These General Terms and Conditions (“GTC”) are incorporated by reference into each Insertion Order (“IO”) executed between any Allformance Group Entity listed in Schedule 1 (each, the “Agency”) and the counterparty identified in the IO (the “Client”). The specific Agency contracting under a given IO is the entity expressly identified in that IO and acts as principal in its own name and on its own behalf. The Allformance Group Entities listed in Schedule 1 are not jointly and severally liable for the obligations of any other Group Entity under any IO unless expressly agreed in writing. By executing an IO, the Parties agree that these GTC form an integral part of, and are binding under, the IO. Capitalized terms used but not defined in these GTC have the meanings given in the IO. These GTC apply in standard form to all Clients. The Agency reserves the right, at its sole discretion, to agree to bespoke variations with strategic clients by way of a side letter, in which case such variations apply only to the IO(s) explicitly referenced therein. The Agency may update these GTC for future IOs only by posting a revised version at https://allformance.com/gtc and specifying a future effective date; no other amendment, supplement or modification of these GTC shall be effective unless made in a formal revision publicly released by the Agency.
General Terms and Conditions
07.07.2026
1. INTERPRETATION
1.1. Definitions
“Affiliate” means, in relation to any entity, any other entity which directly or indirectly Controls, is Controlled by, or is under common Control with that first entity. “Control” for these purposes means the beneficial ownership of 50% or more of the issued share capital or the legal power to direct or cause the direction of the general management of the relevant entity.
“Allformance Group Entity” means any of the entities listed in Schedule 1, as such Schedule may be updated by the Agency from time to time by publication of an amended version of these GTC.
“Agreement” means the IO together with these GTC and any schedules or annexes referenced therein.
“Agency Products” mean any products to be delivered by the Agency as specified in the IO.
“Agency Services” mean any services to be delivered by the Agency as specified in the IO.
“Advance Support Services” have the meaning given to them in Section 6.3.
“Basic Support Services” have the meaning given to them in Section 6.1.
“Business Day” means a day other than a Saturday, Sunday or public holiday in the jurisdiction of the Agency and/or the Client when banks are open for business.
“Client Materials” mean all documents, information, items and materials in any form provided by the Client to the Agency, the Platform Owner and/or their Affiliates or Representatives.
“Confidential Information” has the meaning given in Section 11.
“Currency” means the lawful currency stated in the IO.
“Data Protection Legislation” means all applicable laws and regulatory requirements relating to the use of personal data and electronic communications privacy.
“Dispute” has the meaning given in Section 27.
“Effective Date” means the date of the IO stated in its heading.
“Fees” mean the fees for Agency Products and/or Agency Services as set out in the IO.
“Intellectual Property Rights” mean patents, rights to inventions, copyright and related rights, moral rights, trademarks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, software, databases, know-how, trade secrets and all similar rights.
“Insertion Order” or “IO” means an insertion order mutually agreed by the Parties.
“Platform” means the web-based system for digital advertising campaign planning, management and optimization.
“Platform Owner” means the owner(s) of the Platform as agreed with the Client.
“Platform Agreement” means the agreement(s) between the Platform Owner (Google Ireland Limited) and the GMP-Authorised Agency in relation to Platform access and services, as in force from time to time.
“GMP-Authorised Agency” means any Allformance Group Entity that holds, at the relevant time, a valid Google Marketing Platform Sales Partner agreement (or equivalent reseller authorisation) with the Platform Owner.
“Non-GMP Agency Services” means Agency Services that do not involve the resale, sublicense, provisioning or fulfilment of Google Marketing Platform Products or Platform Services, including without limitation independent advisory, analytics, creative, and implementation services performed by the Agency using its own resources.
“Platform Products/Services” means the platforms and services specified in the IO.
“Report” has the meaning given in Section 10.1.
“Representatives” mean employees, officers, agents, consultants and advisers.
“Sales Partner Services” means Google Marketing Platform Advertising Services.
“Sanctions” have the meaning set out in the IO or as applicable under law.
“Sanctioned Party” means any person, entity, government or country that is the subject or target of any Sanctions, including any person, entity, government or country designated on any Sanctions list maintained by the United Nations, the European Union, the United Kingdom, the United States (including the U.S. Department of the Treasury’s Office of Foreign Assets Control “OFAC”), or any other applicable jurisdiction.
“Third Parties” means any third parties engaged by the Client or acting on behalf of or under contract with the Client, in connection with the performance of the Client’s obligations under these GTC or a respective IO.
“Client Data” means any data, content and information (including personal data) provided by, or on behalf of, the Client to the Agency and/or the Platform Owner in connection with the Agency Services, Agency Products, Platform Products and/or Sales Partner Services.
1.2. Construction rules: singular includes plural and vice versa; references to a gender include all genders; references to writing include email.
“Affiliate” means, in relation to any entity, any other entity which directly or indirectly Controls, is Controlled by, or is under common Control with that first entity. “Control” for these purposes means the beneficial ownership of 50% or more of the issued share capital or the legal power to direct or cause the direction of the general management of the relevant entity.
“Allformance Group Entity” means any of the entities listed in Schedule 1, as such Schedule may be updated by the Agency from time to time by publication of an amended version of these GTC.
“Agreement” means the IO together with these GTC and any schedules or annexes referenced therein.
“Agency Products” mean any products to be delivered by the Agency as specified in the IO.
“Agency Services” mean any services to be delivered by the Agency as specified in the IO.
“Advance Support Services” have the meaning given to them in Section 6.3.
“Basic Support Services” have the meaning given to them in Section 6.1.
“Business Day” means a day other than a Saturday, Sunday or public holiday in the jurisdiction of the Agency and/or the Client when banks are open for business.
“Client Materials” mean all documents, information, items and materials in any form provided by the Client to the Agency, the Platform Owner and/or their Affiliates or Representatives.
“Confidential Information” has the meaning given in Section 11.
“Currency” means the lawful currency stated in the IO.
“Data Protection Legislation” means all applicable laws and regulatory requirements relating to the use of personal data and electronic communications privacy.
“Dispute” has the meaning given in Section 27.
“Effective Date” means the date of the IO stated in its heading.
“Fees” mean the fees for Agency Products and/or Agency Services as set out in the IO.
“Intellectual Property Rights” mean patents, rights to inventions, copyright and related rights, moral rights, trademarks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, software, databases, know-how, trade secrets and all similar rights.
“Insertion Order” or “IO” means an insertion order mutually agreed by the Parties.
“Platform” means the web-based system for digital advertising campaign planning, management and optimization.
“Platform Owner” means the owner(s) of the Platform as agreed with the Client.
“Platform Agreement” means the agreement(s) between the Platform Owner (Google Ireland Limited) and the GMP-Authorised Agency in relation to Platform access and services, as in force from time to time.
“GMP-Authorised Agency” means any Allformance Group Entity that holds, at the relevant time, a valid Google Marketing Platform Sales Partner agreement (or equivalent reseller authorisation) with the Platform Owner.
“Non-GMP Agency Services” means Agency Services that do not involve the resale, sublicense, provisioning or fulfilment of Google Marketing Platform Products or Platform Services, including without limitation independent advisory, analytics, creative, and implementation services performed by the Agency using its own resources.
“Platform Products/Services” means the platforms and services specified in the IO.
“Report” has the meaning given in Section 10.1.
“Representatives” mean employees, officers, agents, consultants and advisers.
“Sales Partner Services” means Google Marketing Platform Advertising Services.
“Sanctions” have the meaning set out in the IO or as applicable under law.
“Sanctioned Party” means any person, entity, government or country that is the subject or target of any Sanctions, including any person, entity, government or country designated on any Sanctions list maintained by the United Nations, the European Union, the United Kingdom, the United States (including the U.S. Department of the Treasury’s Office of Foreign Assets Control “OFAC”), or any other applicable jurisdiction.
“Third Parties” means any third parties engaged by the Client or acting on behalf of or under contract with the Client, in connection with the performance of the Client’s obligations under these GTC or a respective IO.
“Client Data” means any data, content and information (including personal data) provided by, or on behalf of, the Client to the Agency and/or the Platform Owner in connection with the Agency Services, Agency Products, Platform Products and/or Sales Partner Services.
1.2. Construction rules: singular includes plural and vice versa; references to a gender include all genders; references to writing include email.
2. SCOPE AND RELATIONSHIP WITH IO
2.1. The IO specifies the commercial terms for the provision of Agency Services and sale and delivery of Agency Products. These GTC govern all other legal terms and conditions applicable to the Parties’ relationship.
2.2. In case of conflict between the IO and these GTC, the IO prevails solely to the extent of the conflict. Otherwise, these GTC apply.
2.3. The Agency has the right to engage any subcontractors to fulfill its obligations under GTC, unless otherwise agreed by the Parties in a respective IO. The Agency shall be liable for all acts and omissions of its subcontractors.
2.4. The Agency may use the Client’s Intellectual Property Rights only for the purposes of GTC with the prior written consent of the Client for such use.
2.5. Each Party acknowledges that the place of supply, applicable VAT/GST/sales-tax regime and any withholding tax obligations are determined by the law of the jurisdiction of the Agency identified in the relevant IO. Applicable taxes shall be added to the Fee in accordance with the laws of the Agency’s jurisdiction and borne by the Client.
2.6. Where the Agency identified in the IO is Allformance-FZCO (UAE): If the IO states that Agency Services and/or Agency Products are deemed taxable and/or supplied within the United Arab Emirates under applicable VAT laws and regulations (including the UAE Federal Decree-Law on VAT and its Executive Regulations), VAT shall be charged by the Agency at the applicable rate in addition to, and separately from, the Agency Services and/or Agency Products and Fees, and shall be payable by the Client. Where the Agency Services and/or Agency Products are not subject to VAT in the United Arab Emirates, are supplied outside the scope of VAT, or qualify for a zero rate or exemption under applicable VAT laws and regulations, no VAT shall be charged.
2.7. Where the Agency identified in the IO is Allformance Company (Saudi Arabia): If the Agency Services and/or Agency Products are deemed taxable and/or supplied within the territory of the Kingdom of Saudi Arabia under applicable VAT laws and regulations (including the KSA VAT Law and its Implementing Regulations), VAT shall be charged by the Agency at the applicable rate in addition to, and separately from, the Fees, and shall be payable by the Client. Where the Agency is registered with ZATCA, it shall issue Tax Invoices compliant with the ZATCA Fatoora e-invoicing requirements, including all mandatory fields (Tax Registration Numbers (TRNs) of both Parties, QR code, itemised VAT amount). The Client shall provide its valid TRN upon execution of the relevant IO. Notwithstanding the foregoing, where the Client is not a resident of the Kingdom of Saudi Arabia and the Agency Services and/or Agency Products are deemed supplied outside the territory of the Kingdom of Saudi Arabia under applicable VAT laws, VAT shall not be charged by the Agency on such supply, provided the Client furnishes the Agency with sufficient evidence of its non-residency in the Kingdom of Saudi Arabia.
2.8. Where the Agency identified in the IO is PERFMATCH SPC (Oman): If the IO states that Agency Services and/or Agency Products are deemed taxable and/or supplied within the territory of the Sultanate of Oman under applicable VAT laws and regulations (including the Sultanate of Oman VAT Law and its Implementing Regulations), VAT shall be charged by the Agency at the applicable rate in addition to, and separately from, the Agency Services and/or Agency Products and Fees, and shall be payable by the Client. Where the Agency Services and/or Agency Products are not subject to VAT in the Sultanate of Oman, are supplied outside the scope of VAT, or qualify for a zero rate or exemption under applicable VAT laws and regulations, no VAT shall be charged.
2.9. Allocation of services across Allformance Group. Only a GMP-Authorised Agency may enter into an IO that includes the resale or provisioning of Platform Products or Sales Partner Services. Any IO entered into by an Allformance Group Entity that is not a GMP-Authorised Agency shall be limited to Non-GMP Agency Services. If a Client requires both Platform Products and Non-GMP Agency Services, the Client may, at its election, enter into (i) a single IO with a GMP-Authorised Agency covering both, or (ii) two parallel IOs — one with a GMP-Authorised Agency for Platform Products, and one with another Allformance Group Entity for the Non-GMP Agency Services. In case (ii), both IOs are independent and the obligations under each are owed solely by and to the Agency that signed it.
2.10. Other services. The Agency may also provide to the Client other digital advertising, marketing, technology or related services that do not constitute Platform Products or Sales Partner Services and are not connected with the Platform Owner, as may be agreed in the relevant IO; in such case the provisions of these GTC relating to the Platform Owner, the Platform Agreement and Sales Partner Services (including, without limitation, Section 8) shall not apply to such services.
2.2. In case of conflict between the IO and these GTC, the IO prevails solely to the extent of the conflict. Otherwise, these GTC apply.
2.3. The Agency has the right to engage any subcontractors to fulfill its obligations under GTC, unless otherwise agreed by the Parties in a respective IO. The Agency shall be liable for all acts and omissions of its subcontractors.
2.4. The Agency may use the Client’s Intellectual Property Rights only for the purposes of GTC with the prior written consent of the Client for such use.
2.5. Each Party acknowledges that the place of supply, applicable VAT/GST/sales-tax regime and any withholding tax obligations are determined by the law of the jurisdiction of the Agency identified in the relevant IO. Applicable taxes shall be added to the Fee in accordance with the laws of the Agency’s jurisdiction and borne by the Client.
2.6. Where the Agency identified in the IO is Allformance-FZCO (UAE): If the IO states that Agency Services and/or Agency Products are deemed taxable and/or supplied within the United Arab Emirates under applicable VAT laws and regulations (including the UAE Federal Decree-Law on VAT and its Executive Regulations), VAT shall be charged by the Agency at the applicable rate in addition to, and separately from, the Agency Services and/or Agency Products and Fees, and shall be payable by the Client. Where the Agency Services and/or Agency Products are not subject to VAT in the United Arab Emirates, are supplied outside the scope of VAT, or qualify for a zero rate or exemption under applicable VAT laws and regulations, no VAT shall be charged.
2.7. Where the Agency identified in the IO is Allformance Company (Saudi Arabia): If the Agency Services and/or Agency Products are deemed taxable and/or supplied within the territory of the Kingdom of Saudi Arabia under applicable VAT laws and regulations (including the KSA VAT Law and its Implementing Regulations), VAT shall be charged by the Agency at the applicable rate in addition to, and separately from, the Fees, and shall be payable by the Client. Where the Agency is registered with ZATCA, it shall issue Tax Invoices compliant with the ZATCA Fatoora e-invoicing requirements, including all mandatory fields (Tax Registration Numbers (TRNs) of both Parties, QR code, itemised VAT amount). The Client shall provide its valid TRN upon execution of the relevant IO. Notwithstanding the foregoing, where the Client is not a resident of the Kingdom of Saudi Arabia and the Agency Services and/or Agency Products are deemed supplied outside the territory of the Kingdom of Saudi Arabia under applicable VAT laws, VAT shall not be charged by the Agency on such supply, provided the Client furnishes the Agency with sufficient evidence of its non-residency in the Kingdom of Saudi Arabia.
2.8. Where the Agency identified in the IO is PERFMATCH SPC (Oman): If the IO states that Agency Services and/or Agency Products are deemed taxable and/or supplied within the territory of the Sultanate of Oman under applicable VAT laws and regulations (including the Sultanate of Oman VAT Law and its Implementing Regulations), VAT shall be charged by the Agency at the applicable rate in addition to, and separately from, the Agency Services and/or Agency Products and Fees, and shall be payable by the Client. Where the Agency Services and/or Agency Products are not subject to VAT in the Sultanate of Oman, are supplied outside the scope of VAT, or qualify for a zero rate or exemption under applicable VAT laws and regulations, no VAT shall be charged.
2.9. Allocation of services across Allformance Group. Only a GMP-Authorised Agency may enter into an IO that includes the resale or provisioning of Platform Products or Sales Partner Services. Any IO entered into by an Allformance Group Entity that is not a GMP-Authorised Agency shall be limited to Non-GMP Agency Services. If a Client requires both Platform Products and Non-GMP Agency Services, the Client may, at its election, enter into (i) a single IO with a GMP-Authorised Agency covering both, or (ii) two parallel IOs — one with a GMP-Authorised Agency for Platform Products, and one with another Allformance Group Entity for the Non-GMP Agency Services. In case (ii), both IOs are independent and the obligations under each are owed solely by and to the Agency that signed it.
2.10. Other services. The Agency may also provide to the Client other digital advertising, marketing, technology or related services that do not constitute Platform Products or Sales Partner Services and are not connected with the Platform Owner, as may be agreed in the relevant IO; in such case the provisions of these GTC relating to the Platform Owner, the Platform Agreement and Sales Partner Services (including, without limitation, Section 8) shall not apply to such services.
3. TERM AND RENEWAL
3.1. These GTC commence on the Effective Date stated in the IO and continue until the earlier of (i) expiry of the IO term; or (ii) termination of the IO in accordance with these GTC.
3.2. Unless the IO states otherwise, the term of each IO renews automatically for successive one-year periods unless either Party gives at least 30 (thirty) calendar days’ written notice of non-renewal prior to the end of the then-current term. These GTC remain in force for so long as at least one IO is in force between the Parties.
3.2. Unless the IO states otherwise, the term of each IO renews automatically for successive one-year periods unless either Party gives at least 30 (thirty) calendar days’ written notice of non-renewal prior to the end of the then-current term. These GTC remain in force for so long as at least one IO is in force between the Parties.
4. INSERTION ORDERS
4.1. The Parties may agree to one or more IOs under these GTC. Each IO becomes binding upon execution by both Parties.
4.2. The Client shall respond to draft IOs, approving, proposing modifications, or rejecting with reasons. Once executed, the IO is governed by these GTC.
4.2. The Client shall respond to draft IOs, approving, proposing modifications, or rejecting with reasons. Once executed, the IO is governed by these GTC.
5. STANDARD OF PERFORMANCE
5.1. The Agency shall and shall procure that each of its Representatives and subcontractors (if any) shall perform the Agency Services in a professional manner in accordance with general industry practice, using due skill, care and diligence; and the provisions of GTC and a respective IO. The Agency shall ensure that, at all times while GTC is in force, it holds all permits, licenses and authorisations necessary to provide the Agency Services and Products and to enable the Agency to comply with its other obligations under GTC. The Agency shall allocate sufficient Representatives of suitable experience and qualifications to perform the Agency Services and deliver the Agency Products.
5.2. The Client acknowledges and agrees that the Platform Products, Platform Services and any products and services of any third party may be unavailable from time to time due to technical reasons and in such cases the provision of the Agency Services and/or delivery of the Agency Products under GTC shall be automatically postponed for the same periods of time without any sanctions and/or remedies against or liability in relation to the Agency.
5.3. Except as expressly and specifically provided in GTC, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by the applicable law, excluded from GTC.
5.2. The Client acknowledges and agrees that the Platform Products, Platform Services and any products and services of any third party may be unavailable from time to time due to technical reasons and in such cases the provision of the Agency Services and/or delivery of the Agency Products under GTC shall be automatically postponed for the same periods of time without any sanctions and/or remedies against or liability in relation to the Agency.
5.3. Except as expressly and specifically provided in GTC, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by the applicable law, excluded from GTC.
6. SUPPORT SERVICES
6.1. The Agency shall provide ancillary support to the Client on Business Days to address any requests, authorisations and/or complaints from the Client in relation to the Agency, Agency Products, Agency Services, Platform Products and/or Platform Services (the “Basic Support Services”).
6.2. The Basic Support Services are provided at no additional cost to the Client.
6.3. The Agency may provide personalized training, implementation, and adoption programs and services at additional cost to the Client as may be agreed between the Parties in a respective IO (the “Advance Support Services”). For the avoidance of any doubt, the Agency shall have no obligation to provide any custom code development, API scripting, or contractual engineering services for the Client unless such services are part of the Advance Support Services and have been agreed by the Parties in a respective IO.
6.2. The Basic Support Services are provided at no additional cost to the Client.
6.3. The Agency may provide personalized training, implementation, and adoption programs and services at additional cost to the Client as may be agreed between the Parties in a respective IO (the “Advance Support Services”). For the avoidance of any doubt, the Agency shall have no obligation to provide any custom code development, API scripting, or contractual engineering services for the Client unless such services are part of the Advance Support Services and have been agreed by the Parties in a respective IO.
7. CLIENT COOPERATION
7.1. The Client shall provide the Agency with all reasonably necessary co-operation in all matters relating to the Agency Products and/or Agency Services; and
7.2. Unless a specific time frame for the Client’s response is specified in the IO, the Client shall respond reasonably promptly (but anyway within 3 (three) Business Days) to any request of the Agency for information under GTC. If the Client is reasonably unable to provide a response to the request within the specified period, the Client shall notify the Agency, and the Agency shall extend the deadline by 2 (two) Business Days.
7.2. Unless a specific time frame for the Client’s response is specified in the IO, the Client shall respond reasonably promptly (but anyway within 3 (three) Business Days) to any request of the Agency for information under GTC. If the Client is reasonably unable to provide a response to the request within the specified period, the Client shall notify the Agency, and the Agency shall extend the deadline by 2 (two) Business Days.
8. PLATFORM AGREEMENT AND GOOGLE TERMS (Applicable only to IOs entered into by a GMP-Authorised Agency)
8.1. Where the Agency identified in the relevant IO is a GMP-Authorised Agency and the IO covers Platform Products or Sales Partner Services, the Client acknowledges that such Platform Products and Sales Partner Services are subject to the Platform Agreement between the GMP-Authorised Agency and the Platform Owner, in particular the provisions set forth herein below, which form an integral and binding part of the relevant IO. For IOs entered into by an Agency that is not a GMP-Authorised Agency, this Section 8 does not apply.
8.2. The Client acknowledges and agrees to the requirements, conditions, restrictions, and obligations set forth herein below, as applicable to resale clients and/or end users. The Client agrees to comply with all such terms, including any privacy, legal, and compliance requirements, and confirms that no further disclosure of the underlying agreements between the Agency and Google is required for such compliance.
8.3. Before the provision or delivery of any Sales Partner Services to any entity, the Agency will enter into an Agreement with that entity. The Agency will enter into each such Agreement on its own behalf, acting as principal and not as agent for Google. The Agency acknowledges that Google is not a party to, and has no liability under, any such Agreement. In the event that Google receives a copy of any such Agreement, this will not be considered:
(a) acceptance of any such Agreement by Google;
(b) confirmation by Google that any such Agreement provides adequate protection; or
(c) a waiver by Google of any breach by the Client of the Agreement. The Agency will use reasonable endeavors to ensure that the term of each such Agreement is at least one year in length. For the avoidance of doubt, Google will only receive a copy of any such Agreement for the purposes of confirming that the relevant obligations have been included in such Agreement. Prior to providing any such Agreement to Google, the Agency shall redact any commercially sensitive information including pricing contained therein.
To the extent permitted by applicable law, with respect to each such Agreement that the Agency enters into:
(aa) there will be an assignment clause pursuant to which the Agency retains the right to assign any such Agreement to Google with Client’s consent;
(bb) there will be a clause that provides that if
(i) the Agency is unable to provide the Sales Partner Services at any time during the term thereof for any reason whatsoever, including, without limitation, an occurrence of bankruptcy or a discontinuation of Agency’s business; and
(ii) Google elects not to assume the terms of such Agreement, then such Client will enter into Google’s standard agreement(s) with respect to the applicable Google Marketing Platform Advertising Services for a period of no less than the balance of the term of such Agreement, the pricing terms for which will be negotiated in good faith at the time of such transition;
(cc) there will be clauses setting forth the same privacy, policy and legal compliance requirements set forth in the Terms, as if such Client were “Agency” thereunder, including a right to suspend and/or terminate Client’s use of all or any part of the applicable Sales Partner Services in the event of a failure to comply with those terms (including for Policy violations;
(dd) there will be a clause providing that, as between the Agency and the Client, the Client owns its Client Data and requires Agency to take all such actions reasonably necessary to ensure that the Client will own its Client Data (as defined below);
(ee) there will be a clause obliging the Client to contact the Agency directly for support, and not to communicate directly with Google for support; and
(ff) there will be clauses preserving and setting forth rights equivalent to the rights that Google has under following Agreement (Google Marketing Platform Order form – Advertising Services) between the relevant GMP-Authorised Agency and the Platform Owner, including without limitation rights to
(x) modify the Terms and Policies from time to time, and
(y) suspend and/or terminate Client’s use of all or any part of the applicable Sales Partner Services (e.g. for Policy violations); in each case as if such Client was “Agency” thereunder. The Agency will enforce each such Agreement with at least the same degree of diligence used by the Agency to enforce similar agreements for its own products and services, but in no event less than a reasonable degree of diligence.
8.2. The Client acknowledges and agrees to the requirements, conditions, restrictions, and obligations set forth herein below, as applicable to resale clients and/or end users. The Client agrees to comply with all such terms, including any privacy, legal, and compliance requirements, and confirms that no further disclosure of the underlying agreements between the Agency and Google is required for such compliance.
8.3. Before the provision or delivery of any Sales Partner Services to any entity, the Agency will enter into an Agreement with that entity. The Agency will enter into each such Agreement on its own behalf, acting as principal and not as agent for Google. The Agency acknowledges that Google is not a party to, and has no liability under, any such Agreement. In the event that Google receives a copy of any such Agreement, this will not be considered:
(a) acceptance of any such Agreement by Google;
(b) confirmation by Google that any such Agreement provides adequate protection; or
(c) a waiver by Google of any breach by the Client of the Agreement. The Agency will use reasonable endeavors to ensure that the term of each such Agreement is at least one year in length. For the avoidance of doubt, Google will only receive a copy of any such Agreement for the purposes of confirming that the relevant obligations have been included in such Agreement. Prior to providing any such Agreement to Google, the Agency shall redact any commercially sensitive information including pricing contained therein.
To the extent permitted by applicable law, with respect to each such Agreement that the Agency enters into:
(aa) there will be an assignment clause pursuant to which the Agency retains the right to assign any such Agreement to Google with Client’s consent;
(bb) there will be a clause that provides that if
(i) the Agency is unable to provide the Sales Partner Services at any time during the term thereof for any reason whatsoever, including, without limitation, an occurrence of bankruptcy or a discontinuation of Agency’s business; and
(ii) Google elects not to assume the terms of such Agreement, then such Client will enter into Google’s standard agreement(s) with respect to the applicable Google Marketing Platform Advertising Services for a period of no less than the balance of the term of such Agreement, the pricing terms for which will be negotiated in good faith at the time of such transition;
(cc) there will be clauses setting forth the same privacy, policy and legal compliance requirements set forth in the Terms, as if such Client were “Agency” thereunder, including a right to suspend and/or terminate Client’s use of all or any part of the applicable Sales Partner Services in the event of a failure to comply with those terms (including for Policy violations;
(dd) there will be a clause providing that, as between the Agency and the Client, the Client owns its Client Data and requires Agency to take all such actions reasonably necessary to ensure that the Client will own its Client Data (as defined below);
(ee) there will be a clause obliging the Client to contact the Agency directly for support, and not to communicate directly with Google for support; and
(ff) there will be clauses preserving and setting forth rights equivalent to the rights that Google has under following Agreement (Google Marketing Platform Order form – Advertising Services) between the relevant GMP-Authorised Agency and the Platform Owner, including without limitation rights to
(x) modify the Terms and Policies from time to time, and
(y) suspend and/or terminate Client’s use of all or any part of the applicable Sales Partner Services (e.g. for Policy violations); in each case as if such Client was “Agency” thereunder. The Agency will enforce each such Agreement with at least the same degree of diligence used by the Agency to enforce similar agreements for its own products and services, but in no event less than a reasonable degree of diligence.
9. FEES AND CHANGES
9.1. The Fees do not cover the provision of any extra services (and/or sale and delivery of extra products) other than the Agency Products and/or Agency Services. If any extra products and/or services are requested, the remuneration for them will be separately agreed by the Parties.
9.2. The Agency is entitled to increase the Fees for Agency Services and/or Agency Products no more than once in any rolling 12-month period by giving the Client at least 60 (sixty) calendar days’ prior written notice. The increase becomes effective from the date stated in the notice. If the Client does not accept the proposed increase, the Client may terminate the affected IO(s) by written notice given within 30 (thirty) calendar days of receipt of the Agency’s notice, with termination effective on the date the increase would otherwise have taken effect; in that case no early-termination fee or penalty shall apply. Fee increases imposed by the Platform Owner on the Agency may be passed through to the Client at any time on a like-for-like basis upon written notice.
9.2. The Agency is entitled to increase the Fees for Agency Services and/or Agency Products no more than once in any rolling 12-month period by giving the Client at least 60 (sixty) calendar days’ prior written notice. The increase becomes effective from the date stated in the notice. If the Client does not accept the proposed increase, the Client may terminate the affected IO(s) by written notice given within 30 (thirty) calendar days of receipt of the Agency’s notice, with termination effective on the date the increase would otherwise have taken effect; in that case no early-termination fee or penalty shall apply. Fee increases imposed by the Platform Owner on the Agency may be passed through to the Client at any time on a like-for-like basis upon written notice.
10. PAYMENT AND INVOICING
10.1. Unless otherwise agreed in a respective IO, the Agency shall provide the Client with a monthly report (the “Report”) and invoice on the Agency Services actually provided and/or the Agency Products delivered, as applicable, to the Client. Any Agency Services shall be deemed to have been rendered properly, in full (and any Agency Products to have been delivered in accordance with the specifications set out in the relevant IO and these GTC) and accepted by the Client if within 10 (ten) Business Days from the date of dispatch of the respective Report and invoice the Client does not provide the Agency with a reasonably justified objection in writing.
10.2. Invoices for Platform products and/or Platform services shall be issued to the Client and paid by the Client in the same currency as the currency used by the Platform Owner for such Platform products and/or Platform services in the Client's advertising accounts. If, as agreed in writing between the Parties (including by way of the currency stated on the relevant invoice issued by the Agency and accepted by the Client), a currency other than the Platform Owner's billing currency is selected for invoicing and settlement purposes, the Agency shall apply the Commercial Exchange Rate (as defined below) for invoicing purposes, with the applicable rate determined as of the date of the relevant invoice. In addition, if (i) the Client makes payment in a currency different from the currency specified in the relevant invoice, or (ii) any payment from the Client is, due to banking routing or automatic conversion by an intermediary or beneficiary bank, credited to the Agency's account in a currency other than the invoiced currency, the Agency reserves the right to apply the Commercial Exchange Rate (determined as of the date the payment is credited to the Agency's account) for the purpose of converting the payment amount into the invoice currency, and the Client shall bear any resulting currency conversion differences, correspondent and intermediary bank fees, currency conversion fees and any negative exchange differences. The invoice shall be deemed fully settled only upon receipt by the Agency of the full invoiced amount in the invoiced currency or its equivalent in the currency actually received, calculated at the Commercial Exchange Rate; any shortfall after such conversion shall be paid by the Client within 5 (five) Business Days upon the Agency's written request.
10.3. For the purposes of this Agreement, the “Commercial Exchange Rate” shall mean the official reference exchange rate published by the European Central Bank on the applicable date specified above (or, if no rate is published by the European Central Bank on such date, the rate published on the immediately preceding business day; where no direct rate is available for the relevant currency pair, the cross-rate calculated through EUR shall apply), plus a fixed margin of 3.5% (three point five per cent), and made available by the Agency on its website at https://allformance.com/ (or any successor URL notified by the Agency to the Client). If no exchange rate for the relevant currency is published by the European Central Bank, the Agency may apply a commercially reasonable exchange rate determined by the Agency in good faith using generally recognized market data sources or the Agency’s internal exchange rate methodology.
The Agency reserves the right to revise such margin from time to time due to changes in global economic conditions, banking costs, foreign exchange market volatility, or other relevant financial factors, provided that (a) any revised margin shall be notified to the Client in writing (including by email) at least 10 (ten) Business Days prior to its effective date, (b) the revised margin shall apply only to invoices issued and payments credited on or after such effective date, and (c) the applicable margin in force on the relevant invoice or payment date shall be published on the Agency's website.
10.4. All sums payable under relevant IO shall be paid within the timeframes agreed by the Parties in respective IO to the Agency’s bank account without any offset or deduction and are exclusive of all applicable all and any charges, bank fees, duties and taxes (included withholding taxes), which may apply and shall be payable by the Client.
10.5. In the event of the Client’s failure to pay the Agency Services and/or Agency Products and/or Fees when due, the Agency is entitled to discontinue the Agency Services and/or not to deliver the Agency Products under respective IO and offset the amounts due to the Agency against; and unilaterally terminate relevant IO with immediate effect and without any sanctions and/or remedies against or liability in relation to the Agency. In the event of the Client’s failure to pay any amounts when due, and provided that the Agency has commenced the provision of the respective Services, the Client shall pay interest on the overdue amount from the due date until payment of the overdue amount, whether before or after judgment. Interest under this Section will accrue each day at 0,1% (zero-point one percent) of the overdue amount for each day of delay.
10.6. The Client’s obligation to pay is considered fulfilled from the date the funds are credited to the Agency’s bank account. Any payment in transit, under processing, or otherwise not credited to the Agency’s bank account shall not be considered as payment made.
10.7. If relevant IO is terminated by either Party and the Agency has not commenced the provision of any Agency Services and/or the Agency Products to the Client, the Agency shall refund the Client 100% (one hundred percent) of any prepaid amounts. Such refund shall be made within 15 (fifteen) Business Days from the effective date of termination.
10.8. If the Agency has commenced the provision of Agency Services and/or the Agency Products and the Client has incurred any actual costs prior to termination, the Agency shall refund the remaining portion of the prepaid amounts, less (i) any such actual costs incurred on behalf of the Client, and (ii) the Agency’s applicable service fees and commission, as agreed between the Parties. Such refund shall be made within 15 (fifteen) Business Days from the effective date of termination.
10.2. Invoices for Platform products and/or Platform services shall be issued to the Client and paid by the Client in the same currency as the currency used by the Platform Owner for such Platform products and/or Platform services in the Client's advertising accounts. If, as agreed in writing between the Parties (including by way of the currency stated on the relevant invoice issued by the Agency and accepted by the Client), a currency other than the Platform Owner's billing currency is selected for invoicing and settlement purposes, the Agency shall apply the Commercial Exchange Rate (as defined below) for invoicing purposes, with the applicable rate determined as of the date of the relevant invoice. In addition, if (i) the Client makes payment in a currency different from the currency specified in the relevant invoice, or (ii) any payment from the Client is, due to banking routing or automatic conversion by an intermediary or beneficiary bank, credited to the Agency's account in a currency other than the invoiced currency, the Agency reserves the right to apply the Commercial Exchange Rate (determined as of the date the payment is credited to the Agency's account) for the purpose of converting the payment amount into the invoice currency, and the Client shall bear any resulting currency conversion differences, correspondent and intermediary bank fees, currency conversion fees and any negative exchange differences. The invoice shall be deemed fully settled only upon receipt by the Agency of the full invoiced amount in the invoiced currency or its equivalent in the currency actually received, calculated at the Commercial Exchange Rate; any shortfall after such conversion shall be paid by the Client within 5 (five) Business Days upon the Agency's written request.
10.3. For the purposes of this Agreement, the “Commercial Exchange Rate” shall mean the official reference exchange rate published by the European Central Bank on the applicable date specified above (or, if no rate is published by the European Central Bank on such date, the rate published on the immediately preceding business day; where no direct rate is available for the relevant currency pair, the cross-rate calculated through EUR shall apply), plus a fixed margin of 3.5% (three point five per cent), and made available by the Agency on its website at https://allformance.com/ (or any successor URL notified by the Agency to the Client). If no exchange rate for the relevant currency is published by the European Central Bank, the Agency may apply a commercially reasonable exchange rate determined by the Agency in good faith using generally recognized market data sources or the Agency’s internal exchange rate methodology.
The Agency reserves the right to revise such margin from time to time due to changes in global economic conditions, banking costs, foreign exchange market volatility, or other relevant financial factors, provided that (a) any revised margin shall be notified to the Client in writing (including by email) at least 10 (ten) Business Days prior to its effective date, (b) the revised margin shall apply only to invoices issued and payments credited on or after such effective date, and (c) the applicable margin in force on the relevant invoice or payment date shall be published on the Agency's website.
10.4. All sums payable under relevant IO shall be paid within the timeframes agreed by the Parties in respective IO to the Agency’s bank account without any offset or deduction and are exclusive of all applicable all and any charges, bank fees, duties and taxes (included withholding taxes), which may apply and shall be payable by the Client.
10.5. In the event of the Client’s failure to pay the Agency Services and/or Agency Products and/or Fees when due, the Agency is entitled to discontinue the Agency Services and/or not to deliver the Agency Products under respective IO and offset the amounts due to the Agency against; and unilaterally terminate relevant IO with immediate effect and without any sanctions and/or remedies against or liability in relation to the Agency. In the event of the Client’s failure to pay any amounts when due, and provided that the Agency has commenced the provision of the respective Services, the Client shall pay interest on the overdue amount from the due date until payment of the overdue amount, whether before or after judgment. Interest under this Section will accrue each day at 0,1% (zero-point one percent) of the overdue amount for each day of delay.
10.6. The Client’s obligation to pay is considered fulfilled from the date the funds are credited to the Agency’s bank account. Any payment in transit, under processing, or otherwise not credited to the Agency’s bank account shall not be considered as payment made.
10.7. If relevant IO is terminated by either Party and the Agency has not commenced the provision of any Agency Services and/or the Agency Products to the Client, the Agency shall refund the Client 100% (one hundred percent) of any prepaid amounts. Such refund shall be made within 15 (fifteen) Business Days from the effective date of termination.
10.8. If the Agency has commenced the provision of Agency Services and/or the Agency Products and the Client has incurred any actual costs prior to termination, the Agency shall refund the remaining portion of the prepaid amounts, less (i) any such actual costs incurred on behalf of the Client, and (ii) the Agency’s applicable service fees and commission, as agreed between the Parties. Such refund shall be made within 15 (fifteen) Business Days from the effective date of termination.
11. CONFIDENTIALITY
11.1. “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a Party or its Representatives to the other Party and that Party’s Representatives whether before or after the Effective Date, whether or not marked, designated or otherwise identified as “proprietary” or “confidential”, and whether furnished or disclosed in writing, electronically, orally, via remote access, by drawings or in any other way, including but not limited to:
(a) the terms of GTC and any IOs;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
i. the business, affairs, customers, clients, suppliers, or plan, intentions, or market opportunities of the disclosing Party (or of any of the disclosing Party’s Affiliates); and
ii. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing Party (or of any of the disclosing Party’s Affiliates); and
iii. any information developed by the Parties in the course of carrying out GTC and any IOs.
11.2. The provisions of this Section 11 shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party or its Representatives in breach of this Section);
(b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party;
(c) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party; or
(d) the Parties agree in writing is not confidential or may be disclosed; or
(e) is developed by or for the receiving Party independently of the information disclosed by the disclosing Party;
(f) shall be disclosed in accordance with stock exchange rules.
11.3. Each Party shall (А) keep the other Party’s Confidential Information confidential, (B) use the Confidential Information only for the purpose of GTC and relevant IO; and (C) not disclose the Confidential Information to any person other than its Representatives who need to know such Confidential Information to perform their duties and who have signed written confidentiality agreements or covenants not less stringent than those set out in this provision.
11.4. Confidential Information is required to be disclosed by the applicable laws and regulations or by government or court order, or rules or regulations of any securities exchange, provided that the receiving Party shall promptly notify the disclosing Party in writing and permit the disclosing Party to seek an appropriate protective or other court order.
11.5. At the request of the disclosing party, the receiving party shall, within 3 (three) Business Days, hand over the material media containing the Confidential Information, including documents, flash drives, copies, extracts, transcripts, records, audio and video materials, and all documents received as a result of processing.
11.6. The provisions of this Section 11 shall be effective during the term of each IO and for a period of 5 (five) years after termination or expiration of the relevant IO, except that for trade secrets and personal data the obligations of confidentiality shall continue for so long as the relevant information retains the status of trade secret or personal data under applicable law.
11.7. In the event of a breach of confidentiality, the guilty party must indemnify the innocent party for any losses it may have incurred.
(a) the terms of GTC and any IOs;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
i. the business, affairs, customers, clients, suppliers, or plan, intentions, or market opportunities of the disclosing Party (or of any of the disclosing Party’s Affiliates); and
ii. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing Party (or of any of the disclosing Party’s Affiliates); and
iii. any information developed by the Parties in the course of carrying out GTC and any IOs.
11.2. The provisions of this Section 11 shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party or its Representatives in breach of this Section);
(b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party;
(c) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party; or
(d) the Parties agree in writing is not confidential or may be disclosed; or
(e) is developed by or for the receiving Party independently of the information disclosed by the disclosing Party;
(f) shall be disclosed in accordance with stock exchange rules.
11.3. Each Party shall (А) keep the other Party’s Confidential Information confidential, (B) use the Confidential Information only for the purpose of GTC and relevant IO; and (C) not disclose the Confidential Information to any person other than its Representatives who need to know such Confidential Information to perform their duties and who have signed written confidentiality agreements or covenants not less stringent than those set out in this provision.
11.4. Confidential Information is required to be disclosed by the applicable laws and regulations or by government or court order, or rules or regulations of any securities exchange, provided that the receiving Party shall promptly notify the disclosing Party in writing and permit the disclosing Party to seek an appropriate protective or other court order.
11.5. At the request of the disclosing party, the receiving party shall, within 3 (three) Business Days, hand over the material media containing the Confidential Information, including documents, flash drives, copies, extracts, transcripts, records, audio and video materials, and all documents received as a result of processing.
11.6. The provisions of this Section 11 shall be effective during the term of each IO and for a period of 5 (five) years after termination or expiration of the relevant IO, except that for trade secrets and personal data the obligations of confidentiality shall continue for so long as the relevant information retains the status of trade secret or personal data under applicable law.
11.7. In the event of a breach of confidentiality, the guilty party must indemnify the innocent party for any losses it may have incurred.
12. DATA PROTECTION
12.1. Both Parties shall comply with all applicable requirements of the Data Protection Legislation. This Section 12.1 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
12.2. The Parties acknowledge that for the purposes of the Data Protection Legislation:
(a) the Client and the Agency act as independent Data Controllers (where Data Controller has the meaning as defined in the Data Protection Legislation);
(b) each of the Parties independently determines the purposes and means of the processing of personal data and acts as an independent controller;
(c) the Parties do not jointly determine the purposes and means of the processing and do not act as joint controllers;
(d) neither of the Parties processes personal data on behalf of the other Party and does not act as a processor;
(e) each of the Parties shall independently take all necessary measures to comply with applicable data protection laws.
12.2. The Parties acknowledge that for the purposes of the Data Protection Legislation:
(a) the Client and the Agency act as independent Data Controllers (where Data Controller has the meaning as defined in the Data Protection Legislation);
(b) each of the Parties independently determines the purposes and means of the processing of personal data and acts as an independent controller;
(c) the Parties do not jointly determine the purposes and means of the processing and do not act as joint controllers;
(d) neither of the Parties processes personal data on behalf of the other Party and does not act as a processor;
(e) each of the Parties shall independently take all necessary measures to comply with applicable data protection laws.
13. REPRESENTATIONS AND WARRANTIES
13.1. Each Party represents and warrants to the other Party that it has the full corporate right, power and authority to enter into these GTC and each IO, and to perform the obligations required of it hereunder and in a respective IO.
13.2. The Client represents and warrants to the Agency that:
(a) it is in compliance with, and shall perform these GTC and a respective IO in compliance with, all applicable laws, rules, and regulations;
(b) the Client and the Client Materials will comply with all applicable laws, rules, regulations, policies and guidelines including of the Platform Products, Platform Services, Platform and its products services whether or not stated in the Platform Agreement and a respective IO;
(c) there are no commitments, conflicts of interest or other circumstances that will prevent or inhibit the performance of its part of these GTC and a respective IO;
(d) these GTC and a respective IO do not conflict with, and do not and will not constitute a breach of, any other contract, agreement or undertaking to which the Client is or may become a party, and the Client will not during the Term enter into any contract, agreement or undertaking that may conflict with or constitutes a breach of the provisions and intentions of these GTC and a respective IO; and
(e) the Client is not aware of any matter that will or may cause it to be unable to comply with any of its obligations under these GTC and a respective IO in a proper and timely manner.
13.3. Neither the Client, nor any of its directors, officers, employees, subsidiaries, agents, or affiliates, is or has been a Sanctioned Party. The Client represents and warrants that any person or entity which it from time to time has an agreement with for access to the Services is not, nor has been, a Sanctioned Party.
13.4. The Client agrees that in connection with these GTC it will comply, and will ensure that its relevant personnel, subsidiaries, affiliates will comply with all Sanctions legislation. The Client represents and warrants that its Third Parties will comply with all Sanctions legislation.
13.5. The Client has in place policies, procedures and controls reasonably designed to ensure that it and its subsidiaries (with respect to its business) and its and its subsidiaries’ respective officers, directors, employees, agents, and affiliates, comply with applicable Sanctions legislation. The Client shall procure that its Third Parties will comply with applicable Sanctions legislation.
13.6. The Client agrees to (i) notify the Agency immediately if it becomes aware that it or any of its personnel, subsidiaries or affiliates or its Third Parties may have breached any Sanctions in connection with its implementation of these GTC; (ii) provide notice to the Agency in a commercially reasonable timeframe and manner (unless otherwise specified in these GTC) of any government action or communication that the Client receives or becomes aware of concerning Sanctions relating to the Client, unless prohibited by law or compulsory governmental process.
13.7. The Agency represents and warrants to the Client that:
(a) it has the full corporate right, power and authority to enter into these GTC and each IO, and to perform the obligations required of it hereunder and in a respective IO in compliance with all applicable laws, rules, and regulations; and
(b) the Agency Services and Agency Products will comply with all applicable and known laws, rules, regulations, policies and guidelines;
13.8. Neither the Agency, nor any of its Affiliates, Representatives, directors, officers, employees, subsidiaries, agents, or affiliates, is or has been a Sanctioned Party.
13.9. The Agency agrees that in connection with these GTC it will comply, and will ensure that its relevant personnel, subsidiaries, and affiliates will comply with all Sanctions legislation.
13.10. The Agency has in place policies, procedures and controls reasonably designed to ensure that it and its subsidiaries (with respect to its business) and its and its subsidiaries’ respective officers, directors, employees, agents, and affiliates, comply with applicable Sanctions legislation.
13.11. The Client acknowledges and agrees that any occurrence of negative consequences, losses, penalties, restrictions, or other adverse effects on the Agency arising directly or indirectly from the Client’s Sanctioned status, failure to comply with applicable Sanctions legislation, or any breach of its representations and warranties regarding Sanctions shall constitute a default by the Client under the relevant IO and these GTC. In such event, the Agency shall have the right to: (i) suspend or terminate the relevant IO immediately; (ii) claim full indemnification and compensation from the Client for any resulting losses, damages, costs, or expenses (including reasonable attorney and professional fees); and (iii) exercise any other rights and remedies available under these GTC, the relevant IO, or applicable law.
13.2. The Client represents and warrants to the Agency that:
(a) it is in compliance with, and shall perform these GTC and a respective IO in compliance with, all applicable laws, rules, and regulations;
(b) the Client and the Client Materials will comply with all applicable laws, rules, regulations, policies and guidelines including of the Platform Products, Platform Services, Platform and its products services whether or not stated in the Platform Agreement and a respective IO;
(c) there are no commitments, conflicts of interest or other circumstances that will prevent or inhibit the performance of its part of these GTC and a respective IO;
(d) these GTC and a respective IO do not conflict with, and do not and will not constitute a breach of, any other contract, agreement or undertaking to which the Client is or may become a party, and the Client will not during the Term enter into any contract, agreement or undertaking that may conflict with or constitutes a breach of the provisions and intentions of these GTC and a respective IO; and
(e) the Client is not aware of any matter that will or may cause it to be unable to comply with any of its obligations under these GTC and a respective IO in a proper and timely manner.
13.3. Neither the Client, nor any of its directors, officers, employees, subsidiaries, agents, or affiliates, is or has been a Sanctioned Party. The Client represents and warrants that any person or entity which it from time to time has an agreement with for access to the Services is not, nor has been, a Sanctioned Party.
13.4. The Client agrees that in connection with these GTC it will comply, and will ensure that its relevant personnel, subsidiaries, affiliates will comply with all Sanctions legislation. The Client represents and warrants that its Third Parties will comply with all Sanctions legislation.
13.5. The Client has in place policies, procedures and controls reasonably designed to ensure that it and its subsidiaries (with respect to its business) and its and its subsidiaries’ respective officers, directors, employees, agents, and affiliates, comply with applicable Sanctions legislation. The Client shall procure that its Third Parties will comply with applicable Sanctions legislation.
13.6. The Client agrees to (i) notify the Agency immediately if it becomes aware that it or any of its personnel, subsidiaries or affiliates or its Third Parties may have breached any Sanctions in connection with its implementation of these GTC; (ii) provide notice to the Agency in a commercially reasonable timeframe and manner (unless otherwise specified in these GTC) of any government action or communication that the Client receives or becomes aware of concerning Sanctions relating to the Client, unless prohibited by law or compulsory governmental process.
13.7. The Agency represents and warrants to the Client that:
(a) it has the full corporate right, power and authority to enter into these GTC and each IO, and to perform the obligations required of it hereunder and in a respective IO in compliance with all applicable laws, rules, and regulations; and
(b) the Agency Services and Agency Products will comply with all applicable and known laws, rules, regulations, policies and guidelines;
13.8. Neither the Agency, nor any of its Affiliates, Representatives, directors, officers, employees, subsidiaries, agents, or affiliates, is or has been a Sanctioned Party.
13.9. The Agency agrees that in connection with these GTC it will comply, and will ensure that its relevant personnel, subsidiaries, and affiliates will comply with all Sanctions legislation.
13.10. The Agency has in place policies, procedures and controls reasonably designed to ensure that it and its subsidiaries (with respect to its business) and its and its subsidiaries’ respective officers, directors, employees, agents, and affiliates, comply with applicable Sanctions legislation.
13.11. The Client acknowledges and agrees that any occurrence of negative consequences, losses, penalties, restrictions, or other adverse effects on the Agency arising directly or indirectly from the Client’s Sanctioned status, failure to comply with applicable Sanctions legislation, or any breach of its representations and warranties regarding Sanctions shall constitute a default by the Client under the relevant IO and these GTC. In such event, the Agency shall have the right to: (i) suspend or terminate the relevant IO immediately; (ii) claim full indemnification and compensation from the Client for any resulting losses, damages, costs, or expenses (including reasonable attorney and professional fees); and (iii) exercise any other rights and remedies available under these GTC, the relevant IO, or applicable law.
14. INDEMNITY AND LIMITATION OF LIABILITY
14.1. Each Party shall defend, indemnify and hold harmless the other Party, its Affiliates, successors, assigns and assigns’ respective Representatives and stockholders from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification, resulting from (i) each Party’s alleged breach of the representations and warranties under these GTC and a respective IO or (ii) the content or subject matter of any Client Materials and/or Platform Products/Services (as the case may be) or (iii) the Party’s actions whilst using or making available (as the case may be) the Agency Products, Agency Services, Platform Products and/or Platform Services.
14.2. EXCEPT FOR ANY ACTS OF FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE GTC OR A RESPECTIVE IO OR ANY PRODUCTS OR SERVICES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE GTC AND ALL IOS BETWEEN THE PARTIES IN ANY ROLLING 12-MONTH PERIOD SHALL NOT EXCEED THE GREATER OF (I) 10% (TEN PERCENT) OF THE AMOUNT OF FEES PAID BY THE CLIENT TO THE AGENCY UNDER THE RESPECTIVE IOS IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND (II) THE AMOUNT OF FEES PAID BY THE CLIENT FOR THE SPECIFIC IO TO WHICH THE CLAIM RELATES IN THE SAME PERIOD. THE CAP IN THIS SECTION DOES NOT APPLY TO: (A) CLAIMS ARISING FROM A PARTY’S FRAUD OR WILFUL MISCONDUCT; (B) THE CLIENT’S PAYMENT OBLIGATIONS UNDER ANY IO; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14.1 IN RESPECT OF THIRD-PARTY CLAIMS; OR (D) BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11 OR OF DATA PROTECTION OBLIGATIONS UNDER SECTION 12. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE GTC OR A RESPECTIVE IO IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14.2. EXCEPT FOR ANY ACTS OF FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE GTC OR A RESPECTIVE IO OR ANY PRODUCTS OR SERVICES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE GTC AND ALL IOS BETWEEN THE PARTIES IN ANY ROLLING 12-MONTH PERIOD SHALL NOT EXCEED THE GREATER OF (I) 10% (TEN PERCENT) OF THE AMOUNT OF FEES PAID BY THE CLIENT TO THE AGENCY UNDER THE RESPECTIVE IOS IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND (II) THE AMOUNT OF FEES PAID BY THE CLIENT FOR THE SPECIFIC IO TO WHICH THE CLAIM RELATES IN THE SAME PERIOD. THE CAP IN THIS SECTION DOES NOT APPLY TO: (A) CLAIMS ARISING FROM A PARTY’S FRAUD OR WILFUL MISCONDUCT; (B) THE CLIENT’S PAYMENT OBLIGATIONS UNDER ANY IO; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14.1 IN RESPECT OF THIRD-PARTY CLAIMS; OR (D) BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11 OR OF DATA PROTECTION OBLIGATIONS UNDER SECTION 12. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE GTC OR A RESPECTIVE IO IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15. TERMINATION OF INSERTION ORDER(S)
15.1. Each Party may terminate an individual IO without cause, by giving 15 (fifteen) Business Days written notice of immediate termination to the other Party (specifying a particular IO to be terminated) at any time and for any reason. Individual IO shall be deemed terminated on the date of receipt of notice, unless another term is specified in the notice.
15.2. On termination of any individual IO:
(a) the Agency shall cease performing all Agency Services and delivery of the Agency Products in relation to that IO only;
(b) the Agency shall be entitled to invoice the Client for any outstanding Fees in respect of that IO only, which shall be payable by the Client as stated in these GTC; and
15.3. Termination of any individual IO under this Section 15 shall not affect the continuation in force of these GTC, including any other IO(s) entered into under these GTC.
15.2. On termination of any individual IO:
(a) the Agency shall cease performing all Agency Services and delivery of the Agency Products in relation to that IO only;
(b) the Agency shall be entitled to invoice the Client for any outstanding Fees in respect of that IO only, which shall be payable by the Client as stated in these GTC; and
15.3. Termination of any individual IO under this Section 15 shall not affect the continuation in force of these GTC, including any other IO(s) entered into under these GTC.
16. CONSEQUENCES OF TERMINATION
Upon termination/expiry: cease performance; cease using Client Materials; invoice outstanding Fees; return/destroy Confidential Information; all open IOs terminate. Rights accrued are unaffected. Sections intended to survive shall survive any termination or expiration of any IO or these GTC, including without limitation Sections 1 (Interpretation), 11 (Confidentiality), 12 (Data Protection), 13 (Representations and Warranties, including Sanctions), 14 (Indemnity and Limitation of Liability), 16 (Consequences of Termination), 17 (Force Majeure), 18 (Notices), 19 (Severance), 20 (Waiver), 21 (Entire Agreement), 22 (Miscellaneous), 23 (Assignment), 26 (Third-Party Rights), 27 (Governing Law) and 28 (Jurisdiction).
17. FORCE MAJEURE
Neither Party shall be in breach of these GTC nor liable for delay in performing, or failure to perform, any of its obligations under these GTC if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If a period of such delay or non-performance continues for 2 (two) weeks, the Party not affected may terminate these GTC by giving 5 (five) calendar days’ written notice to the affected Party.
18. NOTICES
Any notice or other communication given to a Party under or in connection with these GTC shall be in English and in writing and signed by or on behalf of a Party giving it and shall be: (i) delivered by hand, (ii) sent by reputable international common carrier or courier or (iii) sent by email at the following (email) address stated in the relevant IO.
19. SEVERANCE
If any provision or part-provision of these GTC is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
20. WAIVER
No failure or delay by a Party to exercise any right or remedy provided under these GTC or by law shall constitute a waiver of that or any other right or remedy.
21. ENTIRE AGREEMENT
These GTC and all IO(s) shall constitute the entire agreement between the Parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22. MISCELLANEOUS
The Agency may amend, modify, supplement, or otherwise update these GTC for future IOs from time to time. Any such updated version shall be published at https://allformance.com/gtc with a unique version identifier and the date of the last revision. The updated GTC apply automatically to any IO executed on or after the effective date stated in the updated GTC. For IOs already in force at the time of update, the updated GTC shall become applicable 30 (thirty) calendar days after written notice of the update is given to the Client; if the Client does not accept the updated GTC, the Client may terminate the affected IO(s) by written notice within 30 (thirty) calendar days of receipt of the update notice, in which case the IO shall terminate at the end of the notice period and the previously applicable version of these GTC shall continue to govern that IO until termination. This Section 22 is the exclusive mechanism for amending these GTC.
23. ASSIGNMENT
23.1. The Parties shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under these GTC and a respective IO without the prior written consent of the Agency. Any purported assignment in violation of this Section 23.1 shall be null and void.
23.2. The Agency may, without the Client’s consent, assign or transfer its rights and/or obligations under these GTC and any IO to (i) another Allformance Group Entity, provided that the assignee assumes all obligations of the assignor under the relevant IO; (ii) the Platform Owner in accordance with Section 8.3(aa); or (iii) any successor entity in connection with a merger, reorganisation, or sale of all or substantially all of the Agency’s business or assets relating to these GTC. Any other assignment by the Agency requires the Client’s prior written consent, such consent not to be unreasonably withheld or delayed.
23.2. The Agency may, without the Client’s consent, assign or transfer its rights and/or obligations under these GTC and any IO to (i) another Allformance Group Entity, provided that the assignee assumes all obligations of the assignor under the relevant IO; (ii) the Platform Owner in accordance with Section 8.3(aa); or (iii) any successor entity in connection with a merger, reorganisation, or sale of all or substantially all of the Agency’s business or assets relating to these GTC. Any other assignment by the Agency requires the Client’s prior written consent, such consent not to be unreasonably withheld or delayed.
24. ANNOUNCEMENTS
No Party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning these GTC without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
25. COUNTERPARTS
These GTC and each respective IO may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
26. THIRD-PARTY RIGHTS
Except as otherwise stated in these GTC and a respective IO, a person who is not a Party to these GTC shall not have any rights to enforce any term of these GTC.
27. GOVERNING LAW
These GTC and all IO(s) and any dispute, controversy or claim arising out of or in connection with them or their subject matter or formation, performance, breach, termination or invalidity thereof, as well as matters concerning infringement of Intellectual Property Rights (including non-contractual disputes or claims) (a “Dispute”) shall be governed by and construed in accordance with the law of England and Wales.
28. JURISDICTION
Any Dispute will in the first instance be referred to the nominated party managers for discussion and resolution as soon as reasonably possible and, in any event, within 14 (fourteen) calendar days of such referral. If the Dispute is not resolved at this stage, the Dispute shall be escalated to the nominated senior party managers for discussion and resolution as soon as reasonably possible and, in any event, within 14 (fourteen) calendar days of such referral. Neither party may initiate any legal or arbitral action in relation to such issue, dispute or disagreement until the above process has been completed. If the parties are unable to resolve any such issue, dispute or disagreement via the informal dispute resolution procedure outlined above, the matter shall be submitted to the Dubai International Arbitration Centre (DIAC) and finally settled under the DIAC Arbitration Rules 2022, which are deemed to be incorporated by reference into this Section. The number of arbitrators shall be (i) 1 (one) where the amount in dispute does not exceed USD 1,000,000, and (ii) 3 (three) where the amount in dispute exceeds USD 1,000,000. The seat, or legal place of arbitration, shall be Dubai, UAE. The language of the arbitral proceedings shall be English. Each Party shall be free to seek interim or conservatory measures from any court of competent jurisdiction prior to or during the arbitral proceedings.
29. INTER-AGENCY COORDINATION
29.1. Where a Client has IOs with two or more Allformance Group Entities, each such IO is a separate contract between the Client and the relevant Agency. No Allformance Group Entity is liable for the breach by any other Group Entity, except as expressly agreed in writing.
29.2. The Agency identified in any IO may, upon written notice to the Client, novate that IO to another Allformance Group Entity, provided that (i) the novating Agency assumes all then-existing obligations of the original Agency under that IO, (ii) if the original IO covers Platform Products or Sales Partner Services, the novating Agency must be a GMP-Authorised Agency, and (iii) such novation does not materially adversely affect the Client. The Client’s consent to such novation shall not be unreasonably withheld or delayed.
29.3. Notwithstanding any other provision of these GTC, no Allformance Group Entity that is not a GMP-Authorised Agency shall be deemed to have any rights, obligations or liabilities under any Platform Agreement or in relation to the Platform Owner.
29.2. The Agency identified in any IO may, upon written notice to the Client, novate that IO to another Allformance Group Entity, provided that (i) the novating Agency assumes all then-existing obligations of the original Agency under that IO, (ii) if the original IO covers Platform Products or Sales Partner Services, the novating Agency must be a GMP-Authorised Agency, and (iii) such novation does not materially adversely affect the Client. The Client’s consent to such novation shall not be unreasonably withheld or delayed.
29.3. Notwithstanding any other provision of these GTC, no Allformance Group Entity that is not a GMP-Authorised Agency shall be deemed to have any rights, obligations or liabilities under any Platform Agreement or in relation to the Platform Owner.
SCHEDULE 1 — ALLFORMANCE GROUP ENTITIES
The Agency may update this Schedule 1 from time to time by publishing a revised version of these GTC in accordance with Section 22.
Cookies managing
Cookie Settings
Cookies necessary for the correct operation of the site are always enabled.
Other cookies are configurable.
Other cookies are configurable.