Terms and Conditions

SMG GROUP TERMS OF SERVICE – SERVICES FOR BRANDS
These terms of service (these “Terms”), together with the booking form, order, proposal or other like document to which they are attached or which refers to them as being applicable (the “Order”), together set out the terms on which the Supplier will provide its Services to the Client (the Order and these Terms, together with the documents to which they refer, together forming this “Agreement”).

1 THE STRUCTURE OF THESE TERMS AND HOW THEY APPLY
1.1 The Supplier provides a range of different kinds of Services, and not all Services are relevant to any given Order. These Terms are therefore divided into five parts, as follows:
1.1.1 Part A sets out the terms which are specific to Media Buying Services and Consultancy Services, which are together referred to as Professional Services;
1.1.2 Part B sets out the terms which are specific to Subscription Services, including the “Plan Apps” platform;
1.1.3 Part C sets out terms specific to Client Data;
1.1.4 Part D sets out terms which apply in respect of all Services; and
1.1.5 Part E defines the meanings of some of the words and phrases used in this Agreement and sets out some rules on how this Agreement is to be interpreted.

2 SPECIAL TERMS
2.1 The Special Terms set out in the Order (if any) form part of the terms of this Agreement. If and to the extent that one or more Special Terms included in a Scope of Work or Order signed by the Supplier addresses the same subject matter as one or more terms of these Terms, then any inconsistency or contradiction between the Special Terms and these Terms will be resolved in favour of those Special Terms.

PART A – PROFESSIONAL SERVICES
3 APPLICATION OF PART A
3.1 This Part A applies where and to the extent the Order includes Professional Services.

4 SCOPES OF WORK AND ORDERS
4.1 Where the Client engages the Supplier to provide Professional Services, the parties will enter into an Order. An Order will not be effective until the Supplier issues it to the Client for signature (which will typically be effected through the Supplier’s electronic signature platform), and it has been signed accordingly on behalf of the Client.
4.2 The Order will include, reference or be accompanied by a document describing the Professional Services which the Supplier will provide (such document, together with the applicable Order, a “Scope of Work”).
4.3 Each Scope of Work will set out at least:
4.3.1 the Professional Services which the Supplier will provide;
4.3.2 the Fees payable and any agreed arrangements or budgets concerning Expenses or Third Party Costs; and
4.3.3 the duration of the Scope of Work.
4.4 In addition to a Scope of Work, the Client may from time to time as a condition of provision of particular Professional Services be required to execute additional Orders, for example for particular campaigns or to book particular media, or to add additional out of scope work to the Professional Services to be provided (each, a “Booking Order”). Booking Orders, once executed, form part of the Scope of Work to which they relate and do not create a separate agreement.

5 PERFORMANCE
5.1 For each Scope of Work, the Supplier will provide the Professional Services set out in that Scope of Work, in accordance with and subject to the terms of this Agreement and the Scope of Work.
5.2 The Supplier will use reasonable endeavours to perform the Professional Services in accordance with any timetable or schedule set out in the Scope of Work but the Client acknowledges and agrees that a wide range of factors can affect timely performance of Professional Services, and that consequently time is not of the essence.

6 CREATIVE
6.1 Unless and solely to the extent that the Scope of Work expressly provides otherwise:
6.1.1 Professional Services do not include the creation or amendment of copy or other creative materials or designs (together, “Creative”); and
6.1.2 the Supplier has no responsibility for the preparation, content, production or supply of Creative.
6.2 The Supplier will not materially change any Creative without Approval.

7 APPROVALS
7.1 Where this Agreement provides that a decision, cost or other matter is subject to or requires Approval, the Client gives that Approval by:
7.1.1 signing the relevant Booking Order or other Approval document submitted to the Client for that purpose;
7.1.2 otherwise giving Approval in writing, including by email; or
7.1.3 issuing a purchase order for the relevant cost or spend (where applicable).
7.2 The following actions and matters shall require Approval:
7.2.1 the final version of any Deliverable which the Supplier asks the Client to Approve, or which the Scope of Work provides shall require approval;
7.2.2 the material commercial and operational terms of each Third Party Contract;
7.2.3 any materials which the Supplier is to make public on the Client’s behalf (such as press releases, announcements, and Creative provided by the Supplier) shall require Approval prior to being made public;
7.2.4 media plans, estimates and schedules, Approval of which shall be the Supplier’s authority to make reservations and commitments for space, time and other facilities under Third Party Contracts; and
7.2.5 any other matter which this Agreement or the applicable Scope of Work specifies as requiring Approval.
7.3 Where the Client operates a purchase order process, the Supplier reserves the right to require that Approval for a cost or spend (including a Third Party Cost) be given by way of a purchase order. If the Client has given Approval in relation to any cost or spend (including a Third Party Cost) through any of the methods specified in this clause ‎7, it will not be entitled to withhold payment of such cost or spend by virtue of its not having issues a purchase order.
7.4 The Client will not unreasonably withhold or delay any Approval, and the Supplier is not liable for delays, additional costs or other adverse impacts which may arise as a result of an Approval being so withheld or delayed.
7.5 The Supplier is entitled to assume that any person giving or purporting to give an Approval on behalf of the Client is authorised to do so, and the Supplier may rely on such Approval.
7.6 The Supplier will promptly inform the Client of any material changes to matters previously Approved.
7.7 The Client will not Approve anything which it knows or ought to know contains inaccurate, defamatory or unlawful material, or which contains statements which it knows or ought to know are untrue or misleading, or which it knows or ought to know could give rise to any claim against the Supplier or its Affiliates.

8 THIRD PARTY CONTRACTS
8.1 In order to perform the Professional Services, the Supplier may need to enter into Third Party Contracts with Media Owners and other third parties, under which the Supplier will incur Third Party Costs and potentially other liabilities.
8.2 Where the Supplier enters into Third Party Contracts, it does so as principal, and not as the Client’s agent.
8.3 The Supplier will inform the Client of the material commercial and operational terms of Third Party Contracts, including significant restrictions, and will provide a copy of the relevant third party’s applicable terms and conditions on request. The Client takes all Professional Services and associated Deliverables procured under a Third Party Contract on and subject to the terms of that Third Party Contract, and shall comply with the terms of such Third Party Contract accordingly.
8.4 The Client will on first demand reimburse the Supplier for any and all costs, liabilities and damages suffered or incurred by the Supplier or its Affiliates under or in connection with any Third Party Contract (including legal fees) by reason of the act or omission of the Client or its Affiliates or of its or their respective agents, contractors or other third parties acting on their behalf.
8.5 Certain Media Owners and other third parties may require that the Client contract with them directly. Where that is the case, the Supplier will use reasonable efforts to facilitate that process.
8.6 Once the Supplier has entered into a Third Party Contract, any cancellation of or change to that Third Party Contract or associated bookings or engagements will be subject to the terms of that Third Party Contract and the Media Owner’s or other third party’s cancellation policies. Where the Client wishes to cancel a Third Party Contract after it has been entered into, the Supplier will use reasonable efforts to facilitate such cancellation (consistent with the terms of the Third Party Contract and the relevant cancellation policies) and to reduce resulting Third Party Costs, but the Client is and remains responsible for all Third Party Costs resulting from Third Party Contracts or their cancellation at the instigation of the Client.

9 THIRD PARTY COSTS
9.1 The Supplier will invoice the Client for, and the Client will pay, all Third Party Costs, in accordance with clause ‎‎28 (Fees, Costs and Payment).
9.2 Except for additional Third Party Costs which are incurred by the Supplier for reasons attributable to the Client’s act or omission (such as cancellation charges, late copy charges, and late payment charges and interest), all Third Party Costs shall be subject to Approval.
9.3 Where Third Party Costs are presented for Approval on the basis of an estimate, the Supplier will use reasonable efforts to ensure that estimate is accurate at the time of provision, based on the information available to the Supplier. If the final Third Party Costs are likely to be more than the estimate, then the Supplier will seek Approval from the Client prior to exceeding the estimate, where it is practicable to do so.
9.4 Certain Third Party Costs may require payment in advance or on terms shorter than those set out in clause ‎28 (Fees, Costs and Payment). Where that is the case the Supplier will inform the Client as soon as reasonably practicable in advance, and the Client will pay those Third Party Costs within the required period.
9.5 Certain Media Owners and other third parties may require a purchase order from the Client, notwithstanding that the relevant Third Party Contract is to be entered into by the Supplier. Where that is the case, the Client will issue the required purchase order.

10 EXPENSES
10.1 The Supplier will invoice the Client for, and the Client will pay, Expenses incurred by the Supplier in the performance of the Professional Services, in accordance with the provisions of the Scope of Work concerning Expenses or as otherwise Approved by the Client.

11 CLIENT DEPENDENCIES
11.1 The Client agrees that it will, promptly and as and when required:
11.1.1 provide full and clear instructions concerning its requirements and all information and assistance which is required for the proper performance of the Professional Services which is not the Supplier’s responsibility to procure;
11.1.2 ensure that all information which it provides or which is provided on its behalf to the Supplier is accurate, complete and not misleading;
11.1.3 promptly provide all relevant Approvals, enter into all relevant Booking Orders, and issue all relevant purchase orders;
11.1.4 keep the Supplier informed of any matters concerning the Client’s business (or that of its Affiliates) which will or could affect the Professional Services;
11.1.5 procure the cooperation and assistance of the Client’s other suppliers and agencies (and those of its Affiliates) as required for the proper performance of the Professional Services;
11.1.6 provide all Client Materials (including all Creative, unless and solely to the extent that the Scope of Work provides that Creative is to be provided or procured by the Supplier) required for the proper performance of the Professional Services;
11.1.7 cooperate with the Supplier in establishing and following security arrangements concerning the transmission of Client Materials, Client Data and Deliverables;
11.1.8 ensure that all Client Materials (including all Creative, unless and solely to the extent that the Scope of Work provides that Creative is to be provided or procured by the Supplier) comply with applicable laws and regulations, including the laws, regulations and codes of practice concerning advertising;
11.1.9 obtain all necessary licences and rights clearances in all Client Materials (including all Creative, unless and solely to the extent that the Scope of Work provides that Creative is to be provided or procured by the Supplier); and
11.1.10 otherwise cooperate with and assist the Supplier as reasonably necessary to the performance of the Professional Services.
11.2 If the Client does not fulfil its obligations under or in connection with this Agreement or any Third Party Contract, then the Supplier will have no liability arising out of or in connection with any Professional Services which are prevented, hindered or delayed as a result, and the Client will promptly on demand reimburse the Supplier for any Losses which the Supplier suffers or incurs as a result (including but not limited to any additional charges under Third Party Contracts).

12 CLIENT MATERIALS
12.1 Nothing in this Agreement changes the ownership of any Client Materials. As between the Supplier and the Client, the Client Materials will remain the property of the Client (or its licensor, as the case may be).
12.2 The Client grants to the Supplier a worldwide, royalty-free, non-exclusive licence, to the extent reasonably necessary to the performance of the Professional Services (and where Approval is required, subject to that Approval is given), to:
12.2.1 copy, distribute, adapt, create derivative works from, and otherwise use Client Materials; and
12.2.2 sub-license Client Materials under and on the terms of relevant Third Party Contracts.

13 DELIVERABLES
13.1 Subject to the Supplier receiving payment of all Fees attributable to the relevant Deliverable (and, where Approval of the Deliverable is required, such Approval), the Supplier grants to the Client a perpetual, non-exclusive licence to use, make copies and derivative works of, and distribute each Deliverable for its own business purposes and consistent with the nature and intended purpose of the Deliverable (which may be set out in the Scope of Work).
13.2 The Supplier shall obtain such licences or consents in respect of Third Party Materials contained or used in that Deliverable as shall be necessary in order that the Client can use such Deliverable for the purposes set out in clause ‎13.1. The Supplier 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 shall comply with such restrictions as a condition of the licence granted by clause ‎13.1.
13.3 Unless the applicable Scope of Work provides otherwise, the Client grants to the Supplier the right to use such of the Client’s Intellectual Property Rights as may be contained in Deliverables which have been published or otherwise made public together with the Client’s name and logo for the purposes of promoting its work and its business, including on its and its Affiliates’ websites, and in credentials pitches, showreels and similar artefacts.

14 WARRANTIES
14.1 The Supplier warrants that:
14.1.1 it will perform the Professional Services and its other obligations under this Part A with reasonable skill and care and in accordance with applicable laws;
14.1.2 the Deliverables will materially conform to any particular specifications or requirements set out in the Scope of Work; and
14.1.3 the Client’s use, in accordance with this Agreement of Approved Deliverables will not infringe the Intellectual Property Rights or misuse the trade secrets or Confidential Information of any third party.
14.2 The Client warrants that:
14.2.1 it will perform its obligations under this Part A with reasonable skill and care and in accordance with applicable laws;
14.2.2 the Supplier’s use of Client Materials in accordance with this Agreement, and the use under Third Party Contracts of Client Materials in accordance with those Third Party Contracts, will not infringe the Intellectual Property Rights or misuse the trade secrets or Confidential Information of any third party; and
14.2.3 the Client Materials do and will comply with all applicable laws.
14.3 Each party warrants to the other that it has full power and authority to enter into and perform this Agreement in accordance with its terms.

15 PERSONNEL
15.1 The Supplier will ensure that the Personnel used to perform the Professional Services will be suitably qualified and experienced for the tasks and roles assigned to them.
15.2 The Supplier will use reasonable efforts to ensure continuity of Personnel named in the Scope of Work, subject to holidays and other absences.
15.3 The Client and the Supplier agree that neither of them expects or intends TUPE to apply in connection with the commencement, provision or cessation of any Professional Services.

PART B – SUBSCRIPTION SERVICES
16 APPLICATION OF PART B
16.1 This Part B applies where and to the extent the Order includes Subscription Services.

17 BASIS OF PROVISION AND FORMS OF ORDER
17.1 Subscription Services may be provided on a standalone basis under their own Order, or they may be included in an Order or Scope of Work for Professional Services.

18 ACCESS TO THE SUBSCRIPTION SERVICES
18.1 The Supplier grants to the Client a non-exclusive, non-transferable, revocable right to permit the Authorised Users to Use the Platform and the Platform Content during the Subscription Term.
18.2 The Supplier shall use reasonable endeavours to make the Subscription Service available for Use in accordance with this Agreement, subject to planned maintenance and unscheduled emergency maintenance. The Client’s sole and exclusive remedy in respect of this clause ‎‎18.2 shall be to receive the Support Services.
18.3 The Supplier:
18.3.1 does not warrant that the Client’s use of the Subscription Service will be uninterrupted or error-free; or that the Subscription Service and/or Platform Content will meet the Client’s requirements; and
18.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities outside of its reasonable ability to control, including the Internet and Commodity Subcontractors, and the Client acknowledges that the Subscription Service may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities.
18.4 The Client acknowledges and agrees that, notwithstanding anything to the contrary in the Documentation, it is inherent to the nature of the Subscription Services that the particular range of features, functions and Platform Content available to the Client during the Subscription Term may vary from time to time as the Subscription Services evolve and as different data sources become or cease to be available. The availability or not of any particular features, functions or Platform Content will not be a breach of this Agreement by the Supplier.
18.5 The Client acknowledges that the Platform and/or the Platform Content may enable it to access content from, correspond with, and purchase products and services from, third parties via third-party websites or other services and that it does so solely at its own risk. The Supplier shall have no liability or obligation whatsoever in relation to such content, correspondence or products and services, or any transactions completed, or any contract entered into, by the Client with any such third party.

19 ACCEPTABLE USE OF THE SUBSCRIPTION SERVICES
19.1 The Client shall not, and shall procure that no Authorised User will, access, store, distribute or transmit any material during the course of its use of the Platform and/or Subscription Service:
19.1.1 that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, discriminatory or offensive;
19.1.2 that facilitates illegal activity;
19.1.3 that is sexually explicit;
19.1.4 that promotes violence; or
19.1.5 that is otherwise illegal or causes damage or injury to any person or property.
19.2 As a particular condition to Use of the Subscription Services, the Client shall not and shall not attempt to (and shall procure that no Authorised Client Entity or Authorised User shall or shall attempt to):
19.2.1 except to the extent expressly permitted by this Agreement or any applicable law which is incapable of exclusion by agreement between the parties (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform (including all or any portion of the software that operates the Platform) and/or the Platform Content in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software that operates the Platform, including its associated configurations, file formats and data structures;
19.2.2 access all or any part of the Platform, the Documentation and/or Platform Content in order to build or provide a product or service which competes with the Services;
19.2.3 resell access to the Platform or the Platform Content, or use the Platform and/or Platform Content in any provision of services to third parties by way of an outsourced service, service bureau or similar arrangement;
19.2.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or Platform Content available to any third party except the Authorised Users, or
19.2.5 obtain, or assist third parties in obtaining, access to the Platform and/or Platform Content, other than Authorised Users.

20 CLIENT DEPENDENCIES
20.1 The Client agrees that it will, promptly and as and when required:
20.1.1 provide the Supplier with all necessary co-operation and information as may be required by the Supplier in order to provide the Subscription Services;
20.1.2 comply with, and procure that each Authorised User complies with, all applicable laws and regulations with respect to its activities under this Agreement;
20.1.3 carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner;
20.1.4 ensure that the Authorised Users use the Platform and the Platform Content in accordance with this Agreement and any other reasonable instructions given by the Supplier to the Client, and shall be responsible for any Authorised User’s breach;
20.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for its Use of the Subscription Services;
20.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
20.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links, and all problems, conditions, delays, delivery failures and for all other loss or damage arising from or relating to the Client’s network connections or telecommunications links.
20.2 If the Client does not fulfil its obligations under or in connection with this Agreement, then the Supplier will have no liability arising out of or in connection with any Subscription Services which are prevented, hindered or delayed as a result, and the Client will promptly on demand reimburse the Supplier for any Losses which the Supplier suffers or incurs as a result.

21 CLIENT’S OTHER OBLIGATIONS IN USING THE SUBSCRIPTION SERVICES
21.1 The Client will procure that each Authorised User’s access credentials for the Platform are kept secret, and shall treat such credentials as the Confidential Information of the Supplier.
21.2 The Client shall not access, store, distribute or transmit any Malware during the course of its use of the Platform.
21.3 The Client shall ensure that each Authorised User complies with the terms of the Platform’s acceptable use policy.
21.4 The Supplier reserves the right, without liability or prejudice to its other rights, to immediately suspend or terminate the Client’s and/or any or all of the Authorised Users’ right to Use and receive the Subscription Services if the Client breaches the provisions of this clause ‎‎21.

22 ARTIFICIAL INTELLIGENCE
22.1 The Subscription Services may include certain AI Features. This clause ‎‎22 applies where and to the extent that is the case.
22.2 The Client acknowledges that the technologies underlying the AI Features rely on patterns and statistical correlations, and that the Supplier does not and cannot guarantee that any information contained in AI Output is accurate, complete or up-to-date. Consequently, it is the Client’s responsibility to examine and verify AI Output for itself, and the Supplier shall have no liability whatsoever arising out of or in connection with any reliance placed on AI Output.
22.3 The Supplier does not assert any proprietary right in any AI Output. To the extent any proprietary rights may subsist in any AI Output, then as between the Supplier and the Client, those rights vest in the Client and, if and to the extent they may vest in the Supplier by operation of law, the Supplier hereby assigns them to the Client absolutely. The Client nonetheless acknowledges that the AI Features may produce similar or even identical AI Output for multiple clients, and the Client does not gain any rights in AI Output produced for other clients.
22.4 In addition to its obligations in clause ‎19 (Acceptable Use of the Subscription Services), which also apply to AI Features, the Client shall not and shall not attempt to (and shall procure that no Authorised Client Entity or Authorised User shall or shall attempt to) use AI Features: (i) as the final decision maker for any decision which has legal or similarly significant effects on any natural person or which risks harm to the health, safety or fundamental rights of any natural person; (ii) in any way that is prohibited by applicable law, including for any prohibited practice under Regulation (EU) 2024/1689 (the “AI Act”), where applicable; (iii) to categorise or discriminate against any natural person on the basis of any actual or inferred characteristic which is protected by law from such categorisation or discrimination; (iv) for processing any personal data in breach of Applicable Data Protection Laws; or (v) in breach of any additional terms of use which may be applicable to such AI Features.
22.5 As between the Supplier and the Client, the Client is solely responsible for all required disclosures to natural persons affected by use of AI Features. Where and to the extent the AI Act applies, the Supplier shall take appropriate and necessary measures to ensure that its Personnel involved in the provision of AI Features, and the Client shall take appropriate and necessary measures to ensure that its Authorised Users involved in the Use of AI Features, each have a sufficient level of “AI literacy” as required by the AI Act.
22.6 Certain AI Features may use models or AI services provided by certain third parties (“Third Party Model Providers”). The Supplier instructs each Third Party Model Provider to discard Client Data after processing and not to use it for other purposes, according to the facilities and functions provided by the Third Party Model Provider for that purpose. However, the Supplier does not control the Third Party Model Providers and shall not be liable for the acts or omissions of any Third Party Model Provider contrary to such instructions.

23 INTELLECTUAL PROPERTY RIGHTS
23.1 The Client acknowledges and agrees that, as between the Supplier and the Client, the Supplier and/or its licensors own all Intellectual Property Rights in the Platform and the Platform Content. Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Platform or the Platform Content.
23.2 The Client grants the Supplier a non-exclusive, royalty-free licence for the Subscription Term to use the Client’s name and/or logo in applying the Client’s branding to the Subscription Services.

PART C – CLIENT DATA
24 APPLICATION OF PART C
24.1 This Part C applies where and to the extent the Client provides or makes available Client Data in connection with the Services.

25 AGGREGATION
25.1 It is essential to the Supplier’s ability to provide certain elements of the Services that it maintains current market performance data and intelligence. Therefore, notwithstanding any other provision of this Agreement, the Client grants to the Supplier the right to retain Client Data provided or made available to it under this Agreement, and to combine Client Data with other data to form one or more data sets which the Supplier may then make use of in providing its Services both to the Client and to other clients, including in the creation of Platform Content and in making improvements to its Services (the “Aggregation Right”).
25.2 In exercising the Aggregation Right, the Supplier will ensure that:
25.2.1 the raw Client Data itself will not be disclosed to other clients; and
25.2.2 other clients will not be able to interrogate the data sets containing Client Data in a manner which names the Client or discloses the Client’s individual performance.

26 SECURITY
26.1 The Supplier will use appropriate technical and organisational measures to secure the Client Data from unauthorised access or disclosure, the Client nonetheless acknowledging and agreeing that:
26.1.1 the Supplier’s security measures may not be impregnable;
26.1.2 the Supplier is not a provider of services for use as a long-term repository of confidential or sensitive materials; and
26.1.3 the Supplier therefore limits its liability in respect of unauthorised access to or disclosure of Client Data accordingly, in the manner set out in clause ‎‎33 (Liability).
26.2 The Supplier may, in the course of its own internal processes, incidentally take backups of the Client Data, the Client nonetheless acknowledging and agreeing that:
26.2.1 the Supplier is not a provider of backup or disaster recovery services;
26.2.2 the Services are not held out as being suitable to hold the only copy of any Client Data; and
26.2.3 the Supplier therefore excludes any liability for destruction of or damage to Client Data accordingly, in the manner set out in clause ‎‎‎33 (Liability).

27 AI TRAINING
27.1 The Supplier will not use Client Data to train, test or develop AI Features, except where the Scope of Work provides that the Supplier will use Client Data to train, test or develop AI Features specifically for the Client, and which will not be provided to any other person.

PART D – PAYMENT AND LEGAL TERMS
28 FEES, COSTS AND PAYMENT
28.1 The Client shall pay the Fees in the amounts, at the times, and subject to any conditions, set out in the Order.
28.2 The Client shall pay the Supplier’s invoices for Fees, Third Party Costs and/or Expenses without deduction or set-off within thirty (30) days of the date of the invoice (or such other period as the Order may specify), in the currency specified in the Order (or if no such currency is specified, in pounds sterling).
28.3 Unless the Order specifies otherwise, all Fees are exclusive of value-added tax or other applicable sales taxes. The Supplier will add the applicable tax to its invoices at the applicable rate, and the Client shall pay it together with the Fees to which it relates.
28.4 If the Client has not paid any amount by its due date for payment, the Supplier may (without prejudice to its other rights and remedies) do one or more of the following:
28.4.1 without liability to the Client, suspend provision of some or all of the Services, including disabling access to Subscription Services, until such time as all such overdue amounts are paid in full; and
28.4.2 charge late payment interest on the overdue amount at the rate of eight per cent. (8%) above the then-current base lending rate of HSBC, commencing on the due date and accruing daily thereafter until the overdue amount is paid in full (whether before or after judgment).
28.5 If the Client wishes to dispute an invoice it must notify the Supplier within ten (10) days of the invoice date and must nonetheless pay any undisputed portion of the invoice. The notice must: (i) clearly identify the invoice number and date; (ii) specify which line items are disputed; (iii) provide reasonable details as to why they are disputed by reference to the provisions of this Agreement; and (iv) include all supporting documentation reasonably necessary to substantiate the dispute. Late notification of disputes or disputes which do not comply with this clause ‎28.5 will be of no effect. If a disputed amount is subsequently shown to be payable, the Client will pay such amount within five (5) Business Days of such determination, together with accrued late payment interest (calculated from the original due date).

29 CONFIDENTIALITY AND PUBLICITY
29.1 The Receiving Party will keep the Disclosing Party’s Confidential Information confidential and, except with the prior written consent of the Disclosing Party, will not use or exploit the Confidential Information in any way except for the purpose of exercising its rights and performing its obligations under this Agreement, and will not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement.
29.2 The Receiving Party may disclose the Disclosing Party’s Confidential Information to those of its officers, employees, agents and professional advisers who need to know it in connection with this Agreement, provided that it informs each such person of the confidential nature of the Confidential Information before disclosure, and it procures that each such person will comply with this clause ‎‎29 as if it were the Receiving Party.
29.3 The Receiving Party may disclose Confidential Information:
29.3.1 to the extent such Confidential Information is required to be disclosed by law, by the rules of a relevant securities exchange, a relevant regulator or any governmental authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of that disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause ‎‎29.3.1, it takes into account the reasonable requests of the Disclosing Party in relation to the content of that disclosure; and
29.3.2 in the course of a due diligence process in furtherance of a merger, sale, acquisition or similar business transaction, to interested parties subject to obligations of confidentiality with respect to the Confidential Information which are no less onerous than those set out in this clause ‎29.
29.4 Notwithstanding this clause ‎‎29, the Supplier may make reference to the Client and the Services performed for it for the purpose of promoting its services, including using the Client’s name and logo on its and its Affiliates’ websites, and in credentials pitches, showreels and similar artefacts.
29.5 Nothing in this Agreement shall prevent the Supplier from using, and the Client agrees that the Supplier may use, any general intelligence or know-how gained in the course of performing the Services.

30 NO EXCLUSIVITY
30.1 Nothing in this Agreement creates any obligation of exclusivity on either party.

31 DATA PROTECTION
31.1 Words and phrases which have defined meanings in the GDPR have the same meanings when used in this clause ‎‎31.
31.2 Each of the Client and the Supplier will comply with Applicable Data Protection Laws in connection with the provision and receipt of the Services (as applicable).
31.3 Where the Client and the Supplier both process personal data as controllers (as will generally be the case in respect of Professional Services, unless the Scope of Work provides otherwise):
31.3.1 the party collecting the personal data from the data subject will be responsible for making the required information available to the data subject, for establishing a legal basis for processing that personal data, and (where applicable) for obtaining relevant consents under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended); and
31.3.2 each party will be responsible for responding to requests from data subjects to exercise their rights in respect of personal data in that party’s possession or control, and each party will cooperate with the other party in relation to such requests.
31.4 Where the Supplier processes personal data as processor on behalf of the Client as controller (as will generally be the case in respect of Subscription Services):
31.4.1 the Supplier will:
(a) process that personal data only on the documented instructions of the Client, unless the Supplier is otherwise required by applicable laws to process that personal data. Where the Supplier is relying on applicable laws as the basis for processing that personal data, the Supplier will notify the Client of that processing before performing it unless those applicable laws prohibit such notification on important grounds of public interest. The Supplier shall inform the Client if, in the opinion of the Supplier, the instructions of the Client infringe Applicable Data Protection Laws (but the Client acknowledges that the Supplier is not a law firm and that the giving or not of such opinion is not advice to be relied upon);
(b) implement technical and organisational measures to protect against unauthorised or unlawful processing of that personal data in accordance with clause ‎26 (Security);
(c) ensure that any Personnel engaged and authorised by the Supplier to process that personal data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving such personal data;
(f) at the written direction of the Client, delete or return that personal data and copies thereof to the Client on termination of this Agreement unless the Supplier is required by applicable law to continue to process that personal data. For the purposes of this clause, such personal data shall be considered deleted where it is put beyond further use by the Supplier; and
(g) maintain records to demonstrate its compliance with this clause ‎‎31.4;
31.4.2 the Client hereby provides its prior, general authorisation for the Supplier to appoint sub-processors to process that personal data, provided that the Supplier:
(a) ensures that the terms on which it appoints such sub-processors comply with Applicable Data Protection Laws, and in particular meet the requirements of article 28 of the GDPR;
(b) subject to clauses ‎22.6 and ‎‎33.4, shall remain responsible for the acts and omission of any such sub-processor as if they were the acts and omissions of the Supplier; and
(c) shall inform the Client of any intended changes concerning the addition or replacement of the sub-processors, thereby giving the Client the opportunity to object to such changes. If the Client objects to the changes on reasonable grounds based on Applicable Data Protection Law and the Client and the Supplier cannot agree a suitable resolution, then either the Supplier will not use the additional or replacement sub-processor objected to for the Client, or the Client may terminate this Agreement by notice; and
31.4.3 the Client authorises the Supplier to transfer the personal data outside of the United Kingdom as required for the provision of the Services, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).

32 INDEMNIFICATION
32.1 The Indemnifying Party shall indemnify each Indemnified Person against all Losses incurred by them as a result of an Indemnified Claim, except for Losses arising from an Indemnification Exception.
32.2 As a condition of indemnification under this clause ‎32, each Indemnified Person shall (and where an Indemnified Person is not party to this Agreement, the Indemnified Person which is party shall procure that such Indemnified Person shall):
32.2.1 promptly notify the Indemnifying Party of such Indemnified Claim (and in any event within an amount of time sufficient to permit the Indemnifying Party to take appropriate action within any applicable time limits);
32.2.2 make no admission of liability, and take no other action to admit, settle or otherwise dispose of such Indemnified Claim without the Indemnifying Party’s prior written consent;
32.2.3 grant to the Indemnifying Party sole control of the defence of such Indemnified Claim and all negotiations for its settlement or compromise (including free choice of counsel, other professional advisers and experts); and
32.2.4 provide (at the Indemnifying Party’s expense) all reasonable assistance in relation to the Indemnified Claim as may from time to time be requested by the Indemnifying Party or its professional advisers.

33 LIABILITY
33.1 Nothing in this Agreement will limit or exclude the liability of either party for:
33.1.1 death or personal injury caused by its negligence;
33.1.2 fraud or fraudulent misrepresentation; or
33.1.3 any other matter for which it is unlawful to limit or exclude liability (as the case may be).
33.2 Subject to clause ‎‎33.1, the Supplier will have no liability arising under or in connection with this Agreement or the transactions and activities contemplated by it, whether in contract, tort (including negligence), breach of statutory duty or under any other cause of action or legal theory of liability whatsoever, for any:
33.2.1 errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client’s direction;
33.2.2 loss of profits or revenues, or account of its own profits;
33.2.3 loss of contracts or opportunities;
33.2.4 loss of anticipated savings;
33.2.5 increased costs or loss of management time;
33.2.6 damage to or destruction or corruption of Client Data;
33.2.7 damage to goodwill or reputation; or
33.2.8 indirect or consequential loss or damage.
33.3 Subject to clauses ‎‎33.1, ‎‎33.2 and ‎‎33.4, the Supplier’s maximum total liability arising under or in connection with this Agreement or the transactions and activities contemplated by it, whether in contract, tort (including negligence), breach of statutory duty or under any other cause of action or legal theory of liability whatsoever, will be limited:
33.3.1 in respect of its indemnification obligations, to a total of £1,000,000 (one million pounds sterling);
33.3.2 for its breach of any of clauses ‎‎26 (Security), ‎‎29 (Confidentiality and Publicity) and ‎31 (Data Protection), to a total aggregate amount equal to the greater of 3 (three) times the amount of the Fees paid or payable for the Services during the Contract Year in which the event (or last in the series of events) giving rise to such liability occurred; and
33.3.3 otherwise, to an amount equal to 1.5 (one point five) times the amount of the Fees paid or payable for the Services during the Contract Year in which the event (or last in the series of events) giving rise to liability occurred.
33.4 Notwithstanding anything else in this Agreement and to the maximum extent permitted by law, the Supplier’s liability for the act or omission of a Commodity Subcontractor or counterparty to a Third Party Contract shall in no event exceed the amount which the Supplier recovers from that Commodity Subcontractor or counterparty in respect of that act or omission, apportioned equally among the Supplier’s clients affected by it.
33.5 The Supplier’s commitments in respect of the Services are set out in this Agreement. Therefore, all conditions, warranties and other terms which would otherwise be implied into this Agreement, whether by law or by custom or otherwise, are excluded from this Agreement to the greatest extent permitted by law.

34 TERM AND TERMINATION
34.1 This Agreement has effect from the Effective Date and, unless terminated earlier in accordance with its terms, will remain in effect for the duration of the Term.
34.2 Either party may terminate this Agreement by notice to the other if:
34.2.1 the other party commits a material breach of this Agreement which, if capable of being remedied, is not remedied within thirty (30) days of notice to do so;
34.2.2 the other party passes a resolution for its winding up or a court makes an order for its winding up or dissolution (other than for the purpose of any bona fide amalgamation, merger or reconstruction);
34.2.3 an administration order is made in relation to the other party that has not been set aside within seven days after the order has been made, or if a receiver is appointed over, or an encumbrancer takes possession of or sells, any material part of the assets or undertaking of the other party;
34.2.4 the other party makes an arrangement or composition with its creditors generally or makes an application to a court for protection from its creditors generally;
34.2.5 the other party disposes of all its assets or a substantial part of its assets (other than for the purpose of any bona fide amalgamation, reconstruction or merger);
34.2.6 the other party commences or has commenced against it any insolvency, reorganisation, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceedings, and, if such case or proceeding is commenced against it, such case or proceeding is not dismissed within seven days thereafter;
34.2.7 the other party becomes insolvent or generally fails to pay or admits in writing its inability to pay, its debts as they become due; or
34.2.8 the other party is subject to any equivalent process or proceedings in any jurisdiction anywhere in the world.
34.3 The Supplier may terminate this Agreement by notice to the Client if any Fees, Third Party Costs or Expenses have not been paid by their due date for payment, the Supplier gives notice to the Client of the overdue amount, and the Client has not paid the overdue amount in full by the date falling fifteen (15) days after the date of such notice.
34.4 Where the Supplier becomes entitled to terminate this Agreement, it will also have the right to suspend the provision of the Services until such time as the fact or circumstance giving rise to its right to terminate has been remedied to the Supplier’s reasonable satisfaction, and the Supplier has been afforded a reasonable re-mobilisation period to resume Service provision.
34.5 On termination or expiry of this Agreement:
34.5.1 the Supplier will cease provision of the Services;
34.5.2 the Client will cease use of the Subscription Services;
34.5.3 the Client will pay to the Supplier all Fees, Third Party Costs and Expenses incurred up to the effective date of termination or expiry; and
34.5.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination, shall not be affected or prejudiced.
34.6 The following rights and obligations will survive termination or expiry of this Agreement:
34.6.1 the Client’s obligation to pay all Fees, Third Party Costs and Expenses incurred up to the effective date of termination or expiry of this Agreement;
34.6.2 clauses ‎25 (Aggregation), ‎‎29 (Confidentiality and Publicity), ‎‎32 (Indemnification), ‎‎33 (Liability); and
34.6.3 those other provisions of this Agreement required for the interpretation and application of the above.

35 NOTICES
35.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand, or shall be sent by pre-paid recorded delivery post or by courier service to the other party at its address set out in the Order, or such other address as may have been notified by that party for such purposes, or sent by email to the address specified in the Order. Where a notice of termination is to be served by email, it must be followed by notice delivered by another means permitted under this clause ‎‎35.1 or such notice by email will not be valid.
35.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by recorded delivery post or by courier service shall be deemed to have been received at the time of delivery recorded by the postal service or carrier (including if delivery is refused). A correctly addressed notice sent by email and which is not returned as undeliverable by the sender’s email system shall be deemed to have been received 4 hours after sending, unless it is sent outside of Business Hours, in which case it will be deemed to have been received at 9 am on the next Business Day.

36 FORCE MAJEURE
36.1 The Supplier shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or circumstances beyond its reasonable control (each, a “Force Majeure Event”), provided that the Supplier notifies the Client of such Force Majeure Event and its expected duration.

37 ANTI-BRIBERY AND ANTI-SLAVERY
37.1 Each party:
37.1.1 shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”);
37.1.2 shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;
37.1.3 shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;
37.1.4 shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement; and
37.1.5 shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under this Agreement which are at least equivalent to those set out in in this clause.
37.2 Each party shall comply, and procure that all its employees, contractors, agents and representatives comply, with Anti-Slavery Law, as relevant to the provision and receipt of the Services and the activities of the parties under this Agreement. Each party shall use reasonable endeavours on a continuing basis to ensure that Slavery is not taking place in its supply chains. For the purpose of this clause, “Anti-Slavery Law” means all applicable laws relating to the prevention, prohibition and/or outlawing of Slavery in the Territory or any other jurisdiction relevant to the performance of this Agreement, including the Modern Slavery Act 2015; and “Slavery” means all forms of modern slavery, human trafficking, forced labour, child labour, involuntary servitude and debt bondage.

38 GENERAL
38.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
38.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy.
38.3 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
38.4 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
38.5 This Agreement consists only of the Scope of Work and Orders, these Terms and any Supplier policies or additional terms referred to in them, and constitutes the whole Agreement between the parties. It supersedes any previous arrangement, understanding or agreement between the parties relating to the subject matter which it covers. In particular, any additional terms presented by the Client, including any terms associated with any purchase order, are expressly rejected by the Supplier and are of no effect.
38.6 Each of the parties acknowledges and agrees that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. Nothing in this clause ‎‎38.6 will limit or exclude either party’s liability for any fraudulent misrepresentation.
38.7 Subject to the provisions of clause ‎‎31 (Data Protection), the Supplier may subcontract the performance of the Services provided that it remains responsible for the acts and omissions of its subcontractors as if they were its own acts or omissions (and subject therefore to the limitations and exclusions of liability set out in this Agreement).
38.8 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
38.9 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
38.10 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
38.11 Except for the Indemnified Persons, who are intended to have the benefit of clause ‎‎32 (Indemnification) (subject to the limitations and exclusions of liability set out in this Agreement, which limitations are cumulative across all Indemnified Persons and not separate limitations for each Indemnified Person), a person who is not a party to this Agreement will have no right, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to enforce any term of it. The parties will not require the consent of any third party to amend this Agreement.
38.12 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 England and Wales.
38.13 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

PART E – DEFINED TERMS AND RULES OF INTERPRETATION
39 DEFINITIONS
39.1 In this Agreement:
“Affiliate” means, in respect of a party to this Agreement, any legal entity which controls, is controlled by, or is under common control with that party, where “control” has the meaning given to it in (or, in the case of a legal entity which is neither a body corporate nor a partnership, according to the principles set out in) s1124 of the Corporation Tax Act 2010;
“AI Act” has the meaning given to it in clause ‎‎22.4;
“AI Features” means certain features and functions of the Platform which use machine learning, predictive AI or generative AI technologies to generate AI Output;
“AI Output” means information and materials output by AI Features in response to Authorised User input;
“Applicable Data Protection Laws” means: (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
“Approval” means the Client’s approval given in accordance with clause ‎7 (Approvals), and “Approved” and other cognates shall be interpreted accordingly;
“Approved Deliverable” means a Deliverable which the Client has Approved;
“Authorised Client Entity” means, in respect of the Subscription Services, those Affiliates of the Client which are named as Authorised Client Entities in the Order;
“Authorised Users” means those officers, employees, agents and independent contractors of the Client and each other Authorised Client Entity who are authorised by the Client to use the Subscription Services and the Platform Content. Unless otherwise agreed in the Order, Authorised Users does not include the personnel of third party agencies or suppliers;
“Booking Order” has the meaning given to it in clause ‎‎4.4;
“Business Day” means a day other than a Saturday, a Sunday, or a day which is a public holiday in England;
“Business Hours” means the hours of 9am to 6pm London time on Business Days;
“Client” means the client identified in the Order;
“Client Data” means data provided or made available to the Supplier by or on behalf of the Client in connection with the Services, which may (depending on the Services) include data such as EPOS data, campaign evaluations and category data;
“Client Indemnified Claims” means all third party claims arising out of or in connection with:
(a) use of an Approved Deliverable in accordance with this Agreement which leads to an Indemnified Person infringing a third party’s Intellectual Property Rights, except by reason of the inclusion of or use in such Approved Deliverable of materials provided by or on behalf of the Client; and
(b) the Client’s (or its Affiliates’) Use of the Subscription Services and/or Platform Content in accordance this Agreement infringing a third party’s Intellectual Property Rights;
“Client Materials” means any documents, materials and information (in whatever form) provided by the Client in connection with the Services, including any Client Data and any Creative provided by or on behalf of the Client;
“Commodity Subcontractor” means direct or indirect subcontractors of the Supplier who: (i) are hyperscaler cloud providers, Third Party Model Providers, or who otherwise provide standardised services on non-negotiable standard terms; or (ii) provide services to the Supplier for multiple clients of the Supplier under the same contract or set of terms;
“Confidential Information” means any information disclosed by or on behalf of the Disclosing Party to the Receiving Party in connection with this Agreement that is marked confidential, that the Receiving Party knows or reasonably ought to know is confidential, or which is of its nature confidential;
“Consultancy Services” means consultancy services described in a Scope of Work or an Order;
“Contract Year” means a period of 12 months starting on the Effective Date or an anniversary of the Effective Date (as the case may be);
“Creative” has the meaning given to it in clause ‎‎6.1;
“Deliverable” means a document or other tangible artefact which the Supplier produces specifically for the Client as part of the Professional Services;
“Disclosing Party” means the party which (or whose Affiliate) discloses Confidential Information;
“Documentation” means any user documentation for the Subscription Service, as provided by the Supplier and as updated by the Supplier from time to time;
“Effective Date” means the effective date or start date specified in the Order, or if no such date is specified in the Order, the date of the last signature on the Order;
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679);
“Expenses” means out of pocket costs and expenses incurred by Personnel in connection with the performance of their roles and tasks for the Client;
“Fees” means the fees specified in the applicable Order;
“GDPR” means the UK GDPR and/or the EU GDPR, as applicable;
“Indemnification Exceptions” means Indemnified Claims arising from or which would not arise but for:
(a) an Indemnified Person’s wrongful or negligent act or omission;
(b) an Indemnified Person’s conduct in breach of this Agreement (or conduct which would be a breach of this Agreement were the Indemnified Person a party to it in place of the corresponding Indemnified Person which is party); or
(c) use in accordance with this Agreement of materials which were provided or procured by an Indemnified Person rather than by or on behalf of the Indemnifying Party; or
(d) any use of AI Features or AI Outputs;
“Indemnified Claims” means: (i) where the Indemnifying Party is the Supplier, the Client Indemnified Claims; and (ii) where the Indemnifying Party is the Client, the Supplier Indemnified Claims, as applicable;
“Indemnified Person” means: (i) where the Indemnifying Party is the Supplier, the Client and its Affiliates; and (ii) where the Indemnifying Party is the Client, the Supplier and its Affiliates, as applicable;
“Indemnifying Party” means: (i) in respect of Client Indemnified Claims, the Supplier; and (ii) in respect of Supplier Indemnified Claims, the Client;
“Intellectual Property Rights” 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;
“Losses” means all liabilities, damages, losses, fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and professional costs and expenses);
“Malware” means a computer program (in any form) or a device, which is designed to cause, or is deployed for the purpose of causing, or actually has the effect of causing, damage or mischief to any computer or its owner or operator or any third party, or to suborn or bypass its security, or to retard or degrade its performance, or to facilitate criminal acts or acts of industrial espionage, digital vandalism or “hacktivism”;
“Media Buying Services” means media buying services and associated services, as set out in a Scope of Work or an Order;
“Media Owner” means the owner or operator of media booked by the Supplier in the course of Professional Services;
“Personnel” means the personnel of the Supplier who are engaged in the performance of the Services;
“Platform” means the platform developed and/or operated by the Supplier (as applicable), and made available as part of the Subscription Service;
“Platform Content” means the content (other than Client Data) made available via the Platform;
“Professional Services” means Media Buying Services and/or Consultancy Services;
“Receiving Party” means the party which (or whose Affiliate) receives Confidential Information;
“Scope of Work” has the meaning given to it in clause ‎‎4.1;
“Services” means Professional Services and Subscription Services;
“Special Terms” means any special terms identified as such in the Order or Scope of Work;
“Subscription Services” means the subscription to the Platform provided by the Supplier to the Client, as specified in the Order or Scope of Work;
“Subscription Term” means the term of subscription for the Subscription Services as set out in the Order, or if no separate Subscription Term is specified in the Order, the Term;
“Supplier” means the Shopper Media Group entity identified in the Order;
“Supplier Indemnified Claims” means all third party claims arising out of or in connection with:
(a) the Supplier’s use (or that of its Affiliates or of a third party under a Third Party Contract) in accordance with this Agreement of Client Materials;
(b) the Client’s or its Affiliates’ or its or their Authorised Users’ Use of the Subscription Services and/or Platform Content in breach of this Agreement;
(c) a TUPE Claim; and
(d) the Client’s breach of clauses ‎‎7.7, ‎‎8.3 or ‎‎13.2;
“Support Services” means, in respect of the Subscription Services, the Supplier’s technical support services as specified in the Supplier’s support policy as amended and updated from time to time;
“Term” means the term of this Agreement, as set out in the applicable Order;
“Third Party Contracts” means contracts entered into by the Supplier with Media Owners and other third parties in the course of providing Professional Services;
“Third Party Costs” means third party costs incurred by the Supplier on the Client’s behalf in the course of performing Professional Services, including but not limited to: (i) all of the fees, charges, expenses and disbursements payable under Third Party Contracts (including cancellation charges, where incurred); (ii) third party production work required to produce Deliverables, including costs of illustrations, film production, artwork, photography, model fees, recordings, performers, animation, print and post production work; and (iii) costs incurred in taking legal and other advice or undertaking searches and enquiries;
“Third Party Materials” means those materials incorporated into the Deliverables which are commissioned or licensed from third parties;
“Third Party Model Provider” has the meaning given to it in clause ‎‎22.6;
“TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (as amended) and all other applicable laws in any applicable jurisdiction regulating the automatic transfer of employment on a service provision change;
“TUPE Claim” means any claim:
(a) by any persons who allege their employment transfers to the Supplier or its Affiliate for a reason related to the commencement of this Agreement by the operation of TUPE and whose employment is terminated by the Supplier or its Affiliate within the later of three months of the Effective Date and the Supplier being made aware that such an allegation is being made;
(b) by any person in respect of any fact or matter to the extent that such claim concerns or arises from employment before the Effective Date;
(c) by any person in respect of which the Supplier or its Affiliate incurs or is alleged to incur responsibility or liability as a result of the operation of TUPE applying to this Agreement or the transactions and activities contemplated by it (including its commencement, termination and expiry); and
(d) made against or liability otherwise incurred by the Supplier or its Affiliate arising from or connected with an alleged failure to comply with TUPE;
“UK GDPR” has the meaning given to it in the Data Protection Act 2018; and
“Use” means: (i) in respect of the Platform, only those acts of connecting to it, logging in to it, accessing it and interacting with it as are consistent with its ordinary intended usage as described in the Documentation; and (ii) in respect of the Platform Content, only the acts of downloading it, creating a reasonable number of copies of it, combining reasonable extracts from it with other material to create combined works, and distributing those copies and/or combined works within the internal organisation of the Client and/or a relevant Authorised Client Entity, and in each and all cases solely for the internal business purposes of the Client and/or the Authorised Client Entities.

40 INTERPRETATION
40.1 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) any Special Terms (if applicable); and then (ii) these Terms; and then (iii) the Scope of Work; and then (iv) any other Orders; and then (v) any other document included with or incorporated by reference into the Scope of Work or an Order.
40.2 Clause headings will not affect the interpretation of this Agreement.
40.3 A requirement in this Agreement that a communication be written or in writing includes email, but does not include facsimile.
40.4 Wherever the words other, in particular, include, including or for example are used in this Agreement, they are to be construed without limitation.
40.5 A reference to a law or a treaty is a reference to it as it is in force at the relevant time, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation then in force under it.