TERMS & CONDITIONS -
US & CANADA.
TERMS AND CONDITIONS OF GOODS AND/OR SERVICES – US & CANADA
These Terms and Conditions of Goods and/or Services – US & Canada (these “Terms and Conditions”) shall govern the provision of goods and services to any Customer pursuant to any Order. Should any other document or instrument outline varying terms to regulate the relationship, it shall be considered only for supplementing terms which are not outlined herein. Where there is any conflict or inconsistency between this Agreement and ANY other document (including Customer terms, purchase orders or other written instruments submitted by Customer) which related to the same Services and/or Deliverables, this Agreement shall prevail and govern in all respects unless expressly agreed in writing by Company and Customer.
1. Definitions. For purposes of these Terms and Conditions, the following terms shall have the following meanings:
This “Agreement,” as between Company and Customer set forth in each Order, means such Order inclusive of these Terms and Conditions which are incorporated therein. For the avoidance of doubt, each Order (inclusive of these Terms and Conditions) with a Customer shall constitute a separate Agreement.
“Company” means any of the following companies or divisions, as reflected in the applicable Order:
Tag Worldwide (USA) Inc.
Tag Worldwide (Canada) Inc.
THP USA Inc.
“Customer” means the party to which Company shall provide goods and/or services as reflected in the applicable Order.
“Deliverables” means the goods, products or materials created, developed and/or produced by Company for the Customer pursuant to the applicable Order.
“Intellectual Property” means intellectual works which have been created and memorialized, including copyrights, patents, trademarks, trade secrets, trade or business names, and other intellectual property. Additional examples (though not exhaustive) include rights in computer software, databases, moral rights, service marks, proprietary knowledge, registered or unregistered rights in any designs, applications for any of the foregoing, know-how, secret formulae and processes, and other rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect, anywhere in the world.
“Order” means a purchase order, task order, work order, statement of work, schedule or other instrument mutually agreed by Company and Customer, including but not limited to any bid, proposal, quote, estimate, budget or similar instrument submitted by Company which is accepted by Customer. Each Order shall be subject to these Terms and Conditions.
“Parties” (and each individually a “Party”) means Company and Customer, as reflected in the applicable Order.
“Services” means the goods, products, work and services provided by Company to Customer as set forth in the applicable Order.
2. Services; Formation of Agreement.
(a) Company shall provide to Customer the Services and Deliverables as set forth in each Order, subject solely to the terms, provisions and conditions set forth in this Agreement. An Order must be agreed to, or written confirmation of approval of 100% of an Order must be received by Company, before any Services shall commence.
(b) Upon requesting, or confirming acceptance of an Order for the provision of, Services and/or Deliverables from Company, Customer shall be deemed to have accepted these Terms and Conditions, and the Agreement shall become binding as between Customer and Company, notwithstanding the absence of any formal acknowledgement.
(c) Customer and Company may enter into an agreement for Services and/or Deliverables which will constitute a separate binding contract between the Parties which shall incorporate (with any necessary changes) these Terms and Conditions. In the case of any conflict or inconsistency between these Terms and Conditions and any subsequent contract between the Parties for Services and/or Deliverables, these Terms and Conditions shall control unless expressly stated otherwise in such subsequent contract.
3. Delivery.
(a) Notwithstanding a statement that time is of the essence for specified Services or Deliverables, the time for performance of Services or delivery of the Deliverables shall in every case be dependent upon prompt receipt of all necessary information, materials (including Customer Materials (as defined herein)), final instructions and/or approvals from Customer.
(b) Where the Deliverables are to be delivered electronically, Customer acknowledges and agrees that (i) electronic delivery is not a completely secure medium of communication and that an unauthorized third party may intercept, tamper with or delete the Deliverables to be delivered electronically; and (ii) electronic delivery may involve reliance upon third party providers and data carriers, over which Company has no control.
(c) Company shall not be responsible for and shall have no liability to Customer or any third party for (i) any delay in delivery or any non-receipt of any Deliverables delivered electronically; (ii) any loss or damage (including loss of data) that results from any person gaining unauthorized access to any Deliverables delivered electronically; (iii) use or disclosure of any data obtained by any third party as a result of that third party gaining unauthorized access to any Deliverables delivered electronically; or (iv) any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Deliverables delivered electronically.
Customer will have thirty (30) days from delivery to communicate any material defect of any Deliverable. Customer’s sole and exclusive remedy, as determined at the sole discretion of Company, at no additional cost to Customer, shall be reperformance of the relevant Service(s), replacement of the defective Deliverable(s) or a refund of any portion of the received Fee relating to such Deliverable(s).
4. Payment of Fees and Expenses.
(a) All fees and other charges payable to Company in exchange for Services performed or Deliverables delivered hereunder (collectively, “Fees”) and any reasonable out-of-pocket expenses paid by Company for or on behalf of Customer in connection with such Services and/or Deliverables (collectively, “Expenses”) shall be set forth in invoices delivered by Company to Customer pursuant to and in accordance with the timeline set forth in the applicable Order for such Services and/or Deliverables.
(b) The Fees and Expenses set forth in any such invoice shall be paid by Customer to Company without set-off, withholding or deduction within thirty (30) days of receipt of such invoice, unless otherwise provided in the applicable Order. Partial payment in advance of commencing Services may be required and will be outlined in the Order.
(c) Company shall be entitled to amend or supplement an Order in the event that additional costs are incurred or likely to be incurred. Examples of additional costs arise when: Customer Materials are unsuitable for quality processing, information is missing, Customer requests changes or fails to provide timely instruction/approvals, third party costs or currency fluctuations occur.
(d) If Customer fails to make payment of any Fees and Expenses when due, Company may charge interest on such unpaid amount at the rate of one and one-half percent (1.5%) per month from the date on which such unpaid amount was due until the date on which such unpaid amount plus accrued but unpaid interest thereon have been paid in full.
(e) Customer shall have thirty (30) days from the date of any invoice within which to notify Company in writing of a bona fide dispute relating to any Fees and Expenses set forth in such invoice. In the event of a bona fide dispute regarding any Fees or Expenses, Customer shall pay the Fees and Expenses that are not in dispute and shall provide written notice of the disputed Fees or Expenses within thirty (30) days of receipt of the relevant invoice. Such notice shall include an explanation of the disputed portion of the Fees and Expenses, the basis of the dispute and a proposed resolution. The Parties shall use commercially reasonable efforts to resolve all disputes in good faith and as promptly as possible in accordance with the dispute resolution provisions in Section 19 of these Terms and Conditions. Upon resolution of any such dispute, if it is determined, Customer shall pay the disputed amount to Company within ten (10) days of such resolution.
(f) Unless expressly provided in an Order or invoice, all pricing shall be exclusive of applicable taxes. 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, except Company shall be responsible for any taxes on its income, revenues, gross receipts, personnel, real or personal property or other assets.
5. Term and Termination.
(a) The term of this Agreement, with respect to any Order, shall commence as of the effective date set forth in such Order or the date on which Customer confirms acceptance of such Order, and shall continue in effect thereafter (i) for the period, or until the expiration date, set forth in such Order, or (ii) if no such period or expiration date is reflected in the Order, indefinitely, in each case unless or until terminated by the Parties mutually in writing or otherwise in accordance with the provisions of this Agreement.
(b) Either Party shall be entitled to terminate this Agreement with immediate effect in the event that the other Party commits a material breach of this Agreement which is either not capable of remedy or which that Party fails to remedy within thirty (30) days following receipt of a written notice of such material breach.
(c) Either Party shall be entitled to terminate this Agreement immediately by written notice to the other Party in the event that the other Party is adjudicated bankrupt, is determined to be insolvent, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors or seeks protection against creditors under any applicable federal or state laws, or if there is a commencement of any bankruptcy, insolvency, receivership or other similar proceeding against the other Party that is not dismissed within sixty (60) days after such filing.
(d) Company may cancel this Agreement (and any Services to be provided under it) at any time upon written notice to Customer. Cancellation under this clause shall be without prejudice to any other rights or remedies available to Company (including the right of Company to recover payment from Customer for any Services or Deliverables provided).
(e) Upon termination or expiration of this Agreement, Customer shall immediately pay all outstanding Fees and Expenses to Company as of and until the effective date of termination. Any right or obligation of the Parties pursuant to this Agreement which by its nature survives termination or expiration of this Agreement (including, without limitation, Sections 6, 7 and 8) will survive any such termination or expiration of this Agreement for the period specified therein or, if not so specified, indefinitely.
(f) If work is rejected by Customer on the basis of style or composition, all Fees and Expenses contained within the Order will remain applicable and payable in full to Company. With respect to any photographic and film productions, if postponement is required due to weather conditions, Customer shall pay the full amount as specified in the agreed Order, unless such postponement is made more than twenty-four (24) hours prior to departure of Company personnel to the location, unit base or studio, in which event Customer shall pay 50% of the Fees, and all Expenses, incurred as of the time of postponement.
6. Intellectual Property
(a) Existing Intellectual Property Rights. All right, title and interest in and to any existing Intellectual Property belonging to a Party (whether by ownership, license or otherwise) prior to the date of this Agreement or generated, developed or created by or on behalf of a Party outside the scope of this Agreement shall remain vested solely in that Party. Nothing in this Agreement or the provision of the Services and/or Deliverables shall operate to transfer any Intellectual Property to or from either Party except as expressly provided herein.
(b) Customer Intellectual Property Rights. Unless otherwise provided in the applicable Order, all right, title and interest in and to all Deliverables and all Intellectual Property (including all inventions, improvements, and discoveries), created or developed by Company at Customer’s specific written request and cost (whether independently or jointly with the Customer), in the performance of the Services shall vest solely in the Customer upon full and complete payment therefor, with effect from delivery thereof. Subject to payment therefor by Customer, Company hereby irrevocably assigns to Customer all right, title, and interest in and to all such Customer Deliverables and Intellectual Property.
(c) Customer Materials. Customer confirms it owns or has obtained the legal right to use any data, content, material, concepts, designs, images or other forms of content (including the Intellectual Property therein) it submits to Company for use in the performance of the Services or to incorporate into any Deliverables produced under this Agreement (collectively, “Customer Materials”). Additionally, Customer grants to Company, during the term of this Agreement, a non-exclusive, royalty-free, worldwide, fully paid-up license (with a right to grant sublicenses to subcontractors and vendors to assist in the Services) to make, have made, develop, market, import, transfer, practice, transmit, broadcast, reproduce, perform, display, modify, create derivative works based upon, distribute (electronically or otherwise), disclose, purchase, manufacture or otherwise use (collectively, “Use”) the Customer Materials to the extent necessary to perform the Services and produce the Deliverables under this Agreement. Customer shall indemnify and hold harmless Company and its affiliates, officers, directors, owners, employees, agents, successors and assigns from and against any and all claims, losses, damages, awards, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees and expenses) that any such indemnified party may incur or suffer arising out of or relating to any claims that the Customer Materials infringe the Intellectual Property rights of any third party or fail to comply with applicable law, rules or regulations.
(d) Company Intellectual Property. Notwithstanding anything herein to the contrary, nothing in this Agreement shall affect Company’s ownership of Intellectual Property rights with respect to Company’s proprietary methods and processes utilized by Company to perform the Services and produce the Deliverables (collectively, “Company Intellectual Property”), which shall remain vested solely in Company. Company grants to Customer a non-exclusive, royalty-free, worldwide, non-transferable license to Use such Company Intellectual Property to the extent necessary for Customer to enjoy the full benefit of the Services during the term of this Agreement and the Deliverables. Except for the license granted under this paragraph, Company retains all right, title and interest in and to all such Company Intellectual Property. Company shall indemnify and hold harmless Customer and its affiliates, officers, directors, owners, employees, agents, successors and assigns from and against any and all claims, losses, damages, awards, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees and expenses) that any such indemnified party may incur or suffer arising out of or relating to any claims that the Company Intellectual Property infringes the Intellectual Property rights of any third party or fails to comply with applicable law, rules or regulations.
7. Confidentiality; Non-Solicitation.
(a) Confidentiality. In the course of performing this Agreement, each Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) confidential information, in any form (including oral, written, electronic, tape, disk, physical or visual), regarding the Disclosing Party, its affiliates, customers, clients, licensors, vendors, employees, vendors or assigns, which the Receiving Party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, should be known as confidential information of the Disclosing Party (“Confidential Information”). Each Party agrees that, during the term of this Agreement and for two (2) years thereafter, all such Confidential Information acquired by the other Party hereunder shall be held in confidence, and neither Party shall, directly or indirectly, disclose, reveal or make available, or use (except solely for the purpose of performing its obligations or enforcing its rights under this Agreement) any such Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. Notwithstanding the preceding sentence, a Receiving Party’s obligations under this paragraph shall continue in effect indefinitely with respect to Confidential Information that constitutes a trade secret for so long as such Confidential Information remains a trade secret. The Receiving Party shall disclose Confidential Information only to those of its officers, directors, employees, vendors, subcontractors, representatives, advisors and agents who have a reasonable need to know in connection with the performance or enforcement of this Agreement, provided that (x) each such recipient shall be informed of the Disclosing Party’s obligations under this Section and shall agree or otherwise be bound to protect such Confidential Information with the same degree of care that it employs for the protection of its own confidential and proprietary information of a similar nature, but not less than reasonable care, and (y) the Receiving Party shall be responsible for any breach of this paragraph by any such recipient of Confidential Information. The Receiving Party shall not have any obligation under this paragraph with respect to information that (i) is in the public domain or becomes part of the public domain through no fault of the Receiving Party, (ii) was in the possession of or disclosed to the Receiving Party prior to disclosure by the Disclosing Party, free of any obligation to the Disclosing Party to keep the same confidential, (iii) is lawfully acquired by the Receiving Party from a third party under no obligation of confidentiality to the Disclosing Party or (iv) the Receiving Party is obligated under law or court order to disclose; provided, however, the Party required to so disclose shall give prompt written notice thereof to the Disclosing Party. For clarity, each Party shall treat this Agreement and its terms as Confidential Information and shall not reference them or disclose them in violation of this paragraph. Upon expiration or termination of this Agreement, each Party shall return (or, at the Disclosing Party’s request, destroy) all Confidential Information (including any copies, reproductions, duplicates or notes containing Confidential Information) of the Disclosing Party in the Receiving Party’s possession to the Disclosing Party.
(b) Non-Solicitation. Customer acknowledges and agrees that personnel employed or engaged by Company in the performance of, or in connection with, the Services (“Company Personnel”) are important assets of Company. Accordingly, at all times during the term of this Agreement and for a period of six (6) months thereafter, Customer shall not, without the prior written consent of Company, directly or indirectly employ, offer to employ, retain as an independent contractor or offer to retain as an independent contractor, any Company Personnel; provided, that such restriction shall not apply to any Company Personnel hired through a general advertising campaign not directed at Company Personnel.
(c) Remedies. Company and Customer further acknowledge that a monetary remedy for a breach of any provision of this Section 7 would be inadequate and that such breach would cause the non-breaching Party irrevocable harm. As such, the non-breaching Party will be entitled, without the posting of a bond and in addition to any other remedies available to it at law or equity, to temporary and permanent injunctive relief, including temporary restraining orders, or other equitable relief in the event of any breach, attempted breach or alleged breach. The provisions of this Section 7 shall survive the termination of this Agreement as provided herein.
8. Limited Warranty and Limitation of Liability.
(a) Company makes no warranties with respect to the Services except as expressly provided herein. Any other warranties, express and implied, are hereby expressly disclaimed.
(b) Notwithstanding any provision of this Agreement or any Order to the contrary, but subject to applicable law, in no event shall either Party be liable to the other Party or to any third party for any loss of use, business, revenue, business interruption, anticipated savings, goodwill, profits or data, any diminution in value or any consequential, incidental, indirect, exemplary, special, or punitive damages, in each case whether arising directly or indirectly or out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not either Party has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
(c) Notwithstanding any provision of this Agreement or any Order to the contrary, but subject to applicable law, in no event shall Company’s aggregate liability arising out of or relating to this Agreement with respect to any Order exceed the aggregate Fees paid to Company pursuant to such Order in the twelve (12) month period immediately preceding the event giving rise to the claim.
(d) In no event shall Company have any liability to Customer resulting from (i) any damage to person or property or breach of this Agreement arising from any act or omission of Customer or its affiliates (including their respective officers, directors, owners, employees, consultants, freelancers and agents), or (ii) Company’s (including by its employees, subcontractors, vendors or agents) performance of Services in accordance with Customer’s written instructions or specifications.
(e) Each Party will only look to the other Party and not to any director, officer, employee, consultant, freelancer or agent of the other Party for satisfaction of any claim, demand or cause of action for damages, injuries or losses incurred as a result of the other Party’s action or inaction.
(f) Nothing in the Agreement shall exclude or in any way limit either Party’s liability for a claim of fraud or any other liability which cannot be excluded or limited as a matter of law.
9. Data Protection. Each Party shall comply with the provisions of any local data protection laws (as each may be amended or re-enacted from time to time, “DP Laws”), to the extent directly applicable in the receipt or delivery of Services under this Agreement. If the Customer provides any personal data to Company, it will only do so in a way that complies with DP Laws and any other applicable legislation relating to the handling of such personal data and in an appropriately secure or encrypted format. In particular, the Parties acknowledge and agree that Customer will only instruct Company to process personal data on its behalf by entering into a separate data processing agreement with Company which is compliant with the terms of DP Laws. Customer acknowledges that Company shall not be liable for any costs, fines, damages or liabilities that may arise from any processing of personal data by Company on behalf of Customer if Customer has failed to provide written instructions in the form of a legally compliant data processing agreement as required by this Section.
10. Publicity. No announcement, communication or publicity of any kind relating to the terms of this Agreement shall be made or issued by either Party to this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), provided that Company retains the right to publicize, advertise and market the Deliverables or any associated products and materials, original character design, ideas or concepts that have been created, developed and produced by Company in relation to the Agreement on its website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, or in any other manner, as Company may in its sole discretion determine, without the prior written consent of Customer. Customer hereby grants to Company a perpetual, non-exclusive, transferable, sub-licensable, royalty-free license to use the Deliverables throughout the world for Company to promote its business by whatever means it sees fit.
11. Insurance. Each of Company and Customer shall maintain and keep effective, during the term of this Agreement and for one year thereafter, sufficient insurance policies to protect such Party against any loss or liability which it may incur or suffer arising out of the Agreement.
12. Storage of Client Materials. Storage of Client Materials. Company shall be under no liability whatsoever for any loss, damage to or destruction of Customer Materials (whether such Customer Materials are in the possession of Company or otherwise) and it is Customer’s responsibility to ensure that it has appropriate back-up copies of all Customer Materials. In accordance with Section 11 above, Customer shall insure all Customer Materials to their full value against all risks. Where Customer Materials are supplied or specific instructions are given by Customer, Company accepts no liability for any reduction in the quality of the Services caused by defects or errors in or the unsuitability of such Customer Materials or by Company’s use of Customer Materials or adherence to any of Customer’s specific instructions.
13. Notices. All notices, requests, consents, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the Order (or to such other address that the receiving Party may designate from time to time in accordance with this Section). 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), or by email with confirmation of receipt.
14. Severability. If any term or provision of the Agreement (or part thereof) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, such term or provision (or part thereof) shall, to the extent required, be excised from the Agreement, and the validity and enforceability of the remaining provisions of the Agreement shall not be affected. A court of competent jurisdiction may modify the invalid, illegal or unenforceable term or provision to reflect the initial intention of the Parties.
15. Waiver. No waiver, failure to, or delay in exercising any right by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Waivers shall only be effective if they are in writing and signed by the Party against whom the waiver is to be enforced. No waiver given by either Party hereunder shall be construed as a continuing waiver thereof or a waiver of any other or subsequent breach of this Agreement.
16 Assignment. No Party shall assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, without Customer’s consent, Company may (i) assign any of its rights or delegate any of its obligations to any affiliate, or any company acquiring all or substantially all of Company’s assets or Company’s stock, or (ii) assign or delegate any of its obligations to any subcontractor, vendor or affiliate, provided that Company shall remain liable to Customer for the performance of the Services under this Agreement or (iii) assign its receivables under this Agreement to a third party lender in connection with an approved financing. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
17. Relationship of the Parties. Company’s relationship to Customer shall be that of an independent contractor. 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.
18. No Third-Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, the Parties and their permitted successors and assigns, and neither this Agreement nor any Order shall be deemed to create any rights in third parties.
19. Dispute Resolution. In the event of a dispute arising under this Agreement, the Parties shall use their best commercial efforts to negotiate and settle amicably such dispute. The Parties agree in the first instance to refer any dispute to their respective account managers. Should the account managers fail to reach resolution within ten (10) business days of referral of the dispute, then the dispute shall be referred to the immediate line manager of the respective account managers for resolution. Should the immediate line managers be unsuccessful in resolving the dispute within ten (10) business days of the dispute being referred to them for resolution, then the dispute shall be referred to the appropriate senior managers of the Parties. Provided the procedure set out in this Section has been exhausted or frustrated, nothing in this Section shall prevent the Parties from being entitled to commence or continue court proceedings at any time thereafter.
20. Governing Law; Jurisdiction; Waiver of Right to Jury Trial. This Agreement and all incorporated documents shall be interpreted and governed by the laws and jurisdiction of the State of New York without regard to the conflict of law principles thereof. Each Party waives any defense of forum non-conveniens, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. Each Party hereby waives any right it may have to a trial by jury.
21. Force Majeure. Company shall not be liable, responsible or be deemed to have defaulted or breached this Agreement for any failure or delay in performing any of its obligations under this Agreement when and to the extent such failure or delay is caused by acts or circumstances beyond the reasonable control of Company, including without limitation, act of God, strikes, fire, flood, explosion, civil disturbance, acts of terrorism, epidemic or pandemic events, interference by civil or military authority, accident, labor disputes or shortages, or because the continuation of the Services would be in violation of any governmental laws, rules or regulations or would cause or create any material safety, health or environmental concerns or for other causes beyond the reasonable control of Company.
22. Entire Agreement. This Agreement (comprised of the Order and these Terms and Conditions) constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all other written and oral agreements, commitments or understandings between the Parties regarding such subject matter. All goods or services offered by Company shall be subject to these Terms and Conditions, which are hereby incorporated into any Order between Company and Customer to the exclusion of any terms or conditions stipulated or referred to by Customer. Any dealings with Company following receipt by Customer of notice of these Terms and Conditions shall automatically be deemed acceptance of these Terms and Conditions notwithstanding the absence of formal acknowledgement.
