1. Services

The agency (“Agency”) and client (“Client”) signing the statement of work or other mutually agreed order form ("SOW”) for Agency to provide certain advertising, marketing, and related services (“Services”) to Client pursuant to such SOW agree that any such Services shall be governed by these terms and conditions (the, “Agreement”).  To the extent the terms of this Agreement and any SOW conflict, the SOW(s) will control. 

2. Services Fees

During the term of this Agreement, Client shall pay to Agency the fees (the “Services Fees”) as set forth in the applicable SOW.  Unless specified otherwise in a SOW, Client shall pay the Services Fees to Agency no later than thirty (30) days after the applicable invoice date from Agency. Services Fees exclude applicable taxes and Client shall be responsible for all taxes in connection with the Services (excluding taxes based on Agency’s net income, property or employment).  Client shall also pay Agency for the out-of-pocket costs due to a third-party (“Third Party Vendor”) (such as software, platform, or data licenses, media placements, production services, or other goods or services acquired by Agency on Client’s behalf   with Client’s approval (“Expenses”), Unless otherwise agreed in a SOW, Agency will invoice Client for such Expenses on an estimated basis due in advance of occurring any such Expenses, such invoices to be due no later than thirty (30) days from the date of invoice, unless a shorter period is required to meet Client’s deadlines with Client’s approval (email acceptable).  These estimated Expenses will be adjusted to actual amounts once the final costs on these invoices have been received and processed, and any adjustments shall be reconciled and paid/credited on a subsequent invoice. Agency and Client agree that Agency may receive refunds/credits for invalid activity/click fraud after the applicable Services have been provided and in periods where Client’s books are closed or after the applicable campaign has ended. In such cases, Agency will apply received refunds/credits from prior periods as credits to current periods.

All invoices shall be deemed accepted unless disputed in good faith within thirty (30) days after the invoice date. If an invoice is disputed, Client shall pay the undisputed portion of the invoice when due. Late payments shall accrue interest daily following the due date at the lesser of 1.5% per month or the maximum interest allowed by applicable law.   Agency reserves the right (without limiting its other rights or remedies) to suspend all Services in the event of late payment.  Client shall also pay to Agency costs and expenses, including reasonable attorney’s fees incurred in collection of any delinquent amounts.

Deliverables (as defined herein) and Services shall be deemed accepted if used by Client for the purpose for which they were developed. 

If, for any reason, Agency reasonably believes that Client will not be able to meet its financial obligations under this Agreement, Client agrees to arrange for suitable financial assurances to be made to Agency. If such assurances are unavailable or are, in Agency’s reasonable opinion, not sufficient to meet the commitments to Third Party Vendors of Client, then Agency shall be entitled to require Client pre-pay all charges and suspend further performance (including incurring any obligations to Third Party Vendors). 

3. Affiliates 

This Agreement may be used where Client Affiliates (as defined below) wish to order, and/or Agency Affiliates wish to supply, Services under a direct contractual relationship between such Affiliates. If so, the relevant Affiliate(s) shall execute an SOW in their name(s), which shall constitute a separate legal agreement between the parties to that SOW incorporating the terms of this Agreement (with references to a ‘party’, the ‘parties’, ‘Agency’ and/or ‘Client’ in this Agreement being interpreted accordingly), and any and all rights, liabilities, obligations and/or claims arising out of or in connection with such SOW shall be solely between the parties to it. “Affiliate(s)” for the purpose of this Agreement shall mean an entity under the control, is controlled by or under the common control with another entity.  Agency may contract out or otherwise delegate its obligations to render the Services hereunder to one or more of its Affiliates or a third-party of its choosing (each a “Subcontractor”), without prior disclosure to or specific written approval by Client, provided Agency will remain liable for any breach of this Agreement by its Subcontractors. 

4. Authorizations

Unless applicable law or industry custom or practice in a particular territory is for Agency to act as principal, Client appoints Agency as its agent to carry out Services hereunder where provided for in applicable SOWs and related authorization forms, if any (“Authorizations”). Where media planning and buying is provided for in a SOW, Agency will establish accounts with its media vendors and other technology and service vendors, including but not limited to, search engine partners on behalf of Client.  These accounts will be managed by Agency.  Client agrees to be bound by the applicable terms and conditions entered into by Agency for the benefit of Client.  Without limiting the foregoing and unless applicable law or industry custom or practice in a particular territory is for Agency to act as principal, Agency shall not be required to pay for such purchases unless and until Client has paid Agency in full for such purchases and/or the corresponding Services/Deliverables derived from such purchases.  Until such time, Client shall remain solely responsible for such purchases.  Agency has the right to confirm with vendors and service providers that they expressly agree to payment in accordance with the foregoing terms.  All usage statistics for media-related activities, including billing and reporting data, will be based upon usage statistics as determined by Agency by using its own statistics or statistics. 

5. Client’s Representations and Responsibilities

(a) In performing this Agreement, Agency may make use of artwork, logos, slogans, taglines, stills, moving audio, video files, copyrighted works, trademarks, trade dress, other intellectual property rights, information, data, rights or other material, including without limitation, graphic design, copy writing, animation, sound production, video, graphic production, html, code, software, data, databases, keywords (including those requested by Client), links, cookies, pixels, tags, locally shared objects, methodologies, programs, tools, marketing strategy documents, advertising materials and other creative or marketing materials or competitive, industry or product information or claims, that is provided or approved by or on behalf of Client or provided directly to Third Party Vendors (“Client Materials”). Client grants to Agency a non-exclusive, worldwide, fully paid license (with the right to sublicense as necessary to perform the Services) to use as directed by Client including the right to reproduce, create derivative or collective works from, distribute, modify, store, publicly display and publicly perform the Client Materials in connection with performing this Agreement, all as directed by Client.

(b) Client warrants that (i) it will comply with laws applicable to the performance of its obligations (including, but not limited to, those under the Federal Trade Act and state and local consumer protection laws, trade regulations, health and safety laws, Controlling the Assault of Non- Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), (15 U.S.C. §§ 7701–7713),the Telephone Consumer Protection Act, 47 U.S.C. § 227 and its implementing regulations (47 C.F.R. § 47.1200), the Telemarketing and Consumer Fraud Abuse Prevention Act and the Telemarketing Sales Rule (16 C.F.R. Part 310) and state statutes and regulations governing telemarketing) (ii) the Client Materials do not contain viruses or any computer code, files or programs designed to interrupt, destroy or limit the functionality of any software, hardware or telecommunications equipment; (iii) when used in accordance with this Agreement the Client Materials: (1) do not infringe the intellectual property or other rights of a third party; (2) do not contravene any applicable laws, regulations, guidelines, codes of practice or advertising standards, or Client’s own policies, and are not false, deceptive, indecent, defamatory or misleading; and (3) have been obtained with all necessary rights, licenses, permissions and consents to allow for such use. Client shall review all advertising or other materials prepared under this Agreement for its products or services in order to ascertain that all claims or representations made therein, whether direct or implied, are (i) true, accurate and supportable by objective and reliable data in Client’s possession and are not deceptive or misleading; and (ii) Client shall confirm the accuracy and legality of the descriptions and depictions of the products and related services and/or any competitive products or services.  Client is solely responsible for the Client Materials and for approving the form and content of any and all websites or content created, designed or provided to Client by Agency.  Client is responsible for any claims, causes of action, fees, fines, damages, and any and all other legal liability arising out of or relating to the Client Materials, any content on any website owned or operated by Client, whether created, designed or provided by Client, Agency, or any third party.  Client warrants  that any action taken at Client’s direction will comply with applicable law.

 (c) Client is solely responsible for the operation, function, up-time connectivity, accessibility, use and security of Client's websites, content management systems, blogs, web and mobile applications, and all other digital and online assets and tools utilized by Client in connection with Agency’s performance of the Services, and all data and content therein (collectively, the "Client Platform"). Agency shall have no liability for any loss or damage: (i) to the Client Platform; (ii) arising from or relating to Agency's access or use of the Client Platform; and/or (iii) arising from or relating to the damage, malfunction or loss of use of the Client Platform. Unless otherwise agreed in writing, Client is solely responsible for the deployment and implementation of technologies and tools within the Client Platform, including, without limitation, the deployment of pixel trackers.

(d) Agency shall have no liability or responsibility for any delay, lost opportunity, lost profits, or loss of any investments arising from or relating to Client's failure to make any adjustments, modifications, or improvements to the Client Platform as reasonably requested by Agency or as required for Agency's performance hereunder.

(e) Client shall be solely liable for its compliance with all policies, rules and regulations of the applicable third-party tools (such as social media platforms) which Agency will utilize in performing the Services and of which Agency has provided notice to Client in writing (email acceptable). Any action by a third-party platform caused by Client's action or inaction shall not suspend or otherwise relieve Client of its obligations hereunder or cause any liability to Agency.

(f) Client shall be responsible for payment of any licensing or royalty fees resulting from unauthorized use of graphics, music, creative, film, photography, design, animation, data, information, and content in any materials it provides to Agency for the provision of the Services, including the Client Materials.

(g) Agency shall, at Client's cost, use reasonable endeavors to obtain for Client all usage rights in Third Party Vendor materials as agreed by the parties.  Client is responsible for all other third party clearances, including those necessitated due to Client’s specific industry/business. Client will be responsible for any out-of-pocket legal expenses needed in connection with legal review of creative materials.

7.  Intellectual Property

(a) Except as expressly set forth in this Agreement, nothing contained herein or otherwise shall be deemed to grant to Client any right, title or interest in any Agency Intellectual Property. “Agency Intellectual Property” means the intellectual property and other proprietary rights worldwide of Agency and its licensors, including without limitation, all copyrights, trademarks, trade names, service names, logos, patents, algorithms, taxonomies, APIs, business methods, trade secrets and other intellectual property rights therein, whether now owned or hereafter acquired or developed by Agency that are of general utility to Agency in servicing its clients. Agency Intellectual Property includes any and all improvements, enhancements, updates, upgrades, derivative or collective works, compilations, or other modifications to Agency Intellectual Property. Client recognizes the substantial value of publicity and goodwill associated with Agency Intellectual Property and agrees not to reverse engineer, decompile, transfer to any third party, or prepare derivative works from any Agency Intellectual Property. To the extent that any Deliverables contain any Agency Intellectual Property, Agency hereby grants to Client a limited, revocable, royalty-free, non-transferable right and license, without the right to grant or authorize sub-licenses, to use and reproduce such Agency Intellectual Property only to the extent necessary for Client’s use of the applicable Deliverable for its internal business purposes (which could include the marketing of Client’s products or services). Except as expressly set forth in this Agreement, nothing contained herein or otherwise shall be deemed to grant to Agency any right, title or interest in any Client Intellectual Property. “Client Intellectual Property” means the right, title and interest in and to the intellectual property and proprietary rights worldwide of Client and its licensors, including without limitation, all copyrights, trademarks, trade names, service names, logos, patents, derivative works, modifications, algorithms, taxonomies, trade secrets and other intellectual property rights whether now owned or hereafter acquired or developed by Client.  Agency recognizes the substantial value of publicity and goodwill associated with Client Intellectual Property and agrees not to reverse engineer or decompile any Client Intellectual Property.  Notwithstanding the foregoing, as between Client and Agency, the final original deliverables specified in a SOW that are provided to and fully paid for by Client (the “Deliverables”) shall become the property of Client except for Agency Intellectual Property incorporated therein. 

(b) “Agency General Know How means any pre-existing Agency Intellectual Property that may be included in the Deliverables as well as any of the results and proceeds of any work created by Agency for Client during the performance of the Services which Agency may use generally for its other customers and which are not specific to Client.  Without limiting the generality of this Section, Agency Intellectual Property shall include the following: (i) Agency General Know How; (ii) any programming or code objects or methods that are used in developing or that are embodied in the Deliverables; or (iii) any Tools developed by or on behalf of Agency.

(c) “Tools” shall refer to software code and/or a portion of code that: (a) is used in performance of the Services; or (b) is a component part of the Deliverables that, in its generic form, may have general usefulness in a variety of other software programs or programming applications.

8. Agency Representations and Warranties. 

Agency represents and warrants that: (i) it will perform the Services and provide the Deliverables in a competent and professional manner, compliant with laws applicable to its performance and consistent with customs and practices of its industry; (ii) the Deliverables will conform to the specifications in the applicable SOW in all material respects at the time of delivery; and (iii) it will provide suitable personnel with appropriate levels of experience and seniority to perform the Services and provide the Deliverables, (but, for the avoidance of doubt, levels of resource or individual personnel identified in any staffing plan related to any SOW are informational only and may be substituted by Agency in its sole discretion).

9. Limited Licenses; Cooperation

Client hereby grants to Agency a non-exclusive, worldwide, fully paid license (with the right to sublicense to third party vendors solely as required to perform the Services) to use, reproduce, distribute, modify, store, publicly display and publicly perform the Client Materials in connection with performing its obligations under this Agreement, all as required or directed by Client in the course of Agency’s performance hereunder.  During the term of the Agreement, Client grants to Agency a non-exclusive, worldwide, limited license to use and reproduce Client’s trademarks, trade names and logos (collectively, “Client Marks”) solely in connection with the Services.  All use of the Client Marks shall be in accordance with Client’s written (email acceptable) direction and shall inure to Client’s benefit.  Client grants to Agency a non-exclusive limited license to use samples of any Deliverables provided by Agency to Client hereunder in Agency’s portfolio of Client work (including any portfolio on an Agency website) provided that Agency maintains the confidentiality of any Confidential Information (as defined herein) of Client.  Client also agrees to work diligently with Agency and shall perform all tasks reasonably necessary to enable Agency to provide the Services in accordance with this Agreement.  In addition, Client shall reasonably notify Agency of any material modifications to Client’s website(s), as some modifications to the website may adversely affect search engine results.

10. Trademarks 

Upon Client’s request and at its cost, Agency will provide preliminary trademark scans based on publicly available sources of any trademarks, service marks, trade names and slogans for the territories agreed upon (the "Marks“) Agency may create as part of the Services.  The final decision as to whether a Mark is clear for use in any territory shall be Client’s. Agency shall not be liable for any claims arising from any use of any Marks.

11. Term and Termination 

(a)  This Agreement shall commence on the Start Date, as stated on the Cover Sheet and shall terminate as follows.  Either party may terminate this Agreement or a SOW for convenience by providing the other party not less than three (3) months’ written notice. To the extent any SOWs remain in effect upon expiry of the notice served above, each such SOW shall continue in effect for its full duration, unless also so terminated. Consequently, this Agreement shall also continue in full effect until six (6) months after the last such SOW terminates or expires, upon which this Agreement will automatically terminate. Termination or expiration of a SOW shall not terminate this Agreement or any other SOW.  Either party may terminate this Agreement and any SOW generated hereunder upon the material breach of the terms and conditions hereof by the other party, including for failure to pay fees due hereunder.  The non-breaching party must give the breaching party written notice of its intent to terminate stating specifically the basis for the breach, and the breaching party shall have thirty (30) days after receipt of such notice to cure the breach where such breach is reasonably capable of cure, after which, if such breach has not been cured, the non-breaching party may terminate this Agreement.

(b) Upon termination of this Agreement, the provisions that are intended to survive shall so survive, including Section 2 (to the extent there are unpaid Services Fees through the date of termination).  Upon termination of any SOW pursuant to which Agency has provided tracking pixels to Client, Client shall immediately remove such tracking pixels from all of its websites.

(c) In addition, in no event may Client reduce the scope of Services or cancel any Services without mutual written agreement of Agency. 

(d) Client shall pay Agency any and all Service Fees due under the applicable SOW through the effective date of termination, including work in progress, and for expenditures or obligations incurred by Agency pursuant to this Agreement that Agency is unable to cancel or mitigate using reasonable efforts, including early termination fees or penalties.

12. Confidentiality 

(a) “Confidential Information” shall mean any information of either party, and/or their Affiliates,  which is, or should be reasonably understood to be confidential or proprietary to the disclosing party, including, but not limited to, the terms and conditions of this Agreement and any information concerning or relating to: (i) the disclosing party’s proprietary technology and products, including without limitation, the Services, software, inventions, patent applications, techniques, processes, developments, algorithms, formulas, technology, designs, schematics, drawings, engineering, and hardware configuration information; and (ii) the disclosing party’s proprietary information relating to the disclosing party’s operations and business or financial plans or strategies, including but not limited to markets, financial statements and projections, product pricing and marketing, financial or other strategic business plans or information, disclosed to the receiving party by the disclosing party, either directly or indirectly, in writing, orally, electronically, or by drawings or inspection of samples, equipment or facilities. Confidential Information shall not include information which: (i) is known to the receiving party prior to the disclosure by the disclosing party; (ii) has become publicly known and made generally available through no wrongful act of the receiving party; (iii) has rightfully been received by the receiving party from a third party who is authorized by the disclosing party to make such disclosures; (iv) was independently developed by the receiving party without any use of the Confidential Information of the disclosing party, as demonstrated by files created at the time of such independent development; or (v) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement. 

(b) Confidential Information includes “Personal Information” which is defined as any information that relates to an individual person and that, alone or in combination with other data, can be used to identify, contact, or precisely locate an individual person,

(c) Each party shall treat as proprietary and shall maintain in confidence all Confidential Information of the other and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use any such Confidential Information other than in furtherance of its obligations hereunder.  A party receiving Confidential Information will restrict possession, knowledge, development and use of such information to its employees, agents, Affiliates and Subcontractors to the extent they have a need to know the information and may not use the Confidential Information for any other reason than to perform its obligations under this Agreement, except as provided herein, without the express written consent of the disclosing party. Each party will employ the same measures that it uses to protect its own Confidential Information, which shall not be less than reasonable, to protect the Confidential Information of the other party from unauthorized or inadvertent use or disclosure.  In the event that the receiving party receives a request from a third party requiring the production of information pertaining to the disclosing party, the receiving party will give the disclosing party prompt notice, to the extent permitted by law.  The disclosing party shall hold the receiving party harmless from and be responsible for any costs or expenses incurred by the receiving party incurred in as a result of such disclosing party’s request(s).

(d) At the disclosing party’s request, the receiving party shall destroy or return (at Client’s expense) to the disclosing party all of its Confidential Information, and the receiving party may keep copies only for compliance and archival purposes or to comply with applicable laws. 

13. Non-Solicitation Covenant  

During the term of this Agreement and for a period of one year following the delivery of any Services by such an employee of Agency to Client, each party agrees that it shall not (a) solicit employment of; (b) offer employment to; or (c) hire as an independent contractor, any employee of the other party that was involved in the Services. The foregoing shall not apply to an employee that voluntarily replies to a public job posting or a recruiting firm not directed at such employee.

14. Security

The parties shall maintain at all times the following information security practices that meet or exceed ISO27001:2013 or its successor to ensure the confidentiality, integrity, and availability of Confidential Information processed in connection with the Agreement: (i) a written information security program that includes information security and privacy awareness training for all personnel; and (ii) physical, technical, administrative, and organizational controls for the security of any and all computing equipment, systems, storage devices, networks, mobile devices, backup systems, and other electronic equipment and storage and business facilities that house physical copies (in paper or on portable media) of data processed in connection with the Agreement.

In the event of a confirmed incident which results in the accidental or unlawful destruction, loss, alteration, acquisition or unauthorized disclosure of, or access to Personal Information (“Data Security Incident”) the impacted party shall: (i) notify the other party within a reasonable period after becoming aware of the Data Security Incident, (ii) take immediate steps to  investigate the nature and scope of the Data Security Incident, and (iii) take commercially reasonable efforts to mitigate the effects of any such Data Security Incident on the security, confidentiality and integrity of Personal Information.

15. Privacy

(a) Client, in fulfilling its obligations under this Agreement, will (i) adhere to applicable privacy laws and regulations including, but not limited to, Section 5 of the FTC Act, the California Consumer Privacy Act of 2018, and other similar federal and state laws (collectively, “Privacy Laws”) (ii) to the extent applicable, adhere to the Self-Regulatory Principles for Online Behavioral Advertising (located at http://www.aboutads.info/principles, the “DAA Code”), and (iii) post a privacy policy and other applicable disclosures that are in accordance with Privacy Laws and, to the extent applicable, the DAA Code. Client understands and agrees that its required privacy disclosures may include the use of the advertising option icon and other forms of enhanced privacy disclosures. Client shall further ensure that its actual privacy practices comply with its respective privacy policies. Client further agrees, unless otherwise agreed in a SOW, not to transmit to Agency, its information providers, licensors, licensees, consultants, contractors, agents, attorneys or employees, and Agency shall not solicit or collect, any Personal Information of the visitors or customers to Client's websites unless required by law or court order, or otherwise agreed in writing and signed by an authorized representative of Agency. Both parties understand and agree, unless otherwise agreed in a SOW, not to transfer to the other Personal Information for the purposes of engaging in Online Behavioral Advertising as defined by the Network Advertising Initiative Code located at www.networkadvertising.org (the “NAI Code”). Agency may track delivery and collect performance data through its advertising technology and otherwise use its proprietary technology and third party advertising technology for purposes of performing hereunder. 

(b) To the extent, if any, that Agency Processes Personal Information solely on behalf of Client (“Client Personal Information”) in the course of providing the Services to Client, Agency shall be considered a Service Provider and Client a Business for the purpose of compliance with the Privacy Laws.

(i) Agency agrees that it will not use, retain or disclose Client Personal Information for any purpose (including for any commercial purposes, as defined in the Privacy Laws), other than for the specific purpose of performing the Services specified in this Agreement or as otherwise permitted by Privacy Laws (the “Permitted Purpose”).  Agency shall not use, retain or disclose Client Personal Information outside the direct business relationship it has with the Client.  Agency understands these restrictions and will comply with them.

(ii) If the Services include the sharing of Client Personal Information by Agency in a manner that would be considered a Sale under Privacy Laws (e.g., to certain media suppliers), Client undertakes to provide all notices required by Privacy Laws and to provide its Consumers with a “Do Not Sell My Personal Information” option on its mobile applications, website, or other online properties from which such Client Personal Information is Collected, and Agency and Client will agree on a mechanism, reasonably acceptable to Agency, for flagging such opt-out requests to Agency during the course of providing the Services to Client.   Accordingly, Client will cease sharing such Client Personal Information with Agency and notify Agency so that Agency may cease sharing Client Personal Information of the Consumers who opted out.  Client, as a Business, shall be solely responsible for deciding whether the “opt-out” or any other Consumer rights prescribed by Privacy Laws are required.  If necessary, under the scope of work of this Agreement, Client and Agency will mutually agree on processes and procedures to satisfy requests related to Clients’ Consumers’ rights to opt-out, access, and/or erase the Client Personal Information as required under the Privacy Laws.  Both parties shall comply with their respective obligations under the Privacy Laws.

(iv) For the purpose of this clause, “Business”, “Collection”, “Consumer”, “Process”, “Selling”, Sale” and “Service Provider” shall have the meaning ascribed to them in the Privacy Laws.

16. MUTUAL WARRANTY AND WARRANTY DISCLAIMER 

(a) Each party hereby represents and warrants that it has in place reasonable precautions to prevent unauthorized system access and to avoid the spread of malware from its systems and networks and shall promptly notify the other party of any suspected security incident related to its use of the other party’s systems and networks.

(b) OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AGENCY, ITS AFFILIATES, AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES (THE "AGENCY PARTIES”) DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CLIENT, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES OR OTHER DELIVERABLES PROVIDED HEREUNDER, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY.  WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.  FURTHER, THE AGENCY PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION. CLIENT ACKNOWLEDGES THAT AGENCY HAS NO CONTROL OVER INFORMATION AND MATERIALS ONCE THEY HAVE BEEN PUBLISHED, RELEASED OR POSTED IN THE PUBLIC DOMAIN AS REQUESTED OR APPROVED BY CLIENT, INCLUDING, WITHOUT LIMITATION, VIA SEEDING MATERIALS ON SOCIAL NETWORKING WEBSITES, VIDEO SHARING WEBSITES, THE USE OF INTERNET-BASED “WIDGETS” OR ANY OTHER PLATFORMS THAT MAKE USE OF USER-GENERATED CONTENT.  AS SUCH, AGENCY SHALL NOT BE RESPONSIBLE FOR ENSURING THE ACCURACY OF ANY CONTENT ANY THIRD PARTY PUBLISHES INCLUDING, TEXT, PHOTOGRAPHS, AUDIO OR VIDEO OR FOR ANY OTHER THIRD-PARTY ACTIONS. 

17. Limitation of Liability; Indemnification

(a) Limitation of Liability.   NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, COSTS OF COVER, OR THE LIKE) WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY UNDER ANY AND ALL CIRCUMSTANCES EXCEED THE AGGREGATE SERVICE FEES (EXCLUDING FEES PAID TO THIRD PARTIES) PAID BY CLIENT TO AGENCY UNDER THE APPLICABLE SOW DURING THE 12 MONTHS PRECEDING THE DATE THAT THE CLAIM IS MADE GIVING RISE TO THE LIABILITY.                   THE FOREGOING LIMIT SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS. CLAIMS FOR DAMAGES MUST BE MADE BY A PARTY WITHIN ONE (1) YEAR OF THE CLAIM ARISES OR BE FOREVER BARRED. 

(b) Client Indemnification. Client agrees to defend, indemnify and hold Agency, its parent and Affiliates and all of their directors, officers, employees, agents, shareholders, partners, members or other owners, harmless against any and all third party actions, suits, proceedings, claims, judgments, damages, costs and expenses, including reasonable attorney’s fees, and other liabilities (collectively, “Liabilities”) arising from or related to (a) Client Materials, and Client Intellectual Property, including the inaccuracy, incompleteness or impropriety of information provided by Client to Agency; (b) any breach of Client’s representations, warranties and covenants set forth in this Agreement; (c) acts by Client or its officers or employees of gross negligence or willful misconduct; (d) death, injury to person or damage to tangible property arising from use of Client's Products; (e) contracts entered on behalf of Client with authorization from Client; (f) payments for authorized third party costs that Client fails to pay in accordance with this Agreement; (g) risks or restrictions identified by Agency and communicated to Client in writing where the Client elects to proceed; (h) Deliverables or work product modified by Client in contravention to Agency direction after delivery by Agency or used beyond the terms agreed by Client in writing; (i) any legal proceedings to which Client is a party and Agency or any of its Affiliates, employees or affiliates is subpoenaed or requested to provide information or produce documents related to the services under this Agreement; or (j) Client’s determination not to use union members for any production handled by Agency for Client.

(c) Agency Indemnification.  Agency agrees to defend, indemnify and hold Client, its parent and affiliates and all of their directors, officers, employees, agents, shareholders, partners, members or other owners (“Client Parties”), harmless against any and all Liabilities arising from or related to (i) any gross negligence or willful misconduct by Agency in performing its obligations under this Agreement; and (ii) any claim that the Deliverables or Agency Intellectual Property, when used as agreed, violates or infringes upon the copyright of any third party. The foregoing indemnity shall not apply where:  (1) such Liabilities arise from Client Materials; (2) such Liabilities arise from the use by the Client Parties of the Deliverables or any Agency-supplied materials other than as agreed in advance; (3) Agency advises Client of the risk associated with the use of certain materials and Client elects to proceed; (4) such Liabilities arise from the use outside of the agreed upon territory of any Deliverables created by Agency hereunder; (5) such Liabilities are based on alleged third-party trademark rights, Marks (other than Cleared Marks), third-party patent rights and/or user-generated content; (6) such Liabilities involve any areas of responsibility for which Client is obliged to indemnify Agency; (7) Services or Deliverables designed in accordance with Client’s specifications, where the alleged infringement relates to such specifications; (8) Services or Deliverables that have been modified after delivery by Agency; or (9) the combination of Services or Deliverables with other services, data, products, processes or materials where the alleged infringement relates to such combination.

18. Unions & Guilds

Client will be responsible for union or guild obligations including payment of all amounts due based on use of union or guild talent, for which Agency shall prepare an estimate for Client’s review and approval.  Under no circumstances will Agency be liable for any such amounts.

19. Entire Binding Agreement

This Agreement and any attached exhibits are the entire agreement between the parties with respect to the subject matter hereof.  No other agreement,  statement, or promise (whether written or oral) made by any party, or by any employee, officer, or agent of any party regarding the business relationship between the parties, that is not contained in this Agreement shall be binding or valid, unless such agreement shall be in writing and signed by the parties hereto after the execution of this Agreement. 

20. Assignment; Amendment

Client may not assign this Agreement without the prior written consent of Agency which shall not be unreasonably withheld.  Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate, successor of its business, or to an entity as a result of a corporate restructuring, including any internal reorganization or change of control without the other party’s consent.  Any assignment in violation of this Section shall be void.  This Agreement may not be modified or amended except by a writing signed by the parties hereto.

21. Change in Laws.  

In the event of any material changes to applicable law or industry self-regulatory guidelines, either party may suspend or terminate the impacted part of the Services or Deliverables upon reasonable notice to the other party, or the parties may change the terms related to the impacted part of the Services or Deliverables upon mutual written agreement.

22. Waiver 

The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of the Agreement.

23. Force Majeure

Neither party shall be deemed in breach of this Agreement to the extent that performance of its obligations (other than Client’s payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, pandemic, epidemic, quarantine restrictions, or any other cause beyond the reasonable control of such party. Agency shall endeavor to guard against any loss to Client as the result of the failure of third parties to properly execute their commitments, but Agency shall not be responsible for any such failure.

24. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the law of the state or country of the Agency’s address as set forth on the cover page.  Each party irrevocably agrees that the courts of such state or country shall have exclusive jurisdiction over any such dispute or claim.

25. Notice 

All notices, requests, demands, and determinations under this Agreement (other than routine operational communications), shall be in writing and shall be deemed duly given upon receipt and may be delivered by (i) hand; (ii) express courier with a reliable system for tracking delivery; (iii) confirmed facsimile with a copy sent by another means specified in this Section, or (iv) recognized national mail/postal service, registered or certified mail, return receipt requested, postage prepaid. Any notice required or permitted by this Agreement shall be in writing and addressed to the other party’s primary contact with a copy to the other party’s legal department. For Agency, copy shall be sent, attn: General Counsel, 150 E. 42nd Street, 14th Floor, NY, NY 10017 and notices@dentsu.com. If received via email, the notice shall be deemed received upon receipt of the email.

26. Travel

Clients are encouraged to have in-person meetings with their team on a regular basis, whether they travel to Agency’s offices or invite the team to the Client’s location. In either case, all costs related to lodging, food and transportation are the responsibility of Client in full.

27. Severability 

In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect.

28. Counterparts

This Agreement may be signed in counterparts, each of which will be deemed to be an original, as against any party whose signature appears thereon and all of which together constitute one and the same instrument.  This Agreement will become binding when one or more counterparts hereof, individually or taken together, will bear the signature of all of the parties reflected hereon as signatories.  A faxed signature or a signature in pdf format will have the same legally binding effect as an original signature.