TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES v 4.0
1.1. In this Agreement:
1.11. ‘Agreement’ means these Terms and Conditions for the Supply the Services;
1.1.2. ‘Agency’ means Sprinklr, Inc. whose office is at 29 W 35th St 8th Floor, 10001
1.1.3. Charges’ means the charges, costs and expenses shown or referenced in the Insertion Order or as otherwise agreed in writing between the parties;
1.1.4. ‘Client’ means the person named on the Insertion Order for whom the Agency has agreed to provide the Services in accordance with this Agreement;
1.1.5. ‘‘Document’ includes, in addition to a document in writing, advert units, plan, design, picture or other image, or any other record of any information in any form;
1.1.6. ‘GAP’ means the Agency’s Gambling Advertising Policy as it is now in effect and as it may be modified by the Agency from time to time.
1.1.7. ‘Input Material’ means any Documents, creatives or other materials, and any data or other information provided by the Client relating to the Service;
1.1.8. ‘Insertion Order’ means the sheet to which this Agreement is appended and contains details of the Service, each of which Insertion Order is incorporated by reference and made part of this Agreement;
1.1.9. ‘Prior Agreement’ means any prior and properly executed agreement between the parties.
1.1.10. ‘Output Material’ means any Documents or other materials, and any data or other information provided by the Agency relating to the Service;
1.1.11. ‘Services’ means the services to be provided by the Agency for the Client pursuant to the applicable Insertion Order;
1.1.12. ‘Taxes’ means any taxes and government assessments of any kind, except for franchise taxes imposed on the Agency and taxes based solely on the net income of the Agency.
1.1.12. ‘Term’ means the term of this Agreement as defined in Clause 7 of the Agreement.
1.1.13. ‘Working Day’ means any weekday, 9am to 5.30pm GMT, on which banks are open for business.
1.1.14. ‘US’ means the fifty states of the United States, the District of Columbia, and all territories and possessions of the United States.
1.2. The headings in this Agreement are for convenience only and shall not affect their interpretation.
1.3. In the event of any conflict between the terms of this Agreement and any Prior Agreement, the terms of this Agreement shall prevail.
2. SUPPLY OF THE SERVICE
2.1. The Client shall at its own expense supply the Agency with all necessary Documents, other materials, necessary data, and other information relating to the Services or requested by the Agency, within sufficient time to enable the Agency to provide the Services in accordance with this Agreement. The Client shall ensure the accuracy of all Input
Material and the terms of the Insertion Order (including any accompanying specification) and that none of such Documents or other items infringe or misappropriate the intellectual property rights of any third party as provided to the Agency or when used as contemplated by the applicable Insertion Order or this Agreement..
2.2. The Client shall at its own expense retain duplicate copies of all Input Material and insure against its loss or damage. The Agency shall have no liability for any such loss or damage for any reason, accidental or otherwise. All Output Material shall be at the sole risk of the Client from the time of delivery to, or to the order of the Client.
2.3. The Services shall be provided in accordance with the Insertion Order and otherwise in accordance with the Agency’s media plan or proposal. The Agency will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services. The Client acknowledges and agrees that it may be necessary for the Agency to
replace personnel carrying out the Services with alternative personnel with similar levels of seniority and experience without notice to the Client.
2.4. Further details about the Services, and advice or recommendations about its provision or utilisation, which are not given in the Insertion Order, media plan or proposal, may be made available on written request.
2.5. The Agency may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Services without any liability to the Client.
2.6. The Agency may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable statutory, regulatory or industry requirements or practices, or which do not materially affect the nature or quality of the Services. The Client’s written approval of media schedules and estimates will be the Agency’s authority to make reservations and contracts for space, time and other facilities under the terms and conditions required by media or suppliers.
2.7. Any requests by the Client for modifications to any Services must be made in writing to be received by the Agency at least Five Working Days prior to the scheduled delivery of the Services (or part thereof). Modifications received by the Agency within five Working Days or less of the delivery of the Services or during their performance will be
accommodated at the Agency’s sole discretion. The Agency will make a reasonable effort to accommodate other requested modification, but reserves the right to charge Client for additional services and costs, expenses and charges of third parties related to any such modifications allowed by this clause of the Agreement. The Agency shall not be liable
in event that it does not implement such changes.
2.8 Codes sites will be compatible with the following browsers: Internet Explorer 6 and 7 and Firefox. Development of backward compatibility with other browsers or systems is not covered in the Agency’s creative quotes and will only be implemented at an additional cost.
2.9 Specific rules apply to gambling advertising. The GAP as it now exists forms part of these terms and conditions and can be obtained on request from the Agency. Amendments, deletions and other modifications of the GAP shall become part of this Agreement and the modified GAP shall replace all prior editions of the GAP as part of this
Agreement. The Client shall at all times use the Services, Output Material and otherwise perform this Agreement in conformity with the GAP.
3.1. Subject to any special terms agreed in writing by the Agency, the Client shall pay the Charges and any additional sums which are agreed between the Agency and the Client for the provision of the Services or which, in the Agency’s sole discretion, are required as a result of the Client’s instructions (or lack of instructions), the inaccuracy of any Input Material, modifications or any other cause attributable to the Client. The Client shall be responsible for any and all late payment charges applied by any publisher in accordance with the Late Copy Charges policy agreed by the Internet Advertising Bureau and the Association of Online Publishers.
3.2. The price of the Services shall be the Agency’s quoted price or, where a quoted price is no longer valid, the price provided to the Client at the date of acceptance of the Insertion Order. All prices quoted are valid for up to seven days from the date of the Insertion Order or until earlier acceptance by the Client, after which time they may be altered by the Agency upon prior written notice to the Client.
3.3. The Company reserves the right to increase the price of the Services to reflect any increase in the cost to the Agency which is due to any factor beyond the control of the Agency (including without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of service), any change in Services delivery dates, quantities, specifications for the Services requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give the Company adequate information or instructions.
3.4. The Agency shall be entitled to vary the Charges applicable to a particular Insertion Order no more frequently than once per annum by giving not less than one month’s written notice to the Client.
3.5. All Charges quoted or chargeable to the Client for the provision of the Service are exclusive of all Taxes. The Client shall be pay, or if the Agency has made payment of Taxes, reimburse the Agency for payment, of all Taxes.
3.6. The Agency shall be entitled to invoice the Client following the end of each month in which the Services is provided, or at other times agreed with the Client on the Insertion Order. Time for payment of the Charges shall be of the essence.
3.7. The Charges and any additional sums shall be due when invoiced and payable by the Client (together with any applicable Taxes), and without any set-off or other deduction) within 30 days of the date of the Agency’s invoice, subject to satisfactory checks, failing which, in advance of the commencement of the Services, unless otherwise agreed with the Agency.
3.8. If payment is not made on the due date, the Agency shall be entitled, without limiting any other rights it may have to:
3.8.1. charge interest on the outstanding amount (both before and after any judgment) at any rate permissible under law;
3.8.2. allocate any payment made by the Client to such of the Services (or the services supplied under any other contract between the Client and the Agency) as the Agency may think fit (notwithstanding any purported cancellation by the Client); and
3.8.3. terminate this Agreement in accordance with clause 7.
3.9. The Agency shall be entitled to a general lien on all assets, such as, but not limited to the Input Material, the Output Material, resulting from the Services, as well as any property owned by the Client in the Agency’s possession or under its control (although the Client may have paid for the same in full) in satisfaction of the whole or part as the case may be of the unpaid price of any Services sold and delivered to the Client under any contract. The Agency shall be entitled to offset any sum or sums owing to it from the Client against any sums owed to the Client by the Agency.
3.10 Where a surcharge is levied by a supplier of media against the Agency due to late payment and the results from late payment by the Client, the Client shall immediately reimburse to the Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount. If late copy charges are
levied by a media owner against the Agency, the Client shall immediately reimburse the amount of such late copy charges to the Agency.
In the event of the Agency’s credit insurers revising or withdrawing cover for the Client, the Agency reserves the right to revise its terms of payment and if necessary ask for payments in advance of media bookings or seek suitable guarantees from the Client. If it is not possible to reach agreement on suitable revised terms the Media Agency will
have the right to terminate this Agreement immediately.
4. RIGHTS IN INPUT MATERIAL AND OUTPUT MATERIAL
4.1. All rights, title and interest, including without limitation, any copyright or other intellectual property rights, in:
4.1.1 any Input Material shall (subject to any such rights of any third party) belong (or continue to belong) to the Client;
4.1.2 any Output Material shall, unless otherwise agreed in writing between the Client and the Agency, belong to the Agency. Subject to clause 4.1.3, as to any third party rights which may exist, the Agency agrees, if it is entitled to do so, to assign to the Client with title to such property, copyright or other intellectual property rights which it may have for no further consideration, subject to the completion of this Agreement and to payment in full of the Charges and any additional sums payable; and
4.1.3 all origination files/scripts and codes which have been used to provide the Services, including but not limited to fla, psd, ai, html, xml and css files, shall belong to the Agency.
4.2 It is understood and agreed that this Agreement does not constitute a “work for hire” or any assignment of copyrights. Any assignment of the rights in rights, title and interests shall be subject, if at all, to another agreement between the parties and such agreement may be entered into or denied at the Agency’s sole discretion.
4.3. The Client represents and warrants that any Input Material and its use by the Agency for the purpose of providing the Services will not infringe or misappropriate any rights, title or interests of any third party and shall not infringe or misappropriate any intellectual property rights, such as but not limited to copyrights and trade secrets, of any third part.
The Client shall defend, indemnify and hold the Agency, its affiliated corporations, officers, employees, directors, suppliers, vendors, representatives, owners and investors harmless from and against any loss, damages, costs, expenses, suits, actions or proceedings or other claims arising from any such infringement, misappropriation or other breach or default of the foregoing representation and warranty. Any resolution by the Client of any matter subject to this provision of the Agreement shall occur only following consultation and agreement of the Agency.
5. WARRANTIES, LIABILITY AND INDEMNITY
5.1. The Agency warrants to the Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Insertion Order and at the intervals and within the times referred to in the Insertion Order. Where the Agency supplies in connection with the provision of the Services any Output Material
supplied by a third party, the Agency does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the Output Material to the Agency.
5.2. The Agency shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other
fault of the Client.
5.3. Except in respect of death or personal injury caused by the Agency’s negligence, or as expressly provided in this Agreement, the Agency shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for
any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Agency, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client. All Services and Output Material is provided “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
5.4 IN NO EVENT SHALL THE AGENCY’S TOTAL LIABILITY TO THE CLIENT FROM ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER, IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT THE CLIENT HAS PAID TO THE AGENCY, IF ANY, FOR THE SERVICES OR $100,000, WHICHEVER IS LESS.
5.5 THE AGENCY AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT PRODUCTS OR SERVICE, LOSS OR DAMAGE TO INFORMATION
OR DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICES OR ANY THE AGENCY PRODUCT OR SERVICE.
5.6. The Agency shall not be liable to the Client for any change in the law which may give rise to an obligation on the Client to include a statement or disclaimer as part of its Input Material. The Agency shall exercise its reasonable endeavours to implement such additional wording as part of the Output Material as soon as it is received from the
Client but accepts no liability in the event that the Client is in breach of its legal obligations, for any fines or damages payable by the Client to any third party or legal authority where insufficient notice has been given by the Client to the Agency to implement such changes and the Client shall defend, indemnify and hold the Agency harmless in the event that the Agency is ordered to pay any such fines or damages.
5.7. For the purposes of clause 5.4, the minimum notice required to the Agency in order to effect the changes referred to in clause 5.4 shall be Five Working Days.
5.8. The Client shall defend, indemnify and hold the Agency, its affiliated corporations, officers, employees, directors, suppliers, vendors, representatives, owners and investors harmless from and against any loss, damages, costs, expenses, suits, actions or proceedings or other claims arising from any breach by the Client of this Agreement. Any resolution by the Client of any matter subject to this provision of the Agreement shall occur only following consultation and agreement of the Agency.
5.9 Each party shall ensure that any mailing list or customer database supplied to the other party shall comply with the requirements of all legislation in force from time to time, including without limitation all privacy laws, regulations or directives.
5.10 Agency and/or Advertiser is liable to Facebook for any and all purchases made on Agency and/or Advertiser’s behalf by Sprinklr, Inc, and Facebook is a third party beneficiary to such provision; and (ii) Sprinklr, Inc. is its agent and is authorized to access and use the applicable Agency and/or Advertiser account and act on its behalf in connection with the services to be performed pursuant to the Advertising Agreement.
6.1. All information disclosed by either party to the other in pursuance of or in connection with this Agreement shall be treated as confidential and each party undertakes not to disclose, publish or divulge any part thereof to any person other than its own employees, agents or representatives who are required to have such information for the performance of any of the obligations hereunder, except to the extent that it is now or subsequently through no fault of the party in question becomes public knowledge, or the party in question is required by law to disclose the information.
6.2. For the avoidance of doubt, the Agency’s relationship with its suppliers is confidential and the Agency shall not be obliged to disclose details thereof to the Client. Should the Client wish to communicate with one or more of the Agency’s suppliers, the Client must first obtain the written permission of the Agency.
6.3 These restrictions shall not be construed to apply to (1) information generally available to the public; (2) information released by the recipient party generally without restriction; (3) information independently developed or acquired by the recipient party without reliance in any way on other protected information of the recipient party; or (4) information approved by the recipient party, in writing, for the use and disclosure of the recipient without restriction. Notwithstanding the foregoing restrictions, either party may use and disclose any confidential information of the other party to the extent required by an order of any court or other governmental agency but in each case only after the recipient party has been so notified and has had the opportunity, if possible, to obtain reasonable protection for such information in connection with such disclosure.
7. TERMINATION AND CANCELLATION
7.1. Either party shall be entitled after the first three months following the effective date of this Agreement (and not before) to terminate this Agreement by giving not less than three months’ written notice to the other party.
7.2. Subject to clauses 7.1 and 7.3, the Client shall not be entitled to cancel this Agreement while performance continues pursuant to an Insertion Order. No Insertion Order which has been accepted by the Agency may be cancelled by the Client except with the agreement in writing of the Agency and on terms that the Client shall indemnify and hold
the Agency harmless for all losses (including loss of profit), costs (including the cost of all labour and services purchased on behalf of the Client), damages, charges and expenses (including legal fees and disbursements) incurred by the Agency as a result of cancellation.
7.3. Either party may (without limiting any other remedy) at any time terminate this Agreement by giving written notice to the other if the other commits any breach of this Agreement and fails to remedy the breach (if capable of remedy) within thirty days after being required by written notice to do so, or if the other goes into liquidation, becomes
bankrupt, ceases (or threatens to cease) trading, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed over its assets.
7.4. For the purposes of clause 7.3, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance.
7.5. In the event of termination pursuant to this clause 7 or unremedied default by the Client as described in clause 7.3, then without prejudice to any other right or remedy available to the Agency, the Agency shall be entitled to stop any Services under way or suspend any further Services, and if the Services has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. The Agency shall be entitled to retain any and all monies paid by the Client to the Agency in the event of termination of this Agreement, save where the termination is due to the Agency’s breach of its obligations under this Agreement. Any refund by the Agency shall be in its absolute discretion.
7.6 For the avoidance of doubt the Agency will always be able to terminate or suspend any CPA (Cost per Acquisition) deal immediately without giving any notice whatsoever.
8.1. This Agreement (together with the terms, if any, set out in the Insertion Order) constitutes the entire agreement between the parties, and supersedes and incorporates by reference any previous or contemporaneous agreements, representations, statements and understandings. This Agreement may not be amended or modified except in writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
8.2. A notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and shall be deemed to have
been received, in the case of service by:
8.2.1. hand, upon delivery to an authorised representative of the recipient;
8.2.2. post, two Working Days (or five Working Days if internationally) after posting; and
8.2.3. fax or email, upon the printing or receipt of a successful delivery report to the recipient’s fax machine or server, provided a hard copy shall also be sent by first class post to the other party within twenty-four hours of transmission.
8.3. No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.4. If any provision of this Agreement shall be held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.
8.5. Any dispute arising under or in connection with this Agreement or the provision of the Services shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the president for the time being of the Advertising Standards Authority.
8.6. The Agency shall not be liable to the Client or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Agency’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Agency’s reasonable control (‘Force Majeure’). Without prejudice to the
generality of the foregoing, the following shall be regarded as Force Majeure events:
8.6.1. Act of God, explosion, flood, tempest, fire or accident;
8.6.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.6.4. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Agency or of a third party);
8.6.5. power failure or breakdown in machinery.
8.7. The Client agrees that the Agency may cite the Client as a client of the Agency in press releases and marketing material.
8.8 Both parties shall comply with applicable law and regulation. For the avoidance of doubt the Agency is not responsible for copy content or late delivery of the Advertising provided by a third party creative agency or for advising the Client about compliance issues.
8.9. The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during or for a period of 12 months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorise the taking of
any such action by any other person) any personnel of the other party who has worked on the Services at any time during the Term.
8.10 Neither party shall assign its rights or delegate its obligation under this Agreement without the prior written consent of the other party, such consent not to be unreasonably conditioned, withheld or delayed.
8.12 This Agreement and the relationship between the parties shall be governed by the laws of the State of New York, as those laws are in effect among residents of such state and without regard to its choice of laws provisions, and the United States, and the state and federal courts of New York shall have exclusive jurisdiction over any dispute. The Client hereby agrees to submit to the personal jurisdiction of such courts for the purposes of this Agreement.