Terms of Service

Please read these Terms of Service (the “Agreement”) carefully before using the Agency services (the “Services”) operated by Human Agency, Inc. (“Agency”, “us”, “we”, or “our”). Your (“Customer,” “you”, or “your”) access to and use of the Services is conditioned upon your acceptance of and compliance with this Agreement. This Agreement applies to all visitors, users and others who wish to access or use the Services. By accessing or using the Services you agree to be bound by this Agreement. If you disagree with any part of this Agreement then you do not have permission to access the Services.

DEFINITIONS
1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2. “Customer Content” means content, data and information submitted to the Services by Customer.
3. “Documentation” means Agency's then-current generally available documentation, specifications, user manuals, etc. for the Services.
4. “Order Form” means an Order for Services, executed by the Parties and governed by this Agreement.
5. “Services” means Agency's products and/or services provided to Customer, including use of the Services, support services, professional services, and any applicable on-boarding services.
6. “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information, in any form.
7. “User” means an individual employee, consultant, contractor, or agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and its Affiliates.
USE OF THE SERVICES
1. Access. Subject to the terms and conditions of the Agreement, Agency shall make the Services and the applicable components thereof available to Customer.
2. Authorized Users. Subject to the limitations set forth in the applicable Order Form and the terms and conditions set forth herein, Customer and its Users shall have the right to access and use the Services to interact with Customer's customers Customer is responsible for maintaining the security of its account, passwords and shall be responsible for acts, omissions or breaches hereunder by any of Customer's Users or any other individuals using Customer's account or credentials for the Services
3. Customer Obligations. Customer shall: (i) only use Services in accordance with all applicable laws, rules and regulations and this Agreement and the Documentation; (ii) ensure that all Customer Content provided hereunder has been collected and provided by or on behalf of Customer in accordance with all applicable laws, rules and regulations; (iii) ensure that it owns the rights, title and interest in and to the Customer Content or has otherwise secured the necessary rights to permit Customer's access, use and distribution of Customer Content as contemplated by this Agreement; and (iv) not provide Agency with any Customer Content that is personally identifying information that is sensitive information or otherwise subject to specialized security regimes, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”) of the United States, the Children's Online Privacy Protection Act (“COPPA”) of the United States, and the standards promulgated by the PCI Security Standards Council (“PCI”). For the avoidance of doubt, specialized security regimes as set forth in this section 5(b)(iv) does not mean federal, state, or local data protection statutes applicable to personally identifiable information in general, such as the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”). Customer acknowledges that it controls and determines in its discretion its and its Users' use of the Services, configuration of the Services and the collection of Customer Content from site visitors, prospects and others via the Services.
4. Use of Services. Customer agrees to test and evaluate the Services in accordance with the terms of this Agreement, such that Agency may obtain related diagnostics, usage, and other analytics data.
5. Feedback. Customer shall report to Agency with respect to the utility and functionality of the Services and notify Agency of any and all functional flaws, errors, anomalies or problems directly or indirectly associated with the Services known to or discovered by Customer during the Term. In addition, Customer shall, from time to time, provide Agency with feedback regarding the Services and shall promptly respond to any and all reasonable inquiries, questionnaires, surveys and other materials provided or requested by Agency. All such feedback will be the sole and exclusive property of Agency. Customer hereby irrevocably transfers and assigns to Agency all of Customer's right, title, and interest in and to all feedback including all intellectual property rights therein. Customer will not earn or acquire any rights or licenses in the Services or any commercial release of such on account of this Agreement or Customer's performance under this Agreement, even if Agency incorporates Customer's feedback into the Services or any other commercial release.
6. Customer Acknowledgements. Customer acknowledges that: (i) the Services is still in development, not an official product and not commercially released for sale by Agency, not in final form and not fully functional; (ii) the Services is provided “as is” and there may be errors, design flaws, or interruptions in the Services; (iii) Agency reserves the right to alter the Services at any time; (iv) Customer's access and use of the Services is at Customer's own risk; (vi) the Services may contain technology and data that is licensed by Agency from third parties, and use of such third party technology and data is sublicensed to Customer hereunder; (vii) certain Customer Content may be disclosed or shared with third parties as [provided or described in Exhibit A]; (viii) the information obtained using the Services may not be accurate and may not accurately correspond to information extracted from any database or other source; (ix) use of the Services may result in unintended results, loss, delays, etc.; (x) Agency is under no obligation to release a commercial version of the Services; and (xi) Agency has the unilateral right to abandon or alter development of the Services at any time and without any obligation or liability to Customer. Customer acknowledges and agrees that it should not rely on the Services. Customer is responsible for its use of the Services and for the data and information provided or made available to Customer by the Services.
7. Unsolicited Ideas. Except with respect to the Services, Agency does not seek any unsolicited ideas or materials for products or services, or even suggested improvements to its products or services in Customer's feedback hereunder (collectively, “Unsolicited Materials”). Agency's receipt of Unsolicited Materials is not an admission of novelty, priority, or originality, and such receipt does not impair Agency's right to contest existing or future intellectual property rights relating to the Unsolicited Materials. Customer grants Agency a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and royalty-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit, all or any portion of the Unsolicited Materials for any purpose in any format, on or through any means, medium or technology, and to advertise, market, and promote the same. Except as prohibited by law, Customer hereby waives any moral rights that Customer may have in the Unsolicited Materials, even if altered or changed in a manner not agreeable to Customer. To the extent not waivable, Customer irrevocably agrees to not exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. Customer understands that it will not receive any fees, sums, consideration, or remuneration for any of the license rights granted in this paragraph. For any submission of Unsolicited Materials, Customer represents and warrants that, to Customer's knowledge, (i) the Unsolicited Materials are accurate and are not fraudulent, deceptive, inaccurate, misleading or misrepresentative of Customer or its affiliation with another entity; (ii) the Unsolicited Materials do not infringe any intellectual property or other right of any third party; and (iii) the Unsolicited Materials will not violate this Agreement or the Original Agreement, or cause injury or harm to any person.
8. Usage Restrictions. Customer will not directly or indirectly (i) make the Services available to, or use the Services for the benefit of, anyone other than Customer or the Users; (ii) sell, resell, license, sublicense, distribute, rent, lease the Services, or include the Services or any component thereof in a service bureau or outsourcing offering; (iii) use the Services to collect, store or transmit infringing, libelous, or otherwise unlawful, or tortious content, material or data; (iv) collect, store or transmit material or data on or through the Services in violation of third-party rights, including without limitation privacy rights or any contract to which Customer is a party; (v) use the Services to collect store or transmit malicious or disruptive code; (vi) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; (viii) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (ix) copy the Services or any part, feature, function or user interface thereof; (x) frame or mirror any part of any Services, other than framing on Customer's own internal intranets; (xi) access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service; (xii) modify, translate, or create derivative works based on the Services or any underlying software; (xiii) decompile, disassemble, decipher or reverse engineer the Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, (except to the extent such restriction is expressly prohibited by applicable statutory law) or (xiv) breach Agency's Acceptable Use Policy.
9. Affiliates. An Affiliate may access the Services under this Agreement provided that Customer will be responsible for its Affiliates' compliance with this Agreement.
10. License to Customer Content. Customer grants Agency a non-exclusive, worldwide, royalty-free, fully paid-up right and license to transmit, use, copy, access, process, reproduce, display, and adapt the Customer Content to the extent necessary to provide the Services to the Customer. Customer agrees that (i) the quality of Customer's results from use of the Services depend on Customer's engagement with the Services and Customer's collection, uploading or other provisioning of the Customer Content into the Services and (ii) Agency does not assume any responsibility for, or undertake to verify, the accuracy or completeness of Customer Content entered by Customer.
11. Limitations. Agency will not be responsible or liable for any failure in the Services to the extent resulting from or attributable to (i) Customer Content or Customer's failures to deliver Customer Content to Agency; (ii) failures in any third-party telecommunications network or other service or equipment not controlled by Agency; or (iii) Customer's or any third party's products, services, negligence, willful misconduct, breach of this Agreement or other unauthorized access or use not caused by Agency.
12. Support. Agency shall provide and Customer shall receive support by corresponding with the Agency team via shared slack channel or email. Unless otherwise specified and agreed in an Order Form, Agency shall (i) correct errors in the Services; (ii) respond to and resolve support requests in a commercially reasonable manner; (iii) provide online access to the Documentation, technical support bulletins and other user support information to the extent Agency makes such resources available; and (iv) provide all updates, bug fixes, enhancements, new releases, new versions, and other improvements to the Services as made available from time to time and provided therein.
13. Sub-contracting. Agency reserves the right to subcontract all or certain portions of the services upon written notice to Customer. Any Agency affiliate may enter into an Order Form with Customer to provide Services to Customer and/or invoice Customer directly under this Agreement; in either such case, such Agency affiliate will be considered a subcontractor of Agency and such Order Form or invoice will be considered written notice to Customer of such subcontractor.
FEES AND EXPENSES
1. Payment. Customer shall be responsible for and shall pay to Agency the fees set forth in the applicable Order Form in accordance with the terms and conditions contained therein. Customer shall pay all undisputed invoices within thirty (30) days of the date of invoice. Customer will notify Agency of any disputes in writing (including a description of the basis for the dispute) within such thirty (30) day period. Payment obligations are non-cancelable and, except as expressly set forth in this Agreement, fees will not be refunded or pro-rated for any reason, including if Customer's actual usage of the Services falls below the purchased amount indicated in an applicable Order Form. Subscription quantities cannot be decreased during the relevant subscription term. If Customer's actual usage exceeds the subscribed-for amount indicated in an Order Form, Customer shall be notified of the additional cost in the Services, and Customer shall be responsible for paying the overage charges based on the rates set forth in the applicable Order Form. In addition to paying the applicable fees, Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by Agency in connection with any Services rendered provided Customer has pre-approved such expenses in advance. Unpaid and undisputed invoices are subject to a finance charge of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Agency reserves the right to suspend access to the Services with reasonable prior notice to Customer during any period of overdue payments until the unpaid amount is paid.
2. Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for paying all Taxes associated with the Services (without any offset or deduction to the fees paid to Agency) other than U.S. taxes based on Agency's net income.
TERM AND TERMINATION
1. Term. This Agreement commences on the Effective Date and continues in effect through the duration of all Order Forms hereunder, unless terminated earlier in accordance with the terms of Section 4(b) (Termination).
2. Termination. Either party may terminate this Agreement or any Order Form immediately (i) in the event of a material breach of this Agreement that is not cured within thirty (30) days of receipt of written notice from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding that is not dismissed within sixty (60) days of filing.
3. Refund or Payment upon Termination. In the event of Agency's termination for Customer's material breach in accordance with Section 4(b)(Termination), Customer shall pay Agency all outstanding fees due under any terminated Order Form(s) for the entire subscription period set forth therein. In the event of termination for Agency's material breach in accordance with Section 4(b), Agency will refund to Customer the prepaid unused fees for the Services not provided under the applicable Order Form(s) as of the termination effective date. For clarity, termination of this Agreement will terminate all outstanding Order Forms.
4. Data Portability and Deletion. At any point during the term, Agency will, upon written request by Customer, delete the Customer Content or make the Customer Content available to Customer for export or download. This right will survive for one hundred eighty (180) days post-termination in accordance with Section 10 below. After the expiration of such one hundred and eighty (180) day period, Agency will have no obligation to maintain or provide Customer Content, and will thereafter delete or destroy all copies of Customer Content in Agency's systems or otherwise in Agency's possession or control, unless legally prohibited.
5. Survival. The sections and subsections titled “Fees and Expenses” (to the extent any payment obligations remain outstanding), “Refund or Payment upon Termination,” “Data Portability and Deletion,” “Disclaimers,” “Confidential Information,” “Proprietary Rights,” “Mutual Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination or expiration of this Agreement.
REPRESENTATIONS AND WARRANTIES
1. Mutual Representations and Warranties. Each party represents and warrants that: (i) it is a corporation duly organized and validly existing under the laws of the jurisdiction in which it is incorporated; (ii) it has full corporate power and authority, and has obtained all corporate approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (v) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
2. Customer Warranties. Customer represents, warrants and covenants that (i) it will comply with the Acceptable Use Policy in its use of the Services; and (ii) it will comply with all applicable laws and regulations in its performance of its obligations under this Agreement.
3. Agency Warranties. Agency represents, warrants, and covenants that: (i) it will comply with all applicable laws and regulations in its performance of its obligations under this Agreement; (ii) the Services will perform substantially in accordance with the functions described in the Documentation; provided, however, such representation, warranty and covenant does not include (A) Customer's use of the Services not strictly in accordance with this Agreement or in an environment or on a platform or with devices for which it was not designed nor contemplated in the Documentation; (B) that the Services or any of the related Services will be provided strictly in accordance with Customer specifications, instructions, or directions; (C) any modification, alteration, or enhancement to the Services by a party other than Agency; or (D) the combination of the Services with other products, services, processes, content or materials not supplied by Agency and (ii) if applicable, Agency will provide the Services in a professional and workmanlike manner.
4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM ARE PROVIDED “AS IS”. FURTHER, EXCEPT AS PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. Agency MAKES NO REPRESENTATIONS OR WARRANTIES (A) REGARDING THE SUITABILITY OR COMPLETENESS OF THE PLATFORM, (B) THE RESULTS CUSTOMER MAY OBTAIN BY USING THE PLATFORM, OR (C) THAT THE PLATFORM WILL MEET CUSTOMER'S REQUIREMENTS. AGENCY DOES NOT WARRANT THAT USE OF THE PLATFORM WILL ENSURE A PARTICULAR OUTCOME FOR CUSTOMER'S BUSINESS. AGENCY DOES NOT WARRANT THAT THE PLATFORM WILL PERFORM ERROR-FREE WITHOUT INTERRUPTION.
CONFIDENTIAL INFORMATION
1. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other (“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. Customer's Confidential Information includes business plans, strategy and any other information provided by Customer in connection with setting up the Services. Customer Confidential Information does not include Customer Content. The terms governing the privacy and security of Customer Content are set forth in Section 8. Agency's Confidential Information includes the Technology and Documentation provided by Agency in connection with the Services, and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information of a Disclosing Party does 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 rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is rightfully received from a third party without breach of any obligation owed to the Disclosing Party; (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; or (v) was already known by Receiving Party at the time of Disclosing Party's disclosure of such information.
2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the Confidential Information of the Disclosing Party as it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, only disclose Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who (A) need that access for purposes consistent with this Agreement and (B) have confidentiality obligations with respect to the Disclosing Party's Confidential Information consistent with those contained herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than (1) its Affiliates, legal counsel and accountants or (2) in connection with a bona fide due diligence inquiry for a financing, acquisition or similar transaction, in each case subject to confidentiality obligations consistent with this Agreement, without the other party's prior written consent. A Receiving Party shall be responsible for any breaches of confidentiality obligations hereunder by any third party to whom it discloses the Disclosing Party's Confidential Information. Notwithstanding anything to the contrary set forth herein, Agency may collect and use data regarding the use and performance of the Services in anonymized and aggregated form, to analyze and improve the Services and for support, and general benchmarking data and industry reports, provided that any user data is aggregated and anonymized such that no personally identifying information of any individual is revealed.
3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
PROPRIETARY RIGHTS
1. Customer Content. As between the parties, except for the licenses set forth herein, all right, title and interest in and to the Customer Content shall be and remain the sole and exclusive property of Customer.
2. Agency. As between the parties, all right, title and interest in and to the Services and all copies, modifications and derivative works thereof shall be and remain the sole and exclusive property of Agency.
3. No License. Except as expressly set forth herein, no license or other right, title or interest is granted by either party to the other with respect the Confidential Information, Services, Documentation or Customer Content.
INFORMATION SECURITY. Agency has established and maintains a commercially reasonable information security program as outlined in Exhibit A- Information Security Addendum. Customer shall use commercially reasonable security and anti-virus measures when uploading Customer Content to, accessing and using the Services and efforts to prevent unauthorized access to, or use of, the Services, and shall notify Agency promptly of any such unauthorized access or use of which it becomes reasonably aware.
INDEMNIFICATION
1. Indemnification by Agency. Agency will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (“Claim”) alleging that Customer's use of the Services in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights and will indemnify and hold harmless Customer from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid under a settlement of, such Claim. The foregoing obligations do not apply with respect to any Claim based on or arising from (i) the Customer Content; (ii) the Services or portions or components thereof (A) used not strictly in accordance with this Agreement or in a manner for which it was not designed or contemplated in the Acceptable Use Policy; (B) made in whole or in part in accordance with Customer specifications; (C) modified, altered, or enhanced by a party other than Agency; or combined with other products, services, processes, content or materials not supplied by Agency. The foregoing obligations also do not apply to (D) use of the Services or a specified portion thereof or Services after Agency notifies Customer to discontinue use due to an infringement claim; or (E) any Claims based on or arising out of Customer's breach of this Agreement or an applicable Order Form ((A) through (E) collectively, the “Excluded Claims”).
2. Infringement. If (i) a final injunction is obtained against Customer's use of the Services arising from infringement or misappropriation of a third party's intellectual property rights, or (ii) in Agency's opinion the Services is likely to become the subject of a successful claim of such infringement (in both cases not arising out of an Excluded Claim), Agency may in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate; or (ii) obtain a license for Customer's continued use of the Services in accordance with this Agreement. If (i) and (ii) are not commercially feasible, Agency may terminate Customer's subscription to the Services and refund Customer a pro-rated amount of any prepaid fees covering the remainder of the term of the terminated subscriptions. Sections 9(a) and 9(b)) state Agency's sole liability, and the Customer's exclusive remedy, for any matters addressed by such Sections.
3. Indemnification by Customer. Customer will defend Agency against any Claim made or brought against Agency alleging that (i) Customer Content violates, infringes or misappropriates at third-party's intellectual property or privacy rights or violates applicable law, order, rule or regulation; or (ii) Customer's use of the Services in breach of this Agreement, violates, infringes or misappropriates a third party's intellectual property or privacy rights and/or violates applicable law, order, rule or regulation or (ii) if the claim arises from an Excluded Claim. Customer will indemnify and hold harmless Agency from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid under a settlement of, such Claim.
4. Indemnification Procedure. Any claim for indemnification hereunder requires that the indemnified party (i) promptly give the indemnifying party written notice of the Claim; (ii) give the indemnifying party sole control of the defense and settlement of the Claim, provided that the indemnifying party may participate in the defense of the Claim with counsel of its choosing at its own expense, and (iii) give the indemnifying party all reasonable assistance, at indemnifying party's expense. The indemnifying party shall not settle a Claim without written approval by the indemnified party (approval not to be unreasonably withheld) if the settlement contains an admission of any liability or wrongdoing on the part of the indemnified party.
CONSEQUENTIAL DAMAGE WAIVER. IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, GOODWILL, INTERRUPTION OF USE, LOSS OR INACCURACY OF THE SERVICES, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY. EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, OR EITHER PARTY'S BREACH OF CONFIDENTIALITY UNDER SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Prohibition on Corrupt Practices.
1. Agency represents, warrants, and undertakes that it shall not engage in corrupt, unfair or fraudulent practices in connection with the provision of the Services hereunder, including, but not limited to, Agency or its Personnel, directly or indirectly, accepting bribes or making offers, payments, or promise to pay money, gifts, or anything of value to any person, including, but not limited to, an executive, official, employee or agent of: (i) a governmental department, agency or instrumentality, (ii) a wholly or partially government-owned or controlled or privately owned company or business, (iii) a political party (collectively, (i), (ii) and (iii), “Public Officials”), or (iv) any person where Agency knows or has reason to know that all or a portion of such money, gift, or thing of value will be offered, paid, or given, directly or indirectly, to a Public Official, for the purpose of influencing any act, decision or failure to act by such persons or Public Officials or securing an improper advantage in order to obtain, retain or direct business. Agency must notify Customer within five (5) business days of learning of an offer, promise, or payment that Agency reasonably believes may violate this Section. Agency must record any and all payments to a governmental entity for permits, licenses, expediting charges, or any similar fees, and retain an original receipt from the governmental entity and, where available, a scheduled rate card for such fee.
2. In addition to the foregoing, Agency represents and warrants that: (i) the information provided to Customer for the purpose of fulfilling its anti-bribery and corruption obligations is complete and accurate and not misleading; (ii) it is not subject to sanctions; and (iii) it is not the subject of any allegations of bribery or corruption. Agency hereby agree to notify Customer immediately on learning Agency or its Personnel, directly or indirectly, are subject to regulatory enforcement or scrutiny, judicial or law enforcement investigation or litigation of any kind relating to corrupt (including bribery), unfair or fraudulent practices, including, but not limited to, in connection with the provision of Services hereunder.
Maintaining Adequate Procedures. It shall be a requirement that Agency has in place and maintains its own adequate training, policy and procedures for the prevention of corrupt, unfair or fraudulent practices in connection with the provision of the Services hereunder. Agency hereby agrees to:
1. implement and maintain adequate training, policies and procedures for the prevention of corrupt (including bribery), unfair or fraudulent practices that meet or exceed the requirements to comply with applicable anti-bribery and corruption law, rules and regulations; and
2. notify Customer of the absence or failing of training, policies and/or procedures relating to the prevention of corrupt (including bribery), unfair or fraudulent practices in connection with the provision of the Services hereunder.
Prohibition on Human Trafficking and Modern Slavery. To the extent applicable, Agency represents, warrants and undertakes that:
1. neither Agency nor any of its officers, employees, agents or subcontractors has: (A) committed an offence under the Modern Slavery Act 2015 and/or any other laws, rules or regulations prohibiting human trafficking and/or slavery (a “Offence”); or (B) been notified that it is subject to an investigation relating to an alleged Offence or prosecution under the Modern Slavery Act 2015 and/or any other laws, rules or regulations prohibiting human trafficking and/or slavery; or (C) is aware if any circumstances within its supply chain that could give rise to an investigation relating to an alleged Offence or prosecution under the Modern Slavery Act 2015 and/or any other laws, rules or regulations prohibiting human trafficking and/or slavery;
2. it shall comply with the Modern Slavery Act 2015 and any other laws, rules or regulations prohibiting human trafficking and/or slavery; and
3. it shall notify Customer immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have, breached or potentially breached any of Agency's obligations under this Section. Such notice to set out full details of the circumstances concerning the breach or potential breach of Agency's obligations.
GENERAL PROVISIONS
1. Relationship of the Parties. The relationship between the parties is that of independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind or attempt to bind Agency in any respect whatsoever.
2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The parties consent to the exclusive jurisdiction of the courts of London, England.
3. Force Majeure. Neither party shall be liable for delays or any failure to perform under this Agreement, or make the Services available, due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, telecommunications failures, network intrusions or denial of service attacks to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use commercially reasonable efforts to minimize the delays caused by any such event. This provision shall not excuse the payment of fees due under this Agreement, provided that Agency continues to provide the Services as set forth herein.
4. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
5. Notices. Any notice given pursuant to this Agreement shall be in writing and delivered to the parties at their respective addresses stated on an applicable Order Form or at such other address designated by written notice hereunder. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if sent by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
6. Publicity. Customer consents to inclusion of its name and logo in client lists that may be published as part of Agency's marketing and promotional efforts.
7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), upon providing notice to the other party, but without the other party's consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets.
8. Counterparts; Execution. This Agreement may be executed electronically and in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that an electronic or facsimile signature may substitute for and have the same legal effect as the original signature.
9. Entire Agreement. This Agreement (including any Order Forms and applicable Exhibits) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and shall control over any different or additional terms of any purchase order, acknowledgement or other non-Agency ordering document, and no terms included in any such purchase order, acknowledgement or other non-Agency ordering document shall apply to the Services or any applicable Services. This Agreement may only be amended by an instrument in writing signed by the parties.
10. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.