1. US TERMS AND CONDITIONS OF BUSINESS
1.1 These Terms and Conditions together with the order form to which they are attached (the “Order Form”) will form a binding contract between the Client named on the Order Form (“Client”) and Goat Solutions Inc. of 127 West 26th Street, New York, NY 1001 (”GOAT”) which shall constitute the entire agreement between Client and GOAT and apply to any Services performed hereunder by GOAT and all terms agreed upon in connection therewith between Client and GOAT (the “Agreement”).
1.2 These Terms and Conditions apply to the exclusion of all other terms or conditions of contract Client may propose and shall not be varied unless agreed in writing and signed by GOAT. For the avoidance of doubt the terms of the Order Form shall supersede any conflicting provision in these Terms and Conditions.
2. ORDER FORM
2.1 Each Order Form shall come into force on the Commencement Date when executed by both Parties or. All previous written or oral undertakings and promises relating to the Services shall be superseded by the content in the Order Form. Each Order Form shall continue, unless terminated earlier in accordance with these Terms and Conditions or by law, until the expiration of the Term set out in the Order Form.
2.2 This Agreement is structured so that individual Order Forms may be entered into by the Parties. All Order Forms are governed by and shall be subject to the terms of this Agreement, except for any Special Conditions set out on the Order Form, which shall take precedence.
2.3 The termination or expiration of any Order Form shall not affect this Agreement or any other Order Form. On the termination or expiration of this Agreement in accordance with Section 9, all Order Forms shall also automatically terminate upon the effective date of termination of this Agreement.
In consideration of the payment by Client to GOAT of the Fees as set out in the Order Form, GOAT agrees during the Term to perform the Services described in the Order Form in accordance with and subject to these Terms and Conditions.
Client will co-operate with GOAT and, where necessary, provide as set out on an applicable Order Form, such materials listed in the Order Form (“Client Materials”), forGOAT to incorporate as required into the Services or carry out its obligations.
5. FEES; CHANGE CONTROL
5.1 Client shall pay GOAT the Fees without deduction or set-off (with VAT) within fourteen (14) days of receipt of a valid invoice, or otherwise in accordance with the payment terms set out in the Order Form.
5.2 GOAT shall be entitled to charge interest on any overdue payment at the rate of the lesser of (a) eighteen percent (18%) per year of the overdue amount or (b) the maximum amount permitted under applicable law.
5.3 GOAT may charge additional Fees in accordance with its standard rates in the event of:
5.3.1 delays or additional Services caused or required by Client, including its failure to properly or timely provide GOAT with such information, Client Materials, instructions, media or approvals as are reasonably required for the supply of the Services;
5.3.2 changes to the cost of Services and other circumstances outside of GOAT’s reasonable control;
5.3.3 Client requiring the supply of goods and services in addition to those described in the Order Form or any variations to the Services; or
5.3.4 agreed third party expenses.
5.4 In the event that Client requires any change or alteration to the Services (“Change(s)”), GOAT and Client shall, prior to implementing such Change, agree upon:
5.4.1 the nature of the Change;
5.4.2 the procedures for implementation of such Change; and
5.4.3 the variation to the Fees.
5.5 Until any such Change is agreed in writing by the Parties, GOAT will continue to perform and be paid for the Services as if the Change had not been proposed, unless otherwise presented in an Order Form requested by Client and approved in writing by GOAT.
5.6 All and any Changes to the Services shall be reflected and accompanied by appropriate amendments to the Order Form and Fees.
6. RELATIONSHIP OF PARTIES & RIGHTS
The Parties understand that GOAT is an independent contractor with respect to Client, and this Agreement creates no agency, partnership or joint venture relationship between the Parties. Neither Party shall have express or implied authority to act, or make any representations whatsoever, on behalf of the other. Client understands that GOAT has other clients and that GOAT may offer the same or similar Services or any other services to any third party.
7.1 The Parties may disclose to each other and their designated agents, confidential and proprietary information and trade secrets, including without limitation, software and hardware designs and specifications, equipment, software (including not by way of limitation source and binary code), plans, drawings, data, prototypes, discoveries, know-how, research, developments, processes, procedures, intellectual property and information relating to customers, marketing plans and future products, business data, internal organizational structure, methods of operations, business processes, forecasts, and financial information and such other information disclosed pursuant to conditions of confidentiality, whether disclosed prior to, upon or after execution of this Agreement (“Proprietary Information”).
7.2 Each Party undertakes that it will keep confidential the terms of this Agreement and any Proprietary Information supplied by either Party in connection with this Agreement or in connection with the business of the other and in connection with the Services and shall only disclose such information or part thereof (except to its own employees and advisers and then only on a need to know basis) with the other Party’s prior written consent, provided however that this Section 7 shall not extend to information which has previously become or is generally known to the public, unless through a breach of this Agreement or a similar confidentiality agreement; was previously rightfully known by the receiving Party; has been or is hereafter rightfully received by the Receiving Party from a third person (other than the disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the disclosing Party; or has been independently developed by the receiving Party.
8. INTELLECTUAL PROPERTY
8.1 All “IPR” defined as patents, rights to or unpatented inventions, patent applications, patents, design rights, copyrights (including related rights and future copyright), trademarks, service marks, trade names and domain names or rights, rights in designs, database rights, mask work rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property or proprietary rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in each case whether registered or unregistered, and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world of whatever nature in material devised, created or commissioned by GOAT, in supplying the Services under this Agreement (“Works”) will vest in and belong solely and exclusively to GOAT, unless otherwise agreed in writing on the Order Form and signed by both Parties.
8.2 Subject to payment of the Fees, Client shall have the License Rights set out in the Order Form. Such License Rights shall apply only to those ideas, concepts, proposals and parts of the Works which GOAT is specifically requested to proceed with and not to any original ideas, concepts or proposals pitched or suggested to Client but not further explored by GOAT for Client hereunder, all of which shall be retained by GOAT. Where no such rights are specified, Client is granted a non-exclusive license to use the Works for the purpose expressly described in the Order Form. Further uses shall be subject to additional terms and Fees to be agreed in writing by the Parties.
8.3 Client grants GOAT a non-exclusive, royalty free, worldwide licence to use the Client Materials for all purposes relating to this Agreement and warrants that it is fully entitled to grant GOAT these rights and that the Client Materials are free of any infringing, or defamatory, obscene or other legally restricted material.
8.4 Client shall indemnify, defend and hold harmless GOAT and its affiliates, directors, officers, employees and agents (“Indemnified Parties”) from and against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) suffered or incurred by GOAT or any of the Indemnified Parties arising out of or in connection with (i) any breach by Client of its representations, warranties or other obligations under this Agreement, including any violation of Applicable Law or use beyond the License Rights, or (ii) Client’s provision of or Goat’s use of the Client Materials, including but not limited to any infringement of any IPR.
8.5 GOAT will defend, indemnify and hold harmless Client from any third-party claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from a third-party claim that Client’s use of the Works infringes that third party’s patent, copyright or trade secret rights. The provisions of this Section state the sole and exclusive obligations and liability of Goat and sole and exclusive remedy of Client for any claim of IPR infringement. Notwithstanding the foregoing, Goat will have no obligation with respect to any claim that is based upon or arises out of (i) the use or combination of the Works with any materials not provided by Goat, (ii) modification or alteration of the Works by anyone other than Goat, (iii) use of the Works in excess of the rights granted in this Agreement, or (v) any specifications or other intellectual property provided by or on behalf of Client.
9. Each party’s agreement to indemnify, defend, and hold harmless the other party and its respective indemnitees is conditioned upon the indemnified party: (i) providing written notice to the indemnifying party of any claim, demand, or action arising out of the indemnified activities promptly after the indemnified party has knowledge of such claim, demand, or action; (ii) permitting the indemnifying party to assume full responsibility and authority to investigate, prepare for, settle, and defend against any such claim, demand, or action; (iii) assisting the indemnifying party, at the indemnifying party’s reasonable expense, in the investigation of, preparation for and defense of any such claim, demand, or action; and (iv) not compromising or settling such claim, demand, or action without the indemnifying party’s written consent. The indemnified party shall take all reasonable steps to mitigate its losses to which the indemnity applies.
10. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WORKS AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS, IMPLIED, ORAL, WRITTEN, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT; OR FOR THE USE, SUFFICIENCY, TIMELINESS, QUALITY, SECURITY, SUITABILITY, AVAILABILITY, COMPLETENESS OR ACCURACY OF ANY OF THE FOREGOING. GOAT DISCLAIMS LIABILITY FOR CLIENT’S OR ANY PARTY’S ACT OR OMISSION IN USE OF OR RELIANCE UPON THE WORKS AND SERVICES, OR THAT THE QUALITY OF ANY INFORMATION, DATA, RESULTS OR MATERIAL OBTAINED THROUGH ANY OF THE FOREGOING WILL MEET CLIENT’S NEEDS, REQUIREMENTS OR EXPECTATIONS.
11.1 This Agreement shall commence on the Commencement Date, and continue on a month-to-month basis, provided, that either party may terminate the Agreement after giving 30 days written notice and subject to this Section 9.
11.2 Either party shall be entitled to terminate this Agreement upon the other party’s material breach (including without limitation non-payment of any sum due) unless the breaching party remedies such breach within fourteen (14) days of its occurrence.
11.3 Neither party will be liable in any amount for failure to perform any obligation hereunder if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation Internet outages, communications outages, fire, flood, war or act of God.
11.4 Client may not cancel its order of the Services or otherwise terminate this Agreement at any time without payment of the Fees in full.
12.1 SUBJECT TO SECTION 10.2, NEITHER GOAT NOR ANY INFLUENCERS WILL HAVE ANY LIABILITY TO CLIENT FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF, DELAY, LOSS OF USE OR INABILITY TO USE THE WORKS OR SERVICES, DEFECTIVE OR UNAVAILABLE DATA OR INFORMATION. THE TOTAL LIABILITY OF GOAT TO CLIENT ARISING OUT OF THIS AGREEMENT OR USE OF OR INABILITY TO USE THE WORKS IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES INVICED TO CLIENT UNDER THIS AGREMENT.
12.2 Nothing in this Agreement is intended and nor shall it be construed as an attempt by either party to exclude or limit its liability: (i) for wilful misconduct or gross negligence; (ii) for fraud; or (iii) to the extent such limitation or exclusion is not permitted by applicable law.
13. APPLICABLE LAW
13.1 Client shall comply with, and be responsible for and notify GOAT of, all and any Applicable Laws relating to its use and operation of the Services.“Applicable Law”means in respect of either party, all Advertising Regulations, and all federal, state, or local laws, rules or regulations, as may be amended from time to time during the Term, including but not limited to data protection regulations under the General Data Protection Regulation (“GDPR”) to which that party is subject which is relevant to that party’s rights or obligations under this Agreement. “Advertising Regulations”means any applicable federal, state, lottery, promotional or advertising laws, the Advertising Standards Authority (ASA), British Code of Advertising and Sales Promotions, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”) and any other relevant law, rule or regulation, applicable to the display or publication of advertisements from time to time.
13.2 GOAT gives no warranty, representation or undertaking in relation to any third party materials or Client Materials provided by Client and Client agrees that it is responsible for its selection and use of Services.
14.1 Except as specifically set forth herein, this Agreement may be amended or terminated only by a written instrument executed by an authorized officer of GOAT and Client.
14.2 If at any time any part of this Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the Parties’ intentions and the remainder of the provisions will remain in full force and effect.
14.3 Client shall not assign transfer or subcontract any of its rights and obligations under this Agreement without the prior written consent of GOAT.
14.4 During the term of this Agreement and for the six (6) month period following its termination, and exclusive of responses to postings to the general public, neither party shall directly or indirectly solicit, offer employment, employ or retain as a consultant any employee or former employee of the other party who has participated directly in the Services without the prior written consent of the other party.
This Agreement shall be governed and construed in all respects in accordance with the laws of the State of New York, without regard to the conflicts of law provisions of that State and each Party irrevocably agrees that any action hereunder shall be brought solely before the competent courts in New York, New York and irrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such Party may now or hereafter have to the venue of any action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agree not to plead or claim the same.