1.1. The following definitions and rules of interpretation apply in this Agreement:
‘Adience’ means Adience LLC, a Delaware limited liability company with offices located at 67 West Street, Suite 401, Brooklyn NY 11222.
‘Adience IPRs’ means all of the IPRs in any software (including all programming code in object and source code form), methodology, know-how and processes (including all development documents, electronic design formats, programming and systems structures) and Materials, data or other content in relation to which the Intellectual Property Rights are owned by (or licensed to) Adience and which are: (i) in existence prior to the date on which it is intended to use them for the purposes of providing the Services and/or the Deliverables; (ii) created by or for Adience outside of the Services and which are intended to be reused across its business; or (iii) created after the termination of this Agreement.
‘Agreement’ means these terms and conditions and the Order.
‘Associates’ means a party’s employees, officers, agents, sub-contractors or authorized representatives.
‘Business Day’ means a day (other than a Saturday or a Sunday or major US federal holiday) on which the clearing banks and major US stock exchanges are open for business
‘Client’ means the party specified in the Order.
‘Client Materials’ means any data, client equipment, computer systems, software, documents, copy, Intellectual Property Rights, artwork, logos and any other Materials or information that are provided to Adience and/or its Associates by or on behalf of the Client.
‘Client Notice Address’ means the address set out in the Order.
‘Commencement Date’ means the date set out in the Order.
‘Created Materials’ means those Materials specifically created for the purposes of the Services by or on behalf of Adience (including any Materials adapted, modified or derived from the Client Materials), incorporated into Deliverables during the Term.
‘Data Protection Legislation’ means: (i) in EU countries, the EC Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (95/46/EC) and all local laws or regulations giving effect to this Directive; and/or (ii) in non-EU countries, any similar or equivalent laws, regulations or rules relating to information or data about individuals.
‘Deliverables’ means any materials provided by Adience to the Client under this Agreement and as set out in the Order, including Questionnaires, Survey Data and any static reports.
‘Expenses’ means the costs incurred by Adience in providing the Services, to be charged in accordance with clause 6.
‘Fees’: the price payable to Adience for the Services as set out in the Order.
‘Intellectual Property Rights’ or ‘IPRs’ means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration: (i) any patents or patent applications; (ii) any trade marks (whether or not registered); (iii) inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; (iv) copyright or design rights (whether registered or unregistered); (v) database rights; (vi) performer’s property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world; (vii) any goodwill in any trade or service name, trading style or get-up; and (viii) any and all other intellectual or proprietary rights.
‘Materials’ means any reports, presentations, artwork, copy, models, designs, photographs, commercial, feature film, character, music, voice over, sound recording, performance, book, painting, logo, or any other material protected by Intellectual Property Rights, but not including any software.
‘Order’ means the order form entered into between the Client and Adience, which incorporates these terms and conditions.
‘Project Change Form’ has the meaning given in clause 3.1.
‘Questionnaire’ means a commissioned questionnaire used to collect Survey Data.
‘Services’ means the services to be provided by Adience under this Agreement, as set out in the Order, together with any other agreed services which Adience provides to the Client, as set out in any other written agreement between the parties that incorporates these terms and conditions.
‘Survey Data’ means any raw data collected by, or on behalf of, Adience to provide the Services.
‘Term’ has the meaning given in the Order.
‘Third-Party Materials’ means those Materials created by a third party and included in any Deliverables, but which excludes software which is owned or licensed by a third party.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3. A ‘person’ includes a natural person, or corporate or unincorporated body (whether or not having separate legal personality).
1.4. Where the context so requires, words in the singular shall include the plural and vice versa, and words denoting one gender shall include all genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and includes any subordinate legislation in force made under it
1.5. If there is any conflict or direct inconsistency between any of the documents comprising this Agreement, they will prevail according to the following order of precedence: (i) the Order (but only to the extent of such direct inconsistency); and (ii) these terms and conditions.
1.6. Any words following the terms including, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.7. Except where stated otherwise, a reference to ‘writing’ or ‘written’ does not include fax or e-mail.
2. COMMENCEMENT AND TERM
2.1. Adience shall provide the Services to the Client on the terms and conditions of this Agreement from the Commencement Date.
2.2. This Agreement shall run for the Term, unless terminated sooner in accordance with clause 12.
2.3. Any dates specified in any Order shall be estimates only and time shall not be of the essence in this Agreement.
3. CHANGES TO ORDER
3.1. Either party may propose changes to the scope or execution of the Services, but no proposed changes shall come into effect until a relevant Project Change Form has been signed by both parties. A “Project Change Form” shall be a document setting out the proposed changes and the effect those changes will have on:
3.2. If the parties agree to a Project Change Form, they shall sign it and that Project Change Form shall amend this Agreement.
4. ADIENCE’S OBLIGATIONS & WARRANTIES
4.1 Adience warrants and undertakes that:
4.2 Adience hereby indemnifies the Client against any losses, costs or expense incurred by the Client as a result of breach by Adience of its warranty in clause 4.1(c).
4.3 Save to the extent expressly agreed in an Order, the relationship between the parties is non-exclusive and Adience shall therefore be entitled to provide any services or deliverables the same or similar to the Services (but for the avoidance of doubt, only without using any Client Materials) to any third party subject always to clause 9 (Confidentiality).
4.4 Subject to clause 10.2, Adience shall not be liable for:
5. CLIENT’S OBLIGATIONS & WARRANTIES
5.1 The Client warrants that:
5.2 The Client undertakes to:
5.3 If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents Adience from performing any Services in accordance with this Agreement, Adience will be relieved of its obligations to the Client, and Adience shall not be liable for any losses, costs or expenses incurred by the Client as a result of any such failure.
6.1 In consideration of the provision of the Services by Adience, the Client shall pay the Fees set out in the Order as amended by any Project Change Form (if applicable).
6.2 Adience will invoice the Client as set out in the Order.
6.3 In addition to the Fees, the Client shall reimburse Adience for its reasonable Expenses. If Adience is required to pay more than US $750 at any one time for any Expenses, Adience will seek written approval (not to be unreasonably withheld) from the Client in advance of incurring such Expenses.
6.4 Adience reserves the right to invoice the Client for any costs reasonably incurred by Adience as a result of delays by the Client in performing any of the Client’s obligations under this Agreement.
6.5 The Client shall pay Adience, in full and in cleared funds, within 30 days of the date of each invoice.
6.6 In event that the project is canceled or this Agreement terminated following acceptance, Adience will charge you an amount equal to the greater of:
10% of the total project fee or US $2,500 (whichever is lower); or
A fee based on work undertaken up to the date of cancellation, calculated by incorporating both expenses incurred and estimated time committed to date, which shall be payable in accordance with clause 6.
6.7 Without prejudice to any other right or remedy that it may have, Adience may charge interest on any overdue sum from the due date for payment at an annual rate of 12%, accruing daily from the due date for payment until the date on which Adience receives payment together with all accrued interest. Adience may also suspend the Services until payment for overdue sums has been made in full (during which period, for the avoidance of doubt, the Fees will remain payable in full).
6.8 If any payment of the Fees or Expenses is subject to tax (whether by way of direct assessment or withholding at its source), Adience shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to Adience of the Fees and Expenses after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
6.9 If Adience is required to purchase anything other than in US dollars, it shall charge the Client at the exchange rate (which shall be the mid-point rate as quoted in the following day’s Financial Times) in operation on the date on which Adience makes the purchase. If Adience is required to invoice the Client other than in US dollars, the Fees shall be calculated in US dollars, and shall be charged to the Client based on the exchange-rate in operation on the date on which Adience issues the invoice (which shall be the mid-point rate as quoted in the following day’s Financial Times).
6.10 Notwithstanding clause 6.5, all sums payable to Adience under this Agreement shall become due immediately on its termination.
7. THIRD PARTY CONTRACTS
7.1 Adience enters into contracts with third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts”).
7.2 Provided that Adience has notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts:
7.3 Adience shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and if authorized by the relevant third party.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Adience acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services) shall remain vested in the Client or its licensors. The Client hereby grants to Adience a non-exclusive license during the Term to use the Client Materials solely for the purposes of providing the Services.
8.2 Subject to the remaining provisions of this clause 8 and subject to Adience receiving payment of all Fees attributable to the Created Materials Adience hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Created Materials that are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the Created Materials.
8.3 The Client acknowledges that all Intellectual Property Rights in the Adience IPRs shall be owned by and remain the property of and vested in Adience. Subject to Adience receiving payment of all Fees attributable to the Adience IPRs licensed under this clause 8, Adience hereby grants to the Client a license to use such Adience IPRs as are included in any materials provided by Adience for the period of time and for the purposes set out in the Order.
8.4 The Client shall not, nor knowingly allow anyone else to, copy, decompile, modify or reverse engineer any Adience IPRs, without Adience’s prior written consent.
8.5 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 8.3.
8.6 Prior to delivery of any Deliverables, Adience shall obtain such licenses or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Order. Adience shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies, and keeps indemnified, Adience against any losses, costs and expenses suffered by the Adience as a result of the Client or its Affiliates breaching any such restrictions.
8.7 Adience agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 8.
8.8 Notwithstanding any of the above and save as otherwise expressly provided for in the Order, Adience shall:
8.9 During the Term, if Adience is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 8, Adience shall retain ownership of all Intellectual Property Rights in any materials forming part of the pitch process, save to the extent that Adience is successful in such pitch and the parties agree that such materials will be used in accordance with Services to be provided under the Order.
8.10 For the avoidance of doubt, Adience shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.
9.1 Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
9.2 Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
9.3 Confidential Information shall exclude information which:
9.4 Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorize or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.
9.5 Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
9.6 The Client acknowledges that nothing in this Agreement shall affect Adience’s right to use as it sees fit any general intelligence gained by Adience in the course of its appointment.
9.7 Neither party shall be in breach of this clause 9 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that, to the extent practicable and permissible, the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
9.8 The terms of and obligations imposed by this clause 9 shall survive the termination of this Agreement for any reason.
10. LIMITATION OF LIABILITY
10.1 Subject to clause 10.2, Adience’s maximum aggregate liability under or in connection with this Agreement:
10.2 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
10.3 Subject to clause 10.2, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement (and including for the avoidance of doubt any indemnity contained in this Agreement) for:
10.4 Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the following process in the event that a third party claim arises:
11. DATA PROTECTION
11.1 Each party warrants to the other that it complies and will continue to comply with the terms of any applicable Data Protection Legislation and any other relevant data protection laws, legislation and regulation. For the purposes of this clause 11, “personal data” and “processes” shall have the meanings given under Data Protection Legislation.
11.2 Where Adience, or its Associates, process personal data on behalf of the Client, then Adience shall, and shall procure that its Associates shall:
11.3 The Client warrants and undertakes that it has all necessary rights to provide personal data to Adience and to require Adience to process personal data on its behalf.
12.1 Subject to clause 12.3, either party may terminate this Agreement for convenience on 90 days’ written notice.
12.2 Subject to clause 12.3, without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if the other party:
12.3 On termination of this Agreement for any reason:
12.4 On termination of this Agreement, clauses 9, 10, 12 and 13 shall survive and continue to have full force and effect.
13.1 During this Agreement and for 12 months after its termination, neither party shall, without the other party’s written consent, solicit or entice, or attempt to solicit or entice (or encourage a third party to solicit or entice), any person who, at any point in either the preceding six months or the six months before termination (as applicable), was employed or engaged by the other party in the provision or receipt of the Services other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party
13.2 A party recruiting a person in breach of clause 13.1 above shall immediately pay to the other party a sum representing 30% of the gross annual salary of the person recruited (calculated in relation to the salary that the employee was earning while employed by the non-defaulting party). If, for reasons of confidentiality, Adience requires the employee not to work during the notice period, the Client will additionally pay Adience a sum representing the salary payable in respect of the unfulfilled portion of the notice period.
14. FORCE MAJEURE
14.1 A party shall not be in breach of this Agreement, or be liable for any failure or delay in performance of any obligations under this Agreement (except in the case of a failure to pay), where such failure or delay arises or is attributable to acts, events, omissions or accidents beyond its reasonable control (‘Force Majeure’), including but not limited to fire, accidental damage, natural disaster, war, terrorist attack, riots, failure of machinery, computers or vehicles, industrial action, non-performance by suppliers or subcontractors (excluding companies in the same group as the party seeking to rely on this clause), or interruption or failure of utility service.
14.2 A party subject to Force Majeure shall not be in breach of this Agreement provided it could not have avoided the effect of Force Majeure by taking precautions which it ought reasonably to have taken, and provided it promptly notifies the other party of the existence and nature of the Force Majeure, and uses reasonable endeavors to mitigate the effect of Force Majeure.
14.3 If Force Majeure continues for more than 30 consecutive days, either party may terminate this Agreement immediately by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring before such termination.
15.1 A notice (other than a notice in any legal proceedings) given by one party to the other under this Agreement will be properly served if it is in English and sent to the Client Notice Address or, in the case of notices to Adience, to:
Address: the Adience address set out in the Order
15.2 The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:
Deemed delivery date and time
15.3 For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt.
16. ASSIGNMENT AND SUBCONTRACTING
16.1 Adience shall be entitled to sub-contract its performance of the Services provided that any sub-contracting shall not relieve Adience from its obligations to the Client under this Agreement
16.2 Subject to clause 16.1, neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party. Adience is, however, entitled to perform any Services under this Agreement through any company which is its holding company or the subsidiary of such holding company, and any act or omission of such company shall be deemed to be the act or omission of Adience.
17.1 No variation of this Agreement shall be valid unless it is in writing and signed by a duly authorized officer of each of the parties.
17.2 A party’s failure to exercise, or delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of such, or preclude any further exercise of that or any other right or remedy.
17.3 If any provision or part-provision of this Agreement is found to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions and part-provisions of the Agreement shall not be affected.
17.4 A person who is not a party to this Agreement shall have no rights to enforce any term of it.
17.5 If any dispute arises under or in connection with this Agreement, the parties will first attempt in good faith to settle such through negotiation rather than through legal proceedings. If the dispute is not resolved within 21 days of either party’s attempt to instigate such negotiations, it may be settled by the courts of competent jurisdiction under this Agreement.
17.6 Nothing in this Agreement shall restrict or exclude the right of either party to seek injunctive relief against the other party.
17.7 This Agreement, and any documents annexed to it and signed or initialed by the parties, constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject-matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance, undertaking or warranty, whether negligently or innocently made (‘Representation’), of any person (whether a party to this Agreement or not), other than as expressly set out in this Agreement. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause 17.7 shall limit or exclude any liability for fraud.
17.8 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
17.9 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject-matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of the state of New York.
18.2 The parties irrevocably agree that the federal and state courts of New York, New York shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject-matter or formation (including non-contractual disputes or claims).