Brandquad Terms And Conditions of Use
Date of last revision: 03 December, 2021 (v1)
BRANDQUAD SERVICE TERMS
Disclaimer – These Brandquad Terms of Service contain the general terms applicable for all Brandquad’s Products and Services. Depending on the Products or Services purchased, some terms may not be applicable as explicitly specified in writing by Brandquad.
1. DEFINITIONS
When used in the Agreement, capitalized words and phrases have the following meanings:
Acceptance: the procedure for verifying and confirming the technical conformity of the Products or Services in relation to the ordered functionalities and expected performances set forth in the Agreement. Each element must function according to its own performance.
Affiliate: any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. Means direct or indirect controls, ownership or the ability to exercise that control over more than 50% of the voting interests of the Customer.
Agreement: the legally binding terms and conditions agreed between Brandquad and the Customer in relation to the purchase by the Customer of Products and/or Services which include the Brandquad Terms Deviation Schedule, the Service Terms, the Order Form, and Brandquad Documentation.
Beneficiary: entities which can request the benefit of the Agreement under the rights granted within the limits set in the SOW.
Brandquad: the Brandquad contracting entity that is Party to the Order Form.
Brandquad Terms Deviation Schedule: means the deviation schedule signed by both Parties that amend by way of derogation these Service Terms and/or any other part of this Agreement.
Change Order: a written agreement between the Parties in the form attached hereto as Exhibit A amending the scope or manner of provision of the Services or the Products and specifying the new conditions of implementation of the Service or the Product.
Confidential Information: all confidential information (including personal data) disclosed by the disclosing Party to the receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party, (ii) was known to the receiving Party (including its directors, officers, employees, contractors or agents) prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing Party, (iii) is received from a third party without breach of any obligation owed to the disclosing Party, or (iv) was independently developed by the receiving Party.
Customer: the customer Party whose details are set out in an Order Form.
Customer Data: all data or information submitted by Customer whether directly or indirectly to Brandquad.
Customer Support: the support services provided by Brandquad in relation to any Brandquad Product in accordance with the Agreement and in particular the Brandquad Support Terms.
Documentation: documentation containing established policies, procedures, information and/or instructions given by Brandquad relating to the Products and/or Services purchased by the Customer.
Effective Date: unless otherwise agreed, the date that the last Party signs an Order Form being the date that the Agreement takes effect.
Force Majeure: where a Party can demonstrate it has suffered a significant, unavoidable and foreseeable interruption or delay in the performance of its obligation including war, terrorism, epidemic, interruption of electricity, internet, means of telecommunication, strikes and unavailability of Brandquad’s staff and subcontractors.
Intellectual Property Rights: intellectual property rights or patents, utility models, inventions, copyright and neighbouring and related rights, moral rights, trade marks (or trademarks) and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Maintenance Services: updates, upgrades, enhanced and new functionality, patches and fixes for the Products in the conditions set forth in the SLA which is part of the Agreement.
Order Form: any ordering document executed by an authorized signatory of each Party for the provision of Products and Services subject to the terms of the Agreement.
Products (as applicable): any Brandquad software solution purchased by the Customer including in particular SaaS softwares.
Professional Services: any services such as consultancy or training as specified in the Order Form.
Service Terms: the present Brandquad’s terms of service.
Services (as applicable): any services provided by Brandquad ancillary to the Product including (but not limited to) Customer Support, Maintenance Services, SaaS Services, hosting and Professional Services, as specified in the Order Form.
SLA: the SLA (as applicable), being the KPIs applicable to the Products available here: https://brandquad.com/en/terms-of-use/.
Support Terms: the applicable terms and service descriptions applicable to Brandquad Customer Support available here: https://brandquad.com/en/terms-of-use/.
User: all users permitted by the Customer to access to or use of the Products and where applicable Services as specified in the Agreement and in particular in the Order Form.
2 PURPOSE – DOCUMENTS
2.1 Purpose
The Agreement and in particular, these Service Terms govern the purchase by the Customer of any of Brandquad’s Products and/or Services. Its purpose is to determine the conditions under which (i) Brandquad grants to Customer access and Use of the Product(s), (ii) Brandquad supplies Services, (iii) Customer pays Brandquad the fees in return for the Product(s) and Services.
2.2 Contractual documents
This Agreement composed of, by order of precedence, which applies in the event of any conflict or inconsistency:
– the Brandquad Terms Deviation Schedule
– these Service Terms;
– the Order Form ; and
– the Brandquad Documentation.
The Agreement is the sole agreement between the Parties and is to the exclusion of any other terms and conditions, in particular Customer’s purchase terms.
3 EFFECTIVE DATE, TERM AND RENEWALS
3.1 Effective Date and Initial Term
This Agreement becomes effective and binding for the Parties on the Effective Date and will remain in force for the duration set forth in the Order Form.
3.2 Renewal
The Agreement may be renewed in accordance with the Order Form. In the absence of an express written agreement between the Parties regarding the renewal conditions forty-five (45) days before the end of the Initial Term, the Agreement will be renewed for periods of two (2) years. Unless otherwise agreed, the terms and conditions of the initial Agreement shall apply for the renewed term.
4 FEES, INVOICING AND PAYMENT
4.1 Fees
The Customer shall pay all fees specified in the applicable in the Order Form.
Additional fees are payable in any case where the Customer exceeds the quantity of the Volume Metric purchased as set forth in the Order Form, or where the Customer has agreed to purchase additional Products (or modules thereof) or Services.
4.2 Invoicing and Payment
Brandquad shall issue invoices for the payment of the Products and/or Services purchased by the Customer in accordance with the payment conditions set forth in the Agreement and in particular in the Order Form. Invoices are considered validly issued including where produced and sent electronically and regardless of whether any Customer purchase order has been issued.
Customer shall make payment of amounts due to Brandquad within thirty (30) days from issuance date of the Brandquad’s invoice, unless otherwise indicated in the Order Form.
4.3 Indexation Based Increases
Any fees stated in the Agreement will increase by way of indexation on each renewal of the Agreement. The increase will be the annual increase (%) in accordance with the reference index (Syntec for SOWs and Order Forms under French law, Consumer Price Index CPI for SOW and Order Forms under Russian law) plus 4%.
4.4 Overdue Fees
Brandquad may charge late interest on any amounts not received by the due date, from the date such payment was due until the date paid. Late interest will be charged monthly at the rate of 12% per annum. If Brandquad is required to take action to collect any amount due, then the Customer agrees to pay Brandquad all costs incurred by Brandquad in that respect.
4.5 Suspension of Services for Late Payment
If any amounts invoiced under the Agreement are thirty (30) calendar days or more overdue, Brandquad may, without limiting its other rights and remedies, automatically and immediately suspend any Brandquad Products and/or Brandquad Services until such amounts are paid in full. In all cases, Brandquad will give the Customer at least ten (10) calendar days’ prior written notice that its account is overdue and the Products and Services may be suspended.
4.6 Taxes
Unless otherwise stated, Brandquad’s fees do not include applicable taxes, levies, duties or similar governmental assessments of any nature, such as value added or withholding taxes. The Customer is responsible for paying all taxes associated with its purchases.
4.7 Expenses
Unless otherwise agreed in the Order Form or in the Agreement, the Customer agrees to pay all expenses incurred by Brandquad while providing the Services.
5 CONFIDENTIALITY
The Customer, the Beneficiaries and Brandquad undertake to keep strictly confidential and not to disclose, directly or indirectly, the provisions of the Agreement, as well as Confidential Information. This clause shall be binding on the Parties for a period of five (5) years from the end of the Agreement, regardless of the cause of termination or expiration. By derogation, each Party may disclose Confidential Information if it is compelled by applicable law to do so.
6 PRODUCTS AND SERVICES
6.1 Description of Products and Services
Customer may order Products and/or Services from Brandquad by contacting Brandquad by sending to Brandquad an Order Form. An Order Form shall be deemed enforceable and definite upon signature of the Order Form by both Parties.
Brandquad shall provide to Customer the Products and Services as described in and at prices listed in the Agreement and in particular in the applicable Order Form.
Brandquad undertakes to implement according good industry practices as well as reasonable care and skill., all available resources and all human, logistical or material means necessary for the implementation of the Products and Services.
Brandquad undertakes, with regard to Customer, to a general obligation of advice and support concerning the Products and Services during the Agreement. However, Brandquad is in no way bound towards Customer of a general obligation of advice and support, particularly in marketing, commercial, technical or financial matters.
Brandquad shall:
– make the Product and Service available to the Customer pursuant to the Agreement for the duration agreed therein, the applicable SLA, and Documentation;
– provide Customer Support from the date the Product is made available.
The use by the Customer or Beneficiaries of the Product and/or Service may include required third party services, which are a required component of the Product and/or Service. The use of a required third-party service is subject to its terms and conditions. If the Customer does not accept or agree to the terms and conditions imposed by the required third-party service providers, Brandquad cannot grant the Customer the right to use the Product and/or Service. Brandquad reserves the right to change any third-party provider of the Product and/or Service. By way of derogation, Brandquad reserves the right to change any third party hosting provider of the SaaS platforms, provided that: (i) Brandquad has given reasonable notice to the Customer of such change; (ii) the jurisdiction in which the Customer Data is stored shall not be changed (without having first obtained Customer consent, which shall not be unreasonably withheld, delayed or conditioned); and (iii) the service provided by the new Brandquad SaaS platform provider shall be (in form and content) consistent in all material respects with the previous offering.
6.2 Maintenance Services
Brandquad shall make the Product available in accordance with the SLA. Customer will benefit, at no additional cost, from the corrective and progressive maintenance of the system vice carried out by Brandquad, provided that these do not risk causing a regression compared to the specifications, functionalities and performances of the Products and in particular SaaS Products as well as Services. The progressive maintenance corresponds to any update, upgrade and improvement of the Products or Services. Interventions relating to the progressive maintenance may make the Services and Products temporarily unavailable. In such case, Brandquad will inform Client thereof beforehand. Brandquad shall not be liable for said temporary unavailability of the Services and Products.
6.3 Timeframe / Quotes / Estimates
The Parties shall agree in the Order Form on the conditions (timeframe, location, price, etc.) applicable to the Products and/or Services to be delivered by Brandquad.
Any estimates, dates, timeframes or quotes provided by Brandquad in the Order Form, are subject to adjustment based on changes in scope or the required level of effort, delays in Customer making available personnel or performing its responsibilities, the testing and validation process, and other circumstances outside of Brandquad’s reasonable control.
If the Customer and Brandquad have agreed to specific dates for delivery of Brandquad Services and/or Products, and for any reason the Customer cancels or defers the arrangements or the Services and/or Products cannot be provided by Brandquad due to the Customer’s actions or failure to act (including but not limited to Customer failing to meet the pre-requisites specified by Brandquad), Customer shall pay any costs which Brandquad incurs as a result of the cancellation (for example, affectation of staff, travel or accommodation costs). In any case, Brandquad shall use all reasonable endeavours to limit the expenses incurred with respect to the cancellation and will only charge an expense fee where it is unable to redeploy staff on other chargeable work or to limit the expenses. Regarding specifically the cancellation of Services, Customer shall also pay 50% of the relevant fee if the cancellation/deferment takes place between six (6) and ten (10) business says prior to the date of delivery of the Services and 100% of the fee if the cancellation/deferment (including non-provision of the Services) takes place five (5) business days or less prior to the date of delivery of the Services.
6.4 Changes to order
Changes to the scope or manner of provision of the Services or Products may only be implemented upon approval from both Parties of a Change Order. Once agreed to by the Parties, a Change Order will be incorporated into and become part of the Agreement.
7 CONFIGURATION AND ACCEPTANCE
7.1 Configuration
Brandquad undertakes to configure the Products and where applicable Services. For the purpose of the Agreement configuration means the setup accomplished by changing standard menus and functionality within the software itself as agreed with Customer in the Agreement.
7.2 Acceptance
7.2.1. Products. In order to check the correct configuration of Products/Services, said Products/Services will be subject to an Acceptance procedure by Customer within thirty (30) days of receipt of the request for acceptance sent by Brandquad:
– Brandquad shall correct the anomalies within twenty (20) calendar days, at no additional charge for the Customer;
– If the corrections do not give rise to any further correction requests, the Customer shall declare the Acceptance of the Products in a written and signed statement;
– If in spite of the corrections, the Customer raises further correction requests, Brandquad shall correct the anomalies within twenty (20) calendar days, at no additional charge for the Customer;
– In the event the second series of corrections does not satisfy the Customer, the Parties shall meet within ten (10) days as of the end of the second correction session to encounter a solution and where appropriate discuss the possible termination of the Agreement.
7.2.1. Other stipulations. Customer shall provide all information and assistance reasonably requested by Brandquad in connection with the Acceptance procedure.
If the Customer fails to notify correction requests in compliance with the delays, the Products and Services concerned shall be deemed as fully compliant with the Agreement by the Customer. However Customer retains the rights provided under Article 11.
Brandquad accepts no liability and the above mentioned correction procedure with respect to Acceptance does not apply in case of any failure of the Products or Services as a result of (i) use of the Product or Service in a manner for which it was not intended or other than as permitted under the Agreement; or (ii) incorrect instructions or information from the Customer or the Customer’s failure to provide information or documentation.
8 PROPRIETARY AND USE RIGHTS
8.1. Proprietary Rights – Reservation of Rights
Brandquad and its licensors own all rights, title and interest in and to the Products, Services, Documentation and all other Brandquad Intellectual property rights, as well as their possible evolutions, complementary developments and documentation.
Subject to the limited rights expressly granted in this Agreement, Brandquad (or relevant licensors) are the owners of and reserve all rights, title and interest in and to the Products (in both binary executable code and source code form) including program architecture, design, coding methodology, documentation, screen shots, and “look and feel”, all modifications, databases, updates, enhancements, suggestion and improvements thereto (even if requested and paid for by the Customer), Services, all goodwill associated therewith and all related Intellectual property rights whether current or future. No rights are granted to the Customer hereunder other than as expressly set forth herein.
8.2. Right of Use – Grant of Rights
8.2.1. General stipulations. As of the date the Product and where applicable the Service is made available by Brandquad to Customer, for the duration of the Agreement and under the conditions set forth in the Order Form, the Customer and its Beneficiaries is granted a revokable, non-assignable, non-exclusive, non-transferable right to access and use the Brandquad Products and where applicable Service (including any Documentation) subject to the compliance with the Agreement.
8.2.2. Conditions of Use. The Customer, the Beneficiaries and Users, granted a right to use or access Product and where applicable Service shall:
– secure and protect the proprietary rights in the Product and/or Documentation and/or Service;
– ensure that no copies of the Product and/or Documentation and/or Service in any form are given to any third party without the express permission of Brandquad in writing;
– reproduce any copyright notice on all material related to, or part of, the Product and/or Brandquad Documentation and/or Service.
The Customer, the Beneficiaries and Users, granted a right to use or access Product and where applicable Service shall not:
– copy, decompile, disassemble, reverse engineer, frame, mirror or duplicate any part or content of the Product and/or Service;
– attempt to derive the source code of the Product;
– access the Product and/or Documentation and/or Service to (a) build a competing product or service;
– unless specifically permitted to do so in the Agreement, reproduce, distribute, publicly display, sublicense, lease, rent, assign, loan, transfer or otherwise make available the all or part of the Product and/or Documentation and/or Service to a third party;
– copy the whole or any part of the graphic user interface, operating logic or underlying database structure and database fields of the Product and/or Service for incorporation into or the development of any software or other product or technology;
– modify, adapt, alter, translate, or create derivative works of the Product and/or Documentation and/or Service;
– merge (together) the Product and/or Service with any other software or service;
– develop an alternative to the Product and/or Service that is based on or derived from, in whole or in part, the Product and/or any Documentation and/or the Service;
– use the Product and/or Service in violation of any import, export, re-export or other applicable laws or regulations;
– remove or obscure any copyright notices, proprietary rights notices, trademarks, trade mark credits, trade designation, confidentiality notice, mark, logo, legend or other information included in the Product and/or Documentation and/or Service;
– use robots or robotic process automation in relation with the use of the Product and/or Service without Brandquad’s prior consent; and
– purport to assign, transfer, mortgage, charge, part with possession, or in any way deal with any of its rights, duties, or obligations under the Agreement, and in particular the present grant of rights, in relation to the Product and/or Service without the previous consent in writing of Brandquad.
8.3. Right to Suspend Product and/or Service for non-compliance
If Brandquad becomes aware of the Customer’s, Beneficiary’s or User’s non-compliance with the Agreement, Brandquad may suspend the entire use or access of the Customer to the Product and where applicable the Service until the breach is remedied. This possibility is without prejudice of Brandquad’s right to terminate the Agreement pursuant to the applicable contractual conditions.
Brandquad also reserves the right to suspend access to the Products and in particular the Brandquad SaaS in in order to protect the security and integrity of its systems, facilities and equipment. In such event, Brandquad shall promptly contact Customer to provide an explanation and coordinate an appropriate resolution.
None of the suspensions of Products and/or Services described in this clause give rise to any right for Customer, Beneficiary and/or any User to claim any compensation whatsoever from Brandquad.
8.4. Third-party rights
Customer shall behave toward third parties with due care and in a lawful manner, at all times and in all cases, e.g. regarding third party rights such as data protection rights and Intellectual property rights and ensure compliance with this this clause by all Users. With the aim of avoiding any liability to third parties or limiting the consequences of a liability towards third parties, Brandquad is, at all times, entitled to take measures at its own discretion in relation to an act or omission by or at the risk of Customer, Beneficiary and/or Users, including acts or omissions that infringe or could possibly infringe those third-party rights.
9 CUSTOMER AND BENEFICARY RESPONSIBILITIES (GENERAL)
9.1. Customer and Beneficiary General Responsibilities
Unless otherwise stated:
– the Customer and the Beneficiary shall provide Brandquad with all information and documentation which may reasonably be requested by Brandquad in order to allow Brandquad to fulfil its obligations;
– where applicable, with respect to the provision of Services, Customer and the Beneficiary shall permit Brandquad’s staff sufficient access to its premises to enable Brandquad to provide the Services;
– the Customer shall ensure that to the extent reasonably necessary any Users involved in the implementation, operation or use of the Brandquad Product and/or Services undertake sufficient training to carry out that role in line with good industry practice and in accordance with any Brandquad Documentation and reasonable advice given by Brandquad (or its partners, agents or sub-contractors as applicable);
– any transfer of data by the Customer into the database used by the Products and/or Services must be carried out using the standard interfacing tools supplied with the Products and/or Services;
– the Customer must ensure that its operating systems and database software (as applicable) are at all times compatible with the Product and/or Services and are not malfunctioning in a way that adversely affects the operation of the Products and/or Services;
– the Customer shall: (i) be responsible for procuring and maintaining client-side equipment, software and services required to remotely access and Use the Products, in particular Brandquad SaaS and/or Services, including network connectivity; (ii) be responsible for the functional operation and administration of the application that is provided as part of the Product, and in particular the Brandquad SaaS; and (iii) Use the Product and in particular the Brandquad SaaS only in accordance with the Agreement, Documentation and applicable law;
– the Customer and the Beneficiary shall prevent unauthorized access to the Products and/or Services and implement the required security and confidentiality measures in particular with respect to logins and safewords and promptly notify Brandquad of any unauthorized access or use.
9.2. Brandquad Relief from Performance
If Brandquad is prevented or delayed from performing any of its obligations under the Agreement by reason of any act, default or omission of the Customer, the Beneficiary, their agents or sub-contractors and/or of any User, then Brandquad is not deemed to be in breach of any terms of the Agreement which it might otherwise be in breach of as a result of the said act, default or omission.
9.3. Customer Data
The Customer retains at all times ownership of and all right, title and interest in and to the Customer Data. Subject to the limited rights granted by the Customer in this Agreement, Brandquad acquires no right, title or interest from the Customer or its licensors in or to Customer Data, including any Intellectual property rights therein.
The Customer shall submit the Customer Data in a format approved by Brandquad as compatible for Use with the applicable Products and/or Services. The Customer is solely responsible for the quality, accuracy, reliability, consistency, suitability and legality of its Customer Data and the means by which it acquired the Customer Data and shall use all reasonable efforts to update its Customer Data (used in conjunction with the Brandquad Products and/or Services) in a timely manner to correct inaccuracies.
10 PRIVACY AND DATA PROTECTION
Each Party shall comply with the regulation on personal data protection and with their respective obligations set out in Brandquad’s Data Protection agreement.
11 WARRANTIES AND DISCLAIMER
11.1 General Warranties
Each Party warrants that:
– it has full capacity and authority and all necessary consents to enter into and to perform the Agreement;
– that the Agreement is executed by a duly authorized representative of each Party.
11.2 Product Functional Warranty
Brandquad warrants that the Brandquad Products shall perform materially in accordance with the Brandquad Documentation and the specification provided in the Agreement on delivery or first access (as applicable).
The Customer acknowledges that the Products is standard software and not a bespoke or custom program prepared to meet the Customer’s individual. It is therefore the responsibility of the Customer to ensure that the facilities and functions described in the Agreement and in particular in the Brandquad Documentation, and the Order Form meet the Customer’s requirements.
Brandquad accepts no liability for any failure of the Products to provide any facility or function as a result of:
– a modification to the Products code which has not been carried out by Brandquad or its approved software partners or any action which is expressly excluded in the Documentation and/or the Agreement (and any approval will be at the cost and expense of the Customer);
– any combination of the Products with any software or materials not supplied or approved by Brandquad or its approved software partners; or
– use of the Products in a manner for which it was not intended or other than as permitted under the Agreement.
In the event of the Products failing to perform in accordance with any of the above warranties, Brandquad has no liability or obligation other than to remedy such failure by the provision of the Agreement and SLA. It is acknowledged by the Customer that the remedies expressed in the Agreement set out the whole extent of Brandquad’s liability and obligations in respect of any breach of any warranty.
11.3 Disclaimer
Except as expressly provided in the Agreement, neither Party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each Party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
11.4 Customer Responsibility for its Beneficiaries and Users
The Customer shall ensure, accept liability and is committed with the compliance with the terms of this Agreement of all Users, including Beneficiaries and Customer’s subcontractors, and any person directly or indirectly permitted access to the applicable Product and/or Service by the Customer, by a Beneficiary or any other User, with or without Brandquad’s authorization.
12 MUTUAL INDEMNIFICATION
12.1 Indemnification by Brandquad
Brandquad shall defend the Customer at Brandquad’s expense, against any claims, demands, suits or proceedings (“Claims”) made or brought against the Customer by a third party alleging that the use of any Product directly infringes any Intellectual property rights of a third party. Further, Brandquad shall indemnify and hold the Customer harmless against all costs (including reasonable attorneys’ fees) finally awarded against the Customer by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Brandquad, in connection with such Claims.
Promptly upon receiving notice of a Claim, the Customer shall: (a) give Brandquad prompt written notice of the Claim; (b) give Brandquad sole control of the defense and the settlement of the Claim (provided that Brandquad may not settle or defend any claim unless it unconditionally releases the Customer of all liability); and (c) provide to Brandquad, at Brandquad’s cost, all reasonable assistance in the defense or settlement of such claim. Brandquad’s indemnification obligation will be offset or reduced to the extent its ability to defend or settle a claim is jeopardized by the Customer’s failure to comply with the preceding sentence.
Brandquad shall have no indemnification obligation for: (i)infringement claims arising from the combination of any Product products with any of the Customer’s products, services, hardware, data or business processes or use of Product by the Customer other than in accordance with the Agreement; and (ii) for any amendment or modification to the Product (including any Customizations) not carried out by Brandquad or one of its approved software partners.
If the Product is held or likely to be held infringing, Brandquad has the option, at its expense to (i) replace or modify the Product as appropriate, (ii) obtain a license for the Customer to continue using the Product, (iii) replace the Product with a functionally equivalent service; or (iv) terminate the applicable Product and refund any prepaid fees applicable to the unusable portion of the applicable Product following the effective date of termination.
12.2 Indemnification by the Customer
The Customer shall indemnify, defend and hold Brandquad harmless from and against any and all claims, demands, suits, damages, liabilities, costs and expenses (including reasonable attorney’s fees and court costs) arising out of or resulting in whole or in part from:
– the Customers’, its Beneficiaries or their Users’ Use of the Brandquad Product and/or Services in breach of the terms of the Agreement or for any unlawful purpose;
– breach of any of Brandquad’s Intellectual property rights,
– the responsibilities of the Customer (under applicable law or the Agreement) in relation to the input, processing, intended or unintended release and/or storage of Customer Data by the Customer, or any claims by Customer’s ultimate end users, their legal representatives or other third parties in connection therewith.
12.3 Exclusive Remedy
This “Mutual Indemnification” section states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in Article 12.
13 LIABILITY
13.1 Liability
Each Party shall bear under the conditions of common law the consequences of direct damage attributable to it in the context of the execution hereof.
13.2 Non-excluded Liability
Nothing in this Agreement, particularly in this Article 13, limits or excludes either Party’s liability
– for death or personal injury attributable to negligence;
– to the extent that such limitation or exclusion is not permitted by applicable law;
– for payment of undisputed and properly due fees; and
– for the mutual indemnity under the Data Protection Agreement.
13.3 Exclusion of Indirect, consequential and other Damages
Subject to clause 13.1, neither Party is liable to the other Party for any: indirect, special, incidental or consequential loss or damage; cover or punitive damages; damage to goodwill; loss or spoiling of data (excluding a data breach); and/or loss of contracts, however caused, whether in contract, tort or under any other form of liability, and whether or not the Party has been advised of the possibility of such damages. Subject to clause 13.1, Brandquad is not liable to the Customer for any lost profits or revenues of the Customer however caused, whether in contract, tort or under any other form of liability, and whether or not the Party has been advised of the possibility of such damages.
13.4 Limitation of Liability
Subject to and save as set out in clauses 13.1 and 13.2, the total aggregate liability of Brandquad under the Agreement, whether in contract or tort or under any other form of liability, is limited to the amount paid by Customer in the six months immediately preceding the events giving rise to the liability.
14 INSURANCE
Brandquad undertakes to have taken out, and to maintain in force throughout the duration of the Agreement, an insurance policy intended to cover all the risks that may arise in connection with the execution of the Agreement. Certificates of insurance evidencing coverage and conditions to this Agreement may be provided to Customer upon request.
15 TERMINATION
15.1 Termination for Cause
A Party may terminate the Agreement for cause (i) upon at least thirty (30) calendar day’s written notice to the other Party of a breach if such breach has not been remedied at the expiration of such period.
Without limitation, causes for termination may be late payments by Customer or non-compliant use of Product and/or Service by Customer, Beneficiary or User.
Further, Brandquad may terminate the Agreement immediately on written notice, if Customer, Beneficiary or User infringe against Brandquad’s Intellectual property rights, breaches its confidentiality obligations, jeopardizes directly or indirectly the system operating the Products and/or the use of the Products and/or Services by third parties, whether or not the breach is capable of remedy.
15.2 Surviving Provisions
Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement will remain in full force and effect for such period as necessary.
15.3 Payment for termination before term
Upon any termination for cause by Brandquad, Customer shall pay any unpaid fees covering the remainder of the unexpired term of the Agreement after the Effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to Brandquad for the period prior to the effective date of termination.
15.4 Reversibility – Customer Data
Brandquad reserves the right to charge Customer on a time and materials basis at Brandquad’s prevailing rates for any work required to deliver any copy of the Customer Data not in its native database format.
If the Customer does not ask for return of its Customer Data at the end of the Agreement, or at Customer’s request, Customer may delete Customer Data from Brandquad’s environment in accordance with Brandquad’s policies and in cooperation with the latter.
16 GENERAL PROVISIONS
16.1 Audit
Either Party (the “Auditing Party”), or its authorized representatives not competing with the other Party (the “Audited Party”), shall have the right, at its expense and at any time, upon reasonable written notice of two (2) weeks as minimum including the designation of the persons or entities appointed by the Auditing Party, to perform, in a reasonable manner, an audit with respect to the Audited Party’s performance of its obligations under this Agreement. In the event that the audit is carried out by a representative of the Auditing Party, the Auditing Party undertakes that the latter presents sufficient guarantees of confidentiality with regard to the nature of the information to which he could access in the context of the audit.
The Audited Party will collaborate in good faith with the auditor, will provide the auditor with all information, documents or explanations necessary for the performance of the audit but will not give access to the Audited Party’s sensitive information, and in particular to information concerning employees, customers and / or the structural costs of the Audited Party. The Audited Party shall provide the Auditing Party, or its authorized representatives, such information and assistance as reasonably requested in order to perform such audits; provided, however, that the Parties shall endeavor to arrange such assistance in such a way that it does not interfere with the performance of the Audited Party’s duties and obligations hereunder.
The audit report will be sent by the auditor free of charge to the Audited Party so that the Audited Party can make any observations to the Auditing Party.
If any such audit reveals the inadequacy or insufficiency of the Audited Party’s performance, the Audited Party shall promptly develop and provide to the Auditing Party a corrective action plan and promptly thereafter implement such plan. Regarding the Use of the Products, if the output of any audit reveals use which exceeds the quantity of the Volume Metric purchased in an Order Form, the Customer shall reimburse Brandquad for any underpayments that result from non-compliance (including unpaid fees) for the entire period of non-compliance. The pricing for such payments will be based on Brandquad’s prevailing rates (i.e. current price list at the point the audit is carried out) and Brandquad will have the right to issue an invoice within fourteen (14) days of providing the underpayment costs (unless the Parties agree to extend these deadlines). If underpaid fees discovered exceed five (5) percent of the total cost / value of any Product paid by the Customer in a relevant Order Form, Customer shall also reimburse Brandquad for the costs of conducting the audit.
16.2 Subcontracting
Brandquad shall not subcontract any obligation under this Agreement without the Customer’s prior written approval. Brandquad will send a request for subcontracting in writing. The Customer must send the subcontractor’s acceptance or non-acceptance in writing to Brandquad within a maximum period of fifteen (15) days following the Brandquad’s request. In the event that the subcontractor is not accepted, the Customer must send Brandquad its reasons. Subcontracting to any entity belonging to the same group of Brandquad is nevertheless authorized. In any event, Brandquad shall remain fully responsible for performance of the subcontractor and its compliance with all provisions of this Agreement.
16.3 Export Compliance
The Product and/or Services, other Brandquad technology and derivatives thereof may be subject to export laws and regulations of other jurisdictions. Customer agrees that such Product and/or Services shall not be exported from the country of supply directly or indirectly separately or as part of a system without the Customer at its own cost first complying with all applicable laws and regulations of and obtaining all licences from its local government department and any other appropriate agency. At the Customer’s request and expense Brandquad may assist the Customer to apply for such licences. Further Customer represents that it is not named on any government denied-party list. Customer shall not permit Users to access or Use Software Service in a U.S. or EU-embargoed country or in violation of any U.S. or EU export law or regulation.
16.4 Agreed Disclosure
Brandquad reserves the right, following the Effective Date, to use the Customer’s name and logo to represent the fact that the Customer is a customer of Brandquad both internally and externally (including Brandquad’s website or using social media). Further, Brandquad may, subject to Customer agreement, (i) make a press release, the Customer will provide in this view sufficient co-operation; and/or (ii) use the Customer’s experience to produce a reference case and provide sufficient co-operation such that Brandquad may produce such reference case within three months of the Project go-live date. Customer cannot unreasonably withhold its consent to providing a press release and/or reference, but the wording of each will be drafted by Brandquad and mutually agreed with the Customer in advance of use.
16.5 Relationship of the Parties
The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
16.6 Notices
Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder shall be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email.
16.7 Waiver
No failure or delay by either Party in exercising any right under the Agreement will constitute a waiver of that right.
16.8 Severability
If any provision (or part of a provision) of the Agreement is held by a court of competent jurisdiction to be contrary to applicable law, the provision (or relevant part thereof) will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by applicable law, and the remaining provisions of the Agreement will remain in effect.
16.9 Force Majeure
Neither Party is liable for any delay in performing its obligations if the delay is caused by Force Majeure. If a situation of Force Majeure lasts longer than ninety (90) calendar days, the Parties will have the right to terminate the Agreement by giving notice to the other in accordance with Article 16.6.
16.10 Assignment
Neither Party may assign any of its rights or obligations hereunder, whether by operation of applicable law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, the Parties agree that either Party may assign the Agreement in its entirety (including all Order Forms), to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party, Subject to taking over all obligations.
16.11 Non-Solicitation
Unless agreed in advance and in writing by the other Party, the Client, the Beneficiaries and Brandquad waive the right to hire or employ, either directly or indirectly, any collaborator of the other Party, whether he is an employee or no, even if the initial request comes from the collaborator concerned. This waiver is valid for the duration of the Agreement as well as for the year following their expiration. In the event that one of the Parties does not comply with these stipulations, it irrevocably undertakes to pay the Party having suffered this damage compensatory indemnity at least equal to twelve (12) times the collaborator’s last compensation, including related social charges.
16.12 Dispute resolution – Governing Law
For any dispute relating to these, the Parties will endeavor to find an amicable solution prior to any procedure.
The Agreement is governed exclusively by the laws of the jurisdiction in which the Brandquad entity, which enters into the Order Form is registered and any disputes, whether contractual or non-contractual, arising out of or related hereto, are subject to the exclusive jurisdiction of the courts of the same jurisdiction.
16.13 Entire Agreement
The Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
16.14 Variation
No modification, amendment, or waiver of any provision of the Agreement is effective unless in writing and signed by both Parties.