DENTSU AU – MERKURY SERVICE TERMS

1.       INTRODUCTION

1.1     These Merkury specialist service terms (“Service Terms”), together with the Merkury letter of engagement and any existing agreement which is signed and in force between Agency and Client (“Agreement”), apply to the provision by Agency to Client of the Merkury Services as described in each Statement of Work. In the event of any conflict or inconsistency in relation to Merkury Services, the following documents shall prevail in the following order: (i) Merkury letter of engagement; (ii) Statement of Work for Merkury Services; (iii) these Service Terms; (iv) Specialist Service terms; and (v) the Agreement. The parties agree that these Service Terms supersede and vary the Agreement between the parties to the extent that the terms within these Service Terms conflict with the Agreement.

1.2     In the event that Agency provides a combination of both Merkury Services and Other Programmatic Services to Client and:

(a)   The parties have entered into Specialist Service terms relating to the provision of Other Programmatic Services (“Programmatic Service Terms”), then for the avoidance of any doubt these Service Terms exclusively apply to the provision of Merkury Services, and the Programmatic Service Terms will continue to apply to the provision of Other Programmatic Services; or

(b)   The parties have not entered into separate terms relating to the provision of Other Programmatic Services, then these terms shall apply to the provision by Agency of both Merkury Services and Other Programmatic Services, and references in these Service Terms to “Merkury Services” will be deemed to be references to “Merkury Services and Other Programmatic Services”.

2.       DEFINITIONS AND INTERPRETATION

2.1     Terms not defined in these Service Terms will have the meanings set out in the Merkury letter of engagement, Specialist Services terms, Agreement and applicable Statement of Work. In addition, the following terms shall have the following meanings:

“Affiliate” means, in relation to either party, any of the following: (a) companies directly or indirectly belonging to or controlled by that party through management appointment or otherwise; (b) companies directly or indirectly belonging to or controlled by companies which directly or indirectly own or control that party; and (c) any companies having entered into an affiliation agreement with that party or the above-referred companies. “Control” means the power of an entity to secure that the affairs of another are conducted in accordance with its wishes and "controlled" shall be construed accordingly; 

“Agency” means the dentsu agency set out in a letter of engagement and/or a Statement of Work; 

“Agency Data” means all (i) data and databases owned by or licensed to Agency or Agency Affiliates (including, but not limited to, the proprietary Merkury database within the Merkury Platform); (ii) data developed, created, generated or derived by Agency or Agency Affiliates in relation to or as a by-product of the Merkury Services or in connection with any tools, methodologies, know-how and techniques used by Agency in the performance of the Merkury Services; (iii) performance or campaign results relating to the Merkury Services within Agency accounts and Agency Tech Stack; and (iv) Agency’s media rates within Agency or Client accounts and all Tech Stack. For the avoidance of doubt, Agency Data does not include Third Party Materials or Client Data;

“Agency Materials” means Materials that are used by (or licensed to) Agency or Agency Affiliates in connection with the provision of the Merkury Services and Deliverables and/or developed, created or acquired by or on behalf of Agency or Agency Affiliates prior to or during its performance of the Merkury Services and Deliverables (including, but not limited to, segments, tools, methodologies, know-how and techniques used by Agency in the performance of the Merkury Services). For the avoidance of doubt, Agency Materials includes Merkury Platform and Agency Data but does not include Client Materials or Third Party Materials;

“Agent Services” means services to procure and manage services in the name of and on behalf of Client including but not limited to:

(a)  the sourcing, negotiation and management of television, radio, print, cinema, online and event sponsorship and promotional opportunities for Client; 

(b)  partnerships and promotions and/or production in conjunction with Media Owners, other brands, talent and third parties;

(c)  the procurement of Client Tech Stack, third party technology, data or platforms;

including all associated procurement of third party rights, permissions, consent and/or clearances; 

“Bespoke Merkury Segments” means proprietary audience targeting segments customised by Agency for Client within the Merkury Platform; 

“Booking” means a booking for media space (and related costs), Tech Stack, Technologies, third party services or other approved and committed expenditure incurred by Agency; 

“Charges” means (i) the Fees; (ii) Third Party Expenditure; and (iii) any other costs, levies and/or commissions and expenses payable in connection with the Merkury Services;

“Client” means the client set out in a letter of engagement and/or a Statement of Work; 

“Client Data” means (i) data directly or indirectly prepared and provided to Agency by Client in connection with the Merkury Services, including Client Personal Information (or de-identified derivatives of such data); (ii) performance or campaign results relating to the Merkury Services within Client accounts and Client Tech Stack, subject to these Service Terms. For the avoidance of doubt, Client Data does not include Third Party Materials or Agency Data;

“Client Materials” means Materials provided by or on behalf of Client to Agency (or provided to such third parties as Agency may nominate to receive such Materials from time to time, including without limitation Media Owners and Tech Stack suppliers), in connection with the Service Terms (including without limitation Client's name, logo and trade marks, keywords requested by Client, Client segments and any third party materials provided by Client to Agency in connection with the Service Terms), including Client Data;

“Deliverables” means the work products and outputs prepared specifically for Client by Agency pursuant to the Service Terms, as described in each Statement of Work.  For the avoidance of doubt, Deliverables do not include Third Party Materials or Agency Materials;

“Fees” means the fees invoiced and payable by Client as set out in each Statement of Work;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and the right to be granted renewals or extensions of, and rights to claim priority from, these rights and all similar or equivalent rights or forms of protections which subsist or will subsist, now or in the future, in any part of the world;

“Materials” means any graphic design, copy writing, animation, sound production, video, graphic production, html, JavaScript or other website code, software, data, databases, keywords, links, cookies, pixels, tags, segments, locally shared objects, methodologies, programmes, tools, marketing strategy documents, advertising materials and other creative or marketing materials;

“Media Owner” means a third party who sells media space and/or time and related services to Agency.  A Media Owner may also be a Tech Stack supplier;

“Merkury Platform” means the proprietary platform created by Agency that leverages Agency Tech Stack, software and technology infrastructure to store the proprietary Merkury database and enable the provision of Merkury Services;

“Merkury Reporting” means reporting related to performance and campaign results achieved via the Merkury Platform.  Merkury Reporting can be customised by Agency for Client and provided on a closed loop basis if this is mutually agreed as in scope under a SOW; 

“Merkury Services” means the Merkury products and services and related programmatic services to deliver and report on targeted digital advertising to people-based audiences located in Australia which are provided by Agency to Client pursuant to these Service Terms, as described in each Statement of Work (including, but not limited to, Standard Merkury Segments, Bespoke Merkury Segments, Merkury Reporting and Deliverables); 

“Merkury Sub-Contractor” means a third party engaged by Agency to perform services which are part of the Merkury Services; 

"Other Programmatic Services” means any programmatic services, which are not related to any Merkury Services, provided by Agency to Client pursuant to any SOW; 

“Personal Information” means personal information as defined in the Privacy Act;

“Privacy Act” means the Privacy Act 1988 (Cth);

"Programmatic Budget” means Client’s budget for Merkury Services and Other Programmatic Services; 

“Standard Merkury Segments” means a suite of predefined proprietary audience targeting segments created by Agency within the Merkury Platform; 

“Statement of Work” or “SOW” shall mean any SOW or media plan/schedule, work order, project statement, purchase order, estimate or quote signed by both parties or otherwise approved in writing. There may be one or more SOWs under these Service Terms;

“Technologies” means technologies used by Client, Agency and Tech Stack to enable Merkury Services including, but not limited to, cookies, ad tags, pixels, identifiers and other similar forms of computer code; 

“Tech Stack” means the software, accounts, platforms and services used to enable digital advertising to be targeted at (and served to) consumers in a target audience and all other related Technologies, software, accounts, platforms and services which support such activation, provide data for targeting, collect data regarding activation and/or report on campaign effectiveness (including, but not limited to, brand safety and viewability suppliers, demand side platforms, supply side platforms, data management platforms, social media platforms, ad servers, digital marketplaces and exchanges); and 

“Third Party Materials” means Materials and Technologies owned by a third party (excluding, for the avoidance of doubt, Agency Materials and Client Materials).

3.       AGENCY’S ROLE

3.1     Agency will provide the Merkury Services: (a) with professional care and skill; and (b) in accordance with these Service Terms and requirements agreed in a SOW.

3.2     The Merkury Services may include or be related to the provision of other Agency specialist products and services including, but not limited to: (i) Other Programmatic Services and/or access to other specialist tools and platforms; (ii) Agyle principal buying and/or other media savings programmes involving capital expenditure; and (iii) social media monitoring and account management, (“Specialist Services”).  Client acknowledges that given their nature such Specialist Services shall be provided in accordance with the relevant terms and conditions and SOWs agreed between the parties for such Specialist Services.  In the event of any conflict or inconsistency in relation to Merkury Services, relevant documents shall prevail in the order set out in clause 1.1.

3.3     Merkury Services are provided by a specialist dentsu Merkury team and accordingly any non-compete or other competitor restrictions contained in the Agreement will not apply to the specialist dentsu Merkury team.

3.4     Merkury Services are specialist proprietary products and services which are provided via the proprietary Merkury Platform and certain Merkury Services are provided using programmatic advertising infrastructure.  Merkury Services may be provided in in combination with Other Programmatic Services.

4.       CLIENT RESPONSIBILITIES

4.1     Client will cooperate with Agency in all aspects relating to the Merkury Services, including, without limitation: (i) giving Agency clear briefings, providing Client Materials and assistance and/or evidence where required in relation to Client Materials or its products in a timely manner; (ii) providing Agency with the requisite level of access to Client Tech Stack, accounts and any associated data and information, Client facilities, and employees, as reasonably necessary for Agency to provide the Merkury Services (including for Agency (or Agency Tech Stack supplier) to deliver, monitor, and measure ad performance); and (iii) promptly providing all applicable approvals, instructions and Client deliverables or inputs.  Client must ensure that Client Tech Stack provides data promptly as required for delivery of the Merkury Services by Agency.

4.2     Client will be responsible for taking all steps necessary for it to access, receive and utilise the Merkury Services and the Deliverables (including but not limited to legal review of the Deliverables necessitated by Client’s specific business sector/industry legislation and/or regulations). 

4.3     To the extent that Agency’s performance of its obligations under these Service Terms is prevented or delayed by any act or omission of Client, its Client Tech Stack suppliers, agents, subcontractors, consultants or employees (“Client Delay”), such failure or delay in performance on the part of Agency shall not constitute a breach of these Service Terms and Agency shall be entitled to its Fees and shall not be liable for any costs, charges or losses sustained or incurred by Client that arise directly or indirectly from such failure or delay.  Where scheduled resource are unable to carry out planned Merkury Services as a result of Client Delay, Agency may charge Client for downtime of such scheduled resource. Where the Fee is fixed, Agency may renegotiate the Fee to the extent that additional resource is required as a result of such Client Delay.

4.4     Client will appoint a representative engagement with Agency regarding the Merkury Services, management of Client Tech Stack and for troubleshooting of issues that may arise by the Agency’s use of Client Tech Stack.  Agency will report any issue or malfunction directly to Client’s representative and Client representative will promptly resolve such matters with Client Tech Stack suppliers.

4.5     Client warrants it will not (unless expressly agreed in writing by Agency): (i) copy, reproduce, modify, alter, make derivative works of, reverse engineer, decompile or disassemble, or (ii) undertake or cause to be undertaken any sale, use, disclosure or provision of access to, any Merkury Services, Agency Materials, Agency Technologies, Agency Tech Stack or Third Party Materials it has obtained under or in connection with the provision of the Merkury Services. 

4.6     Client warrants that it is responsible for the acts and omissions of its Client’s Tech Stack suppliers, auditors, consultants, agencies, agents, approved subcontractors, consultants or employees and, to the extent permitted by law, Client waives all rights under any laws that would otherwise preclude Agency from recovering in full directly against Client any loss caused or contributed to by the negligence or breach of these Service Terms by Client’s Tech Stack suppliers, auditors, consultants, agencies, agents, approved subcontractors, consultants or employees. 

4.7     Client agrees that the Merkury Services will not be made available or otherwise used to (a) target consumers based on Sensitive Information (as defined in the Privacy Act); (b) to identify individual consumers; or (c) sell or advertise adult entertainment, tobacco, illegal gambling, firearms or other products and services which are contrary to any applicable law or regulation.

4.8     Where Client wishes to use Client Data related to its customers as part of the Merkury Services, it will be required to (i) enter into a separate and distinct agreement with any Tech Stack supplier required by Agency and (ii) ensure any and all information and data provided to Agency under these Service Terms complies with all requirements of these Service Terms including, but not limited to, clauses 4 and 8.5.

4.9     Client agrees that Merkury Services are solely for use within the Australian market and are subject to laws of the Commonwealth of Australia.  Client will not use Merkury Services outside the Australian market.

5.       PERFORMANCE OF THE MERKURY SERVICES

5.1     The parties shall set out Merkury Services relevant to campaigns or specific engagements in Statements of Work.  

5.2     The parties may also agree campaign parameters and Third Party Expenditure on a case by case basis in writing to suit Client’s marketing objectives within the approved Client Programmatic Budget.  Agency will use due care and skill to set, adjust, optimise or target campaigns to achieve the delivery of campaign parameters agreed with Client from time to time.

5.3     In the provision of the Merkury Services, Agency may engage third parties such as Media Owners, Tech Stack suppliers and other suppliers from time to time (“Third Party Vendors”). Client will be liable for, all costs, charges, commissions and/or expenses associated with any Booking placed with Third Party Vendors (“Third Party Expenditure”) that is within the approved Client Programmatic Budget or otherwise agreed in writing by Client. Such Third Party Vendors are not Agency’s subcontractors.

5.4     Given that the provision of Merkury Services relies on Third Party Vendors and their Technologies, the parties agree that to the extent that Agency’s performance of its obligations under these Service Terms is prevented or delayed by any act or omission of Third Party Vendors or other third parties that Agency does not control but are required for Merkury Services (including, but not limited to, internet service providers) (“Third Party Delay”), such failure or delay in performance on the part of Agency shall not constitute a breach of these Service Terms.  Agency makes no warranties of any kind with respect to the Third Party Vendors, Tech Stack, Technologies or any data supplied thereby, whether express or implied, including any implied warranties as to merchantability, non-infringement, non-interruption, accuracy or fitness for a particular purpose. 

5.5     Client may request Agency to cancel, postpone or amend any Bookings. Agency will use reasonable efforts to comply with any such request provided that Agency is able to do so within its contractual obligations to third parties. 

5.6     In the event of any such cancellation, postponement (for any reason), or amendment, Client shall promptly pay to Agency: (a) Charges incurred in relation to the cancelled, postponed or amended Bookings; (b) any charges, expenses or additional costs paid or payable by Agency in relation to the cancellation, postponement or amendment (including without limitation retrospective rate adjustments, cancellation or postponement charges, or lower discounts from third parties); and (c) any cancellation fee specified in a SOW (together, “Cancellation Charges”).

5.7     While Agency shall use standard industry practice: (i) in the preparation of any estimated and target figures and/or position (including those related to optimisation or management); (ii) in the provision of conclusions and recommendations; (iii) to prevent the display of Client advertising on websites of, or in proximity to content that is of, a pornographic, defamatory, obscene or illegal nature (“Objectionable Advertising”); and (iv) to prevent any fraudulent traffic in relation to Client advertising, the outcomes are ultimately beyond the control of Agency. No warranties are given by Agency as to: (A) the accuracy of such estimates or targets (including target positions), such figures actually being met or user interactions with advertising once it appears; (B) the prevention of Objectionable Advertising (Agency will promptly take steps to remove any Objectionable Advertising upon becoming aware of the same); or (C) the prevention of fraudulent traffic in relation to Client advertising, and no liability shall attach to Agency in respect of any losses suffered in connection with the foregoing or in respect of Client’s reliance on any conclusions or recommendations of Agency. Agency shall not be responsible for the impact of changes made to Client’s Materials and or Deliverables by Client or other third parties. 

5.8     As part of Agency’s commitment to maximising media value for Client, Agency will pursue compensation complaints for such issues as brand safety, viewability, reproduction and positional problems. However, Agency can give no guarantee as to the outcome of such negotiations and Client must pay in full and by the due date for Bookings made regardless of any subsequent compensation achieved. 

5.9     Agency will provide suitable personnel with appropriate levels of experience and seniority to perform the Merkury Services (but for the avoidance of doubt, levels of resource or individual personnel identified in any staffing plan related to any SOW are informational only and may be substituted by Agency in its sole discretion). 

5.10   Tech Stack used to provide the Merkury Services may be Agency procured and licensed (“Agency Tech Stack”), Client procured and licensed (“Client Tech Stack”) or may include a mix of both Agency Tech Stack and Client Tech Stack.  Unless mutually agreed otherwise in a SOW (which will include relevant conditions, access controls and IT security limitations), Agency does not allow access to Agency Tech Stack, Merkury Platform, Agency environment/accounts or Agency credit lines by Client or Client Tech Stack suppliers, auditors, consultants, agencies, agents, subcontractors, consultants or employees.  

5.11   Any Client Tech Stack which has been connected to Agency Tech Stack and any access to Agency Tech Stack, Merkury Platform, Agency environment/accounts or Agency credit lines by Client or Client Tech Stack suppliers, auditors, consultants, agencies, agents, subcontractors, consultants or employees will be disconnected from Agency Tech Stack, Merkury Platform or Agency environment/accounts at termination of Merkury Services.  Client agrees that:

(a)   Agency may disconnect any access to Agency Tech Stack, Merkury Platform or Agency environment/accounts immediately in the event that Agency has a reasonable belief that Client or Client Tech Stack suppliers, auditors, consultants, agencies, agents, subcontractors, consultants or employees are: (i) in breach of any of these Service Terms or the Agreement; (ii) accessing Agency Materials without Agency prior written consent; or (iii) accessing data and information related to other clients of Agency or its Affiliates; and

(b)   Client will not make changes to Merkury Services provided by Agency (including without limitation by creating or amending any activity conducted within Client Tech Stack or Agency Tech Stack if Client has been granted access) without the Agency's prior written agreement.  Agency will not be liable for any changes made to Merkury Services by Client.  

5.12   Where Agency procures or manages media using Client Tech Stack: (i) Client shall provide all consents, authorisation and information necessary for Agency to access Client Tech Stack in order to procure or manage media in Client’s name, or as may otherwise be necessary for Agency’s performance of Merkury Services; and (ii) Agency shall be principal for payment in respect of media purchased directly or indirectly from a Media Owner in Client’s name and on Client’s behalf unless otherwise agreed. Client agrees that Media Owner may recognise the media spend as Agency media spend and consents to Agency’s retention of Agency benefits associated therewith. To the extent that Client has ownership or rights over any Client Tech Stack and associated data, Agency may use the data in connection with Agency’s advertising services (including, but not limited to, business intelligence, enhancing Agency’s products and services, marketing optimisation, and trend analysis) provided use of data in connection with Client Tech Stack is on an aggregated and anonymised basis.

5.13   Where a SOW sets out assumptions or dependencies and such items cannot be relied upon then Agency is not liable for delays, costs or inability to provide Merkury Services and/or Deliverables which rely on such assumptions or dependencies.  Agency may issue a change order request to amend the scope, Charges or duration of Merkury Services and/Deliverables under a SOW where assumptions or dependencies cannot be relied upon.

5.14   Agency will provide Merkury Reporting and any other reporting on performance or campaign results for Merkury Services in accordance with agreed SOWs during the term of those SOWs.  Merkury Reporting and provision of other reporting and data is subject to data available from the relevant Tech Stack supplier, third party conditions and costs, these Service Terms, transfer and storage, access controls, available formats and agreed scope and Fees within a SOW.  

5.15   Agency acts in all its contracts as a principal (and not as agent for Client) in respect of dealings with Media Owners, Agency Tech Stack suppliers and other third party suppliers (“Suppliers”) and shall place orders and enter into contracts with the Suppliers in its own name and on its own account. Notwithstanding the foregoing, Agency will act as agent for Client (and not as principal) in respect of Agent Services and where expressly stated in a SOW and Agency is hereby authorised to place orders with relevant Media Owners, Client Tech Stack suppliers, rights owners and other third parties in the name and on behalf of Client and Client shall execute such other agreements and other documentation as reasonably required. In the event that Agency acts as principal for payment or incurs costs on behalf of Client then Client will reimburse Agency for all amounts properly incurred by Agency. Other than where expressly stated to the contrary, nothing in the Service Terms is intended to or shall operate to create a legal partnership or relationship of principal and agent between the parties.

6.       FINANCIAL PROVISIONS

6.1     In consideration of providing the Merkury Services, Client shall pay to Agency the Charges in accordance with each SOW and the Service Terms.  Unless otherwise specified, all Third Party Expenditure incurred by Agency in pursuance of the fulfilment of the Merkury Services (which is within Client Programmatic Budget, otherwise agreed to in writing by Client or incurred due to the actions or omissions of Client or its agents) shall be charged to Client, including without limitation: data, research, reports, technology, tools and any Tech Stack fees, costs or charges incurred.  For clarity, any Other Programmatic Service Fees and Fees for programmatic services related to Merkury are separate to Merkury Fees and all Fees will be payable by Client in relation to Merkury Services provided by Agency.

6.2     Unless otherwise specified, Agency shall be entitled to issue its invoices on an ad hoc basis and invoices will be payable within 30 days of the date of the invoice. All late payments shall, without prejudice to Agency’s other rights and remedies, be subject to interest at the rate of 2% per annum above the base lending rate of Agency’s principal lending bank from the due date until the date of payment in full.  Client shall also pay to Agency costs and expenses, including reasonable fees, incurred in collection of any late payments. Agency reserves the right to suspend all Merkury Services in the event of late payment.

6.3     Where a surcharge is levied by a supplier against Agency due to late payment and this results from late payment or other actions or omissions by Client, Client shall (without prejudice to Agency’s other rights and remedies) immediately upon presentation of an invoice reimburse to Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

6.4     Agency does not accept liability for risk posed by fluctuations in currency exchange rates and such risk shall be borne by Client. Where the parties agree that Agency incurs some or all of its costs with a Third Party Vendor in one currency (“Original Currency”) and invoices Client in a currency other than the Original Currency (“Invoicing Currency”), Agency may convert such costs from the Original Currency to the Invoicing Currency and the parties agree that: (i) any such costs shall be converted from the Original Currency to the Invoicing Currency according to Agency’s selected industry rate of exchange between the Original Currency and the Invoicing Currency on the date of invoice, or, where the invoiced item relates to an item of previous expenditure by Agency, the date on which such expenditure was incurred; (ii) the amount of the costs payable pursuant to any invoice when converted to the Invoicing Currency may be greater than the amount of the costs quoted or agreed with Client due to fluctuations in Agency’s selected industry rate of exchange, and Client agrees to pay the difference between these respective amounts to Agency in accordance with the Service Terms; and (iii) if the amount of the costs payable when converted to the Invoicing Currency increases between the date of invoice and the date on which Client pays the amounts due under the invoice due to fluctuation in Agency’s selected industry rate of exchange, then Agency may invoice Client for the difference and Client agrees to pay the difference to Agency in accordance with the Service Terms.

6.5     Client acknowledges that Agency shall be entitled, at its own cost, to obtain insurance cover on the Charges incurred in connection with Merkury Services. If: (a) Client does not meet all of its payment obligations incurred in connection with Merkury Services; or (b) insurance cover is unavailable or inadequate and Client is unwilling or unable to provide advance payment or a form of security to the satisfaction of Agency, then Agency will be entitled to: (i) cancel existing Bookings and/or other expenditure and Client shall pay all associated Cancellation Charges; (ii) automatically suspend its obligations in relation to its provision of the Merkury Services, including Bookings and committing to other expenditure in connection with Merkury Services; and/or (iii) terminate these Service Terms and SOWs for Merkury Services by giving Client at least 7 days’ written notice.

6.6     Where Agency is engaged on a retainer basis, agreed resource hours not used by Client in accordance with the SOW will not be refunded or roll over to future weeks, months, or sprints (as applicable) unless otherwise agreed in writing.      

7.       INTELLECTUAL PROPERTY RIGHTS

7.1     Client Materials, Client Technologies and Client Tech Stack are owned or licensed by Client. Client hereby grants to Agency an irrevocable, worldwide, sub-licensable, transferrable, non-exclusive and royalty-free licence to use Client Materials, Client Technologies and Client Tech Stack to perform the Merkury Services in accordance with these Service Terms.

7.2     Agency Materials, Agency Technologies and Agency Tech Stack are owned or licensed by Agency. To the extent that any of the Deliverables incorporate or embody Agency Materials, Agency Technologies and Agency Tech Stack Agency grants to Client a worldwide royalty-free, non-transferable (save as permitted by these Service Terms), non-exclusive licence to use such Agency Materials, Agency Technologies and Agency Tech Stack to facilitate and/or enable the use by Client of the applicable Deliverable(s) in accordance with these Service Terms.

7.3     No party shall acquire any Intellectual Property Rights of the other in connection with the provision of the Merkury Services and each party remains the sole owner of any and all Intellectual Property Rights it owned or used prior to the execution of these Service Terms.  Any and all Intellectual Property Rights created under these Service Terms including, but not to, Intellectual Property Rights in any enhancements, developments, methodologies, know-how, techniques, modifications, derivatives, or improvements to Merkury Services and the Merkury Platform, other than Intellectual Property Rights in and to Third Party Materials, will vest in Agency upon creation as Agency Materials. 

7.4     Client shall only use the Merkury Services and Deliverables in accordance with any usage restrictions and licence conditions specified by Agency, Tech Stack supplier or third party licensor. Save as otherwise expressly permitted by these Service Terms or otherwise agreed in writing, Client shall not modify or remove any proprietary notices or legends placed on or within Agency Materials, Agency Technologies, Agency Tech Stack or Third Party Materials.  If Client wishes to use the Merkury Services and Deliverables outside of the agreed territory, after the period of time or outside the purposes set out in the SOW for Merkury Services, then such use shall be subject to mutual agreement of further Charges by the parties and any required clearances, applicable laws and associated payments.

7.5     Notwithstanding clause 7.1, to the extent that Client has ownership or rights over Agency Data or data which results from the Merkury Services, Client hereby grants to Agency a perpetual, irrevocable, worldwide, sub-licensable, transferrable, non-exclusive, and royalty-free licence (or sub-license, as the case may be) to use Agency Data and the data which results from the Merkury Services to perform the Merkury Services in accordance with these Service Terms and, provided use of the data which results from the Merkury Services is on an aggregated and anonymised basis, for any other purposes arising out of or in connection with Agency's advertising services (including, but not limited to, business intelligence, enhancing Agency’s products and services, marketing optimisation, and trend analysis). 

8.       WARRANTIES

8.1     Save as expressly set out in these Service Terms and to the extent permitted by applicable laws, all conditions, warranties or other terms on the part of Agency which might have effect between the parties or be implied or incorporated into these Service Terms or any collateral contract, whether by statute, common law or otherwise, are hereby excluded by Agency, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose. 

8.2     Agency will not be liable for delays or errors in any of the Deliverables as published: (i) unless and to the extent that this is caused by its breach of these Service Terms; or (ii) if the Deliverables have been approved by Client.

8.3     Agency warrants that the use of Deliverables, excluding any Client Materials, in accordance with these Service Terms shall not infringe the Intellectual Property Rights of any other person. 

8.4     Save as expressly agreed otherwise under these Service Terms or in writing, Agency makes no warranty and is not responsible for any third party content (including without limitation user-generated content or Material) published on or in platforms, services or channels operated by or on behalf of Client. Without limitation, Agency is not responsible for: (a) the accuracy of such content; (b) the compliance of such content with applicable laws, regulations, guidelines or codes of practice or Client's policies or requirements; (c) reporting any matters which by virtue of applicable laws are required to be reported to authorities; or (d) any third party claim in relation to such content, including without limitation a claim that such content infringes third party rights, including without limitation intellectual property, data protection and privacy rights, or a claim that such content is defamatory, libellous, slanderous or seditious. 

8.5     Client warrants that:

(a)   it will comply with laws applicable to the performance of its obligations and its use of the Merkury Services under these Service Terms;

(b)   it has in place reasonable precautions to prevent unauthorised system access and to avoid the spread of malware from its systems, Client Materials, Client Technologies, Client Tech Stack and networks and shall promptly notify Agency of any suspected security incident related to its use of the systems, Client Materials, Client Technologies, Client Tech Stack and networks and the Client Materials, Client Technologies and Client Tech Stack do not contain viruses or any computer code, files or programmes designed to interrupt, destroy or limit the functionality of any software, platforms, hardware or telecommunications equipment;

(c)   when used in accordance with these Service Terms the Client Materials, Client Technologies and Client Tech Stack: (i) do not infringe the intellectual property or other rights of a third party; (ii) do not contravene any applicable laws, regulations, guidelines, codes of practice or advertising standards, or Client’s own policies; (iii) are not false, deceptive, indecent, defamatory or misleading; and (iv) have been obtained with all necessary rights, licences, permissions and consents to allow for such use; and

(d)   it will maintain a privacy policy that complies with applicable privacy and data protection legislation and covers the provision of programmatic media buying, use of Merkury Services and, in particular, but without limitation, discloses that third parties may place Technologies on the browsers of visitors to Client website(s) and collect data about the visitors’ internet usage;

(e)   any and all Client Materials along with any other information provided or otherwise made available under or in connection with the Merkury Services will be free from Personal Information; and

(f)    it will not, at any time, merge or match the Agency Data or Deliverables with Client’s Personal Information or other data Client has access to in an attempt to de-anonymize or re-identify individuals.

8.6     Without prejudice to Client's responsibility and Agency's other rights and remedies, Agency may request that Client provides at Client’s cost a formal written opinion on the lawfulness of, and use of, any Client Materials, Client Technologies and Client Tech Stack from an appropriately qualified and experienced independent legal practitioner.

8.7     Notwithstanding clause 8.6, and without prejudice its other rights and remedies, Agency, Tech Stack supplier or a Media Owner may refuse to perform Client's request if, in that party’s opinion, such action may result in violation of any applicable laws, regulation, guideline or code of practice. Client shall remain responsible for payment to Agency of the Charges. 

9.       INDEMNITIES

9.1     Agency shall indemnify and hold harmless Client from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Client arising out of (and only to the extent of) a breach by Agency of clause 8.3.  

9.2     Client shall indemnify and hold harmless Agency from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Agency arising out of (and only to the extent of) a breach by Client of clauses 4.5-4.9, 7.4 and 8.5.

9.3     The party entitled to an indemnity under these Service Terms shall take all reasonable steps to mitigate the applicable costs, expenses, charges, damages, liabilities, claims or actions.

10.     TERM AND TERMINATION

10.1   The term of these Service Terms (“Term”) comes into effect on the date the Merkury letter of engagement is signed and shall continue until terminated in accordance with this clause 10.  For the avoidance of any doubt, the parties acknowledge and agree that, in the event of termination of these Service Terms (for whatever reason), the Merkury letter of engagement will automatically terminate with effect on and from the same date.

10.2   Each SOW to which these Service Terms apply shall come into effect on the start date and continue until the end date as specified in the SOW for Merkury Services (“Initial Term”). If a SOW indicates that the SOW will Auto Renew then, following the end date of Merkury Services for that SOW, such SOW will continue for successive terms equal to the length of the Initial Term (each a “Renewal Term”) unless a party to the SOW provides written notice that it does not want to renew the SOW no less than 30 days’ prior to the expiry of the then current Initial Term or Renewal Term. Termination or expiry of a SOW shall not serve to terminate these Services Terms or any other SOW.

10.3   Without affecting any other right or remedy available to it, either party may terminate these Service Terms and/or any SOWs for Merkury Services with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of any term of these Service Terms (which includes non-payment of any invoice by its due date) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or (ii) the other party has entered (or can be evidenced to be proposing or at risk of entering) a bankruptcy, receivership, insolvency, administration, insolvency related creditor arrangement, liquidation, or other similar proceeding, whether itself or at the instigation of a third party, and including any similar occurrence or proceeding that has equivalent effect in any jurisdiction. If a party has a right to terminate SOWs pursuant to this clause, it may choose either to terminate only the SOW in question or all SOWs. 

10.4   Agency may terminate these Service Terms and/or any SOW for Merkury Services immediately on written notice to Client if it believes that the continued provision of the Merkury Services may adversely affect its compliance with any and all laws or regulations, goodwill, reputation or industry standing.

10.5   During the performance of its obligations under these Service Terms, Agency may where it determines necessary to ensure the ongoing compliance of the Merkury Services with applicable laws, regulations, industry standards, Agency policies or other requirements of Agency Tech Stack suppliers involved in the provision of the Merkury Services suspend the Merkury Services in whole or in part without incurring any liability to Client. In the event Agency does not provide prior written notice to Client of such suspension, Agency will provide Client written notice of any such suspension as soon as reasonably practicable after the suspension coming into effect.

10.6   Agency may terminate these Service Terms and/or any SOW for Merkury Services for convenience by providing Client not less than 14 days’ written notice. These Service Terms and any SOW for Merkury Services will automatically terminate upon expiry of such notice.

10.7   Agency’s maximum liability for any suspension under clause 10.5 or in connection with the termination of these Service Terms and/or any SOW for Merkury Services shall be limited to returning any pro-rata Charges paid in advance by Client for Merkury Services that were not provided prior to (a) the date of suspension under clause 10.5 or (b) the expiry of a termination notice under clauses 10.4 and 10.6.

10.8   Termination of these Service Terms or any SOW for Merkury Services shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breaches of these Service Terms or any SOW for Merkury Services which existed at or before the date of termination. 

10.9   Except as otherwise permitted by these Service Terms, upon termination of any SOW for Merkury Services:

(a)   Agency shall: (i) cease all use of and access to Client Data; and (ii) promptly destroy all Client Data and copies of Client Data, except for copies retained through ordinary backup measures and as required by law; 

(b)   Client shall: (i) cease all use of and access to Agency Data; and (ii) promptly destroy all Agency Data and copies of Agency Data, except for copies retained through ordinary backup measures and as required by law; and

(c)   all Charges in relation to Merkury Services provided and expenditure committed as at the date of termination will be payable by Client to Agency.

11.     LIABILITY

11.1   Subject to 11.2, to the maximum extent permitted by law, the maximum aggregate liability of Agency to Client under these Service Terms or in connection with the Merkury Services, whether in contract, tort (including negligence) breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act) or otherwise, shall not exceed; (a) an amount equal to 100% of the Fees paid or payable by Client to Agency for Merkury Services during the 12 months immediately preceding the relevant claim under the SOW to which the claim arises (excluding, for the avoidance of doubt, any third party expenditure paid or payable by Agency pursuant to the Merkury Services) or (b) to the extent that the claim does not relate to a specific SOW for Merkury Services, $100,000. 

11.2   The parties specifically acknowledge and agree that any provision, other than clause 11.3, which purports to limit the liability of any party will not apply in respect of: (a) a party’s indemnification obligations under these Service Terms; and (b) a breach by a party of its confidentiality obligations in connection with clause 14.

11.3   To the maximum extent permitted by law, neither party shall be liable to the other for any:

(a)   loss of actual or anticipated income or profits;

(b)   loss of contracts or business;

(c)   loss of reputation or goodwill; or

(d)   special, indirect or consequential loss or damage of any kind, 

howsoever arising in connection with these Service Terms, whether in contract, tort (including negligence), breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act) or otherwise, and including under the indemnity obligations under these Service Terms.  The liability of a party in connection with these Service Terms will be reduced to the extent that it is caused by a breach or default under these Service Terms by the other party.   

12.     NON-SOLICITATION

Client agrees that it will not either on its own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during the Term and for a period of twelve months thereafter solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee of Agency (or Agency Affiliates) who has been engaged on the performance or receipt of the Merkury Services, or otherwise engaged in the provision of Other Programmatic Services to Client.

13.     ASSIGNMENT AND SUB-CONTRACTING

13.1   Agency may: (a) sub-contract any or all of its obligations under these Service Terms provided that Agency shall remain at all times liable for the performance of the Merkury Services; and (b) assign, sublicense or otherwise transfer any or all of its rights or obligations under these Service Terms to any Agency Affiliate or Merkury Sub-Contractor. 

13.2   Save as set out in clause 13.1, no assignment, subcontracting or sublicensing is permitted.

14.     CONFIDENTIALITY

14.1   Except as otherwise permitted by these Service Terms, confidential information and data disclosed by the parties in connection with these Service Terms and SOWs for Merkury Services will only be used by the receiving party as required to deliver and receive the Merkury Services.  Media rates, the proprietary Merkury database within the Merkury Platform, and information about how Agency provides Merkury Services is Agency confidential information.

14.2   Client acknowledges that Client Tech Stack may contain Agency confidential information and Agency Materials, the unauthorised disclosure of which could cause serious harm to the Agency.  Client agrees that it may not, without the prior written permission of the Agency (which will include relevant conditions, access controls and IT security limitations):

(a)   during the term that Agency is engaged for Merkury Services, grant access to Client Tech Stack to any third party;

(b)   share the Agency confidential information and Agency Materials with any third party other than strictly as is required for the operation of the Client Tech Stack in the provision of the Merkury Services;

(c)   without limiting the generality of sub-clauses (a) and (b), share or use media rates that comprise Agency confidential information for the purpose of procuring services, whether directly from the relevant Media Owner and Tech Stack supplier or indirectly through third parties.

15.     GENERAL

15.1   No provision of these Service Terms (or any document entered into in connection with these Service Terms) shall be modified or varied without the written consent of the parties. To the extent that an event outside the reasonable control of Agency (including but not limited to material changes to applicable law or industry self-regulatory guidelines) materially impacts Agency’s ability to provide the Merkury Services in accordance with these Service Terms or any SOW, Agency reserves the right to submit a variation to these Service Terms, relevant SOW and/or suspend the impacted part of the Merkury Services upon reasonable notice. If Client does not agree to the variation Client may terminate the impacted SOW following 30 days’ notice. Client shall be deemed to have accepted the variation if Client continues to accept the Merkury Services on the variation terms. 

15.2   No delay, failure or omission (in whole or in part) in exercising or pursuing any right or remedy under these Service Terms will be construed as a waiver of that right or remedy.

15.3   Termination of these Service Terms and any applicable SOW for any reason will not affect those provisions which are stated to, or by their nature, survive such termination.

15.4   The parties acknowledge and agree that these Service Terms supersede: (i) any previous agreement or understanding between the parties relating to the subject matter of these Service Terms; and (ii) any terms and conditions contained in a party’s purchase order or invoice.  In entering into these Service Terms and/or any SOW for Merkury Services, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any person other than as expressly set out in these Service Terms.  Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing. 

15.5   No provision of these Service Terms shall be construed adversely against a party solely because that party was responsible for drafting that particular provision. If any provision of these Service Terms is found to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of these Service Terms, which will remain in full force and effect. 

15.6   These Service Terms and any and all disputes arising out of or in connection with these Service Terms (including without limitation any alleged breach, or challenge to the validity or enforceability, of these Service Terms or any provision hereof) shall be subject to the laws of the state of Victoria and the Commonwealth of Australia.

15.7   Any and all disputes arising out of or in connection with these Service Terms shall be finally settled by binding arbitration under the rules recommended by the Law Institute of Victoria (“Rules”) (which Rules are deemed to be incorporated by reference into these Service Terms) by one arbitrator, appointed in accordance with the Rules. The arbitration shall take place in Melbourne and the language of the arbitration shall be English. This clause shall not prevent Agency from taking action against Client through any court of competent jurisdiction in relation to: (a) the non-payment or late payment of Fees or other amounts payable to Agency; or (b) interim or injunctive relief.

 

Last updated 23 May 2022 (V1)

A downloadable PDF version of the Dentsu AU Merkury Service Terms can be found here (together with previous versions).