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FINAL CONTRACT

STANDARD CONTRACT TERMS FOR ENGAGEMENTS ENTERED INTO BY CLIENTS AND PROVIDERS USING THE Above Data website (THE “SITE”) SITE AND Above Data SERVICES (THE “SERVICES”).

IMPORTANT – PLEASE READ CAREFULLY THIS IS A LEGAL AGREEMENT BETWEEN THE BUYER (“CLIENT” OR “BUYER”) AND SELLER (“PROVIDER” OR “SELLER”) OF SERVICES. BY CHECKING THE "I AGREE" BOX DURING THE SIGN UP PROCESS, YOU (EITHER THE CLIENT OR PROVIDER, AS APPLICABLE) REPRESENT AND WARRANT THAT YOU: (I) HAVE READ THIS AGREEMENT AND UNDERSTAND IT; (II) ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF AND BIND THE ENTITY THAT IS BUYING OR PROVIDING (AS APPLICABLE) THE SERVICES (USING THE SITE), TO THESE STANDARD CONTRACT TERMS; AND, (III) AGREE THAT THESE STANDARD CONTRACT TERMS SHALL SOLELY GOVERN THE PROVISION OF SERVICES FROM THE PROVIDER TO THE CLIENT UNLESS OTHERWISE AGREED IN WRITING BY YOU AND ABOVE DATA.

IF YOU DO NOT AGREE TO THESE STANDARD CONTRACT TERMS, OR YOU ARE NOT AUTHORIZED TO BIND YOUR ENTITY TO THESE STANDARD CONTRACT TERMS, THEN YOU SHOULD NOT CHECK THE “I AGREE” BOX, IN WHICH CASE YOU WILL NOT BE ABLE TO TRANSACT BUSINESS USING THE SITE AND SERVICES.

Parties to this Agreement: CLIENT and PROVIDER as identified on the Site for this particular Transaction.

Background. These Standard Contract Terms, together with the bid proposal by the Provider to a Client pursuant to any additional Above Data Terms of Use (the “BID”) collectively form the “Agreement” between Client and Provider.

Effective Date: This Agreement shall be effective as of the date that Client accepts Provider’s Bid whether on the Site or in any other format.

TERMS OF AGREEMENT: for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

  1. DEFINITIONS (Defined Terms not otherwise defined in these Standard Contract Terms shall have the meaning set forth in the Above Data Terms of Use located on the Site which are incorporated by reference herein).
    • “Confidential Information” means any information of a party that is conspicuously designated as "Confidential" or "Proprietary" (i) by stamp or legend if communicated in writing or other tangible form or (ii) orally at the time of disclosure with a written confirmation within thirty (30) days describing the Confidential Information communicated orally.
    • “Compensation” means the amount to be paid by CLIENT to PROVIDER as set forth in the BID.
    • “Deliverables” means the pictorial, graphic, literary or audiovisual work(s) or other tangible items that may be specified in the BID to be provided by PROVIDER to CLIENT under the Agreement.
    • “Delivery Schedule” shall mean the timetable for PROVIDER’s activities as listed in the BID.
    • “Services” means the Services to be performed by PROVIDER as described in the BID.
    • “Start Date” means the date upon which PROVIDER commences the Services under this Agreement.
  2. PROFESSIONAL SERVICES - PROVIDER shall provide to CLIENT the Services and Deliverables that are defined and described in the BID under the terms and conditions of this Agreement. Such BID may be amended or modified by a supplementary BID proposal agreed to by both parties on the Site; such supplementary bid proposal shall then be deemed the BID and supersede and replace the previous BID.
  3. OWNERSHIP AND GRANT - PROVIDER hereby promises to assign and hereby assigns to CLIENT all copyrights, trademark rights and patent rights in the Deliverables delivered to and accepted by CLIENT (and paid for by CLIENT) under this Agreement to the extent that PROVIDER owns such rights.
  4. CONTRACTORS - PROVIDER shall provide such resources and use such employees and/or contractors as it deems reasonably necessary to accomplish the Services, provided that such employees and/or contractors will be bound by the same or similar confidentiality provisions with PROVIDER to protect Confidential Information of CLIENT.
  5. DELIVERY AND DELIVERY SCHEDULE - PROVIDER shall use commercially reasonable efforts to meet the delivery schedule set forth in the BID. CLIENT understands and agrees that the timely and professional performance of PROVIDER may depend on CLIENT’s availability as well as completion of certain CLIENT tasks or adherence to CLIENT schedules within CLIENT’s control; consequently, the Delivery Schedule, Deliverables, Services, and Compensation may require amendment or modification in the event such CLIENT tasks or schedules change, are modified, or are not completed as anticipated.
  6. ACCEPTANCE OF DELIVERABLES
    To the extent any Deliverables may be specified in the BID, such Deliverables shall be subject to the following processes:
    • A. Changes/Modifications. Within five (5) days after receipt of a Deliverable (the "Acceptance Period") CLIENT shall (a) provide written notification of acceptance to PROVIDER, or (b) reject such Deliverable and provide reasonable written comments to PROVIDER regarding the Deliverable upon which re submission will be based. If CLIENT requires changes or modifications, CLIENT shall have ten (10) days (the "Revised Acceptance Period") upon receipt of revised Deliverable to provide reasonable written comments to PROVIDER. Deliverables and Services may only be rejected by the BUYER if they fail to meet the acceptance criteria defined in the BID, or if no such criteria are defined, then the level of quality and professional standards generally accepted in PROVIDER’s industry. This process shall continue until PROVIDER has corrected all noted deficiencies and CLIENT accepts the Deliverable.
    • B. Acceptance. CLIENT will be deemed to have accepted the Deliverable upon occurrence of either of the following ("Acceptance"): (a) CLIENT notifies PROVIDER in writing (email) that the Deliverable is acceptable; or (b) CLIENT fails to notify PROVIDER of rejection of the Deliverable within the Acceptance Period or Revised Acceptance Period.
  7. TRADEMARK LICENSE – CLIENT hereby grants PROVIDER, during the term of this Agreement, a non-exclusive, non-transferable, fully paid-up, royalty-free, worldwide right and license to use CLIENT’s trademarks, logos, and other marks (“Marks”) for the purpose of performing the Services. All such use of the Marks by PROVIDER shall be subject to CLIENT’s usage guidelines for the Marks, and CLIENT’s quality control procedures.
  8. CONFIDENTIALITY - The receiving party (“Recipient”) agrees that Confidential Information received by the disclosing party (“Discloser”) in furtherance of this Agreement shall not be disclosed to any person or persons outside the Recipient's organization, excluding contractors of Recipient who are under similar obligations of confidentiality, and that such Confidential Information shall only be used for purposes of this Agreement. The obligations of confidentiality shall be satisfied by the Recipient if the Recipient uses the same standard of care to protect the Disclosure’s information from disclosure as such party uses to protect its own information, but in any event not less than a reasonable degree of care. The above restrictions on use and disclosure shall not apply to any information if the same (i) is in the public domain or in the possession of the Recipient without restriction at the time of receipt under this Agreement, (ii) is used or disclosed with prior written approval of the Discloser, (iii) becomes known to the Recipient from a source other than the Discloser without breach of this Agreement by the Recipient, or (iv) is required to be disclosed pursuant to law, provided the Recipient uses reasonable efforts to give notice of such required disclosure.
  9. INVOICING AND PAYMENT Invoicing and payment for the Services (including any relevant expenses) and Deliverables shall be in accordance with the terms and amounts set forth in the Bid, and terms set forth in the Above Data Terms of Use.
  10. TERM AND TERMINATION.
    1. Term. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, continue for the time period set forth in the Bid, or such longer period as the parties may agree (the “Term”).
    2. Termination for Convenience. Beginning 60 days following the Start Date, either CLIENT or PROVIDER may terminate this Agreement for convenience, for any or no reason, upon providing notice thereof to the other party as set forth in the Above Data Terms of Use. The effective date of termination shall be the end of last day in the then-current monthly billing period (as defined in the Above Data Terms of Use).
    3. Termination for Cause. Either CLIENT or PROVIDER may terminate this Agreement for cause, upon notice to the other party as set forth in the Above Data Terms of Use, if the other party commits a material breach of this Agreement and does not cure such breach within 10 days following written notice thereof from the non-breaching party.
    4. Effect of Termination.
      1. Material breach by PROVIDER. In the event of termination of this Agreement for cause by CLIENT due to uncured material breach by PROVIDER, PROVIDER shall refund to CLIENT the full amount paid for the Services and/or Deliverables not yet delivered by PROVIDER hereunder as of the effective date of termination of this Agreement. CLIENT shall work with Above Data to obtain such refund in accordance with Above Data’s then-current refund policy.
      2. Material breach by CLIENT. In the event of termination for cause by PROVIDER due to uncured material breach by CLIENT, all licenses granted to CLIENT hereunder shall automatically terminate and all intellectual property rights previously assigned to CLIENT are hereby immediately and automatically assigned back to PROVIDER, without further action by CLIENT or PROVIDER. CLIENT shall also, within fifteen (15) days of such expiration or termination return to PROVIDER or destroy (including purging from any system or storage media), at the election of PROVIDER, any and all copies of the Deliverables and Confidential Information.
      3. Licenses. Except in the case of termination for cause by PROVIDER due to CLIENT’s uncured material breach, all licenses and/or ownership interest granted herein to CLIENT shall survive any expiration or termination of this Agreement and shall continue in full force and effect.
      4. Survival of clauses. Any payment obligations of CLIENT, and any terms which by their nature contemplate continuing effectives, including, without limitation, terms regarding confidentiality, warranty, indemnity, limitation of liability and general terms, shall continue and survive any termination of this Agreement.
  11. NO ORAL MODIFICATION - CLIENT agrees that any terms and conditions of any purchase order or other instrument issued by CLIENT in connection with the Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement shall be of no force or effect. No alteration, modification, variation or waiver of any of Agreement's provisions shall be effective unless in a written form duly executed by the parties, or in the case of a waiver, by the party waiving compliance.
  12. NO WAIVER - The failure of a party to enforce any provision of this Agreement, including, but not limited to, the clause No Oral Modification, shall not constitute a waiver of such provision or the right of such party to enforce such provision or any other provision.
  13. LIMITATIONS OF LIABILITY - NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS OR COVER), UNDER ANY THEORY OF LAW OR FOR ANY CAUSE OF ACTION AND IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY EXCEED THE CONTRACT PRICE SET FORTH IN THE BID. THESE LIMITATIONS OF LIABILITY SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
  14. WARRANTIES – PROVIDER warrants to CLIENT that the Services shall be performed in a professional manner and, to the best of its knowledge, the Services and Deliverables as delivered to CLIENT will not infringe any copyright, patent, trademark, trade secret or other proprietary right held by any third party. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY PROVIDER HEREUNDER AND ARE IN LIEU OF ALL OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
  15. INDEMNITY – CLIENT agrees to indemnify, defend (including attorney’s fees and costs of defense) PROVIDER from and hold PROVIDER harmless against any and all losses, claims, damages, judgments, expenses or liabilities which PROVIDER may incur based upon defect in products manufactured or sold by CLIENT, or resulting from any false or misleading information and data concerning CLIENT or its products or its services, provided the advertising or promotional material involved in such losses, etc., has been approved by CLIENT for publication, or other dissemination.
  16. FORCE MAJEURE - Neither party shall be liable to the other party for any loss, damage, or penalty arising from delay due to causes beyond its reasonable control including acts of God, acts of government, unavailability of utilities or telecommunications, war, strikes, riots, or embargoes.
  17. ATTORNEY’S FEES TO PREVAILING PARTY - In the event of any claim or legal action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover from the losing party all fees and expenses incurred by the prevailing party in connection with the action, including reasonable attorney's fees and related costs.
  18. INDEPENDENT CONTRACTORS. The relationship between CLIENT and PROVIDER is solely that of independent contractors, and no agency, partnership, employment, franchise, joint venture, or other relationship is established by this Agreement.
  19. NO CLAIMS AGAINST NOR ANY CIRCUMVENTION OF ABOVE DATA – CLIENT and PROVIDER agree that any and all disputes between them shall be brought directly against each other and resolved solely between themselves, and that neither of them shall bring any claim against Above Data or any of its directors, officers, employees, contractors, or agents regarding the Services or anything else under this Agreement. CLIENT’s and PROVIDER’s relationship and agreement with Above Data shall be solely governed by the Above Data Terms of Use. In addition, CLIENT and PROVIDER agree that neither will circumvent, by-pass, avoid, or attempt to avoid payment to Above Data relating to any Services performed by PROVIDER for CLIENT for a period of three (3) years from the date of this Agreement. For the avoidance of doubt, any amounts owed to Above Data shall be paid regardless of whether deliverables or transactions occur between CLIENT and PROVIDER in a format other than the Site.
  20. SEVERABILITY – If any provision of this Agreement is found to be illegal, invalid, or unenforceable, such provision shall, to the extent practicable, be conformed by the parties to a legal, valid and enforceable provision that most closely accomplishes the original objective of the parties; all other provisions of this Agreement are unaffected and shall remain in full force and effect.
  21. ENTIRE AGREEMENT - This Agreement, together with the applicable terms of the Above Data Terms of Use, contains the complete and entire understanding of the parties, and supersedes all prior or contemporaneous agreements and understandings between the parties, with respect to the subject matter hereof.
  22. GOVERNING LAW - This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws provisions of that State or any other provisions that would result in the application of a different body of law.
  23. NO CONFLICT OF INTEREST - PROVIDER agrees that it shall not perform any services for any third party that would be reasonably deemed to cause a conflict of interest with the Services being performed by PROVIDER for CLIENT hereunder.