Terms and Conditions
The Client is advised to read these terms and conditions carefully:
1. INTERPRETATION
1.1. The definitions and rules of interpretation in this condition apply in these terms and conditions (Terms and Conditions).
Brief: the brief provided by the Client to ABMarketEdge detailing the Services to be performed under the Contract or any proposal/quote provided by ABMarketEdge to the client which is subsequently accepted by the Client;
Charges: the total charges incurred for the provision of Services including but not limited to ABMarketEdge fees, any expenses reasonably incurred in relation to the provision of Services, costs of materials and costs of any services reasonably and properly provided by third parties and required by ABMarketEdge for the supply of the Services;
Client: the person, firm or company who purchases Services from ABMarketEdge;
Contract: ABMarketEdge's acceptance of the Client's offer under condition 2.2;
Deliverables: all Documents, products, materials and visuals developed by ABMarketEdge in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts);
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;
In-put Material: all Documents, information and materials provided by the Client relating to the Services including (without limitation), computer programs, data, reports and specifications;
Pre-existing Materials: all Documents, information and materials provided by ABMarketEdge relating to the Services which existed prior to the commencement of the Contract;
Project: any project for the provision of Services as described in a Brief;
Proofs: means any draft Document, design or proof developed by ABMarketEdge in connection with the Services, including all Concept Deliverables and any other Deliverables whether in physical or electronic form;
ABMarketEdge: ABMarketEdge, LLC, a company incorporated in the State of Nevada, United States of
Services: the Services to be provided by ABMarketEdge under these Terms and Conditions as set out, from time to time in Briefs, together with any other services which ABMarketEdge provides, or agrees to provide to the Client from time to time;
2. APPLICATION OF TERMS AND CONDITIONS
2.1. These Terms and Conditions shall:
2.1.1. apply to and be incorporated into the Contract; and
2.1.2. notwithstanding condition 2.4, prevail over any inconsistent terms or conditions contained, or referred to, in the Client's purchase order, Brief, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Client, or implied by law, trade custom, practice or course of dealing.
2.2. The Client's purchase order, the Brief or the Client's acceptance of a quotation for Services by ABMarketEdge, constitutes an offer by the Client to purchase the Services specified in it on these Terms and Conditions. No offer placed by the Client shall be accepted by ABMarketEdge other than:
2.2.1. in writing; or
2.2.2. (if earlier) by ABMarketEdge starting to provide the Services, at which time a contract for the supply and purchase of the Services on these Terms and Conditions will be established. The Client's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order, Brief or other Document shall not govern the Contract.
2.3. Quotations are given by ABMarketEdge on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that ABMarketEdge has not previously withdrawn it.
2.4. Special Conditions shall, when applicable, prevail over these Terms and Conditions.
3. COMMENCEMENT AND DURATION
3.1. The Services supplied under the Contract shall be provided by ABMarketEdge to the Client from the date of acceptance by ABMarketEdge of the Client's offer in accordance with condition 2.2.
3.2. The Services supplied under these Terms and Conditions shall continue to be supplied until the Project is completed unless terminated earlier in accordance with condition 12.6.
4. SUPPLIER'S OBLIGATIONS
4.1. ABMarketEdge shall use reasonable endeavors to provide the Services and to deliver the Concept Deliverables to the Client. Time shall not be of the essence for performance of the Services.
4.2. On the basis of the Brief, ABMarketEdge shall submit to the Client draft materials and proofs together with, if applicable, a revised quotation including additional Charges to the initial quotation.
5. CLIENT'S OBLIGATIONS
5.1. The Client shall:
5.1.1. co-operate with ABMarketEdge in all matters relating to the Services;
5.1.2. ensure that the terms of the Brief and any order, including any applicable specification, are accurate in all material respects;
5.1.3. provide to ABMarketEdge, in a timely manner, such In-put Material and other information as ABMarketEdge may reasonably require and ensure that it is accurate in all material respects;
5.1.4. check and approve in writing any Proofs submitted by ABMarketEdge and ABMarketEdge accepts no responsibility or liability whatsoever for any errors (typographical or otherwise) identified once the Proofs have been approved. ABMarketEdge shall be entitled to charge for all costs and expenses incurred in making any alterations to Proofs once these have been approved. Approval of the Proofs and the revised quotation (submitted under condition 4.2) by the Client shall constitute authorization for ABMarketEdge to proceed to publication and to contract with any third parties on the basis of the revised quotation;
5.1.5. obtain and maintain all necessary licenses, permissions and consents and comply with all relevant legislation in relation to the Services and the use of Input Material (including but not limited to registration under the General Data Protection Regulation 2018, where applicable), in all cases before the date on which the Services are to start;
5.1.6. keep secure any login details including name and passwords provided by ABMarketEdge and shall not pass such information to any unauthorized person. In the event of your login name and password being used by an unauthorized person ABMarketEdge accepts no liability whatsoever and the Client shall be liable for any additional charges arising therefrom;
5.1.7. ensure that the Services, all marketing communications including for the avoidance of doubt all those created by ABMarketEdge and any part thereof, comply with all applicable legislation in force in the country in which the Services, all marketing communications or any part thereof are being used or implemented by the Client, including but not limited to competition law, promotional law, legislation relating to incentives and/or tax legislation; and
5.1.8. ensure that it obtains such additional licenses or permissions in respect of any and all Intellectual Property Rights in the Concept Deliverables, the Deliverables or the Services as may be necessary after the expiry of the period for which the Charges payable pursuant to these terms and conditions relate.
5.2. Notwithstanding condition 5.1 above, the Client, in addition to the obligations referred to in condition 5.1 shall, where the Services being provided by ABMarketEdge relate to Hosting:
5.4. If ABMarketEdge’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, ABMarketEdge shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
5.5. The Client shall be liable to pay to ABMarketEdge, on demand, all reasonable costs, charges or losses sustained or incurred by ABMarketEdge (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to ABMarketEdge confirming such costs, charges and losses to the Client in writing.
6. CHARGES AND PAYMENT
6.1. In consideration of the provision of the Services by ABMarketEdge, the Client shall pay the Charges. After delivery of the Services, ABMarketEdge shall invoice the Client for the Charges that are then payable, together with tax, where appropriate.
6.2. Save as provided in any Special Conditions, ABMarketEdge may supply the Services in separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of these Terms and Conditions, unless otherwise varied and /or provided for in any Special Conditions.
6.3. The Client shall pay each invoice submitted to it by ABMarketEdge, in full and in cleared funds, within 30 days of receipt. Time for payment shall be of the essence of the Contract.
6.4. Without prejudice to any other right or remedy that it may have, if the Client fails to pay ABMarketEdge on the due date, ABMarketEdge suspend all Services until payment has been made in full.
6.5. All sums payable to ABMarketEdge under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.5 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.6. ABMarketEdge may, without prejudice to any other rights it may have, set off any liability of the Client to ABMarketEdge against any liability of ABMarketEdge to the Client.
6.7. If for any reason the Client fails to accept delivery of any of the Services when they are ready for supply, the Services shall be deemed to have been supplied and ABMarketEdge shall be entitled to invoice the Client for those Services.
6.8. Upon request by the Client, ABMarketEdge will keep any unspent marketing funds that are provided by the Client in a client account. The Client will spend these sums held with ABMarketEdge against standard ABMarketEdge services, but under no circumstances can these funds be returned to the Client.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. All Intellectual Property Rights and all other rights in the Pre-existing Materials shall be owned by ABMarketEdge. The Client acknowledges that, where ABMarketEdge does not own any Pre-existing Materials, the Client’s use of rights in Pre-existing Materials is conditional on ABMarketEdge obtaining a written license (or sub-license) from the relevant licensor or licensors on such terms as will entitle ABMarketEdge to license such rights to the Client.
7.2. All Intellectual Property Rights and all other rights in the In-Put Material shall be owned by the Client.
7.3. Subject to condition 7.4, as between the Client and ABMarketEdge, all Intellectual Property Rights and all other rights in the Concept Deliverables shall be owned by ABMarketEdge. Upon payment of the Charges, ABMarketEdge licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Concept Deliverables and the Services. Such license shall terminate on termination of the Contract under condition 12.1.
7.4. In the event of any Intellectual Property Rights in the Concept Deliverables being owned by a third party, ABMarketEdge shall use all reasonable endeavors to ensure that on payment of the Charges such third party grants the Client a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Concept Deliverables and the Services.
7.5. In the event that the Client wishes to choose a further concept or concepts in addition to the Concept chosen from those presented by ABMarketEdge, all Intellectual Property Rights and all other rights in the Deliverables for such additional concepts shall be owned by ABMarketEdge. Upon payment of an additional fee payable to ABMarketEdge in respect of the same, ABMarketEdge shall license all such rights to the Client and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables in the additional concepts. Such license shall terminate on termination of the Contract under condition 12.1.
7.6. In the event of any Intellectual Property Rights in the Deliverables for any additional concepts being owned by a third party, ABMarketEdge shall use all reasonable endeavors to ensure that on payment of an additional fee such third party grants the Client a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables for the additional concepts.
8. Use of Artificial Intelligence (AI)
ABMarketEdge may occasionally use AI tools in our processes to enhance efficiency and quality of service. Any AI applications that are used at ABMarketEdge undergo a rigorous approval process before being authorized for use. We focus on all aspects of the application, including, but not limited to, ethical data management and privacy standards.
While AI is valuable, it continues to evolve and may be subject to certain limitations. Therefore, we will only use it to enhance the work we do, while continuing to do due diligence and follow internal protocols to ensure the highest quality of input and output from AI.
By using our services, you accept and indemnify your company against AI-related risks and discrepancies, acknowledging and accepting our AI usage and commitment to responsible AI use.
Please reach out to Amber Bartholomeusz at ABMarketEdge, if you have any questions.
9. CONFIDENTIALITY AND ABMARKETEDGE’S PROPERTY
9.1. The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by ABMarketEdge, its employees, agents, consultants or subcontractors and any other confidential information concerning ABMarketEdge’s business or its products which the Client may obtain.
9.2. The Client may disclose such information:
9.2.1. to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Client’s obligations under the Contract; and
9.2.2. as may be required by law, court order or any governmental or regulatory authority.
9.3. The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 9.
9.4. The Client shall not use such information for any purpose other than to perform its obligations under the Contract.
9.5. All materials, drawings, specifications and data supplied by ABMarketEdge to the Client (including Pre-existing Materials) shall, at all times, be and remain the exclusive property of ABMarketEdge, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to ABMarketEdge, and shall not be disposed of or used other than in accordance with ABMarketEdge's written instructions or authorization.
10. LIMITATION OF LIABILITY
10.1. This condition 10 sets out the entire financial liability of ABMarketEdge (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
10.1.1. any breach of the Contract;
10.1.2. any use made by the Client of the Services, the Deliverables or any part of them; and
10.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3. Nothing in these Terms and Conditions limits or excludes the liability of ABMarketEdge:
10.3.1. for death or personal injury resulting from negligence; or
10.3.2. for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by ABMarketEdge; or
10.4. Without prejudice to condition 10.3, ABMarketEdge shall not be liable to the Client for any loss of profit, loss of business, loss of goodwill, or loss of anticipated savings, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the provision of the Services. It is the Client’s responsibility to take out relevant insurance in respect of any of the losses mentioned in this condition 10.4 if the Client requires such protection.
10.5. Without prejudice to conditions 10.3 and 10.4 above, ABMarketEdge’s total liability arising under or in connection with the provision of the Services, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to the amount of the Charges paid by the Client with respect to the Services that caused the relevant damage or loss.
10.6. ABMarketEdge does not warrant or guarantee the success of any marketing program presented to the Client.
10.7. ABMarketEdge shall not be liable for any unauthorized use of any Concept Deliverables, other Deliverables or Services, which results in a breach by the Client in respect of any Intellectual Property Rights following the expiry of any original license period for which the Charges payable pursuant to these terms and conditions relate.
11. INDEMNITY
11.1. The Client shall indemnify and keep indemnified ABMarketEdge from and against any and all proceedings, claims, damages, losses, expenses or liabilities which ABMarketEdge may incur or sustain as a direct or indirect result of or in connection with any information, representation, reports, data or materials supplied to or approved by the Client, arising directly or indirectly in connection with the Client’s products or services; and
11.2. The Client shall indemnify and keep indemnified ABMarketEdge from and against any and all proceedings, claims, damages, losses, expenses or liabilities which ABMarketEdge may incur or sustain as a direct or indirect result of or in connection with the Client’s breach of the Contract and/or these Terms and Conditions, its use or misuse of the Services, any claims by third parties as to ownership or other rights arising in any way by the Client infringing (whether innocently or knowingly) third party rights including but not limited to Intellectual Property Rights.
12. TERMINATION
12.1. Without prejudice to any other rights or remedies which the Parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
12.1.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
12.1.2. the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
12.1.3. if the other party whilst insolvent compounds or proposes or enters into any re- organization or other special arrangement with its creditors or is unable to pay its debts; or
12.1.4. a petition is presented for an order or an order is made or an effective resolution is passed or any analogous proceedings are taken for the winding up of the other Party or it ceases carrying on all or a material part of its business; or
12.1.5. a sale, transfer, assignment or liquidation of a substantial portion of the other party’s equity or business assets or a change in control of the other Party’s management or business occurs; or
12.1.6. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.1.3 to condition 12.1.5 (inclusive).
12.2. On termination of the Contract for any reason:
12.2.1. the Client shall immediately pay to ABMarketEdge all of ABMarketEdge's outstanding unpaid invoices and interest and, in respect of Services supplied or disbursements incurred but for which no invoice has been submitted, ABMarketEdge may submit an invoice, which shall be payable immediately on receipt;
12.2.2. the Client shall, within a reasonable time, return all of ABMarketEdge Pre-existing Materials and Deliverables. If the Client fails to do so, then ABMarketEdge may enter the Client's premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
12.2.3. the accrued rights and liabilities of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.3. On termination of the Contract (however arising), conditions 6.6, 7, 9, 11, and 21 shall survive and continue in full force and effect.
13. FORCE MAJEURE
ABMarketEdge shall have no liability to the Client under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of ABMarketEdge or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14. VARIATION
14.1. ABMarketEdge may, from time to time and without notice, change the Services in order to comply with any applicable statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. ABMarketEdge may, from time to time and subject to Client’s prior written consent, which shall not be unreasonably withheld or delayed, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, will give the Client at least two months’ notice of any change.
14.2. Subject to condition 14.1, no variation of the Contract or these Terms and Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the Parties.
15. WAIVER
15.1. A waiver of any right under the Contract 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 Contract 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.
15.2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16. SEVERANCE
16.1. If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2. If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. ENTIRE AGREEMENT
17.1. The Contract constitutes the whole agreement between the Parties and supersedes all previous agreements between the Parties relating to its subject matter.
17.2. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as provided in the Contract.
17.3. Nothing in this condition 17 shall limit or exclude any liability for fraud.
18. ASSIGNMENT
18.1. The Client shall not, without the prior written consent of ABMarketEdge, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2. ABMarketEdge may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
18.3. Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
19. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of 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.
20. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
21. NOTICES
21.1. Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified by the relevant party by notice in writing to the other party.
21.2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when delivered at the operating address and for ABMarketEdge, if sent by pre-paid priority mail or recorded delivery, at 9.00amUS-PT on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
21.3. This condition 21 shall not apply to the service of any in any proceedings or other documents in any legal action.
21.4. A notice or other communication required to be given under the Contract shall not be validly served if sent by e-mail.
22. GOVERNING LAW AND JURISDICTION
22.1. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws established under the Federal Trade Commission (FTC).
22.2. The Parties irrevocably agree that the courts of the United States of America shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).
Date: December 2023