TERMS AND CONDITIONS – Account Based Marketing Services Agreement – United States
1.1 The following definitions and rules of interpretation apply in this Agreement:
‘Affiliate’ means in respect of a party to this agreement, any legal entity which controls, is controlled by or is under common control with that party.
‘Agency’ means Agent3 LLC, a California limited liability company with offices located at 100 Montgomery Street, Suite 1202, San Francisco, CA 94104.
‘Agency Materials’ means those Materials specifically created by the Agency for the purposes of the Services by or on behalf of the Agency (including any Materials adapted, modified or derived from the Client Materials) and which may be incorporated into Deliverables during the Term.
‘Agency Proprietary Materials’ means software, including the Platform, (including all programming code in object and source code form), methodology, know-how and processes and Materials (including any Insights to the extent these are not created specifically for the Client), in relation to which the Intellectual Property Rights are owned by (or licensed to) the Agency and which are: (i) in existence prior to the date on which it is intended to use them in connection with the Services; or (ii) created by or for the Agency outside of the Services and which are intended to be reused across its business.
‘Agreement’ means the Scope of Work and these terms and conditions.
‘Associates’ means a party’s employees, officers, agents, sub-contractors or authorized representatives.
‘Authorized Client Entities’ means any Affiliates of the Client which are named as Authorized Client Entities on the Scope of Work.
‘Authorized Users’ means those officers, employees, agents and independent contractors of the Client and each other Authorized Client Entity who are Authorized by the Client to use the Services and the Insights.
‘Business Day’ means a day (other than a Saturday or a Sunday or major US federal holiday) on which the clearing banks and major US stock exchanges are open for business.
‘Client’ means the party specified in the relevant Scope of Work.
‘Client Data’ means information uploaded to the Platform by or on behalf of the Client.
‘Client Materials’ means any data (including the Client Data), client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other materials or information that are provided to the Agency and/or its Associates by or on behalf of the Client.
‘Commencement Date’ means the date set out in the Scope of Work.
‘Data Controller’ (or ‘Controller’), ‘Data Processor’ (or ‘Processor’), ‘Data Subject’, ‘Personal Data’ all have the meaning given to those terms in GDPR (and related terms such as ‘process’ have corresponding meanings).
‘Data Protection Legislation’ means the Data Protection Act 2018, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003, GDPR, and all applicable laws and regulations relating to processing of Personal Data and privacy so far as they are still in force, including where applicable the guidance and codes of practice issued by the Information Commissioner.
‘Deliverables’ means any advertising, data and Insights, creative and other materials which are to be provided by the Agency as specified in the Scope of Work, including Agency Materials, Third Party Materials and Agency Proprietary Materials where applicable.
‘Expenses’ means any expenses and out of pocket costs as set out in the Scope of Work or as agreed between the parties in advance, in accordance with clause 7.
‘Fees’ means any amounts payable to the Agency (including any License Fee) payable for the Services as set out in the Scope of Work or as detailed in this Agreement.
‘GDPR’ means the Regulation (EU) 2016/679 of the European Parliament and of the Council of the 27 April 2016 on the protection of natural persons with regards to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time.
‘Holding Company’ means a company formed to control other companies, usually confining its role to owning voting stock and supervising management.
‘Initial License Term’ means the initial term of any Subscription Service beginning on the Commencement Date as set out in the Scope of Work.
‘Insights’ means the content made available to the Client through the Services.
‘Intellectual Property Rights’ or ‘IPRs’ means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration: (i) any patents or patent applications; (ii) any trade marks (whether or not registered); (iii) inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; (iv) copyright or design rights (whether registered or unregistered); (v) database rights; (vi) performer’s property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world; (vii) any goodwill in any trade or service name, trading style or get-up; and (viii) any and all other intellectual or proprietary rights.
‘License Fees’ means the fees payable by the Client to Agency for any Subscription Service, as detailed in the Scope of Work.
‘License Term’ means, with respect to any Subscription Services, the Initial License Term together with any subsequent Renewal Periods agreed between the parties.
‘Malware’ means a computer program (in any form) or a device, which is designed to cause, or is deployed for the purpose of causing, or actually has the effect of causing, damage or mischief to any computer or its owner or operator or any third party, or to suborn or bypass its security, or to retard or degrade its performance, or to facilitate criminal acts or acts of industrial espionage, digital vandalism or “hacktivism”.
‘Materials’ means any artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights, but not including any software.
‘Normal Business Hours’ means 8:00 am to 6:00 pm local time, each Business Day.
‘Platform’ means any Agent3 platform or app operated by Agency.
‘Renewal Period’ unless otherwise stated in the Scope of Work, means the period of 12 months commencing on (i) the expiry of the Initial License Term and (ii) each anniversary of the expiry of the Initial License Term.
‘Scope of Work’ means the scope of work document or similar document agreed and signed by both parties containing a description of the relevant Services and incorporating these terms and conditions.
‘Security Incident’ means unauthorized acquisition, access, use or disclosure of Company’s Personal Data.
‘Services’ means the services to be provided by the Agency under this agreement, including the provision of any Deliverables and/or any Subscription Services, as set out in the Scope of Work.
‘Subsidiary’ means a company that belongs to another company, which is referred to as the parent company or holding company.
‘Sub Processor’ means another Data Processor engaged by the Agency for carrying out processing activities in respect of the Personal Data on behalf of the Agency.
‘Subscription Services’ means the subscription to any Platform provided by Agency to the Client which allows the Client to access Insights, as specified in the Scope of Work
‘Support Services’ means the Agency’s level of support for any Subscription Services as specified in Agency’s support policy as amended and updated from time to time.
‘Term’ has the meaning given in clause 3.1.
‘Third Party Contracts’ has the meaning given in clause 7.2.
‘Third Party IP Claim’ has the meaning given to it in clause 1.17 of Schedule 1
‘Third Party Materials’ means those Materials created by a third party and included in any Deliverables, but which excludes software which is owned or licensed by a third party.
‘Use’ means (i) in respect of any Platform, only those acts of connecting to it, logging in to it, accessing it and interacting with it as are consistent with its ordinary intended usage as described in the Scope of Work; and (ii) in respect of any Insights made available through any Platform, only the acts of downloading them, creating a reasonable number of copies of them, combining reasonable extracts from them with other material to create combined works, and distributing those copies and/or combined works within the internal organization of the Client and/or a relevant Authorized Client Entity, and in each and all cases solely for the internal business purposes of the Client and/or the Authorized Client Entities.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A ‘person’ includes a natural person, or corporate or unincorporated body (whether or not having separate legal personality).
1.4 Where the context so requires, words in the singular shall include the plural and vice versa, and words denoting one gender shall include all genders.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and includes any subordinate legislation in force made under it.
1.6 If there is any conflict or direct inconsistency between any of the documents comprising this Agreement, they will prevail according to the following order of precedence: (i) the Scope of Work (but only to the extent of such direct inconsistency); and (ii) these terms and conditions.
1.7 Any words following the terms including, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.8 Except where stated otherwise, a reference to ‘writing’ or ‘written’ does not include email or fax.
2. Appointment & scopes of work
2.1 The Agency shall provide the Services to the Client on the terms and conditions of this Agreement during the Term.
2.2 The parties may amend the Scope of Work by agreement in writing between the parties.
2.3 Any dates specified in the Scope of Work for delivery of Services shall be estimates only and time shall not be of the essence in this Agreement.
3.1 This Agreement shall commence on the Commencement Date and shall continue:
(a) with respect to any Subscription Services, for the License Term; and
(b) otherwise until terminated in accordance with clause 14 or as otherwise set out in the Scope of Work (‘Term’).
4. Agency’s Obligations, Representations & Warranties
4.1 The Agency represents and warrants and that:
(a) it has full power and authority to enter into this Agreement;
(b) it shall perform the Services with reasonable skill and care, using suitably qualified personnel, to a standard no less than that to be reasonably expected of a competent agency of similar size and resources;
(c) the use by the Client of any Materials to be provided by the Agency in connection with the Services (but excluding any IPRs in any Client Materials incorporated in the Deliverables) in accordance with this Agreement and for the purposes set out in the Scope of Work will not infringe the copyright of any third party.
4.2 The Agency hereby indemnifies the Client against any losses, costs or expense incurred by the Client as a result of breach by the Agency of its warranty in clause 7.1(c).
4.3 Save to the extent expressly agreed in a Scope of Work, the relationship between the parties is non-exclusive and the Agency shall therefore be entitled to provide any services or deliverables the same or similar to the Services (but for the avoidance of doubt, only without using any Client Materials) to any third party subject always to clause 10 (Confidentiality).
4.4 Subject to clause 10.2, the Agency shall not be liable for:
(a) any failure to generate media coverage or public interest for the Client, or any failure or delay in publication or transmission in any media, or any third-party error in publication, as these are ultimately out of the Agency’s control, and the Client acknowledges that payment of the Fees and Expenses is not conditional upon such;
(b) any loss or damages arising as a result of any information or materials supplied or approved by the Client; or
(c) any loss or damages arising from the withdrawal or alteration of any third-party product or service.
5. Client’s Obligations, Representations & Warranties
5.1 The Client represents and warrants that:
(a) it has full power and authority to enter into this Agreement;
(b) the Client Materials will not, when used in accordance with this Agreement and any written instructions given by the Client, infringe any third party Intellectual Property Rights;
(c) to the best of its knowledge and belief, the Client Materials will comply with all applicable laws and regulations;
(d) the Client Materials that it provides to Agency in connection with the performance of the Agreement are accurate and complete; and
(e) it is the beneficial owner of, or is entitled to provide the Agency with, the Client Materials.
5.2 The Client undertakes to:
(a) provide the Agency with full and clear instructions as to its requirement for the Services and all information, materials and assistance required for the proper performance of the Services;
(b) promptly supply to the Agency (at no charge) any Client Materials reasonably required by the Agency or otherwise necessary to provide the Services and shall ensure that it has all rights and licenses in place to enable use by the Agency of all Client Materials;
(a) comply with, and (where the Services includes any Subscription Services) procure that each Authorized User complies with, all applicable laws and regulations with respect to its activities under this agreement;
(b) use the Services only for the purposes for which they were provided, and not modify or alter any material or information provided by the Agency without the Agency’s written consent;
(c) keep the Agency informed of any matters related to the Client which will, or could, have an impact on the Agency’s performance of the Services;
(d) keep, maintain and insure any of the Agency’s equipment in good condition and not dispose of or use such other than in accordance with the Agency’s written instructions;
(e) promptly inform the Agency if the Client considers that any Services or materials provided to the Client by the Agency for approval are false or misleading or in any way contrary to law or applicable advertising regulation; and
(f) permit the Agency to attend meetings, when reasonably necessary, with any advertising or marketing services agencies and other advisers engaged by the Client;
(g) where the Services includes any Subscription Services:
(i) ensure that the Authorized Users use any Platform in accordance with the terms and conditions of this agreement and any other reasonable instructions given by Agency to the Client, and shall be responsible for any Authorized User’s breach;
(ii) ensure that its network and systems comply with the relevant specifications provided by Agency from time to time; and
(iii) be solely responsible for procuring and maintaining its network connections and telecommunications links, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links.
(h) not use any information obtained through the Services (including the Insights and any Deliverables) for any purposes or in any manner that is illegal or improper, including, without limitation, the following:
(i) to illegally ‘spam’ anyone or to sell, give, make available or otherwise distribute information to a spammer or for the purpose of spamming;
(ii) for unethical marketing activities;
(iii) to associate, attribute, collect, store, distribute or otherwise process any non-business information related to anyone;
(iv) to communicate with anyone using language or in any manner that is sexually explicit, profane, pornographic, immoral, obscene, vulgar, offensive, violent, dangerous, harmful, threatening, abusive, harassing, hateful, discriminatory, or racially, ethnically or otherwise objectionable;
(v) to prepare or compile information that is distributed in any manner or form to any third-party;
(vi) to enhance, verify, supplement, append, confirm, or modify any compilation of information that is thereinafter distributed in any manner or form to a third-party;
(vii) in connection with any individual credit, employment, or insurance decision;
(viii) to disclose or solicit the private, non-business, information of any person;
(ix) for sale, re-sale, sub-license, commercial use, or redistribution of any kind, without Agency’s prior written consent.
5.3 If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents the Agency from performing any Services in accordance with this Agreement, the Agency will be relieved of its obligations to the Client, and the Agency shall not be liable for any losses, costs or expenses incurred by the Client as a result of any such failure.
6.1 In consideration of the provision of the Services by the Agency, the Client shall pay the Fees to the Agency together with any Expenses.
6.2 If it is agreed that work shall be undertaken by the Agency outside the scope of the Scope of Work, the Agency will charge for such work by time spent and in accordance with the hourly rates listed in the Agency’s prevailing rate card as may be communicated to the Client from time to time.
6.3 Unless set out otherwise in the Scope of Work, the Fees and (if applicable) the Expenses shall be invoiced to the Client monthly in advance. Where applicable VAT will be charged to the Client at the prevailing rate.
6.4 Unless set out otherwise in the Scope of Work, the Client shall pay the Agency, in full and in cleared funds within 30 days of the date of each invoice.
6.5 In the event of any amendment to the Scope of Work by the Client (as agreed between the parties):
(a) the Fees payable to the Agency in respect of the amended Services shall not decrease below the level of Fees that would have been payable had the Services not been amended, save with the prior written approval of the Agency; and
(b) the Client shall reimburse the Agency for any charges or expenses to which the Agency is committed as a result of the amendment, including but not limited to any cancellation charges imposed by suppliers.
6.6 Without prejudice to any other right or remedy that it may have, the Agency may charge interest on any overdue sum from the due date for payment at an annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing daily from the due date for payment until the date on which the Agency receives payment together with all accrued interest. The Agency may also without liability to the Client suspend the Services (including with respect to any Subscription Services, disabling the Client’s and/or the Authorized Users’ password, account and access to all or part of any Platform) until payment for overdue sums has been made in full (during which period, for the avoidance of doubt, the Fees will remain payable in full).
6.7 If any payment of the Fees or Expenses is subject to tax (whether by way of direct assessment or withholding at its source), the Agency shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to the Agency of the Fees and Expenses after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
6.8 If the Agency is required to purchase anything other than in US dollars, it shall charge the Client at the exchange rate (which shall be the mid-point rate as quoted in the following day’s Financial Times) in operation on the date on which the Agency makes the purchase. If the Agency is required to invoice the Client other than in US dollars, the amounts shall be calculated in US dollars, and shall be charged to the Client based on the exchange-rate in operation on the date on which the Agency issues the invoice (which shall be the mid-point rate as quoted in the following day’s Financial Times), unless set out otherwise in the Scope of Work.
6.9 Notwithstanding clause 6.6, all sums payable to the Agency under this Agreement shall become due immediately on its termination.
7.1 Any Expenses incurred and not set out in the Scope of Work will be agreed in advance with the Client and will be payable at cost plus a handling charge of 17.65% of the cost.
7.2 The Agency enters into contracts with third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts”).
7.3 Provided that the Agency has notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts:
(a) the Client hereby acknowledges that its right to use or otherwise benefit from any Services or deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts;
(b) any charges or liabilities (to the extent caused by an act or omission of the Client or its affiliates or any third party acting for or on its behalf) for which the Agency is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and
(c) the Client hereby indemnifies, and keeps indemnified, the Agency against any losses, costs and expenses caused by any act or omission of the Client which puts the Agency in breach of any such Third Party Contracts.
7.4 The Agency shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and if authorized by the relevant third party.
8.1 For the purposes of this Agreement, any reference to ‘written approval’ shall include letter, fax, e-mail, purchase order, or the Client’s signature on a particular document that has been submitted for approval.
8.2 The Agency will seek the Client’s written approval for all draft press releases, proofs, copy, layouts, photographs, artwork, articles or announcements, or for any other material that it is to make public on the Client’s behalf, and will not subsequently seek to publish any of the above until it has obtained such written approval.
8.3 The Agency may rely on written approval from any employee of the Client, unless the Client has previously provided written notice in the manner stipulated by clause 17 that a particular employee is not authorized to give valid written approval.
8.4 The Client’s written approval of media schedules and estimates will be the Agency’s authority to make reservations and contracts for space, time and other facilities under Third Party Contracts.
8.5 The Agency will promptly advise the Client of any changes in the estimated cost of media or any other material changes to anything previously approved by the Client.
8.6 The Client will not give written approval for anything which it knows, or ought reasonably to know, contains inaccurate, unlawful or defamatory material. The Client undertakes to notify the Agency immediately if it believes that any statement in a document submitted by the Agency to the Client for written approval is misleading or could give rise to any claim or action against the Agency, whether for defamation, infringement of any right, or otherwise.
8.7 The Client hereby indemnifies, and keeps indemnified, the Agency against any costs, any claims or proceedings, or any demands, arising out of or in connection with anything approved in writing by the Client.
8.8 In the event of any delay or failure of the Client giving approvals (or disapprovals) requested under or in connection with this Agreement, the Agency will not be liable for any resulting delays or adverse impact caused to the delivery of any Services.
9. Intellectual Property Rights
9.1 The Agency acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services) shall remain vested in the Client or its licensors. The Client hereby grants to the Agency a non-exclusive license during the Term to use the Client Materials solely for the purposes of providing the Services.
9.2 Subject to the remaining provisions of this clause 9 and subject to the Agency receiving payment of all Fees attributable to the Agency Materials the Agency hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Agency Materials which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the Agency Materials.
9.3 The Client acknowledges that all Intellectual Property Rights in the Agency Proprietary Materials shall be owned by and remain the property of and vested in the Agency. Subject to the Agency receiving payment of all Fees attributable to the Agency Proprietary Materials licensed under this clause 9, the Agency hereby grants to the Client a license to use such Agency Proprietary Materials as are included in any materials provided by the Agency under the Scope of Work, for the period of time and for the purposes set out in the Scope of Work.
9.4 Prior to delivery of any materials to be provided by the Agency under the Scope of Work, the Agency shall obtain such licenses or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Scope of Work. The Agency shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies, and keeps indemnified, the Agency against any losses, costs and expenses suffered by the Agency as a result of the Client or its Affiliates breaching any such restrictions.
9.5 The Agency agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 9.
9.6 Notwithstanding any of the above and save as otherwise expressly provided for in the Scope of Work, the Agency shall:
(a) be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on the Agency’s website, in credentials pitches and in its showreel. Any other use by the Agency shall be subject to the Client’s prior approval; and
(b) retain all know how obtained in connection with the Services.
9.7 During the Term, if the Agency is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 9, the Agency shall retain ownership of all Intellectual Property Rights in any Materials forming part of the pitch process, save to the extent that the Agency is successful in such pitch and the parties agree that such Materials will be used in accordance with Services to be provided under the Scope of Work.
9.8 For the avoidance of doubt, the Agency shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.
10.1 Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
10.2 Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
10.3 Confidential Information shall exclude information which:
(a) at the time of receipt by the recipient is in the public domain;
(b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
(c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or
(d) is already known to the recipient before receipt hereunder.
10.4 Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorize or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.
10.5 Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
10.6 The Client acknowledges that nothing in this Agreement shall affect the Agency’s right to use as it sees fit any general intelligence gained by the Agency in the course of its appointment.
10.7 Neither party shall be in breach of this clause 10 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that, to the extent practicable and permissible, the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
10.8 The terms of and obligations imposed by this clause 10 shall survive the termination of this Agreement for any reason.
11. Subscription Services
Schedule 1 of this agreement shall apply to the extent that the Services includes any Subscription Services.
12. Limitation of Liability
12.1 Subject to clause 12.2, the Agency’s maximum aggregate liability under or in connection with this Agreement (including all Scopes of Work):
(a) whether in contract, tort (including negligence) or otherwise, but excluding under any indemnity, shall in no circumstances exceed the lower of: (i) US $1,000,000; or (ii) the amount paid or payable by the Client to the Agency in the 12 month period preceding any event giving rise to liability; and
(b) in the case of any indemnity contained in this Agreement, shall in no circumstances exceed US $1,000,000.
12.2 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its willful misconduct, gross negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
12.3 Subject to clause 12.2, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement (and including for the avoidance of doubt any indemnity contained in this Agreement) for:
(a) any loss (whether direct, indirect or consequential) of profits, sales or business, agreements or contracts, anticipated savings or goodwill;
(b) loss of use or corruption of software, data or information; or
(c) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.4 Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the following process in the event that a third party claim arises:
(a) the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
(b) the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
(c) the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defense of the claim;
(d) the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and
(e) if within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defense, compromise or settlement of the claim as it sees fit.
12.5 The Client acknowledges that any Subscription Service and the Insights are provided to the Client on an “as is” basis and accordingly the Client assumes sole responsibility for the results obtained from its use of the Subscription Service and the Insights, and for conclusions drawn from such use. Agency shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Agency by the Client in connection with the Services, or any actions taken by Agency at the Client’s direction.
12.6 Save as expressly set out in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
13. Data protection
Each party shall comply with Data Protection Legislation with regards to its obligations under this Agreement and shall comply with the terms of the Data Processing Schedule at Schedule 2 of this Agreement.
14.1 Subject to clause 14.4, either party may terminate this Agreement for convenience on 90 days’ written notice.
14.2 Subject to clause 14.4, without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if the other party:
(a) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
(b) commits a material breach of this Agreement and (if such a breach can be remedied) fails to remedy it within 30 days of being notified in writing of the breach;
(c) suspends (or threatens to suspend) payment of its debts or the continuation of all or a substantial part of its business, is unable or deemed unable to pay its debts as they fall due, begins negotiations with any class of its creditors with a view to rescheduling any of its debts, is the subject of a court order for winding-up, has a receiver appointed over its assets (or entitles any person to appoint one), or enters into any compromise or arrangement with its creditors or is the subject of a notice, resolution or order for or in connection with its winding-up (other than for the sole purpose of a solvent amalgamation or solvent reconstruction); or
(d) 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 those outlined in clause 14.2(c)
(e) if there is a change of control of the Client (where “control” has the meaning given to it in s1124 of the Corporation Tax Act 2010), and the person gaining control of the Client is, or controls, a direct competitor of Agency.
14.3 The termination or expiry of any License Term with respect to any Subscription Services shall not affect any other Services under the Scope of Work or this Agreement.
14.4 On termination of this Agreement for any reason:
(a) the Client shall immediately pay the Agency for all of the Agency’s outstanding unpaid invoices, and, in respect of Services supplied and Expenses incurred but not yet invoiced, and the Agency may submit invoices, which shall be payable immediately on receipt;
(b) each party shall return all the other party’s equipment; and
(c) the accrued rights and liabilities of the parties as at termination, and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
(d) all licenses granted under this agreement shall immediately terminate;
(e) Agency may destroy or otherwise dispose of any of the Client Data in its possession unless Agency receives, no later than 60 days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Agency shall use reasonable commercial endeavors to deliver the back-up to the Client within 30 days of its receipt of such a written request. The Client shall pay all reasonable expenses incurred by Agency in returning or disposing of Client Data.
14.5 On termination of this Agreement, clauses 9, 10, 12, 14, 15 and 19 shall survive and continue to have full force and effect.
15.1 During this Agreement and for 12 months after its termination, neither party shall, without the other party’s written consent, solicit or entice, or attempt to solicit or entice (or encourage a third party to solicit or entice), any person who, at any point in either the preceding six months or the six months before termination (as applicable), was employed or engaged by the other party in the provision or receipt of the Services other than by means of a national advertising campaign open to the general public and not specifically targeted at any of the staff of the other party.
15.2 A party recruiting a person in breach of clause 15.1 above shall immediately pay to the other party a sum representing 30% of the gross annual salary of the person recruited (calculated in relation to the salary that the employee was earning while employed by the non-defaulting party).
16. Force majeure
16.1 A party shall not be in breach of this Agreement, or be liable for any failure or delay in performance of any obligations under this Agreement (except in the case of a failure to pay), where such failure or delay arises or is attributable to acts, events, omissions or accidents beyond its reasonable control (‘Force Majeure’), including but not limited to fire, accidental damage, natural disaster, war, terrorist attack, riots, failure of machinery, computers or vehicles, industrial action, non-performance by suppliers or subcontractors (excluding companies in the same group as the party seeking to rely on this clause), or interruption or failure of utility service.
16.2 A party subject to Force Majeure shall not be in breach of this Agreement provided it could not have avoided the effect of Force Majeure by taking precautions which it ought reasonably to have taken, and provided it promptly notifies the other party of the existence and nature of the Force Majeure, and uses reasonable endeavors to mitigate the effect of Force Majeure.
16.3 If Force Majeure continues for more than 30 consecutive days, either party may terminate this Agreement immediately by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring before such termination.
17.1 A notice (other than a notice in any legal proceedings) given by one party to the other under this Agreement will be properly served if it is in English and sent to the appropriate address noted below.
17.2 The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:
|Delivery method||Deemed delivery date|
|Delivery by hand||On signature of a delivery receipt.|
|Pre-paid first class mail, return receipt requested.||Date of Delivery|
17.3 The addresses for service of notice to the Client are as set out in the Scope of Work, and in the case of notices to the Agency to the registered office address, with a copy to:
Next Fifteen Communications Corp.
100 Montgomery Street, Suite 1202
San Francisco, CA 94104
For the attention of:
the General Counsel.
18. Assignment and SubContracting
18.1 The Agency shall be entitled to sub-contract its performance of the Services provided that any sub-contracting shall not relieve the Agency from its obligations to the Client under this Agreement
18.2 Subject to clause 18.1, neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party. The Agency is, however, entitled to perform any Services under this Agreement through any company which is its holding company or the subsidiary of such holding company, and any act or omission of such company shall be deemed to be the act or omission of the Agency.
18.3 If the Client so requests, the Agency may agree to act as a “hub” or “co-ordinating agency” and pass such things as payment and instructions from the Client to a third-party agency. However, the Client agrees to contract directly with all third-party agencies and acknowledges that the Agency will be in no way responsible for the acts or omissions of any third-party agency.
19.1 The Agency may update this Agreement for legal or regulatory reasons, or to reflect changes in its services or business practices, provided that no variation of the Scope of Work shall be valid unless it is in writing and signed by a duly authorized officer of each of the parties. The Agency shall provide notice of any significant changes to these terms and conditions in clause 21 below.
19.2 A party’s failure to exercise, or delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of such, or preclude any further exercise of that or any other right or remedy.
19.3 If any provision or part-provision of this Agreement is found to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions and part-provisions of the Agreement shall not be affected.
19.4 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it.
19.5 If any dispute arises under or in connection with this Agreement, the parties will first attempt in good faith to settle such through negotiation rather than through legal proceedings. If the dispute is not resolved within 21 days of either party’s attempt to instigate such negotiations, it may be settled by the courts of competent jurisdiction under this Agreement.
19.6 Nothing in this Agreement shall restrict or exclude the right of either party to seek injunctive relief against the other party.
19.7 This Agreement, and any documents annexed to it and signed or initialed by the parties, constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject-matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance, undertaking or warranty, whether negligently or innocently made (‘Representation’), of any person (whether a party to this Agreement or not), other than as expressly set out in this Agreement. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause 19.7 shall limit or exclude any liability for fraud.
19.8 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
19.9 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
20. Governing Law and Jurisdiction
20.1 This Agreement, 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, the laws of the State of California.
20.2 The parties irrevocably agree that the state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject-matter or formation (including non-contractual disputes or claims).
21. Changes to the Terms and Conditions
These terms and conditions are effective as of April 27, 2019.
1. SCHEDULE 1
SUBSCRIPTION SERVICES TERMS
The terms of this Schedule shall apply only to the extent that the Services includes any Subscription Services (as may be set out in a Scope of Work).
1.1 The Agency hereby grants to the Client a non-exclusive, non-transferable, revocable right to permit the Authorized Users to Use the Platform and the Insights from the Effective Date during the License Term.
1.2 The Client will procure that each Authorized User shall select a secure password for his use of the Platform and that each Authorized User shall keep his password secret and treat it as the Confidential Information of the Agency;
1.3 The Client shall not access, store, distribute or transmit any Malware during the course of its use of the Platform.
1.4 The Client shall ensure that each Authorized User enters into and complies with the terms of the Platform’s end user license agreement.
1.5 The Client shall not, and shall procure that no Authorized User will, access, store, distribute or transmit any material during the course of its use of the Platform:
(a) that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, discriminatory or racially or ethnically offensive;
(b) that facilitates illegal activity;
(c) that depicts sexually explicit images;
(d) that promotes unlawful violence; or
(e) in a manner that is otherwise illegal or causes damage or injury to any person or property,
and the Agency reserves the right, without liability or prejudice to its other rights, to immediately suspend or terminate the Client’s and/or any or all of the Authorized Users’ right to receive the Services if the Client breaches the provisions of clauses 1.3, 1.4 and 1.5 of this Schedule.
1.6 As a particular condition of Use to the Subscription Services, the Client shall not and shall not attempt to (and shall procure that no Authorized User shall and shall not attempt to):
(a) except to the extent expressly permitted by this agreement or any applicable law which is incapable of exclusion by agreement between the parties (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform (including all or any portion of the software that operates the Platform) and/or the Insights in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software that operates the Platform, including its associated configurations, file formats and data structures; or
(b) access all or any part of the Platform, any documentation and/or Insights in order to build a product or service which competes with the Services; or
(c) resell access to the Platform or the Insights, or use the Platform and/or Insights in any provision of services to third parties by way of an outsourced service, service bureau or similar arrangement; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or Insights available to any third party except the Authorized Users, or
(e) obtain, or assist third parties in obtaining, access to the Platform and/or Insights, other than to Authorized Users.
1.7 The Client shall, and shall procure that each relevant Authorized Client Entity shall, use all reasonable endeavors to prevent any unauthorized access to, or Use of, the Platform and/or the Insights and, in the event of any such unauthorized access or use, promptly notify Agency.
1.8 The Agency shall use reasonable endeavors to make the Subscription Service available for Use in accordance with this agreement, subject to:
(a) planned maintenance which the Agency may carry out outside of Normal Business Hours; and
(b) unscheduled maintenance,
provided that in both cases that the Agency has used reasonable endeavors to give the Client reasonable notice in advance of such maintenance. The Client’s sole and exclusive remedy in respect of this clause 1.8 shall be to receive the Support Services.
1.9 The Agency:
(a) does not warrant that the Client’s use of the Subscription Service will be uninterrupted or error-free; or that the Subscription Service and/or Insights will meet the Client’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities outside of its reasonable ability to control, including the Internet, and the Client acknowledges that the Subscription Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
1.10 The Client acknowledges and agrees that, notwithstanding anything to the contrary in any documentation, it is inherent to the nature of the Subscription Services that the particular range of Insights available to the Client during the License Term may vary from time to time as the Subscription Services evolve and different data sources become or cease to be available. The availability or not of a particular range of Insights will not be a breach of this agreement by the Agency.
1.11 The Client acknowledges that the Platform and/or the Insights may enable it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Agency shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party.
1.12 The Agency will treat any Client Data as the Confidential Information of the Client, and will not use or exploit it for its own commercial purposes. However, the Client acknowledges and agrees that the Subscription Service is not a zero-knowledge service, that the Agency’s security measures may not be impregnable, and that the Subscription Service is not designed to be used as a repository of highly confidential materials. The Client therefore agrees that it will not upload to the Subscription Service any Client Data which would be likely cause significant harm to the business of the Client, its Affiliates or its or their respective Clients or suppliers if it were to be disclosed, and acknowledges that the Agency limits its liability in respect of disclosures of Client Data accordingly, in the manner set out in clause 12 of the Agreement.
1.13 While the Agency may, in the course of its own internal processes, incidentally take backups of the Client Data, the Client acknowledges and agrees that the Subscription Service is not a backup or disaster recovery service, and is not designed to hold the only copy of any Client Data, and that the Agency therefore excludes any liability for loss of or damage to Client Data.
1.14 The Client acknowledges and agrees that, as between the Agency and the Client, the Agency and/or its licensors own all intellectual property rights in the Platform and the Insights. Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Insights.
1.15 This Agreement shall not prevent the Agency from entering into similar agreements with third parties, or from independently developing, using, selling or licensing the Insights, or products and/or services which are similar to those provided under this Agreement.
1.16 The Client hereby defends, indemnifies and holds harmless the Agency against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) the Client’s use of the Services and/or Insights other than in accordance with this Agreement; and/or (ii) the Client Data.
1.17 Subject to clause 1.18 of this Schedule, the Agency hereby defends the Client against any claim that the Platform or the Insights infringes any copyright, trade mark, database right or right of confidentiality in the United States of America (each, a “Third Party IP Claim”), and indemnifies the Client for any amounts awarded against the Client in judgment or settlement of such Third Party IP Claims.
1.18 In no event shall the Agency, its employees, agents and sub-contractors be liable to the Client to the extent that the Third Party IP Claim is based on:
(a) a modification of the Services or Insights by anyone other than the Agency; or
(b) the Client’s use of the Services or Insights in a manner contrary to the instructions given to the Client by the Agency; or
(c) combination of the Services with some other product or service, if the alleged infringement would have been avoided by not so doing; or
(d) the Client’s use of the Services or Insights after notice of the alleged or actual infringement from Agency or any appropriate authority.
1.19 In the event of a Third Party IP Claim, the Agency will use reasonable efforts to: (i) obtain for the Client a right to continue to use the Platform and the Insights; (ii) modify the Platform and/or the Insights so as to avoid the alleged infringement; or (iii) if it is not reasonably practicable to do either of those things, terminate this Agreement and give the Client a pro rata refund of any Fees paid in advance for any period of the Initial License Term or Renewal Period (as the case may be) following such termination. The indemnity set out in clause 1.17 and this clause 1.19 set out the Client’s sole and exclusive remedy in respect of any Third Party IP Claim.
DATA PROCESSING SCHEDULE
1.1 The Client shall:
(a) only provide the Agency with Client Personal Data to the extent that it is strictly necessary for the Agency’s performance of the Services; and
(b) ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Agency for the duration and purposes of this Agreement.
1.3 The Client agrees that it is the data controller in respect of its Use of any personal data included in Insights, and that it will process such personal data in accordance with applicable law.
Agency as Data Processor
1.4 Where the Agency is a Data Processor in respect of any Client Personal Data processed under this Agreement, the Agency shall:
(a) process the Client Personal Data only on and in accordance with lawful instructions from the Client which may be specific instructions or instructions of a general nature provided directly to the Agency;
(b) process the Client Personal Data only to the extent, and in such manner as is necessary for the provision of Services to the Client;
(c) inform the Client of any legal requirement under any applicable law that would require the Agency to process the Client Personal Data otherwise than only on the processing instructions, or if any Client instruction infringes, Data Protection Legislation; and
(d) not transfer Client Personal Data out of the European Economic Area without the Client’s prior written consent.
1.5 Unless otherwise set out in the Scope of Work or as agreed in writing between the parties, the scope, purpose and duration of Personal Data and Processing (including the type of Personal Data, categories of Data Subjects and security details) covered by this Agreement is set out below:
SUBJECT-MATTER, NATURE AND PURPOSE OF THE PROCESSING:
(a) The context for and purposes for the Processing of Customer Personal Data is the Supplier’s provision of the applicable services under the Agreement.
DURATION OF PROCESSING:
(b) Processing of the Customer Personal Data by Supplier shall be for the term of the Agreement, provided that Personal Data shall not be Processed for longer than is necessary for the purpose for which it was collected or is being Processed (except where a statutory exception applies).
PERSONAL DATA IN SCOPE:
(c) Supplier may Process the following types/categories of Personal Data:
(i) Personal Data, consisting of: personal details, contact details, marketing information and data analytics.
(ii) Unless set out otherwise in a Scope of Work, no forms of Sensitive Personal Data/other special categories of Personal Data are in scope for the provision of the Services.
PERSONS AFFECTED (DATA SUBJECTS):
(d) The group of data subjects affected by the Processing of their Personal Data consists of customers and clients and prospects, and research participants.
1.6 The Agency shall implement and maintain, at its cost and expense, appropriate technical and organizational measures in relation to its processing of Client Personal Data so as to ensure a level of security in respect of Client Personal Data processed by it is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client Personal Data transmitted, stored or otherwise processed.
1.7 In the event of any Security Incident involving Client Personal Data, the Agency shall without undue delay notify by telephone to the client contact number as set out in the Scope of Work and provide the Client with details of the Security Incident.
1.8 The Agency shall remain fully liable to the Client for the Sub-Processor’s performance, as well as for any acts or omissions of the Sub-Processor as regards its processing of Client Personal Data.
1.9 The Agency shall ensure that its personnel processing Client Personal Data have signed agreements requiring them to keep Personal Data confidential, and take all reasonable steps to ensure the reliability of the Agency personnel processing Client Personal Data and that personnel processing Client Personal Data receive adequate training on compliance with the data protection provisions of this Data Processing Schedule and the Data Protection Legislation.
1.10 The Agency shall forward to the Client and otherwise co-operate with and assist the company with any requests received from data subjects of any Client Personal Data.
1.11 The Agency shall provide reasonable assistance, information and cooperation to the Client to ensure compliance with the Client’s obligations under Data Protection Legislation in relation to the processing of Client Personal Data under this Agreement. This includes assistance with any data protection impact assessments and consultations with (or notifications to) relevant data protection regulators.
1.12 The Agency shall make available to the Client on request in a timely manner such information as is required by the Client to demonstrate the Agency’s compliance with its obligations under Data Protection Legislation and this Data Processing Schedule.
1.13 The Agency shall permit audits conducted by the Client or another auditor mandated by the Client for the purpose of demonstrating the Agency’s compliance with its obligations under Data Protection Legislation and this Data Protection Schedule. This shall be subject to the Client giving The Agency reasonable prior notice of such audit and/or inspection, and ensuring that any auditor is subject to binding obligations of confidentiality and that such audit or inspection is undertaken so as to cause minimal disruption to the Agency’s business.
1.14 The Agency shall without delay, at the Client’s request, either securely delete or return all the Client Personal Data to the Client at the end of this Agreement, or if earlier, as soon as processing by the Agency of any Personal Data is no longer required for the Agency’s performance of its obligations under this Agreement, and securely delete existing copies (unless storage of any data is required by applicable law).