Capitalized terms used but not defined herein shall have the meanings assigned to them in the SOW.
1. Services and Deliverables. The SOW authorizes Agency to commence performing any Services as of the Effective Date. Client will reasonably cooperate with Agency to allow Agency to perform the Services.
2. Term. The term of the SOW will commence on the Effective date and continue until the delivery of the Deliverables (the “Term”). This Section 2 is subject to the termination rights set forth below.
3.1. Default. Either party may terminate the SOW upon 10 days’ prior written notice if the other party (a) defaults in any material respect in the performance of its obligations hereunder and such default continues uncured for a 30-day period after written notice of the default is given to the party in default; or (b) assigns the SOW, except as permitted herein.
3.2. Convenience. Either party may terminate the SOW for its convenience upon 90 days’ prior written notice to the other party.
3.3. Obligations on Termination. Upon expiration or termination of the SOW for any reason, and upon receipt of all payments due or owing from Client, Agency will as soon as practicable provide to Client all Deliverables in progress in whatever their stage of development. If non- cancellable Client-approved commitments to third parties have been made by Agency in connection with the Services, Client will assume such commitments prior to the expiration or termination of the SOW in a form reasonably acceptable to Agency. If either party terminates the SOW, then Client will pay to Agency within 30 days the portion of the total Fee due or owing and attributable to Agency’s development or performance of the Services and Deliverables prior to termination plus any expenses and applicable taxes.
4. Fees, Invoicing & Payment.
4.1. Fee. The Services and/or Deliverables will be billed on a fixed fee basis and Client will pay Agency the Fee for the Services and Deliverables set forth in the SOW.
4.2. Payment Due Date. Payments will be due within 30 days of receipt of invoice by Client; invoices shall be issued monthly unless otherwise set forth in the SOW.
4.3. Interest. Client will pay interest on any payment not made in a timely manner, until paid in full, at the rate of 4% per annum, compounded and calculated monthly, not in advance, all such interest to be paid monthly on the first day of each month.
4.4. Taxes. Client will be responsible for all applicable taxes (if any) (including sales, use, excise, value added, and gross receipts but not including taxes based on Agency’s income or capital), import duties and fees and charges of any kind levied or imposed by any federal, provincial, state or local governmental entity for Deliverables or Services provided under the SOW. Client agrees that if any of the foregoing taxes are applicable and such taxes or related charges are paid by Agency, Client will reimburse Agency for the amount paid by Agency.
4.5.1. All expenses approved by Client in writing and incurred by Agency in performing the Services and Deliverables will be paid by Client within 30 days of receipt of Agency’s invoice, unless otherwise agreed upon by the parties in the SOW.
4.5.2. If an expense relates to a third party supplier authorized by Client, then Client will reimburse Agency for such expense no later than the date on which Agency must make payment to such supplier. Agency reserves the right to request advance payment or other security in the course of performing the financial obligations Agency is authorized by Client to assume on Client’s behalf under the SOW.
5. Purchase of Third Party Materials and Services. Client is responsible for obtaining any approvals, licenses or other permissions for third party materials, services or both necessary for the use, development or operation of the Deliverables (including, without limitation, raw data); such third party materials will be set forth in the SOW (“Client Authorized Third Party Materials”). Agency and Client agree they are not the owners of such Client Authorized Third Party Materials and have no right to use such Client Authorized Third Party Materials, except as granted by the owners of such Client Authorized Third Party Materials. Notwithstanding anything to the contrary, in the event that Client authorizes Agency to acquire Client Authorized Third Party Materials (including raw data) on Client’s behalf in the SOW, Agency will be acting as, and is hereby authorized to be, Client’s agent for such purchases; all such agreements entered into by Agency on Client’s behalf shall be entered into as agent for a disclosed principal and based on sequential liability, and Client will be solely responsible for the review of, and compliance with, the terms and conditions of such agreements.
6. Representations and Warranties of Agency.
6.1. Agency represents and warrants to Client that:
6.1.1. Upon delivery of a Deliverable hereunder, and for a period of 90 days after delivery, the tangible media on which such Deliverable is recorded will be free from defects in materials and workmanship under normal use.
6.1.2. Agency will perform, in all material respects, all the Services in a professional manner, subject to Client’s compliance with the terms and conditions of the SOW.
6.2. Client represents and warrants to Agency that:
6.2.1. Client is responsible for the accuracy, completeness and propriety of all Client Content provided and any information concerning its products and services (and any references to competitors) which it furnishes or approves in connection with the performance of this Agreement or any related SOW; “Client Content” means Client’s complete product database, relevant copy concerning policies, services, information regarding products and product design, photographs, storyboards, copy, press material and any other Client assets and/or data described in the applicable SOW or provided to Agency by Client.
6.2.2. Client shall ensure that all such Client Content and information is substantiated and shall provide such substantiation upon request by Agency;
6.2.3. All of the Client Content provided to Agency will not infringe or violate the rights of any third party;
6.2.4. All data that Client provides to Agency in connection with the Services was obtained by Client in accordance with applicable laws; and
6.2.5. Client will comply with all applicable laws and any restrictions in third party licenses obtained for it by the Agency and timely respond to Agency’s request for approvals related to the same.
7. Limitation of Remedy. Agency’s entire liability to and the exclusive remedy of Client for any breach of the limited warranties set out in Section 6 is that Agency will, upon consultation with the Client, either refund the Fee or replace the Deliverable.
Any replacement Deliverable is warranted by Agency for 30 days from the date of delivery of the replacement Deliverable.
Agency will have no responsibility under the limited warranties in Section 6 if the failure of the Deliverables has resulted from any of: (i) Client’s accident, abuse, misuse, misapplication or the malfunction of Client’s equipment or software; (ii) software not licensed by Agency or not envisioned to be used by Agency in connection with the Deliverables; or (iii) Client’s instructions, directions, or specifications or alterations or modifications to the Deliverables not made by Agency.
8. Cooperation. Client acknowledges that the successful and timely provision of the Services and the successful development of the Deliverables will require the good faith cooperation of Client. Accordingly, Client will fully cooperate with Agency, including by: (1) providing Agency with all information necessary or appropriate and relevant to Agency’s performance as reasonably required by Agency; (2) making available to Agency personnel of Client; and (c) providing at least one employee or consultant of Client who will have substantial relevant experience, to act as a Client contact in connection with the development of the Deliverables. Failure by Client to provide the cooperation to Agency in a timely manner may result in delay of the provision of Services and delivery of Deliverables.
9. Warranty Limitations.
9.1. No Implied Warranties. Except as expressly provided in Section 6, Agency expressly disclaims all other warranties, express, implied or statutory, with respect to the SOW, the Deliverables, and the Services including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The warranties set out in Section 6 constitute the only warranties and are in lieu of all other warranties or conditions written or oral, statutory, expressed, or implied with respect to the Deliverables and Services supplied by Agency hereunder.
9.2. Specifically Excluded Warranties. Agency does not warrant, represent or covenant:
9.2.1. that the functions contained in the Deliverables or the Services will meet the business/profit objectives of Client;
9.2.2. that the operation of the Deliverables or the Services will be completely uninterrupted or completely error-free or that defects in the Deliverables or the Services will be possible to correct; or,
9.2.3. regarding the use of, or the results of the use of, the Deliverables or the Services in terms of their respective correctness, accuracy, reliability, or otherwise.
10. Ownership. Agency and Client acknowledge and agree that as between themselves:
10.1. Client and its Affiliates have exclusive ownership of all Client trademarks and trade names;
10.2. The specific outputs reflecting the research, review and analysis performed and/or presented by Agency in connection with the Services, including the contents of all Deliverables, shall be developed and delivered for Client’s own internal use, (itself or by or in connection with its now or hereafter parent, subsidiary, sister or legally affiliated companies (“Affiliates”)). Client and its Affiliates shall not be entitled to disseminate or permit the dissemination of the contents of any Services or Deliverables to the general public or to any entity outside of its group. Without limiting the above, Client and/or its Affiliates shall have the right to use and apply any general information it may obtain from the Services or Deliverables, in connection with its various marketing initiatives and product and service offerings; provided that such use and application is in accordance with the terms and conditions of the SOW. Any disclosure or dissemination to the general public, if authorized in writing by Agency, shall contain an attribution to Agency and cite to the Agency’s URL address. Notwithstanding the foregoing and without limitation, Client may use the Agency (“PSB”) name, logo and URL reference.
10.3. If the Services constitute a pre-existing or independently developed PSB Analysis, the parties acknowledge and agree that the raw data collected and/or generated in connection with any study conducted under the SOW (collectively, the “Data”), and all materials, documents and information from which such data can be adduced, in whole or in part (collectively, the “Data Related Materials”), shall at all times be the sole and exclusive property of Agency. Moreover, the questionnaires, methodologies, approaches and other components and attributes of Agency (the “PSB Technologies”) are, as between Client and Agency, Agency’s property exclusively. Notwithstanding this, Agency hereby grants to Client a limited, perpetual, royalty- free, worldwide, non-exclusive right to use the PSB Technologies solely to the extent contained in the Services and Deliverables and as necessary to use the Services and Deliverables, in accordance with the provisions of the SOW. Notwithstanding the foregoing and without limitation, Agency shall not sell, transfer, convey or disseminate to any third party any confidential information of Client or other analysis and recommendations specific to Client specifically developed by or for the benefit of Client. Nothing in the SOW shall convey, assign or transfer to Client any of Agency’s copyrights and other proprietary rights in and to the Data, the Data Related Materials, or the PSB Technologies.
10.4. If the Services constitute a Custom Analysis developed for Client , the parties acknowledge and agree that custom data collected or generated in connection with any custom studies, shall at all times be the sole and exclusive property of Client, subject to the rights of any third parties in connection with Client Authorized Third Party Materials incorporated into the Services and Deliverables.
10.5. Notwithstanding anything to the contrary, in no way does Agency transfer any intellectual property rights in any logos, trademarks, or trade names of any brand other than Agency or Client that may be included in any Services or Deliverables.
11. Indemnification. Each party will indemnify, defend and hold harmless the other party, its Affiliates and their respective officers, directors, employees and agents and their respective heirs, executors, successors and assigns, from any reasonably foreseeable third party loss, liability, cost or expense (including reasonable legal fees) directly arising out of or directly in connection with:
11.1. any breach by the indemnifying party of the confidentiality obligations referred to herein;
11.2. any breach by the indemnifying party of its express representations and warranties set forth in Section 6; and
11.3. any bodily injury, death or damage to property to the extent caused by the gross negligence or willful misconduct of indemnifying party, its employees or agents while engaged in the performance or use of Services, as applicable.
Notwithstanding anything to the contrary in the SOW, Agency makes no representations, warranties, nor indemnifies Client for any claims or suits arising out of patent infringement or trademark infringement under the SOW. Client is solely responsible for conducting any patent searches or trademark searches to the extent Client determines necessary in connection with the use of the Deliverables and for any losses or liabilities arising out of patents and trademarks. Client must bring a claim, including a claim for indemnification, under the SOW within one year of the delivery of the Deliverable or provision of the Service giving rise to the claim.
12. Maximum Liability. Notwithstanding anything to the contrary, and to the maximum extent permitted by applicable law, in no event (whether arising in contract, including indemnification obligations, tort, including negligence, or otherwise) will:
12.1. the total cumulative liability of agency and its affiliates for all damages, losses, causes of action of any nature whatsoever exceed the fee set forth in the SOW;
12.2. either party be liable for any loss of profits, loss of contracts, loss or impairment of goodwill or reputation, loss, corruption or inaccuracy of data, or any indirect, punitive, exemplary, incidental, special, or consequential damages;
12.3. a party be liable for losses or damages caused by the other party’s negligent acts or omissions; and,
12.4. Agency be liable for (a) Client authorized third party materials (including, without limitation, any open source software, (B) Client Content, nor (C) any Services and/or Deliverables to the extent any non-conformance or damages are caused by: (I) Client’s misuse or modification of the Services or Deliverables and/or Client’s failure to use corrections or enhancements made available; (II) Client’s use of the Services or Deliverables related thereto in combination with any product or information not owned or developed by Agency; or (IV) information, direction, specification or materials provided by Client or any third party.
Each party will mitigate any losses under its reasonable control.
13. Force Majeure. Neither party will be liable for any breach of warranty or covenant or incorrect representation in the SOW, losses, costs, or damages resulting from its inability to perform any of its obligations under the SOW (except the parties’ respective obligation to pay any amounts owing) due to acts of God, the elements, strikes, actions, orders or decrees of governmental bodies, terrorism, or data hacks, or any other malicious acts of third parties or causes or events beyond the reasonable control of the affected party (“Force Majeure Event”). The affected party will, as soon as practicable, give written notice to the other party of the Force Majeure Event. Upon the happening of a Force Majeure Event, all obligations of the affected party under the SOW which are reasonably related to the Force Majeure Event will be immediately suspended and the affected party will use its reasonable commercial efforts to resume performance of its obligations under the SOW as soon as practicable. A party’s payment obligations are presumed to not be affected by a Force Majeure Event, unless the affected party can reasonably show it was not possible for the affected party to comply with the payment obligation due solely to the Force Majeure Event. If a Force Majeure Event occurs that affects Agency’s ability to perform its obligations under the SOW for a period of 30 consecutive days, Client will be entitled to terminate the SOW on five days’ prior written notice to Agency.
14. Assignment & Subcontracting. Neither party may assign the SOW or delegate any of its obligations hereunder without the prior written consent of the other party, except to a successor in interest. All the terms and conditions of the SOW will be binding upon and for the benefit of the parties and their respective successors and permitted assigns. Agency may engage subcontractors to perform services that are within Agency ‘s internal capabilities and Agency will be fully responsible for the acts and omissions of such subcontractors employed by Agency. Notwithstanding anything to the contrary, (a) in the event Client requests that Agency use specific subcontractors to perform the Services or create the Deliverables, to the extent that Agency does not direct or supervise their work, or Agency is authorized to engage such subcontractor as agent on Client’s behalf, Agency will neither be responsible for the Services performed nor the materials and Deliverables delivered by such subcontractors and (b) Agency will endeavor to guard against any loss to Client through failure of third party vendors and/or suppliers engaged by Agency to assist Agency in the completion or provision of services where such assistance is incidental, ancillary or supplemental to the services hereunder, but Agency will not be held responsible for any such failure on their parts. Client hereby authorizes Agency to use Agency’s Affiliates as subcontractors for purposes of the SOW and Agency shall be fully responsible for such Affiliate subcontractors in accordance with the terms of the SOW.
15. Independent Contractor. Nothing contained in the SOW or any communication between the parties will create a joint venture, establish a relationship of principal and agent, a relationship of partnership, or any other relationship of a similar nature between the parties. Agency is solely responsibility for payment of compensation to its personnel and for all insurance or other employment-related benefits to which such personnel may be entitled.
16. Publicity. Except as set out herein, neither Client nor Agency will issue any news release, public announcement, advertisement, or publicity whatsoever pertaining to the SOW without prior written approval and consultation of the other party, such approval not to be unreasonably withheld. Agency will be able to exhibit Client’s name, Client’s logo, Client’s trademarks and a description of the Services and the Deliverables provided by Agency to Client, on Agency’s website, and in Agency’s marketing materials.
17. Notices. All notices, claims and other communications hereunder will be in writing, and is deemed to have been duly given if personally delivered to an officer of the receiving party, mailed by registered or certified mail return receipt requested, or by overnight delivery service to the parties at their respective addresses set forth on the Cover Page.
18. No Implied Waiver. Either party’s failure to insist in any one or more instances upon strict performance by the other party of any of the terms of the SOW will not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
19. Survival. Expiration or termination of the SOW for any reason will not relieve the parties of any obligation accruing prior to such date of expiration or termination, and to the extent applicable, the provisions of Sections 4, 9, 10, 12 and 14-27 will survive such expiration or termination.
20. Choice of Law & Jurisdiction.
20.1 For Agreements with PSB Insights LLC:
The SOW will be construed, interpreted, and governed by the laws of the State of New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods, howsoever enacted in the District of Columbia, will have no application to the SOW. The parties to the SOW hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts in the District of Columbia and all courts competent to hear appeals therefrom.
20.2 For Agreements with WPP Brands U.K. Ltd., PSB UK:
The SOW will be construed, interpreted, and governed by the laws of England and Wales. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods, howsoever enacted in England and Wales, will have no application to the SOW. The parties to the SOW hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts in England and Wales and all courts competent to hear appeals therefrom.
21. Severability. If any provision of the SOW is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, or enforceability of the remaining provisions of the SOW will not be affected or impaired thereby.
22. Headings. Headings used in the SOW are provided for convenience only and will not be used to construe meaning or intent.
23. Entire Agreement. These Online Terms and the SOW of which it is a part constitute the entire agreement between the Client and Agency with respect to the subject matter hereof, and supersedes any previous communications, understandings and agreements between the parties whether written or oral, including without limitation any non-disclosure agreement between the parties executed prior to the date hereof. Notwithstanding anything to the contrary stated therein, terms and conditions stated on any purchase order, quote, acknowledgement, invoice, online document or acknowledgement, or other such document provided by a party to the other party, will be of no force or effect and will not change, alter, or add to the terms of the SOW. The SOW may only be amended by further agreement in writing and signed by the parties. In the event of any conflict between these Online Terms and the SOW, the Online Terms shall prevail.
24. Counterparts and Delivery. The SOW may be executed in one or more counterparts and by different parties in separate counterparts. All of such counterparts will constitute one and the same agreement and will become effective when one or more counterparts have been signed by each party and delivered to the other party. The SOW may be executed by the parties and transmitted by electronic transmission and, if so executed and transmitted, will be for all purposes as effective as if the parties had delivered an executed original document.
25. Confidentiality. Each party shall take reasonable steps to protect proprietary and confidential information and materials which, under the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (“Confidential Information”) provided by the other party or its representatives from improper disclosure and shall only use and disclose such Confidential Information of the other party to perform the Services and/or fulfill its obligations under the SOW.
Confidential Information shall not include (i) information previously known to receiving party or materials to which the receiving party had access prior to the provision of such information or materials by the disclosing party; (ii) information or materials that are now or later become available in the public domain; (iii) information or materials provided to the receiving party by a third party not bound by a duty of confidentiality to disclosing party; or (iv) information independently developed by the receiving party without breach of the SOW. Unless prohibited by law, the receiving party shall inform disclosing party of all inquiries into or requests for the disclosing party’s Confidential Information by third parties and shall disclose Confidential Information to such third parties only when legally compelled to do so and after notice to disclosing party, or when so permitted or instructed by the disclosing party (if practicable). Further, Client acknowledges that the rates and other terms negotiated by Agency with vendors performing hereunder may be protected by Agency as trade secrets and may not be generally known by the public or Agency’s competitors. Accordingly, disclosure of same shall be in Agency’s sole discretion and, if disclosed, shall be treated as Agency’s Confidential Information hereunder.
Notwithstanding anything set forth in the SOW to the contrary, the receiving party may retain in their possession copies of disclosing party’s Confidential Information in accordance with policies and procedures of the receiving party in order to comply with law, regulation and/or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information pursuant to the terms of the SOW and the receiving party will continue to be bound by the terms of the SOW.
26. Use. If Client should desire to use any Deliverables outside the United States, notwithstanding anything to the contrary Client will inform Agency prior to such use and in good faith negotiate compensation for such use. Agency shall, notwithstanding anything to the contrary not be required to secure any rights in the Deliverables for use outside the United States unless specifically agreed to in writing. Client agrees and acknowledges that Deliverables used, published or distributed outside the United States, including by means of the internet, may violate one or more foreign laws, rules or regulations, and that Client shall notwithstanding anything to the contrary herein bear the sole risk and have the sole responsibility for all such foreign violations, except to the extent that Agency has specifically agreed in writing to assume any such risk or responsibility.
27. Privacy & Security.
27.1 Aggregated Anonymous Data. For the purposes of this agreement Client acknowledges that all data and research shall be presented in the Deliverables in anonymized aggregate form and that Agency is not collecting, processing or distributing personally identifiable information on Client’s behalf nor is Client receiving personally identifiable information from Agency.
27.2 Personal Data. Notwithstanding the foregoing, should the parties agree in an SOW that the Services and or Deliverables will be a Custom Analysis involving the processing, collection, use or receipt of any information for the Client that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household (“Personal Data”), the following shall apply:
27.2.1 Agency in its capacity as a processor and a service provider shall : (i) use Personal Data it receives from Client or collects on Client’s behalf only to deliver the Deliverables as instructed and permitted by Client; (ii) reasonably assist Client (at Client’s cost) with the fulfillment of Client’s obligations to respond to requests related to the Personal Data collected on its behalf or a data subject’s exercise of rights under applicable laws and regulations, within agreed timelines, to the extent Client does not have access to or the ability to correct, amend, restrict or delete such Personal Data itself, and as permitted by law; (iii) not sell the Personal Data, it receives from Client or collects on Client’s behalf nor retain, use or disclose such Personal Data for any purpose other than the purpose specified in this Agreement (or as required by law), including retaining, using or disclosing the Personal Data for a commercial purpose other than to provide the Deliverables to Client; (iv) contract on behalf of Client with third party subprocessors and or service providers as requested or otherwise approved by Client, pursuant to applicable laws; (v) implement and maintain appropriate technical and organizational measures as set forth in the WPP Information Security Policy / Security Addendum (available upon request) to ensure a level of security appropriate to the risk as required by applicable laws and regulations, (vi) delete or return all the Personal Data under Agency’s possession and control after the end of the provision of Services (vii) make available to Client through an authorized third party auditor that signs a non-disclosure agreement with Agency, all relevant business records necessary to demonstrate its compliance with the privacy and security standards as required by applicable laws and regulations; and (viii) notify the Client, without undue delay of a Personal Data security breach that it becomes aware of (x), where Personal Data is processed within the EEA or the UK, will not process or transfer Personal Data outside of the EEA and the UK (except countries, sectors and organizations as may be designated by the European Commission as providing adequate data protection) without the express prior written approval of Client and makes available Standard Contract Clauses (under Directive 95/46/EC of the European Parliament and of the Counsel, as set out in European Commission
28. FARA Compliance. Client understands that Agency is committed to ensuring its compliance with U.S. laws, including, where applicable, the Foreign Agents Registration Act (“FARA”). Notwithstanding any provision contained herein or in any other understandings or agreements between Agency and Client, whether oral or in writing, Client further understands and agrees that if Agency determines, in its sole discretion, that this engagement is or becomes subject to FARA, and that no exemption from registration is available, Agency will comply fully with the registration and disclosure provisions of FARA. Client agrees to provide any information requested by Agency to determine whether Agency has a legal obligation to register with the U.S. Department of Justice under FARA, and to comply with the disclosure requirements under FARA if Agency determines that it is obligated to register under FARA concerning its engagement with Client.