Last Updated - Sep 2024

1. Definitions

Any capitalised terms not defined in these Terms will have the meanings set out in the Letter and applicable Statement of Work. In addition, the following terms shall have the following meanings:

"Agreement" means this agreement between you and us including any documents annexed or referred to.

“Anti-Corruption Laws” means all applicable laws, statutes, regulations and codes relating to anti-bribery and corruption including without limitation the Philippine Anti-Graft and Corrupt Practices Act

“Associated Persons” means directors, officers, or employees.

“Data Protection Legislation” means all data protection and/or privacy legislation which applies in the jurisdiction in which the Work is to be provided and/or to each of the parties’ obligations hereunder, including any sub-ordinate legislation, regulation or guidance issued by the relevant Authority responsible for data protection and/or privacy in such jurisdiction and, for Services provided in the Philippines, shall include the Data Privacy Act of 2012 and its implementing rules and regulations.

“Personal Information”, “Privileged Information” and “Sensitive Personal Information” have the meanings given under the Data Privacy Act of 2012 and any related Data Protection Legislation.

"Deliverables" means the deliverables specified in the Schedule.

"Intellectual Property Rights": all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“The Agency” or “us”: Dentsu Philippines and its affiliates.

“The Client”:  The Agency’s client as referred to in the Schedule of Work, together with any associated companies.

“The Work”:  the services and Deliverables to be supplied as described in the Schedule.

“You”: the entity providing the services to the Agency.

2. Commencement and Duration

2.1 The Work supplied under this Agreement shall be provided by you from the Commencement Date specified in the Schedule.

2.2 Subject to early termination pursuant to clause 11, the Work supplied shall continue to be supplied until the relevant delivery date specified in the Schedule or otherwise agreed in writing by the parties.

3. Delivery and Performance

3.1 You agree to deliver the Work to us by the date and time (if specified) and according to the conditions of performance (if any) specified in the Schedule. 

3.2 You agree to cooperate fully with any third parties appointed by us or otherwise at our request as necessary to complete your performance of the Work.

3.3 You shall meet, and time is of the essence as to, any performance dates specified in the Schedule attached.  If you fail to do so, we may (without prejudice to any other rights we may have):

(a) terminate the Agreement in whole or in part without liability to you;

(b) refuse to accept any subsequent performance of the Work which you attempt to make;

(c) purchase substitute services from elsewhere; and

(d) hold you responsible for any loss and additional costs incurred.

3.4 You further agree to notify us immediately on becoming aware of any event or circumstance that has caused or may cause a delay in the commencement or completion of the Work.  You shall be solely responsible for promptly remedying, at your own expense and to our satisfaction, any non-conforming part of the Work.

4. Quality of the Work

4.1 You warrant that:

(a) you will perform the Work with reasonable skill and in accordance with best industry practice and standards and in any event, to our satisfaction;

(b) the Work and Deliverables will conform with all descriptions and specifications provided by us to you;

(c) you will ensure that you or any sub-contractors carrying out the Work shall be suitably qualified with appropriate levels of training, experience and seniority to carry out the Work; and

(d) the Work and Deliverables will be provided in accordance with all applicable legislation from time to time in force and you will inform us as soon as you become aware of any changes in that legislation;

(e) you have and will (and ensure that your employees, agents and subcontractors) maintain all necessary data protection notifications and that you (and ensure that your employees, agents and subcontractors) will comply with the Data Protection Legislation;

(f) you will (and ensure that your employees, agents and subcontractors) comply with all provisions of the E-Marketing Policy in performing the Work and the Deliverables as set out in Schedule 2.  You agree that you must be able to demonstrate compliance with these guidelines at our request of and to our satisfaction. 

(g) To the extent that the nature of the Work requires you to process Personal Information, Sensitive Personal Information and Privileged Information (as such terms are defined in the Data Privacy Act of 2012), on our behalf, you acknowledge and agree that you shall act as a Processor and shall:

[i] comply with, and only act on, instructions from and on behalf of us and the Client regarding the processing of that Personal Information, Sensitive Personal Information and Privileged Information;

[ii] not process that Personal Information, Sensitive Personal Information and Privileged Information for any purposes other than to provide the Work to us and/or our Client;

[iii] ensure that appropriate technical and organisational measures are taken to avoid unauthorised or unlawful processing of that Personal Information, Sensitive Personal Information and Privileged Information and against loss or destruction of, or damage to, that Personal Information, Sensitive Personal Information and Privileged Information;

[iv] ensure the reliability of all your employees, agents and contractors who have, and will have, access to that Personal Information, Sensitive Personal Information and Privileged Information;

[v] not, by any act or omission, place us and/or our Client in breach of Data Protection Legislation;

[vi] inform us immediately of any suspected or confirmed data protection breaches or unauthorised or unlawful processing, loss, or destruction of, or damage to, that Personal Information, Sensitive Personal Information and Privileged Information;

[vii] not sub-contract to any third party any of its obligations to process that Personal Information, Sensitive Personal Information and Privileged Information on behalf of us and/or our Client without our prior written consent; and

[viii] not process, or cause to be processed, that Personal Information, Sensitive Personal Information and Privileged Information outside the Philippines unless you have: (i) our prior written consent to do so; (ii) fulfilled all of ours and/or our Client’s requirements to enable the processing to take place outside the Philippines (iii) have all the necessary permissions to process such data under Data Protection Legislation.

4.2 Our rights under this Agreement are in addition to those provided by Philippine law.

4.3 The provisions of this clause 4 shall survive any performance, acceptance or payment and shall extend to any substituted or remedial services provided by you.

5. Payment

5.1 In consideration of the provision of the Work, we agree to pay you the sum(s) specified in the Schedule. Payment will be made 30 days after receipt of your invoice, subject to the following.

(a) A copy of this Agreement signed by the Agency and you must be entered into prior to any Work being undertaken on this project.

(b) Payment shall not be due unless you have fully complied with your obligations under this Agreement.

(c) The price specified in the Schedule shall be inclusive of all charges and we shall not be obliged to pay any additional amounts, including penalties and interests, unless specifically authorised by us in writing signed by our CFO. Any stipulation to the contrary under any proposal letter, cost estimate or other similar document solely prepared by You shall be void.  VAT will be payable subject to delivery of an appropriate VAT invoice.

(d) Your invoice must be a valid tax invoices for the purposes of VAT legislation and appropriate rules and regulations as set out by the Philippine Bureau of Internal Revenue, identify the Work to which the invoice relates, and be sent to our company address as set out above or otherwise notified to you.  We reserve the right to withhold payment of any disputed part of an invoice until the dispute is resolved, but will notify you of any dispute and will not delay or withhold payment of any part of the invoice that is not disputed.

6. Intellectual Property Rights

6.1 General

(a) You hereby assign to us with full title guarantee and free from all third party rights the Intellectual Property Rights and all other rights in the Work and any other work carried out in connection with the performance of this Agreement (“Associated Material”). 

(b) You shall promptly at our request, do (or procure to be done) all such further acts and things and the execution of all such other documents as we may from time to time require for the purpose of securing the full benefit of the Agreement, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to us in accordance with this paragraph 6 above.

6.2 Moral rights

You hereby absolutely and unconditionally waive all moral rights in the Work in favour of the Agency, the Client and our respective licensees, assigns and successors in title.  You undertake to procure moral rights waivers in the same terms signed by all individuals and other persons who may have any moral rights in the Work.

6.3 Ownership of material

The Work and all Associated Material, including without limitation all documents, drawings, designs, negatives, transparencies and prints and all disks, tapes and other material on which the Work and associated material is stored, shall be our property.  Your possession of any data, content or materials belonging to us or our Client for purposes of developing the Work does not have the effect of assigning any rights or ownership over any of them to you and you must not use any such materials for any purpose other than the limited purpose set forth in the Schedule.  Upon completion of the Work, you undertake to promptly return to us, without keeping any paper or digital copies, any associated material or other data, content or materials belonging to us or our Client.

6.4 Promotional Exemption

You may not reproduce the Work or use the Work for your own publicity purposes or use the Work or any of the Deliverables in relation to any of your other customers or clients without our prior consent, which we may grant or withhold at our discretion. 

7. Warranties and Indemnity

7.1 You warrant that the Agency and the Client will be entitled to use the Work to the full extent permitted under this Agreement free from all third party Intellectual Property Rights infringements or any other claims of any nature (including without limitation any claims by models or performers).

7.2 You further warrant that you will comply with all applicable legislation and recognised industry standards in developing the Work and that you have the necessary skills, qualifications, resources and all necessary consents, including (without limitation) any consents required by law,  to fulfil your obligations.

7.3 You shall indemnify and hold us harmless from any and all claims, liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred by us or, where appropriate, the Client as a result of or in connection with:

(a) any alleged or actual infringement, whether or not under Philippine law, of any third party's Intellectual Property Rights or other rights arising out of the use of the Works including the Deliverables; or

(b) any liability which would not have arisen had you complied with the warranties given to us under this Agreement or otherwise performed your obligations in accordance with this Agreement; and

(c) any liability arising as a result of your (or that of your employees, agents or sub-contractors) acts or omissions.

(d) any failure to comply (or any act or omission which causes the Agency or its Client to fail to comply) with the Data Protection Legislation or the E-Marketing Policy.

7.4 The provisions of this clause 7 shall survive termination of this Agreement, however arising.

8. Limitation of Liability 

8.1 Agency shall not under any circumstances be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profit, loss of business, depletion of goodwill, pure economic loss, loss of data or information, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.

8.2 Without prejudice to Clause 8.1, Agency’s total aggregate liability to you in respect of all losses suffered by you from, under or in connection with the Agreement, whether in contract, tort, misrepresentation, restitution, breach of statutory duty or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 100% of the total paid or payable for the Work during the 12 month period prior to the claim arising.

9. Insurance

You shall hold insurance cover to an appropriate value to cover the liability assumed by you under this Agreement.  On request, you will provide us with evidence of such insurances being held by you.  If you should fail to maintain such insurances we shall be entitled to maintain such insurances ourselves and pay any applicable premiums at your cost.

10. Confidentiality 

You undertake, for the duration of this Agreement and afterwards, to keep strictly confidential all confidential matters disclosed to you by us relating to the Agency, the Client or the Client’s products.  Confidential matters will normally include (but not be limited to): your engagement by the Agency and the terms on which you are engaged, all details of the campaign for which the Work is required, all details concerning the Client’s products which are not already in the public domain and all details concerning the Client’s advertising and marketing plans.  You undertake to procure that all employees, sub-contractors and other third parties to whom it may be necessary for you to disclose confidential matters for the purposes of performing your obligations under this Agreement undertake to keep such matters strictly confidential.

11. Termination

11.1 We may terminate your appointment under this Agreement, whether or not you are in default, upon four weeks prior written notice provided that you are paid for all Work undertaken by you up to the date of such notice.

11.2 Without prejudice to our other remedies, the Agency may terminate this Agreement immediately if:

(a) you are in breach of an obligation under this Agreement and, if the breach is capable of remedy, failing to remedy the breach within five days of receipt of a notice by us requiring you to remedy the breach; or

(b) if a petition is presented for an administration or winding up or bankruptcy order against you or a receiver, administrative receiver or manager is appointed over any of your assets or an order is made or a resolution passed for your winding up or if you enter into any composition with your creditors or if any of these appear to us to be likely to happen or if for any other reason whatsoever it appears to the Agency that you may become unable to perform your obligations under this Agreement or to perform them in time;

11.3 In the event of such termination you will be liable for all additional costs incurred by the Agency or by the Client in obtaining the Work from an alternative supplier, and all cancellation or other charges incurred and all other losses arising out of your breach of this Agreement.

11.4 Termination of this Agreement, howsoever arising, shall be without prejudice to the rights, remedies and duties of the parties prior to termination.

12. Anti-bribery and corruption

12.1 Supplier shall ensure that, in relation to this Agreement and general business practices, neither it, nor any of its Associated Persons, engage in any activity, practice or conduct which may constitute an offence under any applicable Anti-Corruption Laws.  In particular, Supplier shall not, and will ensure that any Associated Persons do not offer, promise or pay to, or solicit or receive from any other person (including public and government officials) or company, any financial or other advantage which causes or is intended to cause another person to improperly perform their function or activities in order to secure or retain a business advantage.  

12.2 As part of its internal measures to ensure compliance under this Clause 12, Supplier shall implement and maintain policies and procedures to assess the risk of, monitor, and prevent the breaching Anti-Corruption Laws by itself or any of its Associated Persons.  Such policies and procedures shall be made available for immediate inspection upon the Agency’s written demand and failure to implement policies and procedures which are, in the Agency’s sole discretion, adequate shall be deemed a material breach of this Agreement.

12.3 Supplier shall, upon discovery, notify the Agency immediately of any breach or suspected breach by any employee or Associated Person of this Clause 12 and/or any Anti-Corruption Law.

13. Non-solicitation

13.1 During the Term and for a period of twelve (12) months thereafter, you agree not to solicit or employ any employees of the Agency, except as otherwise agreed upon.

13.2 You acknowledge that you will learn and develop Confidential Information relating to Agency’s Clients and relating to the Agency’s servicing of those Clients. You also recognize that the Agency’s relationships with its Clients are extremely valuable to it and that the protection of the Agency’s relationships with its Clients is essential. Accordingly, you agree not to solicit a Client for the purpose of providing services of any type that you or the Agency rendered to the said Client during the Term and for a period of twelve (12) months thereafter.

13.3 Any breach of the provisions under this Section will constitute a material breach of this Agreement that may cause irreparable harm to the Agency and you commit to pay the Agency to injunctive relief an amount equivalent to Php 500,000.00 for each Client you solicit, without prejudice to other remedies available to the Agency. 

14. General

14.1 Except as agreed by us in writing, no element of the performance of this Agreement may be sub-contracted by you and you may not assign or otherwise transfer any rights and/or obligations under these terms without our prior written consent.

14.2 These terms and conditions shall apply to the exclusion of all other terms and conditions contained in any document, which have not been authorised and signed by us.  These terms and conditions may not be varied except in writing signed by us.

14.3 Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party, the agent of another party for any purpose.  No party shall have authority to act as agent for, or to bind the other party in any way.

14.4 No variation of this Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.

14.5 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given.  No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise.  No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

14.6 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

14.7 This Agreement may be executed in any number of counterparts, each of which when executed shall be an original and together shall constitute one and the same instrument.

14.8 This Agreement shall be subject to Philippine law and all disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration in accordance with the then applicable Philippine Dispute Resolution Center, Inc. Arbitration Rules (“Rules”) (which Rules are deemed to be incorporated by reference into this Agreement) by one arbitrator, appointed in accordance with the Rules. The arbitration will take place in the Philippines and the language of the arbitration will be English.

SCHEDULE 2

E-Marketing Policy

In order to meet the requirements of its clients, the Agency requires to ensure that marketing is only directed to individuals who have given their direct permission or have “opted in” to receive information from a particular advertiser. Compliance with this policy is extremely important, as consumers are extremely sensitive to the use of E-marketing in general and the Agency’s clients (“Clients”) pride themselves on applying “best practice” in this area.

Definition

“Direct permission” or “opt in” means that an individual has:

  • Been notified at the time that information is collected that it will be processed passed to the Client or Agency and processed for the particular purpose for which it is being provided by the Supplier  
  • Acknowledged his or her consent to such use by the Client or Agency by checking a box or clicking an “I Accept” or “Yes” button on a Web site at the time that they input information; or
  • Specifically agreed to provide information and to receive materials from the Agency or Client through a Business Reply Card or by calling a toll-free number.  

The provision of any data to the Client or Agency for the use intended must be consistent scope of the permission granted by the individual.  For example, if a consumer expresses an interest in receiving information in the mail about a particular product, it would not be appropriate send information about other products, nor would it be appropriate to send the consumer an e-mail about that product unless they have specifically stated they will accept email.

E-Marketing scenarios

There are four different e-marketing scenarios that this policy covers and these are itemised below:

  1. Where the Agency or Client sends an email directly or via an Email Service Provider.
  2. Where a third party data owner transmits an Agency or Client email but from their own domain
  3. Where a third party data owner transmits their own email to their data and that email contains promotional text/graphics relating to a Client’s product as part of a campaign funded/controlled by the Client.
  4. Where a third party data owner transmits their own email to their data and that email contains promotional text/graphics relating to a Client  product as part of a campaign funded/controlled by the third party data owner.

Transmission by the Client or Agency

In the case of transmission by the Client or Agency the following rules must be observed:

  • that it is clear that it is a promotional email
  • that all the recipients have positively consented to receiving emails relating the promoted product
  • that there is full disclosure of who the Client is (i.e. the office, address, telephone no, Company registration number and VAT number must appear)
  • That there is a clear and unambiguous unsubscribe link in the email.

Transmission by 3rd Party data owner of Client or Agency email

In the case of transmission of a Client or Agency email but by the 3rd party list owner the same rules as above apply.

Transmission by 3rd party at the behest of Client or Agency of Client product information within their own email

a), b) and d) above still apply

Transmission by 3rd party of their own email

In this case the Client or Agency has no responsibility. But if the Client or Agency is contributing in any way – for example by providing creative materials or by “co-op funding” then a(, b) and d) above will still apply.

Warranties

All suppliers of data hereby warrant, that the data to be used has been legally acquired and legally permissioned for the purpose to which the Client or Agency wish to apply it under the relevant data protection / privacy laws in which the data has been collected and processed (in the Philippines, this means the Data Privacy Act of 2012.

Where projects are run through the same 3rd party email provider, it is not necessary to repeat the auditing above, provided that the email provider warrants that there has been no change. Where they cannot do this, then the auditing below will be required and in any event it should be undertaken on an annual basis.

Compliance Auditing

The Agency and Clients have received complaints in the past as a consequence of email campaigns where had not apparently been given. Therefore when working with a any third party under any of the scenarios above the following steps must be taken:

  • Consent verification

The Supplier must be able to provide reasonable evidence to show that that consent was obtained in accordance with this policy and the relevant Data Protection Legislation. Consent can be implied by a recorded click-through but NOT by an open or bounce report. It is the Agency’s policy not to use records that have not had an updated consent in the last two years.

  • Process Verification

The Supplier must be able to validate that the registration process works properly and that consents are correctly represented in the underlying database.

  • Unsubscribe Verification

The Supplier must be able to demonstrate an unsubscribe function from sample emails from which the data is drawn to validate that the unsubscribe process works properly.

  • Aged data

The Supplier must be able to show the data that consent was obtained/last updated. It is Agency’s policy not to use records that have not had an updated consent in the last two years. Consent can be implied by a recorded click-through but NOT by an open or bounce report.

  • Record Auditing

The Supplier must provide an “nth” sample of the data to prove that consents, data age and data source are all stored against the database to be used. This should be retained by the Agency or Client with the project records.