1. SCOPE  These Terms and the attached Proposal (together referred to as "the Agreement") shall apply to all the work carried out on behalf of the Client by or at the responsibility of Aardvark Creative (AC). The defined terms used in the Proposal shall have the same meaning throughout this Agreement. Authorisation to proceed with the Services whether verbal or in writing will constitute the Client's acceptance of this Agreement. Save as specified below this Agreement may be varied or excluded in whole or in part by written agreement signed on behalf of AC and the Client but not otherwise. Unless otherwise specifically agreed in writing AC shall not be regarded as the Client's agent for any purpose nor shall AC be regarded as having any relationship as partners but the Client and AC shall at all times be regarded as each contracting independently as principals.
   
   
2. CO-OPERATION  From the Commencement Date AC agrees to provide the Services to the Client for the Fee and otherwise in accordance with this Agreement. The Client agrees to supply AC with whatever assistance, information, sample products and materials which AC reasonably requests or which will assist AC to carry out the Services. AC shall not be responsible for loss of or damage to anything supplied by the Client unless the requirement to return it intact and in the same condition has been expressly stated in writing at the time when it was supplied. All documents, data and items of information supplied by the Client which are designed as confidential will be treated by AC as confidential to the Client and subject as provided below will not be shown or transmitted to any third party without written permission of the Client.
   
   
3. SUB-CONTRACTORS  AC reserves the right to employ, retain, discharge or replace at any time any sub-contractor or associate in carrying out the Services for the Client. AC shall be solely responsible for ensuring due performance by sub-contractors and associates and shall not be obliged to disclose their identity or supply any documentation relating to them. AC shall be entitled to disclose to any sub-contractor or associate any information supplied by the Client (whether designated as confidential or otherwise) provided that AC seeks similar confidentiality obligations from such
   sub-contractor or associate.
   
   
4. REMUNERATION  The Services shall be carried out by AC for the Fee. The Fee will be either on a retainer basis or project fee. In the absence of or until an agreement is reached, AC will charge for time spent on Client's business at hourly rates details of which are available on request. The Fee is inclusive of consultancy or management time, creative concept development, creative execution, creative direction and artwork. The Fee is exclusive of colour visuals and any other goods or services commissioned from sub-contractors or associates by AC on behalf of a Client, which will be charged as quoted by AC. Goods and services commissioned by AC are charged inclusive of a commission element unless or until a specific written agreement to the contrary exists. All goods and services are quoted exclusive of delivery charges and VAT.
   
   
5. BUDGET CONTROL  The Fee and all quoted expenses submitted by AC are prepared in good faith based on information available at the time and will be controlled in a proper and reasonable manner. However, the nature of the business is such that the Fee and all quoted expenses are subject to variation. Whilst AC shall inform the Client of all material changes to the Fee or expenses quoted AC cannot be held responsible for any reasonable costs incurred by, or on behalf of, a Client when carrying out the Services and all such costs and expenses are the responsibility of the Client.
   
   
6. PAYMENT  All Fees, expenses and other sums payable to AC by the Client shall be paid in every case within 21 days of the date of each invoice or demand submitted by AC. Without prejudice to any other right of AC, if payment is not made by the due date, then without prejudice to any other remedy available to AC:-
   
   AC may suspend some or all of its obligations under this Agreement until such time as the overdue sum has been received in full;
   
   AC may suspend or terminate the Client's right to use any original work granted under clause 13 of these Terms;
   
   all invoices raised by AC either in respect of the Services or other services supplied (or to be supplied) under any contract between AC and the Client shall become immediately due and payable in full notwithstanding the fact that such invoices may not have reached their respective due dates for payment specified in those contracts;
   
   AC may exercise its statutory right to claim interest and compensation for debt recovery costs under the late payment legislation on the overdue sum, from the day after the due date until the date of actual payment at the rate of 8% above the Bank of England base rate from time to time; and
   
   AC shall be entitled to a lien upon all documents products and materials belonging to the Client which are in its possession.
   
   Fees and expenses will be subject to value added tax and unless the contrary is expressly stated all quotations, estimates or statements of fees or expenses shall be deemed to be quoted exclusive of value added tax. Payment in advance of 50% on all first projects for new clients will be required as well as for goods or services where AC is unable to obtain normal credit from its sub-contractors and suppliers, when payment will be due upon presentation of invoice. The remaining balance is payable 21 days from date of invoice once the project is complete, or in stages if the project term exceeds 60 days in length (normally a further 25%). Where an invoice is disputed, AC must be notified in writing within 5 days of receipt of the invoice. If only part of the invoice is disputed, the balance shall be paid in accordance with the terms herein referred. Retainer fees will be invoiced upon the first day of the period to which they relate.
   
   
7. COSTS AND EXPENSES  AC will charge all reasonable out-of-pocket costs and expenses incurred when transacting business on behalf of the Client or attending meetings with or on behalf of the Client. Travelling expenses will be charged at AA quoted mileage rates, British Rail standard business class return fares, business class air fares or equivalent. Taxis, bikes and courier services used in connection with client business will be charged to the Client. Office charges such as photocopying, postage, telephone and secretarial services will not be charged, except where these arise directly from Client work.
   
   
8. DATA PROTECTION  AC is and for so long as may be required by law shall remain registered pursuant to the requirements of the Data Protection Act 1984 and Data Protection Act 1998. All data and information created by or acquired by AC relating to the Client or the business of the Client shall be the property of AC save where the same shall have been supplied to AC by the Client or specifically commissioned by the Client and paid for ("Client Data"). The Client shall at all times be entitled to hard copies of Client Data and (where available from AC's computers) tape or disc copies thereof, provided that the Client shall pay all reasonable costs of AC in connection with the manipulation or use of any data.
   
   
9. FORCE MAJEURE  If the performance of the Services is rendered wholly or substantially impossible or if the rights of AC or the Client in relation to it are wholly or substantially diminished by reason of force majeure then the further obligations of both parties shall terminate forthwith. In such case(s) the Client shall pay to AC all chargeable fees and expenses incurred to that date of termination and AC shall forthwith terminate all contracts entered into by it with sub-contractors or other third parties in relation to the Services. The Client shall indemnify AC against all losses, expenses, damage and liabilities incurred or suffered by AC arising out of the termination of such contracts.
   
   
10. TERMINATION  This Agreement shall commence on the Commencement Date and continue until terminated on not less than 28 days notice to the other or otherwise in accordance with this clause. Either party may terminate this Agreement at any time by written notice to the other if:
    
    the other commits a material breach of any of the provisions of this Agreement and in the case of a breach capable of remedy fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
    
    an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the other;
    
    the other makes any voluntary arrangement with its creditors or becomes subject to an administration order;
    
    that other goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this agreement);
    
    The rights to terminate this Agreement given by this clause shall be without prejudice to any other right or remedy of any party in respect of the breach concerned (if any) or any other breach.
    
    
11. CONSEQUENCES OF TERMINATION  Upon the termination of this Agreement for any reason:
    
    AC shall forthwith cease to provide any of the Services;
    
    the Client shall within 21 days of the date of termination pay the Fee (or where the Agreement is terminated prior to the completion of the Services - such proportion of the Fee as represents the work carried out by AC or on its behalf to the date of termination); and
    
    within 28 days following the payment of the Fee in accordance with this clause AC shall return to the Client any documents supplied by the Client and any items produced by or on behalf of the Client in accordance with the Services.
    
    
12. AC PERSONNEL  It is a condition of AC's acceptance of any assignment that the Client will not employ or retain or seek to employ or retain any employee, associate or sub-contractor of AC engaged on or connected with the assignment whether on behalf of the Client or any other company, directly or indirectly. This restriction is to apply at all times during the employment of AC of the employee, associate or sub-contractor concerned and for a period of six months immediately following the termination of such employment.
    
    
13. COPYRIGHT  All copyright or other intellectual property right in any original work produced by or on behalf of AC as part of the Services shall be the exclusive property of AC and the Client shall have no right title or interest in such original work, unless otherwise agreed in writing between AC and the Client, save for the rights expressly granted under this clause. Upon payment of the Fee and any expenses or other sums due from the Client to AC under this Agreement the Client shall have a perpetual non-exclusive non-transferable licence to use such original work for the purposes for which the Services were supplied. The Client shall not sub-licence or assign any of the rights granted under this licence without AC's prior consent in writing. Nothing in this Agreement will prevent AC from assigning, licensing or otherwise parting with possession of any of its rights in such original work.
    
    
14. CONTRACTUAL LIMITS  AC shall not as part of the Services be required to produce any matter which in its reasonable opinion is or may be of an illegal or libellous nature or an infringement of the proprietary rights or other rights of any third party. The Client shall indemnify AC against all costs claims expenses and other liabilities arising out of or in connection with any infringement of copyright or other intellectual property right contained in any material provided to AC by or on behalf of the Client.
    
    Statements, assumptions, forecasts and opinions expressed by AC in anticipation of or during an assignment, whether verbal or written, are made in good faith and on the basis of the information before AC at the time. None is to be taken to be in any circumstances a representation, undertaking, warranty or contractual condition. AC shall carry out the Services with reasonable care and skill and will take all reasonable care to ensure that a promotional scheme or other activity proposed in relation to the Services does not contravene any relevant legislation, regulations or code of practice nor infringe the rights of any third party. However AC does not actually or impliedly warrant that there will be no such contravention or infringement, and shall not be held responsible or liable therefore by the Client.
    
    Where a date for completion of the Services or delivery of any work is specified in the Proposal AC shall use its reasonable endeavours to complete the Services or deliver such work by that date but time for completion or delivery shall not be of the essence of this Agreement.
    
    AC's entire liability arising out of this Agreement shall not exceed the total Fee paid by the Client to AC. Notwithstanding the forgoing, AC shall not be liable for any indirect or consequential loss or damage (whether for loss of profits or otherwise) whether caused by AC's negligence or otherwise which arise out of or in connection with this Agreement.
    
    Nothing in this Agreement shall have the effect of excluding or limiting AC's liability for death or personal injury arising out of its negligence or otherwise as prohibited by law.
    
    
15. APPROVAL OF MATERIAL  All work produced by or on behalf of AC as part of the Services shall be submitted to the Client for approval before final production. Within 14 days from the date of receipt of such work the Client may suggest variations to the work in accordance with the Services agreed. Where the Client approves the Work (or if the Client fails to respond within the requisite 14 days in which case the Client's approval shall be deemed to have been given) AC shall proceed to production. In addition to the fee, the Client shall indemnify AC for all costs and expenses incurred by AC as a result of it implementing any variations to such work requested by the Client after approval of that work has been given (or is deemed to be given).
    
    
16. CONSTRUCTION  These terms of business and all documents matters and arrangements to which they refer shall be construed and have effect in accordance with the laws of England, and AC and the Client hereby submit to the exclusive jurisdiction of the English Courts.
    
    
17. SEVERANCE  Illegality and/or enforceability of any of these terms and conditions shall not affect the illegality and/or enforceability of the balance of these terms and conditions.
    
    
18. ENTIRE AGREEMENT This Agreement constitutes the entire agreement and understanding between AC and the Client with respect to its subject matter and the terms of this Agreement shall supersede any previous agreements. AC and the Client acknowledge and agree that in entering into this Agreement it does not rely on and shall have no remedy in respect of any statement representation warranty or understanding (whether negligently or innocently made) of any person (whether a party to this Agreement or not) other than as may be expressly set out in this Agreement. Nothing in this Agreement shall operate to limit or exclude any liability for fraud.

Updated March 2008