General Terms
One - Overview
1. 1 These General Terms and Conditions (“T&C” or “Terms”) apply to the media buying and planning, data, creative, search engine optimization and other advertising and marketing related services (the “Services”) to be provided by the agency named in the Booking Form (as defined) (“Agency”) to the Client, as detailed in the accepted quotation, purchase order, insertion order or other document (the “Booking Form”) to which these Terms relate (hereinafter, “Client” and “Agency” may collectively be referred to as “Parties” and each individually as a “Party).
1.2 These Terms and the Booking Form(s) together constitute the “Agreement” between the Parties under which Agency shall provide to Client the Services identified in the Booking Form, in the territory specified therein (the ”Territory”).
1.3 Each of the Services shall be subject to the applicable service specific terms for that particular service set out in the relevant Booking Form. If there is any inconsistency between these T&C, or any other Booking Form document, the latter shall prevail.
Two - Term
2.1 The Agreement shall apply from the date specified in the Booking Form (“Effective Date”) and, subject to earlier termination in accordance with this Agreement, shall continue in full force and effect for the term specified in the Booking Form (the “Initial Term”), and thereafter unless and until terminated by either Party giving the other not less than thirty (30) days written notice, such notice not to expire before the expiry of the Initial Term.
2.2 Where no Initial Term is specified in the Booking Form, either Party may terminate the Agreement by giving not less than thirty (30) days written notice to the other Party. Upon termination of the Agreement, the Client shall promptly reimburse Agency for any costs properly incurred by Agency in the course of performing the Services and to which Agency is committed at the time of termination.
2.3 Either Party may terminate this Agreement immediately upon written notice to the other Party:
(a) in the event of any material breach of this Agreement by the other Party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the Party not in default of a written notice on the other Party, specifying the nature of the breach and requiring that the same be remedied; or
(b) if the other Party shall cease carrying on business in the normal course, or shall call a meeting of its creditors or make a proposal for a voluntary arrangement or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts, or if a trustee, receiver, administrative receiver or other similar officer is appointed in respect of all or any part of its business or assets, or if a petition is presented or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or it is the subject of an administration order.
2.4 Notwithstanding any other provision of the Agreement, Agency may immediately suspend or terminate the Services if any of its suppliers (including without limitation media or online intermediaries) suspend or terminate the services being supplied to Agency, provided always that Agency will only suspend or terminate that part of the Services affected by the actions (or inaction) of any third-party supplier.
Three - Payment Terms
3.1 In consideration for the performance of the Services, Client shall pay Agency the fees detailed in the Booking Form (the “Fees”). The Fees shall be payable in the currency indicated in the Booking Form.
3.2 Client shall also pay to Agency any costs and expenses levied by third parties involved in the delivery of the Services (“Third Party Costs”).
3.3 Except as otherwise provided in the relevant Booking Form, Client shall pay all invoices no later than thirty (30) days from the day of issuance of an invoice by Agency. Client shall pay Agency all out-of-pocket expenses (including any media and production costs) prior to the date Agency must pay such expenses to the applicable third-Party vendor. Agency reserves the right to refuse to make commitments, or to cancel any commitments, made on behalf of Client if payment is not received in a timely manner.
3.4 Agency shall only accept payment from Client named in this Agreement or such other entity as expressly accepted by Agency. Any payments from any other entity will not be accepted and will be returned as soon as practicable.
Four - Approvals and Authority Amendments
4.1 After obtaining Client’s general approval of campaigns, Agency will submit to Client for specific approval estimates or quotations of the costs of the various items of advertising (whether in an insertion order, quotation, purchase order or otherwise)
4.2 The Client’s written approval (which shall include email) of such estimates and quotations will be Agency’s authority to make reservations and contracts for space, time and other facilities
4.3 Client may request in writing that Agency changes, rejects, cancels or stops all plans, schedules, insertion orders or workin-progress and Agency shall take reasonable steps to comply, provided that Agency can do so within Agency’s contractual obligations to suppliers, and provided further that Client shall be responsible for paying any cancellation charges the Agency is unable to avoid.
4.4 For this and any other applicable purpose of the Agreement, the rights and liabilities between Client and Agency shall correspond to those between Agency and the various media, intermediaries and suppliers under such conditions. In the event of any cancellations or amendment as aforesaid, the Client agrees to reimburse Agency for any charges or expenses which Agency has incurred or to which Agency is contractually committed.
Five - Warranties
5.1 Client warrants that:
(a) it will give Agency clear briefings and will make available to Agency all relevant information required for its performance of the Services. Client shall provide any data, documents or other materials to be supplied by the Client to Agency under the Agreement (“Client Materials”) promptly so that Agency is able to comply with its obligations under the Agreement;
(b) it has full power and authority to enter into the Agreement and that by doing so it will not be in breach of any obligation to a third Party;
(c) it shall in connection with this Agreement, and the Client Materials shall, comply with all applicable laws and any applicable codes of practice, and it shall take appropriate steps to verify such compliance;
(d) Client Materials will not infringe any third-party intellectual property right anywhere in the world;
(e) Client Materials will not be obscene or discriminatory and will not defame or breach the privacy rights of any third Party;
(f) Client Materials (including, without limitation, instructions in any insertion order or similar document) are accurate in all material respects;
(g) Client Materials will not contain any executable code, virus or malicious code;
(h) it shall comply with any third-Party policies applicable to the Services that Agency notifies to Client from time to time;
(i) it shall not set, place, read, write, access, delete or otherwise use any cookies or similar technology in connection with the Services;
5.2 Client hereby indemnifies and keeps Agency indemnified against all losses, claims, liabilities, damages, costs and expenses suffered by Agency as a result of any breach of the above warranties and undertakings.
5.3 Client agrees to inform Agency without delay if it considers that any claim or trade description in any Client Materials placed by Agency on behalf of the Client is false or misleading in any way.
5.4 Agency warrants that:
(a) ) the individual signing this Agreement (and each Booking Form) on behalf of Agency has (and shall have) the full authority to legally bind Agency; and (ii) it will perform the Services in a workmanlike manner and with reasonable skill and care
Six - Agency acting as principal
6.1 Save where the Parties agree otherwise, in purchasing all media and other services and materials purchased by Agency on behalf of Client in connection with these T&C, Agency will act as Client’s principal except where pursuant to applicable local market practices or under applicable local laws Agency is required to act as an agent for a disclosed principal. In the event that Agency is engaged to purchase media space or provide services as an agent for Client as disclosed principal, Agency shall use commercially reasonable efforts to buy such media space or other services and materials as an agent and on the basis of sequential liability where Agency will be held liable for payments to media owners and other vendors only to the extent it has been paid by Client for such purchases. In this case, Agency shall not incur liabilities, cost(s), or expense(s) nor otherwise purport to bind Client without Client's prior written approval.
6.2 In the event that Agency is unable, at any time or from time to time, to secure media time and/or space and/or products or services in accordance with an agreed upon buying authorization, media plan or other equivalent document, Agency shall use commercially reasonable efforts to secure, within the applicable campaign period or deadlines, alternative media time and/or space and/or products and services in accordance with the agreed-upon plan, revised as necessary with Client’s written consent.
6.3 Agency will use commercially reasonable efforts to guard against any failure by the media or third parties to adequately perform its obligations and commitments. However, Agency does not guarantee the performance by the media and/or third parties and, provided that there is no negligence on the part of the Agency, shall not be deemed to be in breach or be held otherwise responsible for any failure by the media and/or third parties to perform its obligations or meet its commitments. Likewise, Agency shall not be liable for any delay in performing or failure to perform the Services to the extent that such delay or non-performance is caused by a delay in Client giving any relevant approval.
6.4 Client is responsible for providing all advertising in a timely manner in the format required by the applicable media and shall be responsible to provide all materials necessary for media to legally clear such advertising. If the materials provided for Client are not acceptable to the media for any reason, Client shall be responsible, at Client’s sole cost and expense, to modify such materials to the media’s standards and requirements in a timely manner. Failure of Client to fulfill such obligations in a timely manner may mean its advertising will not air or run in the media purchased. In such event, Client shall nonetheless be responsible to pay for the cost of the media purchased.
6.5 Certain Services may be dependent upon the products and services of third parties, such as media companies, search engines, ad serving companies, email service providers, online service companies and other third parties not controlled by Agency. While Agency shall make commercially reasonable efforts to resolve any issues with any such third parties, provided that there is no negligence on the part of the Agency, Agency shall not, be liable for the acts or omissions of such third parties, including the failure of the products or services of such third parties to operate as intended.
Seven - Privacy and Confidentiality
7.1 Only to the extent necessary for the purpose of the Retained Services, the Parties shall process personal data in relation to the execution of these T&C in accordance with applicable data protection legislations and regulations, in particular in accordance with (i) Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation, “GDPR”) subject to the implementation of appropriate technical and organizational measures.
7.2 Both Parties hereby agree to treat any data, information and documents that may be exchanged between them in connection with the performance of these T&C as strictly confidential even after termination of these T&C.
7.3 Each Party (the “Receiving Party”) undertakes and agrees that it shall treat as confidential any information, in whatever format or support, documents, software, products, equipment, tests, evaluations, prototypes, samples, formulas, specifications, processes, know-how, software and hardware, technical descriptions, data, trade secrets, past, present and future research, developments, information about the Parties' businesses and/or activities, business information, business plans, strategies, methods and/or practices, as well as, in general, any information which is not in the public domain, including without limitation, employee data, product, service, marketing strategies and/or future business and/or customer plans, including lists of customers, accounts, costs, sales and any other customer or financial information relating to the business of the Parties and/or their affiliates which is obtained or disclosed to it by the other Party (the “Disclosing Party”) under these T&C (hereinafter, “Confidential Information”).
7.4 The Receiving Party agrees not to use the Confidential Information for purposes other than those related to these T&C, and not to disclose, deliver or supply the Confidential Information, in whole or in part, to any third party, except with the prior written approval of the Disclosing Party.
7.5 Upon termination of these T&C for any reason, the Receiving Party agrees to provide within thirty (30) days to the Disclosing Party and/or destroy, upon request, any Confidential Information in its possession or in the possession of its employees, and the Receiving Party shall not be entitled to retain any copy of such Confidential Information.
7.6 The Receiving Party agrees to:
a) ensure that only members of its personnel and its affiliates, third parties authorized by the Disclosing Party shall have access to the Confidential Information.
b) To inform both the Receiving Party’s personnel and any affiliates authorized for such access of the confidential nature of the Confidential Information and of their duties.
c) Not to disclose or exploit, in any way whatsoever, the Confidential Information provided by the Disclosing Party and the results or relationships derived from it in the performance of these T&C.
d) Not to make copies of any Confidential Information, unless it is essential for the performance of the Retained Services
7.7 The following information received by the Receiving Party shall be excluded from the duty of confidentiality provided in this clause:
(i) information known to the Receiving Party prior to its disclosure, provided that the Receiving Party can provide evidence of being in possession of such information;
(ii) information which is generally or publicly known;
(iii) information received by the Receiving Party from legitimate third-party owners of the information, without any obligation of confidentiality;
(v) information that has been independently developed by the Receiving Party without having used, in whole or in part, information of the other Party;
(v) information the disclosure of which to third parties has been approved or consented to in advance and in writing, generally and without restriction, by the Disclosing Party;
(vi) information that is required to be provided in support of a legal claim for non-payment of fees hereunder, where the Confidential Information forms an indivisible part of the document or documents provided for that purpose together with and solely for that purpose, and/or
(vii) information requested by an administrative or judicial authority, in which case the Party in receipt of such a request shall inform the other Party as promptly as possible provided it is legally entitled to do so.
Eight - Compliance
8.1 Each Party shall comply, in a reciprocal and transparent manner, with all applicable requirements of all national and international laws and regulations, in particular with regard to:
▪ respect for labour and human rights legislation, in particular the fundamental principles and rights established by the ILO (International Labour Organisation), especially with regard to respect for freedom of association and the recognition of the right to collective bargaining, the prohibition of forced labour, the abolition of child labour and the prohibition of discrimination at work
▪ Compliance with legislation related to safety and the environment (https://www.havas.com/havascontent/uploads/2024/02/havas-codeofethics-2017.pdf
https://www.havas.com/havascontent/uploads/2024/02/environmental-policy-havas-_2023.05.29.pdf;
https://www.havas.com/havas-content/uploads/2024/02/environmental-policy-havas-_2023.05.29.pdf;
▪ Fight against corruption (https://www.havas.com/havas-content/uploads/2024/02/anti-corruption-code-english.pdf
▪ fight against money laundering and the fighting of terrorist activities, and
▪ prevention of anti-competitive agreements.
8.2 The Parties agree to observe equivalent principles and to scrupulously respect the national and international rules in force, including those relating to the prevention, detection and fight against corruption, in particular the French law known as SAPIN II, the UK Bribery Act and the US Foreign Corrupt Practices Act, as well as any other anti corruption legislation in force. In particular, the Parties mutually agree to ensure that natural or legal persons acting on their behalf:
- do not commit, by act or omission, acts that could give rise to liability of any of the Parties for a breach of law;
- have not been subject to prosecutions or convictions for acts of corruption;
- have not been politically exposed persons for less than one year, as defined by the FATF-GAFI, with the exception of the list provided prior to the execution of these T&C; and
are not included on the list of sanctioned natural and legal persons (in particular the list of persons excluded from public contracts financed by development banks, as well as the list of persons subject to financial and international sanctions of the ministries of economy and finance).
8.3 Each Party shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it or by any employee (and also in the case of the Agency received by any sub contractor of the Agency, by any other member of the Agency Group or any of their sub-contractors) in connection with the performance of these T&C or the Services.
8.4 If a Party is found to have failed to comply with any of the obligations set forth in this clause, the other Party shall be entitled to treat the breach as a material breach of these T&C and thus to exercise any rights or remedies it may have under these T&C or by law.
Nine - Liability
9.1 The Client hereby represents and warrants that the contents, advertising pieces and any other materials provided to the Agency for the provision of the Retained Services:
(i) do not infringe the intellectual rights of third parties;
(ii) comply with any applicable legislation. The Client hereby agrees that the Agency shall not be held liable for the contents and/or the admissibility of any advertising material placed on behalf of the Client under advertising laws.
9.2 The Parties shall be liable to each other for any direct damages that either the Party may cause to the other Party or to third parties as a result of a breach of its obligations under these T&C. The maximum liability of either Party to the other Party or to third parties arising from any cause whatsoever shall be limited to the Fees actually received or paid for such Retained Services; provided, however, that nothing in these T&C shall limit the Parties’ liability in cases of willful misconduct (, gross negligence or in any other instances where liability may not by limited by law.
9.3 Neither party shall be liable to the other for any indirect, loss of profit, special or consequential damages of any kind whatsoever. agency shall have no liability for unauthorized access to, or alteration, theft or destruction of, the website or client’s data files, lost data, programs or information through accident, fraudulent means or devices. agency shall have no liability with respect to agency’s obligations under this sow or otherwise for consequential, exemplary, special, incidental or punitive damages even if agency has been advised of the possibility of such damages. in any event, the liability of agency to client for any reason and upon any cause of action shall be limited to the amount actually paid to agency by client under this sow during the twelve (12) months immediately preceding the date on which such claim accrued. save for the following sentence, this limitation applies to all causes of action in the aggregate, including, without limitation, to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. the limitation of liablity set out in this clause shall not apply to the indemnification provisions set forth above.
Ten - Ownership
10.1 Client acknowledges that any and all technologies, technical documentation, inventions, algorithms, architectures, navigation, 3D modeling files, game engines, search engines, databases, software, techniques, tools, software (object and source codes), programming, coding, research, systems, processes, analytics, processes, materials, and methods developed by or for Agency and any copyrights, patents, trade secrets, and other proprietary rights in or based thereon and all ideas, concepts, techniques and know-how discovered, created or developed by Agency during the performance of Retained Services that are developed in the ordinary course of its business (and not exclusively for Client pursuant to the Scope of Work) are owned by Agency and shall be Agency’s sole and exclusive property.
Eleven - Applicable Law and Jurisdiction
11.1 These T&C shall be governed, construed and enforced in accordance with the laws The Client’s domicile/registered office. The courts located in the Client’s domicile/registered office shall have exclusive jurisdiction to hear and determine any claims, disputes, actions, or suits, which may arise under these T&C.
Twelve - Agreement and Acceptance
12.1 - Upon execution of these T&C, the Parties agree to the roles and responsibilities outlined herein. If the Purchase Order is terminated prior to completion, Client will reimburse Agency for all services rendered to date. These T&C constitutes the entire understanding on this project, superseding any prior or contemporaneous agreements, or arrangements, whether oral or written. Any amendments must be in writing. Failure to enforce any of provisions of these T&C will not constitute a waiver.