Interpretation

1.1                Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in England are open for business.

Client: the person or firm who purchases the Goods and the Services from Outsmart.

Commencement Date: has the meaning set out in clause 2.3.

Conditions: these terms and conditions as amended from time to time in accordance with clause 16.8.

Contract: the contract between Outsmart and the Client for the supply of the Goods and the Services in accordance with these Conditions and the Project Brief.

Delivery Location: has the meaning set out in clause 5.2 and clause 5.3.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

In-put Material: all Documents, information and materials provided by the Client relating to the Goods and/or Services, including the in-put materials specified in the Project Brief.

Force Majeure Event: has the meaning given to it in clause 16.1(a).

Goods: the goods (or any part of them) set out in the Project Brief.

Goods Specification: any specification for the Goods, including any relevant In-put Material, that is agreed in writing by the Client and Outsmart as set out in the Project Brief.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Order: the Client’s order for the supply of the Goods and the Services.

Outsmart: Outsmart Agency Limited registered in England and Wales with company number 06992765 and whose registered office is located at Suite 10, Dunbar House, Sheepscar Court, Leeds LS7 2BB.

Outsmart Materials: has the meaning set out in clause 9.1(g).

Outsmart Website: http://outsmartagency.com.

Project Brief: the detailed brief setting out the Purpose, the estimated timetable and responsibilities for the provision of the Goods and the Services agreed in accordance with clause 3.

Purpose: the purpose of the Goods and/or the Services as set out in the Project Brief.

Services: the services supplied by Outsmart to the Client as set out in the Project Brief.

1.2            Construction. In these Conditions, the following rules apply:

(a)            a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b)            a reference to a party includes its personal representatives, successors or permitted assigns;

(c)            a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d)           any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e)            a reference to writing or written includes faxes and e-mails.

Commencement and basis of contract

2.1            Outsmart shall provide the Goods and/or the Services to the Client in accordance with these Conditions and the Project Brief in all material respects.

2.2            The Order constitutes an offer by the Client to purchase the Goods and the Services in accordance with these Conditions and the Project Brief.

2.3             The Order shall only be deemed to be accepted when Outsmart issues written acceptance of the Order or when Outsmart commences the supply of Goods and/or the Services (whichever is earlier) at which point and on which date the Contract shall come into existence (Commencement Date).

2.4             The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Outsmart which is not set out in the Contract.

2.5             Any samples, drawings, descriptive matter or advertising issued by Outsmart and any descriptions of the Goods or illustrations or descriptions of the Services contained in Outsmart’s case studies, brochures or the Outsmart Website are issued or published for the sole purpose of giving an approximate idea of the Goods and/or the Services described in them. They shall not form part of the Contract or have any contractual force.

2.6            These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.7             Any quotation given by Outsmart shall not constitute an offer, and is only valid for a period of 20 (twenty) Business Days from its date of issue.

2.8             All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

Project Brief

3.1             The Project Brief shall be agreed in the following manner:

(a)             the Client shall contact Outsmart with an Order requesting a Project Brief, setting out the requirements and specifications of the goods and/or services which it is requesting from Outsmart, including a description of what work is to be done, dates by which each stage of the work is requested to be started and finished, the Purpose, the Goods, In-put Materials and such other information as Outsmart may request to allow Outsmart to prepare a draft Project Brief;

(b)            Outsmart shall, as soon as reasonably practicable, provide the Client with a draft Project Brief which shall include the price for the Goods and the Services to be delivered to the Client; and

(c)             Outsmart and the Client shall discuss and agree the draft Project Brief and it shall become a Schedule to and subject to these Conditions.

3.2            Once the Project Brief has been agreed in accordance with clause 3.1(c), no amendment shall be made to it except in accordance with clause 16.8.

Goods

4.1             The Goods are described in the Project Brief.

4.2             The Client shall indemnify Outsmart against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Outsmart in connection with any claim made against Outsmart for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Outsmart’s use of the Goods Specification. This clause 4.2 shall survive termination of the Contract.

4.3             Outsmart reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.

Delivery of Goods

5.1             Outsmart shall use reasonable endeavours to ensure that:

(a)             each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Client and Outsmart reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(b)            if Outsmart requires the Client to return any packaging material to Outsmart, that fact is clearly stated on the delivery note. The Client shall make any such packaging materials available for collection at such times as Outsmart shall reasonably request. Returns of packaging materials shall be at Outsmart’s expense.

5.2           Subject to clause 5.3, Outsmart shall deliver the Goods to the location set out in the Project Brief or such other location as the parties may agree in writing (Delivery Location) at any time after Outsmart notifies the Client that the Goods are ready.

5.3           Notwithstanding clause 5.2, the Client may collect the Goods from Outsmart’s premises at Suite 10, Dunbar House, Sheepscar Court, Leeds LS7 2BB or such other location as may be advised by Outsmart before delivery (Delivery Location) within 3 (three) Business Days of Outsmart notifying the Client that the Goods are ready.

5.4           Subject to clause 5.5, delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

5.5           In the event that the Client collects the Goods in accordance with clause 5.3, then delivery of the Goods shall be completed on completion of loading of the Goods at the Delivery Location.

5.6            Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Outsmart shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Client’s failure to provide Outsmart with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.7             If Outsmart fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Outsmart shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Client’s failure to provide Outsmart with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

5.8             If the Client fails to accept or take delivery of the Goods within 3 (three) Business Days of Outsmart notifying the Client that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Outsmart’s failure to comply with its obligations under the Contract in respect of the Goods:

(a)              delivery of the Goods shall be deemed to have been completed at 9.00 am on the next Business Day following the day on which Outsmart notified the Client that the Goods were ready; and

(b)               Outsmart shall store the Goods until delivery takes place, and charge the Client for all related costs and expenses (including insurance).

5.9                If 3 (three) Business Days after Outsmart notified the Client that the Goods were ready for delivery the Client has not accepted or taken delivery of them, Outsmart may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Goods or charge the Client for any shortfall below the price of the Goods.

5.10            The Client shall not be entitled to reject the Goods if Outsmart delivers up to and including 5% (five per cent) more or less than the quantity of Goods ordered.

5.11             Outsmart may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.

Quality of Goods

6.1                Outsmart warrants that on delivery the Goods shall:

(a)                conform in all material respects with their description and any applicable Goods Specification;

(b)                be free from material defects in design, material and workmanship; and

(c)                be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

6.2               Subject to clause 6.3, if:

(a)               the Client gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;

(b)               Outsmart is given a reasonable opportunity of examining such Goods; and

(c)               the Client (if asked to do so by Outsmart) returns such Goods to Outsmart’s place of business at the Client’s cost,

Outsmart shall, at its absolute discretion, repair or replace the defective Goods, or refund the price of the defective Goods in full.

6.3                Outsmart shall not be liable for the Goods’ failure to comply with the warranty in clause 6.1 if:

(a)                 the Client makes any further use of such Goods after giving a notice in accordance with clause 6.2;

(b)                 the defect arises because the Client failed to follow Outsmart’s oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice;

(c)                 the defect arises as a result of Outsmart following any drawing, design or Goods Specification supplied by the Client;

(d)                the Client alters or repairs such Goods without the written consent of Outsmart;

(e)                the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

(f)                the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

6.4               Except as provided in this clause 6, Outsmart shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.

6.5               The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Outsmart under clause 6.2.

Title and risk

7.1                The risk in the Goods shall pass to the Client on completion of delivery.

7.2                Title to the Goods shall not pass to the Client until Outsmart has received payment in full (in cash or cleared funds) for:

(a)                the Goods; and

(b)                any other goods and/or services including but not limited to the Services that Outsmart has supplied to the Client.

7.3                Until title to the Goods has passed to the Client, the Client shall:

(a)                hold the Goods on a fiduciary basis as Outsmart’s bailee;

(b)                store the Goods separately from all other goods held by the Client so that they remain readily identifiable as Outsmart’s property;

(c)                not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d)               maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Outsmart’s behalf from the date of delivery;

(e)               notify Outsmart immediately if it becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l); and

(f)               give Outsmart such information relating to the Goods as Outsmart may require from time to time,

but the Client may resell or use the Goods in the ordinary course of its business.

7.4              If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l), or Outsmart reasonably believes that any such event is about to happen and notifies the Client accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Outsmart may have, Outsmart may at any time require the Client to deliver up the Goods and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.

8.                   Supply of Services

8.1                Outsmart shall use reasonable endeavours to meet any performance dates for the delivery of the Services specified in the Project Brief, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

8.2               Outsmart shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Outsmart shall notify the Client in any such event.

8.3               Outsmart warrants to the Client that the Services will be provided using reasonable care and skill.

Client’s obligations

9.1               The Client shall:

(a)               ensure that the information provided to Outsmart in relation to the Project Brief pursuant to clause 3.1(a) and the Goods Specification are complete and accurate;

(b)              provide Outsmart with such further information and materials as Outsmart may reasonably require to supply the Goods and/or the Services, and ensure that such information is accurate in all material respects;

(c)              co-operate with Outsmart in all matters relating to the Goods and/or the Services;

(d)              provide Outsmart, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by Outsmart to provide the Goods and/or the Services;

(e)             prepare the Client’s premises for the supply of the Goods and/or the Services;

(f)              obtain and maintain all necessary licences, permissions and consents which may be required for the Goods and/or the Services before the Commencement Date; and

(g)             keep and maintain all materials, equipment, documents and other property of Outsmart (Outsmart Materials) at the Client’s premises in safe custody at its own risk, maintain Outsmart Materials in good condition until returned to Outsmart, and not dispose of or use Outsmart Materials other than in accordance with Outsmart’s written instructions or authorisation.

9.2             If Outsmart’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

(a)              Outsmart shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Outsmart’s performance of any of its obligations;

(b)              Outsmart shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Outsmart’s failure or delay to perform any of its obligations as set out in this clause 9.2; and

(c)               the Client shall reimburse Outsmart on written demand for any costs or losses sustained or incurred by Outsmart arising directly or indirectly from the Client Default.

Charges and payment

10.1            The price for Goods shall be the price set out in the Project Brief. The price of the Goods is exclusive of all costs and charges of postage, packaging, insurance, and transport of the Goods.

10.2            The total price for the Services shall be the amount set out in the Project Brief. The price for the Services excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Outsmart engages in connection with the Services and the cost of services reasonably and properly provided by third parties and required by Outsmart for the supply of the Services. Such expenses and third party services shall be invoiced by Outsmart.

10.3            Outsmart reserves the right to increase the price of the Goods, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Goods to Outsmart that is due to:

(a)               any factor beyond the control of Outsmart (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)               any request by the Client to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

(c)               any delay caused by any instructions of the Client in respect of the Goods or failure of the Client to give Outsmart adequate or accurate information or instructions in respect of the Goods.

10.4            Subject to clauses 10.6 and 10.7, Outsmart shall invoice the Client on or at any time after completion of delivery of the Goods and/or the Services.

10.5            The Client shall pay each invoice submitted by Outsmart:

(a)               within 30 (thirty) days of the date of the invoice; and

(b)               in full and in cleared funds to a bank account nominated in writing by Outsmart, and time for payment shall be of the essence of the Contract.

10.6            Notwithstanding clauses 10.4 and 10.5, Outsmart shall invoice the Client in respect of internet website services on the date of commencement of delivery of such services. The Client shall pay each invoice submitted by Outsmart in accordance with this clause 10.6 in full and in cleared funds to a bank account nominated in writing by Outsmart as follows:

(a)              50% (fifty per cent) of the invoice on the date of the invoice; and

(b)              the remaining 50% (fifty per cent) of the invoice immediately upon completion of the delivery of the internet website services, and

time for payment shall be of the essence of the Contract.

10.7            Notwithstanding clause 10.4, Outsmart may at its absolute discretion raise interim invoices in respect of work carried out prior to completion of delivery of the Goods and/or the Services.

10.8            The Client shall pay all costs and charges of postage, packaging and transport of the Goods on or before the date of dispatch of the Goods in full and in cleared funds to a bank account nominated in writing by Outsmart and time for payment shall be of the essence of the Contract.

10.9            All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Outsmart to the Client, the Client shall, on receipt of a valid VAT invoice from Outsmart, pay to Outsmart such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

10.10         Without limiting any other right or remedy of Outsmart, if the Client fails to make any payment due to Outsmart under the Contract by the due date for payment (Due Date), Outsmart shall have the right to charge interest on the overdue amount at the rate of 4% (four per cent) per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

10.11         The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Outsmart in order to justify withholding payment of any such amount in whole or in part. Outsmart may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Outsmart to the Client.

Intellectual property rights

11.1            Subject to clause 11.4, all Intellectual Property Rights in the Goods and/or the Services shall be owned by Outsmart.

11.2            Subject to clause 11.4, on the date of payment in full and in cleared funds for the Goods and the Services in accordance with clause 10, Outsmart shall grant to the Client a non-exclusive royalty-free licence to use the Intellectual Property Rights in the Goods and/or the Services for the Purpose.

11.3            Subject to clause 11.4, the Client acknowledges that all Intellectual Property Rights in all documents and materials (including but not limited to the Outsmart Materials) which are used by Outsmart in the preparation of the draft Project Brief and/or in connection with any pitch to the Client (Preparation and Pitch Materials) shall be owned by Outsmart.  The Client shall not use any of the Preparation and Pitch Materials without the prior written consent of Outsmart.  This clause 11.3 shall remain in full force and effect notwithstanding termination of the Contract.

11.4            The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Goods and/or the Services and/or the Preparation and Pitch Materials, the Client’s use of any such Intellectual Property Rights is conditional on Outsmart obtaining a written licence from the relevant licensor on such terms as will entitle Outsmart to license such rights to the Client.

11.5            All Outsmart Materials are the exclusive property of Outsmart.

Confidentiality

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 12 shall survive termination of the Contract.

Limitation of liability

13.1             Nothing in these Conditions shall limit or exclude Outsmart’s liability for:

(a)               death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)               fraud or fraudulent misrepresentation;

(c)                breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

(d)               breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

(e)               defective products under the Consumer Protection Act 1987.

13.2            Subject to clause 13.1:

(a)              Outsmart shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b)             Outsmart’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price for the Goods and/or the Services.

13.3          Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

13.4          This clause 13 shall survive termination of the Contract.

Termination

14.1            Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)               the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 (fourteen) days after receipt of notice in writing of the breach;

(b)               the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c)              the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d)              a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

(e)               the other party (being an individual) is the subject of a bankruptcy petition or order;

(f)                a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 (fourteen) days;

(g)               an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

(h)               a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i)                a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j)                any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(b) to clause 14.1(i) (inclusive);

(k)              the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or

(l)                the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

14.2            Without limiting its other rights or remedies, Outsmart may terminate the Contract:

(a)              by giving the Client 1 (one) months’ written notice;

(b)              with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.

14.3           Without limiting its other rights or remedies, Outsmart shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and Outsmart if:

(a)              the Client fails to make pay any amount due under this Contract on the due date for payment; or

(b)             the Client becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l), or Outsmart reasonably believes that the Client is about to become subject to any of them.

Consequences of termination

On termination of the Contract for any reason:

(a)              the Client shall immediately pay to Outsmart all of Outsmart’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Outsmart shall submit an invoice, which shall be payable by the Client immediately on receipt;

(b)              the Client shall return all of the Outsmart Materials and any Goods which have not been fully paid for. If the Client fails to do so, then Outsmart may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(c)              the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(d)              clauses which expressly or by implication have effect after termination shall continue in full force and effect.

General

16.1            Force majeure:

(a)              For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Outsmart including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Outsmarts or subcontractors.

(b)              Outsmart shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

(c)               If the Force Majeure Event prevents Outsmart from providing any of the Goods and/or the Services for more than 4 (four) weeks, Outsmart shall, without limiting its other rights or remedies, have the right  to terminate this Contract immediately by giving written notice to the Client.

16.2           Assignment and subcontracting:

(a)             Outsmart may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b)             The Client shall not, without the prior written consent of Outsmart, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

16.3            Notices:

(a)             Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

(b)             Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

(c)             This clause 16.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

16.4           Waiver and cumulative remedies:

(a)              A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b)             Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.

16.5           Severance:

(a)             If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b)            If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

16.6           No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute  partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

16.7           Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

16.8           Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Outsmart.

16.9           Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.