“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control” and its grammatical variants for the purpose of this definition means, (a) a general partnership or interest in a partnership, (b) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors, or (c) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise;
“Applicable Privacy Laws” means (a) Swiss Federal Act on Data Protection; (b) EU General Data Protection Regulation 2016/679; and (c) any other applicable privacy or data protection laws;
“Approved Subprocessors” means the approved subprocessors specified in the DPA;
“Business Day” means a day that is not a Saturday, Sunday or any other day which is a public holiday in Immensee, Switzerland;
“Costs” means the fees specified in the Key Terms or the Order Form, which may include Third Party Costs;
“Customer” means the respective counter party in the respective role. A Customer might eighter register as an Organization or an
“Customer Content” means any content and materials provided by Customer (or on Customer’s behalf) to Riterz to be included on the Marketing Campaign, Digital Platforms or to be included in any way as part of the Services, including the text, images, audio, illustrations, information, graphics, domain names, designs, logos, trademarks and any other Intellectual Property Rights owned by Customer and any modifications, adaptations and enhancements made to Customer Content;
“Confidential Information” means any confidential or commercially sensitive information of a Party, including the Party’s personnel, policies or business strategies or any other information that at law would be considered confidential. The Confidential Information of Riterz includes the Software;
“Covered Advertisements” means Social Advertisements and Search Advertisements;
“Data Processing Amendment” or “DPA” means an agreement between a data controller (such as a company) and a data processor (such as a third-party service provider). It regulates any personal data processing conducted for business purposes under an agreement;
“Deliverables” means any custom developments (including custom developed software), custom material and/or custom deliverables that are created specifically for Customer in accordance with mutually agreed upon specifications under an Order Form;
“Digital Platforms” means the accounts that are held by Customer with third party websites and applications used by Riterz in the provision of the Services, as further specified on Ritzer’s Website and on the Platform;
“Documentation” means any technical and functional documentation for the Services as made available by Riterz;
“End Customer” means a customer of Customer for whose benefit Customer has used the Services;
“Force Majeure” means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under the Terms, including:
acts of God, lightning strikes, earthquakes, floods, storms, pandemics, explosions, fires and any natural disaster;
power surge or failure, computer virus or any breakdown or malfunction of plant, machinery, server or equipment;
acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
strikes;
“VAT” means any Value Added Tax or any consumption tax imposed on the sale or supply of goods, services;
“Intellectual Property Rights” means all present and future rights throughout the world conferred by statute, common law or equity in or in relation to inventions, discoveries, innovations, know how, technical information and data, prototypes, processes, improvements, patent rights, circuitry, drawings, plans, specifications, copyright, trade mark rights, design rights, plant variety rights and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered, or patentable. These include all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights;
A “Marketing Campaign” refers to a coordinated series of activities or actions aimed at promoting a particular product, service, or idea, conducted across various media channels, as mutually agreed upon by the involved parties and outlined in this agreement.
“Campaign Budget” means the agreed maximum amount that Riterz can spend on placing Covered Advertisements in a booked Marketing Campaign;
“Order Form” means an order form, statement of work or quote provided by Riterz to Customer for the provision of the Services;
“Organisation” means a Customer that registered as an Organisation. An Organisation is a legal entity, usually in the form of an Association, Society, Foundation, Chamber, Federation, Not-For-Profitor other form of industry or member based organization, that makes its network and member base available for advertising campaigns.
“Parties” means Riterz and the Customer and Party means either one of them;
“Professional Services” means any integration, consulting, custom development, advertising, managed or similar services provided by Riterz to Customer, as further outlined in a Documentation or a Statement of Work;
“Schedules” means a schedules to this Terms;
“Search Advertisements” means any advertisements placed on internet search engines, including Google AdWords;
“Services” means the services to be supplied by Riterz to Customer, as specified in the Documentation and or on the Website, in an Order Form or otherwise agreed between the parties in writing. The Services may include Platform, Professional Services and Support Services;
“Social Advertisements” means any advertisements on Digital Platforms, including advertisements on Facebook, Instagram, Snapchat, Pinterest, Twitter and LinkedIn;
“Software” means the proprietary technology owned or licensed by Riterz comprising the technology platform for ads campaign creation, update, deletion and campaign performance reporting for the chosen Digital Platforms, any API access to API end points to access data within such technology platform, any algorithm and any performance data derived from provision of the Services;
“Sponsor” means a Customer that has registered to an Organisation on the Platform for the purpose of adervtising on the media network of an Organisation..
“Subprocessor” means any person (including any third party but excluding an employee of Riterz) appointed by or on behalf of Riterz to Process Personal Data on behalf of any Client;
“Platform” means the cloud-based technology platform services supplied by Riterz, further described in Section B;
“Support Services” means the support services specified in Section G or in a specific Support Schedule;
“Term” means that period beginning on the Commencement Date and ending on the End Date and includes any Further Term or renewal under Section R;
“Third Party Agreement” means an agreement between Riterz and a third party whereby the third party has granted to Riterz the right to sub-licence or resell a Service provided to Customer;
“Third Party Costs” means any costs and expenses payable by Riterz to third parties in relation to a Third Party Agreement, as set out in the Documentation or an Schedule; and
“User” means an individual person who is registered by Customer to use the Subscription Service.
“Website” means any website or web application of Riterz’s that is accessible through the World Wide Web.
Version: July, 3, 2024.
Subject to the rest of this clause 1, Riterz will provide the Services to the Client for the duration of the trial.
This Agreement will commence on the Commencement Date (Signage date) and continue until the expiry of the trial or if this Agreement is terminated earlier in accordance with clause 15.
Continuation of the Agreement for further terms will be on same terms and conditions of the Agreement, except that Riterz may specify variations or new terms that will apply with effect from the Further Term (including any variation to the Charges) provided that Riterz must notify the Client of the proposed variations at least 30 days prior to the end of the then current Term.
If the Client wishes to acquire additional Services during the Term, the Client can order those Services by entering into an Order Form with Riterz that covers the additional Services. The Order Form must be accepted and signed by both Parties before either party is bound.
Upon execution by the parties, each Order Form is non-cancellable and non-refundable, except as provided for in this Agreement. Each Order Form will form part of, and be governed by the terms of, this Agreement.
Each additional Order Form will come into force on the Service start date specified in that Order Form, and will continue for the term specified in the Order Form. If no start date or term is specified, the Service term will commence on the date on which the last part signs the Order Form and will expire upon the expiry or termination of this Agreement.
The expiry of the Term of this Agreement does not affect the operation and continuation of any Order Form then in existence and which has an expiry date after the expiry of the Term. Any such Order Form will continue to have effect, and the terms of the Agreement will continue to apply to the Services subject to the Order Form, until the Service term has expired or is terminated.
This clause 3 applies if the Client has purchased any Technology Platform Services.
During the Term, Riterz grants to the Client a limited, non-exclusive, non-transferable, worldwide licence for the Client and it's Users to access and use the Technology Platform Services and the Documentation in accordance with the usage and access guidelines and restrictions (if any) set out in this Agreement or the Documentation.
The Platform may not be accessed during the trial. Post trial the subscription services may be accessed by no more than the specified number of Users as set out in the Order Form or as otherwise agreed in writing between the Parties. Additional Users may be added during the Term as agreed between the parties.
The Technology Platform Services may be updated or modified from time-to-time during the Term, provided that any such change does not result in a material degradation of the key functionality of the Technology Platform Services.
The licences granted to the Client under this clause are subject to the limitation that the Client will not do any of the following:
use the Technology Platform Services, or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds the Client’s authorized use or usage metrics set forth in the Documentation or the applicable Order Form;
copy, alter, modify or create derivative works based on the Technology Platform Services, except to the extent expressly permitted by this Agreement;
reverse engineer, reverse compile, decompile or disassemble the object code of any part of the Technology Platform Services or otherwise attempt to derive the source code of the Technology Platform Services;
use the Technology Platform Services or the Documentation in any way that violates applicable law or infringes upon the rights of a third party;
provide access to the Technology Platform Services or Documentation to a third party, other than as permitted under this Agreement; or
copy all or any portion of the Documentation other than as is reasonably necessary to make full use of the Technology Platform Services.
Any Client Content that is processed using the Technology Platform Services is and will remain, as between the Client and Riterz, owned by the Client. The Client hereby grants Riterz the right to process, transmit, store or disclose the Client Content in order to provide the Technology Platform Services to the Client.
Riterz may suspend any use of the Technology Platform Services, or remove or disable any User account or content that Riterz reasonably and in good faith believes violates this Agreement. Riterz will use commercially reasonable efforts to notify the Client prior to any such suspension or disablement.
The use of the Subscription Service may be subject to the Client's acceptance of third party terms and policies. By accessing or using the Subscription Service, the Client agrees to be bound by those terms and policies. The Client understands that if it does not accept such terms or policies, it may be prevented from using the Subscription Service and Riterz will not be liable for any loss incurred due to the Client's inability to access the Subscription Service.
During the Term, Riterz will provide Support for the Services in accordance with the Support Schedule.
This clause 5 will apply if the Client has purchased any Professional Services or trials.
The Client will pay the Charges for Professional Services at rates and under payment terms described in the Key Terms or applicable Order Form.
Riterz warrants that:
the Professional Services will be performed in a competent and workmanlike manner in accordance with accepted industry standard practice and the terms and conditions herein; and
the Deliverables, if any, will be supplied in accordance with any applicable specifications outlined in the Order Form or as otherwise agreed in writing between the Parties;
The Client's exclusive remedy for breach of this warranty is to notify Riterz in writing within thirty (30) days of the non-conforming Professional Services. Upon receipt of such notice, Riterz, at its option, will either re-perform the Professional Services in conformance with these warranty requirements or will refund Client the prorated amount of fees for the unperformed and non-conforming Professional Services. For free trials no refunds will be granted.
Riterz will provide the Professional Services during such hours and on such days as it considers necessary and appropriate to comply with its obligations under this Agreement.
To the extent that Riterz is required to attend or access the Client's site or systems to perform the Professional Services, Riterz will use all reasonable efforts to comply with any policies and procedures relating to the site or system.
If Riterz has agreed to supply Deliverables:
Riterz will use its best endeavours to meet any milestone dates specified in the Order Form;
unless specified otherwise in an Order Form:
any Materials that are used in created the Deliverables will at all times be owned by Riterz;
any Client Content, provided by the Client to Riterz, used in creating the Deliverables, will at all times be owned by the Client;
all Intellectual Property Rights in and to any Developed IP subsisting in the Deliverables will vest in Riterz automatically upon creation;
upon final payment by the Client to Riterz of all applicable Charges, and subject to these terms and conditions, Riterz grants to the Client an exclusive, perpetual, worldwide, royalty-free license to use the Deliverables provided to the Client under the Order Form, solely for purposes of Client's business operations. This license includes permission to make copies of Deliverables for such use but not to distribute or sell the Deliverables. The license granted to the Client in this clause is not sub-licensable, assignable or transferable, without the prior written consent of Riterz;
If the Client request access to any working files or raw assets used in creating, or forming part, of the Deliverables (Working Files), the provision of such files or assets is at the discretion of Riterz and may be subject to additional Charges, as specified in the applicable Order Form. Any Intellectual Property Rights in the Working Files provided to the Client will remain the property of Riterz at all times, unless otherwise agreed in writing.
COVERED ADVERTISEMENTS
This clause 6 only applies where the Services include the placing by Riterz of Covered Advertisements.
If in any calendar month during the Term the amount spent on Covered Advertisements is less than 100% of the Monthly Advertising Budget, the unused amount will be added to the Monthly Advertising Budget for the next month for Covered Advertisements.
Riterz is not obliged to provide any refunds for any portion of the Monthly Advertising Budget that has been paid in advance to Riterz but not been spent, if the Services or this Agreement is terminated or cancelled for any reason.
The provision of the Services may rely on websites operated by third parties (Third Party Sites) which are not under the control of Riterz. Riterz is not responsible for the availability, accuracy, legality or decency of material or copyright compliance of the Third Party Sites.
The Client and its customers link to any Third Party Sites entirely at their own risk and Riterz is not liable or responsible for any advertising, products or materials on or available from the Third Party Sites.
Riterz is not responsible or liable in any way for any loss or damage the Client or its customers incur or allege to have incurred, either directly or indirectly, as a result of the use and/or reliance upon a Third Party Site.
The Client must:
provide to Riterz all assistance, information, access and co-operation that Riterz reasonably requires to provide the Services;
be available during normal business hours for discussions with Riterz concerning matters arising under this Agreement;
be responsible for the accuracy, appropriateness, integrity and legality of any Client Content provided to Riterz;
use and access the Services only in accordance with applicable laws, including but not limited to domestic and international export control laws;
be solely responsible for determining the suitability of the Services for the Client's business; and comply with the terms of any Third Party Agreement as notified to it by Riterz from time-to-time.
The Client’s obligations under this clause 8 are in addition to any other specific obligations of the Client under this
Agreement.
Riterz is not liable for any delays in providing the Services, and no refund of the Charges will be provided, where any delays are contributed to or caused by the Client’s failure to comply with its obligation under this Agreement or an Order Form.
The Client must pay the Charges at the rate and in the manner specified in the Key Terms or in an Order Form. Riterz will issue invoices in accordance with the Key Terms unless otherwise stated in an Order Form.
If:
the Services are delayed due to the actions or omissions of the Client;
Riterz is required to perform the Services in circumstances other than those expressly stated or reasonably anticipated by the Agreement; or
there is a change in the timing or the complexity of the Services which is notified by the Client to Riterz,
and such circumstances are not a result of a breach of the Agreement by Riterz, then the Client must pay any reasonable extra charges notified by Riterz in writing.
If the Client prefers to have Riterz’s payment method connected to the Platforms on which they advertise, Riterz will charge the Client 3% of Total Advertising Spend for the month, invoiced in alignment with the Client’s Advertising Spend.
If the Client fails to pay any amount when due, Riterz may, by giving fourteen (14) days’ notice to the Client, suspend the provision of part or all the Services until such time as all such amounts have been paid. Riterz may assess late charges equal to the lesser of 1.5% of the unpaid balance per month or the highest rate permitted by applicable law. The Client will be responsible for all reasonable costs, including legal fees, incurred by Riterz in collecting any amounts that were not paid when due.
Without limiting any provision of this clause 9.5, the Client is responsible for paying all taxes, levies, duties or similar governmental assessments of any nature, including, for example, stamp duty, withholding taxes, assessable by any jurisdiction in respect of this Agreement, but excluding GST or taxes assessable against Riterz based on its income, property and employees (collectively, Taxes). In addition, and without set off, to the fees payable under this Agreement, the Client mush pay the Taxes directly to the taxation authorities, unless Riterz has the legal obligation to pay or collect Taxes, in which case Riterz will invoice the Client, and the Client will pay that amount unless the Client provides Riterz with a valid tax exemption certificate authorised by the appropriate taxing authority. To the extent that any supply made under or in connection with this Agreement is a GST taxable supply, the GST exclusive consideration to be paid or provided for that taxable supply is
increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time as the GST exclusive consideration is to be paid or provided.
The Parties agree that the Client's payment obligations under this Agreement are not reliant upon the issuing of a purchase order by the Client. If the Client does issue a purchase order, it must be for the amounts required to be paid under this Agreement, and Riterz hereby rejects any additional terms and conditions appearing in any purchase orders.
If Riterz owes any amounts to the Client that are not derived from this Agreement, such amounts must be withheld or offset against any invoice issued under this Agreement.
A party shall:
take all action reasonably necessary to maintain the confidentiality of the other party’s Confidential Information;
only use the other party's Confidential Information for the purpose of fulfilling its obligations or enforcing its rights under this Agreement; and
not disclose the other party’s Confidential Information without the prior written approval of the other party, except as
permitted under clause 10.2.
(a) .
A party shall not be in breach of clause 10.1 in disclosing the Confidential Information of the other party: (a) to its personnel, subcontractors and professional advisors on a confidential and "need-to-know" basis; (b) in circumstances where it is legally compelled to disclose the Confidential Information, provided that prior to disclosing such Confidential Information, the party intending to disclose (if legally permitted) gives prompt notice to the other party so that the other party has the opportunity to seek a protective order or other appropriate solution. If the other party to gain the protective order or appropriate solution to avoid disclosure, then the disclosing party must only disclose that portion of the Confidential Information that is necessary to comply with its legal obligations; or (c) in order comply with the listing rules of any stock exchange on which its securities are listed.
Each party shall take all reasonable steps to ensure that its officers, employees, agents and sub-contractors do not make public or disclose the other party’s Confidential Information. 10.4 Each party must immediately on demand, return to the other party or destroy any documents in its possession, power or control containing the
Each party must immediately on demand, return to the other party or destroy any documents in its possession, power or control containing the other party’s Confidential Information. Riterz may retain a copy of such Confidential Information as it requires for record keeping purposes, as required by any law, provided it continues to hold such information subject to the confidentiality obligations set out in this clause 10.
This clause 10 shall survive the termination of the Agreement.
During the Restraint Period, the Client must not (and must procure that any related entity does not) solicit for employment or engage as a contractor, either directly or indirectly, any person who is (or has been in the previous 6 months) employed or contracted by Riterz.
The Client shall promptly notify Riterz if a person who is employed by Riterz seeks to be employed or contracted by the Client or a related entity prior to the expiration of the Restraint Period.
No pre-existing Intellectual Property Rights of either Party are assigned or otherwise transferred pursuant to this Agreement unless otherwise expressly stated in this Agreement.
The Client Content and Digital Platforms involve valuable Intellectual Property Rights which are owned by Client or third parties. No rights, title or interest or Intellectual Property Rights in the Client Content or Digital Platforms or any other assets of Client are transferred to Riterz by entering into the Agreement.
The Client grants to Riterz a royalty-free, worldwide, non-exclusive, sub-licensable and non-transferable (except to the extent permitted under this Agreement) right and licence to:
use, reproduce, distribute, modify, perform and display the Client Content (or any portions thereof); and
register or establish accounts and publish campaigns on the Digital Platforms on behalf of the Client, for the Term in connection with the provision of the Services.
All Client Content that is improved, modified or developed by Riterz as part of proving the Services will remain owned by the Client, and will be licensed to Riterz in accordance with clause 12.3. 12.5 The Software,
Documentation and the Services involves valuable Intellectual Property Rights owned
by, or licensed to, Riterz. No rights, title or interest or Intellectual Property Rights in the Services, the Software, the Documentation or any other assets of Riterz are transferred to the Client. Except as explicitly specified in this Agreement, the Client has no proprietary or other interest in the Software and nothing in this Agreement transfers any right, title or interest in the Software, the Documentation or the Services to the Client.
If the Services involve the creation or provision of Materials or know-how by Riterz, Riterz retains all rights, title or interest or Intellectual Property Rights in and associated with the Materials and the know-how (Developed IP) unless agreed otherwise in writing between the Parties.
Except as specified in clause 12.8, the Client must not copy, alter, modify or reproduce the Developed IP or any
part of it without Riterz’s prior written consent.
Riterz grants the Client a royalty-free, non-exclusive, non-sub-licensable and non-transferable licence, during the Term, to:
use any Developed IP and other Intellectual Property Rights subsisting in the Service; and
use the Services,
but only for the purpose of receiving the benefit of the Services under this Agreement, and subject to any additional conditions specified in this Agreement.
Except as expressly permitted under this Agreement, the Client must not, and must not allow any other person to:
use the Developed IP, Software, Documentation or other Intellectual Property Rights subsisting in the Services (Existing IP) except for the purpose of receiving the benefit of the Services under this Agreement;
modify, vary, improve, translate or adapt the Developed IP or the Existing IP; (3) sub-license, disclose, sell, distribute, publish, transmit or otherwise make available to any third party any part of the Developed IP or Existing IP;
reverse engineer, disassemble, decompile or otherwise reduce the Software into any human-readable form, except to the extent authorised by any applicable law; or
use the Developed IP or Existing IP for hire or rental, timesharing, service bureau or other similar arrangements.
Any other rights of the Client in relation to the Developed IP or Existing IP are excluded or limited to the fullest extent permitted by law.
If under any laws, the Client acquires any Intellectual Property Rights specified in this Agreement as to be owned by Riterz, then without prejudice to any other right of Riterz, the Client automatically assigns any and all such Intellectual Property Rights to Riterz immediately upon creation and the Client agrees to execute all additional documents requested by Riterz to give effect to such assignment.
To the extent that Riterz (or its licensors, licensees or assignees) develops any updates, new versions or new releases of the Software, they will be, as between the Client and Riterz, owned exclusively by Riterz and, unless otherwise agreed by the parties, licensed to the Client under clause 12.7.
No other rights are granted to the Client other than as explicitly stated in this Agreement.
In this Agreement, the terms, Data Subject, Personal Data, Personal Data Breach, Processing and Supervisory Authority shall have the same meaning as in the EU General Data Protection Regulation 2016/679 (GDPR) and their cognate terms shall be construed accordingly.
In the course of providing the Services to the Client, Riterz may Process Personal Data on behalf of the Client in accordance with provisions of the GDPR.
Riterz shall:
comply with all Applicable Privacy Laws in relation to the Processing of Personal Data on behalf of the Client; and
not Process Client Personal Data other than as permitted by this Agreement or in accordance with the Client’s
documented instructions.
The Client instructs Riterz to Process Client Personal Data as is reasonably necessary for the provision of the Services in accordance with the terms of this Agreement.
Riterz shall in relation to the Client Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
In assessing the appropriate level of security, Riterz shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Riterz shall not engage any Subprocessor without prior specific or general written authorisation from the Client. In the case of general written authorisation, Riterz shall inform the Client of any intended changes concerning the addition or replacement of other Subprocessors and give the Client the opportunity to object to such changes. If Riterz engages a Subprocessor in accordance with this section, Riterz shall ensure that its contract with the Subprocessor contains sufficient guarantees that the Processing will meet the requirements of the GDPR.
Notwithstanding the above, the Client agrees that Riterz may engage the Approved Subprocessors to Process Client Personal Data in accordance with the terms of this Agreement.
Riterz shall, to the extent legally permitted, promptly notify Client if it receives a request from a Data Subject to access, correct or delete that person’s Personal Data or if a Data Subject objects to the Processing thereof (Data Subject Request). Riterz shall not respond to a Data Subject Request without Client’s prior written consent. To the extent the Client, in its use of the Services, does not have the ability to address a Data Subject Request, Riterz shall upon Client’s request provide commercially reasonable assistance to facilitate such Data Subject Request to the extent Riterz is legally permitted to do so and provided that such Data Subject Request is exercised in accordance with Applicable Privacy Laws. To the extent legally permitted, Client shall be responsible for any costs arising from Riterz’s provision of such assistance.
Riterz shall notify Client without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client Personal Data, transmitted, stored or otherwise Processed by Riterz or its Subprocessors of which Riterz becomes aware (Client Data Incident). Riterz shall make reasonable endeavours to identify the cause of such Client Data Incident and take those steps as Riterz deems necessary and reasonable in order to remediate the cause of such a Client Data Incident to
the extent the remediation is within Riterz’s reasonable control. The obligations herein shall not apply to incidents
that are caused by Client.
Riterz shall provide reasonable assistance to the Client with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which is required of it by article 35 or 36 of the GDPR or equivalent provisions of any other Applicable Privacy Law, in each case solely in relation to Processing of Client Personal Data by, and taking into account the nature of the Processing and information available to, Riterz.
Subject to clauses 13.14 and 13.15, Riterz shall promptly and in any event within fifteen (15) Business Days of the date of cessation of any Services involving the Processing of Client Personal Data (the Cessation Date), delete and procure the deletion of all copies of those Client Personal Data.
Subject to clause 13.14, Client may in its absolute discretion by written notice to Riterz within three (3) Business Days of the Cessation Date require Riterz to (a) return a complete copy of all Client Personal Data to Client by secure file transfer in such format as is reasonably notified by Client to Riterz and (b) delete and procure the deletion of all other copies of Client Personal Data Processed by any Subprocessor. Riterz shall comply with any such written request within fifteen (15) Business Days of the Cessation Date.
Riterz and each Subprocessor may retain Client Personal Data to the extent required by Applicable Privacy Laws and only to the extent and for such period as required by Applicable Privacy Laws and always provided that Riterz shall ensure the confidentiality of all such Client Personal Data and shall ensure that such Client Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Privacy Laws requiring its storage and for no other purpose.
Riterz shall provide the Client with all information necessary to demonstrate compliance with the Applicable Privacy Laws and this clause 13, and allow for and contribute to audits, including inspections, as required by Applicable Privacy Laws, provided that such audits are conducted by an independent third party auditor approved by Riterz and under confidentiality obligations acceptable to Riterz.
Riterz must not Transfer any Personal Data (and must not permit its Subprocessors to Transfer any Personal Data) without the prior consent of the Client. The Processor understands that Riterz must approve and document that adequate protection for the Personal Data will exist after the Transfer, using contracts that provide sufficient guarantees (such as standard contractual clauses) unless another legal basis for the Transfer exists.
If Riterz becomes aware that a Data Breach has occurred, unless notifications are delayed by the actions or demands of a law enforcement agency, Riterz must promptly (being within no more than 72 hours after determination that a Data Breach has occurred) notify the Client of that Data Breach. Riterz's obligation to report a Data Breach under this clause is not to be construed as an acknowledgement of any fault by Riterz with respect to the Data Breach.
If Riterz has notified the Client of a Data Breach in accordance with clause 13.17, then Riterz must: (1) disclose to the Client information relevant to the Data Breach that is required by the Client in order to notify any authorities or affected individuals in accordance with Applicable Privacy Laws;
upon request, cooperate with the Client and any authorities in investigation the Data Breach; and
comply with the requirements of any Applicable Privacy Laws in relation to the Data Breach.
The Client warrants that it has not relied on any representation made by Riterz (including any descriptions, illustrations or specifications contained in any document produced by Riterz) not expressly stated in this Agreement. The Client acknowledges that it has been provided with an opportunity to independently verify the accuracy of, and has not relied on, any such representations.
The Client represents and warrants throughout the Term that:
it has the full right, power and authority to grant the licenses and related rights granted herein and has acquired any clearances, permissions and licenses that are necessary in connection with Riterz’s exercise of such licenses and rights; and
the Client Content is true and accurate, does not violate any law or regulation and is not misleading, defamatory, libelous or slanderous and Riterz’s use of the Client Content in connection with providing the Services will not infringe upon or violate the rights or property interests of any third party.
The Client will notify Riterz in writing promptly if any of the foregoing representations and warranties becomes untrue.
Each party represents and warrants to the other that:
it has full corporate power to enter into and give effect to this Agreement and to complete the transactions contemplated by this Agreement;
it has taken all necessary action to authorise the execution, delivery and performance of this Agreement;
on execution of this Agreement, its obligations under this Agreement will be valid, binding and enforceable; and
unless otherwise stated, it does not enter into this Agreement as trustee of any trust.
Subject to clause 14.5, any term, condition, representation, guarantee or warranty which is not expressly included in this Agreement is excluded and the Services and all related components and information are provided on an "as is" and "as available" basis without any warranties of any kind. Riterz expressly disclaims any and all warranties, including the implied warranties of merchantability, fitness for a particular purpose, or that the Services will be uninterrupted, timely, secure, or error-free. Riterz does not represent, warrant or guarantee that its provision of the Services will achieve any particular outcome or result, such as an increase in sales, website visits or click-through rates.
If any term, condition, representation, guarantee or warranty is implied by law or incorporated by legislation into the Agreement and which cannot be lawfully excluded but which can be lawfully limited, the Client’s remedy for breach by Riterz of such term, condition representation, guarantee or warranty shall (to the maximum extent permitted by law) be limited, at the option of Riterz, to:
the resupply of the Services again;
the payment of the cost of having the Services supplied again; or
the refund of the Charges paid by the Client for the unperformed and non-conforming Services.
The Client indemnifies Riterz and its officers, employees and agents from and against any loss or liability incurred or suffered by, or arising out of or in connection with:
a breach by the Client of its obligations under this Agreement;
the Client Content or any materials published on the Digital Platforms (including if the Client Content breaches the Intellectual Property Rights of a third party);
any unauthorised use of the Software, Developed IP, Services or Materials by the Client (including any circumstance contemplated by clause 14.9); or
any wilful, unlawful or negligent act or omission by the Client or its officers, employees or agents.
If a Third Party IP Claim is made under clause 14.7 then:
the Client must notify the Riterz as soon as practicable;
Riterz may at its own cost conduct the defence of the claim in the name of the Client or negotiate any settlement of the Third Party IP Claim;
the Client must not settle, admit liability or compromise the Third Party IP Claim without the prior written consent of Riterz;
the Client must, upon request from Riterz, provide such assistance at the expense and direction of Riterz; and
Riterz may elect at its sole discretion to do one or more of the following: (i) modify, or arrange for the modification of, the Software, Developed IP, Services or Materials to render its use non-infringing; (ii) at no cost to the Client, render the relevant activity non-infringing by procuring the right to exercise the relevant Intellectual Property Rights of the relevant person; or (iii) terminate this Agreement and refund the Client a pro-rata amount of any
prepaid fees (in respect of the period between the date of termination and the expiry of the pre-paid period).
The indemnity under clause 14.7 does not apply to the extent that an infringement, suspected infringement or alleged infringement arises from:
use by the Client of Software, Developed IP, Services or Materials in combination by any means and in any form with other goods or services not specifically approved by Riterz; (2) use by the Client of Software, Developed IP, Services or
Materials in a manner or for a purpose not reasonably contemplated or not authorised by Riterz;
modification or alteration of Software, Developed IP, Services or Materials by the Client without the prior written consent of Riterz;
any transaction entered into by the Client relating to Software, Developed IP, Services or Materials without Riterz’s
prior written consent; or
the Client’s failure to apply an update provided by Riterz or to secure the necessary rights and licenses from End
Customers as set forth herein.
To the maximum extent permitted by applicable law:
Riterz will not be liable to the Client for any consequential loss, indirect loss, loss of profits, data, business, revenue, anticipated savings, opportunity or goodwill, loss of data or information, or any loss or damage which does not naturally or directly result in the ordinary course of events from the breach, action or inaction in question,; and
except for Riterz's obligation under clause 14.7, Riterz’s total liability under this Agreement is limited to the Charges paid by the Client to Riterz in the previous 6 months preceding the first event giving rise to the liability. The existence of more than one claim shall not enlarge this cumulative limit.
Notwithstanding any other term in this Agreement, the Client must use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the Services or breach of this Agreement.
Despite any other provision in this Agreement, clause 14.7 and clause 14.8 states the sole remedy of the Client and entire liability of Riterz in relation to any allegations or claims of infringement of Intellectual Property Rights by any person in relation to the Software, Developed IP, Services or Materials or their use.
Any claim for liability hereunder shall be made within twelve (12) months after the party making the claim has actual or constructive knowledge of the events giving rise to the claim. Notwithstanding the foregoing, this limitation of liability shall not apply to amounts due from the Client to Riterz under this Agreement for the Services.
Notwithstanding anything to the contrary herein, Riterz does not provide legal or regulatory advice and is not responsible for compliance of the campaigns or content with local, state and federal laws and regulations and professional rules and regulations applicable to End Customers and End Customers’ employees, contractors and representatives.
Either Party may terminate the Agreement or an Order Form immediately by notice in writing if: (1) the defaulting Party is in breach of any term of the Agreement and fails to remedy the breach within 30 days of receiving written notice of the breach;
the defaulting Party ceases or threatens to cease conducting its business in the normal manner; or
the defaulting Party becomes or threatens to become insolvent or is in jeopardy of becoming subject to any form of external administration.
Riterz may immediately terminate this Agreement or the relevant Order Form by notice to the Client if any Third Party Agreement between Riterz and the relevant licensor is terminated or expires such that Riterz ceases to have the right to provide the Services to the Client.
Termination pursuant to clause 15.1 or 15.2 is without prejudice to any other rights either Party may have under the Agreement or at law.
Upon termination or expiry of this Agreement for any reason:
each Party must immediately return (or destroy if requested ) to the other Party all of the other Party’s Confidential
Information (including the Materials);
Riterz may retain any moneys paid by the Client and charge the Client a reasonable sum for any work in progress that has been performed but not paid for;
if the Charges include any Third Party Costs, the Client must pay to Riterz the amount of all Third Party Costs that are payable by Riterz to the relevant third party\ies arising out of or in connection with the termination of this Agreement (including any termination payments or break fees payable to any such third party);
Riterz is discharged from any further obligations to provide the Services;
all licenses hereunder cease immediately; and
the following clauses will survive the expiration or termination (for whatever reason) of this Agreement: clause 10 (Confidentiality), clause 12 (Intellectual Property Rights, clause 14 (Liability and Indemnities), clause 15.4 and any other clauses which by their nature are intended to survive.
Neither party will be liable for any delay or failure to perform its obligations pursuant to the Agreement (other than an obligation to pay money) if such delay or failure is due to Force Majeure. 16.2 If a delay or failure of either party to perform its obligations is caused or anticipated due to Force Majeure, the performance of either party’s obligations will be suspended.
If a dispute arises under this Agreement, either party may at any time give written notice to the other requesting that a meeting take place to seek to resolve the dispute.
An authorised representative of each party must meet within five (5) Business Days of receipt of the notice and endeavour to resolve the dispute in good faith.
If such meeting does not take place or if after five (5) Business Days of the meeting the dispute remains unresolved, either party may pursue its rights at law.
During a dispute, each party must continue to perform its obligations under this Agreement, except as set forth in clause 9.4.
Nothing in this clause 17 restricts or limit the right of either party to obtain injunctive relief, or to immediately terminate this Agreement where this Agreement provides such a right.
This Agreement may not be assigned by the Client without the prior written consent of Riterz. 18.2 Riterz may transfer its rights under this Agreement, either by assignment or novation, by written notice to the Client and the Client must sign all documents required by Riterz to give effect to the assignment or novation.
The Client grants to Riterz a non-exclusive, royalty free licence to use the Client’s name and logo onn Riterz's promotional material, publications, press releases or other forms of publicity, for the limited purpose of identifying the Client as a customer of Riterz.
This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
This Agreement may be executed in counterparts and may be executed electronically by the Parties.
Nothing in this Agreement is to be treated as creating a partnership or joint venture between the parties under the laws of any applicable jurisdiction.
No right under the Agreement shall be deemed to be waived except by notice in writing signed by each Party.
Subject to clause 1.4, an amendment or variation to this Agreement is not effective unless it is in writing and signed by the Parties.
Subject to clause 13.7, Riterz may subcontract the performance of any of its obligations under this Agreement without obtaining the prior written consent of the Client. However, Riterz will not be relieved of any of its liabilities or obligations under this Agreement and will be responsible for the acts and omissions of Riterz's subcontractors (including a subcontractor's employees or agents) as if they were the acts or omissions of Riterz.
Subject to any provision to the contrary, this Agreement shall be for the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not be for the benefit of any other persons.
The covenants, conditions and provisions of this Agreement which are intended to have effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision which shall be deemed severed.
This Agreement will be governed by and construed in accordance with the laws of Switzerland and the parties agree to submit to the non-exclusive jurisdiction of the Swiss Courts.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing and delivered to the nominated recipient by any means permitted by law.
In this Agreement, unless the contrary intention appears:
(1) Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity;
(2) Agreement has the meaning given to it on the front page of this document; (3) Applicable Privacy Laws means (a) EU General Data Protection Regulation 2016/679; (b) Privacy Act 1988 (Cth); and (c) any other privacy or data protection laws which apply to the Processing of Personal Data under this Agreement;
(4) Approved Subprocessors means the approved subprocessors specified in the Key Terms; (5) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday in Melbourne, Australia;
Charges means the fees specified in the Key Terms or the Order Form, which may include Third Party Costs;
Client Content means any content and materials provided by the Client (or on the Client’s behalf) to Riterz to be included on the Digital Platforms or to be included in any way as part of the Services, including the text, images, audio, illustrations, information, graphics, domain names, designs, logos, trade marks and any other Intellectual Property Rights owned by the Client and any modifications, adaptations and enhancements made to the Client Content;
Commencement Date means the date specified in the Key Terms;
Confidential Information means any confidential or commercially sensitive information of a Party, including the Party’s personnel, policies or business strategies or any other information that at law would be considered confidential. The Confidential Information of Riterz includes the Software;
Control has the meaning given to it in the Corporations Act 2001 (Cth) and Controlled has the corresponding meaning;
Covered Advertisements means Social Advertisements and Search Advertisements;
Deliverables means any custom developments (including custom developed software), custom material and/or custom deliverables that are created specifically for the Client in accordance with mutually agreed upon specifications under an Order Form.
Digital Platforms means the accounts that are held by the Client with third party websites and applications used by Riterz in the provision of the Services, as specified in the Key Terms;
Documentation means any technical and functional documentation for the Services as made available by Riterz;
End Customer means a customer of the Client for whose benefit the Client has used the Services;
End Date means the date specified in the Key Terms;
Further Term means the term specified in the Key Terms;
Force Majeure means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under the Agreement, including:
acts of God, lightning strikes, earthquakes, floods, storms, pandemics, explosions, fires and any natural disaster;
power surge or failure, computer virus or any breakdown or malfunction of plant, machinery, server or equipment;
acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
strikes;
GST means any goods and services tax, value added tax or sales tax imposed on the sale or supply of goods, services and rights including a tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property Rights means all present and future rights throughout the world conferred by statute, common law or equity in or in relation to inventions, discoveries, innovations, know how, technical information and data, prototypes, processes, improvements, patent rights, circuitry, drawings, plans, specifications, copyright, trade mark rights, design rights, plant variety rights and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered, or patentable. These include all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights;
Key Terms means those terms listed on the cover page of this Agreement;
Materials means materials associated with the provision of the Services, including software, manuals and other assets, which are provided by Riterz to the Client pursuant to the Agreement;
Monthly Advertising Budget means the agreed maximum amount that Riterz can spend on placing Covered Advertisements in a calendar month, which will initially be the amount specified in the Key Terms and which the Parties agree may change on a month-to-month basis as agreed to by the Client;
Order Form means an order form, statement of work or quote provided by Riterz to the Client for the provision of the Services;
Parties means Riterz and the Client and Party means either one of them;
Platform Services means the services relating to the hosting, set up, implementation, customisations, white-labelling and ongoing monitoring of the Software, as specified in the Order Form;
Professional Services means any integration, consulting, custom development, advertising, managed or similar services provided by Riterz to the Client, as further outlined in the Key Terms or a Statement of Work;
Restraint Period means the period specified in the Key Terms;
Schedules means a schedules to this Agreement;
Search Advertisements means any advertisements placed on internet search engines, including Google AdWords;
Services means the services to be supplied by Riterz to the Client, as specified in the Key Terms, in an Order Form or otherwise agreed between the parties in writing. The Services may include Technology Platform Services, Professional Services and Support Services;
Social Advertisements means any advertisements on Digital Platforms, including advertisements on Facebook, Instagram, Snapchat, Pinterest, Twitter and LinkedIn;
Software means the proprietary technology owned or licensed by Riterz comprising the
technology platform for ads campaign creation, update, deletion and campaign performance reporting for the chosen Digital Platforms, any API access to API end points to access data within such technology platform, any algorithm and any performance data derived from provision of the Services;
Subprocessor means any person (including any third party but excluding an employee of Riterz) appointed by or on behalf of Riterz to Process Personal Data on behalf of any Client; (35) Technology Platform Services means the cloud based Technology Platform Services supplied by Riterz;
(36) Support Services means the support services specified in the Support Schedule; (37) Term means that period beginning on the Commencement Date and ending on the End Date and includes any Further Term or renewal under clause 1.3;
(38) Third Party Agreement means an agreement between Riterz and a third party whereby the third party has granted to Riterz the right to sub-licence or resell a Service provided to the Client;
(39) Third Party Costs means any costs and expenses payable by Riterz to third parties in relation to a Third Party Agreement, as set out in the Charges section of the Key Terms; and (40) User means an individual person who is registered by the Client to use the Subscription Service.
In this Agreement, unless the contrary intention appears:
(1) clause headings are for ease of reference only and shall not be relevant to interpretation; (2) words in the singular include the plural and vice versa;
(3) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(4) a reference to a clause is a reference to a clause or subclause of the Agreement; (5) ”including”, and similar words, are
not words of limitation;
where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;
the recitals to the Agreement do not form part of the Agreement; and
monetary references are references to Australian currency.
The Client may from time to time request Riterz to provide Support Services (Support Request) by accessing Riterz’s help desk during the Support Hours. If a Support Request is made outside the Support Hours, Riterz will be treated as having received the Support Request at the next commencement of the Support Hours. The Client must provide to Riterz all information reasonably requested by Riterz to investigate and respond to the Support Request.
Riterz will respond to all Support Requests during the Support Hours by undertaking all reasonable remote diagnosis and analysis to investigate and resolve the Incident the subject of a Support Request. The Client must permit Riterz to have remote access to the Software for the purposes of performing the Support Services.
Riterz will make available to the Client all Updates to the Supported Versions within a reasonable time of the Update being released by Riterz to its other licensees. To avoid doubt, unless otherwise agreed, an Update excludes, and Riterz is not required to provide, any New Release to the Client.
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