Last Updated – May 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;
“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 DPA) 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;
“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;
"DPA" means the Data Privacy Act of 2012;
“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.
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.
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 copy 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 copy 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 directly i) to Agency the Agency Fees in accordance with each Statement of Work and ii) to Suppliers the Charges payable under any Supplier Contracts.
6.2 Amounts stated are exclusive of applicable tax, 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 Where Charges are payable by Client directly to the Supplier, the Client shall be invoiced by, and directly liable to, the Supplier in accordance with any Supplier Agreement and related order, media plan or statement of work as the case may be. For the avoidance of doubt the Client is directly liable for all Charges payable under Supplier Contracts and shall fully indemnify and hold the Agency free and harmless against any claim of any nature by a Supplier pursuant to a Supplier Contract.
6.5 If withholding tax is required by applicable Philippines tax law or regulations on any Agency Fees or Charges payable to Agency, the amount payable by the Client shall be net of expanded withholding tax. Client is solely responsible for deducting, paying and accounting for withholding tax on all payments to Agency, whether in respect of Agency Fees or Charges due to Suppliers.
6.6 Agency shall issue an official receipt to the Client for amounts received in payment of Agency invoices, and Client shall issue to Agency an expanded withholding tax certificate in respect thereof;
6.7 Client is responsible for (i) obtaining from the Suppliers official receipts for the amounts paid to them by Agency on behalf of Client; and (ii) issuing to the respective Suppliers the expanded withholding tax certificates in respect of the withholding tax required to be deducted at source by the Client.
6.8 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 2% per month from the due date until the date of payment in full.
6.9 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.
6.10 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.
6.11 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.
6.12 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 material 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 gross 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 DPA) 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 DPA) 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 the Agreement or make any announcement relating to the Agreement or its subject matter without the prior written approval of the other party.
14.3 Except as otherwise permitted by the 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.
15. DATA PROTECTION
15.1 Each party shall comply with its obligations under the Data Privacy Act of 2012 and its implementing rules and regulations (“Act”).
15.2 To the extent that either party controls the collection, holding, processing and use of Personal Data (the “Personal Information Controller”), that party represents and warrants that:
a. each relevant data subject has given the required written consent, specific to the purpose(s), prior to the processing of his or her Personal Data, to enable both parties to use, disclose or transfer such Personal Data (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 as otherwise contemplated in this Agreement;
b. it has implemented reasonable and appropriate security arrangements to protect the Personal Data from unauthorised use or disclosure;
c. it has implemented reasonable and appropriate arrangements to comply with the Act and other laws in respect of processing, use and storage of Personal Data; and
d. if it receives any requests as described in 15.2(c) below which may be relevant to the party processing the Personal Data for the Personal Information Controller (such party’s“Personal Information Processor”), it shall notify the Personal Information Processor of any such requests in a timely manner.
15.3 Personal Information Processor must :
a. process the Personal Data only in accordance with Personal Information Controller’s reasonable and lawful instructions;
b. provide reasonable assistance to Personal Information Controller to respond to a data subject's request to correct an error or omission in Personal Data or to withdraw consent to the collection, use or disclosure of Personal Data under this Agreement;
c. provide reasonable assistance to Personal Information Controller to respond to an access request submitted by a data subject (whether received directly or indirectly through Personal Information Controller) in accordance with the Act; and
d. take all appropriate steps to implement and maintain reasonable security arrangements for the protection of Personal Data in accordance with the requirements of the Act and other applicable laws.
15.4 The Client represents and warrants that it will not merge or match the Deliverables with the Client’s Personal Data 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 UK Bribery Act 2010 ("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 agent for Client in respect of dealings with Suppliers and shall place orders and enter into Supplier Contracts in the name of and on behalf of the Client. The Client (a) shall execute such other agreements and other documentation as the Agency may reasonably require to give effect to such appointment in respect of the Supplier Contracts, and (b) hereby acknowledges that as the principal of the Agency in all Supplier Contracts, the Client is directly liable for all Supplier Contracts and shall hold the Agency free and harmless against any claim by a Supplier pursuant to a Supplier Contract.
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 The 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)) be governed by and construed in accordance with the laws of the Philippines.
17.11 Any and all disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, which is not settled amicably by the parties within 30 days from receipt of a notice of dispute, shall be referred to and finally resolved by binding arbitration administered by the Philippine Dispute Resolution Center, Inc. (“PDRCI”) in accordance with the PDRCI Rules. The venue of the arbitration shall be in Makati City, Philippines, and the language of the arbitration shall be English. The arbitration tribunal shall consist of one arbitrator appointed by the Chairman of the Philippine Institute of Arbitrators. 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 Agency Fees and/or Charges or other amounts payable to Agency; or (b) interim or injunctive relief exclusively in the proper courts of Makati City.