Last Modified: July 20, 2022
These Creative Services Terms (“Terms“) govern the creative services offered by Brane Pte. Ltd., a Singapore company located at 68 Circular Road #02-01, Singapore 049422 DBA OFF Agency (“Agency”) that can be purchased through one or more Order Forms (“Order Form”). These Terms are legally binding when an Order Form expressly incorporates by reference these Terms and the Order Form is duly executed by a representative of Agency and by the customer set forth on the Order Form (“Customer”, and together with Agency, the “Parties“, and each a “Party“). These Terms, each Order Form, and Agency’s privacy policy (located at https://off.agency/privacy-policy) (the “Privacy Policy”), forms the entire agreement between the parties (collectively, the “Agreement”) for the creative services described in each Order Form. If there are any conflicting terms between the Order Form and the terms in these Terms, the terms in Order Form shall prevail.
WHEREAS Agency provides its Customers with creative agency services;
WHEREAS Customer desires to retain Agency to provide the services described in each Order Form, and Agency is willing to perform such services under the terms set forth in this Agreement;
Customer and Agency hereby agree as follows:
I. SERVICES.
1.1. Agency will use commercially reasonable efforts to provide to Customer the services (the “Services“) as set out in one or more Order Forms to be issued by Customer and accepted by Agency. Each Order Forms shall be deemed issued and accepted only if, in the case of Agency, the Order Form is emailed to [email protected] and signed by the Agency contract manager, and, in the case of Customer, the Order Form is signed by the Customer contract manager. Each Party’s contract manager shall be appointed pursuant to section 2.1(a) and section 3.1, respectively.
1.2. Customer acknowledges that services performed under a Order Form in which a third party creator (a “Creator”) performs work on and behalf of the Customer in order to provide the Deliverables (as defined in section 6.1) in an Order Form, is an integral component of Agency’s business model. Notwithstanding any conflicting term in this Agreement, Customer hereby agrees that Agency shall be permitted to subcontract the services performed under an Order Form to creators to provide the Deliverables. Agency warrants that creators performance standards for services will be performed in a professional and workmanlike manner in accordance with applicable industry standards.
II. AGENCY OBLIGATIONS. Agency shall:
2.1. Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:
2.1.1. A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Agency Contract Manager“).
2.1.2. The number of employees, or contractors that it deems sufficient to perform the services set out in each Order Form, (collectively, with the Agency contract manager, “Provider Representatives“).
2.2. Make no changes in provider representatives except:
2.2.1. Following notice to Customer (email sufficing); or
2.2.2. Upon the resignation, termination, death or disability of an existing provider representative.
III. CUSTOMER OBLIGATIONS. Customer shall:
3.1. Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer contract manager is appointed and provided that Agency is given prior written notice (email sufficing).
3.2. Require that the Customer contract manager respond promptly to any reasonable requests from Agency for instructions, information, or approvals required by Agency to provide the services.
3.3. Cooperate with Agency in its performance of the services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Agency to provide the services.
3.4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Agency’s provision of the services.
IV. FEES AND PAYMENTS.
4.1. In consideration of the provision of the services by the Agency and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable Order Form. Unless otherwise provided in the applicable Order Form, said fee will be pre-payable all applicable fees together with any applicable taxes, as described on the Order Form.
4.2. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Agency’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
4.3. Late payments shall bear interest at the rate of 2% per month. Customer shall also reimburse Agency for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Agency does not waive by the exercise of any rights hereunder), Agency shall be entitled to suspend the provision of any services if the Customer fails to pay any amounts when due hereunder.
V. LIMITED WARRANTY AND LIMITATION OF LIABILITY.
5.1. Agency warrants that it will use commercially reasonable efforts to perform the services:
5.2. Agency’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the warranty in section 5.1 shall be as follows:
VI. OWNERSHIP OF DELIVERABLES.
6.1. Grant of rights. Except as otherwise expressly provided in this Agreement and subject to all Terms in this Agreement, Agency assigns, grants, and conveys to Customer, and if applicable, creator assigns, grants, and conveys, all right, title and interest in any intellectual property rights in any Deliverables created for Customer pursuant to this Agreement (the “Deliverables”). Except as otherwise expressly provided in this Agreement, and subject to all Terms in this Agreement, Agency agrees that any and all Deliverables are and remain the property of Customer and are works made for hire to the extent allowed by law. Notwithstanding anything herein to the contrary, Customer’s ownership of the Deliverables shall be subject to (a) the rights of third parties whose materials or services are contained in the Deliverables (e.g., stock footage, photos, music, talent sag usage fees, etc.) And used under a license or other permission granted to Customer or Agency (“Third Party Materials“), and (b) all materials owned by Agency prior to, or independent from, the performance of services under this Agreement, and all methodologies, software, applications, processes or procedures used, created or developed by Agency in the general conduct of its business, excluding those developed specifically for Customer or at Customer’s request or funded by Customer (collectively, “Agency Materials“). Agency hereby grants Customer a royalty-free, perpetual, worldwide license to any Agency materials to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables for any and all purposes.
6.2. Raw files or footage: the Deliverables expressly excludes any raw video or audio files that are unedited, uncompressed, contain no transcoding, and have not been color corrected (“Raw Files”).
6.3. Machine learning/data. Agency employs machine learning applications (“software applications”) including deep learning and natural language processing to identify attributes within Customer creatives, including but not limited to the presence of people, food, beverages, automobiles, music and text and correlates those attributes with Customer’s video performance data including, but not limited to, likes, shares, comments, reposts, audiences and engagement. Customer hereby grants to Agency non-exclusive, transferable, sub-licensable, royalty-free access, during the term, to use, copy, store, archive, process, reproduce, perform, display, modify, analyze, compile, distribute and transmit (“Use”) Customer data (defined herein) solely for the purposes of machine learning. Agency shall not have or obtain any rights in or to any modifications made through use of the Customer data, other than through incorporation of the anonymized set of Customer data provided during the term into the software applications for purposes of training the software applications’ machine learning algorithms, where anonymized means that no individual element of the Customer data, alone or in combination with any other data element, can be used to identify Customer or any individual. Without limiting the foregoing, Customer agrees Agency is permitted to share, disclose, or otherwise make available the anonymized set of Customer data, described in this section 6.3, with third parties. “Customer Data” means all data, information, video, audio, and other materials submitted or made available by Customer to Agency, including any user-generated content provided by Customer to Agency, directly or indirectly, during the term.
6.4. Except as expressly set forth herein, Agency (and its licensors, where applicable) will retain all intellectual property rights relating to its software applications, including but not limited to, any and all improvements, modifications or derivatives thereof or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, (excluding Customer data), or any third party relating to its software applications, which are hereby assigned to Agency. For clarity, the foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, except as otherwise set forth in this Agreement. No jointly owned intellectual property is created under or in connection with this Agreement. Customer will not copy, distribute, reproduce, or use any of the foregoing except as permitted under this Agreement.
6.5. Except as expressly set forth herein, Agency (and its licensors, where applicable) will retain all intellectual property rights relating to its software applications, including but not limited to, any and all improvements, modifications or derivatives thereof or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, (excluding Customer data), or any third party relating to its software applications, which are hereby assigned to Agency. For clarity, the foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, except as otherwise set forth in this Agreement. No jointly owned intellectual property is created under or in connection with this Agreement. Customer will not copy, distribute, reproduce, or use any of the foregoing except as permitted under this Agreement.
VII. PROJECT MISCELLANEOUS.
7.1. Approvals. Any approvals required in an Order Form must be received in accordance with mutually agreed upon production timelines as detailed in an Order Form. Customer’s failure to provide timely approvals may result in extended project timelines, creator unavailability, missed deadlines, and/or Customer-incurred overages.
7.2. Product delivery. If applicable, when Deliverables require Customer-supplied product(s), such product(s) must arrive in accordance with mutually agreed upon production timelines. Failure to deliver product, may result in extended timelines, cancelled or postponed shoots, or Customer-incurred overages.
7.3. Usage restrictions. Agency will disclose any usage restrictions resulting from inclusion of any third party materials used in production of the Deliverables.
7.4. Add-ons. For purposes of this Agreement, “Add-ons” means additions made to a project that are materially outside of the agreed upon project scope. The scope of a project will be defined in each Order Form, and any add-ons will be at the expense of Customer.
7.5. Project cancellations. Unilateral cancellations by Customer, prior to the completion of a project defined in a green-light Agreement or an Order Form are subject to the following fees: (i) any and all non-refundable expenses incurred on behalf of the Customer; (ii) 10% of the project budget if cancelled more than 72 hours before shooting begins; (iii) 50% of the project budget if cancelled within 72 hours of shooting. Customer agrees that unless otherwise expressly agreed upon by Agency in writing, Customer is not eligible for a replacement of any canceled package production.
VIII. PUBLICITY AND USE OF TRADEMARKS. Customer grants to Agency the express right to use Customer’s company logo in its marketing, sales, financial, and public relations materials, and other communications to identify Customer as a Agency Customer (the “marketing purpose”). Customer therefore grants to Agency a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, and revocable right and license to use Customer’s trademark, trade name, service marks, logos, or domain names in the form provided to Agency by Customer (“Customer marks”) for purposes of providing the services and only for the duration of the term of this Agreement. All uses of Customer marks and all goodwill associated therewith shall inure solely to the benefit of Customer, and Customer shall retain all right, title and interest in and to Customer marks. Customer shall not use Agency’s trademark, trade name, service marks, logos, or domain names in publicity releases, promotional material, Customer lists, advertising, marketing or business-generating efforts whether written or oral, without obtaining Agency’s prior written consent.
IX. CONFIDENTIALITY.
From time to time during the term of this Agreement, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), non-public, proprietary, and confidential information of disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within thirty (30) days thereafter, is summarized in writing and confirmed as confidential (“confidential information“); provided, however, that confidential information does not include any information that: (a) is or becomes generally available to the public other than as a result of receiving Party’s breach of this section 9; (b) is or becomes available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such confidential information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; (d) was or is independently developed by Receiving Party without using any confidential information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s confidential information with at least the same degree of care as the Receiving Party would protect its own confidential information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s confidential information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such confidential information to any person or entity, except to the Receiving Party’s group (defined below) who need to know the confidential information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and provided that the individual or entity in the Receiving Party group receiving the confidential information is contractually bound by confidentiality obligations at least as restrictive as the obligations in this section 9.
If the Receiving Party is required by applicable law or legal process to disclose any confidential information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements, if legally permissible, to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this section 9, Receiving Party’s group shall mean the Receiving Party’s affiliates and its employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
For purposes of clarity, Agency shall have the right to disclose confidential information to its creators and other third party strategic partners who are providing services in connection with this Agreement, provided that the creators and other third party strategic partners are bound by confidentiality obligations at least as restrictive as the obligations in this section 9.
Each Party’s confidentiality rights and obligations in this section 9 shall survive for one (1) year after termination or expiration of these Terms.
X. TERM, TERMINATION, AND SURVIVAL.
10.1. This Agreement shall commence as of the effective date and shall continue thereafter until the completion of the services under all Order Forms, unless sooner terminated pursuant to sections 10.2, 10.3, or 10.4 below (the “Term”). Each Order Form will have an effective date, expected completion date and termination rights.
10.2. Either Party may terminate this Agreement in the event the other Party materially breaches this Agreement, and the defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach (email sufficing).
10.3. Either Party may terminate this this Agreement upon sixty (60) days written notice if either (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files for bankruptcy or seeks reorganization as a result of a bankruptcy filing, or (iv) institutes liquidation or winding up procedures.
10.4. Agency may terminate this Agreement, or suspend any of its obligations in any Order Form, at any time upon written notice (email sufficing) to Customer if (a) Customer fails to pay any amount when due hereunder, (b) Customer engages in gross negligence or willful misconduct, (c) Agency determines in its sole discretion that Customer’s materials provided to Agency infringe or are likely to infringe the intellectual property rights of any third party, (d) Agency determines such termination is necessary to protect its business from harm to its business reputation, or (e) Agency determines that Customer or any materials provided by Customer violate or will cause Agency to violate any applicable laws, rules, or regulations. Agency’s termination of this Agreement will automatically terminate all Order Forms then in effect, effective on the date termination becomes effective. All suspensions by Agency of an Order Form will continue until Agency provides written notice (email sufficing) that the suspension has been removed.
10.5. Notwithstanding any termination by either Party in sections 10.2 or 10.3, or by Agency in section 9.4, Customer shall remain liable for all payments owed for services provided by Agency through the date termination becomes effective.
10.6. The rights and obligations of the parties set forth in this section 10, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. Notwithstanding the foregoing, each Party’s confidentiality obligations in section 9 shall only survive for the period of time specified in section 9.
XI. NON-SOLICITATION.
11.1. During the period commencing on the effective date and ending one (1) year following the termination or expiration of this Agreement, neither Customer nor any of its parents, subsidiaries, or affiliates (each, a “Restricted Person“) shall directly or indirectly, for itself or on behalf of another person or entity directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of Agency; or (ii) hire, or encourage to enter into any employment or contractor status relationship, any third party creator, entity, or person who has been a creator within the one year period following the termination of that person’s engagement with Agency. During the period commencing on the effective date and ending one year following the termination date or expiration of this Agreement, Customer shall not, whether for its own account or for the account of any other person or entity, intentionally interfere with the relationship of the creator or its affiliates with, or endeavor to entice away from Agency or its affiliates, any person who during the term of the Agreement is, or during the preceding one-year period, was a creator for Agency.
11.2. During the period commencing on the effective date and ending one (1) year following the termination or expiration of this Agreement, restricted persons shall not directly or indirectly, for itself or on behalf of another person or entity, solicit for employment or otherwise induce, influence, or encourage to terminate employment with Agency, or employ, or engage as an independent contractor, any current or former employee of Agency, with whom the restricted person had contact or who became known to the restricted person in connection with this Agreement (each, a “Covered Employee“), except pursuant to a general solicitation through the media, or by a search firm, in either case, that is not directed specifically to any current or former employees of Agency, unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this section 11.2.
XII. INDEMNIFICATION.
12.1. Subject to the limitations of liability in section 14, Agency will defend Customer and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Customer Indemnitees”) from and against any claim made or brought against any Customer indemnitee by a third party alleging that Services or Deliverables, as provided by Agency to Customer hereunder, infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret of any third party and Agency shall pay the damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Agency in a settlement with respect to such claims. Agency shall have no obligation to defend or pay damages to Customer for claims or losses arising from any materials provided by Customer to Agency, Customer’s breach of this Agreement, the combination of the Services or Deliverables with other services, products or content, any modifications to the Services or Deliverables made by any entity other than Agency, or Customer’s use Services or Deliverables or any portion thereof after Agency has suspended or terminated this Agreement in accordance with this Agreement. If the Services or Deliverables become or may become the subject of a claim of infringement, Agency may: (a) obtain the right for Customer to continue use of the Services or Deliverables; (b) replace or provide a work-around in order to allow for Customer’s continued use of the Services or Deliverables; or (c) if Agency cannot effect (a) or (b) using commercially reasonable efforts, terminate this Agreement, in whole, or in part with respect to the infringing service or deliverable. The provisions set forth in this section 12.1 shall be Agency’s sole obligation, and Customer’s sole remedy, for any violation of third party rights by the Services or Deliverables.
12.2. Customer will defend Agency and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Agency Indemnitees”) from and against any claim made or brought against any Agency indemnitee arising from or relating to any third party claims or actions based on: (a) Customer’s gross negligence or willful misconduct in performing its obligations under this Agreement; (b) Customer’s breach of any term, condition, covenant, representation or warranty under this Agreement; (c) Customer’s use of the services or Deliverables in a manner not contemplated hereunder, including any use that violates any applicable law or regulation or any right of a third party; (d) Customer’s use and placement of Deliverables after the Deliverables are received by Customer; or (e) any allegation that any materials provided by Customer to Agency infringes any applicable, patent, copyright, trademark or other proprietary right, or misappropriates any trade secret of any third party, and Customer shall pay any damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Customer in a settlement with respect to such claims.
12.3. The Indemnified Party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights, imposes any liability upon the indemnified party, or does not provide a complete release of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.
XIII. DISCLAIMER. WITH THE EXCEPTION OF THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES, INCLUDING BUT NOT LIMITED TO, ANY CREATIVE MATERIALS PROVIDED BY AGENCY, ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND. TO THE FULLEST EXTENT OF APPLICABLE LAW, AGENCY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
XIV. LIMITATION OF LIABILITY.
14.1. IN NO EVENT SHALL AGENCY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2. IN NO EVENT SHALL AGENCY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO AGENCY PURSUANT TO THIS AGREEMENT IN SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
XV. ENTIRE AGREEMENT. This Agreement, including and together with any related Order Forms, exhibits, schedules, attachments and appendices, constitutes the sole and entire Agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, Agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between these Terms and the Terms of any Order Form, the Terms of the Order Form shall supersede and control.
XVI. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth in the Order Form. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the notice has complied with the requirements of this 13.
XVII. SEVERABILITY. If any term or provision of these Terms is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
XVIII. AMENDMENTS. No amendment to or modification of or rescission, termination or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of these Terms and signed by an authorized representative of each Party.
XIX. WAIVER. No waiver by any Party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
XX. ASSIGNMENT. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Agency. Any purported assignment or delegation in violation of this 17 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Agency may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Agency’s assets without Customer’s consent.
XXI. SUCCESSORS AND ASSIGNS. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
XXII. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the services by Agency shall be under its own control, Customer being interested only in the results thereof. The Agency shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the services. The services must meet the Customer’s final approval and shall be subject to the Customer’s general right of inspection throughout the performance of the services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
XXIII. CHOICE OF LAW. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of Singapore, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Singapore.
XXIV. DISPUTE RESOLUTION. If a dispute or claim arises under this Agreement (a “Dispute”) that the Agency contract manager and the Customer contract manager are unable to resolve, a Party will notify the other Party of the dispute in writing (email sufficing) with as much detail as possible. Customer’s and a Agency’s senior business representative with full authority to resolve the dispute will use good faith efforts to resolve the dispute within ten (10) business days after receipt of a dispute notice. If the parties’ senior business representatives are unable to resolve the dispute, or agree upon the appropriate corrective action to be taken, within such ten (10) business days, then either Party may pursue arbitration as set forth in section 25 below.
XXV. ARBITRATION AGREEMENT. ANY DISPUTE, CLAIM OR CONTROVERSY (COLLECTIVELY, A “DISPUTE”) ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY PORTION THEREOF, DELIVERABLES, OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING ANY DISPUTE INVOLVING CONDUCT ALLEGED TO BE IN VIOLATION OF LOCAL, STATE OR FEDERAL STATUTORY OR COMMON LAW OR INDUSTRY CUSTOMS OR STANDARDS, AND THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT. By agreeing to arbitration, both Customer and Agency understand that they are knowingly, voluntarily, and intentionally waiving their right to maintain other available resolution processes, such as a court action or administrative proceedings.
Customer and Agency each agree to a confidential private arbitration before a neutral single arbitrator from jams, whose decision will be final and binding. All arbitration proceedings shall take place exclusively in Singapore. The arbitration proceedings shall be governed by the Arbitration Rules of the Singapore International Arbitration Centre, which are available at https://www.siac.org.sg/our-rules/rules/siac-rules-2016. The arbitrator is bound by the Terms of this Agreement. The arbitration will be conducted in the English language. For any Dispute where the potential award is reasonably likely to be $10,000 or less, either Customer or Agency may elect to have the dispute resolved through non-appearance-based arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Customer and Agency shall treat all arbitration proceedings–including any hearing, decision, award and opinion in support thereof–as confidential, and agree that the arbitrator shall issue such orders as is reasonably necessary to maintain such confidentiality.
If Customer intends to seek arbitration, Customer must first send written notice to Agency of its intent to arbitrate (“Notice”). The notice must: (a) describe the nature and basis of the Dispute; (b) set forth the specific relief sought, including the monetary amount; and (c) set forth Customer’s name, address and contact information. If Agency intends to seek arbitration against Customer, Agency will send any notice of Dispute to Customer at the contact information on file, and set forth the nature and basis of the Dispute, and relief sought, including the monetary amount.
Except for any Disputes caused by unpaid invoices owed to Agency, Customer and Agency each agree to commence any Dispute resolution within one (1) year after a claim arises; otherwise, the Dispute is waived.
XXVI. NO CLASS ACTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AND AGENCY EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
Customer and Agency understand that by agreeing to this class action waiver, each may only bring a Dispute against one another in an individual capacity, not as a representative or member of a purported class, or as a Private Attorney General. Customer and Agency each agree that any disputes shall not be consolidated with any Dispute of any other Party. Customer and Agency each agree that the arbitrator may not consolidate their claims with any other Party, and may not otherwise preside over any form of a representative or class proceeding.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, Customer and Agency each agree that all disputes arising out of or related to this Agreement must be resolved exclusively by a court located in Singapore, and Customer and Agency each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such disputes.
XXVII. COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement. Notwithstanding anything to the contrary in 12, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
XXVIII. FORCE MAJEURE. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.
These Creative Services Terms (“Terms“) govern the creative services offered by Brane Pte. Ltd., a Singapore company located at 68 Circular Road #02-01, Singapore 049422 DBA OFF Agency (“Agency”) that can be purchased through one or more Order Forms (“Order Form”). These Terms are legally binding when an Order Form expressly incorporates by reference these Terms and the Order Form is duly executed by a representative of Agency and by the customer set forth on the Order Form (“Customer”, and together with Agency, the “Parties“, and each a “Party“). These Terms, each Order Form, and Agency’s privacy policy (located at https://off.agency/privacy-policy) (the “Privacy Policy”), forms the entire agreement between the parties (collectively, the “Agreement”) for the creative services described in each Order Form. If there are any conflicting terms between the Order Form and the terms in these Terms, the terms in Order Form shall prevail.
WHEREAS Agency provides its Customers with creative agency services;
WHEREAS Customer desires to retain Agency to provide the services described in each Order Form, and Agency is willing to perform such services under the terms set forth in this Agreement;
Customer and Agency hereby agree as follows:
I. SERVICES.
1.1. Agency will use commercially reasonable efforts to provide to Customer the services (the “Services“) as set out in one or more Order Forms to be issued by Customer and accepted by Agency. Each Order Forms shall be deemed issued and accepted only if, in the case of Agency, the Order Form is emailed to [email protected] and signed by the Agency contract manager, and, in the case of Customer, the Order Form is signed by the Customer contract manager. Each Party’s contract manager shall be appointed pursuant to section 2.1(a) and section 3.1, respectively.
1.2. Customer acknowledges that services performed under a Order Form in which a third party creator (a “Creator”) performs work on and behalf of the Customer in order to provide the Deliverables (as defined in section 6.1) in an Order Form, is an integral component of Agency’s business model. Notwithstanding any conflicting term in this Agreement, Customer hereby agrees that Agency shall be permitted to subcontract the services performed under an Order Form to creators to provide the Deliverables. Agency warrants that creators performance standards for services will be performed in a professional and workmanlike manner in accordance with applicable industry standards.
II. AGENCY OBLIGATIONS. Agency shall:
2.1. Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:
2.1.1. A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Agency Contract Manager“).
2.1.2. The number of employees, or contractors that it deems sufficient to perform the services set out in each Order Form, (collectively, with the Agency contract manager, “Provider Representatives“).
2.2. Make no changes in provider representatives except:
2.2.1. Following notice to Customer (email sufficing); or
2.2.2. Upon the resignation, termination, death or disability of an existing provider representative.
III. CUSTOMER OBLIGATIONS. Customer shall:
3.1. Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer contract manager is appointed and provided that Agency is given prior written notice (email sufficing).
3.2. Require that the Customer contract manager respond promptly to any reasonable requests from Agency for instructions, information, or approvals required by Agency to provide the services.
3.3. Cooperate with Agency in its performance of the services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Agency to provide the services.
3.4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Agency’s provision of the services.
IV. FEES AND PAYMENTS.
4.1. In consideration of the provision of the services by the Agency and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable Order Form. Unless otherwise provided in the applicable Order Form, said fee will be pre-payable all applicable fees together with any applicable taxes, as described on the Order Form.
4.2. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Agency’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
4.3. Late payments shall bear interest at the rate of 2% per month. Customer shall also reimburse Agency for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Agency does not waive by the exercise of any rights hereunder), Agency shall be entitled to suspend the provision of any services if the Customer fails to pay any amounts when due hereunder.
V. LIMITED WARRANTY AND LIMITATION OF LIABILITY.
5.1. Agency warrants that it will use commercially reasonable efforts to perform the services:
- In accordance with the Terms and subject to the conditions set out in the respective Order Form and these Terms.
- Using personnel of industry-standard skill, experience, and qualifications.
- In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
5.2. Agency’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the warranty in section 5.1 shall be as follows:
- Agency shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Agency cannot cure such breach within a reasonable time (but no more than thirty (30) days after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with section 10.2.
- In the event the Agreement is terminated pursuant to section (a) above, Customer shall be permitted to terminate the Agreement upon written notice to Agency.
- The foregoing remedy shall not be available unless Customer provides written notice of such breach within ten (10) days after delivery of such service or deliverable to Customer.
VI. OWNERSHIP OF DELIVERABLES.
6.1. Grant of rights. Except as otherwise expressly provided in this Agreement and subject to all Terms in this Agreement, Agency assigns, grants, and conveys to Customer, and if applicable, creator assigns, grants, and conveys, all right, title and interest in any intellectual property rights in any Deliverables created for Customer pursuant to this Agreement (the “Deliverables”). Except as otherwise expressly provided in this Agreement, and subject to all Terms in this Agreement, Agency agrees that any and all Deliverables are and remain the property of Customer and are works made for hire to the extent allowed by law. Notwithstanding anything herein to the contrary, Customer’s ownership of the Deliverables shall be subject to (a) the rights of third parties whose materials or services are contained in the Deliverables (e.g., stock footage, photos, music, talent sag usage fees, etc.) And used under a license or other permission granted to Customer or Agency (“Third Party Materials“), and (b) all materials owned by Agency prior to, or independent from, the performance of services under this Agreement, and all methodologies, software, applications, processes or procedures used, created or developed by Agency in the general conduct of its business, excluding those developed specifically for Customer or at Customer’s request or funded by Customer (collectively, “Agency Materials“). Agency hereby grants Customer a royalty-free, perpetual, worldwide license to any Agency materials to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables for any and all purposes.
6.2. Raw files or footage: the Deliverables expressly excludes any raw video or audio files that are unedited, uncompressed, contain no transcoding, and have not been color corrected (“Raw Files”).
6.3. Machine learning/data. Agency employs machine learning applications (“software applications”) including deep learning and natural language processing to identify attributes within Customer creatives, including but not limited to the presence of people, food, beverages, automobiles, music and text and correlates those attributes with Customer’s video performance data including, but not limited to, likes, shares, comments, reposts, audiences and engagement. Customer hereby grants to Agency non-exclusive, transferable, sub-licensable, royalty-free access, during the term, to use, copy, store, archive, process, reproduce, perform, display, modify, analyze, compile, distribute and transmit (“Use”) Customer data (defined herein) solely for the purposes of machine learning. Agency shall not have or obtain any rights in or to any modifications made through use of the Customer data, other than through incorporation of the anonymized set of Customer data provided during the term into the software applications for purposes of training the software applications’ machine learning algorithms, where anonymized means that no individual element of the Customer data, alone or in combination with any other data element, can be used to identify Customer or any individual. Without limiting the foregoing, Customer agrees Agency is permitted to share, disclose, or otherwise make available the anonymized set of Customer data, described in this section 6.3, with third parties. “Customer Data” means all data, information, video, audio, and other materials submitted or made available by Customer to Agency, including any user-generated content provided by Customer to Agency, directly or indirectly, during the term.
6.4. Except as expressly set forth herein, Agency (and its licensors, where applicable) will retain all intellectual property rights relating to its software applications, including but not limited to, any and all improvements, modifications or derivatives thereof or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, (excluding Customer data), or any third party relating to its software applications, which are hereby assigned to Agency. For clarity, the foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, except as otherwise set forth in this Agreement. No jointly owned intellectual property is created under or in connection with this Agreement. Customer will not copy, distribute, reproduce, or use any of the foregoing except as permitted under this Agreement.
6.5. Except as expressly set forth herein, Agency (and its licensors, where applicable) will retain all intellectual property rights relating to its software applications, including but not limited to, any and all improvements, modifications or derivatives thereof or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, (excluding Customer data), or any third party relating to its software applications, which are hereby assigned to Agency. For clarity, the foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, except as otherwise set forth in this Agreement. No jointly owned intellectual property is created under or in connection with this Agreement. Customer will not copy, distribute, reproduce, or use any of the foregoing except as permitted under this Agreement.
VII. PROJECT MISCELLANEOUS.
7.1. Approvals. Any approvals required in an Order Form must be received in accordance with mutually agreed upon production timelines as detailed in an Order Form. Customer’s failure to provide timely approvals may result in extended project timelines, creator unavailability, missed deadlines, and/or Customer-incurred overages.
7.2. Product delivery. If applicable, when Deliverables require Customer-supplied product(s), such product(s) must arrive in accordance with mutually agreed upon production timelines. Failure to deliver product, may result in extended timelines, cancelled or postponed shoots, or Customer-incurred overages.
7.3. Usage restrictions. Agency will disclose any usage restrictions resulting from inclusion of any third party materials used in production of the Deliverables.
7.4. Add-ons. For purposes of this Agreement, “Add-ons” means additions made to a project that are materially outside of the agreed upon project scope. The scope of a project will be defined in each Order Form, and any add-ons will be at the expense of Customer.
7.5. Project cancellations. Unilateral cancellations by Customer, prior to the completion of a project defined in a green-light Agreement or an Order Form are subject to the following fees: (i) any and all non-refundable expenses incurred on behalf of the Customer; (ii) 10% of the project budget if cancelled more than 72 hours before shooting begins; (iii) 50% of the project budget if cancelled within 72 hours of shooting. Customer agrees that unless otherwise expressly agreed upon by Agency in writing, Customer is not eligible for a replacement of any canceled package production.
VIII. PUBLICITY AND USE OF TRADEMARKS. Customer grants to Agency the express right to use Customer’s company logo in its marketing, sales, financial, and public relations materials, and other communications to identify Customer as a Agency Customer (the “marketing purpose”). Customer therefore grants to Agency a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, and revocable right and license to use Customer’s trademark, trade name, service marks, logos, or domain names in the form provided to Agency by Customer (“Customer marks”) for purposes of providing the services and only for the duration of the term of this Agreement. All uses of Customer marks and all goodwill associated therewith shall inure solely to the benefit of Customer, and Customer shall retain all right, title and interest in and to Customer marks. Customer shall not use Agency’s trademark, trade name, service marks, logos, or domain names in publicity releases, promotional material, Customer lists, advertising, marketing or business-generating efforts whether written or oral, without obtaining Agency’s prior written consent.
IX. CONFIDENTIALITY.
From time to time during the term of this Agreement, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), non-public, proprietary, and confidential information of disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within thirty (30) days thereafter, is summarized in writing and confirmed as confidential (“confidential information“); provided, however, that confidential information does not include any information that: (a) is or becomes generally available to the public other than as a result of receiving Party’s breach of this section 9; (b) is or becomes available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such confidential information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; (d) was or is independently developed by Receiving Party without using any confidential information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s confidential information with at least the same degree of care as the Receiving Party would protect its own confidential information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s confidential information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such confidential information to any person or entity, except to the Receiving Party’s group (defined below) who need to know the confidential information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and provided that the individual or entity in the Receiving Party group receiving the confidential information is contractually bound by confidentiality obligations at least as restrictive as the obligations in this section 9.
If the Receiving Party is required by applicable law or legal process to disclose any confidential information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements, if legally permissible, to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this section 9, Receiving Party’s group shall mean the Receiving Party’s affiliates and its employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
For purposes of clarity, Agency shall have the right to disclose confidential information to its creators and other third party strategic partners who are providing services in connection with this Agreement, provided that the creators and other third party strategic partners are bound by confidentiality obligations at least as restrictive as the obligations in this section 9.
Each Party’s confidentiality rights and obligations in this section 9 shall survive for one (1) year after termination or expiration of these Terms.
X. TERM, TERMINATION, AND SURVIVAL.
10.1. This Agreement shall commence as of the effective date and shall continue thereafter until the completion of the services under all Order Forms, unless sooner terminated pursuant to sections 10.2, 10.3, or 10.4 below (the “Term”). Each Order Form will have an effective date, expected completion date and termination rights.
10.2. Either Party may terminate this Agreement in the event the other Party materially breaches this Agreement, and the defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach (email sufficing).
10.3. Either Party may terminate this this Agreement upon sixty (60) days written notice if either (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files for bankruptcy or seeks reorganization as a result of a bankruptcy filing, or (iv) institutes liquidation or winding up procedures.
10.4. Agency may terminate this Agreement, or suspend any of its obligations in any Order Form, at any time upon written notice (email sufficing) to Customer if (a) Customer fails to pay any amount when due hereunder, (b) Customer engages in gross negligence or willful misconduct, (c) Agency determines in its sole discretion that Customer’s materials provided to Agency infringe or are likely to infringe the intellectual property rights of any third party, (d) Agency determines such termination is necessary to protect its business from harm to its business reputation, or (e) Agency determines that Customer or any materials provided by Customer violate or will cause Agency to violate any applicable laws, rules, or regulations. Agency’s termination of this Agreement will automatically terminate all Order Forms then in effect, effective on the date termination becomes effective. All suspensions by Agency of an Order Form will continue until Agency provides written notice (email sufficing) that the suspension has been removed.
10.5. Notwithstanding any termination by either Party in sections 10.2 or 10.3, or by Agency in section 9.4, Customer shall remain liable for all payments owed for services provided by Agency through the date termination becomes effective.
10.6. The rights and obligations of the parties set forth in this section 10, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. Notwithstanding the foregoing, each Party’s confidentiality obligations in section 9 shall only survive for the period of time specified in section 9.
XI. NON-SOLICITATION.
11.1. During the period commencing on the effective date and ending one (1) year following the termination or expiration of this Agreement, neither Customer nor any of its parents, subsidiaries, or affiliates (each, a “Restricted Person“) shall directly or indirectly, for itself or on behalf of another person or entity directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of Agency; or (ii) hire, or encourage to enter into any employment or contractor status relationship, any third party creator, entity, or person who has been a creator within the one year period following the termination of that person’s engagement with Agency. During the period commencing on the effective date and ending one year following the termination date or expiration of this Agreement, Customer shall not, whether for its own account or for the account of any other person or entity, intentionally interfere with the relationship of the creator or its affiliates with, or endeavor to entice away from Agency or its affiliates, any person who during the term of the Agreement is, or during the preceding one-year period, was a creator for Agency.
11.2. During the period commencing on the effective date and ending one (1) year following the termination or expiration of this Agreement, restricted persons shall not directly or indirectly, for itself or on behalf of another person or entity, solicit for employment or otherwise induce, influence, or encourage to terminate employment with Agency, or employ, or engage as an independent contractor, any current or former employee of Agency, with whom the restricted person had contact or who became known to the restricted person in connection with this Agreement (each, a “Covered Employee“), except pursuant to a general solicitation through the media, or by a search firm, in either case, that is not directed specifically to any current or former employees of Agency, unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this section 11.2.
XII. INDEMNIFICATION.
12.1. Subject to the limitations of liability in section 14, Agency will defend Customer and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Customer Indemnitees”) from and against any claim made or brought against any Customer indemnitee by a third party alleging that Services or Deliverables, as provided by Agency to Customer hereunder, infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret of any third party and Agency shall pay the damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Agency in a settlement with respect to such claims. Agency shall have no obligation to defend or pay damages to Customer for claims or losses arising from any materials provided by Customer to Agency, Customer’s breach of this Agreement, the combination of the Services or Deliverables with other services, products or content, any modifications to the Services or Deliverables made by any entity other than Agency, or Customer’s use Services or Deliverables or any portion thereof after Agency has suspended or terminated this Agreement in accordance with this Agreement. If the Services or Deliverables become or may become the subject of a claim of infringement, Agency may: (a) obtain the right for Customer to continue use of the Services or Deliverables; (b) replace or provide a work-around in order to allow for Customer’s continued use of the Services or Deliverables; or (c) if Agency cannot effect (a) or (b) using commercially reasonable efforts, terminate this Agreement, in whole, or in part with respect to the infringing service or deliverable. The provisions set forth in this section 12.1 shall be Agency’s sole obligation, and Customer’s sole remedy, for any violation of third party rights by the Services or Deliverables.
12.2. Customer will defend Agency and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Agency Indemnitees”) from and against any claim made or brought against any Agency indemnitee arising from or relating to any third party claims or actions based on: (a) Customer’s gross negligence or willful misconduct in performing its obligations under this Agreement; (b) Customer’s breach of any term, condition, covenant, representation or warranty under this Agreement; (c) Customer’s use of the services or Deliverables in a manner not contemplated hereunder, including any use that violates any applicable law or regulation or any right of a third party; (d) Customer’s use and placement of Deliverables after the Deliverables are received by Customer; or (e) any allegation that any materials provided by Customer to Agency infringes any applicable, patent, copyright, trademark or other proprietary right, or misappropriates any trade secret of any third party, and Customer shall pay any damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Customer in a settlement with respect to such claims.
12.3. The Indemnified Party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights, imposes any liability upon the indemnified party, or does not provide a complete release of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.
XIII. DISCLAIMER. WITH THE EXCEPTION OF THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES, INCLUDING BUT NOT LIMITED TO, ANY CREATIVE MATERIALS PROVIDED BY AGENCY, ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND. TO THE FULLEST EXTENT OF APPLICABLE LAW, AGENCY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
XIV. LIMITATION OF LIABILITY.
14.1. IN NO EVENT SHALL AGENCY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2. IN NO EVENT SHALL AGENCY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO AGENCY PURSUANT TO THIS AGREEMENT IN SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
XV. ENTIRE AGREEMENT. This Agreement, including and together with any related Order Forms, exhibits, schedules, attachments and appendices, constitutes the sole and entire Agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, Agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between these Terms and the Terms of any Order Form, the Terms of the Order Form shall supersede and control.
XVI. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth in the Order Form. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the notice has complied with the requirements of this 13.
XVII. SEVERABILITY. If any term or provision of these Terms is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
XVIII. AMENDMENTS. No amendment to or modification of or rescission, termination or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of these Terms and signed by an authorized representative of each Party.
XIX. WAIVER. No waiver by any Party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
XX. ASSIGNMENT. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Agency. Any purported assignment or delegation in violation of this 17 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Agency may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Agency’s assets without Customer’s consent.
XXI. SUCCESSORS AND ASSIGNS. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
XXII. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the services by Agency shall be under its own control, Customer being interested only in the results thereof. The Agency shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the services. The services must meet the Customer’s final approval and shall be subject to the Customer’s general right of inspection throughout the performance of the services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
XXIII. CHOICE OF LAW. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of Singapore, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Singapore.
XXIV. DISPUTE RESOLUTION. If a dispute or claim arises under this Agreement (a “Dispute”) that the Agency contract manager and the Customer contract manager are unable to resolve, a Party will notify the other Party of the dispute in writing (email sufficing) with as much detail as possible. Customer’s and a Agency’s senior business representative with full authority to resolve the dispute will use good faith efforts to resolve the dispute within ten (10) business days after receipt of a dispute notice. If the parties’ senior business representatives are unable to resolve the dispute, or agree upon the appropriate corrective action to be taken, within such ten (10) business days, then either Party may pursue arbitration as set forth in section 25 below.
XXV. ARBITRATION AGREEMENT. ANY DISPUTE, CLAIM OR CONTROVERSY (COLLECTIVELY, A “DISPUTE”) ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY PORTION THEREOF, DELIVERABLES, OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING ANY DISPUTE INVOLVING CONDUCT ALLEGED TO BE IN VIOLATION OF LOCAL, STATE OR FEDERAL STATUTORY OR COMMON LAW OR INDUSTRY CUSTOMS OR STANDARDS, AND THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT. By agreeing to arbitration, both Customer and Agency understand that they are knowingly, voluntarily, and intentionally waiving their right to maintain other available resolution processes, such as a court action or administrative proceedings.
Customer and Agency each agree to a confidential private arbitration before a neutral single arbitrator from jams, whose decision will be final and binding. All arbitration proceedings shall take place exclusively in Singapore. The arbitration proceedings shall be governed by the Arbitration Rules of the Singapore International Arbitration Centre, which are available at https://www.siac.org.sg/our-rules/rules/siac-rules-2016. The arbitrator is bound by the Terms of this Agreement. The arbitration will be conducted in the English language. For any Dispute where the potential award is reasonably likely to be $10,000 or less, either Customer or Agency may elect to have the dispute resolved through non-appearance-based arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Customer and Agency shall treat all arbitration proceedings–including any hearing, decision, award and opinion in support thereof–as confidential, and agree that the arbitrator shall issue such orders as is reasonably necessary to maintain such confidentiality.
If Customer intends to seek arbitration, Customer must first send written notice to Agency of its intent to arbitrate (“Notice”). The notice must: (a) describe the nature and basis of the Dispute; (b) set forth the specific relief sought, including the monetary amount; and (c) set forth Customer’s name, address and contact information. If Agency intends to seek arbitration against Customer, Agency will send any notice of Dispute to Customer at the contact information on file, and set forth the nature and basis of the Dispute, and relief sought, including the monetary amount.
Except for any Disputes caused by unpaid invoices owed to Agency, Customer and Agency each agree to commence any Dispute resolution within one (1) year after a claim arises; otherwise, the Dispute is waived.
XXVI. NO CLASS ACTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AND AGENCY EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
Customer and Agency understand that by agreeing to this class action waiver, each may only bring a Dispute against one another in an individual capacity, not as a representative or member of a purported class, or as a Private Attorney General. Customer and Agency each agree that any disputes shall not be consolidated with any Dispute of any other Party. Customer and Agency each agree that the arbitrator may not consolidate their claims with any other Party, and may not otherwise preside over any form of a representative or class proceeding.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, Customer and Agency each agree that all disputes arising out of or related to this Agreement must be resolved exclusively by a court located in Singapore, and Customer and Agency each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such disputes.
XXVII. COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement. Notwithstanding anything to the contrary in 12, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
XXVIII. FORCE MAJEURE. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.
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