This Master Service Agreement (the “Terms”) is made and entered into as of the date of last signature on the Insertion Order and/or Work Order to which these Terms govern (the “Effective Date”) by and between the SmartMedia Technologies entity identified on the Insertion Order and/or Work Order (“SM”) and the counterparty identified on the Insertion Order and/or Work Order (“Client”). SM and the Client are sometimes referred to individually as a “Party” and collectively as the “Parties”. In consideration of the mutual promises and covenants contained in the Terms, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS
In addition to the terms defined in the Terms, any Work Order or Insertion Order, the following words have the meanings provided below for all purposes of the Agreement:
Term
Meaning
Affiliate
Means, for purposes of the Agreement and with respect to a Party, any person or entity that controls such Party, is controlled by such Party or is under common control with such Party where “control” means ownership of 50% or more of the equity or other interests entitled to vote in the election of directors or corresponding managing authority of the Affiliate.
Agreement
Means these SM master service Terms and each Insertion Order and/or Work Order, along with all terms and conditions referenced therein and amendments, addendums, and attachments thereto.
Background Works
Means all tangible works and Intellectual Property Rights made, invented, developed, created, conceived, reduced to practice by SM: (a) before the effective date of a relevant Insertion Order and/or Work Order; (b) outside of the Services provided to Client; or (c) without or separable from Client Content; and in any event, excludes all Client Intellectual Property Rights.
Client
Means the Party identified in the signed Insertion Order and/or Work Order.
Client Content
Means the artwork, graphics, images, videos, slides, documents, technology, advertisements, trademarks, service marks, logos, and other content Client provides to SM under the Agreement, including all Client Intellectual Property Rights, and any derivative works thereof, if any, but excluding any Background Works.
Confidential Information
The non-public or proprietary information in any form or media that the disclosing Party designates as confidential or that by its nature or under the circumstances ought to be treated as confidential, including all Products, trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of each Party and to its customers, suppliers.
Developed Works
Means the works of authorship or materials specifically developed or created and defined as such for Client on a Insertion Order and/or Work Order. Client owns all right, title and interest to such Developed Works, excluding all Background Works, Products and Services.
End User
A customer of Client, agency, or other third party who Client authorizes to use or access a Product or Service however always excluding the end consumer of the relevant Products and Services.
Fees
Means the fees specified in each Insertion Order and/or Work Order.
Insertion Order
Means an ordering document signed by each Party or an Affiliate of each Party, that specifies the Products or Services in a line-item format to be provided to a Client, an Affiliate of Client or End User and related Fees, including addenda exhibits and attachments thereto.
Intellectual Property Rights
Works of authorship, copyrights, domain names, inventions, patents, design rights, trademarks, know how, trade secrets, and all other industrial, commercial, and intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same.
Product
Means the SM products, platforms (including third party platforms to which SM has given Client access, e.g., third party Customer Relationship Management and Creative Design platforms), applications, content, materials, and information sets identified in an Insertion Order and/or Work Order.
Services
Means the professional services, development services, implementation services, training services and other services identified in an Insertion Order and/or Work Order.
Taxes
Means any sales, use, transfer, privilege, excise, VAT, GST, consumption tax, or other similar taxes and duties, whether foreign, national, state, or local, however designated, present or future, that are levied or imposed by reason of the performance by SM or Client under the Agreement.
Work Order
Means an ordering document signed by each Party or an Affiliate of each Party, that specifies the Products or Services to be provided to a Client, an Affiliate of Client or End User and related Fees, including addenda exhibits and attachments thereto.
2. PRODUCTS & SERVICES
2.1
Provision of Products & Services. SM, or an Affiliate of SM, shall provide the Products and Services to Client, or an Affiliate of Client, subject to and pursuant to these Terms.
2.2
Orders & Change Orders. The Parties, or Affiliates of the Parties, may enter into Insertion Orders and/or Work Orders for the purchase of SM Products and Services. Each Insertion Order and Work Order shall be governed by these Terms (unless otherwise agreed in writing by the Parties) and set forth the Products and Services, and applicable Fees. No Insertion Order or Work Order shall be valid unless signed by an authorized representative of each Party or as applicable an authorized representative of a Party’s Affiliate. Any modifications, deletions or additions to the scope set forth in an Insertion Order or Work Order will be made only in a change order signed by an authorized representative of each Party or as applicable an authorized representative of a Party’s Affiliate (each a “Change Order”). SM will continue performance under an existing Insertion Order and/or Work Order until a Change Order is mutually agreed upon by the Parties.
2.3
Restrictions. Client may use each Product and Service only as provided in the Agreement. Except to the extent permitted by an Insertion Order or Work Order, Client will not, and will not allow any End User or other party to:
2.3.1
sell, transfer, rent, lease, sub-license, disclose, use, make available or distribute any of the Products or Services, in whole or in part;
2.3.2
copy, modify, correct, adapt, translate, enhance, or otherwise prepare derivative works of or improvements to any Product or Service, or part thereof;
2.3.3
reverse engineer, disassemble, decompile, decode, or adapt any Product, Service, or any part thereof, or otherwise attempt to derive or gain access to the source code of a Product or Service, or part thereof;
2.3.4
bypass or breach any security device, license key or protection used for or contained in a Product or Service, or conduce penetration or similar testing on a Product or part thereof;
2.3.5
use a Product or Service, in whole or part, for purposes of: (i) benchmarking or competitive analysis; or (ii) developing, using or providing a competing product or service;
2.3.6
use a Product or Service, or part thereof, to store or transmit infringing, libelous, or otherwise unlawful or tortious material or content, or in a manner that does not comply with applicable law;
2.3.7
damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner a Product or Service, or part thereof, or SM systems; or
use a Product or Service to store or transmit software, hardware, or other technology, device, or means, including any virus, worm, malware, program routine or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, hardware, system, or network, or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby, or (b) prevent access to or use of a Product or Service as intended by the Agreement.
2.3.8
3. TERM AND TERMINATION
3.1
Term. The Terms begin on the Effective Date and remain effective until terminated as provided in this Section.
3.2
Termination.
3.2.1
Either Party may terminate the Agreement immediately by serving written notice on the other Party in the following circumstances:
(a)
if the other Party commits a material breach of any of its obligations under the Agreement that is not capable of remedy;
(b)
if the other Party commits a material breach of any of its obligations under the Agreement that is not remedied within 30 days after receipt of a notice from the Party not in breach specifying the material breach, requiring its remedy, and making clear that failure to remedy may result in termination; or
(c)
if the other Party enters into liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a liquidator, provisional liquidator, receiver, or manager appointed over all or part of its assets or enters into an arrangement with its creditors or takes or suffers any similar action.
3.2.2
Either Party may terminate the Agreement at its convenience and without any breach by the other Party, by providing ninety (90) days written notice to the other Party.
3.3
Effect of Termination.
3.3.1
Termination of the Agreement will terminate all Insertion Orders and Work Orders; provided, however, the Terms remain effective until all Insertion Orders and Work Orders have expired or been terminated in accordance with the terms and conditions set forth therein. Termination of an Insertion Order or Work Order will not terminate the Terms or any other Insertion Orders or Work Orders, which will continue under their own terms and these Terms.
3.3.2
Termination of the Agreement will not affect any rights, obligations or liabilities of either Party which have accrued before termination, or which are intended to continue to have effect beyond termination.
3.3.3
Client shall, and shall cause all End Users to, cease all use of Products and Services upon termination of the Agreement, or the Products and Services of any Insertion Order or Work Order upon termination of such Insertion Order or Work Order.
3.3.4
Upon termination of the Agreement, each Party shall promptly return or destroy (provided that any such destruction shall be certified by a duly authorized representative) all Confidential Information in its possession; provided, however, each Party shall be permitted to retain one copy of the other Party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes. SM shall not be obligated to retain copies of Client Content or any data belonging to Client after termination of the Agreement.
Suspension. SM may suspend Client and End User access to and use of any Product or Service if Client or an End User is, or reasonably believed to be, in violation of the terms of the Agreement.
Survival. The provisions of the Agreement that, by their terms, require performance after the termination or expiration of the Agreement, or have application to events that may occur after the termination of the Agreement, will survive the termination of the Agreement, including Sections 2.3, 3.3, 3.5, 4, 5, 8 – 10, and 12.
3.5
3.4
4. FEES AND PAYMENTS
4.1
Fees and Taxes. Client agrees to pay SM the Fees. Fees shall be set forth in an Insertion Order or Work Order and are exclusive of all Taxes and Client is responsible for the payment of Taxes on all Products and Services other than Taxes on SM’s income.
4.2
Payments. SM will invoice all Fees to Client, and Client will pay each invoice within the time period set forth in an Insertion Order or Work Order. Any invoiced amounts not disputed in good faith by Client and remaining unpaid by the due date will accrue a late charge in the amount of the lesser of (a) one and one-half percent (1.5%) per month, or (b) the highest rate allowable by law, computed from the applicable due date. Client shall have thirty (30) days from the date of such invoice to query or dispute Fees after which time such invoice shall be deemed accepted by Client and no further query or dispute may be raised by Client. Client shall reimburse SM for all reasonable expenses related to collections, including but not limited to attorneys’ fees.
5. INTELLECTUAL PROPERTY RIGHTS
5.2
SM Rights. As between SM and Client, SM owns and will retain all right, title and interest in all Products, Services, Background Works and SM Confidential Information, and all Intellectual Property Rights therein. SM reserves all rights not expressly granted in the Agreement.
5.1
Client Rights. As between Client and SM, Client owns and will retain all right, title and interest in all Client Content, Developed Works and Client Confidential Information, and all Intellectual Property Rights therein. Subject to the terms and conditions of the Agreement, Client grants to SM a nonexclusive revocable license during the term of the Agreement to use, copy, distribute, display, make, and modify Client Content solely to perform the Services and provide the Products.
5.3
Client Data. SM acknowledges and agrees that Client shall own all data made available by Client to SM, including Client Content, information about an End User, and any information collected by Client outside the Services and/or Products (“Client Data”). Subject to the terms and conditions of the Agreement, Client grants to SM a nonexclusive revocable license during the term of the Agreement to use, copy, distribute, display and modify Client Data to perform the Services and provide the Products.
5.4
SM Data. Client acknowledges and agrees that SM shall own all data generated in connection with use of and access to the Products and Services, including but not limited to, viewing habits, IP address, user agent, data and time, conversions, domain type, information provided by a consumer, other data related, generated, or collected by cookies, pixels, tags, web beacons and/or other technologies (“SM Data”). Subject to the terms and conditions of the Agreement, SM grants to Client a nonexclusive revocable license during the term of the Agreement to use, copy, distribute, display and modify SM Data to use each Product and Service as permitted by a Work Order.
5.5
Aggregated Data. Client acknowledges and agrees that SM shall have an irrevocable, worldwide, non-exclusive, royalty-free and perpetual license to use, reproduce, distribute, display and store aggregated statistics about Client’s use of the Services and Products for business purposes such as operating, maintaining, improving, developing and providing new Products and Services; provided, however, SM shall not publicly disclose or distribute any such data unless such data is in an anonymized, aggregated form that would not permit a third party to identify such data as associated with Client and/or End User (“Aggregated Data”).
Feedback. Client may provide SM with feedback, comments, or suggestions from time to time (collectively, “Feedback”). Client acknowledges and agrees that: (a) any Feedback shall not be deemed Confidential Information, (b) SM shall have no obligation to review, consider, or implement any Feedback, and (c) SM may use Feedback for any purpose without any obligation to Client, including any attribution to Client.
5.6
6. REPRESENTATIONS AND WARRANTIES
6.2
Mutual Representations and Warranties. Each Party represents and warrants that (i) it has the full power and authority to enter into and perform its obligations under the Agreement; (ii) it has duly authorized execution and delivery of the Agreement and the officer or individual who has signed it on its behalf; (iii) its execution and delivery of the Agreement and the performance of its obligations under the Agreement do not and will not conflict with or result in a breach of or a default under its organizational instruments or any other agreement, instrument, order, law, or regulation applicable to it or by which it may be bound; and (iv) the Agreement constitutes its valid and legally binding obligation, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, or other laws of general application relating to or affecting the enforcement of creditors’ rights and except as enforcement is subject to general equitable principles.
6.1
SM Warranty. SM shall perform the Services in a professional manner. Nonetheless, SM makes no guarantee that the Services and Products will achieve results satisfactory to Client.
6.3
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, SM DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT). THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SM DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ALL WARRANTIES WITH REGARD TO THIRD PARTY MATERIALS. SM DOES NOT GUARANTEE THAT PRODUCTS OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT SM WILL CORRECT ALL ERRORS. CLIENT ACKNOWLEDGES THAT SM DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE PRODUCTS AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NEITHER SM NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THERE WILL BE NO UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CLIENT’S OR ANY END USER’S DATA, FILES OR PROGRAMS. THE PARTIES ACKNOWLEDGE THAT SM IS NEITHER A DESIGNER, MANUFACTURER, NOR RESELLER OF ANY OF CLIENT’S PRODUCTS OR SERVICES, EITHER BY ITSELF OR IN PARTICIPATION WITH ANY OTHER PERSON OR ENTITY. ACCORDINGLY, SM MAKES NO REPRESENTATION, WARRANTY, ENDORSEMENT OR CERTIFICATION REGARDING THE SAFETY, EFFECTIVENESS, QUALITY, CHARACTER, OR FITNESS OF ANY CLIENT PRODUCTS OR SERVICES. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ALL OF ITS PRODUCTS AND SERVICES AND ALL MATTERS ARISING IN CONNECTION WITH THEIR SALE, MARKETING, DISTRIBUTION, LICENSING, USE, AND OPERATION.
6.4
Beta Services. SM may offer Client access to beta services that are being provided prior to general release (“Beta Services”). Client understands and agrees that (a) the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at Client’s sole risk, (b) use of Beta Services is on a voluntary and optional basis, (c) no technical support or other services will be provided with regard to Beta Services, and (d) all Beta Services are offered “AS IS” and “AS AVAILABLE.” To the extent permitted by applicable law, SM disclaims all liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise for and in connection with Beta Services.
7. COMPLIANCE
7.2
Each Party shall in connection with the Agreement comply with all laws, regulations, and other rules having equivalent force which are applicable to that Party’s performance under the Agreement.
7.1
Each Party shall maintain accurate records including records relevant to the use of any Product or Services or other materials or in relation to the calculation of any Fees.
8. CONFIDENTIALITY
8.1
Obligations. Each Party shall, in respect of the Confidential Information of the other Party:
8.1.1
keep such Confidential Information strictly confidential and not disclose or make available any part of such Confidential Information to any person except as permitted by or as required for the performance of its obligations under the Agreement;
8.1.2
take all reasonable steps to prevent unauthorized access to and use of such Confidential Information; and
8.2
use such Confidential Information solely to exercise rights and fulfill obligations under the Agreement.
8.1.3
Permitted Disclosures. Each Party may disclose relevant Confidential Information of the other Party to the following who have a need to know such information on the following terms:
8.2.1
its employees, officers, subcontractors and representatives who require it for such Party to perform its obligations under the Agreement on the condition that it obligates all such persons or entities to protect such Confidential Information to at least the same extent as required under this Section 8; and
8.2.2
its auditors and professional advisors who are bound by professional duties of confidentiality solely for the purposes of providing professional advice.
Each Party is responsible for the acts and omissions of the employees, officers, subcontractors, representatives, auditors and professional advisors with regard to the other Party’s Confidential Information as though such acts and omissions were the acts and omissions of the Party receiving such information.
8.3
Exceptions. The restrictions in this Section 8 do not apply to any information to the extent that it:
8.4
Obligated Disclosure. The receiving Party may disclose the other Party’s Confidential Information if required by law or by a court of competent jurisdiction or by any regulatory body or in accordance with the rules of any recognized stock exchange (in which case the Party required to disclose shall (i) use its best efforts to limit the disclosure and maintain confidentiality to the maximum extent possible and (ii) timely inform, to the extent permitted by law, the other Party of all such proceedings so that the other Party may attempt by appropriate legal means to limit such disclosure).
8.3.1
is or comes within the public domain other than through a breach by the receiving Party of this Section 8; or
8.3.2
is in a Party’s possession (without restriction) before receipt from the other Party under the Agreement; or
8.3.3
is lawfully received from a third party (without restriction); or
8.3.4
is independently developed by a Party without access to or use of the other Party’s Confidential Information.
9. INDEMNIFICATION
9.1
Client Indemnity. Client shall indemnify, defend and hold harmless SM and its affiliates, and each of their officers, directors, members, employees, agents, successors and permitted assigns from and against all actions, liabilities, damages, losses, judgments, sanctions, expenses and costs (including settlement costs, fines, penalties, expenses and reasonable outside attorneys’ and expert witness fees) (“Losses”) arising out of a third-party claim, proceeding or action (“Claim”) arising out of or relating to:
9.1.1
allegations of infringement, misappropriation, or other violation of such third party’s Intellectual Property Rights by (i) SM’s use of any Client Content as permitted by the terms of the Agreement or (ii) any other use by SM of Client’s advertisements, products or services under the Agreement;
9.1.2
Client’s or an End User’s use of the Products or Services in violation of the Agreement, applicable laws, rules or regulations;
9.1.4
SM’s provision of Products or Services pursuant to Client’s or an End User’s designs, requirements, instructions or specifications, including assertions regarding any violation or alleged violation of applicable law based on such instructions, specifications or any Client Content;
9.1.3
Client’s or an End User’s combining any Product or Service with any materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property not provided by SM; and/or
9.1.5
manufacturing, marketing, sale, handling, use, storage or shipment of any of Client’s or an End User’s products or services (including, without limitation, claims arising from personal injuries and property damage).
9.2
SM Indemnity. SM shall indemnify, defend and hold harmless Client against all Losses arising out of a Claim arising out of or relating to allegations of infringement, misappropriation or other violation of such third party’s Intellectual Property Rights by Client’s use of any Product as permitted by the terms of the Agreement. SM’s indemnification obligations will not apply to the extent a Claim is based on: (a) Client’s designs, instructions, requirements or specifications; (b) Client Content; (c) any combination of Products with materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property not provided by SM; (d) Client or any End User’s use of Products other than in accordance with the terms of the Agreement; (e) Client’s modification of any Product; and/or (e) materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property developed and/or owned by a third party.
9.3
Procedures. The indemnified Party will provide the indemnifying Party with reasonably prompt notice of Claims, except that failure to give prompt notice will relieve the indemnifying Party of its indemnity obligations only to the extent the delay caused material prejudice; permit the indemnifying Party to answer and defend Claims; and provide the indemnifying Party with reasonable information and assistance to help the indemnifying Party defend Claims at the indemnifying Party’s expense. Any indemnified Party will have the right to employ separate counsel and participate in the defense of any Claim at its own expense. Neither Party will stipulate, admit, or acknowledge any fault or liability on the part of the other without prior written consent. The indemnifying Party will not settle any Claim or publicize any settlement without the other Party’s prior written consent.
9.4
Infringement Remedy. In addition to its indemnification obligations under Section 9.2 above, if any Product, or part thereof, is, or in SM’s reasonable opinion may, violate the rights of a third party, SM at its sole and exclusive discretion shall at its expense promptly: (i) procure the right for Client to continue using the applicable Product, or part thereof, (ii) replace the Product, or part thereof with a non-infringing equivalent; or (iii) modify the Product, or part thereof to make it non-infringing so long as the modified Product satisfies the requirements of the Agreement. If SM does not promptly comply with (i), (ii) or (iii) and/or if Client’s use of any Product is enjoined, then SM will have the right to terminate without liability the Agreement upon notice, in whole or in part, including any Work Order and Insertion Order.
9.5
This Section 9 sets out the entire liability of both Parties and the sole remedy of each Party with respect to the infringement of a third party’s Intellectual Property Rights and any Claims relating to the indemnities given in this Section 9.
10. LIMITS ON LIABILITY
10.1
SUBJECT TO SECTION 10.2 BELOW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING FINANCIAL LOSS, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OR GOODWILL), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE AGREEMENT REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. ADDITIONALLY, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY WILL EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD FOR THE WORK ORDER GIVING RISE TO THE LIABILITY.
10.2
THE LIMITATIONS ON LIABILITY SET FORTH IN SECTION 10.1 DO NOT APPLY TO LIABILITY ARISING FROM (I) A PARTY’S DUTY TO INDEMNIFY THE OTHER FOR THIRD-PARTY CLAIMS UNDER THE AGREEMENT; (II) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 OF THE AGREEMENT; AND/OR (III) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR THE TYPES OF LIABILITY LISTED IN THIS SECTION 10.2 WILL EXCEED TWO TIMES THE AMOUNT PAID OR PAYABLE BY CLIENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD FOR THE WORK ORDER GIVING RISE TO THE LIABILITY.
11. PRIVACY AND SECURITY
11.3
Each Party shall comply with all applicable privacy and data protection laws, and regulations; has a posted privacy policy that is in compliance with applicable laws; and adheres to such privacy policy in the performance of its obligations under the Agreement. To the extent applicable, with respect to Client Data, SM operates as a Processor and Service Provider, and to the extent that applicable privacy and data protection laws (e.g., the General Data Protection Regulation 2016/679 (“GDPR”) require, the Parties shall sign a data processing agreement. Data transfers, as applicable, between SM and Client shall occur using SM’s systems or those of SM’s subprocessors no other methods shall be accepted.
11.2
11.1
SM will implement and maintain commercially reasonable administrative, physical, and technical safeguards.
Client will (a) obtain any permissions required for Client and End Users to provide Client Data, including personally identifiable data, to SM in connection with the Products and Services ; (b) be responsible the accuracy, appropriateness and legality of Client Data; (c) be responsible for all logins and passwords related to any Client accounts with SM and for all activity occurring under or in connection with such accounts, including all End User accounts; and (d) use commercially reasonable efforts to prevent unauthorized access to or use of Products and Services, and notify SM promptly of any such unauthorized access or use.
12. general
12.1
Publicity. Neither Party will use, publicize, or issue any press release which includes the name, trademarks, or other proprietary identifying symbol of the other Party without the prior written consent of the other Party; provided, SM may include Client and its logo on SM’s list of selected clients.
12.2
Notices. All notices to be sent by one Party to the other in connection with the Agreement (except for the service of court proceedings) will be in writing and delivered personally, by special delivery post (or equivalent service offered by the postal service from time to time), by recognized carrier, or by email with a confirmed receipt to the addresses of each Party as set out on the Insertion Order or Work Order or as otherwise notified in accordance with the provisions of this Section 12.3. Notices will be deemed to have been duly given: if delivered personally, upon delivery; if sent by post or carrier, two business days after the date of sending; if sent by email, when received.
12.3
Assignment. Neither Party may assign or otherwise transfer the Agreement or any of its rights or obligations under it without the prior written consent of the other Party (such consent not to be unreasonably withheld, delayed or conditioned), except that either Party upon written notice may assign the Agreement in the event of a merger, asset sale or other change of control without the other Party’s prior consent.
12.5
Severability. If any part of the Agreement is found to be invalid or unenforceable by any court or other competent body, such invalidity or unenforceability will not affect the other provisions of the Agreement and such other provisions will remain in full force and effect.
12.4
Force Majeure. Neither Party will be liable for any delay or failure in the performance of its obligations under the Agreement if such delay or failure is due to any act of government or state, civil commotion, terrorism, fire, flood, explosion, industrial action or organized protest by third Parties, natural disaster, war, embargo, pandemic or epidemic, failure of payment systems, failure of internet or third party computer systems, or any event beyond the reasonable control of the Party (“Force Majeure Event”). The Party affected by a Force Majeure Event shall notify the other Party of such event as promptly as practicable after its occurrence and shall use due diligence, where practicable, to minimize the effects of or end any such event so as to facilitate the resumption of full performance of the Agreement. In the event Client claims a Force Majeure Event in the delay or failure to pay Fees due under the Agreement, SM may suspend performance for the duration of such Force Majeure Event, or terminate the Agreement or the affected Insertion Order and/or Work Order by providing notice to Client if such Force Majeure Event lasts for five (5) business days or longer. In the event SM claims a Force Majeure Event and is not able to resume obligations for more than thirty (30) days, then Client may terminate the Agreement or the affected Work Order by providing notice to SM.
12.6
Waiver. If either Party fails to exercise a right or remedy that it has or which arises in relation to the Agreement, such failure will not prevent that Party from exercising that right or remedy subsequently in respect of that or any other incident. A waiver of any breach or provision of the Agreement will only be effective if it is made in writing and signed on behalf of the Party who is waiving the breach or provision. Any waiver of a breach of any term of the Agreement will not be deemed a waiver of any subsequent breach and will not affect the enforceability of any other term of the Agreement.
12.7
Governing Law. The Agreement will be governed by, and interpreted (without regard to any conflict of laws principles or rules) in accordance with:
•
the laws of the State of Colorado, and subject to the exclusive jurisdiction of courts located in the Colorado County Court for the 2nd Judicial District (Colorado) and the United States District Court for the District of Colorado (if a SM North America office originates the Insertion Order and/or Work Order);
•
the laws of England and Wales, and subject to the exclusive jurisdiction of courts located in London (if a SM EMEA office originates the Insertion Order and/or Work Order;
•
the laws of the State of New South Wales, Australia, and subject to the exclusive jurisdiction of courts located in the State of New South Wales, Australia (if a SM APAC office originates the Insertion Order and/or Work Order.
12.8
Entire Agreement; Amendment. The Agreement constitutes the complete, entire and exclusive statement of the Parties’ understanding with respect to the subject matter thereof and supersedes all previous agreements between the Parties relating to the same subject matter. Each Party has executed the Agreement, without reliance upon any promise, representation or warranty other than those expressly set forth in the Agreement. Neither of the Parties shall be bound by, or liable to the other Party for, any representation, promise or inducement (other than fraudulent misrepresentations) made by it or by any agent or person on its behalf which is not expressly contained in the Agreement. In the event of any conflict between the terms of these Terms and a Work Order or Insertion Order, the terms of these Terms will prevail unless otherwise provided in these Terms or specified in a Work Order or Insertion Order. No amendment to the Agreement will be effective unless set forth in a writing signed by each Party.
12.9
Relationship. The Parties are independent contractors. The Agreement does not create an exclusive relationship between the Parties. Neither Party, without the prior written consent of other Party, may enter into any contract or commitment in the name of or on behalf of the other Party or bind the other Party in any respect whatsoever. Client shall be fully responsible and liable for all acts and omissions of End Users, and any act or omission of an End User that would be a breach of the Agreement will be deemed to be a breach by Client.
12.10
Counterparts. The Agreement (and each Work Order and Insertion Order) may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. The Agreement (and each Work Order and Insertion Order) may be executed and delivered electronically (including, without limitation, by means of an electronic service such as DocuSign or e-mail exchange of executed PDF reproductions of the Agreement) with the same force and effect as if it were executed and delivered by the Parties simultaneously in the presence of one another. The Parties may not dispute the validity of the Agreement (or any Work Order or Insertion Order) on grounds of it having been executed electronically.
12.11
Third Party Beneficiaries. Except for SM’s Affiliates, and the ability of the Parties listed in Section 9 to enforce their rights to indemnification, the Agreement is solely for the benefit of the Parties and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
12.12
Interpretation. In the Agreement:
12.12.1
any reference to a statutory provision includes a reference to any modification, amendment or re-enactment of it from time to time;
12.12.2
references to sections, clauses, exhibits, attachments, addenda, and schedules are to the Agreement, or part thereof, as applicable;
12.12.3
the singular includes the plural and vice versa;
12.12.4
the headings are for ease of reference only and will not affect the construction or interpretation of the Agreement;
12.12.5
where any matter is to be agreed, such agreement shall be set forth in writing; and
12.12.6
wherever the words “including”, “include”, “includes” or “included” are used they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires.