Scope of Agreement
- The following General Terms and Conditions apply to all contracts and services rendered between and/or by Portugate SA (trading as Replai) and its customers (“Customer”) with regard to the use of Replai’s Creative Insights Platform (hereinafter the “Services” and the “Platform” respectively)2.
- Replai and the Customer are hereinafter referred to jointly as the “Parties” and individually as “Party”.
- The terms of this Agreement will form the contract for the Services between Replai and the Customer, upon the execution of an individual order (“Quote”) by both Replai and the Customer. The provisions of this Agreement shall apply in addition to any provisions contained in the Quote.
- The Customer intends to use the Services as outlined in the Quote.
- In order to achieve such goal, and subject to and in accordance with the terms and conditions of this Agreement, Replai shall provide credentials to the Customer to use the Services and the Customer commits to:Support the implementation of Replai by sharing access to all Networks and Creatives being integrated.
Within the provision of the Agreement, Replai undertakes to:
- Execute in full and on a timely manner all the tasks covered by this Agreement, with the effectiveness, care, diligence and competence as required from an entity qualified to provide a Platform of this type.
- Always act in accordance to any applicable legal rules and contractual clauses and according with the needs expressed by the Customer.
- Take all the industry-standard security measures appropriate to protect the information submitted to the Platform against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access. These measures ensure a level of security appropriate to the risks presented by the processing and the nature of the information to be protected having regard to the state of the art.
- Allocate the human and technical resources needed and suitable for the good execution of the Agreement.
- Immediately provide all the information requested by the Customer if it is related to the activity carried out by Replai under this Agreement.
Within the provision of the Agreement, the customer undertakes to:
- Provide Replai with all relevant information which is reasonably necessary for the provision of the Agreement, provided that to the extent such information requested by Replai includes personal data, the Parties shall execute a mutually agreed data protection agreement to ensure their compliance with any applicable data protection laws.
During the provision of the Services the Parties may have access to the confidential information and proprietary information of the other Party.
- “Confidential Information” hereunder shall include all trade secrets, patent and patent applications, ideas, whitepapers, samples, models, processes, techniques, methods, drafts, equipment, algorithms, know-how, business information including, but not limited to financial information, research, experimental or developmental information, customer and client lists and prospect lists, employees and contractor relationships and terms, the terms of this Agreement, marketing plans and any and all other similar information, whether or not marked “confidential”. All information exchanged between the Parties before the date of this Agreement shall be considered as “Confidential Information”.
- The Parties agree specifically agree to:
– Keep confidential and to not disclose to any third party the Confidential Information of the disclosing Party, or any details thereof, or any information relating thereto or derived or developed therefrom, without first obtaining express written authorization from the disclosing Party.
– Use at least the same standard of care to protect the Confidential Information as the disclosing Party employs for the protection of its own proprietary information, but in no case less than a commercially reasonable standard of care.
– To take necessary measures to protect the secrecy of and avoid disclosure and unauthorized use of Confidential Information of the disclosing Party.
- Confidentiality is a material part of this Agreement and is intended to apply to and be binding upon the Parties, its agents, employees and other representatives.
- The obligations of confidentiality will apply during the term of this Agreement and will survive for a period of 5 years following termination of this Agreement.
- The Customer acknowledges that all intellectual property rights including copyright, design rights, property rights, rights to data and databases, trademarks, service marks and any other rights in the Platform shall remain the sole and exclusive property of Replai. This Agreement does not purport to grant, assign or transfer any rights in the Services to the Customer.
- For the avoidance of doubt, all rights, including copyright, in any work or invention created at any time by Replai in the course of or in connection with this Agreement should be understood as Replai IP and belong to Replai, without the need to make any additional payment of residuals, royalties or similar payments and/or fees.
- The Customer may not use any intellectual property materials provided by Replai during the Agreement for any purpose other than that contracted for in this Agreement except with the written consent of Replai.
Replai hereby grants to the Customer a non-exclusive, irrevocable, worldwide, fully paid and royalty-free license, to use the Platform as well as to display it and publish, by all means now known or later.
Replai warrants that:
- The Platform will perform substantially in accordance with any specification Replai has provided to the Customer;
- The Platform itself (and not any material uploaded or linked to the Platform by the Customer) shall not infringe any third party’s intellectual property rights;
- It has the authority and right to license all rights to and in the Platform as set out in this Agreement.
- The Parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between them. This Agreement will not create an exclusive relationship between the Parties.
Assignment of Contractual Position
- This Agreement is entered into “intuitus personae” and therefore neither Party may assign, in whole or in part, to third parties its position in this Agreement without the prior written consent of the other Party.
Governing Law / Jurisdiction
Within the provision of the Agreement, Replai undertakes to:
- This Agreement shall be governed by Portuguese law.
- This Agreement is, as an essential consideration, based on the good faith and intentions of the Parties, which undertake to seek solutions by way of negotiation, in the event of difficulty of application and/or performance.
- If an amicable settlement cannot be reached in the event of a dispute relating to the formation, interpretation and/or performance of the Agreement, the Courts of Porto shall have exclusive jurisdiction to hear such dispute.
The waiver by the Parties of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
This Agreement is signed on the dates shown by both Parties. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Execution via electronic means, such as via DocuSign, shall be deemed valid execution for the purposes of this Agreement.