16 CLIENT MATERIAL
16.1 The Agency will keep and treat the Client Materials with due care and diligence. The Agency will not, however, be obliged to recover typesetting, colour separations, printing plates and the like from media and suppliers once the Agency has delivered these Client Materials to the media and suppliers for the purpose of performance of the Services pursuant to this Agreement.
16.2 The Agency shall not destroy the Client Material without the Client's prior written consent, except that if after twelve (12) months from the Agency’s taking possession of Client Material, the Agency gives written notice to the Client that it no longer needs the Client Material and the Client does not respond within thirty (30) days from the date of the notice, the Agency shall be entitled to return such Client Materials to the Client by delivery to the Client's offices at the costs of the Client.
17 CONFIDENTIAL INFORMATION
17.1 Except in fulfilment of its obligations under this Agreement, the Agency and its directors, officers and employees shall not, during or after the Term, without the Client’s prior Written Approval, disclose or otherwise make available on behalf of the Agency to any other person, firm, corporation or entity, any confidential information of the Client, whether acquired before or during the Term of this Agreement. Confidential information of the Client shall mean information relating to the Client’s business plans, products, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results or other business affairs, or any other proprietary or confidential information or trade secrets of the Client.
17.2 Except in fulfilment of its obligations under this Agreement, the Client and its directors, officers and employees shall not, during or after the Term, without the Agency’s prior written approval, disclose or otherwise make available on behalf of the Client to any other person, firm, corporation or entity, any confidential information of the Agency, whether acquired before or during the Term of this Agreement. Confidential information of the Agency shall mean information relating to the Agency’s business plans, strategies, products, customers, technology, computer software, computer systems, marketing methods, sales margins, salary information, personnel information, capital structure, operating results or other business affairs, or any other proprietary or confidential information or trade secrets of the Agency.
17.3 The foregoing shall not apply to information which:
(i) can be shown to have been in the receiving Party’s or its employees’ possession prior to the receipt thereof from the disclosing Party;
(ii) is independently developed by the receiving Party or its employees without use of or reliance on the confidential information of the disclosing Party;
(iii) is now or hereafter becomes information in the public domain through no act or failure to act by the receiving Party;
(iv) is rightfully received by the receiving Party from a third party without a duty of confidentiality; or
(v) is required to be disclosed pursuant to the law or regulatory procedure.
17.4 Nothing in this Clause shall be construed as giving the receiving Party any right, title, interest in or ownership of the confidential information of the disclosing Party.
17.5 The foregoing confidentiality provisions are binding upon the Parties and their successors and shall continue to be binding for a period of six (6) months from the date of termination or expiration of this Agreement.
17.6 The Client acknowledges that nothing in this Agreement shall affect the Agency's right to use as it considers fit any general marketing or advertising intelligence gained by the Agency during the Term of this Agreement.
18 ADVERTISING STANDARDS
18.1 Both parties shall comply with all applicable laws and Advertising Regulations issued, made or given by any Advertising Regulator.
18.2 The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable law or Advertising Regulation.
18.3 The Client shall inform the Agency without delay if the Client considers that any Advertising submitted to the Client by the Agency for approval is false or misleading or in any way contrary to law or to any applicable Advertising Regulation.
19 WARRANTIES, INDEMNITIES AND LIABILITITES
19.1 The Agency warrants that it:-
(i) shall, with all reasonable skill, care and diligence, provide the Services by personnel with appropriate experience and qualification and in accordance with the terms and conditions of the Agreement;
(ii) has sufficient capacity and authority to perform the Services.
19.2 The Client warrants that the Agency will not be liable for any of the following incidents unless this is caused by its default or neglect: (a) there is an error in published Advertising; (b) the publication of Advertising is delayed; or (c) the publication of Advertising does not occur on the planned time schedule.
19.3 The Client shall be responsible for the accuracy, completeness and propriety of information concerning the Client’s organization, products, services and its competitors’ products and services and for the rights, licenses and permissions to use, and for the accuracy and propriety of, material furnished to the Agency by the Client or on the Client’s behalf in the performance of this Agreement. Accordingly, the Client will indemnify, defend and hold Agency harmless from and against any loss, cost, liability or damage (including reasonable attorneys’ fees and costs) ("Loss") resulting from any claim, suit or proceeding (threatened or otherwise) ("Claims") made or brought against the Agency based upon or arising out of: (i) the Client’s negligence or breach of any of the Client’s representations, warranties or covenants set forth in this Agreement, (ii) the nature or use of the Client’s products or services, (iii) any claim or lawsuit alleging misrepresentation of the effectiveness, nature, quality or content of the Client’s or the Client’s competitors' products or services, (iv) risks which the Agency has brought to the Client’s attention in writing where the Client has elected to proceed, including, without limitation, claims in the nature of trademark where the Agency has advised the Client in writing of the need to conduct a trademark search to determine the availability of the mark and (v) trademarks and other materials that the Client has provided to Agency for use under this Agreement.
19.4 The Agency agrees to indemnify, defend and hold the Client harmless from and against any Loss resulting from any Claim made or brought against the Client, for (i) violation of the rights of privacy or publicity, copyright infringement, trademark infringement (other than with respect to trademarks the Client has provided to the Agency or where we have advised the Client of the need to conduct a full trademark search), libel, slander, defamation or plagiarism, that arises from advertising materials created, produced or provided by the Agency pursuant to this Agreement, to the extent that such damages result from use of such materials without modification or alteration by the Client (provided, however, this indemnity shall not apply to any materials or information supplied by the Client to the Agency or the Client’s use of materials beyond the authorized scope, intended purpose or territory or for such claims arising out of the circumstances set forth in Clause 19.3 above); (ii) the Agency’s negligence in the performance of its obligations hereunder; (iii) the Agency’s breach of its representations or warranties under this Agreement.
19.5 Despite any other provision of this Agreement and to the maximum extent permitted by law, neither party will be liable to the other under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
19.6 The Agency’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed one year of the Agency Remuneration payable by the Client to the Agency under this Agreement.
20 TERMINATION
20.1 Either Party may terminate this Agreement forthwith by notice in writing to the other if:
(i) the other Party is in material breach of any of the terms of this Agreement and, in the case of a remediable breach, fails to remedy such breach within thirty (30) days of its receipt of written notice given by the non-breaching Party elaborating full particulars of the breach;
(ii) the other Party enters into bankruptcy, receivership, liquidation, a composition with its creditors, dissolution, or any similar proceeding other than for the purpose of a bona fide reconstruction or amalgamation;
(iii) the performance of this Agreement has become in any material respect commercially impracticable by virtue of any order, action, regulation, interference or intervention of any government agency; or
(iv) the other Party ceases to carry on business without cause.
20.2 Either Party shall be entitled to terminate this Agreement by giving the other Party ninety (90) days’ prior written notice with or without cause.
20.3 The Parties' rights, duties and responsibilities shall continue in full force during the agreed period of notice and, whether or not there is a period of notice, the Client shall pay all sums due in respect of work done and expenditure committed by the Agency until the termination of the Agreement.
16 CLIENT MATERIAL16.1 The Agency will keep and treat the Client Materials with due care and diligence. The Agency will not, however, be obliged to recover typesetting, colour separations, printing plates and the like from media and suppliers once the Agency has delivered these Client Materials to the media and suppliers for the purpose of performance of the Services pursuant to this Agreement.16.2 The Agency shall not destroy the Client Material without the Client's prior written consent, except that if after twelve (12) months from the Agency’s taking possession of Client Material, the Agency gives written notice to the Client that it no longer needs the Client Material and the Client does not respond within thirty (30) days from the date of the notice, the Agency shall be entitled to return such Client Materials to the Client by delivery to the Client's offices at the costs of the Client.17 CONFIDENTIAL INFORMATION17.1 Except in fulfilment of its obligations under this Agreement, the Agency and its directors, officers and employees shall not, during or after the Term, without the Client’s prior Written Approval, disclose or otherwise make available on behalf of the Agency to any other person, firm, corporation or entity, any confidential information of the Client, whether acquired before or during the Term of this Agreement. Confidential information of the Client shall mean information relating to the Client’s business plans, products, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results or other business affairs, or any other proprietary or confidential information or trade secrets of the Client.17.2 Except in fulfilment of its obligations under this Agreement, the Client and its directors, officers and employees shall not, during or after the Term, without the Agency’s prior written approval, disclose or otherwise make available on behalf of the Client to any other person, firm, corporation or entity, any confidential information of the Agency, whether acquired before or during the Term of this Agreement. Confidential information of the Agency shall mean information relating to the Agency’s business plans, strategies, products, customers, technology, computer software, computer systems, marketing methods, sales margins, salary information, personnel information, capital structure, operating results or other business affairs, or any other proprietary or confidential information or trade secrets of the Agency.17.3 The foregoing shall not apply to information which:(i) can be shown to have been in the receiving Party’s or its employees’ possession prior to the receipt thereof from the disclosing Party;(ii) is independently developed by the receiving Party or its employees without use of or reliance on the confidential information of the disclosing Party;(iii) is now or hereafter becomes information in the public domain through no act or failure to act by the receiving Party;(iv) is rightfully received by the receiving Party from a third party without a duty of confidentiality; or(v) is required to be disclosed pursuant to the law or regulatory procedure.17.4 Nothing in this Clause shall be construed as giving the receiving Party any right, title, interest in or ownership of the confidential information of the disclosing Party.17.5 The foregoing confidentiality provisions are binding upon the Parties and their successors and shall continue to be binding for a period of six (6) months from the date of termination or expiration of this Agreement.17.6 The Client acknowledges that nothing in this Agreement shall affect the Agency's right to use as it considers fit any general marketing or advertising intelligence gained by the Agency during the Term of this Agreement.18 ADVERTISING STANDARDS18.1 Both parties shall comply with all applicable laws and Advertising Regulations issued, made or given by any Advertising Regulator. 18.2 The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any applicable law or Advertising Regulation.18.3 The Client shall inform the Agency without delay if the Client considers that any Advertising submitted to the Client by the Agency for approval is false or misleading or in any way contrary to law or to any applicable Advertising Regulation.19 WARRANTIES, INDEMNITIES AND LIABILITITES19.1 The Agency warrants that it:-(i) shall, with all reasonable skill, care and diligence, provide the Services by personnel with appropriate experience and qualification and in accordance with the terms and conditions of the Agreement;(ii) has sufficient capacity and authority to perform the Services.19.2 The Client warrants that the Agency will not be liable for any of the following incidents unless this is caused by its default or neglect: (a) there is an error in published Advertising; (b) the publication of Advertising is delayed; or (c) the publication of Advertising does not occur on the planned time schedule.19.3 The Client shall be responsible for the accuracy, completeness and propriety of information concerning the Client’s organization, products, services and its competitors’ products and services and for the rights, licenses and permissions to use, and for the accuracy and propriety of, material furnished to the Agency by the Client or on the Client’s behalf in the performance of this Agreement. Accordingly, the Client will indemnify, defend and hold Agency harmless from and against any loss, cost, liability or damage (including reasonable attorneys’ fees and costs) ("Loss") resulting from any claim, suit or proceeding (threatened or otherwise) ("Claims") made or brought against the Agency based upon or arising out of: (i) the Client’s negligence or breach of any of the Client’s representations, warranties or covenants set forth in this Agreement, (ii) the nature or use of the Client’s products or services, (iii) any claim or lawsuit alleging misrepresentation of the effectiveness, nature, quality or content of the Client’s or the Client’s competitors' products or services, (iv) risks which the Agency has brought to the Client’s attention in writing where the Client has elected to proceed, including, without limitation, claims in the nature of trademark where the Agency has advised the Client in writing of the need to conduct a trademark search to determine the availability of the mark and (v) trademarks and other materials that the Client has provided to Agency for use under this Agreement.
19.4 The Agency agrees to indemnify, defend and hold the Client harmless from and against any Loss resulting from any Claim made or brought against the Client, for (i) violation of the rights of privacy or publicity, copyright infringement, trademark infringement (other than with respect to trademarks the Client has provided to the Agency or where we have advised the Client of the need to conduct a full trademark search), libel, slander, defamation or plagiarism, that arises from advertising materials created, produced or provided by the Agency pursuant to this Agreement, to the extent that such damages result from use of such materials without modification or alteration by the Client (provided, however, this indemnity shall not apply to any materials or information supplied by the Client to the Agency or the Client’s use of materials beyond the authorized scope, intended purpose or territory or for such claims arising out of the circumstances set forth in Clause 19.3 above); (ii) the Agency’s negligence in the performance of its obligations hereunder; (iii) the Agency’s breach of its representations or warranties under this Agreement.
19.5 Despite any other provision of this Agreement and to the maximum extent permitted by law, neither party will be liable to the other under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
19.6 The Agency’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed one year of the Agency Remuneration payable by the Client to the Agency under this Agreement.
20 TERMINATION
20.1 Either Party may terminate this Agreement forthwith by notice in writing to the other if:
(i) the other Party is in material breach of any of the terms of this Agreement and, in the case of a remediable breach, fails to remedy such breach within thirty (30) days of its receipt of written notice given by the non-breaching Party elaborating full particulars of the breach;
(ii) the other Party enters into bankruptcy, receivership, liquidation, a composition with its creditors, dissolution, or any similar proceeding other than for the purpose of a bona fide reconstruction or amalgamation;
(iii) the performance of this Agreement has become in any material respect commercially impracticable by virtue of any order, action, regulation, interference or intervention of any government agency; or
(iv) the other Party ceases to carry on business without cause.
20.2 Either Party shall be entitled to terminate this Agreement by giving the other Party ninety (90) days’ prior written notice with or without cause.
20.3 The Parties' rights, duties and responsibilities shall continue in full force during the agreed period of notice and, whether or not there is a period of notice, the Client shall pay all sums due in respect of work done and expenditure committed by the Agency until the termination of the Agreement.
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