Terms and Conditions of Service
1.1. These terms and conditions of service apply to the services (as described in the insertion order agreed by Memob and its Client (the “Services” and the “Insertion Order”, respectively)) which MEmob Plus FZ-LLC, a free zone limited liability company organized and registered under the laws of Dubai Media City, having license number 40043 with its main registered address at Office 206, 2nd Floor, Zee Building, Dubai Media City, P.O. Box 72184, Dubai, United Arab Emirates or such other MEmob entity as is referred to in the Insertion Order (“MEmob”) shall provide to its client (as described in the Insertion Order (the “Client”)). MEmob and the Client shall each be referred to as a “Party” and together the “Parties”.
1.2. The terms of the Insertion Order and these Conditions will together form the contract for the provision of the Services between MEmob and the Client (the “Agreement”). By signing the Insertion Order, the Client confirms that it has read and accepted these terms and conditions.
2. MEmob’s responsibilities
2.1. MEmob shall use its reasonable endeavours to provide the Services in accordance with the terms and conditions set out in the Agreement and with reasonable skill and care.
2.2. MEmob shall use its reasonable endeavours to meet any performance dates specified in the Insertion Order but any such dates shall be estimates only and time for performance by MEmob shall not be of the essence of this Agreement.
2.3. If MEmob’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, MEmob shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
2.4. MEmob may appoint sub-contractors to perform all or part of the Services but shall remain responsible to the Client for the performance of such Services.
3. Client’s responsibilities
3.1. The Client shall: (a) co-operate with MEmob in all matters relating to the Services; (b) provide to MEmob in a timely manner all advertising materials, logos, pictures, texts, music, sound, videos, banners, landing pages, artwork, copy or active URLs, creatives and all other content, co-operation, documents, information, items and materials in any form required in respect of the campaign or other matter described in the Insertion Order and ensure that they are accurate and complete in all material respects and do not breach the rights of any third parties; and (c) comply with any additional responsibilities of the Client as set out in the Insertion Order.
3.2. MEmob shall have the right to reject or remove, at its sole discretion, any advertising materials or other content from a campaign, at any time, with prior written notice of the same to the Client, if reasonably deemed inappropriate and objectionable as per the standards of the Internet Advertising Bureau, applicable law or applicable public morals.
3.3. The Client warrants that to the best of its knowledge and belief all information and material provided to MEmob is accurate and complete and that the Client is entitled to provide such information and any materials for use by MEmob without recourse to any third party and such information and material do not and will not: (a) violate any third party’s patent, copyright, trade secret or other intellectual property rights; (b) contain material that is defamatory, slanderous, libelous, or obscene, portray any person in a false light, constitute an invasion of any right to privacy or an infringement of any right to publicity, or otherwise violate any rights of any third party; or (c) violate any applicable foreign, federal, state or local statutes, laws or regulations.
3.4. The Client undertakes to notify MEmob forthwith if the Client considers that any document or information submitted by MEmob to the Client for approval is incorrect or misleading in any way or is likely to give rise to any claim or action.
4. Fees and expenses
4.1. In consideration for the provision of the Services by MEmob to the Client pursuant to the Insertion Order, the Client shall pay to MEmob the Fees as set out in the Insertion Order.
4.2. An amount equal to half of such Fees shall become due and payable by the Client to MEmob on the signing of the Insertion Order and the remaining amount shall be payable by the Client to MEmob in the amounts and on the dates set out in the Insertion Order.
4.3. MEmob shall issue an invoice in respect of each payment of the Fees due from the Client to MEmob. Such invoice shall include details about Services rendered and the total value which shall be calculated at the rate specified in the Insertion Order.
4.4. The Client shall pay MEmob the Fees within a period of 30 days after receipt of any invoice to a bank account nominated in writing by MEmob from time to time.
4.5. Without prejudice to any other right or remedy that it may have, if the Client fails to pay MEmob any sum due under this Agreement on the due date:
(a) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 4.5(a) will accrue each day at 4% a year; and
(b) MEmob may suspend part or all of the Services it is obliged to provide under the Insertion Order until payment has been made in full.
4.6. All sums payable to MEmob under this Agreement:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding.
4.7. Unless otherwise stated in the Insertion Order, the agreed Fees shall be exclusive of any and all expenses incurred by MEmob, and MEmob is entitled to claim any additional expenses from the Client unless otherwise agreed in the Insertion Order.
5. Intellectual property
5.1. In relation to any reports, media campaigns and other work product produced and/or delivered or otherwise made available by MEmob to the Client under the Insertion Order (“Work Product”), unless provided for otherwise in the Insertion Order, MEmob shall:
(a) retain ownership of all copyright and related rights, moral rights, rights in designs, software, database right, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights (“IPR”) in the Work Product (excluding any materials provided by the Client); and
(b) shall grant to the Client a non-exclusive, non-assignable, non-sublicensable license during the term of this Agreement to copy and modify the Work Product for the purpose of receiving and using the Services and the Work Product in its business.
5.2. In respect of any Work Product which an Insertion Order provides belongs to the Client, MEmob shall assign to the Client all title, rights and ownership in the copyright and rights to confidentiality in such Work Product upon the payment of the relevant Fees as set out in the Insertion Order.
5.3. The Client shall grant to MEmob a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify all advertising materials, logos, pictures, texts, music, sound, videos, banners, landing pages, artwork, copy or active URLs, creatives and all other documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Insertion Order for the term of this Agreement for the purpose of providing the Services to the Client and warrants that the use of any such materials by MEmob shall not infringe the rights, including any IPR, of any third party. Any such modifications by MEmob to such material provided by the Client shall be submitted by MEmob to the Client for its approval prior to any publication of the same such approval not to be unreasonably withheld or delayed.
5.4. The Client shall grant to MEmob the right to use the Client’s name and logo in marketing materials or for general marketing purposes unless agreed otherwise by the Parties in writing. MEmob’s use of the Client’s name and logo does not create any ownership right therein.
5.5. Notwithstanding such terms in the Insertion Order in relation to Work Product pursuant to clause 5.1, the Client acknowledges that MEmob owns, has developed, has acquired, or has obtained exclusive license rights to certain software, know-how, data and data bases, confidential information, intellectual property, and trade secrets, and all intellectual property rights therein which relate to its business including but not limited to the platforms and services provided by MEmob, whether prior to, after or independent of this Agreement that Service Provider deems proprietary (the “Service Provider Background Technology”) and that MEmob shall retain all rights and ownership in all MEmob Background Technology and the Client shall not acquire any title or other ownership rights to any such Service Provider Background Technology.
6. Data protection
6.1. Each Party shall comply with all the obligations imposed on a controller and/or processor as applicable under the data protection legislation of the territory in which Services are being provided (“Data Protection Legislation”), and any material breach of the Data Protection Legislation by the Client shall, if not remedied within 30 days of written notice from MEmob, give grounds to MEmob to terminate this Agreement with immediate effect.
6.2. The Client shall enter into an agreement required by Data Protection Legislation in relation to the transfer of and any processing of personal data in connection with this Agreement.
6.3. The Client shall indemnify MEmob against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by MEmob arising out of or in connection with the breach of the Data Protection Legislation by the Client, its employees or agents.
7.1. Each Party undertakes that it shall not at any time during this Agreement, and for a period of two years after termination or expiry of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, except as permitted by clause 7.2.
7.2. Each Party may disclose the other Party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party’s confidential information comply with this clause 7; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3. No Party shall use the other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
8. Non-circumvention and non-solicitation
8.1. During the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Client shall not, either directly or indirectly, for itself or on behalf of any other person:
(a) solicit for employment or otherwise induce, influence or encourage to terminate employment with MEmob, or employ or engage as an independent contractor, any current or former employee of MEmob; or
(b) circumvent MEmob or any of its representatives by procuring Services from any of MEmob’s suppliers, vendors, distributors, dealers, sales agents, brokers, licensors or licensees whom MEmob has utilized for the purpose of this agreement and in respect of which the Client is aware that such third parties have been used by MEmob.
8.2. The Client acknowledges and agrees that a breach or threatened breach of any of its obligations under this clause 8 would give rise to irreparable harm to MEmob for which monetary damages would not be an adequate remedy and in the event of a breach or a threatened breach by the Client of any such obligations, MEmob shall, in addition to any and all other rights and remedies that may be available to MEmob at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. The Client agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this clause 8.2.
The Client agrees to defend and hold harmless MEmob, its agents, partners, officers, directors and employees, related corporate bodies, affiliates, publishers and list providers (“Indemnified Parties”) from and against all actions, proceedings, claims and demands; and pay the Indemnified Parties on demand for any loss, cost, liability or damage (including legal costs on a full indemnity basis) howsoever suffered or incurred, arising (directly or indirectly) out of, as a consequence of or in connection with (i) a third party claim arising from the Client’s activities under this Agreement; (ii) the publication, display or distribution of the advertising or other materials provided by the Client to MEmob; (iii) the Client’s willful, unlawful or negligent acts or omissions; (iv) the Client’s infringement of the intellectual property rights (including, but not limited to, copyright and moral rights) of the Indemnified Parties or a third party.
10. Limitation of liability
10.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND OTHER THAN AS SET OUT IN THIS AGREEMENT, MEMOB DISCLAIMS AND EXCLUDES ALL CONDITIONS, REPRESENTATIONS, WARRANTIES, RIGHTS OR REMEDIES, LIABILITIES AND OTHER TERMS IMPLIED BY STATUTE, CUSTOM OR COMMON LAW (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE).
10.2. Nothing in this Agreement shall be deemed to limit or exclude either Party’s liability: (i) in respect of death or personal injury resulting from its negligence; (ii) in respect of fraud or fraudulent misrepresentation; or (iii) otherwise to the extent that such limitation or exclusion is not permitted by law.
10.3. SUBJECT TO CLAUSE 10.1, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
10.4. UNDER NO CIRCUMSTANCES WILL MEMOB BE LIABLE TO THE CLIENT OR ANY THIRD PARTY (WHETHER IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY) IN RESPECT OF THE AGREEMENT FOR AN AMOUNT GREATER THAN THE AGGREGATE AMOUNTS PAID BY THE CLIENT TO MEMOB HEREUNDER IN THE 12 MONTHS PRIOR TO ANY SUCH LIABILITY.
11. Term and termination
11.1. This Agreement shall come into force and effect on the date of the last signature on behalf of a Party to the Insertion Order and, subject to earlier termination in accordance with clause 11.2, this Agreement will continue and have validity for the period of the Services set out in the Insertion Order.
11.2. Notwithstanding clause 11.1, each Party shall be entitled to terminate this Agreement immediately upon written notice to the other Party in the event of:
(a) a material breach by the other Party of its obligations under this Agreement which if capable of remedy is not remedied by the Party in breach within 15 days of written notice to remedy such breach provided by the Party which is not in breach; or
(b) the other Party has a receiver or administrative receiver appointed over the whole or any part of its undertaking, passes a resolution for winding up other than for amalgamation or reconstruction, is subject of an administration order or a winding up order, enters into a voluntary arrangement with its creditors, ceases or threatens to cease to carry on business or is unable to pay its debts as they fall due.
12. Effect of termination
12.1. On the termination or expiry of this Agreement:
(a) all Fees accrued but unpaid in respect of Services provided by MEmob to the Client prior to the date of such termination shall become immediately due and payable and the Client shall pay the same upon the issue of an invoice in respect of the same by MEmob to the Client;
(b) the Client shall promptly return to MEmob, or otherwise dispose of as MEmob may instruct, all materials, documents or papers of MEmob whatsoever sent to the Client and shall confirm the same in writing to MEmob other than any Work Product which belongs to the Client pursuant to clause 5.2; and
(c) the Client shall cease to use the logos, trade names, trademarks or brands of MEmob.
12.2. The termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
13. Force Majeure
Neither Party shall be liable for, or be considered to be in breach or default under this Agreement on account of any delay or failure to perform hereunder, excepting all obligations to make payments hereunder, as a result of any cause or condition beyond such Party’s reasonable control (“Force Majeure”), including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its commercially reasonable efforts to cure the delay. In light of Internet’s special nature, the Force Majeure shall also include the following circumstances that could affect the normal operation of the Internet: (i) hacker attack; (ii) any material influence as a result of the technical adjustment by relevant telecommunication department; (iii) temporary close-down due to governmental regulation; and (iv) computer viruses.
14.1. Any notice or other communication given to a Party under or in connection with this Agreement shall be in writing and shall be sent by email to an email address designated by the relevant Party in writing and shall be deemed to have been received at 9.00 am on the second Business Day (being any day other than a designated weekend or public holiday when banks in the place of the head office of the Party receiving the notice or communication are open for business) after transmission.
14.2. Clause 14.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15. Entire agreement
15.1 This Agreement constitutes the complete agreement between MEmob and the Client and supersedes all prior agreements, representations or warranties both oral and written. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.2 Any terms or conditions introduced by the Client either directly, indirectly by way of reference or otherwise are hereby explicitly rejected and shall not apply. The Parties agree that any additional or differing terms or conditions in any other document or arrangement not forming part of this Agreement, including but not limited to any letter or terms of engagement or the like, purchase order, invoice, acknowledgment, delivery receipt, confirmation or other delivery or acceptance document issued by or on behalf of the Client shall be void, and of no force or effect to the extent such are in breach of or contradiction with this Agreement.
16. Variation, assignment and survival
16.1. This Agreement may only be amended by a written document signed by both Parties.
16.2. Save as set out in clause 2.4, neither Party shall assign, sub-contract or transfer its rights or obligations under this Agreement, unless agreed upon in writing in advance by the other Party, such agreement not to be unreasonably withheld.
16.3. If any provision of this Agreement shall be held to be illegal, invalid, or unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to give effect to the intent of the Parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
16.4. No failure to exercise and no delay in exercising on the part of either Party hereto, any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege, preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. Any such waiver must be by affirmative consent and in writing.
17. Relationship of the Parties
Nothing contained in this Agreement shall be deemed or construed to place the Parties in the relationship of partners, joint ventures, principal-agents, or employer-employee, it being understood that the Parties hereto are and will remain independent contractors in all respects and neither Party shall have any right to obligate or bind the other in any manner whatsoever.
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19. Third Party Rights
No person other than a Party to this Agreement shall have any rights under this Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
20.1. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.
21. Governing law and jurisdiction
21.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed under the laws of England and Wales.
21.2. Each party irrevocably agrees that:
(a) in the event that the Client’s head office is located in Qatar, the courts of the Qatar Financial Centre 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);
(b) in the event that the Client’s head office is located in Saudi Arabia, any dispute, controversy or claim arising out of or relating to this agreement, or the breach, termination or invalidity thereof, shall be referred to and finally resolved by arbitration. The number of arbitrators shall be one. The place of arbitration proceedings shall be Saudi Centre for Commercial Arbitration in Riyadh. The language of the arbitration shall be English. The Arbitration shall be conducted under the Arbitration Rules of the Saudi Centre for Commercial Arbitration which are accordingly incorporated by reference into this arbitration clause; and
(c) in the event that the Client’s head office is located in the United Arab Emirates or anywhere else in the world (other than Qatar or Saudi Arabia), the courts of the Dubai International Financial Centre 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).