BUZZMYVIDEOS CREATOR TERMS AND CONDITIONS
INTRODUCTION
These Terms and Conditions are entered into by BuzzMyVideos Limited (“BuzzMyVideos”/ “BMV”) and the Creator (as defined below). If there is any inconsistency between: (i) the terms of a signed Insertion Order; and (ii) the Terms and Conditions, the Insertion Order shall prevail to the extent of the inconsistency.
AGREED TERMS
- DEFINITIONS AND INTERPRETATION
1.1. The following words and phrases shall have the following meanings:
“Agreement” means an Insertion Order together with these Terms and Conditions.
“Brand Features” means trade names, trademarks, logos and other distinctive brand features.
“Business Day” means a period of 8 hours worked between the hours of 9am and 6pm in the country in which the Services are being performed, excluding public holidays in that country.
“BuzzMyVideos Customer” means the BuzzMyVideo customer whose Brand Features will appear in the Native Advertising Videos in the manner agreed in the Insertion Order.
“BuzzMyVideos Materials” means any software (including any modifications and/or documentation related to it), code, product, invention, discovery, improvement, Content, document and/or other material created, prepared, made, or produced by BuzzMyVideos, its licensors and/or any of its Personnel that are provided to the Creator.
“Campaign Brand” means the brand of the BuzzMyVideos Customer whose Brand Features are featured in the Native Advertising Video(s).
“Confidential Information” means information disclosed by (or on behalf of) one party to the other party in connection with or in anticipation of an Agreement (including the content of an Agreement) that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential but excluding any information : (a) which is publicly known or becomes publicly known other than by a breach of an Agreement; and (b) which, when it was disclosed to the other Party, was already known by that party and such prior knowledge can be demonstrated to the reasonable satisfaction of the disclosing party.
“Content” means all graphical, textual, auditory and/or audio visual content (which may include text, data, information, photos, images, graphics, audio, video or other content) whatsoever.
“Creator” means the individual or entity executing an Insertion Order.
“Deliverables” means any Native Advertising Videos that are provided to BuzzMyVideos under an Agreement (as may be more particularly detailed in an Insertion Order).
“DP Laws” means the Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of Personal Data and privacy from time to time, including where applicable legally binding guidance and codes of practice issued by the Information Commissioner.
“Expenses” means all atypical expenses (including hotel costs and subsistence of providing services off site) but not including the costs of travel to the usual BuzzMyVideos (or BuzzMyVideos Customer’s site) and subsistence whilst working at the usual BuzzMyVideos (or BuzzMyVideos Customer’s site).
“Fees” means the charges set out in the Insertion Order.
“Good Industry Practice” means standards, practices, methods and procedures conforming to all applicable laws and the exercise of that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances.
“Insertion Order” means a supplemental agreement entitled “Insertion Order” which is signed by the parties containing project specific terms which references these Terms and Conditions.
“Intellectual Property Rights” means: (i) patents, registered trademarks, registered designs, applications and rights to apply for any of those rights; (ii) unregistered trademarks, service marks, copyrights (including, where applicable, applications and rights to apply for registration of copyright and rights in computer software), topography rights, database rights, moral rights, know-how, rights in designs and inventions; (iii) trade secrets, rights in confidence, business and company names, Internet domain names and email addresses; the goodwill attaching to any of the aforementioned rights; and (iv) any forms of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world.
“Native Advertising Videos” means videos created by the Creator which contain the Brand Features of the BuzzMyVideos Customer which Native Advertising Videos will consist of: (i) Brand Integration Videos; (ii) Call to Action Videos; and/or (iii) Product Endorsement as agreed in an Insertion Order.
“Personal Data” shall have the meaning given to it in applicable DP Laws.
“Personnel” means directors, officers, employees, agents and subcontractors.
“Services” means the services stated in the Insertion Order.
- 2 Definitions in an Insertion Order apply s in these Terms and Conditions and vice versa.
1.3 Clause headings shall not affect the interpretation of the applicable Agreement
1.4 The words “include” and “including’ shall not limit the generality of any words preceding them
1.5 Each Insertion Order shall form a separate Agreement between BuzzMyVideos and Creator on the terms contained in that Insertion Order and in these Terms and Conditions. Each Agreement shall be separately terminable in accordance with clause 8.
2. PROVIDING THE SERVICES
2.1 Creator shall (and shall ensure its Personnel):
(a) provide the Services to BuzzMyVideos on the Service Delivery Date set out in the Insertion Order in accordance with the Insertion Order with Good Industry Practice;
(b) regularly report to BuzzMyVideos regarding the progress and performance of the Services, or in accordance with such reporting timetable as agreed between the parties;
(c)apply the full benefit of its/their knowledge, expertise, contacts and skill when delivering the Services;
(d)promptly give to BuzzMyVideos all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services and be available on reasonable notice to provide such assistance or information as BuzzMyVideos may reasonably require in connection with the Services;
(e)not (unless specifically authorised to do so by BuzzMyVideos in writing): (i) have any authority to incur any expenditure in the name of or for the account of BuzzMyVideos; or (ii) hold itself out as having authority to bind BuzzMyVideos;
(f)be solely responsible for all Expenses incurred in the course of performing its obligations under this Agreement.
2.2 The Creator shall not publish or otherwise make available the Native Advertising Videos in any media without obtaining the prior written consent of the BuzzMyVideos Customer. Creator shall provide the BuzzMyVideos Customer with the opportunity to approve Native Advertising Videos produced by the Creator prior to such Native Advertising Videos being visible to the public on any media. Creator shall work in a timely, professional, cooperative and collaborative manner with the BuzzMyVideos Customer to ensure Customer’s acceptance of the the Native Advertising Videos. Creator shall, in a timely and professional manner and at no cost to BuzzMyVideos or the BuzzMyVideos Customer, make all of the BuzzMyVideos Customer’s or BuzzMyVideos requested changes to the Native Advertising Videos. For the avoidance of doubt, Creator acknowledges and agrees that BMV may continuously provide feedback and Creator must work collaboratively and in a timely manner with BMV to deliver the Services in accordance with the applicable Agreement.
2.3 The Creator shall stream and share the Native Advertising Videos in the manner and for the duration set out in the Insertion Order. Creator may not remove the Native Advertising Videos from publication without obtaining BuzzMyVideos’ prior written consent. Creator acknowledges and agrees that if the Native Advertising Videos are removed from publication, BuzzMyVideo’s has no obligations to pay the Fees.
2.4 BuzzMyVideos shall:
(a) provide the Creator and its Personnel with such access, information and cooperation as the Creator may reasonably require for the proper performance of the Services; and
(b) inform Creator and its Personnel of any health and safety policies with which they must comply whilst on BuzzMyVideos’s (or BuzzMyVideos’s customers’) premises.
2.5 Either party may request a change in the nature or scope of the Services. Any such request shall be sufficiently detailed to enable the other party to assess the impact of the requested change. No such change shall become binding upon the parties unless and until it is agreed in writing between the parties in a separate Insertion Order. Creator acknowledges and agrees that any change in the nature or scope of the Services requires the consent of the BuzzMyVideos Customer.
2.6 Each Agreement is non exclusive. Creator acknowledges that BuzzMyVideos may retain third parties to provide similar services to those provided under any Agreement.
3. INTELLECTUAL PROPERTY RIGHTS AND LICENCE
3.1 Creator retains all Intellectual Property Rights in the Deliverables other than any and all Intellectual Property Rights in content (including Brand Features) provided by BuzzMyVideos and/or the BuzzMyVideos Customer. For the avoidance of doubt, BuzzMyVideos and the BuzzMyVideos Customer retain all Intellectual Property Rights in any material or other information (including BuzzMyVideos Materials) provided to the Creator under this Agreement. To the extent that Creator is, or any of its Personnel are, deemed to own any rights in material or other information (including BuzzMyVideos Materials) provided to the Creator by BuzzMyVideos or the BuzzMyVideos Customer then Creator hereby assigns (and/or shall procure that applicable Personnel assigns) to BuzzMyVideos or the BuzzMyVideos Customer all Intellectual Property Rights in such materials or other information (including BuzzMyVideos Materials). Creator shall, and/or shall procure that the applicable Personnel, waive any and all moral rights in the material or other information (including BuzzMyVideos Materials) provided by BuzzMyVideos or the BuzzMyVideos Customer to the extent permitted under applicable law. If requested by BuzzMyVideos, Creator shall, and/or shall procure that applicable Personnel, sign all documents and do all other acts necessary to give effect to this clause.
3.2 If BuzzMyVideos provides any BuzzMyVideos Materials to Creator, BuzzMyVideos (or its licensors) grants Creator a non-exclusive, non transferable licence to use the BuzzMyVideos Materials solely for the purpose of performing the Services and/or providing the Deliverables under an Agreement in accordance with the Agreement.
(a)All Creator Materials and BuzzMyVideos Materials shall be deemed Confidential Information, except for any open source software.
4. INVOICING AND PAYMENT
4.1 Creator may only invoice the Fees at the earliest following acceptance of the Services by BuzzMyVideos and the BuzzMyVideos’ Customer.
4.2 If applicable, Creator shall (unless otherwise agreed in writing by BuzzMyVideos in an Insertion Order or elsewhere) accompany each invoice sent to BuzzMyVideos with a timesheet including the hours or Business Days being billed in that invoice.
4.3 Subject always to: (i) completion and acceptance of the Services by BuzzMyVideos Customer and (ii) BuzzMyVideos Customer paying BuzzMyVideos, BuzzMyVideos shall pay each invoice in the manner stated in the Insertion Order or if no payment terms are stated within 45 days of the date of receipt of the invoice. For the avoidance of doubt, BuzzMyVideos shall not pay the Creator if the BuzzMyVideos Customer does not pay BuzzMyVideos.
4.4 All sums payable under each applicable Agreement are exclusive of VAT which, if applicable, shall be paid in addition. Creator is responsible for and will pay all taxes and other government charges.
4.5 If payment is not made when due, Creator may charge interest at the rate of 2% per annum above the prevailing base rate of Barclays Bank PLC from the due date until the date of actual payment, whether before or after judgment.
5. WARRANTIES
5.1 Each party warrants to the other that it has full power and authority to enter into the applicable Agreement and to perform its respective obligations under it.
5.2 Creator represents and warrants to BuzzMyVideos that:
(a) the Services shall be of professional quality and performed with all due skill and care and shall be consistent with Good Industry Practice;
(b) the Services shall comply with the specification agreed between the parties in writing;
(c) no software provided as part of the Services or Deliverables shall contain any computer viruses, worms, trojans or equivalent harmful code; and
(d) Creator owns or has a licence to use all Intellectual Property Rights and all other rights in all the Deliverables. In particular, Creator has a valid and enforceable agreement with, and has secured all necessary consents, clearances and rights from, all third parties whose rights, work, performances or services are embodied in all Deliverables and Native Advertising Videos to allow Creator to grant the rights granted in accordance with this Agreement. Creator is solely responsible for all payments, fees or royalties that may be due to any such party arising from use of the Deliverables and the Native Advertising Videos in accordance with this Agreement;
(e) the Deliverables will comply with all applicable laws, regulations and codes of practice including all rules relating to the correct labelling of native advertisements and the responsible targeting of advertising having regard to the likely demographics of the audience; and
(f) the Deliverables will not contain any Content or services that: (i) infringe any Intellectual Property Right of any third party; (ii) contain any obscene, defamatory, libellous, slanderous material or material that violates any person’s right of privacy or data protection; (iii) reflects negatively on BuzzMyVideos or the BuzzMyVideos Customer; or (iv) is otherwise unlawful.
5.3 Except as expressly provided in the applicable Agreement, all other conditions, terms and warranties, express or implied by statute or otherwise are excluded to the fullest extent permitted by applicable law.
6. INDEMNITIES
Creator shall indemnify BuzzMyVideos and the BuzzMyVideos Customer from and against any losses, liability, damages, and expenses (including all legal fees) on a full indemnity basis that BuzzMyVideos or the the BuzzMyVideos Customer incur or are awarded against BuzzMyVideos or the BuzzMyVideos Customer as a result of: (a) any claim that use of the Services (including the publication of the Native Advertising Videos) infringe a third party’s Intellectual Property Rights or any other rights; or (b) a breach by Creator of clause 5.2 of the Agreement. BuzzMyVideos shall give notice of such claim to the Creator as soon as reasonably practicable. Creator shall be given sole authority to defend or settle the claim. BuzzMyVideos shall provide reasonable co-operation to Creator in the defence and settlement of such claim, at Creator’s expense.
7. LIMITATION OF LIABILITY
7.1 Nothing in the applicable Agreement shall exclude or limit either party’s liability:
(a) for death or personal injury resulting from the negligence of the other or their servants, agents or employees;
(b)for fraud or fraudulent misrepresentation;
(c)for breach of any implied condition as to title or quiet enjoyment;
(d) under the indemnity in clause 6.
7.2 Subject to clause 7.1, neither party shall be liable in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent misrepresentation) or otherwise arising out of or in connection with the applicable Agreement for:
(a) any indirect economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings or cost of substitute services);
(b) any loss of goodwill or reputation;
(c) any special, indirect or consequential losses, in any case, whether or not such losses were within the contemplation of the parties at the Effective Date, suffered or incurred by either party arising out of or in connection with the provisions of, or any matter under, the applicable Agreement.
7.3 Subject to clauses 7.1 and 7.2, each party’s total liability in relation to all events or series of connected events occurring under or in connection with the applicable Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the greater of: (i) £500,000; and (ii) 150% of the Fees paid or payable by BuzzMyVideos to the Creator in the twelve month period immediately prior to the first event allegedly giving rise to the liability.
8. TERM AND TERMINATION
8.1 Each Agreement shall commence on the Insertion Order Effective Date stated on the applicable Insertion Order and shall remain in force until the Services have been delivered in accordance with the Insertion Order or that Agreement is terminated earlier pursuant to this Clause 8 or Clause 11.1 (Force Majeure).
8.2 BuzzMyVideos may terminate an Agreement by giving not less than 30 days’ prior written notice to the Customer. 8.3 Either party may suspend performance of and/or terminate an Agreement immediately by notice in writing to the other if the other party:
(a) is in material breach of that Agreement and, in the case of a breach capable of remedy, fails to remedy the breach within 15 days of receipt of written notice giving full details of the breach and of the steps required to remedy it; or (b) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
(c) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
(d) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
(e) ceases, or threatens to cease, to carry on business; or
(f) the other party suffers or there occurs in relation to that party any event which in the reasonable opinion of the non-defaulting party is analogous to any of the events referred to in sub-clauses (b) to (e) in any part of the world
8.4 Any termination of an Agreement shall be without prejudice to any other rights or remedies either party may be entitled to under that Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision in that Agreement which is expressly or by implication intended to come into force on or continue after such termination.
9. CONFIDENTIALITY
9.1 The recipient of any Confidential Information will not disclose that Confidential Information, except to employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities: (a) use such Confidential Information only to exercise rights and fulfil obligations under the applicable Agreement, and (b) keep such Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
9.2 Neither party can advertise or publicly announce, communicate or circulate the existence of an Agreement or any association with the other party without the prior written consent of the other party (such consent not to be unreasonably withheld, delayed or conditioned).
10. NON SOLICITATION
The Creator shall not (without the prior written consent of BuzzMyVideos) employ, offer to employ, engage, or otherwise solicit any Personnel of BuzzMyVideos until expiry of a period of six calendar months from the date of expiry of the applicable Agreement.
11. MISCELLANEOUS
11.1 Neither party shall be in breach of an Agreement nor liable for delay in performing, or failure to perform, any of its obligations under that Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
11.2 The Creator shall not assign, sub contract or otherwise transfer its rights or delegate its obligations under an Agreement, in whole or in part, without the prior written consent of BuzzMyVideos.
11.3 BuzzMyVideos may sub-contract or assign or transfer any of its obligations or rights under an Agreement in whole or in part at its sole discretion.
11.4 The Agreement(s) constitute(s) the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into an Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of this Agreement at any time before its signature (together “Pre-Contractual Statements”), other than those which are set out in this Agreement. Each party waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
11.5 If a provision of an Agreement is held to be illegal or unenforceable, in whole or in part, under an enactment or rule of law, it shall to that extent be deemed not to form part of that Agreement and the enforceability of the remainder of the Agreement shall not be affected.
11.6 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in an Agreement.
11.7 No failure or delay by a party to exercise any right or remedy provided under an Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.8 Nothing in an Agreement is intended to, or shall be deemed to, establish any employment relationship, partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided herein. Creator at all times is acting as an independent contractor in relation to its provision of the Services. If any supervision and direction of any Creator Personnel providing the Services is required, Creator is responsible for providing such supervision and direction. No Creator Personnel shall work under the supervision and direction of BuzzMyVideos. The understanding and intention of both parties is that no individual providing the Services on behalf of Creator will be an ‘agency worker’ within the meaning of the Agency Workers Regulations 2010 (“AWR”) and that AWR will not apply in respect of the Services provided under an Agreement.
11.9 An Agreement may be executed in two counterparts each of which shall be deemed an original and which, when taken together, shall constitute one and the same instrument, but the Agreement shall not be binding upon the parties until it has been signed by both parties.
11.10 Nothing in an Agreement shall confer on any third party any benefits under the provisions of the Contracts (Rights of Third Parties) Act 1999.
11.11 All notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address or other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
11.12 The parties shall: (i) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); (ii) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (iii) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of an Agreement.
11.13 To the extent that the nature of the Services requires the Creator to process Personal Data, Creator shall process all Personal Data in accordance with DP Laws and comply with any reasonable instructions from and on behalf of BuzzMyVideos regarding the processing of that Personal Data. To the extent that the Services consist of the development of a software, Creator shall develop the software having regard to DP Laws and the concept of privacy by design.
11.14 Each Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and with the sole exception of any application for injunctive relief, the parties submit to the exclusive jurisdiction of the English Courts. Any translation of the English language, English law and court Agreement (the “Original Agreement”) is provided for convenience only and Customer agrees that in the event of a conflict between the translated version and the Original Agreement, the Original Agreement prevails.
