General Terms and Conditions of Service for Provision of Services to Customer
Updated [April 17, 2017]
Key Content, S.L. (“Key Content”) offers to Customer the opportunity to receive consultancy services content marketing services and online marketing services, as well as ordering text and/or article production about specific topics. Key Content assigns these projects to authors, who complete the assignment according to Customer’s specifications, and delivers these in bundled form (dependent upon order volume) to Customer. The specifications of these assignments will be defined in the Purchase Order (PO) issued by Key Content.
The processing duration of a project shall be agreed upon on an individual basis between the Customer and Key Content defined in the Purchase Order signed by Customer from time to time during the performance of these Ts&Cs.
The Parties agree that these Ts&Cs shall apply to any Purchase Order entered into in the performance of these Ts&Cs. In case of conflict, the agreed terms in the Purchase Orders shall prevail over these Ts&Cs.
Moreover and in case of Termination of these Ts&Cs for whatever cause, the Services and/or Deliverables requested at each and all Purchase Orders in course of action shall cease and be terminated at the same time and on the same date as these Ts&Cs.
Both Parties accept the online service “Copyscape” (www.copyscape.com) to determine the uniqueness of texts. Copyscape is a standard and integral component of Customer’s processing system to check for plagiarism. Texts determined to be unique content by Copyscape are also considered unique in the contractual relationship between both Parties. Documentation of plagiarism checks by Copyscape is made by saving so-called log files.
All Services and Deliverables rendered by Key Content will be at a price determined and set out in the Purchase Orders.
From time to time, Key Content will render Services lacking a Purchase Order but have been agreed in writing with Customer beforehand.
All Services rendered, with or without Purchase Order, will be invoiced at the end of the recurrent month and will have to be payed within thirty (30) natural days.
Customer agrees to pay (50%) of Fees at the moment of signing of the Purchase Order as an advance payment to Key Content unless stated otherwise in the signed PO.
Capitalized terms used but not defined herein have the meanings assigned to them in the Purchase Order to which these Terms and Conditions (“Ts&Cs”) are attached and of which they form a part.
As used herein, “Key Content” shall mean the “Issuer” as defined in the Purchase Order, and “Customer” shall have the meaning as defined in the Purchase Order.
Customer wishes to engage Key Content to provide consultancy, content marketing and online marketing services (the “Services”) and deliver the Deliverables (as defined below) and Key Content has agreed to do so on these Ts&Cs.
These Ts&Cs, as updated, shall apply to any agreement between Key Content and Customer for the supply of consultancy, content marketing and online marketing services and delivery of Deliverables by Key Content to Customer in virtue of a Purchase Order. Key Content and Customer shall be bound by these Ts&Cs from the moment of execution of a Purchase Order.
Key Content and the Customer shall be hereinafter referred to separately by “Party” or jointly by “Parties”.
THE PARTIES AGREE:
In these Ts&Cs the following words and phrases have the meanings given below:
- “Agreed Schedule”
- dates and times when Key Content is to deliver Deliverables to Customer as stipulated in specific Purchase Orders (POs).
- the appointment of Key Content on the terms of these Ts&Cs.
- “Associated Company”
- means, in relation to a Party, any company which is for the time being and from time to time a subsidiary or holding company of a Party or a subsidiary of any such holding company, or whereby the shares of that company are held directly or indirectly by a Party.
- “Commencement Date”
- shall be the date the Purchase Order is signed and specified under “Location, Date.”
- the deliverables to be delivered by Key Content to Customer under these Ts&Cs as specified in the “Introduction”.
- the fee to be paid to Key Content in accordance with Clause 5 and as calculated in accordance with the terms stipulated in the “Introduction”.
- A Party and/or any Associated Company.
- means the individual(s) or authors which Key Content will put in charge of producing the Services and Deliverables according to the “Introduction” and Clause 10 herein.
- “Intellectual Property Rights” (IPR)
- all patents, copyrights and related rights (including rights in computer software), database rights, design rights, trademarks, service marks, trade names, rights in undisclosed or confidential information (such as know-how, trade secrets and inventions (whether patentable or not), and internet domain names and other rights of a like nature (whether registered or unregistered) and all applications for such rights as may exist anywhere in the world and all licences and consents in respect of any of the rights or protections mentioned in this definition.
- the individuals nominated by each Party from time to time to be a point of contact with each other on behalf of the Parties.
- the services to be provided by Key Content on monthly basis under these Ts&Cs as specified in the “Introduction”.
- “Purchase Order or PO”
- The specifications of assignments as defined in a Purchase Order requested and accepted by Customer from time to time during the term of these Ts&Cs.
- the period of 12 months starting from the Commencement Date or if later, until the services to be provided in virtue of a Purchase Order are completed and paid for.
- the ending of the agreement for provision of services governed by these Ts&Cs between Key Content and Customer however it arises and irrespective of its cause or manner.
- References to acting directly or indirectly, alone or jointly, with or on behalf of or by means of another person and/or giving advice or providing services with a view to assisting another person.
- References to a person include an individual, firm, corporation and any other organisation however it is constituted and words denoting the singular include the plural and vice versa.
- References to statutory provisions are construed as references to those provisions as amended or re-enacted from time to time (whether before or after the Commencement Date).
- The Clause headings are added for convenience only and do not affect the construction of these Ts&Cs.
- Customer appoints Key Content as provider of the Services during the Term and Key Content agrees to provide them under these Ts&Cs.
- Key Content warrants and agrees with Customer that:
- Key Content will remain exclusively entitled to the Services of the Individuals and has the right to make their services available to Customer; and
- Key Content will be solely responsible for ensuring payment to the Individuals and permitted sub-contractors of all remuneration and expenses to which they may be entitled in respect of the Services and for all tax and/or labour liabilities and other amounts due in respect of monies payable in connection with such payments and benefits. Notwithstanding the foregoing, if Key Content could not face the mentioned payments on time due to Customer’s failure to comply with Clause 5 herein without any justified cause, Customer will be liable for the additional expenses that might be claimed by any of the Individuals, permitted subcontractors or competent authority.
- Key Content will provide the Services in accordance with the Scope of Works (“Introduction”) and will procure that they are provided by the Individuals in such territories and on the Agreed Schedule as are reasonably agreed with Customer.
- Key Content will deliver the Deliverables to Customer in accordance with the “Introduction”.
Key Content warrants that:
- it will exercise and continue to exercise in the performance of the Services, all reasonable care, skill and diligence as may reasonably be expected of a professional, properly qualified and competent agency undertaking consultancy services for projects of a similar nature and complexity;
- the Services will be provided within the Agreed Schedule or, if no such time limits are specified, in a timely manner; and
- any work undertaken in the performance of the Services shall be undertaken with the highest standards of care and diligence.
- Both Parties agree to behave in a proper and reasonable manner.
- Through their Representatives, both Parties will at all times keep each other fully and properly informed on all aspects of the progress and performance of the Services and provide each other with all such other information in connection with the Services and Deliverables as may be reasonably required in the context of the Services.
If Key Content is unable to provide the Services for any reason, Key Content will:
- immediately inform the Representative of Customer of that fact, giving the reason and the likely duration of the delay together with its best estimate of the likely effect on the project plan; and
- grant Customer the right to extend the Term for a period equivalent to the period of delay.
- Customer acknowledges that Key Content determines the manner in which the Services are provided, as long as they are provided in a manner which is consistent with these Ts&Cs and in accordance with the instructions of the Representative and are provided in the most effective manner consistent with the required level of quality and performance.
Key Content will not do or say anything that:
- is inconsistent with any Customer’s policy; or
- may reflect adversely on, or be harmful to, the business, reputation or prestige of Customer.
Customer will not do or say anything that:
- is inconsistent with any Key Content’s policy; or
- may reflect adversely on, or be harmful to, the business, reputation or prestige of Key Content.
- Key Content will be allowed to use, in accordance with the terms of article 3.8 above, Customer’s brand logo, as a member of its portfolio of clients, in its web page, as well as in any sales presentation, business event or meeting that it may hold, always respecting the indications of the logo’s style guide provided by Customer.
- The Parties shall comply with any applicable laws or regulations which may apply from time to time to the performance of their obligations under these Ts&Cs.
- Key Content shall procure that the Individuals shall perform their duties in a manner consistent with the terms of the terms of these Ts&Cs and shall comply with the reasonable instructions of Customer during the.
- Customer shall be entitled to require Key Content to immediately withdraw all or any of the Individuals from the provision of Services providing proof of the incompetence, lack of technical ability or incompatibility of the temperament of one or more of the Individuals concerned, or if the Individual concerned does not conduct himself in accordance with reasonable and generally accepted norms of professional conduct in force from time to time.
- Poaching potential authors or Individuals and any attempts in this direction or attempts to contact or cooperate with them (directly or indirectly) by Customer, without the express written content of Key Content, is considered a breach of contract and results in immediate termination of collaboration and assertion of claims by Key Content in such an event.
- Any attempt by Customer to contact, directly or indirectly, a potential author or an Individual, shall result in, at Key Content’s sole discretion, the Termination of these Ts&Cs and Key Content’s obligations under the Purchase Order. Additionally, independently if these Ts&Cs are terminated, Customer will be obliged to pay to Key Content any Fees for any Services provided up to the moment (not needing these to be accepted by Customer and a €5,000.00 (five thousand euros) penalty fee for any and each attempt to contact a potential author or Individual, in addition to any further compensation owed for damages and loss of profits and goodwill to Key Content. This provision shall apply during the Term and a period of two years after the Termination.
- Customer will pay Key Content under the terms set out in the “Introduction” plus any Value Added Tax (VAT) for the Services and the Deliverables.
- The invoice will be issued and sent to Customer on a monthly basis by Key Content at the end of the relevant month and payable by Customer in the term of thirty (30) natural days as from the date of the invoice; subsequent deliveries will not be rendered by Key Content unless the previous invoices have been paid in full by Customer.
- In addition to the Services, Key Content shall perform such other services in relation to the project as Customer may from time to time request in writing (a “Change Work Order”) subject to an additional fee to be agreed between the Parties.
- The Fee shall include and be deemed to cover all fees and expenses paid or payable by Key Content to any agent, substitute or sub-contractor.
TAXES AND EXPENSES
- Key Content will be responsible for the payment of all taxes, national insurance, social security, transportation, insurance, medical costs, pension contributions and other amounts due in respect of the Individuals in connection with their employment by Key Content.
- Customer is not responsible for paying any expenses (such as travel, hotel, meals and related costs).
- Before commencing work under the Appointment, Key Content will provide and maintain at its own cost comprehensive insurance including, without limitation, public liability insurance and professional indemnity insurance cover with a reputable insurer against any risks that Key Content may incur in relation to the provision of the Services and which will cover its liabilities to Customer under these Ts&Cs to cover the duration of the Appointment and a period of six (6) months after completion of the Services. Key Content will provide for inspection whenever reasonably requested, documentary evidence that the insurance has been renewed and remains in force and a copy of the receipt for the current premium.
- Key Content shall not do, or omit to do, anything which might violate any insurance policy required by this Clause.
- If Key Content fails or is unable to maintain the insurance in accordance with Clause 7.1 (or is unable to supply satisfactory documentary evidence on request), Key Content shall immediately notify Customer in writing and Customer shall be at liberty, so far as it is able, to effect such alternative insurance coverage as it is deems to be requisite and recover all costs and expenses incurred by it in doing so from Key Content upon demand or to terminate these Ts&Cs at its own discretion.
- Any deficiencies in the coverage or policy limits of insurance of sub-contractors shall be Key Content´s sole responsibility.
CONFIDENTIALITY AND DATA PROTECTION
- These Ts&Cs, their schedules and all commercial, financial, technical and/or operational information as well as of any other nature of the Services disclosed by any contracting Party to the other for the purpose of these Ts&Cs, either verbally or in writing, in any form and media (paper, electronic or digital), as well as between their employees, advisors and/or independent professionals, legal representatives, related companies or subsidiaries or any other related individual or corporation to any of the contracting Parties shall be considered as confidential information (hereinafter “Confidential Information”).
- During the period of duration of these Ts&Cs and thereafter for an indefinite term after its termination for whatever cause, the contracting Parties shall only use the Confidential Information for the purpose of these Ts&Cs and no other and they shall, furthermore, hold and treat all Confidential Information in the strictest confidence and not permit nor allow to be disclosed to any third person, without the prior written consent of the other Party, different than its employees, advisors and/or independent professionals, legal representatives, related companies or subsidiaries or any other associated individual or corporation involved in the performance of these Ts&Cs and who are bound by obligations of confidentiality equivalent to those set out herein, provided that any breach of the confidentiality obligations set forth in this Clause by any of them shall be deemed to be a breach of the relevant contracting Party.
- The confidentiality obligations set forth in this Clause shall not be applicable and the contracting Parties shall have the right to disclose the Confidential Information to any relevant third Party, in the following cases (i) it is due to the strict execution of the contractual purpose of these Ts&Cs, (ii) it is so required by a compulsory legal rule or a Court and/or administrative judgment with binding effects or (iii) the Confidential Information has become of public knowledge for any other reason different than the breach by one of the contracting Parties of the obligations contained in this Clause.
- In the event of an actual and/or alleged breach of the confidentiality obligations set forth in this Clause by any of the contracting Parties or any of its employees, advisors and/or independent professionals, legal representatives, related companies or subsidiaries or any other associated individual or corporation, the other contracting Party shall be entitled to a compensation equal at least to all or any loss and/or damages suffered by the latter as a consequence of the aforesaid breach of these Ts&Cs.
- Where the Services include the processing of personal data (within the meaning of the EU data protection directive 95/46/ec “the Data Directive”), whether relating to Individuals, employees or customers of Customer or Key Content, or otherwise, the Parties, as applicable, shall comply with the provisions of the Data Directive as amended or substituted from time to time and with any similar provisions of law in any jurisdiction.
- All Intellectual Property Rights in Key Content’s proprietary software and in any pre-existing documents, know-how and services belong, and shall remain the property of Key Content.
- Any new Intellectual Property Rights created by Key Content, its employees, agents or permitted sub-contractors (including the Individuals) in the course of carrying out the Services shall vest in Customer upon payment in full of the related Fees and where such Intellectual Property Rights includes designs, documentation or other materials subject to copyright, Key Content hereby assigns absolutely to Customer the copyright and all other rights of a like nature without any restriction and/or limitation whatsoever in terms of territory, duration, media, formats and/or exploitation rights other than the limits regulated by any mandatory applicable law upon payment in full of the related Fees.
If any claim is made against Customer under Clause 9.2 above, consequent of Key Content’s negligence, Key Content shall promptly and at its own expense either:
- procure such rights as are necessary to enable Customer to continue using or receiving the Services; or
- modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement.
- Upon a request of a Service, Customer and Key Content shall agree on acceptance criteria for each Purchase Order (“Acceptance Criteria”) for the acceptance tests for the Deliverables (“Acceptance Tests”). These criteria and data shall be described in the Purchase Order.
Before 10 days after a Purchase Order commencement, Key Content will submit a first portion of the Deliverables (the “Partial Deliverables”) to Customer for quality assurance, i.e. for an Acceptance Test (provided Customer has not specified otherwise).
Customer is obliged to review this Partial Deliverable and notify Key Content within seventy-two (72) hours if the Partial Deliverable is accepted, rejected or needs changes. The texts as accepted in this Partial Deliverable shall serve to confirm the Acceptance Criteria are being met and set the quality standard for the final Deliverables. Once the standard and quality of the Partial Deliverables are accepted, Key Content will work to deliver the final Deliverables. The same time schedule shall apply to the delivery and acceptance of final Deliverables. Partial and final Deliverables will be automatically considered accepted if Customer does not provide notification within seventy-two (72) hours.
- Payment of the Fees is subject to delivery and acceptance of the Deliverables in conformity with the payment schedule in the Purchase Order.
Customer shall have the option to rescind and ask for a refund of any advance payment, if applicable, after consecutive rejections of the same Partial Deliverables, provided Customer has given clear and specific instructions on applicable changes to be made to Key Content and these have been ignored in their majority. Customer shall describe in detail how these instructions have not been followed and list changes requested and not made.
- Reworking is only mandatory for Key Content if it is necessary in order to meet the original project description and the Acceptance Criteria. In this event, Key Content must commence reworking according to Customer’s wishes within a reasonable period of time. Further reworking is only permissible if the text is defective, if further reworking requests are in line with the first reworking request specifications and the Acceptance Criteria.
- Reasons for the rejection of a text project must be provided by the Customer in detail. Rejection of a text project by the Customer will be reviewed by Key Content following the reasons listed by the Customer and shall only be accepted by Key Content if the condition desired by the Customer is in line with the project specifications and the Acceptance Criteria.
- In case of unfounded or insufficient reasons for rejection, Key Content has the right to refuse the rejection and receive payment of Fees for Deliverables rendered up to the moment.
- Upon a request of a Service, Customer and Key Content shall agree on acceptance criteria for each Purchase Order (“Acceptance Criteria”) for the acceptance tests for the Deliverables (“Acceptance Tests”). These criteria and data shall be described in the Purchase Order.
Any of the parts may terminate the Appointment without notice:
- if the other Party commits a material breach of any of these Ts&Cs and the non-fulfilling Party does not remedy said breach in the maximum term of fifteen (15) calendar days as from the receipt of a previous notice in writing sent by the fulfilling Party stating its intention to terminate these Ts&Cs and the cause;
- if the other Party is unable to pay its debts as they fall due, or a petition is presented or a meeting convened for the purpose of winding it up, or it enters into liquidation other than for the purpose of an amalgamation or reconstruction;
- if it ceases for any other reason to carry on its business;
- if the other Party commits any act of dishonesty or impropriety or otherwise engages in conduct which the other in its sole discretion believes may be prejudicial to its business;
- if Customer fails to meet its payments when they become due and payable.
- Any of the parts may terminate the Appointment at any time upon giving thirty (30) days’ notice to the other Party.
Upon any termination of Key Content’s engagement under this Clause 11:
- Key Content shall take immediate steps to bring to an end the Services in an orderly manner but with all reasonable speed and economy;
- Without any prejudice to any indemnities and/or compensations applicable by law or contract in favour of Customer, Customer shall pay to Key Content the part of the Fee for Services performed up to the date of such termination, except in case of breach by Key Content of the specifications set in the Purchase Orders accepted by Customer, or breaching the specifications of the Services agreed with Customer beforehand, failing the Deliverables to comply with the agreed specifications and requirements of the Service, according to these Ts&Cs.
- Upon termination by the Parties subject to provision 11.1.3, or 11.2 of these Ts&Cs, neither of the Parties shall be liable to the other for any loss of profit, loss of contracts or other costs, losses and/or expenses arising out of or in connection with such termination, whether or not such loss was reasonably foreseeable at the Commencement Date.
- Any of the parts may terminate the Appointment without notice:
The Parties agree that Clauses 6, 7, 8, 9 and 14 shall survive Termination or expiration of these Ts&Cs.
- The Parties may not assign any provisions of these Ts&Cs to third Parties without the prior written consent of the other Party. For the sake of clarity, the events of merger or consolidation of a Party with a third company and/or the acquisition, directly or indirectly, of the majority of a Party’s share capital by a third company shall not be considered as an assignment of these Ts&Cs for the purposes of this Clause.
- As an exception to the foregoing Clause 13.1, a Party may assign these Ts&Cs to an Associated Company.
- These Ts&Cs, together with any documents referred to in it, constitutes the entire terms and conditions of the Appointment and supersedes or extinguishes any prior drafts, agreements, undertakings, warranties and arrangements of any nature, whether in writing or oral, regarding such subject matter. These Ts&Cs may only be modified or otherwise amended by written agreement of the Parties.
- If any provision or part of these Ts&Cs is or becomes invalid, illegal, void or unenforceable the remainder of these Ts&Cs shall not be affected but shall continue in full force and effect and the invalid, illegal, void or unenforceable provision or part shall be replaced or amended so far as is necessary to maintain the purpose and continuity of these Ts&Cs.
- No forbearance or delay be either Party in enforcing its rights will prejudice or restrict the rights of that Party, no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right of or any later breach.
- Key Content performs data backup of text project-related information at regular intervals. However, in the event that data is lost, Key Content will strive to correct the error as quickly as possible and restore the data to the condition existing prior to data loss.
All notices relating to the Appointment will take effect if delivered upon delivery; if posted, emailed or by facsimiled, at the earlier time of delivery and 10:00 a.m. on the second business day after delivery. Any such notice will be delivered or sent to the address of the addressee specified below:
Key Content, SL
Address: C/Elcano 14, Entrpl. Dcha, 48008 Bilbao, Spain
- These Ts&Cs shall be governed by and construed in accordance with Spanish law.
- The courts and tribunals of Bilbao (Spain) shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Ts&Cs or its subject matter or formation and any disputes or claims in connection with any non-contractual obligations arising between the Parties, waiving the Parties their right to another jurisdiction should it be different. The Parties agree that these Ts&Cs shall apply to any Purchase Order entered into in the performance of these Ts&Cs. In case of conflict, the agreed terms in the Purchase Orders shall prevail over these Ts&Cs.
- If The Parties agree that these Ts&Cs shall apply to any Purchase Order entered into in the performance of these Ts&Cs., in case of conflict, the agreed terms in the Purchase Orders shall prevail over these Ts&Cs.