TERMS AND CONDITIONS FOR WPP Open Dynamic Content
Last updated: Wednesday 23 May 2018
Access and use of the Greenhouse Group BV (LemonPI) (“LemonPI”, “Greenhouse Group”,” “we,” “us,” “our”) platform located at https://manage.lemonpi.io (the “Platform”) are subject to the following Terms and Conditions (as amended from time to time, the “Terms and Conditions”). We reserve the right, at our sole discretion, to change or modify portions of these Terms and Conditions at any time without further notice. You (the “Agency”) should periodically visit this page (www.lemonpi.io) to review the current Terms and Conditions so you are aware of any revision to which you are bound. If we do this, we will post the changes to these Terms and Conditions on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Platform after any such changes constitutes your acceptance of the new Terms and Conditions. If you do not agree to abide by these or any future Terms and Conditions, do not use or access (or continue to use or access) the Platform.
- The Supplier is a provider of the Platform that serves and manages Dynamic Creatives and offers managed services for the delivery of Dynamic Creatives.
- The Agency is entering into this Agreement with the Supplier to licence the Platform and receive Services for the delivery of Dynamic Creatives from the Supplier in accordance with the terms and conditions specified in this Agreement.
- The purpose of this Agreement is to set out various terms which have been agreed between the Agency and the Supplier with regards to the relationship between the Supplier and the Agency.
1. IT IS AGREED THAT:
1.1 In this Agreement the following words and phrases have the following meaning:
“Advertiser” means any client of the Agency.
“Advertising Campaign” means an online ad campaign managed, optimized, and/or analysed by the Agency using the Platform.
“Advertiser Content” content created by or on behalf of the Advertiser.
“Agency Data” means all data uploaded or transmitted by the Agency in the Platform in connection with an Advertising Campaign.
“Agreement” means these terms and conditions including the Schedules.
“Aggregated” means a form in which anonymised, non-personal data gathered for use by the Supplier to operate, manage, maintain, provide or improve the Services is combined with data from numerous campaigns of numerous advertisers and precludes identification, directly or indirectly, of the Advertiser or the Agency.
“Business Day” has the meaning as defined by the governing law of the registered office of the Supplier.
“Business Hours” are from 900 AM to 600 PM of the time zone where the registered office of the Agency is located.
“Commencement Date” means the date first set out above.
“Confidential Information” means the terms of this Agreement and any information, however conveyed or presented (and whether conveyed or presented before or after the date of this Agreement), that relates to the Agency’s and/or the Advertiser’s business, affairs, operations, customers, processes, budgets, pricing policies, services, marketing plans, strategies, developments, Advertiser Content, personal data, trade secrets, know-how, personnel and suppliers, together with all information derived by the Supplier from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”) and/or which ought reasonably be considered to be confidential.
“Data Protection Legislation” means the European General Data Protection Regulation (GDPR) and the European Privacy and Electronic Communications Directive (as amended, updated or revoked from time to time) and any legislation implementing this Regulation and Directive in any country (including but not limited to the Data Protection Act 1998, the Privacy and Electronic Communications Regulations (SI 2426/2003),the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations (SI 2011/1208)), and any data protection, privacy or other laws which are similar or equivalent to this Regulation, Directive in any country.
“Dynamic Creatives” means the advertising material created by the Platform.
“Force Majeure Event” means any cause affecting the performance by a party of its obligations under this Agreement arising from acts, events, omissions or non-events beyond its control, including acts of God, riots, war, acts of terrorism, fire, flood, storm or earthquake and any disaster.
“IPR” means any and all intellectual property rights of any nature anywhere in the world whether registered, registrable or otherwise, including patents, utility models, registered and unregistered trademarks, registered and unregistered designs, domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other rights of a similar nature.
“Licence Fee” means the costs for the licence.
“Pixel” means a 1×1 transparent gif placed on the website of the Advertiser. Calling this image with fixed parameters in the query string allows the Platform to pull information regarding products and/or services from the Advertiser’s website. In the response back the Platform pushes a cookie with information regarding the products and/or services (such as: what products and/or services were viewed, when was it viewed, how many times, on what page type). The pixel is called and placed by a Script.
“Platform” means the technology, engines, tools and software applications relating to the implementation, operation and maintenance of Lemon PI product.
“Publisher” means a digital media supplier, including web publishers, exchanges, publisher yield managers or other video advertising reseller (other than the Supplier).
“Reporting Data” means non-personal data relating to delivery and performance of an Advertising Campaign including, without limitation, number and content of creatives, dynamic inputs, and log files relating to number of click-throughs and page impressions per ad.
“Services” means those platform, training and support services specified in Schedule 1.
“Service Fees” means those fees for optional services selected by the Agency within the Platform, but excluding the Licence Fee.
“Supplier Personnel” means all employees, officers, workers, agents, sub-contractors and other staff of the Supplier involved in provision of the Services.
“Tags” means Pixel and/or Script.
“Taxes” means all applicable sales taxes, duties, customs or levies which apply to the Services (including, but not limited to VAT).
“Term” has the meaning set out in clause 9.1.
“Third Party Data” means any data obtained or licensed by the Supplier from a third party.
1.2 In this Agreement:
(a) words denoting the singular include the plural and vice versa;
(b) words denoting any gender include all other genders;
(c) any reference to a “person” includes individuals, bodies corporate, companies, partnerships, unincorporated associations, firms, trusts and all other legal and commercial entities;
(d) any reference to a party includes a reference, if applicable, to the successors and/or permitted assignees of that party;
(e) the Schedules shall for all purposes form part of this Agreement;
(f) clause and Schedule headings are included for convenience only and shall not affect the interpretation of this Agreement;
(g) unless otherwise stated, any reference to a clause or Schedule is to the relevant clause or Schedule of this Agreement and any reference to a paragraph is to the relevant paragraph of the applicable Schedule;
(h) any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(i) the English language shall control (whilst this Agreement may be translated by either party for convenience into any language other than English, the English language text shall always prevail in every eventuality);
(j) any reference to this Agreement or any other document referred to in it is a reference to this Agreement or the applicable document as amended, varied, supplemented, novated or replaced by the parties from time to time; and
(k) In this Agreement, the terms “data controller”, “data processor”, “data subject” and “processing” and “personal data” bear the respective meanings given to them in applicable Data Protection Legislation, as amended, revoked or replaced from time to time.
The Agency hereby appoints the Supplier on a non-exclusive basis as a supplier for the provision of the Services and the licence of the Platform. Nothing in this Agreement shall prevent the Agency from purchasing services or licensing software and/or technology which are the same as or similar to the Services and Platform from any third party.
3. USE OF PLATFORM
3.1 The Supplier shall remain the owner of all IPR in the Platform.
3.2 The Supplier hereby grants to the Agency a worldwide, royalty-free, non-exclusive right and licence to access and utilise the Platform and receive the Services for the Term in accordance with the terms of this Agreement for the benefit of itself and its Advertisers. Such licence includes the right for the Agency to make the Platform available to the Advertiser as well as third party service providers which need to have access and utilise the Platform to provide their services to the Agency (“Subcontractors”) and the Agency’s, Advertiser’s and Subcontractors’ employees. The Agency shall enter into data processor agreements with all the Subcontractors who have access to the Platform and who qualify as (sub-)data processors according to the Data Protection Legislation. These data processor agreements will meet the requirements as set out in Article 28 (2) GDPR.
3.3 The Agency shall be responsible for any actions undertaken on the Platform through the Agency’s account, regardless if these actions are undertaken by the Agency itself or her Subcontractors The Agency will promptly notify the Supplier if it becomes aware of any unauthorised use of the Platform.
3.4 Except as provided in this Agreement or as otherwise reasonably necessary to use, gain access to and realise the benefits of the Platform, the Agency shall not knowingly:
(a) interfere with or disrupt the Platform or attempt to gain access to any of the Supplier’s internal systems or networks that connect to the Platform;
(b) reproduce or distribute the Platform, or any portion thereof;
(c) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Platform;
(d) except where the Agency has a licence to do so from the relevant third party and solely to the extent that such licence permits the removal of any such data, remove any Third Party Data;
(e) or modify, prepare derivative works of, translate, reverse engineer, decompile, disassemble the Platform or any portion thereof, or attempt to do any of the
3.5 The platform makes use of the Google API Services. The YouTube Terms of service can be found at: https://www.youtube.com/t/terms.
4. TREATMENT OF DYNAMIC CREATIVES
4.1 The Supplier acknowledges that, as between the Agency and the Supplier, the Agency shall retain all IPR in and to the Dynamic Creatives.
4.2 The Agency hereby grants the Supplier a non-exclusive licence to use the Dynamic Creatives during the Term solely for the purpose of providing the Services pursuant to this Agreement and, in each case, without altering the Dynamic Creatives in any manner (other than alterations which are necessary for the Supplier to render the Services) or taking any other actions in relation to the Dynamic Creatives, unless it has the prior written approval of the Agency.
5. DATA OWNERSHIP
5.1 With respect to Reporting Data:
(a) the Supplier shall publish the approved Reporting Data to the Agency in the Platform (accessible only to the Agency) in the format and at the frequency specified in Schedule 2;
(b) the Reporting Data shall not contain any information that the Agency or the Advertiser could use or recognise as personal data;
(c) the IPR in all Reporting Data shall automatically vest in the Agency upon collection;
(d) to the extent that the IPR in Reporting Data does not automatically vest in the Agency by operation of law, the Supplier hereby assigns to the Agency (including by way of assignment of future rights) all IPR in and to Reporting Data with full title guarantee upon collection. To the extent that any moral rights subsist in Reporting Data, the Supplier shall procure a waiver of all moral rights in favour of the Agency;
(e) the Agency may use the Reporting Data for optimisation purposes and the benefit of the Advertisers and its entire discretion; and
(f) the Supplier shall be entitled to use the Reporting Data solely for the benefit of the relevant Advertiser to which it relates and on an Aggregated basis for the Supplier’s internal reporting and/or security purposes.
5.2 With respect to Agency Data:
(a) the Agency shall retain all IPR in the Agency Data; and
(b) the Agency hereby grants the Supplier a non-exclusive licence during the Term to use the Agency Data solely for the purpose of providing the Services pursuant to this Agreement.
5.3 With respect to Third Party Data, the provision and use of such data shall be in the Agency’s sole discretion.
6.1 The Supplier shall be entitled to invoice the Agency on a monthly basis for the Licence Fee and the Service Fees.
6.2 All sums stated in this Agreement are stated exclusive of Taxes (if applicable).
6.3 Subject to any deductions or withholdings required by law, the Agency shall pay the Supplier’s properly due and correctly addressed invoice within thirty (30) days of receipt of the invoice provided that it is not genuinely in dispute.
6.4 The Supplier shall not receive any commission, discounts, rebate, free inventory or other benefit in kind from any third party (including, without limitation, Publishers) in connection with the Services or the Platform.
7. PRIVACY REGULATIONS AND DATA PROTECTION
7.1 In the course of providing the Services and licensing access to the Platform the Supplier processes Agency Data under the responsibility of and in accordance with the instructions of the Agency. In accordance with the Data Protection Legislation Supplier qualifies therefore as a data processor . Consequently the Agency qualifies as the data controller.
7.2 To the extent applicable to them, the parties shall comply with Data Protection Legislation all times
7.3 The Supplier shall notify the Agency of any (planned) transfers of Agency Data to a country outside of the European Economic Area that is not providing an adequate level of protection, at the latest four weeks before commencing such transfer, in which event the Agency has the right at its discretion to object to such transfers within four weeks.
7.4 Without prejudice to any existing contractual confidentiality arrangements between the parties, the Supplier warrants that it shall treat all Agency Data, the content of this Agreement and notifications pursuant to clause 7.8 as strictly confidential towards any third parties. The Supplier shall ensure that all persons authorized to process the Agency Data are bound to confidentiality. These obligations will not prevent a party from sharing information with a third party to the extent such disclosure is mandatory under the Data Protection Legislation.
7.5 Without prejudice to any other security standards agreed upon by the parties, the Supplier shall take appropriate technical and organisational measures to ensure a level of security appropriate to the risk of the processing of the Agency Data.
7.6 The Agency provides the Supplier with general authorization to engage sub-processors. The Supplier shall inform the Agency in advance of the engagement and/or replacement of a sub-processor, in which event the Agency has the right at its discretion to object to (the engagement of) a sub-processor within four weeks. The Supplier shall ensure that the sub-processor is bound by the same obligations as the Supplier under this Agreement, and shall supervise compliance thereof. The Supplier shall, at the Agency’s first request, provide a copy of the (intended) written agreement with the sub-processor.
7.7 In case the Supplier receives a complaint or a request (such as a request to access, rectification or erasure) of a natural person with regard to the Agency Data, the Supplier notifies the Agency without undue delay after receiving the complaint or request.
7.8 In case of any breach of the security and/or confidentiality as set out in Section 32 GDPR leading to the loss or any form of unlawful processing, including destruction, alteration, unauthorized disclosure of, or access to, the Agency Data, or any indication of such breach having taken place or being about to take place, the Supplier notifies the Agency without undue delay after discovery of the breach. Such notification includes: (i) the nature of the breach; (ii) the date and time upon which the breach took place and was discovered; (iii) the (amount of) data subjects affected by the breach; (iv) which categories of Agency Data were involved with the breach; and (v) whether and, if so, which security measures – such as encryption – were taken to render the Agency Data incomprehensible or inaccessible to anyone without the authorization to access these data.
7.9 At the request of the Agency, the Supplier shall promptly provide all information deemed reasonably necessary by the Agency for the Agency to comply with its obligations under the Data Protection Legislation. The Agency has the right to perform an audit of the Supplier in order to determine to what extent the Supplier complies with the provisions of the Agreement. Such audit will be performed by an independent third party and will take place at a time defined by both parties together, at the latest two months after the initial request of the Agency. The Supplier shall provide the auditor access – on request of the auditor – to the facilities, personnel, policies and documents that are reasonably necessary for the purpose of the audit. The Agency will bear the costs for the audit, unless the audit shows that the Supplier does not comply with the Agreement. In such case, the Supplier bears the costs of the audit.
7.10 Unless retention is required by the Data Protection Legislation, the Supplier shall, at the discretion of the Agency, destroy or return the Agency Data to the Agency upon expiration of this Agreement, in the manner and format indicated by the Agency (where applicable). The Supplier shall simultaneously destroy all existing copies of the Agency Data. In such event, the Supplier shall ensure that all its engaged sub-processors cooperate to return and/or destroy the Agency Data.
7.11 The Supplier shall provide the Agency with comprehensive information and control over any Tags used or to be used in the Services. The Supplier shall not alter any Tags without the Agency’s prior written approval.
7.12 The Agency shall be entitled to employ its own Tags. The Supplier shall not gather data from such Tags without the Agency’s prior written approval and to the extent so authorised, any data collected shall be deemed to be Reporting Data.
7.13 Subject to the approval of the relevant Advertiser, the Supplier shall be entitled to use Tags on Advertiser Content solely for the provision of the Services.
7.14 If Tags are used, the Supplier shall have the right to place the AdChoice or EASE/IAB or similar icon on the Advertiser Content (in the top right hand corner so as not to unduly obstruct the Advertiser Content).
8.1 Each party warrants it has full capacity and authority to enter into and perform this Agreement and, in doing so, does not cause it to breach the terms of any existing agreement or licence with any third party
8.2 The Supplier warrants, undertakes and represents on an ongoing basis that:
(a) it shall provide the Services in accordance with this Agreement;
(b) it shall perform the Services at all times with all due care ;
(c) it shall perform the Services in compliance with all applicable laws and regulations;
(d) the Platform, the Services and the Dynamic Creatives do not contain any viruses, malware, trojans, malicious code, spyware, bugs, worms, or malware and will not contain any computer code or other technology that is designed to maliciously disrupt, disable, harm, or otherwise impede the operation of the Services, the Dynamic Creatives, or any other software, computer system or network, unless one or more of the aforementioned issues are a result of specific orders of the Agency regarding the placement of Tags in a certain manner and/or in a certain content. In the latter case the Supplier is not liable for any damages that may occur;
(e) the Platform will perform in accordance with Schedule 1;
(f) the Platform in its default settings, as provided to the Agency at the Commencement Date, complies with all applicable laws and regulations and all applicable contractual obligations to third parties;
8.3 The Agency warrants, undertakes and represents on an ongoing basis that:
(a) it shall comply with the conditions as set out in this Agreement;
(b) its use of the Platform complies with all the applicable laws and regulations and all applicable contractual obligations to third parties;
(c) it shall comply with all the responsibilities resulting from the Data Protection Legislation;
(d) it shall use the Platform solely in good faith and in no event shall it use the Platform for unlawful and/or illegal activities;
9. TERM AND TERMINATION
9.1 This Agreement shall come into force on the Commencement Date and shall continue for an unlimited period (“Term”) unless terminated earlier in accordance with this Agreement.
9.2 Either party may terminate this Agreement:
(a) forthwith by giving written notice to the other party if the other party has a winding up petition presented against it or enters into liquidation whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation) or compounds with or makes any arrangement with its creditors or makes a general assignment for the benefit of its creditors, or if it has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of its undertaking or assets, or if it has an administration petition presented or administration application made against it or a notice of intention to appoint an administrator has been given to any person or if it ceases or threatens to cease to carry on its business, or if it suffers any analogous process under any law in any jurisdiction; or
(b) if either party commits a material breach of this Agreement which is incapable of remedy or if capable of remedy is not remedied within thirty (30) days (or such longer period as the parties may agree in writing) of notice setting out particulars of the breach and requiring its remedy.
9.3 Each party may terminate this Agreement:
(a) for convenience upon ninety (90) days’ prior written notice to the Supplier at any time;
(b) forthwith if the other party commits a breach of clause 7 (data protection) and/or 15 (confidential information).
11. FORCE MAJEURE
11.1 Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under this Agreement to the extent that the delay or non-performance is due to Force Majeure Event provided that:
(a) the relevant party has used best endeavours to avoid and mitigate the effects of the Force Majeure Event and to carry out its obligations under this Agreement in any other way that is reasonably practical; and
(b) the party suffering a Force Majeure Event has promptly given written notice to the other party containing full particulars of the nature and the extent of the circumstances giving rise to the Force Majeure Event.
11.2 Upon notice by the party suffering a Force Majeure Event of the circumstances giving rise to Force Majeure to the other party, the party shall enter into bona fide discussions with a view to alleviating its effects or agreeing upon such alternative arrangements as may be fair and reasonable. If the Force Majeure Event affects the performance of the Supplier’s obligations for a continuous period in excess of four (4) weeks after the date on which the Force Majeure Event begins, the Agency is entitled to terminate this Agreement by giving at least ten (10) day’s written notice to the Supplier.
12.1 Subject to clause 13.2, the Supplier shall indemnify and keep the Agency indemnified on a continuing basis from and against all direct losses, claims, damages, costs and expenses suffered or incurred by the Agency in respect of any claim or allegation brought by a third party in respect of the infringement of that third party’s rights, including IPR, by the Platform..
12.2 Subject to clause 13.2, the Supplier shall indemnify and keep the Agency indemnified on a continuing basis from and against all direct losses, claims, damages, costs and expenses ( suffered or incurred by the Agency in respect of:
(a) any damage caused to the Agency premises by a member of Supplier Personnel in the provision of the Services;
(b) the deliberate acts or negligence of the Supplier and/or Supplier Personnel in connection with this Agreement;
(c) any breach of clause 7 (privacy regulations and data protection); and
(d) any breach of clause 17 (confidential information).
12.3 Subject to clause 15.2, the Agency shall indemnify and keep the Supplier indemnified on a continuing basis from and against all losses, claims, damages, costs and expenses (including legal expenses) suffered or incurred by the Supplier, whether or not in respect of any claim or allegation brought by a third party, in respect of:
(a) the deliberate acts or negligence of the Agency and/or its employees in connection with this Agreement;
(b) any breach of clause 5.3 (provision and use of Third Party Data);
(c) any breach of clause 7 (privacy regulations and data protection); and
(d) any breach of clause 17 (confidential information).
13. LIABILITY AND INSURANCE
13.1 Neither party excludes or limits its liability for death or personal injury caused by its negligence fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited by law.
13.2 The maximum aggregate liability of the Supplier and the Agency under or in connection with this Agreement (whether arising in contract, tort (including negligence) or otherwise) shall be limited to the Licence Fee paid or payable in respect of the twelve (12) month period prior to the relevant liability arising.
13.3 The Supplier shall, at its own expense, provide and maintain in force for the Term with reputable and substantial insurers, employer’s liability insurance, public liability insurance and professional indemnity insurance, each with an insured amount of at least EUR 1.000.000,00 per occurrence.
14. RETENTION AND AUDIT
14.1 The Supplier shall retain complete and accurate accounts and records in relation to the provision of the Services under this Agreement during the Term and for a period of three (3) years thereafter and deliver up to the Agency within reasonable time any accounts and records requested by the Agency in writing during the Term and for a period of three (3) years thereafter.
14.2 The Supplier shall allow the Agency, the Advertiser and their authorised representatives to access the Supplier’s premises during the Term and for a period of six (6) months thereafter to review and take copies of any record that the Agency may require in order to determine the Supplier’s compliance with this Agreement (including, but not limited to, all transparency, data protection, anti-bribery and confidentiality obligations).
14.3 If an audit identifies or the Agency becomes aware that:
(a) the Supplier is failing to comply with any of its obligations under this Agreement then, without prejudice to the other rights and remedies of the Agency, the Supplier shall promptly take all necessary steps to comply with its obligations at no additional cost to the Agency and shall within thirty (30) days of the results of such audit, provide to the Agency a written plan to be agreed with the Agency to prevent future failures; or
(b) the Agency has overpaid any Licence or other fees, the Supplier shall pay to the Agency the amount overpaid together with interest at the statutory rate.
15. CONFIDENTIAL INFORMATION
15.1 Before and/or during the Term, parties may be exposed to and entrusted with Confidential Information. Parties undertake to:
(a) keep confidential all Confidential Information;
(b) not without the other party’s prior written consent to disclose the Confidential Information in whole or in part to any other person save those of its directors, employees, agents or professional advisers involved in the performance of this Agreement and provided in all cases that they have a need to know the same and are subject to obligations of confidentiality no less onerous than those applicable to the parties pursuant to this Agreement; and
(c) to use the Confidential Information solely in connection with the performance of the Agreement.
15.2 This clause shall not apply to any of the Confidential Information which, other than through the default of a party, becomes available to the public generally or which is required to be disclosed by law or a court order.
15.3 Parties shall protect and prevent the unauthorised disclosure of any of the Confidential Information. Where such information is wrongly disclosed, the party concerned will notify the other party as soon as is practicably possible after learning of that disclosure and in any event within twenty four (24) hours, of the nature and extent of that disclosure and any other information relating to it as the other party may require and use best endeavours to minimise the harmful effects of such wrongful disclosure.
Any notices to be served on either party by the other shall be in writing and sent by registered post or hand delivered to the address of the other party as set out at the beginning of this Agreement or such other address as is notified in writing by that party from time to time. Such notice shall be deemed to have been received by the addressee within seventy two (72) hours of posting or within twenty four (24) hours if hand delivered.
17. ENTIRE AGREEMENT
17.1 This Agreement constitutes the entire agreement and understanding between the parties and supersedes any previous agreement or arrangement between the parties relating to the subject matter of this Agreement.
17.2 Each party agrees that it has not entered into this Agreement in reliance upon any statement, representation, covenant, warranty, undertaking or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) except as expressly set out in this Agreement. Nothing in this clause, however, shall exclude any liability on the part of either party for fraud or fraudulent misrepresentation.
18.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
18.2 The Supplier acknowledges that, from time to time, the Agency may be required by an Advertiser to impose specific additional or alternative terms on the Supplier, including, but not limited to, compliance with policies, jurisdiction, liability, insurance, audit, currency, privacy and data. The Supplier agrees that it will act reasonably and in good faith to agree any such additional or alternative terms and the parties shall enter into a variation to vary the relevant terms of this Agreement solely with respect to services supplied for the benefit of the identified Advertiser only.
19. ASSIGNMENT AND SUBCONTRACTING
The Supplier may not assign, delegate or subcontract its rights or obligations under this Agreement without the prior written consent of the Agency, provided with the of affiliated parties pertaining to the WWP group.
Except where this Agreement expressly provides otherwise and to the extent permitted by law, no person who is not a party to this Agreement shall have any right to enforce the terms of this Agreement. Neither party shall be required to seek the consent of the Advertiser for any variation of this Agreement.
If any provision of this Agreement is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that shall not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
(b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
No delay, indulgence or omission in exercising any right, power or remedy provided by this Agreement or by law shall operate to impair or be construed as a waiver of such right, power or remedy or of any other right, power or remedy.
22. DISPUTE RESOLUTION PROCEDURE
22.1 In the event of any dispute arising out of this Agreement, the Agency and the Supplier will attempt to settle it by negotiation. To this end, they shall use their respective reasonable endeavours to consult or negotiate with each other, in good faith and, recognising their mutual interests attempt to reach a just and equitable settlement satisfactory to the relevant parties. In the event that a dispute is not settled by negotiation within the period of two (2) weeks from the date of notification of the dispute (unless the parties agree a longer time period), then the parties shall refer the dispute to a director of the Agency and a director of the Supplier for resolution. In the event that the directors of the parties do not settle the dispute within a period of two (2) weeks from the date of referral, clause 26.2 will apply.
22.2 Nothing in the preceding clause shall prevent any party from applying to any court of competent jurisdiction for any interim or provisional relief that may be necessary to protect the rights or property of that party, pending settlement of the dispute.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed by and interpreted in accordance with the law of the Netherlands.
23.2 The parties to this Agreement submit to the exclusive jurisdiction of the Dutch Courts in relation to any claim, dispute or matter (including non-contractual matters) arising out of or relating to this Agreement, save in respect of enforcement which shall be non-exclusive.
The Supplier represents and warrants that the Platform has a 99% uptime, measured monthly in minutes. Without prejudice to the generality of the foregoing, the Supplier shall use commercially reasonable efforts to make the Platform service available 24 hours per day 7 days a week throughout the year. Scheduled maintenance is excluded from the calculation of uptime. “Scheduled Maintenance” means the time that the Platform is down for period system maintenance and software upgrades provided that such maintenance is notified to the Agency in writing at least one (1) Business Day in advance thereof and further provided that total aggregate scheduled maintenance does not exceed four (4) hours in any calendar month. Scheduled Maintenance will only take place outside of Business Hours. The Supplier shall notify the Agency if Scheduled Maintenance is likely to exceed one (1) hour in any single instance.
Releases are done regularly and do not result in downtime normally, when downtime is expected the releases are done outside office hours. The Supplier will inform the Agency at least one (1) Business Day in advance of an upcoming release, when downtime is expected more than one (1) hour. Directly following the release any issues arising from the release will be picked up with high priority.
The Supplier shall provide support to the Agency on use of the Platform via support tickets during Business Hours on Business Days in order to respond to queries or issues regarding the Platform. The Agency will report issues via the Platform as soon as reasonably practicable based on their level of priority. In case of Priority 1 and/or Priority 2 issues, the Supplier will provide the Agency with the contact details for a 24/7 emergency hotline that the Agency may use once the issue has been reported via the Platform. The Supplier shall acknowledge and respond to any issues within four (4) Business Hours of being notified of any issue and shall use best efforts to resolve/fix issues within the relevant targets for the level of priority pursuant to the following matrix:
|Priority level||Targets for reaction/resolution|
|Priority 1 (Platform down and Dynamic Creatives are not available or no data is shown at all)||As soon as possible but in no event later than 1 hour/within 4 hours from notification|
|Priority 2 (Data from one of more Dynamic Creatives are not showing (correctly). Bugs in the Platform that prevent substantial parts of the data from showing correctly or at all or that disable essential functionality without workaround)||Within 4 hours/1 Business Day from notification|
|Priority 3 (All bugs that are not Priority 1/2)||Workaround within two (2) weeks of notification/resolution on next update|
Where the Supplier has corrected or updated the Platform, the terms of this Agreement shall be deemed to apply to the revised version of the Platform.
Service credits are calculated as a percentage of the total charges paid by Agency to Supplier for the billing cycle in which the error occurred in accordance with the schedule below.
|Monthly Uptime Percentage||Service Credit Percentage|
|Equal to or greater than 98% but less than 99%||10%|
|Less than 98%||25%|
Service credits are credited only against future Supplier payments otherwise due from Agency. Service credits may not be transferred.
Delivery Mechanisms (delivery feature not available yet but on roadmap) – All Reporting Data will be provided on a daily basis. For clarity both aggregated level data and event level data (if applicable) will be available and delivered on a daily basis. Full documentation of available metrics, dimensions and delivery mechanism should be included in the daily data. If files containing Reporting Data need to be transferred then the preferred methods – once and if feature available – are the following (any other methods require prior written approval from Agency):
- SFTP with required access control credentials (i.e., user ID and password) – preferred
- Mutually agreed object API’s
Format – Reporting Data exchanges should follow a pre-defined standard between organizations depending on capabilities and requirements. Preferred standards would be CSV, XML, XLS or text. Comma, tab or pipe field delimiters should be used, as well as LF or CRLF row delimiters. Data provided should mirror data available within the Platform’s reporting interface, broken into separate files per data type (delivery, conversion, metadata, etc). Files should be named according to data type and extracted date, and should include appropriate updated date range. Any other standards require prior written approval by Agency.
Authentication and Authorization – The Supplier must ensure that all Reporting Data in its possession is protected by appropriate access control credentials (i.e., user ID and password) and that Reporting Data will be segregated by Advertiser, such that only users who need to access Reporting Data of a particular Advertiser will be allowed such access. For clarity, it is expected that all users will be assigned permission levels, allowing access only to the Reporting Data that is strictly necessary for performance of their duties. The Supplier must follow industry best practices regarding password length, complexity, re-use, history and changes.
Auditability (auditability feature not available yet but on roadmap) – Audit logs maintained by the Supplier should be robust and detailed. Unless otherwise agreed by Agency and once and if feature available, logs should provide the Agency with the ability to audit who has access, their permission level, and any changes to data.
Data Retention – The Supplier will comply with the data retention requirements agreed upon by the parties in writing. Notwithstanding clause 10.1 of the Agreement, in no event will Reporting Data be deleted unless Agency is given thirty (30) days prior written notice and a reasonable opportunity to download any such Reporting Data during such thirty-day notice period.
Uptime/Reliability/Speed – The Supplier must provide data exchanges on a near instantaneous basis and must maintain a real time direct connection using, at a minimum, a T1 connection. The Supplier shall ensure that all connections are secure (e.g. SSL, https, etc.) in order to prevent data from being altered or accessed during a transmission. In the event of a delivery error or API downtime, such events will be notified as status update in the Platform.
Security – Confidentiality, integrity, accuracy and availability of Reporting Data must be maintained at all times. Standard protection should incorporate password controls, authentication and authorization, secure data transmission and regular access reviews.