Last modified: May, 05th 2023
Applicability
These general terms and conditions for services and works below (the “Service Terms”) govern the supply of marketing analytics services and the carrying out of reports presenting related ad performance predictions and recommendations by Hippoc Inc. (“Hippoc”) for each client with whom Hippoc concludes a contract of enterprise or for services (“Client”) as a result of a regular subscription or the acceptance of a personalized proposal.
Please read these Service Terms carefully. They contain important information about Client’s rights and obligations, as well as limitations and exclusions that may apply to Client. These Service Terms contains a dispute resolution clause.
These Service Terms prevail over any stipulations imposed or drawn up by Client, on his behalf or upon his instructions, regardless of when Client submitted its request for proposal, order or those stipulations. The performance of services or works for the Client does not constitute acceptance of any such stipulations and does not serve to modify or amend the Service Terms.
Conditional upon the Client’s payment of the Subscription Fees and compliance with all the Client’s contractual undertakings under the Agreement, Hippoc will provide Client, during the Contractual Period, with a subscription for Reports and Core Services (respectively defined in clauses 1.2 and 1.3). Such Reports and Core Services are all based on Hippoc-specific artificial intelligence and neuroscience-based metrics, and on Client Data where applicable, used to measure the performance of ad creatives (“Performance Score”). In the performance of the Agreement, Hippoc is bound to ensure that the Reports carried out and Core Services supplied are in conformity with the Agreement and to act in the best interests of the Client, with prudence and diligence, in accordance with usage and good practice, but is not bound to an obligation of result.
In cases where business intelligence dashboards presenting such information in self-service mode are not available, Hippoc will carry out and deliver or make available to Client reports containing predictions and recommendations regarding the advertising performance of Client’s campaigns based on Performance Score (each a “Report”) by e-mail or any other computerized means at Hippoc’s discretion. Hippoc will make reasonable efforts to deliver any such Report to Client promptly via Hippoc’s computerized customer care system or any other documented process and means for ordering Reports.
Hippoc will supply to Client prelaunch marketing analytics services, including a service portal presenting business intelligence dashboards based on Performance Score, and machine-learning services to incrementally improve, refine or enhance such analytics services (the “Core Services”) relying on Client Data where applicable and Hippoc Data. Client acknowledges and agrees that this Agreement does not create obligations on Hippoc to supply ancillary services (such as training or technical support services) in connection with the Reports and Core Services, unless specifically agreed otherwise. Any additional services, either quantitatively or qualitatively, are not covered by the Subscription Fees and would first have to be added to the Agreement or covered by a separate contract in order for them to be supplied by Hippoc.
In addition to the Reports and the Core Services, Hippoc undertakes to the Client to carry out the other works or to supply the other services stated in service orders, statements of work or similar documents stating specific terms and conditions mutually accepted and for which prices have been fixed, if any.
In consideration for the subscription, Client binds itself to pay to Hippoc the subscription fee fixed for the package chosen by Client from among those advertised or otherwise offered to Client, plus applicable taxes (the “Subscription Fees”). Hippoc does not represent or warrant that a particular subscription package will be offered indefinitely and, to the fullest extent permitted under applicable laws, reserves the right to change or alter the features and options in a particular subscription package without prior notice. For regular subscription, the Subscription Fees are priced as advertised on Hippoc’s site at the time the subscription occurs, subject to the terms of any promotions or discounts that may be applicable. In consideration for works or services that Hippoc undertakes to Client to carry out or to supply other than the Reports and the Core Services, Client binds itself to pay to Hippoc the prices corresponding to each of them, plus applicable taxes (the “Additional Fees”) as fixed by the Agreement, by usage or by law or on the basis of the value of the work carried out or the services rendered. Hippoc strives to display accurate price information, however Hippoc may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing. Hippoc reserves the right to correct any such errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences. The Subscription Fees and the Additional Fees and collectively referred to as the “Fees”. The Fees are non-refundable for any portion of the Contractual Period, Hippoc not being bound to repay any advances it has received in excess of what it has earned, if any.
Except for regular subscriptions, for which payment must be received by Hippoc before Hippoc’s acceptance of an order, Client will pay to Hippoc the payable Fees following receipt of an invoice to that effect, in immediately available funds and, in the case of Subscription Fees, no later than the day prior to the commencement of the Initial Period or the applicable Renewal Period. Client authorizes Hippoc or its agent to charge its payment method on a recurring (e.g. monthly or yearly) basis for the applicable Subscription Fees. Billing or payment options are within Hippoc’s sole discretion. Hippoc may change them at any time upon prior notice to Client.
Any amount not paid when due will bear interest from the due date until paid, at a rate of 15% per year or the maximum amount permitted by law, whichever is lower. Client will bear the cost of all reasonable expenses that Hippoc incurs in collecting any unpaid amounts hereunder, except where such an unpaid amount is due to billing errors on the part of Hippoc. In the event of a late or incomplete payment of Fees, Hippoc may, after the expiry of a period of 15 days following the sending of a late or incomplete payment notice which the Client has not remedied within this period, refuse to perform its correlative obligation to a corresponding degree by suspending supply of the Core Services and delivery of the Reports until payment has been made in full, except for any amount disputed in good faith.
For any Renewal Period prior to the commencement thereof, Hippoc may unilaterally increase the Subscription Fees or change the determination of the Subscription Fees from a flat fee to a fee that takes into account measurable variables relating to Client, its use of the Core Services, the Reports it obtains, the Client’s customers and the ad campaigns for which the Client uses the Core Services and obtains the Reports. Any such increase or other change will be notified to Client in a timely manner prior to the start of the applicable Renewal Period. If Client does not accept such increase or change to the Subscription Fees, Client may refuse the renewal of the Agreement by sending notice to Hippoc at any time before the effective date of the Subscription Fees increase or change.
Hippoc will carry out the Reports and/or supply the Core Services only for advertising campaigns designed by the Client or for it to promote its own products, services or businesses, unless the Client has declared that the Reports to be carried out and the Core Services to be supplied are for advertising campaigns promoting products, services or businesses of third parties, in particular those of Client’s customers.
Where the Client is itself a contractor or service provider in the field of advertising and seeks, by this Agreement, the assistance of Hippoc as a third person to perform a contract between Client and a Client’s customer, Client acknowledges and agrees that the performance of such contract remains under Client’s supervision and responsibility, regardless of the tasks entrusted to Hippoc in this context.
Where the Client has the power conferred by a Client’s customer to represent such Client’s customer in the performance of a juridical act with Hippoc, Client acknowledges and agrees that it is nevertheless personally liable to Hippoc if Client (a) acts in its own name, (b) exceeds its powers, (c) withholds the name of such mandator or (d) binds itself in the name and on behalf of the mandator but outside the limits of its mandate.
Except for the licenses set forth in this clause 5, neither party will own or acquire any right, title or interest under this Agreement to the other party’s Background IP.
Client agrees that its usage of the Reports delivered to it by Hippoc or that may be generated and download by the Client in self-service mode from the business intelligence dashboards will be limited to Client’s internal business purposes (and to internal business purposes of Client’s customers where applicable), and that it will not remove, alter or obscure any Intellectual Property Right notices on the Reports, subject to availing itself of a white-labeling option or feature when available. Subject to Client’s compliance with the terms and conditions of this Agreement, Hippoc hereby grants to Client a worldwide, non-exclusive, perpetual, non-transferable, royalty-free and fully paid-up licence to Use and to authorize the Use of the Reports (including any material in such Reports that is the subject of an Intellectual Property Right owned by Hippoc) delivered to Client, only for Client’s internal business purposes (and for internal business purposes of Client’s customers where applicable).
If Client supplies Hippoc with any Intellectual Property (e.g. logos, photographs and ads or other artistic works, literary works or compilations) for which Client owns the Intellectual Property Rights or has a license to Use or authorize the Use of such Intellectual Property Rights (“Client IP”), Client hereby grants to Hippoc a worldwide, non-exclusive, irrevocable, perpetual, transferable, royalty-free and fully paid-up licence to Use and authorize the Use of such Client IP, with the right to sublicense through multiple tiers of sublicence, provided it is limited to Hippoc’s internal business purposes.
Nothing in the Agreement limits Hippoc’s right and power to implement, profit from, disclose, publish, keep secret, seek to protect by assertion or registration of Intellectual Property Rights or otherwise exploit any suggestion or expression of idea originating from or communicated by the Client about the Core Services or the Reports and the Client will not do anything to interfere with this right and power.
Client agrees that Hippoc may publicly display Client’s name, logo and/or other indicia alongside the names, logos and/or other indicia of other clients on Hippoc’s site, in Hippoc’s lists of its current or former customers and in any other promotional and marketing materials. The parties acknowledge and agree that such display does not constitute usage of such materials as a trade name or trademark by Hippoc, is not for the purpose of distinguishing or so as to distinguish Hippoc’s goods or services from those of others, and is not likely to lead to the inference that the goods or services associated with Client’s name, logo and/or other indicia are manufactured, sold, leased, hired or performed by Hippoc or vice versa.
The initial term of this Agreement will commence on the earlier of (a) the day Hippoc receives payment of the Subscription Fees for such initial term, or (b) the date set forth for the commencement of such initial term in a personalized proposal accepted by Client and, unless terminated earlier in accordance with the express provisions of this Agreement, will remain in effect until the end date or for the duration specified as the initial term in the service offer letter (the “Initial Period“).
Upon expiration of the Initial Period, the Agreement will automatically renew for additional successive Renewal Periods equal to the term of the Initial Period, unless earlier terminated pursuant to this Agreement’s express provisions or either party gives notice to the other party, at least 30 days prior to the expiration of the then-current term (each a “Renewal Period” and together with the Initial Period, the “Contractual Period”).
Each party hereby represents and warrants to the other party the following representations and warranties in connection with the Agreement:
Client further represents and warrants to Hippoc that it has obtained all rights, authorizations and consents necessary for the Processing of Client Data by Hippoc under this Agreement.
Hippoc further represents and warrants to Client that the Core Services and Reports will be in substantial conformity with the Agreement. Beyond such limited warranty, the Core Services and Reports are provided “as is”, without any other representations or warranties of any kind, whether written or oral, express or implied, contractual or statutory, and expressly disclaims any implied warranty of merchantability or fitness for a particular purpose, title, performance, non-infringement, and those arising from statute, to the extent permitted by law. Without limiting the generality of the foregoing, Hippoc does not warrant that the Processing of Data or the Reports will be error-free, accurate, complete or up to date.
Each party will comply with all applicable laws relating to marketing analytics and ad performance optimization, and Client undertakes to notify Hippoc if it becomes aware of any non-compliance in connection with this clause 7.4.
If a third party (other than an affiliate of an Indemnified Person) brings an infringement claim against a party or its subcontractors, affiliates, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, an “Indemnified Person”) alleging that the Core Services, Reports and/or Data provided to the other party cause an injury to that third party, the other party (the “Indemnifying Party”) will (a) defend the Indemnified Person against such claim and (b) reimburse the Indemnified Person for any damages that it suffers as a result. In this context, “damages” means all costs that the Indemnified Person incurs in defending itself against such claim, including any attorney fees and court costs awarded against it. This clause 8.1 sets forth the sole remedies of an Indemnified Person and sole liability and obligation of an Indemnifying Party for any actual, threatened, or alleged claims that this Agreement or any subject matter hereof infringes, misappropriates, or otherwise violates any third-party right.
The Indemnifying Party indemnity obligation is conditional on the Indemnified Person giving the Indemnifying Party (a) prompt written notice of the third party’s claim, (b) sole control of the defence and settlement of the claim, and (c) all reasonable assistance, at Indemnifying Party’s expense.
The Indemnifying Party is not required to indemnify the Indemnified Person if (a) the alleged infringement resulted from the Indemnified Person modifying or altering the Core Services, Reports and/or Data, or (b) the alleged infringement was caused by the Indemnified Person combining the Core Services, Reports and/or Data with products, works, data or services not supplied by Indemnifying Party unless in either case Indemnifying Party gave its prior written consent.
If the Indemnifying Party is s Hippoc, it may (a) modify the Core Services, Reports and/or Data so that they are no longer claimed to infringe, and conform to terms of this Agreement, (b) obtain a license for the Indemnified Person’s continued use of the Services, Reports and/or Data in accordance with this agreement, or (c) terminate the Agreement and repay the Indemnified Person any prepaid Fees received in excess of what Hippoc has earned.
Subject to the fact that person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault and may not in any way exclude or limit his liability for bodily or moral injury caused to another, Hippoc will not be liable nor be bound to make reparation for any injury it caused to Client by a failure of Hippoc in its duty to honour its contractual undertakings under this Agreement.
In the event that the foregoing clause is held to be invalid, the parties agree that any reparation for injury caused by Hippo’s failure in its duty to honour its contractual undertakings shall not cumulatively exceed the Fees paid by Client under the Agreement during the twelve (12) months preceding the date on which the claim relating to such failure occurred. A party is liable to the other only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on its part; even then, the damages include only what is an immediate and direct consequence of the nonperformance. The exclusions and limitations in clause 8.5 and clause 8.6 do not apply to a party’s obligations under clause 8.1.
The parties agree to maintain appropriate insurance which is adequate to cover their respective risks and obligations under this Agreement, with coverage amounts commensurate with levels in their contractual undertakings.
This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes any previous communication or agreements that may exist between the parties with respect to such subject matter.
Except where the Agreement expressly provides that a party may unilaterally amend it to a certain extent under certain conditions, no amendment to this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and the subject of an exchange of consents between the parties. Hippoc may unilaterally amend the Agreement, or any exhibit, schedule, or appendix of this agreement, by giving notice to Client, subject to the following conditions:
(b) No amendment will retroactively amend any terms of this agreement; and
(c) Client may, upon receipt of Hippoc’s notice, elect to terminate the agreement.
The principles of contract interpretation codified in articles 1425 and following of the Civil Code of Québec shall apply to the interpretation of any contract containing the present clause. In case of conflict between different clauses of the Agreement, the clauses located in a document ranking higher than another in the list below shall prevail:
Client may not assign this Agreement or any of its rights or obligations under this Agreement without Hippoc’s prior written consent. Hippoc may assign this Agreement or any of its rights and obligations under this Agreement, effective upon notice to Client:
With the exception of cases where a third person is an Indemnified Person pursuant to clause 8.1 or unless explicitly stated otherwise elsewhere in this Agreement for other specific circumstances, no party stipulate for the benefit of a third person giving the third person beneficiary the right to exact performance of the promised obligation directly from the promisor.
Each party, on receipt of notice from the other party, will sign or cause to be signed all further documents, do or cause to be done all further acts, and provide all assurances as may reasonably be necessary or desirable to give effect to the terms of this Agreement.
The parties are independent contracting parties and no relationship of subordination exists between them. Nothing in this Agreement creates any mandate, joint venture, partnership or other form of agency, joint enterprise or employment relationship between the parties.
Unless otherwise specified, all references to dollar amounts, “dollars” or “$” expressed in this Agreement refer to Canadian currency.
If any part of this Agreement is declared invalid or unenforceable, the remainder will continue to be valid and enforceable.
The failure or neglect by a party to enforce any of the rights under this Agreement will not be deemed to be a waiver of that party’s rights.
A party may free itself from his liability for injury caused to the other party by proving that the injury results from a superior force, i.e. an unforeseeable and irresistible event, including external causes with the same characteristics, unless the party has undertaken to make reparation for it.
This Agreement will be governed by and construed and enforced in accordance with the laws of the province of Québec and the laws of Canada applicable therein, without giving effect to any choice or conflict of law.
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement will be in writing and will be deemed to have been given:
Such communications must be sent to the respective parties at the addresses specified in the Agreement, or at such other address for a party as will be specified in a notice given in accordance with this clause 9.14.
The Client acknowledges having received or had access to a French version of the Agreement and the parties subsequently declare that it is their express wish to be bound only by the English version. Le Client reconnait avoir reçu ou eu accès à une version française du Contrat et les parties déclarent subséquemment qu’il est de leur volonté expresse de n’être liées que par sa version anglaise.