Effective date: September, 2024
1. InterpretationIn these Conditions:
1.1 “Brand Agent X” means the entity providing services under the name Brand Agent X, as registered in New York.
1.2 “Authorized Persons” means the Client’s officers, employees, financiers, and contracted professional advisers who reasonably require access to Confidential Information for the purposes of this Contract.
1.3 “Business Day” means a day that is not a Saturday, Sunday, or public holiday in New York.
1.4 “Confidential Information” means all Information relating to the affairs of Brand Agent X disclosed or made available to the Client or an Authorized Person by or on behalf of Brand Agent X for the purposes of this Contract and includes: 1.4.1 Information that is by its nature confidential; 1.4.2 Information that is identified as confidential; 1.4.3 Information that the Client or Authorized Person knows or ought to know is confidential; 1.4.4 Information comprised in or relating to any Intellectual Property Rights of Brand Agent X or any other person; 1.4.5 Information relating to the financial position of Brand Agent X or any other person; 1.4.6 Information that has any actual or potential commercial value to Brand Agent X or to any other person; and 1.4.7 Derived Information.
1.5 “Client” means the client specified in the Quotation or if there is no such quotation, or there is no Client specified in the quotation, the receiver of the Services from Brand Agent X and includes any servants, agents, or contractors acting on behalf of the Client where the context permits.
1.6 “Conditions” means these terms and conditions.
1.7 “Consequential Loss” includes any loss of data or profits, loss of anticipated savings, economic loss or interruption of business or any other indirect or consequential loss.
1.8 “Contract” means a contract for the supply of Services in accordance with these Conditions, as evidenced by the acceptance of any Proposal and Quotation in accordance with clause 3 from the Client to Brand Agent X.
1.9 “Derived Information” means any information derived or produced by the Client or any Authorized Person wholly or partially from any Confidential Information.
1.10 “Disbursements” means third party costs incurred by Brand Agent X on behalf of the Client which from time to time may be listed in the Quotation or otherwise advised to the Client by Brand Agent X in writing.
1.11 “End Date” means the end date specified in the Quotation, unless automatically renewed in accordance with clause 6.2.
1.12 “Implied Terms” means any guarantees, conditions, warranties or other terms implied by any U.S. federal or state laws, or the laws of any other jurisdiction.
1.13 “Information” means information of any nature, knowledge, technology, ideas, technical data, concepts, techniques, processes, formulae, expertise, models, drafts and diagrams, drawings, computer programs, source codes, object codes, user manuals, programming manuals, modification manuals, flow charts, software listings, trade secrets, inventions, discoveries, designs, methods, know-how, and any other scientific, computing, technical or manufacturing information and data whether recorded or not.
1.14 “Intellectual Property” and “Intellectual Property Rights” include property and rights in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know-how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after this agreement.
1.15 “Liabilities” means liabilities, losses, damages, actions, causes of action, arbitrations, claims, orders, judgments, outgoings, costs (including legal costs calculated on a solicitor and own client basis) and expenses, whether present or future, actual or contingent.
1.16 “Proposal” means any Proposal for Services put forward by Brand Agent X to the Client, which will be subject to a Quotation and these Conditions.
1.17 “Quotation” means a quotation supplied by Brand Agent X to the Client in respect of the Services.
1.18 “Services” means the services provided by Brand Agent X, being a full-service digital marketing agency specializing in SEO, Google Ads, Facebook Ads, sales funnels, branding and corporate identity development and website development, to the Client from time to time and which are the subject of a Quotation.
1.19 “Start Date” means the start date for the Services as outlined in the Quotation.
1.20 “Term” means the term during which Brand Agent X will provide the Services to the Client, which will commence on the Start Date and end on the earlier of the End Date and the date of cancellation of the Contract in accordance with these Conditions.
2. General
2.1 These Conditions apply to all Services provided by Brand Agent X from the date of publication of these Conditions to Brand Agent X’s Clients and the Client is deemed to have read and accepted these Conditions when accepting a Proposal and Quotation in accordance with clause 3.
2.2 These Conditions shall prevail over all inconsistencies in a Proposal and Quotation, unless Brand Agent X expressly agrees otherwise and that agreement is acknowledged in writing.
2.3 Brand Agent X may vary these Conditions from time to time. Any such variations will have effect from the date of publication to the Clients of Brand Agent X. Brand Agent X will notify Clients of any material changes to these Conditions via email or through the Client’s account dashboard. The Client’s continued use of the Services after such notification constitutes acceptance of the updated Conditions.
3. Acceptance of the Contract
3.1 The Client is deemed to have accepted the Quotation provided by Brand Agent X and the terms of the Contract by:
3.1.1 acceptance by e-signing through an electronic signature platform;
3.1.2 signing and returning the acceptance contained in the Quotation; or
3.1.3 making any payment or part-payment to Brand Agent X for the Services; or
3.1.4 instructing Brand Agent X verbally to commence or continue providing the Services;
3.1.5 providing a written acceptance, whether by post, email correspondence, fax or other means, stating that the Client accepts the Quotation or instructing Brand Agent X to commence providing the Services; or
3.1.6 paying any invoices for payment issued by Brand Agent X calculated by the terms of this Contract.
4. Provision of the Services
4.1 Any timeframes for provision of the Services made known to the Client are estimates only and Brand Agent X is not liable for late provision or non-provision of the Services.
4.2 The Client may cancel an accepted Quotation for Services if Brand Agent X is unable to deliver the Services within 90 days of any specified timeframe for the provision of Services.
4.3 Except where clause 4.2 applies:
4.3.1 Brand Agent X is not liable for any loss, damage or delay occasioned to the Client or its customers arising from late or non-provision of the Services;
4.3.2 late provision or non-provision does not vary these Conditions or relieve the Client from its obligations to accept and pay for the Services.
5. Information and Materials Provided by the Client for the Services
5.1 The Client is to provide Brand Agent X with any and all information, material and access that is reasonably requested by Brand Agent X in the timeframe and manner specified by Brand Agent X.
5.2 The Client warrants that such material or information provided is true and correct and that it does not violate any laws or infringe the rights of any third party.
5.3 If the Client fails to provide the information, access and/or materials within the timeframe specified by Brand Agent X then Brand Agent X, in its sole and absolute discretion, may charge the Client additional costs as a result of this delay.
5.4 The Client warrants that it owns or is licensed all intellectual property rights in the information and/or materials provided and indemnifies Brand Agent X against any claim that may be made if the Client is in breach of this clause.
6. Term of the Services and Automatic Renewal
6.1 The Quotation will outline the Term for the Services to be provided by Brand Agent X to the Client, which Term will begin on the Start Date and end on the End Date unless cancelled earlier in accordance with clause 4.2 or clause 21.
6.2 The Term can be automatically renewed at any time by Brand Agent X advising the Client in writing of the extension of the Term, including the proposed extended term, pricing and payment details, and the Term will be automatically renewed in accordance with the terms of the written notice unless the Client advises Brand Agent X in writing within ten (10) Business Days of the date of such notice of automatic renewal that it does not wish for such automatic renewal of the Term to take place.
6.3 The terms of this Contract will apply to any extension of the Term.
7. No Guarantee of Success of the Services
7.1 Brand Agent X will exercise all due care and skill in performing the Services but makes no warranty that the delivery of the Services will:
7.1.1 result in their website being highly ranked organically or their Google Ads being the first that appear;
7.1.2 result in an increase in the business (and profits of the business) of the Client;
7.1.3 result in an increase in the exposure of the brand of the Client;
7.1.4 increase the social media following of the Client;
7.1.5 result in an increase in sales as a result of the sales funnels created;
7.1.6 boost the public profile of the Client; or
7.1.7 result in the Client obtaining any other desired outcome.
8. Websites
8.1 General
8.1.1 Brand Agent X does not warrant that any website it creates for the Client (Website) will be mobile responsive for all devices nor does it guarantee that the website created will be suitable for every website browser.
8.1.2 Brand Agent X does not guarantee the integration, functionality and continual operation of third party integrations, applications, plug-ins and software (Third Party Platforms) that are installed on the Website. Brand Agent X will not be responsible for any loss or damage suffered or incurred as a result of such failure in these Third Party Platforms. The Client also acknowledges and agrees that their activities and use of these Third Party Platforms may be subject to additional terms of service for each Third Party Platform.
8.1.3 While Brand Agent X strives to create websites that are accessible to a wide range of users, Brand Agent X does not warrant or guarantee that the Website created for the Client will include all possible accessibility features or be compliant with all legal requirements related to accessibility. The Client acknowledges and agrees that it is ultimately the Client’s responsibility to ensure their Website includes necessary accessibility features and complies with all applicable legal requirements regarding accessibility. Brand Agent X recommends that the Client consult with an accessibility specialist to ensure compliance with relevant laws and standards.
8.1.4 Brand Agent X recommends that the Client takes out their own insurance policy which covers cyber hacking and loss of business caused by any hacking or failure of the Client’s website.
8.1.5 Brand Agent X recommends that their Clients include on the Website a privacy policy and website terms of use, and Brand Agent X will not include these documents on the Website they produce unless these are provided by the Client.
8.1.6 It is the Client’s responsibility to ensure that the domain name for the Website is secured and that they continue to renew and pay for the renewal of such domain name. If the domain server fails, Brand Agent X is indemnified by the Client for any and all liability, loss or damage that may be suffered as a result of such failure.
8.1.7 If a Client has an existing website and they ask Brand Agent X, as part of the Services, to make amendments or upgrades to that website then Brand Agent X does not guarantee that the amendments or upgrades they made will work and will not be liable for any failure of that website.
8.1.8 The Client gives Brand Agent X permission to access and use their information to third party services that are to be included on their website and to store any login credentials for that service.
8.1.9 Brand Agent X does not have any relationship with users of the Client’s website (End Users) therefore Brand Agent X is not responsible for how the Client handles information on the End Users. The Client is responsible to provide notification to their End Users, and to the relevant authorities if required, of any security breach.
8.1.10 Elements of the Website and Third Party Platforms may automatically update from time to time and the Client agrees to receive such updates.
8.1.11 The Client must not reverse engineer the software or website produced by Brand Agent X.
8.2 Building the Website
8.2.1 If the Client instructs Brand Agent X to transfer the contents of an old website to their new one, or to transfer their website in any manner, then the transfer of this website will be at the sole and absolute risk of the Client and if any data is lost through this process then the Client will indemnify Brand Agent X for any resulting loss or damage as a result of the same.
8.2.2 The number of revisions of the draft website that will be offered by Brand Agent X to the Client will be outlined in the Proposal. If the Client wants further revisions or amendments made to the website in excess of the number outlined in the Proposal then such revisions will be charged to the Client at Brand Agent X’s hourly rate, which hourly rate Brand Agent X will advise to the Client in writing before they proceed to work on such revisions.
8.2.3 If, during the build of the website, a critical error occurs through no fault of Brand Agent X then the Client will indemnify Brand Agent X from any liability, loss or damage that occurs as a result of such critical error.
8.3 Handover of the Website
8.3.1 Once Brand Agent X have completed creation of the website they will pass control of the website over to the Client. From this point in time Brand Agent X will no longer be involved in the maintenance, updating and operation of the website. It will be up to the Client to continue to maintain and update the website and Brand Agent X will not be liable for any failure of the website, or for any error caused by the Client failing to operate or update the website correctly.
8.3.2 Once the website is completed by Brand Agent X and handed over to the Client it will be owned by the Client, subject to Brand Agent X retaining intellectual property rights in the website design in accordance with clause 23.
8.3.3 After the website is handed over to the Client, the Client will be responsible for all backup and security of the website and Brand Agent X will have no liability for this.
8.3.4 If the Client requires any amendments to be made to the website by Brand Agent X after the website is handed over then such works will be charged at Brand Agent X’s hourly rate, which Brand Agent X will advise to the Client in writing.
8.3.5 Brand Agent X will be in no way liable for any loss, damage, demand, liability, claim or expense made against the Client by any third party as a result of the way in which the Client uses the website, including the content posted on the website.
8.4 Ongoing works for websites produced by Brand Agent X
8.4.1 The Client can request that Brand Agent X provide ongoing services in respect of the website, which services will be agreed between Brand Agent X and the Client. Such service will be provided for the monthly fee as provided in writing from Brand Agent X to the Client.
9. Branding and Corporate Identity Development
9.1 Whilst Brand Agent X can assist the client with branding and corporate identity development, including the development of a logo for the Client, it cannot guarantee that this will result in increased sales or business for the Client.
9.2 Brand Agent X will use its best endeavors to ensure that any logo designed for the Client does not impede on the intellectual property rights of any third party.
9.3 Brand Agent X will develop the branding and corporate identity of the Client based on the information and materials provided by the Client in accordance with clause 5.
9.4 Once Brand Agent X has created a logo for the Client: 9.4.1 it will transfer all ownership rights in the logo to the Client upon the invoice/s issued to the Client in respect of these Services being paid for in full;
9.4.1 the Client must have these documents prepared at their own cost. If Brand Agent X are concerned in respect of any terms of this documentation it may seek its own independent legal advice and will reserve its rights to pass this cost onto the Client; and
9.4.2 if the Client requires Brand Agent X to sign any documents to effect clause
9.4.3 it is the Client’s responsibility to ensure that they do all that is necessary to secure their ownership rights in the logo, including registering any trade mark for the logo.
10. Google Ads
10.1 Whilst Brand Agent X can prepare Google Ads for the Client, Brand Agent X cannot guarantee the number of clicks any Google Ad will receive.
10.2 Brand Agent X will research the business of the Client and use high traffic keywords to create the Google Ad.
10.3 The Client’s website may affect the performance of the Google Ad, its positioning and conversions.
10.4 Google Ads will be charged per click, and the Client’s credit card will be provided for these charges to be made to as a disbursement in accordance with clause 17.
10.5 If there is a special offer made by the third party advertisement engine promoter, Brand Agent X does not guarantee that such offer will be ongoing or continuous and such promotion will be in the control of the third party.
10.6 Any account established for the purpose of these advertisements will be an account owned and controlled by Brand Agent X.
10.7 When the Client cancels the Service or at the expiry of the Term, Brand Agent X will pause the account and paid advertisements and remove the credit card details of the Client after the last bill is issued for the paid advertisements to date.
10.8 Brand Agent X cannot control where a paid advertisement gets reposted.
10.9 Images used by Brand Agent X in any paid advertisements are to be royalty-free images and will either be stock pictures or pictures that are taken from Brand Agent X’s website or social media pages. The Client may also provide such images to Brand Agent X for their use. The terms of clauses 23.4 and 23.6 will apply to these images.
10.10 Any Google Ads account will be subject to the terms and conditions of Google.
10.11 The Client acknowledges that Google has the ability to reserve the right to refuse advertisements for any reason. In the event of such refusal the Client acknowledges and agrees that it will remain liable to pay the fees of Google as well as those of Brand Agent X.
11. Facebook Ads
11.1 Whilst Brand Agent X can prepare Facebook Ads for the Client, Brand Agent X cannot guarantee the number of clicks any Facebook Ad will receive, or the impressions or placement of the Facebook Ad produced by Brand Agent X for the Client.
11.2 Brand Agent X will research the business of the Client and use high traffic keywords to create the Facebook Ad.
11.3 The Client’s website may affect the performance of the Facebook Ad, its positioning and conversions.
11.4 Facebook Ads will be charged per click, and the Client’s credit card will be provided for these charges to be made to as a disbursement in accordance with clause 17.
11.5 The Client will need to provide Brand Agent X with access to its Facebook account for the purpose of creating and posting the Facebook Ads.
11.6 Brand Agent X cannot control where a paid advertisement gets reposted.
11.7 Images used by Brand Agent X in any paid advertisements are to be royalty-free images and will either be stock pictures or pictures that are taken from Brand Agent X’s website or social media pages. The Client may also provide such images to Brand Agent X for their use. The terms of clauses 23.4 and 23.6 will apply to these images.
11.8 Any Facebook account and Facebook Ads will be subject to the terms and conditions of Facebook.
11.9 The Client acknowledges that Facebook has the ability to reserve the right to refuse advertisements for any reason. In the event of such refusal the Client acknowledges and agrees that it will remain liable to pay the fees of Facebook as well as those of Brand Agent X.
12. Sales Funnel
12.1 Brand Agent X will use its best endeavors to ensure that the sales funnels it creates will result in sales for the Client, but it cannot guarantee the success of these sales funnels.
12.2 Brand Agent X owns all intellectual property in its sales funnels works and has no obligation to show the Client what it does for the purpose of its sales funnel.
12.3 The Client acknowledges that the sales funnel service provided is an intangible service.
12.4 In order for the sales funnel to work effectively, this will depend on the content of the Client’s website, the performance of any advertising undertaken by the Client (including but not limited to Google Ads and Facebook Ads), and their SEO. Brand Agent X is not responsible for website and SEO that is not created by them and which may result in the sales funnels being unsuccessful.
13. SEO
13.1 The Client acknowledges that SEO listings are organic, meaning there is no way to control how a page is listed through SEO, and SEO is merely a tool to help organic growth and listings of the Client’s website.
13.2 Brand Agent X may arrange for blogs to be published including links to the Client’s website, and information about their products or services to assist in the process of improving the Client’s SEO. This will result in back links being added to the Client’s website, which the Client approves of by instructing Brand Agent X to provide SEO services to them. Brand Agent X has no control over what these back links and blogs will contain nor can they control whether they will continue to stay live.
13.3 The Client understands that if their website is hacked this will cause their SEO rankings to drop and this will be at no fault of Brand Agent X.
13.4 Brand Agent X cannot control any negative SEO that a competitor may use against the Client and does not guarantee that they can remedy any negative SEO.
13.5 Brand Agent X owns all intellectual property in its SEO works and has no obligation to show the Client what it does for the purpose of its SEO.
13.6 When the Term expires or the Client cancels the Contract, Brand Agent X will not be responsible for the removal of any SEO or external links created.
13.7 The Client acknowledges that the SEO service provided is an intangible service.
13.8 If there is any amendment by third parties and their requirements of SEO, Brand Agent X does not guarantee that their SEO practices will mirror the same.
14. General Limitation on Liability
14.1 To the fullest extent permitted by law, Brand Agent X’s liability for any claim arising out of or in connection with the Services shall not exceed the total fees paid by the Client for the Services giving rise to the claim.
14.2 Brand Agent X shall not be liable for any indirect, incidental, special, or consequential damages arising out of or in connection with the Services.
14.3 Brand Agent X is not liable in tort for any loss or damages suffered by the Client or by any third party.
14.4 In no circumstance whatsoever shall Brand Agent X be liable to the Client or to any third party for any Consequential Loss in connection with any Contract or Implied Terms and the Client will keep Brand Agent X fully indemnified against any claim made against Brand Agent X by the Client or a third party for Consequential Loss.
15. Prices and Taxes
15.1 Unless otherwise stated all prices quoted by Brand Agent X are net, exclusive of applicable taxes.
15.2 Any applicable taxes will be added to the amount payable by the Client.
15.3 Brand Agent X may amend their pricing at any time by giving prior written notice to the Client of such amendment.
16. Disbursements
16.1 Any disbursements incurred by Brand Agent X in providing the Services to the Client will be due and payable by the Client and will be in addition to the price of the Services provided by Brand Agent X unless otherwise advised in writing.
16.2 Brand Agent X may require such Disbursements, whether estimated or actual pricing, to be paid for in part or in full before Brand Agent X incurs any Liability for the Disbursements.
16.3 Brand Agent X may, from time to time, require the Client to provide their credit card details to be entered online to the relevant supplier of services to facilitate advertisement spend, like Google Ads, for the ongoing payment of their third party fees. Brand Agent X has no liability to pay any amounts for advertisement spend. Where the Client provides credit card details to Brand Agent X, Brand Agent X will ensure that these details are used only for the purpose of entering them online to arrange the ongoing payments to be taken by direct debit and once these credit card details have been entered online such credit card details will be destroyed by Brand Agent X. The Client must ensure that this credit card always has funds available for the payment of these fees, and if the credit card is declined for any reason whatsoever Brand Agent X will advise the Client of the same and the Client will be required to provide new credit card details within 48 hours of such communication.
16.4 The Client irrevocably authorizes Brand Agent X to provide their information, including their credit card information, to the third party suppliers for the purpose of this Contract, and the Client indemnifies and releases Brand Agent X in respect of any claim or liability that arises from any fraud or misuse of their credit card details that occurs through no fault of Brand Agent X.
16.5 The Client must indemnify Brand Agent X against all Liabilities incurred as a result of any failure by the Client to reimburse Brand Agent X for Disbursements under this clause.
16.6 Brand Agent X will not be liable to the Client for any price amendment of any third party and if a third party amends their pricing then the Client must pay this new pricing.
17. Payment
17.1 Brand Agent X reserves the right to charge the Client for costs incurred resulting from the Client varying its instructions, correcting any errors or omissions referred to in clause 17.2, or requiring Services urgently.
17.2 Brand Agent X will supply the Services on the basis of the Proposal and Quotation and the information provided by the Client. Brand Agent X will not be responsible for any errors or omissions resulting wholly or partially from incomplete or unclear instructions or information provided by the Client.
17.3 The Quotation will specify the proposed payment terms between Brand Agent X and the Client.
17.4 All amounts payable to Brand Agent X by the Client must be paid in U.S. dollars, unless otherwise specified in the invoice issued by Brand Agent X, in any manner required by Brand Agent X in writing and in full without set-off on or before the due date for payment.
17.5 Any costs or charges incurred by Brand Agent X in collecting or attempting to collect overdue amounts must be paid by the Client to Brand Agent X on demand.
17.6 Brand Agent X reserves the right to charge interest at the rate of 1.5% per month on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
17.7 Payment will not be taken to occur until all checks tendered or electronic funds transfer in discharge of amounts owing to Brand Agent X have been presented or received and cleared in full.
18. Administration Fee
Brand Agent X reserves the right to charge the Client a reasonable administration fee for issuing any duplicate invoices, statements or other documents requested by the Client, where such document has previously been provided by Brand Agent X.
19. Quotations
19.1 Subject to clause 5.3, all Quotations are valid for 30 days from the date of Quotation.
19.2 Brand Agent X reserves the right to charge the Client for any costs incurred as a result of the Client varying its Quotation or the Contract, correcting any errors or omissions referred to in clause 19.3, or requiring Services urgently.
19.3 Brand Agent X will supply the Services on the basis of the Proposal and Quotation (whether written or oral). Brand Agent X will not be responsible for any errors or omissions in relation to the Services where those errors or omissions result wholly or partially from incomplete or unclear instructions provided by the Client.
19.4 The Quotation will outline any exclusions from the Services.
20. Cancellation
20.1 Brand Agent X may cancel any Contract any time before Services are provided by giving written notice to the Client. On giving such notice, Brand Agent X will repay to the Client any sums paid in respect of the Services. Brand Agent X will not have any other liability in respect of such cancellation.
20.2 Subject to clause 4.2, the Client may only cancel a Contract in the following circumstances:
20.2.1 by providing thirty (30) days notice in writing of such cancellation; or
20.2.2 at any time except with Brand Agent X’s prior written consent.
20.3 In the event that the Client cancels a Contract otherwise than under clause 4.2:
20.3.1 Brand Agent X may retain any deposit or other sums paid on account of the Services; and
20.3.2 if payment is not already made in full, the Client will be responsible for any losses incurred by Brand Agent X in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss or interruption of business loss or other incidental, consequential or indirect damages).
20.4 In the event the Client cancels a Contract under clause 4.2, Brand Agent X will repay to the Client any sums paid in respect of the Services. Brand Agent X will not have any other liability in respect of such cancellation.
21. Suspension or Termination of Services by Brand Agent X
21.1 If the Client makes a default in any payment due to Brand Agent X, commits any act of bankruptcy or enters into liquidation whether voluntary or involuntary, Brand Agent X may in its absolute discretion, suspend supply of any Services to the Client or cancel any Contract with the Client, without prejudice to any other rights of Brand Agent X.
21.2 No default by the Client or action taken by Brand Agent X under clause 21.1 will prejudice any rights of Brand Agent X against the Client whatsoever, including any right to recover any amounts due for Services previously provided by Brand Agent X to the Client.
22. Confidential Information
22.1 The Client agrees in favor of Brand Agent X that during the term of this Contract, and after the expiration of this Contract, that all Confidential Information provided to the Client or of which the Client becomes aware as a result of this Contract:
22.1.1 will be kept strictly confidential;
22.1.2 will not without Brand Agent X’s consent:
22.1.2.1 be disclosed or divulged to any third party;
22.1.2.2 be copied or reproduced;
22.1.2.3 be used for any purpose or enterprise other than for the purpose of this Contract;
22.1.3 will be safely and securely stored when not in use; and
22.1.4 will remain the absolute and exclusive property of Brand Agent X.
22.2 This duty of confidence does not extend to Confidential Information:
22.2.1 which is known to the Client at the date of this Contract; or
22.2.2 which comes into the public domain after the date of the Contract otherwise than as a result of a breach of the Contract by the Client; or
22.2.3 which is disclosed to the Client by a third party with the right to do so or which is required by law to be disclosed, provided that the Client notify Brand Agent X as soon as such Confidential Information becomes known to the Client; or
22.2.4 which is disclosed by the Client as required by law.
22.3 The Client bears the onus of proof of the matters referred to in clause 22.2.
22.4 The Client must bind its Authorized Persons, employees, and permitted agents and subcontractors (if any) who have access to the Confidential Information to comply with all the Client’s obligations under this clause.
22.5 The Client must indemnify Brand Agent X against all Liabilities in respect of any breach of this clause 22 by the Client or any Authorized Persons, employees or permitted agents or subcontractors of the Client.
23. Intellectual Property
23.1 Pre-Existing Intellectual PropertyNotwithstanding any other clause of this Contract, the ownership of the Intellectual Property Rights in any item which exists prior to the commencement, or is created independently, of this Agreement (Pre-Existing IP) will not be altered transferred or assigned merely by virtue of a party using that item for the purposes of this Contract.
23.2 License to use Pre-Existing IPTo the extent that the Pre-Existing IP owned by Brand Agent X is incorporated into the provision of any Services, in accordance with this Contract, unless those items are licensed to the Client under a separate agreement with Brand Agent X, Brand Agent X grants a non-exclusive, world-wide, royalty free license to the Client to use the Pre-Existing IP, but only to the extent necessary for the purpose of obtaining the full benefit and use of the Services as contemplated by this Contract, and only for the Term unless agreed to otherwise by Brand Agent X.
23.3 Ownership of what is created in the provision of the ServicesUnless stated to the contrary in writing, Brand Agent X:
23.3.1 assigns to the Client the Intellectual Property Rights in any materials created as part of the Services (and in all research and reports commissioned by the Client and used to support or provide the Services) and acknowledges that the Client will be the owner of such materials immediately upon their creation;
23.3.2 must ensure that the Intellectual Property Rights in any materials created as part of the Services by any third party on its behalf are assigned to Brand Agent X immediately on their creation, so as to enable Brand Agent X to comply with and give effect to the assignment under this clause;
23.3.3 consents to all acts or omissions by or on behalf of the Client that might otherwise constitute an infringement of moral rights in the materials produced as part of the Services.
This clause 23.3 does not apply to any part of the Services that is Pre-Existing IP.
23.4 License to the Client’s Intellectual PropertyThe Client grants a perpetual, non-exclusive, world-wide, non-transferrable, royalty free license to Brand Agent X (including the right to grant sub-licenses) in respect of:
23.4.1 the Client’s Intellectual Property Rights in or in relation to any information or materials provided by the Client to Brand Agent X for the provision of the Services, but only to the extent necessary for the purpose of providing the Services as contemplated by this Contract; and
23.4.2 the Intellectual Property Rights in or in relation to any information or materials created by Brand Agent X and which is assigned to the Client pursuant to clause 23.3, with the authority to use the information or materials produced in providing services to other clients (provided such use does not infringe the Client’s Intellectual property Rights which are licensed pursuant to clause 23.4.1).
23.5 Warranties by Brand Agent XBrand Agent X warrants that neither:
23.5.1 the provision of the Services by Brand Agent X; or
23.5.2 the exercise of any rights under clause 23.2,will infringe any Intellectual Property Rights of any third party.
23.6 Warranties by the ClientThe Client warrants that neither:
23.6.1 the provision of the information and materials supplied by the Client or the Client’s Intellectual Property for the Services; or 23.6.2 the exercise of any rights under clause 23.4,will infringe any Intellectual Property Rights of any third party.
24. Place of Contract
24.1 This Contract is made in the State of New York.
24.2 The Client and Brand Agent X agree that unless otherwise stipulated by Brand Agent X all disputes arising between them shall be submitted to the courts of the State of New York and any court competent to hear appeals from those courts of first instance.
25. Dispute Resolution
25.1 Any dispute between the parties arising from the performance of the provisions of this Contract and any invoice for payment issued by Brand Agent X to the Client must be attempted to be settled between the parties by an authorized representative with authority from each party meeting within fourteen (14) days of notification of a dispute in writing from one party to the other party. Such meeting is to take place within the state of New York at a place nominated by Brand Agent X.
25.2 If the meeting referred to in clause 25.1 does not result in the settlement of the dispute between Brand Agent X and the Client, the dispute may then be referred to mediation, if agreed by both parties. The mediator is to be appointed by agreement between the parties and in the event that the parties agree to mediate but within seven (7) days of agreeing to such mediation cannot agree to the mediator to be appointed then the mediator is to be appointed by the then current President of the New York State Bar Association. The costs of any mediation are to be borne equally between the parties.
25.3 If the dispute cannot be settled through mediation, or the parties do not both consent to a mediation, then either party is at liberty to commence legal proceedings.
25.4 During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of the Contract which are not under dispute.
26. Force Majeure
26.1 Neither party shall be liable for any failure of or delay in the performance of this Contract for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders, fires, floods, tsunamis, earthquakes, pandemics, epidemics, or any other force majeure event.
26.2 In the event of a force majeure occurrence, the party unable to perform shall promptly notify the other party in writing, describing the force majeure event, its anticipated duration and any action being taken to avoid or minimize its effect. The suspension of performance shall be of no greater scope and of no longer duration than is reasonably required and the non-performing party shall use commercially reasonable efforts to remedy its inability to perform.
26.3 If the period of non-performance exceeds sixty (60) days from the receipt of notice of the force majeure event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Contract with respect to services not yet rendered or products not yet supplied.
26.4 The occurrence of a force majeure event does not excuse or suspend the Client’s obligation to pay Brand Agent X for services already rendered.
27. Miscellaneous
27.1 A Contract may be altered in writing signed by each party.
27.2 Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under a Contract.
27.3 The Client must not assign or otherwise deal with a Contract or any right under it without the written consent of the other party.
27.4 A Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
27.5 A waiver of a provision of or right under a Contract must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
27.6 The failure, delay, relaxation or indulgence by a party in exercising a power or right under a Contract is not a waiver of that power or right.
27.7 An exercise of a power or right under a Contract does not preclude a further exercise of it or the exercise of another right or power.
27.8 Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of a Contract, remains in force after the expiration or termination of the Contract.
28. Interpretation
In these Conditions, unless the context otherwise requires:
28.1 headings do not affect interpretation;
28.2 singular includes plural and plural includes singular;
28.3 a reference to a party includes its executors, administrators, successors and permitted assigns;
28.4 a reference to a person includes a partnership, corporation, association, government body and any other entity;
28.5 an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
28.6 an agreement, representation, warranty or indemnity in favor of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
28.7 a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
28.8 a provision is not construed against a party only because that party drafted it;
28.9 an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this would materially change the intended effect of these Conditions;
28.10 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.
By engaging the services of Brand Agent X, you acknowledge that you have read, understood, and agree to be bound by these Terms and Conditions.
Last updated: September, 2024.