Terms And Conditions
MASTER SERVICES AGREEMENT
Scope of Services
Switch Performance Marketing is a trading style of TokenAds Ltd, and shall perform digital media services or marketing services including but not limited to the services described in each Insertion Order (the “Services”).
Binding Agreement and Insertion Orders
This Agreement between the Parties (the parties being TokenAds Ltd (Herein known as TokenAds) and the company or individual signing an Insertion order) shall constitute a binding agreement, the terms and conditions of which shall apply to each Insertion Order or addenda to any Insertion Order. An Insertion Order shall be binding upon the Client (also known as the Advertiser) when an Insertion Order is executed by both TokenAds and a Client/ Advertiser. In the event of any inconsistency between the terms of an Insertion Order and this Agreement, the terms of the Insertion Order shall prevail.
In addition to any descriptions of Services set forth in an Insertion Order, certain Services that may be listed from time to time in an Insertion Order are described as follows:
- Digital Media Buying
- Call Centre Outsourcing, Outbound Telemarketing, Telesales
- Content Distribution: Digital Advertisement Placement, Sponsored Article Placement, Native Advertising Distribution, Display Advertisement Distribution, Video Advertisement Distribution, Email Distribution, Push Notification Distribution, Search Engine Marketing.
- Campaign Reporting & Optimization: Analytical Reporting, Campaign Bidding Adjustments, Campaign Schedule Adjustments, and Campaign Budget Allocation Adjustments.
- Content Development: Content Creation; Video Production, Content Editing, Image Curation
- Web Development: Website creation, Landing Page creation, Software Setup and Configuration
Third Party Service Providers
The Client acknowledges and agrees that during the course of providing the Services, TokenAds may use the services of carefully chosen certain third parties, including, without limitation, TokenAds Ltd, and accordingly, the Client agrees to provide TokenAds with any additional information or materials required by such third parties to provide their services.
This Agreement shall commence on the Effective Date for a term of one (1) year following which it will be automatically renewed for successive one (1) year terms unless or otherwise terminated by either Party giving the other Party at least thirty (30) days written notice of termination.
Billing and Payment Terms
TokenAds shall be paid for the Services pursuant to the rate and other particulars set forth in the Insertion Order. If any invoice is not paid by the Client within seven (7) days of the date of such invoice, TokenAds may suspend its performance under the Insertion Order without liability or penalty at its sole discretion. Interest shall accrue on the balance of any overdue invoice at a rate equal to one and one half percent (1.5%) per month or eighteen percent (18%) per annum. TokenAds may also impose a late payment penalty equal to five percent (5%) of any overdue balance. The Client and its principals shall bear TokenAds’ costs of collection, including reasonable attorney’s fees, court costs and related expenses.
Representations and Warranties
- The Parties represent and warrant that:
- they are companies duly organized and in good standing within their respective jurisdictions.
- this Agreement has been duly authorized, executed and delivered.
- this Agreement, when executed does not violate any existing agreements to which the Parties are otherwise bound.
- Additionally, the Client warrants and represents to TokenAds that with respect to any information or materials provided by the Client to TokenAds, including, without limitation, any intellectual property of any kind (the “Materials”), the Materials nor any part thereof violate or will violate, or infringe or will infringe, any trademark, trade name, contract, agreement, copyright (whether common law or statutory), patent, literary, artistic, dramatic, personal, private, civil, or property right or right of privacy or “moral right of author”, or any law or regulation or other right whatsoever of any person, firm, corporation or association.
During the course of providing Services throughout the term of this Agreement, each Party shall come into possession of confidential materials and proprietary information that pertains to the other Party’s business. Such information includes, but is not limited to product samples, marketing strategies, business processes, client lists, prospect lists, member names and other database information, marketing records and procedures. Such information is hereby deemed the exclusive property of the disclosing Party and shall not be divulged, utilized, or made accessible to any third Party except as is required to perform the services covered under the terms of this Agreement. The receiving Party shall return Confidential Information to the disclosing Party upon the completion of services or if requested in writing by the disclosing Party. It is further expressly understood that all information relating to TokenAds industry contacts, processes, systems, data collection methodologies and analytic reports and procedures used to support the Services described in this Agreement are confidential and belong exclusively to TokenAds and may not be copied or made available to any third Party, individual, organization or business without the consent of TokenAds. These obligations with respect to confidential information, shall survive the termination of this Agreement. Neither Party shall be held responsible for similar information already in the public domain or be held responsible for any similar information that may enter the public domain through no fault of the other Party.
Ownership of Work Product
As part of the Services, TokenAds may create or cause to be created content in a variety of media formats for the benefit of Client. Subject to the restrictions noted below, TokenAds agrees and acknowledges that images, logos, trademarks, slogans, artwork, videos, written materials, drawings, photographs that are created specifically as part of this content for the Client by TokenAds (or caused to be made for TokenAds by its contractors) under this Agreement and accepted by the Client (collectively the “Content Work Product”) are the property of the Client. However, the Client agrees and acknowledges that some aspects of intellectual property used in connection with the Services provided to the Client by TokenAds under this Agreement such as original work, ideas, concepts, images, trademarks, photograph, graphic material, film, music, other materials names, processes and procedures may be subject to copyright, trademark, patent, or similar protection owned and/or controlled and/or licensed by TokenAds, (collectively the “Intellectual Product”). To the extent any part of the Content Work Product is either owned by TokenAds or licensed to TokenAds by a third party for TokenAds’s use and enjoyment, TokenAds shall retain all rights, title, and interest in and to the licensed portion of the Content Work Product and to any modifications or improvements made thereto and TokenAds may use such parts of Content Work Product as part of its services to other (non-Client) parties. For greater clarity, it is understood that TokenAds may, on occasion, use licensed materials from third parties or its own Intellectual Product for inclusion in Content Work Product. In such circumstances, ownership of such licensed materials remains with the licensor or with TokenAds, as the case may be, at the conclusion of the term of the license and does not belong to the Client.
Acceptance of Content Work Product
After review of TokenAds’ Content Work Product, the Client shall provide TokenAds with acceptance of the Content Work Product. Client shall have three (3) business days to approve such Content Work Product. After the expiration of three (3) business days, TokenAds will make a second request for approval for response due in twenty-four (24) hours. If no response is received to the second request within twenty-four (24) ours, then the Client shall be deemed to have approved such Content Work Product. It is understood that TokenAds shall not be obligated to make an independent investigation of any information provided by the Client and that TokenAds shall have the right to rely exclusively upon the accuracy of all statements (financial, reporting and otherwise), information and documents provided by the Client to TokenAds.
Grant of License to Content Work Product
TokenAds grants the Client a limited, non-exclusive right to use any aspect of the Content Work Product not owned by the Client, but only for the uses associated with the projects described in a Insertion Order, agreed by the Parties, and only in the event the following conditions are met: (1) such Content Work Product is accepted in writing by the Client; (2) Client pays all fees and costs associated with creating and, where applicable, producing such Content Work Product.
Performance Marketing Campaigns, CPC, CPL, CPA
In the event that TokenAds agrees to enter into an Insertion Order where the payout is dependant on a billable action, such as a “cost per click” (CPC), “cost per lead” (CPL) or “cost per acquisition” (CPA) then TokenAds shall be entitled to receive such payment based on every gross “click”, “lead” or “acquisition” delivered, unless otherwise stated on an insertion order. In the event that the Client or Advertiser wishes to request to “scrub” or make any deductions whatsoever, (such deductions may be known as a “cancellation”, “wrong details” or “fraudulent” submissions) then the Client or Advertiser must provide such evidence as to the details of the “cancellation”, “wrong details” or “fraudulent” submission within 7 days of delivery, and TokenAds shall investigate and provide a response back to the Client or Advertiser within a reasonable timescale, (such evidence must include sufficient evidence for TokenAds to investigate the case including i) the date and time of delivery of any advertisement or email message, ii) reason for the proposed investigation (i.e cancelled, wrong details or fraudulent lead) AND the correct details as to the origination of the traffic source, affiliate or vendor which had delivered “click”, “lead” or “acquisition”. No Client or Advertiser shall be entitled to make any deductions from any invoice for any “cancellations”, “wrong details” or “fraudulent” submissions unless it is explicitly agreed in an insertion order or agreed in writing between TokenAds and the Client or Advertiser. Subject to an insertion order, the Client or Advertiser accepts that it shall make payments to TokenAds on the basis of all gross “clicks”, “leads” or “acquisitions” delivered and TokenAds reserves the right in its sole discretion whether to accept or reject any requests by the advertiser to make any deductions, with any request for deductions being received within 7 days of delivery, unless otherwise stated on an insertion order.
Indemnification & Liability-TokenAds
Generally the client accepts use of the Services on an “as is” basis and TokenAds shall not be liable for any damages or consequential losses arising as a result of the services, however TokenAds shall indemnify, defend and hold harmless Client, its parents, subsidiaries and affiliates, their respective members, directors, officers, employees, agents, attorneys, affiliates, successors, and assigns from all claims, losses, liabilities, damages, suits, actions, government procedures, taxes, penalties or interest, associated auditing and legal expenses and other costs incurred by Client (including reasonable attorneys’ fees and costs of suit), arising from TokenAds’: (a) material breach of its duties hereunder; (b) misrepresentation or breach of any representation, warranty, obligation or covenant of this Agreement. Notwithstanding the foregoing and notwithstanding any other provision of this Agreement: (a) the total liability, in the aggregate, of TokenAds and its officers, directors, partners, employees and assigns, for any and all claims, losses, costs or damages, including attorneys’ fees or claims expenses resulting from or in any way related to this Agreement and any Insertion Order shall not exceed the total sum of €1.00
Indemnification & Liability-Client
The Client shall indemnify, defend and hold harmless TokenAds, its directors, officers, employees, agents and subcontractors and assigns from all claims, losses, liabilities, damages, suits, actions, government procedures, taxes, penalties or interest, associated auditing and legal expenses and other costs incurred by TokenAds (including reasonable attorneys’ fees and costs of suit), which in any way arise out of: (a) Client’s instructions to TokenAds regarding performance of TokenAds’s duties hereunder; (b) Client’s misrepresentation or breach of any representation, warranty or covenant of this Agreement. (c) Client’s breach of any laws or regulatory requirements in any particular jurisdiction. The Client’s indemnity shall be unconditional and unlimited in amount up to €50M.
Limitation of Liability
The Client acknowledges and agrees that TokenAds has not and will not made any formal inquiries into whether its provision of any Services or Work Product will violate any applicable securities legislation or other laws of any nature and kind and TokenAds shall not be liable for any claims or losses of any kind relating to any violation or infringement of the aforementioned laws. It is intended that the foregoing limitations apply to any and all liability or cause of action however alleged or arising.
TokenAds’ Freedom to Work
The Client acknowledges that TokenAds and its’ suppliers, affiliates and subcontractors are in the business of providing strategic digital marketing, outbound call centre services and data services to others. Nothing herein contained shall be construed to limit or restrict TokenAds in conducting such business with respect to others, or in rendering such advice to others. TokenAds shall perform its services hereunder as an independent contractor and not as an employee of the Client or affiliate thereof. It is expressly understood and agreed to by the Parties hereto that TokenAds shall have no authority to act for, represent or bind the Client or any affiliate thereof in any manner, except as may be agreed to expressly by the Client in writing from time to time, and as necessary to complete an Insertion Order.
The provisions of this Agreement shall be binding upon and accrue to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. Neither Party shall assign this Agreement without the express written consent of the other Party.
The headings in this Agreement are solely for the convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
Only a written instrument signed by the Parties hereto may amend this Agreement.
This agreement is governed by the laws of England and Wales. This Agreement is deemed to be executed in England, which shall be the sole venue for any causes of action arising from this Agreement.
During the term of this Agreement and for a period of one (1) year thereafter, the Parties agree not to solicit or attempt to interfere or contract with, any employee or third party client or supplier of the other Party who became known to the other Party as a result of performing duties under this Agreement.
The failure of either Party to insist upon strict performance of a provision or to exercise any right hereunder shall not be construed as a waiver of such Party’s right to rely on such provision or assert any such right in that or any other instance.
The obligations contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 14 of this Agreement, along with any Indemnification provisions of any kind set out in this Agreement (including any Insertion Order) shall survive the termination of this Agreement for a period of one (1) year.
Any delay, waiver, or omission by the Client or TokenAds to exercise any right or power arising from any breach or default of the other Party in any of the terms, provisions, or covenants of this Agreement shall not be construed to be a waiver by Client or TokenAds of any subsequent breach or default of the same of other terms, provisions, or covenants on the part of the other Party.
This Agreement and any Insertion Order thereunder may be executed in counterparts, each of which shall be deemed one and the same instrument. A facsimile/ email transmission of this Agreement and any Insertion Order thereunder bearing a Party’s signature shall be legal and binding on such Party.
The invalidity or illegality of any portion of this Agreement shall not affect the validity or legality of any other provisions.
Neither Party shall be or represent itself to be an agent, employee or joint venture of the other, nor shall either Party have or represent itself to have any power or authority to act for, bind or commit the other.
All notices and other communications provided from herein shall be in writing and shall be deemed to have duly given if delivered by hand or sent by registered or certified mail or email with receipt, to the Party to whom it is directed.
Uncontrollable Events (Force Majeure)
No Party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such Party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the Party so affected shall give prompt notice to the other Party of such delay and the reasons for such delay. The Party so affected, however, shall use its best efforts to avoid or remove such causes of non-performance and to complete performance of the act delayed, whenever such causes are removed.
Additional Assurances and Documents
The Parties further agree to execute, acknowledge and deliver to each other, or procure the execution, acknowledgment and delivery to each other of any and all further assignments and other instruments, in form approved by counsel for each of the Parties, acting reasonably, necessary or expedient to carry out and effectuate the purposes and intent of the Parties as herein expressed.
The Advertiser recognises that TokenAds has proprietary relationships with its end suppliers, affiliates, advisors, consultants and third party technology and media providers. The Advertiser shall not directly or indirectly commit any act or seek to interfere with or circumvent TokenAds relationships with the aforementioned. In the event of interference on the part of the Advertiser either directly or indirectly, TokenAds shall be entitled to claim any and all loss, damages and/ or consequential losses against the Advertiser and in the event of any direct or indirect interference with TokenAds’ economic relationships TokenAds shall be entitled to recover those costs, loss and damages and/ or offset these against any balance held on account.
The advertiser recognises that upon signing an insertion order or making an advance payment in relation to an insertion order, TokenAds shall incur business costs in preparation of any advertising campaign relating to the insertion order and TokenAds may also make financial commitments to third parties, which are reliant upon an insertion order. Unless otherwise expressly agreed in writing and detailed on an insertion order, an insertion order may not be cancelled by an Advertiser and must be paid in full. Any advance payments made in relation to an insertion order, whether signed by the Advertiser or not, are non-refundable. In the case where an Advertiser may wish not to proceed with the services detailed in an insertion order prior to their commencement, the parties may enter into a mutual discussion as to whether TokenAds may consider a partial refund or discount on the services, with any such discussion being entirely at the discretion of TokenAds and notwithstanding that an insertion order may not be cancelled by an Advertiser, and any sums paid by an Advertiser in relation to an insertion order are non-refundable. On receipt of any advance payment in relation to an insertion order, any delay on the part of an advertiser or period of inactivity on the part of an advertiser longer than nine months shall deem that the insertion order is completed and that any unspent funds shall cease to be held on account by TokenAds, accordingly the advertisers’ account balance shall default to zero.
This Agreement and any Insertion Orders created pursuant to this Agreement, along with any schedules or appendices attached thereto, if any, contains the entire agreement between the Parties respecting the subject matter, and supersedes all other agreements whether written, or oral between the Parties, it being expressly understood that there are no other representations, terms, warranties, conditions, guarantees, promises, agreements, collateral contracts or collateral agreements express or implied, or statutory, other than those contained in this Agreement and that this Agreement represents the whole of the Agreement between the Parties, and no alteration, modification or amendment hereof shall be binding unless made in writing and signed by the Parties hereto.
Insertion Order(s) may contain references to services, which can be described below
Which may be used in the performance of the media campaign may include but not limited to:
- Pixel generation
- Tracking set up in advertising platform(s)
- Additional tracking/ analytics as may be agreed from time to time
Media Buying & Distribution
Which may be used in the performance of the media campaign:
- Native Ad Distribution
- Display Ad Distribution
- Retargeted Ad Distribution
- Social Media Ad Distribution
- Mobile Ad Distribution
- Email and/ Database marketing
- Video Ad Distribution
- In-app Ad Distribution
- Press release, article or content distribution
- Search Engine Marketing
Which may be used in the performance of the media campaign:
- Conversion Funnel Architecture
- Multi-Channel Media Planning
- Investor Targeting
- Proprietary Audience Segments
- A/B Testing
- Heat Mapping and Behavior Analysis
- Creative Optimization
- Traffic Optimization
- List Building / Lead Generation
- Analytics Setup & Strategy
Which may be used in the performance of the media campaign:
- Editorial Content
- Optimised 3rd Party Articles
- CEO Interview Videos, Podcasts
- Landing Page Optimisation
- Microsite Creation
- Ad Creative Development
Campaign Reporting & Optimization Deliverables
- Analytical Reporting Services
- Campaign Bidding Adjustments
- Publisher whitelist/ black list
- Campaign Schedule Adjustments
- Campaign Budget Allocation Adjustments
- Campaign Insights & Recommendations
- Monthly Reporting Summaries
- On-Demand Reporting Summaries
Call Centre and Outbound Telemarketing Services
- Outbound telesales
- Energy switching
- Outbound telemarketing/ lead generation
Consultancy and Growth Accelerator Services
Switch Performance is a trading style of TokenAds Ltd is specialised in providing consulting and management services in the areas of digital marketing, business consulting and advertising;
WHEREAS, CLIENT is requesting support in;
- Identification of marketing niche, creation of messaging and high-impact offer
- Validation of business unit economics and marketing access channels
- Scale up, campaign optimisation and increase sales
On the one hand, CLIENT is willing to retain services of TokenAds, and, on the other hand, TokenAds is willing to make its’ personnel available to provide such services. A stated an insertion order, CLIENT agrees to pay TokenAds a monthly fee to be paid in GBP, with such fee being due at the beginning of the insertion order and each month thereafter. In exchange for this fee, TokenAds shall provide assistance to the CLIENT in the three supporting areas detailed above unless otherwise agreed in writing from time to time. The fee does not include any additional services, commissions or expenses, which are billed according to the terms set herein.
FEES unless otherwise agreed in writing:
- Company Director £275 per hour for the first 16 hours, £450 per hour thereafter
- Associate Specialist(s) £325 per hour, unless otherwise agreed in writing
Each month the CLIENT shall provide details of any commission due to TokenAds, which shall be paid on a monthly basis with 7 days of invoice.
Should the billable fees or any additional services and/ or expenses exceed an amount agreed in an Insertion Order, TokenAds shall notify the CLIENT and any additional fees shall be itemised and billed to the client on a monthly basis, payable within 7 days of invoice.
Services to be carried out from the UK at the discretion of TokenAds Ltd, unless otherwise agreed with the client.
The parties expressly acknowledge that the parties hereto are independent contractors and nothing contained in this Agreement shall be construed to constitute an employment, partnership or joint venture contract.
TokenAds makes no guarantees or warranty whatsoever in relation to the performance of the; consultancy or growth acceleration services, the overall business performance, performance of systems or web traffic or the outcome of the services. The results or outcome of the services is entirely the sole responsibility of the CLIENT and may vary depending on other factors either under the control of the client or outside control.
Term and Timeframe
- Commencement date: as agreed between the parties or as stated on an insertion order
- Conclusion to be determined or based on budget exhaustion unless otherwise stated in an insertion order
Shall be as per any Insertion Order.
Advertising campaigns and any work detailed on an insertion shall commence on receipt of cleared funds unless otherwise stated in an Insertion Order.
TokenAds Ltd, 20-22 Wenlock Road, London, United Kingdom, N1 7GU, Reg No. 11998028