shall prevent Smart Video Ltd acting for or providing works the same or similar to the Works to any third party.
2.4 It is agreed and understood that any activities undertaken by The Client (or by any third party on its behalf) which is in relation to or similar to the Works, including without limitation any modification of the Works or the The Client's web site or the use of or inclusion of any third party product or service which might relate to the Works shall interfere with the provision of the Works by Smart Video Ltd and affect the results, outcomes and positions in search engines. All such things should be discussed with Smart Video Ltd prior to implementation and The Client shall not do implement the same without the prior written consent of Smart Video Ltd. Remedy of such matters shall be dealt with by way of Change.
3. The Client
3.1 The Client will co-operate with and act in good faith towards Smart Video Ltd and, on request, undertake such acts and provide such source materials as Smart Video Ltd are to incorporate into the Works, or as Smart Video Ltd require to carry out its obligations hereunder.
3.2 In the event that The Client does not undertake those acts or provide those Materials required under clause 3.1 above within a reasonable time (and at least within 3 months) of being requested to do so, including without limitation carrying out any changes, modifications or optimisations to The Client's web site or other Materials as requested, recommended or required by Smart Video Ltd, Smart Video Ltd shall be entitled to invoice for the remaining Works as if The Client had done so whether such are provided or not.
4. PAYMENT
Payment shall be monthly in advance as appropriate and Smart Video Ltd shall be entitled to withhold or suspend the Works until such time as it receives the Fees or other payments due including, in respect of the first month's Works, receiving the Fees for that month prior to commencement.
5. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
5.1 All copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world wide whether registered or not of whatever nature in material devised, created or commissioned by Smart Video Ltd in supplying the Works and under this Agreement will vest in and belong to Smart Video Ltd.
5.4 The Client undertakes that it will keep secret and confidential the terms of this Agreement and any information supplied by Smart Video Ltd in connection with this Agreement or the business of Smart Video Ltd.
5.5 The Client undertakes to Smart Video Ltd to indemnify and hold harmless Smart Video Ltd in full and defend at its own expense Smart Video Ltd against all costs, damages and losses incurred by Smart Video Ltd arising out of its use of the Materials or breach by The Client of this clause 5.
5.6 The Client shall not modify, adapt or translate the Works except with the prior written consent of Smart Video Ltd or as otherwise permitted by law where all modifications, adaptations, translations shall belong to and vest in Smart Video Ltd unless otherwise agreed and specified in writing.
5.7 Smart Video Ltd warrants that it will use reasonable efforts to ensure that the Works do not infringe the copyright of any third party.
7. LIABILITY AND WARRANTY
7.1 Subject to Clause 7.2 below, Smart Video Ltd's liability for any loss or damage direct or otherwise and howsoever caused whether in tort (including negligence) or contract or otherwise shall not exceed the amount invoiced by Smart Video Ltd to The Client.
7.2 Smart Video Ltd shall not be liable to The Client for any consequential loss or damage.
7.3 When instructions or advice are given or received orally by Smart Video Ltd, it shall have no liability to The Client for any misunderstanding or misrepresentation which may arise in relation thereto except in relation to fraudulent misrepresentations.
7.4 Smart Video Ltd shall have no liability to The Client in respect of the Materials. On completion of the Works The Client agrees to collect the Materials within 2 months of completion of the works, failing which, Smart Video Ltd may dispose of them on giving The Client 14 days notice.
7.5 Smart Video Ltd liability shall be limited to using reasonable skill and care in the supply of the Works. In particular Smart Video Ltd shall not, except in the case of gross negligence and wilful or deliberate act, be liable for:
7.5.1 any loss or damage caused by it being given access to The Client's computer systems (which shall only be required where necessary) including without limitation any remote servers to which it has access or stores data or any unauthorised access to or use of the same including without limitation for any misuse of any passwords, logins or accounts of The Client,
7.5.2 any interference in or modification of the Works or The Client's web site by The Client or any third party or the consequences thereof, remedy of which shall be as a Change.
7.6 Smart Video Ltd undertakes to provide the Works with reasonable skill and care, however Smart Video Ltd cannot give any warranty or representation as to positions within search engines due to the operation of such being out of its control.
8. LEGISLATION
The Client shall comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Works.
9. RISK AND TITLE
9.1 Risk in any reports or information delivered to The Client will pass to The Client on dispatch and until payment in full has been received in cleared funds by Smart Video Ltd in respect of the Works, title in any physical products delivered to The Client shall remain with Smart Video Ltd.
9.2 The Client shall take out such insurance as shall be prudent against all risks usually incurred in respect of the Work whilst in its possession or control.
10. TERMINATION
10.1. Smart Video Ltd shall be entitled to immediately restrict, suspend or terminate the Works and The Client's use of any Works and or terminate this Agreement upon The Client's material breach of this Agreement (including without limitation the non-payment of any sum as and when due) unless The Client remedies such breach within 14 days of its occurrence.
10.2 Smart Video Ltd will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Smart Video Ltd including without limitation Internet outages, communications outages, fire, flood, war or act of God.
10.3 The Client may not unilaterally cancel its order of the Works or otherwise terminate this Agreement (except for material breach by Smart Video Ltd of a fundamental term of this Agreement) at any time without full payment of the Fees.
10.4 During the course of this Agreement and for a period of 12 months afterwards, The Client shall not solicit the staff of Smart Video Ltd or entice them to transfer their employment or services.
11. GENERAL
11.1 Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
11.2 If any part of this Agreement is or becomes unenforceable, such part will at Smart Video Ltd option be construed as far as possible to reflect the parties' intentions and the remainder of the provisions will remain in full force and effect.
11.3 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
11.4 The Client shall not assign the benefit or burden of this Agreement without the prior written consent of Smart Video Ltd.
11.5 The USA shall be considered the place of first publication of any material on the internet.
11.6 No person who is not a party to this Agreement shall be entitled to enforce any of the terms.
11.7 These Terms are made in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.
Smart Video Ltd. 40 Normandy Way, Walker Lines Industrial Estate, Bodmin, PL31 1HH
Company No: 7427354
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