Terms and Conditions
Legal Status
We act in all our contracts as a principal at law.
Duration of Agreement
(a) The appointment of us by the client will be for a minimum period of 12 months (but without prejudice to Clause 5 below). At any time after 6 months, this agreement may be terminated by either party giving the other not less than 6 months’ written notice.
(b) In the event of termination of this Agreement, for whatever reasons, the client will be responsible for all fees due to us including costs, expenses and disbursements incurred by us on behalf of the client up to and including any notice period and any non-cancellable commitments incurred by us beyond such notice period.
(c) The client agrees to pay additional compensation to us in the event that work for a future project(s) or programme(s) prepared by us at the request of the client during the period of this Agreement are subsequently implemented in whole or in part by the client and his agency.
Charges
(d) We operate on a standard rate of commission for all media advertising bookings of 17.65 per cent on the net amount charged to us by UK media (equivalent to 15 per cent of the gross charge)
(e) For overseas advertising services our standard rate of remuneration included in the gross charge to the client, is 25 per cent of the net sum charged to us by the media (equivalent to 20 per cent of the gross charge). The client will be charged for all overseas media insertions at the rate of exchange applicable when we pay the supplier and the client will immediately reimburse us for any bank charges, currency conversion charges and similar expenses incurred by the agency in relation to the client’s overseas advertising.
(f) As well as the fees referred to above disbursements and incidental expenses will be charged to the client and Value Added Tax will be charged in respect of such fees, disbursements and expenses where appropriate.
(g) When the service rendered by us is largely of an advisory nature. Or when the expenditure is likely to be small, a supplementary fee is agreed in advance.
(h) All fees and charges will be invoiced in sterling and will be subject to review by us annually.
Terms of Payment
Our terms are strictly 28 days after invoice. Failure to settle by the due date as stated on the relevant invoice entitles us to impose a 2% surcharge on all amounts due from the due date.
Following current industry practice all non-TV media charges will carry a surcharge of 0.1 per cent of gross space cost to cover the levy to the Advertising Standards Board of Finance and 0.3% levy on all distribution (JIC Mail levy)
We are insured against credit risks and all clients must be, and continue to be, acceptable to our insurers in respect to the sums involved from time to time. If our insurers revise or withdraw cover of a client, our terms of payment will be revised and notified to the client.
Where an invoice remains unpaid for more than three months we reserve the right to cancel forthwith, without prejudice to any outstanding liabilities, this Agreement and any subsisting contracts relating to commitments on behalf of the client by giving written notice to the client to that effect. We reserve the right to charge a fee for work in progress and any losses suffered by us as a result of such cancellation.
Approvals and Authority
(a) Approvals – The Client will provide a list of authorising signatures for advertising campaign or other projects. Smart Media will always verify the client’s signature as being authorised before undertaking works.
After this verification process for work on an advertising campaign or other project is completed, we will submit to the client for specific approval:
– Media schedules for time, space and other facilities, and
– When requested, estimates for the cost of the various other items that may be involved.
The client’s approval of media schedules (with estimates if requested) will be our authority to make reservations and contracts for space, time and other facilities under the terms and conditions required by media or suppliers. We will notify the client of any changes in the rates or conditions of media or suppliers, of which we are notified and which affect the client’s advertising.
(b) Authority – Authority given by the client shall constitute the client’s undertaking that we will be reimbursed for the liabilities that we incur under such authority.
Cancellations and Amendments
The client may request us to change, reject, cancel or stop any and all plans, schedules and work-in-progress, and we shall take all reasonable steps to comply, provided that we can do so within our contractual obligations to media, the suppliers and other clients.
The client will reimburse us for any charges or expenses incurred by us as a direct or indirect result of any such change, rejection, cancellation or stopping (which would include any premium payments associated with such production work) and shall also pay our fees covering these items.
Liability and Indemnity
(a) We shall not be liable under any circumstances in any manner howsoever for any costs, expenses, loss or damage except (but without prejudice to the following provisions of this Clause 7) where the same are the direct result of our negligence or our wilful default.
(b) If, due directly to war, terrorist action or threatened action, hostilities, strikes, industrial action, lock-outs, accident, civil commotion, fire, blockage, import or export embargo, natural catastrophe Act of God or any other matter of a similar nature affecting us, our staff, our management, outside suppliers, media owners or other relevant parties, we fail to carry out the services contemplated by this Agreement (or any part thereof) such failure shall not constitute a breach of this Agreement and we shall not be liable in any manner howsoever for any costs, expenses, loss or damage which may be incurred by the client directly or indirectly as a result of such failure,
(c) The client shall fully and effectually indemnify us and keep us so indemnified at all times against all proceedings, threatened proceedings, claims, demands, penalties, fines and civil liabilities of whatsoever nature (and all costs and expenses incurred in connection therewith and all costs incurred in connection with any criminal liabilities, proceedings or threatened proceedings) which may at any time be incurred by, imposed on or asserted against us in any way relating to or arising directly or indirectly in any manner out of, or in connection with, any work of whatever nature prepared by us for the client and approved orally or in writing by the client prior to publication, transmission of commencement or production.
(d) We will not be liable for any indirect or consequential loss (including loss of profits) to the client or for any loss to the client arising from claims of whatever nature by third parties.
(e) We will take all reasonable precautions to safeguard the client’s property entrusted to our care, but we will not be responsible in any manner howsoever, for its loss, damage, destruction or unauthorised use except where the same is a direct result of our negligence or wilful default.
(f) Any claims against us arising as a result of damage, delay or loss of goods in transit must be submitted in writing to us and the carrier so as to reach the carrier and us within three days of delivery and claims for non-delivery within twenty-eight days of despatch of the goods. All other claims must be made within ten days of delivery.
Brief
The client agrees to give a full and clear brief to us and ensure that all the facts given about the product and service are accurate and in no way misleading. The client agrees to inform us without delay if it considers that any claim or trade description in any advertisement submitted to the client by us is false or misleading in relation to the client’s product or service.
Copyright and Other Rights
The copyright for all purposes in all work created by us for the client vests in us, unless arrangements are made to the contrary.
If the client so requests, and provided that all obligations arising from this Agreement (including those relating to the period of notice) have been met, such copyright as we have will be assigned to the client on termination of this Agreement.
We shall, however, retain the copyright in any material prepared for the client but which is not used by the client.
Ownership and Custody of Material
(i) Ownership – All material prepared for the client’s account by us and paid for by the client will be the client’s property, but not necessarily the client’s copyright.
(j) Custody – We will keep in our care documents, samples, advertising or other materials entrusted to us as the client’s property, but will not be required to recover items from media owners and suppliers once we have parted with them which the client hereby authorises us to do.
We shall be entitled to destroy all such material left in our custody for more than two years, or after giving notice to the client at such earlier time as we consider reasonable.
Insurance
The client will insure its property when in the possession of, and when in transit between us, the media and other outside suppliers and sub-contractors. Alternatively, and if the client so requests in writing, we will insure the client’s property and recharge the premiums to the client.
Confidential Information
We acknowledge a duty not to disclose without the client’s permission during or after our term of appointment any confidential information resulting from studies or surveys commissioned and paid for by the client. The client, in turn, acknowledges our right to use as we see fit any general marketing or advertising intelligence in the field of the client’s product or service that we have gained in the course of our appointment.
During the continuance of this contract, we acknowledge our responsibility to treat in complete confidence all the marketing and sales information and statistics with which the client may supply us in the course of any work for the client. Reports and unpublished or unimplemented specific proposals containing confidential information submitted by us to the client shall be treated as confidential.
Standards
We abide by the codes of conduct and rulings (as appropriate) of the Advertising Standards Authority, the British Code of Advertising Practice, the Code of Advertising Standards and Practice for Radio and Television, the Institute of Practitioners in Advertising, and the other codes and standards laid down voluntarily within the industry to ensure that all publicity placed by us is legal, decent, honest and truthful.
Employee Solicitation
It is agreed that neither party will offer employment to employees of the other party during the period of contract or within six months of its cessation
Law and Jurisdiction
All contracts between the client and us are governed by and construed in accordance with English law and any litigation for enforcement or redress shall be brought in the courts of England