Last Updated - August 2023
1.1 In the event of any conflict or inconsistency, the documents shall prevail in the following order: (i) Statement of Work; (ii) the Terms; and (iii) the Letter.
1.2 This Agreement may also be used where either a Client Affiliate(s) wishes to procure, and/or an Agency Affiliate(s) wishes to provide, Services under this Agreement. If so required, the relevant Affiliate(s) shall execute a Statement of Work in their name(s), which shall constitute a separate legal agreement between the parties incorporating the Terms (with references to a ‘party’, the ‘parties’, ‘Agency’ and/or ‘Client’ in these Terms being interpreted accordingly), and any and all rights, liabilities, obligations and/or claims arising out of or in connection with such Statement of Work shall be solely between the parties to it.
2. DEFINITIONS AND INTERPRETATION
2.1 Any capitalised terms not defined in these Terms will have the meanings set out in the Letter and applicable Statement of Work. In addition, the following terms shall have the following meanings:
“Affiliate” means, in relation to either party, any of the following: (a) companies directly or indirectly belonging to or controlled by that party through management appointment or otherwise; (b) companies directly or indirectly belonging to or controlled by companies which directly or indirectly own or control that party; and (c) any companies having entered into an affiliation agreement with that party or the above-referred companies. “Control” means the power of an entity to secure that the affairs of another are conducted in accordance with its wishes and "controlled" shall be construed accordingly;
“Agency” means the dentsu entity set out in the Letter;
“Agency Data” means: all (i) data and databases owned by or licensed to Agency; and (ii) data and databases collected, developed, created, generated or derived (“Created”) by Agency in relation to or as a by-product of the Services or in connection with any tools, methodologies, know-how or technology used by Agency in the performance of this Agreement. Agency Data includes without limitation: all (i) data Created as a by-product or combined with Client Data, Agency Data or Third Party Materials; and (ii) performance or campaign media results relating to the Services. For the avoidance of doubt, Agency Data does not include Third Party Materials or Client Data;
“Agency Materials” means: (i) Materials owned by or licensed to Agency or Agency Affiliates; and (ii) Materials developed, created or acquired by or on behalf of Agency or Agency Affiliates in the course of providing the Services, and in each case the derivatives of such Materials. For the avoidance of doubt, Agency Materials includes Agency Data but does not include Client Materials or Third Party Materials;
“Business Day” means any day other than a Saturday, Sunday or a bank or public holiday in Agency's principal place of business;
"Business Hours" Notwithstanding the provisions outlined in LOE/MSA, the parties agree during the entire term, “Business Hours/Days” refer to the standard Business hours during which the parties are accessible to operate business activities from 10 AM to 6.30 PM, Monday to Friday, excluding public holidays and weekends. During the said standard Business Hours, both parties commit to receive/ respond business-related communications within a reasonable time frame.
Provided, however, support available outside the Business Hours may subject to delays. All Service Requests outside of Business Hours on any Business Day will be deemed to have been received in the first Business Hour on the next Business Day. The regular Business Hours/Days stipulated herein may alter based on requirements and can be mutually agreed upon in writing. Any services provided outside of the stipulated Business Hours may be deemed to induce differential pricing, in a separate pricing schedule outlined in SOA or as agreed in the contract's pricing clause.
In the event of a force majeure that disrupts regular business operations, Business Hours shall stand revised as mutually agreed between the parties.
“Cancellation Charges” has the meaning set out in clause 5.5;
“Charges” means (i) the Fees; and (ii) any other costs and/or commissions and expenses payable by Client in connection with the Services (including any out of pocket expenses incurred by the Agency in connection with the Services and/or any third party expenditure paid or payable by Agency on Client’s behalf);
“Client” means the client set out in the Letter;
“Client Data” means data directly or indirectly prepared and provided to the Agency by the Client in connection with the Services, including Client Personal Information (as defined in the Information Technology Act, 2000) and Results Data;
“Client Materials” means Materials provided by or on behalf of Client to Agency (or provided to such third parties as Agency may nominate to receive such Materials from time to time, including without limitation Media Owners) in connection with this Agreement (including without limitation Client's name, logo and trade marks and any third party materials provided by Client to Agency in connection with this Agreement), including Client Data;
“Confidential Information” has the meaning set out in clause 14.1;
“Deliverables” means the deliverables described in each Statement of Work (where applicable) but specifically excluding tools, platforms and methodologies used by Agency to provide the Services and/or deliverables;
“Fees” means the fees invoiced and payable by Client as set out in each Statement of Work or media plan;
“Gross Media Expenditure” means the aggregate amount chargeable by a Media Owner for media bookings;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and the right to be granted renewals or extensions of, and rights to claim priority from, these rights and all similar or equivalent rights or forms of protections which subsist or will subsist, now or in the future, in any part of the world;
“IT Act 2000" means the Information Technology Act, 2000 its rules and regulations thereunder (incuding but not limited to and Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 ));
“Letter” means the letter of engagement from Agency to Client to which these Terms are annexed.
“Media Owner” means a third party who sells media space and/or time to Agency;
“Results Data” has the meaning set out in clause 4.1(ii);
“Services” means the services to be provided by Agency to Client pursuant to the Agreement, as described in each Statement of Work;
“Standard Agency Commission” means the standard commission as a percentage of Gross Media Expenditure in relation to certain media (“Commissionable Media”) that media agencies are entitled to, which is usually recognised as a discount on the invoices the Media Owner provides to the media agency; “Statement of Work” or “SOW” shall mean the first agreed SOW set out in Annex 1 to the Letter, as well as any additional document signed by both parties in substantially the form set out in Annex 1 to the Letter. There may be one or more SOWs under the Agreement;
“Terms” means these terms of business;
“Territory(ies)” means the territory(ies) set out in the Statement of Work; and
“Third Party Materials” means Materials owned by a third party and used by Agency in the provision of the Services (excluding, for the avoidance of doubt, Agency Materials and Client Materials).
3. AGENCY'S ROLE
3.1 Client hereby appoints Agency to provide, and Agency agrees to provide, the Services to Client in the Territory.
3.2 Agency will provide the Services: (a) with professional care and skill; and (b) in accordance with the terms of the Agreement.
3.3 Client will not obtain or use services from any third party that are the same as or similar to the Services during the Term.
3.4 If Client requests Agency to provide services other than or in addition to the Services (“Additional Services”), the parties agree that the Additional Services may be subject to separate terms and conditions, including commercial terms. Where the Additional Services include programmatic trading services, such services shall be treated as services provided by an independent third party from Agency and the provision of such services shall be solely upon separate terms and conditions. Where the Additional Services include Agyle services (as defined in Annexure A), the same shall be treated as services provided by the Agency and provision of such services shall be upon terms and conditions provided under Annexure A.
4. CLIENT RESPONSIBILITIES
4.1 Client will cooperate with Agency in all aspects relating to the Services, including, without limitation: (i) giving Agency clear briefings; (ii) where Agency manages Client’s advertising accounts, including but not limited to Google DoubleClick accounts, giving Agency unimpeded access to such accounts and associated data (“Results Data”); and (iii) approving all Deliverables.
4.2 Client will be responsible for making all arrangements necessary for it to access, receive and utilise the Services and the Deliverables (including but not limited to review of the Deliverables necessitated by Client’s specific business sector/industry legislation and/or regulations).
4.3 If Agency’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Client, its agents, subcontractors, consultants or employees, such failure or delay in performance on the part of Agency shall not constitute a breach of the Agreement and Agency shall not be liable for any costs, charges or losses sustained or incurred by Client that arise directly or indirectly from such failure or delay.
5. PERFORMANCE OF THE SERVICES
5.1 The parties shall set out Services relevant to campaigns or specific engagements in Statements of Work.
5.2 The Agency will seek Client’s prior approval of: (i) any creative elements, including proposed scripts, storyboards, copy layouts, design, artwork, related proposed marketing activity, and Client’s approval of such creative treatments will be Agency’s authority to prepare the draft Deliverables; (ii) any draft Deliverables prepared pursuant to (i); and, (iii) any media plan, program or campaign, including schedules showing the times when, and media through which, it is proposed any Material(s) be presented (the items requiring approval in (i), (ii), and (iii), are collectively referred to as “Approval Items”). If Client does not approve of any matter requiring approval it shall promptly and no later than within 5 Business Days of receipt of the relevant Approval Item(s), notify Agency in writing of its reason for disapproval. Agency shall use commercially reasonable efforts to resolve the deficiency and shall resubmit the applicable Approval Item(s), to Client without undue delay. Client shall reassess the resubmitted Approval Item(s) in accordance with the foregoing process. Any delay in approvals may result in additional third party costs for which Client shall be responsible. Agency shall be entitled to order, contract, execute or otherwise arrange for the advertising idea, plan, program or campaign upon receiving the Approval Items.
5.3 Client may request Agency to cancel or amend any plans, schedules or work in progress forming part of the Services. Agency will use reasonable efforts to comply with any such request provided that Agency is able to do so within its contractual obligations to third parties.
5.4 In the event of any such cancellation or amendment, Client shall promptly pay to Agency: (a) Agency's Charges covering the cancelled or amended Services (calculated on a pro rata basis for the period up to the effective date of cancellation or amendment); (b) any charges, expenses or additional costs paid or payable by Agency in relation to the cancellation or amendment (including without limitation retrospective rate adjustments, cancellation charges or lower discounts from third parties); and (c) any cancellation fee specified in a SOW (together, “Cancellation Charges”).
5.5 Where a Media Owner levies late charges against Agency and such charges do not result from the negligent or wilful act or omission of Agency, Client shall immediately upon presentation of an invoice reimburse the amount of such late charges to Agency.
5.6 Where applicable, it is further expressly understood and agreed between both parties that as part of Agency’s provision of media services, while Agency undertakes to use commercially reasonable endeavours: (i) in the preparation of any estimated and target figures; (ii) in the provision of conclusions and recommendations; and/or (iii) to prevent the display of Client advertising on websites of, or in proximity to content that is of, a pornographic, defamatory, obscene or illegal nature (“Objectionable Display of Client Advertising”), these are matters which are ultimately beyond the control of Agency, and hence no warranties are given by Agency as to: (A) the accuracy of such estimates or targets, such figures actually being met or user interactions with that advertising once it appears; or (B) the prevention of the Objectionable Display of Client Advertising. Agency will promptly take steps to remove any Objectionable Display of Client Advertising upon becoming aware of the same. However, no liability shall attach to Agency in respect of any losses suffered by Client or by any third party by reason of: (a) the reliance of Client on any estimates or targets; (b) any Objectionable Display of Client Advertising; or (c) in respect of Client’s reliance on any conclusions or recommendations of Agency.
5.7 As part of Agency’s commitment to maximising media value for Client, Agency will pursue compensation complaints for such issues as reproduction and positional problems. However, Agency can give no guarantee as to the outcome of such negotiations and Client must pay in full and by the due date for bookings made regardless of any subsequent compensation achieved.
5.8 If it is agreed as part of the Services that domain names or trade marks are to be created, Agency shall carry out clearances and registrations only where agreed in writing with Client and at Client’s cost. All other clearances, registrations and renewals will be Client’s sole responsibility.
5.9 Client shall indemnify and hold harmless Agency from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Agency arising out of (and only to the extent of) any course of action that Agency has advised or recommended Client against but that Client elects to proceed with notwithstanding such advice.
6. FINANCIAL PROVISIONS
6.1 In consideration of providing the Services, Client shall pay to Agency the Charges in accordance with each Statement of Work.
6.2 Amounts stated are exclusive of applicable indirect taxes, levies or any stamp duty payable in respect of any advertisement placements in media as per applicable law, which shall be payable by Client in addition to the relevant amounts at the prevailing rate.
6.3 The Charges shall be invoiced by Agency and payable by Client in accordance with the applicable Statement of Work or media plan, in full, without set-off, counterclaim or withholding, by bank transfer into the bank account nominated by Agency in the currency specified in the invoice.
6.4 The invoices will be payable by the Client within the due date as per the payment schedule set out in each of the SOW. In the event the client defaults in payments for two consecutive payment cycle, the Agency shall suspend the Services until the entire outstanding amount is cleared in full.
6.5 Unless otherwise specified, Agency shall be entitled to issue its invoices on an ad hoc basis and invoices will be payable within 30 days of the date of the invoice. All sums paid late shall, without prejudice to Agency’s other rights and remedies, be subject to interest at the rate of 12% per annum above the base lending rate of Agency’s principal lending bank from the due date until the date of payment in full
6.6 For some aspects of the Services that are provided by third parties, those third parties may require an advance or down-payment. Under such circumstances, Agency will inform Client, and an invoice covering the advance or down-payment will be prepared and sent by Agency to Client for immediate settlement.
6.7 If agreed in a Statement of Work, all out-of-pocket expenses incurred by Agency in pursuance of the fulfilment of the Services shall be recharged to Client at net cost, subject to Client's prior approval of the applicable amounts, including without limitation: (a) research work; (b) any costs incurred for production work required in connection with the Services including, without limitation, film production, artwork, engravings, electros, photography, talent fees, recordings (including for test purposes), the services of performers, block-making, type-setting, typography and print work; (c) travel costs; (d) long-distance telephone calls; (e) production costs involved in the preparation of packaging, labels and cartons, exhibition and display Material, booklets, sales letters, product publicity and other promotional Material or services as may be prepared or suggested by the Agency; (f) costs incurred in taking legal or other advice and undertaking trade mark, domain name or other searches, enquiries, registrations, renewals and clearances; and (g) despatch and carrier costs.
6.8 Where a surcharge is levied by a supplier against Agency due to late payment and this results from late payment by Client, Client shall (without prejudice to Agency’s other rights and remedies) immediately upon presentation of an invoice reimburse to Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
6.9 The cost to Agency of goods or services purchased overseas in connection with the Services may be more or less than the cost anticipated at the date when Agency ordered the relevant goods or services as a result of fluctuations in the rate of currency exchange. If so, Agency will charge Client at the rate of currency exchange in operation on the date Agency invoices Client for the relevant goods or services and upon written request Agency will supply Client with such documentation as Client may reasonably require in order to verify such rate of currency exchange.
6.10 The Client and Agency shall comply with all the compliance requirements under GST law. This shall include (but not limited to):
a. Issuing invoices/ debit notes/ revised invoices/ credit notes as per the prescribed format, containing all the information as is required for the Client to avail input tax credit basis such invoices/ debit notes/ revised invoices.
b. Ensuring that the invoice issued by the Agency is received by the Client and submission of periodic returns by the Client as per the GST laws within specified time lines with complete and correct details as may be prescribed.
c. Client should communicate the details required for the purpose of GST compliance (such as GSTIN, address etc). Any change required in the invoice should be communicated within 2 days of receipt of invoice or no changes to invoice shall be accepted once the details of the same are uploaded on GSTN. If Client fails to communicate the changed details within the specified days, then any input tax credit loss, arising out on that account would not be borne by the Agency.
d. In case of any tax or credit loss or related demand due to failure of the Client to provide the correct address, the same will be borne by the Client and the Agency shall not be responsible. Further, in case of any incorrect / incomplete / non-compliance on behalf of the Client, due to which a demand is made on the Agency by the tax authorities, the Client shall be immediately liable to pay the applicable taxes / amounts (including interest, penalty and associated litigation cost) if any upon notification by the Agency.
e. Any request for debit notes, credit notes by either parties shall be only be issued other party in permissible scenarios and time lines as prescribed under the GST / tax legislation.
f. The Parties agree and confirm that as and when there is any change in the GST law, rules, regulations, the parties shall mutually discuss the provisions relating to the same and may enter into an addendum to the agreement, if required, to address each other’s concerns on such compliance.
g. Further, Agency and Client shall endeavour to maintain a high GST compliance rating score as per the GST law.
6.11 Client acknowledges that the Agency shall be entitled, at its own cost, to obtain insurance cover on the expenditure incurred by Agency on behalf of the Client under this Agreement. If: (a) the Client may be unable to punctually meet all of its payment obligations under the Agreement to the Agency’s reasonable satisfaction; and (b) Client is unwilling or unable to provide advance payment or a form of security to the satisfaction of Agency, then the Agency will be entitled to: (i) cancel existing media bookings and the Client shall pay all associated Cancellation Charges; (ii) automatically suspend its obligations in relation to the booking of media and committing to other expenditure under the Agreement; and/or (iii) terminate the Agreement by giving the Client at least 7 days’ written notice.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in and to the Deliverables, other than Intellectual Property Rights in and to Agency Materials and Third Party Materials, will vest in Client upon creation. Agency hereby assigns by way of present assignment of present and future rights such rights to Client, subject to payment of applicable Charges.
7.2 As between the parties, all Intellectual Property Rights in and to Client Materials shall remain vested in Client. Client hereby grants to Agency an irrevocable, worldwide, sub-licensable, non-exclusive and royalty-free licence to use the Client Materials to perform the Services in accordance with the Agreement. Client is solely responsible for all consents and licences required for the use of Client Materials in accordance with the Agreement and their compliance with applicable laws.
7.3 As between the parties, all Intellectual Property Rights in and to Agency Materials shall remain vested in Agency. To the extent that any of the Deliverables incorporate or embody Agency Materials, Agency grants to Client a worldwide royalty-free, non-transferable (save as permitted by this Agreement), non-exclusive licence to use such Agency Materials to facilitate and/or enable the use by Client of the applicable Deliverable(s) in accordance with this Agreement (which, for the avoidance of doubt, excludes commercial exploitation by Client of the Agency Materials).
7.4 Agency shall, at Client's cost, use reasonable endeavours to obtain for Client all usage rights in Third Party Materials as agreed by the parties at the time such Material is commissioned. Save to the extent that the applicable Intellectual Property Rights in and to the Third Party Materials are assigned to Client, such Intellectual Property Rights shall remain vested in the applicable third party. Client is responsible for all other clearances.
7.5 Agency shall use reasonable endeavours to obtain waivers of all moral rights in and to the Deliverables.
7.6 Client shall only use the Services and Deliverables in accordance with any usage restrictions and licence conditions specified by Agency or third party licensor. Save as otherwise expressly permitted by the Agreement or otherwise agreed in writing, Client shall not copy, reproduce, make derivative works of, reverse engineer, decompile or disassemble any Agency Materials or Third Party Materials or modify or remove any proprietary notices or legends placed on or within the Agency Materials or Third Party Materials.
7.7 Client hereby grants to Agency a perpetual, irrevocable, worldwide, sub-licensable, non-exclusive, and royalty-free licence to use the Deliverables for the purpose of promoting its own business (for example, but without limitation, on its corporate websites and in entering Materials for industry awards).
7.8 Notwithstanding clause 7.2, to the extent that Client has ownership or rights over Agency Data or Results Data, Client hereby grants to Agency a perpetual, irrevocable, worldwide, sub-licensable, non-exclusive, and royalty-free licence (or sub-license, as the case may be) to use the Agency Data and Results Data to perform the Services in accordance with the Agreement and for any other purposes arising out of or in connection with the Agency's advertising services (including without limitation business intelligence, audience profiling, data matching, content strategy, marketing optimisation, and trend analysis).
8.1 Save as expressly set out in these Terms and to the extent permitted by applicable laws, all conditions, warranties or other terms on the part of Agency which might have effect between the parties or be implied or incorporated into the Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded by Agency, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.
8.2 Agency will not be liable for delays or errors in any of the Deliverables as published unless and to the extent that: (i) this is caused by its breach of these Terms; or (ii) the applicable Deliverables have not been approved by the Client.
8.3 Agency warrants that the use of Agency Materials, in accordance with the Agreement, shall not infringe the Intellectual Property Rights of any other person.
8.4 Save as expressly agreed otherwise under these Terms, an applicable Statement of Work, or in writing, Agency makes no warranty and is not responsible for any third party content (including without limitation user-generated content or Material) published on or in platforms, services or channels operated by or on behalf of Client. Without limitation, Agency is not responsible for: (a) the accuracy of such content; (b) the compliance of such content with applicable laws, regulations, guidelines or codes of practice or Client's policies or requirements; (c) reporting any matters which by virtue of applicable laws are required to be reported to authorities; or (d) any third party claim in relation to such content, including without limitation a claim that such content infringes third party rights (including without limitation intellectual property, data protection and privacy rights), or a claim that such content is defamatory, libellous, slanderous or seditious.
8.5 Agency makes no warranty and is not responsible for any Materials once such Materials are released or posted in the public domain as requested or approved by Client, including, without limitation, via seeding Materials on social media (being any digital platform which allows individuals or businesses to post content for viewing by others) and/or video sharing websites or the use of internet-based “widgets".
8.6 Client warrants that:
a. Client Materials, and all other information supplied to Agency by or on behalf of the Client in relation to Client’s products and services before and during the Term will be true, accurate, complete, up-to-date and not misleading or deceptive;
b. Client Materials, and the use of such Client Materials in accordance with the Agreement shall comply with applicable laws, regulations, guidelines or codes of practice and shall not infringe the Intellectual Property Rights of any other person;
c. It has obtained all necessary rights, licences and consents to allow the Agency to use the Client Materials in accordance with the Agreement;
d. it has in place suitable and compatible equipment, networks and software to receive the Deliverables and the Services;
e. Client Materials, and any equipment or networks which connect to Agency’s systems do not contain software viruses or any other computer code, files or programmes designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and
8.7 Without prejudice to Client's responsibility and Agency's other rights and remedies, Agency is entitled to refuse to perform Client's request if, in Agency's opinion, such action may result in violation of any applicable laws, regulation, guideline or code of practice.
9.1 Agency shall indemnify and hold harmless Client from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Client arising out of (and only to the extent of) a breach by Agency of clause 8.3. Agency shall not be liable under this indemnity in respect of any costs, expenses, charges, damages, liabilities, claims or actions to the extent that these are caused by acts or omissions of Client.
9.2 Client shall indemnify and hold harmless Agency from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Agency arising out of (and only to the extent of) a breach by Client of clause 8.6 and/or (where Client is the Data Supplier) clause 15.
9.3 The party entitled to an indemnity under the Agreement shall take all reasonable steps to mitigate the applicable costs, expenses, charges, damages, liabilities, claims or actions.
10. TERM AND TERMINATION
10.1 The Term of the Agreement, as applicable, shall be of the duration stated in the Letter . Each SOW shall come into effect on the effective date of such SOW and continue until the end date as specified in the SOW. Termination or expiry of an SOW will not serve to terminate the Agreement or any other SOW.
10.2 Either party may terminate the Agreement (including all Statement(s) of Work) or the applicable Statement(s) of Work immediately on written notice to the other party if the other party breaches any material provision of the Agreement (including clauses 6.4 or 16) or applicable Statement(s) of Work and (where such breach is capable of remedy) does not remedy that breach within thirty (30) days of being required to do so in writing. If a party has a right to terminate one or more particular Statement(s) of Work pursuant to this clause, it may choose either to terminate only the Statement(s) of Work in question or the Agreement (including all Statement(s) of Work) in its entirety.
10.3 Either party may terminate the Agreement (including all Statement(s) of Work) immediately on written notice to the other party if the other party has a receiver, administrative receiver, administrator, liquidator or provisional liquidator appointed over all or any part of its assets (or their respective equivalents in any other jurisdiction).
10.4 Except as otherwise permitted by the Agreement, upon termination of the Agreement:
(a) Agency shall: (i) cease all use of and access to the Client Data; and (ii) promptly destroy all Client Data and copies of Client Data, except for copies retained through ordinary backup measures and as required by law.
(b) All Charges for Services provided as at the effective date of termination will be payable by Client to the Agency.
11.1 Nothing in the Agreement seeks to limit or exclude liability for death or personal injury caused by negligence, for fraud or for any other type of liability that cannot be limited or excluded under applicable laws.
11.2 To the maximum extent permitted by law, neither party shall be liable to the other for any:
a. loss of actual or anticipated income;
b. loss of actual or anticipated profits;
c. loss of contracts; or
d. special, indirect or consequential loss or damage of any kind,
howsoever arising in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, breach of data privacy laws (including without limitation the IT Act, 2000) or otherwise, and including under the indemnity obligations under this Agreement.
11.3 Save in relation to the confidentiality obligations under clause 14, to the maximum extent permitted by law, the maximum aggregate liability of Agency to Client under or in connection with the Agreement, whether in contract, tort (including negligence) breach of statutory duty, breach of data privacy laws (including without limitation the IT Act, 2000) or otherwise (including under the indemnity obligations under the Agreement), shall not exceed an amount equal to 100% of the Fees (excluding, for the avoidance of doubt, any third party expenditure paid or payable by Agency on Client’s behalf)) paid or payable by Client under the Agreement to Agency in the Territory during the 12 months immediately preceding the relevant claim.
Client agrees that it will not either on its own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during the Term and for a period of twelve months thereafter solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee of Agency who has been engaged on the performance or receipt of the Services.
13. ASSIGNMENT AND SUB-CONTRACTING
13.1 Agency may: (a) sub-contract any or all of its obligations under the Agreement provided that Agency shall remain at all times liable for the performance of the Agreement; and (b) assign, sublicense or otherwise transfer any or all of its rights or obligations under the Agreement to any Agency Affiliate.
13.2 Save as set out in clause 13.1, no assignment, subcontracting or sublicensing is permitted.
14.1 Each party undertakes that it will keep confidential and not at any time hereafter use or disclose to any person, except: (i) to its professional representatives and advisors; (ii) in the case of Agency only, to its Agency Affiliates or sub licensees or sub-contractors (including, without limitation, business process outsourcing services providers); or (iii) as may be required by law or any legal or regulatory authority, the terms and conditions or existence of the Agreement or any trade secrets, business ideas, market opinions, information and/or Material concerning the business or affairs of the other party (or any other information of a confidential nature which is designated as such by such other party) which may have or may in the future come to its knowledge (“Confidential Information”).
14.2 Neither party shall use Confidential Information except for the performance of or as licensed under this Agreement or make any announcement relating to this Agreement or its subject matter without the prior written approval of the other party.
14.3 Except as otherwise permitted by this Agreement, no Intellectual Property Rights are marked, implied or granted as Confidential Information.
14.4 These confidentiality obligations shall not apply to any Confidential Information that: (i) is or becomes part of the public domain through no fault of the receiving party; (ii) can be shown by the receiving party to the disclosing party's reasonable satisfaction to have been known to the receiving party prior to the disclosure by the disclosing party without any obligation to keep such Confidential Information confidential; (iii) is required by law or any governmental or other regulatory authority to be disclosed or by the order of a court of competent jurisdiction; or (iv) is independently developed by the receiving party without any breach of these Terms as evidenced by written records; or (v) is used and disclosed in connection with any generative artificial intelligence tool provided that such use and disclosure are in accordance with the Purpose of this Agreement;.
15. DATA PROTECTION
To the extent that one party ("Data Supplier") passes to the other party ("Data Receiver") any Personal Information or Sensitive Personal Information (as defined in the IT Act 2000) pursuant to the Agreement:
15.1 The Data Supplier represents and warrants that:
a. it has notified the individuals of the circumstances and purposes of collection or has obtained such permissions and consents required to enable both parties to use, disclose or transfer such Personal Information or Sensitive Personal Information including disclosure and transfers to third parties as required to provide the Services and transfers to territories outside of the Territory) in connection with the Services and any other purposes as stipulated in the Agreement; and
b. if the Data Supplier receives any requests as described in 15.2(c) below which may be relevant to the Data Receiver, it shall notify the Data Receiver of any such requests in a timely manner.
c. must ensure its websites include adequate privacy policies at all times.
15.2 The Data Receiver agrees that it shall:
a. process the Personal Information in accordance with Data Supplier’s reasonable instructions;
b. provide reasonable assistance to Data Supplier to respond to a data subject's request to correct an error or omission in Personal Information or to withdraw consent to the collection, use or disclosure of Personal Information under this Agreement;
c. take all appropriate steps to implement and maintain reasonable security arrangements for the protection of Personal Information in accordance with the IT Act 2000.
15.3 The Client represents and warrants that it will not merge or match the Deliverables with the Client’s Personal Information in an attempt to de-anonymize or re-identify individuals.
16.1 Each party warrants and undertakes that:
a. it will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Prevention of Corruption Act 1988 of India ("Relevant Requirements"); and
b. it has and shall maintain in place throughout the Term all policies and procedures necessary to ensure compliance with the Relevant Requirements.
17.1 Unless otherwise agreed by the parties, Agency acts in all its contracts as a principal and not as agent for Client in respect of dealings with Media Owners and other third party suppliers (“Suppliers”) and shall place orders and enter into contracts with the Suppliers in its own name and on its own account. Nothing in the Agreement is intended to or shall operate to create a partnership or relationship of principal and agent between the parties.
17.2 The service of proceedings, and any notice of termination, given under or in connection with the Agreement shall be in writing (excluding email) and served by hand, prepaid first class recorded delivery or prepaid international recorded airmail to the other party’s address. Such notice shall be deemed to have been served at the time of delivery. All other communications (including in relation to approvals) under the Agreement may be given via email and shall be deemed received upon sending, save in the case of manifest technical error.
17.3 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under the Agreement (other than payment obligations) caused by circumstances beyond its reasonable control (“Force Majeure Event”). The affected party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event.
17.4 No provision of the Agreement (or any document entered into in connection with the Agreement) shall be modified or varied without the written consent of the parties.
17.5 No delay, failure or omission (in whole or in part) in exercising or pursuing any right or remedy under the Agreement will be construed as a waiver of that right or remedy.
17.6 The provisions of clauses 2 (Interpretations and Definitions), 7 (Intellectual Property Rights), 8 (Warranties), 9 (Indemnities), 11 (Liability), 12 (Non-Solicitation), 14 (Confidentiality), 15 (Data Protection), 16 (Anti-Bribery) and 17 (General) shall survive termination or expiry of the Agreement.
17.7 A person who is not a party to the Agreement has no right to rely upon or enforce any term of the Agreement.
17.8 The Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of the Agreement and supersedes, in relation to such subject matter: (i) any previous agreement or understanding between the parties; and (ii) any terms and conditions contained in a party’s purchase order or invoice. In entering into the Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any person other than as expressly set out in the Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing.
17.9 If any provision of the Agreement is found to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of the Agreement, which will remain in full force and effect.
17.10 This Agreement shall be governed by the laws of India and this Agreement (and any and all disputes arising out of or in connection with the Agreement (including without limitation any alleged breach, or challenge to the validity or enforceability, of the Agreement or any provision hereof)) shall be subject to the jurisdiction of Delhi courts . This clause shall not prevent Agency from taking action against Client through any court of competent jurisdiction in relation to: (a) the non-payment or late payment of Fees or other amounts payable to Agency; or (b) interim or injunctive relief.
Agyle Terms and Conditions for the provision of media resale services
The terms and conditions set out in the main body of the Agreement together with the additional terms set out in this Annexure A are intended to govern the Agyle programme/offering and the terms in this Annexure A shall prevail and supersede the terms and conditions in the main body of the Agreement if and to the extent they conflict or contradict the terms and conditions in the main body of the Agreement in respect of the Agyle programme/offering and the Services set out in this Annexure A.
In connection with the Services provided under the Agreement, the Agency can offer the Client and its Affiliates the opportunity to take part in ‘Agyle’, its forward investment media and marketing program which has been developed by Agency Affiliates responsible for investing in media and marketing solutions (“Agyle”).
Subsequently, by signing this Annexure Client confirms: (i) Client’s wish to opt-in to Agyle, and for the Client to have the opportunity to purchase Agyle media in connection with the provision of the Services hereinunder.
The following defined terms, when used in the main body of the Agreement and/or this Annexure A shall have the following meaning. All other terms used herein but not defined in this Annexure A will have the meaning set out in the main body of the Agreement:
- Media Expenditure: means such amount of media expenditure as is approved by the Client in the media plan for the purchase of Agyle media from the Agency.
- Media Owner: means a supplier from which the Agency’s Affiliate purchases Agyle media inventory for resale to the client.
- Resale Program: means the program operated by the Agency’s Affiliate under which the Agency’s Affiliate buys Agyle media from Media Owners for bespoke opportunities on its own account and at its own risk for resale to client who have opted in.
- Services: means sale of Agyle media by Agency to the Client in accordance with the Approval Items.
The Agency shall be entitled to provide the Services on the terms set out in the Agreement and this Annexure A.
In the absence of any terms on cancellation and amendment of media bookings and liability under the Agreement, (i) the Agency will only accept requests to cancel or amend any media bookings where it is in turn able to cancel or amend that booking with the Media Owner through Agency’s Affiliate; and (ii) the Agency’s liability to the Client in respect of the acts and omissions of the Media Owner in relation to this Agreement shall be limited by the Media Owner’s terms and conditions of booking (“MO Terms”) and shall not exceed the liability of the Media Owner to the Agency/ Agency Affiliate.
5. Payment Terms
The Client will pay the Media Expenditure to the Agency upon receipt of a valid invoice. Unless otherwise stated in the Approval Items, all sums are payable in Indian Rupee (INR) and exclude GST or any other tax, which shall be payable in addition at the applicable rate at the time of invoicing. The payment terms and terms for interest on late payment agreed between the Client and the Agency in the Agreement shall apply in respect of the Resale Program. It is clarified that the invoice raised by the Agency Affiliate to the Agency for media purchased under the Resale Program shall be deemed to be the requisite and valid supporting document against the invoice raised by the Agency to the Client, in relation to the Services.
6. Parties hereby agree and understand that by opting in to Agyle, the Client derives the benefit of securing a better return on its investment as compared to direct buying of such media inventory.
7. Except as expressly set forth herein, all the other terms and conditions of the Agreement shall remain unaltered and continue to be binding until specifically agreed upon in writing.