EXPERT EDGE – TERMS AND CONDITIONS
These Terms and Conditions are entered into between HAVAS MARKET LIMITED, registered in England with number 10051786, whose registered office is at Havas House Hermitage Court, Hermitage Lane, Maidstone, England, ME16 9NT (“Agency”) and you (“Client”, “you”), together the “parties” or a “party”. These Terms and Conditions together with any other associated documentation made available to you via www.expertedge.com (“Website”) form the contract between Client and Agency (“Agreement”). In the event that there is any conflict, these Terms and Conditions shall take precedence. This Agreement shall be effective from when we provide you with the Services through the Website (“Effective Date”).
1. Interpretation
1.1 Definitions:
Affiliates means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;
Agency IPRs means all Intellectual Property Rights owned by the Agency or its licensors prior to the commencement of the Services or which are otherwise authored, created, produced and/or developed by the Agency independently of its performance of the Services;
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Client Materials means all materials, equipment and tools, drawings, specifications and data supplied by the Client to the Agency;
Data Protection Legislation means as applicable and binding on each party: (a) the Data Protection Act 2018, the UK GDPR as defined in the Data Protection Act 2018, and the Privacy and Electronic Communications Regulations 2003; (b) the EU General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR), EU Directive 2002/58/EC (Directive on privacy and electronic communications), and/or any corresponding or equivalent national laws or regulations; and (c) any applicable laws replacing, amending, extending, re-enacting, consolidating or implementing any of the above Data Protection Legislation from time to time (whether or not before or after the Effective Date);
Deliverables means the deliverables provided to Client as a result of the Services;
Fees means the charges payable by the Client to Agency for the supply of the Services by the Agency, as set out on the Website (including any subscription fees);
Group means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company;
Group Companies means the group of companies including Havas S.A. (registered in France) and all of its subsidiaries (as that term is defined in s.1159 of the Companies Act 2006) and which includes the Agency and its Affiliates;
Intellectual Property Rights (IPR) means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Services means the services selected by Client to be provided by Agency as defined and set out on the relevant invoice, receive by Client from the third party payment services provider;
Term means as defined in Clause 2.1;
Territory means the territories in which Agency has agreed to provide Client the Services;
Third Party Contracts means as defined in Clause 2.3;
Third Party Costs means costs arising from any Third Party Contracts;
Third Party Ecommerce Platform means any third party ecommerce platform in respect of which Agency is providing the services (including but not limited to, Amazon);
Third Party Materials means as defined in Clause 5.5; and
Third Party Suppliers means as defined in Clause 2.3.
1.2 Interpretation. 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. A reference to writing or written includes email.
2. Appointment
2.1 The Client has agreed to appoint the Agency to provide the Services. The Agency shall from the Effective Date and for the duration of the Agreement supply the Services to the Client in accordance with the terms of the Agreement. The Agency agrees to act as a principal at law and not as an agent of the Client in respect of all of its dealings with other suppliers (including Third Party Suppliers) in respect of the Client’s advertising. The term of this Agreement shall commence on the Effective Date until terminated pursuant to Clause 9 (“Term”).
2.2 The Agency shall perform the Services in a professional manner in accordance with good industry practice, using all due skill, care and diligence.
2.3 The Client acknowledges and agrees that the Agency may enter into contracts with third party suppliers, acting as principal (“Third Party Suppliers”), which may either be on the Third Party Supplier’s standard terms and conditions or on terms negotiated by the parties (“Third Party Contracts”). Provided the Agency has notified the Client of the applicable contract terms contained in such Third Party Contracts then: (a) the Client shall comply with the applicable terms and conditions of such Third Party Contract (including in relation to the Client’s right to use or otherwise benefit from the Services or Deliverables acquired under such Third Party Contracts); (b) any charges or liabilities (to the extent caused by an act or omission of the Client or any third party acting on its behalf) for which the Agency is liable under such Third Party Contract shall be the responsibility of the Client; and (c) the rights and liabilities as between the Client and the Agency in relation to such Third Party Contracts, shall correspond to those between the Agency and the applicable Third Party Supplier under such Third Party Contracts. The Agency shall only be liable to the Client for losses caused by the acts or omissions of any such Third Party Supplier to the extent the Agency is able to recover such losses from the relevant Third Party Supplier. The Client may request the Agency to change, reject, cancel or stop all plans, schedules or work-in-progress and the Agency shall take all reasonable steps to comply, provided that the Agency can do so within the Agency’s contractual obligations to Third Party Suppliers.
3. Third Party Ecommerce Platform
3.1 Client acknowledges and agrees that:
3.1.1 the time for product listings to appear higher on any Third Party Ecommerce Platform search may vary and the Client can thus not guarantee that its position will change immediately from that which it held prior to the Services being performed;
3.1.2 the Agency does not guarantee that the Services will increase the sales of the Client’s products;
3.1.3 the Agency has no control over the policies of any Third Party Ecommerce Platform search engine with respect to the content that they accept now or in the future;
3.1.4 due to the competitive nature of selling online and on Third Party Ecommerce Platforms, ongoing changes in search engine ranking algorithms, and other competitive factors, the Agency does not guarantee #1 position or consistent top 10 positions for any particular keyword, phrase, or search term;
3.1.5 the Agency is not responsible for changes made to any Third Party Ecommerce Platform back-end interface by other parties that adversely affect the search engine rankings or sales of the Client’s products on any Third Party Ecommerce Platform; and
3.1.6 the Client shall provide unlimited access to existing Third Party Ecommerce Platform data for analysis and tracking purposes.
4. Client’s obligations
4.1 The Client shall:
4.1.1 co-operate with the Agency in all matters relating to the Services including providing permission to make changes for the purpose of optimisation, and to communicate directly with any third parties (including but not limited to any Third Party Ecommerce Platform) if necessary;
4.1.2 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Agency to provide the Services, insofar as such licences, consents and legislation relate to the Client’s business, in all cases before the date on which the Services are to start; and
4.1.3 provide, in a timely manner, such necessary information for the provision of the Services as the Agency may reasonably request.
4.2 The Agency is obliged to and will abide by rulings of the relevant statutory or regulatory body having authority in respect of the regulation of advertising in the relevant market and the relevant laws, regulations, codes of practice or similar which regulate advertising in that market (“Codes”).
4.3 The Client hereby warrants, represents and undertakes that it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party.
5. Intellectual property
5.1 The Agency and/or its licensors shall retain ownership of all Agency IPRs. The Client and/or its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
5.2 The Client hereby grants to the Agency a non-exclusive licence during the Term to use the Client Materials solely for the purposes of providing the Services and Deliverables.
5.3 Subject to payment of the Fees, 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 Deliverables (excluding Agency IPRs and Third Party Materials and Agency IPRs) which are approved for use by the Client in writing during the Term and which are capable of being assigned, together with the right to sue for past infringement of the intellectual property rights in such approved Deliverables. If the Client wishes to use the Deliverables outside of the Territory, then such use shall be subject to agreement of charges and the execution of the appropriate licences with any third party licensors of any Intellectual Property Rights subsisting in the Deliverables.
5.4 The Agency grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, non-exclusive, royalty-free, licence to use the Agency IPRs solely for the purpose of receiving and using the Services and/or Deliverables in the Territory in perpetuity.
5.5 Prior to delivery of the Deliverables, the Agency shall obtain such licences or consents in respect of materials created or owned by third parties (“Third Party Materials”) as shall be necessary in order that the Client can use such Third Party Materials for the purposes of this Agreement. 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 agrees to keep the Agency indemnified against any losses suffered by us as a result of the Client or the Client’s affiliates breaching any such restrictions.
5.6 Notwithstanding any other provision of this Agreement, Client hereby grants to the Agency a non-exclusive licence to use the Client’s name and logo for the purposes of promoting Agency’s work and its business including on the Agency’s website and in credentials pitches.
6. Fees and payment
6.1 In consideration for the provision of the Services, the Client shall pay the Agency the Fees. All amounts payable by the Client exclude amounts in respect of value added tax (VAT) or equivalent tax which the Client shall additionally be liable to pay to the Agency at the prevailing rate (if applicable).
6.2 Where Agency charges subscription fees for certain Services, the Client shall pay all invoices submitted by the Agency within thirty (30) days of the date of invoice.
6.3 If the Client fails to make any payment due to the Agency under the Agreement by the due date for payment, then the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.4 The Fees do not cover the provision of services other than the Services. The Client may request that the Agency provide additional services (Additional Services) and, as soon as reasonably practicable, the Agency shall submit to the Client a written statement of any changes that would be required to this Agreement (or any part thereof) as a result of the provision of the Additional Services including any additional charges and amendments to any timeframes for the performance of the Services. The parties will agree upon the additional charges payable by the Client in writing prior to the Agency commencing work on such Additional Services.
7. Liability
7.1 Nothing in this Agreement shall limit or exclude a party’s liability in respect of (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; and (iii) any other liability which cannot be validly limited or excluded by law.
7.2 Subject to Clause 7.1, the Agency shall not be liable, under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, for any indirect or consequential loss or for any: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; or (e) loss of damage to goodwill.
7.3 Subject to Clause 7.1 and 7.2, the aggregate liability of the Agency under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in no event exceed the total sums paid or payable by the Client to the Agency under this Agreement.
7.4 Where one party (Indemnifying Party) agrees to indemnify and keep the other party (Indemnified Party) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises:
7.4.1 the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
7.4.2 the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party
7.4.3 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 defence of the claim; and
7.4.4 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.
8. Compliance and Non-Infringement
8.1 The Agency shall ensure that the Deliverables (excluding the Client Materials), in all material respects, as delivered by the Agency and in accordance with the terms of this Agreement shall, in the Territory: (a) comply with all applicable laws, regulations, and binding codes of practice; (b) not infringe the copyright of any third party; and (c) not be defamatory, obscene or otherwise offensive.
8.2 The Agency shall indemnify the Client against all liabilities, costs, expenses, damages and losses (including all reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with any third party claim that the Deliverables infringe a third party’s Intellectual Property Rights provided that such Deliverables are not modified, adapted or amended by the Client or by a third party on the Client’s behalf.
8.3 The Client shall indemnify the Agency against all liabilities, costs, expenses, damages and losses (including all reasonable professional costs and expenses) suffered or incurred by the Agency arising out of or in connection with any third party claim: (a) that the Client Materials infringe a third party’s Intellectual Property Rights, applicable laws or the Codes; (b) relating to Client’s products or services; and (c) relating to any act or omission of Client.
8.4 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 the Client’s affiliates or associates.
9. Havas Centers of Excellence
9.1 Notwithstanding any other provision in this Agreement, the Client acknowledges, approves, consents and agrees that:
9.1.1 in order to maximise the efficiency of the Services, the Agency may perform certain of the Services utilising personnel of either its Affiliates or Group Companies located in India, Peru and/or Spain;
9.1.2 notwithstanding the utilisation of such personnel the Fees in relation to such Services shall be as set out on the website; and
9.1.3 no access shall be given to salary and/or payroll information and/or records of such personnel as part of any audit undertaken by or on behalf of the Client in accordance with this Agreement;
provided that in all cases, that the Agency shall remain responsible to the Client for the proper performance of any such Services and for any act or omission of such personnel.
10. Termination
10.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
10.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
10.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
10.2 Either party may terminate this Agreement by giving three (3) months’ written notice to the other party at any time.
10.3 Without affecting any other right or remedy available to it the Agency may suspend or terminate the Agreement on written notice in the event that the Client fails to pay any sum due to the Agency by the due date for payment.
10.4 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
11. Consequences of Termination
11.1 On termination of the Agreement: (a) the Client shall immediately pay to the Agency all of the Agency’s outstanding unpaid invoices and interest and, in respect of Services supplied up until the date of termination but for which no invoice has been submitted, the Agency may submit an invoice, which shall be payable immediately on receipt; (b) the Client shall be responsible for all Third Party Costs incurred or to which the Agency is committed as at the date of Termination and (c) each party shall return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information.
11.2 Termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12. Data Protection
12.1 To the extent Agency processes any personal data on Client’s behalf, the Agency shall:
12.1.1 process such personal data only on documented instructions from Client, unless required to do otherwise by applicable law, in which case Agency shall, unless legally prohibited from doing so, inform Client of such legal requirement;
12.1.2 ensure that persons authorized by it to process such personal data are subject to appropriate obligations of confidentiality;
12.1.3 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing as well as the risk of varying likelihood and severity for the rights and freedoms of individuals, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk and take steps to ensure that any individuals acting under its authority who have access to such personal data do not process them except on instructions from Client, unless they are required to do so by applicable law;
12.1.4 notify Client without undue delay on becoming aware of a personal data breach;
12.1.5 assist Client, at Client’s expense, with the fulfilment of Client’s obligation to respond to requests for exercising individuals rights under applicable privacy and data protection law, together with Client’s obligations regarding data security, notification by Client of personal data breaches to the supervisory authority, communication by Client of personal data breaches to the affected individuals, data protection impact assessments, and prior consultation with the supervisory authority;
12.1.6 at the choice of Client, delete or return all such personal data after the end of the provision of services involving the processing of such data, and delete existing copies unless applicable law requires storage of such personal data;
12.1.7 make available to Client all information necessary to demonstrate compliance with this clause;
12.1.8 allow for and contribute to audits, including inspections, conducted by Client or another auditor mandated by Client provided that: (i) Agency shall be compensated for its costs and expenses in relation to such audit, (ii) reasonable advance notice shall be given in respect of any such audit, (iii) any such audit shall only be conducted during Agency’s normal business hours, (iv) any such audit shall be conducted to cause minimal disruption to the Agency’s business operations, (v) no access shall be given to Agency’s confidential information or any information relating to Agency’s other clients and/or financial data, and (vi) any third party auditor shall enter into confidentiality obligations directly with Agency which are reasonably acceptable to Agency; and
12.1.9 not transfer any such personal data outside of the European Economic Area and/or UK without ensuring appropriate safeguards in respect of such transfer in accordance with applicable privacy and data protection law.
12.2 The Client will ensure that it has all necessary and appropriate consents and notices in place to enable the lawful transfer of any personal data to the Agency for the duration and purposes of the Agreement.
12.3 The Client hereby provide its general authorisation for Agency to engage other processors to carry out processing activities on behalf of Client. Agency shall notify the Client of any intended changes concerning the addition or replacement of such other processors. If, within five (5) business days of receipt of such notice, Client notifies Agency in writing of any objections on reasonable grounds to the proposed addition or replacement: (a) Agency shall take reasonable steps to address the objections raised by Client, and shall provide Client with a reasonable written explanation of the steps taken; and (b) if having received from Agency a reasonable explanation to address Client’s objections, Client nevertheless objects to the addition or replacement, Agency shall not proceed with the addition or replacement with respect to the processing of any personal data on Client’s behalf, and may, at Client’s cost, propose the engagement of a different processor in accordance with this clause. Client acknowledges and agrees that where Client objects to the appointment of a processor pursuant to this clause, Agency may be prevented from providing the associated services to Client, and Agency shall have no liability to Client in respect of its inability to provide all, or part of, such services.
12.4 Where Agency engages another processor for carrying out specific processing activities on behalf of Client, materially equivalent data protection obligations as set out herein shall be imposed on that other processor. Where that other processor fails to fulfil its data protection obligations, Agency shall remain fully liable to Client, subject to the limitations and exclusions of liability set out herein, for the performance of that other processor’s obligations.
13. General
13.1 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate the Agreement by giving 7 days’ written notice to the affected party.
13.2 Confidentiality
13.2.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the Group to which the other party belongs, except as permitted by Clause 12.2.2.
13.2.2 Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement and each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 12.2.2; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.2.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
13.3 Entire agreement. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.4 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5 Conflicts. In the event that there is any conflict between the provisions of these terms and the Schedules, these terms shall take precedence.
13.6 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 12.7 shall not affect the validity and enforceability of the rest of the Agreement.
13.8 Notices. Any notice required to be given under or in connection with the Agreement shall be in writing signed by (or by some person duly authorised by) the person giving it and may be served by delivering it personally or by first class prepaid or registered mail or email to the address or email address of the relevant party set out at the head of this Agreement or to such other address as is notified in writing from time to time by or on behalf of the parties. Any notice so served shall be deemed to have been received: (a) if delivered personally, at the time of delivery; (b) in the case of a notice sent by first class prepaid or registered mail, 48 hours after the date of posting; or (c) if sent if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this 12.8, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
13.9 Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
13.10 Governing law and Jurisdiction. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.