COPA90 US Statement Of Work Terms & Conditions

GENERAL TERMS

COPA90 Inc. (“COPA90”), with an office located at 110 Wall Street, New York, NY 10005, produces soccer-related audio-visual and other content. The legal entity identified in the associated Statement of Work (“Client”) has engaged COPA90 to produce and/or distribute certain content, as more particularly described in the Statement of Work.

These General Terms (including Schedule 1 attached hereto), along with the Statement of Work (including any schedules and exhibits attached thereto), form an agreement between COPA90 and Client, as of the effective date of the Statement of Work (“Agreement”). In the event of a conflict between these General Terms and the terms of a Statement of Work, the terms of the Statement of Work shall control.

In consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows:

1. SERVICES. Subject to the terms and conditions of this Agreement, COPA90 will perform the services identified in the Statement of Work (“Services”), which may include the creation and delivery of deliverables identified in the Statement of Work (“Deliverables”), in accordance with the timeline specified in the Statement of Work.

(a) Third Party Materials.

(i) Except as set forth in Section 1(a)(ii) below, COPA90 is responsible for obtaining (and paying for) all rights, permissions, consents or licenses necessary to use Third Party Materials (defined in Section 1(a)(iii) below) as permitted in the Statement of Work (“COPA90-Provided Third Party Materials”); it being understood and agreed that: (i) COPA90 will source all music from COPA90’s music library and Client acknowledges that such music is cleared for use solely on digital media platforms; and (ii) if music sourced from COPA90’s music library is incorporated in any Deliverable(s) intended for distribution via one or more platforms or channels other than digital media platforms/channels (e.g., broadcast television, cable television), Client is responsible for obtaining all such rights, permissions, consents or licenses necessary for such distribution. Notwithstanding the foregoing, each party shall be responsible for securing and paying for any music public performance rights applicable to the distribution of Deliverables on its owned, branded or controlled platforms/channels.

(ii) Any Third Party Materials Client is responsible for obtaining (and paying for) the rights, permissions, consents or licenses necessary to use as permitted in the Statement of Work (“Client-Provided Third Party Materials”) shall be specified in the Statement of Work.

(iii) As used herein, “Third Party Materials” means any content or materials owned or controlled by a third party (including, without limitation, trademarks/logos/branding, names/likenesses/voices/biographical information of players/athletes, coaches and/or other talent, music, photographs, imagery and footage) that is incorporated in, or otherwise used in connection with, any Deliverables.

(b) Approvals; Changes to Deliverables. Client will, and will ensure all relevant stakeholders are available to, provide all comments, feedback and approvals in relation to Deliverables or otherwise as soon as reasonably possible, but in any event, as necessary to allow both parties to meet their respective obligations under the timeline(s) identified in the Statement of Work. Requests for changes to any Deliverable shall not exceed one (1) round of feedback and revisions.

(c) Credit. COPA90 shall receive credit on all Deliverables, the nature, size and placement of which shall be mutually agreed upon by the parties, depending on the Deliverable.

(d) Prizes. Client is responsible for sourcing or providing any prize(s) or gift(s) offered to the public or entrants to a sweepstakes, contest or other promotion operated by COPA90 on Client’s behalf as part of the Services.

(e) Client Dependencies. Client is responsible for obtaining all permissions necessary for COPA90 to provide the Services. Client will cooperate in all matters relating to the Services reasonably required by COPA90 and comply with any Client performance obligations set out in the Statement of Work (including, without limitation, providing to COPA90, in a timely manner, Client Materials (as defined in Section 5(a) below)). In performing the Services, COPA90 will be relying on the accuracy and completeness of Client Materials and any other materials and information it receives from or on behalf of Client. If Client fails to perform its payment and/or other obligations under this Agreement in a timely manner, then to the extent that such delay or failure prevents COPA90 from performing any Services and/or providing any Deliverables in accordance with this Agreement, COPA90 will be relieved of its obligations to Client and COPA90 shall not be liable for any damages incurred by Client as a result thereof.

(f) Termination of Services for Convenience. Client may at any time terminate for convenience (i.e., without cause) Services, in whole or in part, under a Statement of Work, upon written notice to COPA90 specifying the extent to which such Services are terminated and the date such termination becomes effective. In such event, Client will pay all Fees and Expenses (each, as defined in Section 3 below) to COPA90 through the effective date of termination and reimburse COPA90 for any third party charges incurred by COPA90 or to which COPA90 is committed in connection with such Services; provided that, COPA90 will use reasonable efforts to mitigate any such third party charges.

2. TERM. The term of this Agreement commences as of the effective date of the Statement of Work and continues in effect until the completion of the Services, unless earlier terminated in accordance herewith (“Term”).

3. FEES

(a) In consideration of the provision of Services under this Agreement, Client shall pay COPA90 the fees set out in the Statement of Work (“Fees”) and reimburse COPA90 additional expenses incurred by it in connection with the Services that have not already been budgeted for in the Fees (“Expenses”); provided that, such Expenses have either been approved in advance by Client in writing or, where applicable, are in accordance with Client’s expense reimbursement policy provided to COPA90. Client will pay all Fees and Expenses within thirty (30) days from its receipt of the relevant invoice (unless otherwise stated in the Statement of Work).

(b) All Fees and Expenses under this Agreement are payable in US Dollars and (unless otherwise stated in the invoice) are exclusive of any applicable taxes, duties, fees and other assessments of whatever nature imposed by governmental authorities, which shall be the sole responsibility of Client (to the extent COPA90 is required to pay any such taxes, duties, fees or assessments, Client shall reimburse COPA90 therefor).

(c) If COPA90 does not receive any payment by its due date, COPA90 may assess a late payment charge on the unpaid amount at the rate of three percent (3%) per month or the highest rate allowed under applicable law, whichever is more. Client shall reimburse COPA90 for all reasonable costs, including attorneys’ fees and expenses, related to any proceedings to collect any past-due amounts.

(d) If Client (acting reasonably and in good faith) has a bona fide reason to challenge the validity or accuracy of any COPA90 invoice, Client shall (i) immediately notify COPA90 in writing of the reason(s) therefor; (ii) pay the undisputed part of such invoice in accordance with this Section 3; and (iii) work promptly and in good faith with COPA90 to resolve the dispute.

(e) If Client is overdue with any payment hereunder, without prejudice to COPA90’s other rights and remedies, COPA90 may (i) suspend the performance of Services under the applicable Statement of Work on seven (7) days’ written notice to Client until COPA90 has received payment of the overdue amount, together with any accrued interest, or (ii) terminate the applicable Statement of Work immediately upon seven (7) days’ written notice to Client. In the event a surcharge is levied against COPA90 by any of its suppliers due to a late payment by COPA90 that is caused by Client’s late payment to COPA90, Client shall reimburse COPA90 the amount of the surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

4. CONFIDENTIAL INFORMATION. Each party agrees to hold in confidence and to not disclose to persons (other than its employees, agents or affiliates who have a need to know and are bound by confidentiality agreements or other legal obligations), or to use, except as required to perform under this Agreement, any information that is disclosed by the other party, whether in writing, orally or visually, or that is learned by observation during any visit to the facilities of the other party (collectively, the “Confidential Information”), if such Confidential Information: (a) is designated or marked by the disclosing party as confidential or proprietary at the time of disclosure; or (b) notwithstanding any designation or marking, reasonably should be expected by a party under the circumstances to be confidential or proprietary information of the other party. Notwithstanding the foregoing, no obligation shall attach to any Confidential Information which a party can prove: (a) was in its rightful possession prior to the time of disclosure by the disclosing party; (b) is or has become publicly available through no fault of the receiving party; (c) was received from a third party who has a legal right to make such disclosures; or (d) was developed, discovered or arrived at by such party, its employees, agents, or affiliates independently of and without reference to any of the other party’s Confidential Information. A party shall not be in breach of this Section 4 if it: (i) uses or discloses the other party’s Confidential Information with the written authorization of the other party, so long as such use or disclosure is within the limits of such authorization; or (ii) is required to disclose information pursuant to a subpoena or other requirement of law or court or governmental order, provided, however, that in such an event, the recipient shall promptly notify the disclosing party of such required disclosure and disclose information only to the extent necessary to comply with such subpoena, law or order.

5. OWNERSHIP.

(a) Client Materials. Client retains all Intellectual Property Rights (as defined in this Section 5(d) below) in and to Client-owned or controlled trademarks, logos, branding, and other Client-owned or controlled content, materials and information provided by Client to COPA90 for use hereunder (collectively, “Client Materials”). Client grants to COPA90 a license to use, reproduce, display, digitally transmit, modify, and create derivative works based on, Client Materials, solely in connection with its provision of Services hereunder (including, without limitation, distribution of Deliverables containing Client Materials on COPA90’s owned, branded or controlled platforms/channels, as permitted in the Statement of Work).

(b) COPA90 Proprietary Materials. COPA90 retains all Intellectual Property Rights (as defined in Section 5(d) below) in and to COPA90 Proprietary Materials used in connection with the provision of Services hereunder (including, without limitation, COPA90 Proprietary Materials incorporated in, or otherwise used in connection with, any Deliverables). “COPA90 Proprietary Materials” includes (i) all content, materials, programs, names, tag lines, slogans, ideas and concepts (1) owned, created, conceived or reduced to practice by or on behalf of COPA90 prior to the effective date of this Agreement or during the term of, but outside the scope of, this Agreement; and (2) developed or produced by or on behalf of COPA90 in the course of rendering Services hereunder, but not used or implemented by Client or delivered by COPA90 for Client’s use as part of a final Deliverable (including, without limitation, raw footage (e.g., b-roll)); and (ii) original ideas or concepts developed by or on behalf of COPA90 in the course of rendering Services hereunder, even if used or implemented by Client or delivered by COPA90 for Client’s use as part of a final Deliverable, which Client acknowledges is made available to Client for use solely in connection with such final Deliverable(s) and may not be used by or on behalf of Client for any other purpose without COPA90’s prior written consent. COPA90 Proprietary Materials constitute COPA90’s Confidential Information.

(c) Final Deliverables. [APPLICABLE OPTION TO BE SPECIFIED IN THE STATEMENT OF WORK]

Option 1: COPA90 will own all Intellectual Property Rights (as defined in Section 5(d) below) in and to final Deliverables and, subject to COPA90 receiving payment of all Fees and Expenses, COPA90 grants to Client a license to use the final Deliverables as permitted in the Statement of Work (i.e., distribution platforms/channels, territory and term). If Client wishes to use final Deliverables beyond the scope of permitted uses specified in the Statement of Work, Client shall so notify COPA90 in writing and the parties shall negotiate same in good faith (including, without limitation, Client’s payment of additional fees).

Option 2: Subject to COPA90 receiving payment of all Fees and Expenses, (i) Client will own all Intellectual Property Rights (as defined in Section 5(d) below) in and to the final Deliverables (excluding COPA90 Proprietary Materials); (ii) the final Deliverables (excluding COPA90 Proprietary Materials) will constitute a work specially ordered or commissioned by Client for use as part of an audio-visual or other work, and will be deemed a “work made for hire” under copyright law, with Client being considered the author for copyright purposes and the owner of the copyright and all other rights now known or hereafter devised, in any and all media throughout the universe in perpetuity; (iii) if all or any portion of any final Deliverable(s) (excluding COPA90 Proprietary Materials) are determined not to be a “work made for hire,” COPA90 is deemed to have assigned same to Client for use in all manner and media now known or hereafter devised, throughout the universe in perpetuity; (iv) COPA90 waives any “moral rights” and similar rights of authors or creators throughout the universe in or to the final Deliverables (excluding COPA90 Proprietary Materials); (v) subject to limitations or restrictions on the use of Third Party Materials, Client will have the unlimited right to exploit final Deliverable(s) (excluding COPA90 Proprietary Materials), without additional compensation to COPA90; and (vi) COPA90 grants to Client a license to use COPA90 Proprietary Materials solely as incorporated in final Deliverables and solely as permitted in the Statement of Work (e.g., distribution platforms/channels, territory and term), and if Client wishes to use any final Deliverable(s) that incorporate or otherwise use COPA90 Proprietary Materials beyond the scope of permitted uses specified in the Statement of Work, Client shall so notify COPA90 in writing and the parties shall negotiate same in good faith (including, without limitation, Client’s payment of additional fees).

(d) As used herein, “Intellectual Property Rights” means any and all worldwide rights in and to intellectual property including, without limitation, rights of authorship, rights of attribution, rights to inventions, patents, copyrights, trademarks, trade names, service marks, domain names, trade secrets, know-how, technology, software, programs, formats, designs, data, databases, ideas, concepts, research, research tools, and other tangible or intangible information, whether or not protected by trademark, copyright, moral right, patent or other legal right.

6. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.

(a) Mutual. Each party represents and warrants that: (i) it has the full right and authority to enter into this Agreement, to grant the licenses granted herein, and to perform its obligations hereunder; (ii) its performance under this Agreement will not result in a breach of, or conflict with, any agreement with a third party; and (iii) it will comply with all applicable laws, ordinances, regulations, and codes in the performance of its obligations under this Agreement.

(b) COPA90. COPA90 further represents and warrants that (i) Services performed under this Agreement shall be performed by qualified personnel with the proper skill, training, and experience so as to be able to perform competently and in a manner consistent with good practice in the industry; (ii) use of Deliverables (excluding Client Materials and Client-Provided Third Party Materials incorporated therein or otherwise used in connection therewith) as permitted in accordance with this Agreement will not infringe upon or violate any rights of any kind or nature whatsoever of any person or entity (including, without limitation, any trademark, copyright or right of publicity), or violate any law, statute, ordinance, or regulation; (iii) COPA90-Provided Third Party Materials will be cleared as necessary to exploit the Deliverables as permitted in the Statement of Work and, subject to limitations or restrictions on the use thereof that COPA90 notifies Client of in writing, will not infringe upon or violate any rights of any kind or nature whatsoever of any person or entity (including, without limitation, any trademark, copyright or right of publicity); and (iv) it will comply with all limitations or restrictions on the use of Third Party Materials incorporated in, or otherwise used in connection with, the Deliverables; provided that, in the case of Client-Provided Third Party Materials, it receives notice of such limitations or restrictions from Client in writing.

(c) Client. Client further represents and warrants that (i) use of Client Materials as permitted in accordance with this Agreement will not infringe upon or violate any rights of any kind or nature whatsoever of any person or entity (including, without limitation, any trademark, copyright or right of publicity), or violate any law, statute, ordinance, or regulation; (ii) Client-Provided Third Party Materials will be cleared as necessary to exploit the Deliverables as permitted in the Statement of Work and, subject to limitations or restrictions on the use thereof that Client notifies COPA90 of in writing, will not infringe upon or violate any rights of any kind or nature whatsoever of any person or entity (including, without limitation, any trademark, copyright or right of publicity); and (iii) it will comply with all limitations or restrictions on the use of Third Party Materials incorporated in, or otherwise used in connection with, the Deliverables; provided that, in the case of COPA90-Provided Third Party Materials, it receives notice of such limitations or restrictions from COPA90 in writing.

(d) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES ARISING IN LAW OR EQUITY.

7. INDEMNIFICATION.
(a) Each party shall defend, indemnify and hold the other party, its parent, affiliates and subsidiaries, and each of their respective officers, directors, employees, agents, successors and assigns harmless, to the full extent permitted in law or equity, from and against all third party claims, actions, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses), to the extent proximately caused by or resulting from a breach of any of the indemnifying party’s representations, warranties or obligations contained in this Agreement. A party seeking indemnification hereunder (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) of any such claims (the Indemnifying Party’s liability under this Section 7 shall be reduced only to the extent that it is actually prejudiced by the Indemnified Party’s failure to give notice promptly after learning of such claim). The Indemnified Party shall, upon request, provide reasonable assistance and cooperation to the Indemnifying Party (at the Indemnifying Party’s expense) in defense and settlement of any claim; provided that (i) the Indemnified Party shall (at its sole cost and expense) be entitled to participate in the defense of the claim with counsel of its own choosing; and (ii) the Indemnifying Party will not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise related to any claim or make any other agreement that requires the Indemnified Party to pay any sum of money or provide any other consideration to any person or entity, or otherwise compromises or limits the Indemnified Party’s substantive rights, or that contains an admission or acknowledgement of any wrongdoing on the part of the Indemnified Party or otherwise negatively impacts the Indemnified Party in any manner.

(b) If Client’s use of any Deliverable is enjoined or threatened to be enjoined as a consequence of any claim to which COPA90’s indemnity obligation in Section 7(a) above applies, COPA90 shall (at COPA90’s option, in consultation with Client): (i) procure for Client the right to continue using the infringing Deliverable(s), (ii) modify the infringing Deliverable(s) so that its use by Client is lawful, or (iii) replace the infringing Deliverable(s) with functionally equivalent Deliverable(s) (as reasonably determined by COPA90) that lawfully may be used by Client. If none of the foregoing are reasonably available to COPA90, Client shall discontinue use of the infringing Deliverable(s), and COPA90 shall refund Client all fees paid to COPA90 for the infringing Deliverable(s). The foregoing shall be the sole and exclusive remedy against COPA90 for the afore-mentioned claims (but, for clarity, shall not limit COPA90’s indemnification obligations with respect to such claims).

8. INSURANCE. Each party shall maintain insurance coverage during the term of this Agreement that it reasonably believes is sufficient to meet its liabilities under or in connection with this Agreement and, upon request, provide the other party with certificates of insurance evidencing same.

9. TERMINATION. Either party may terminate this Agreement immediately by giving written notice of termination to the other party and without prejudice to any other rights or remedies the terminating party may have, if the other party breaches any of its material obligations under this Agreement and does not cure such breach within thirty (30) days after its receipt of the other party’s written notice thereof. Upon the expiration or earlier termination of this Agreement, (i) Client shall pay all Fees and Expenses due through the effective date of termination; and (ii) each party shall return or (if directed by the other party in writing) destroy all copies, partial or complete and wherever stored or available, of the other party’s Confidential Information. The following Sections shall survive the expiration or termination of this Agreement for any reason: Sections 4, 5, 6 7, 10, 11 (for the duration set forth therein), 12, 13, 14, 15, 16, 18(b) and

10. LIMITATION ON LIABILITY. IN NO EVENT WILL EITHER PARTY, ITS PARENT, AFFILIATES OR SUBSIDIARIES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, DAMAGE TO REPUTATION, OR OTHER SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL COPA90 BE LIABLE IN THE AGGREGATE FOR ANY DIRECT DAMAGES UNDER THIS AGREEMENT IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CLIENT TO COPA90 UNDER THE STATEMENT OF WORK GIVING RISE TO THE CLAIM. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY.

11. NON-SOLICITATION. During the Term of this Agreement (including any renewals or extensions) and for a period of twelve (12) months thereafter, neither party shall directly or indirectly solicit for employment (either direct or indirect) or such other similar relationship, any employee of the other party. This provision shall not prohibit either party from hiring a person who answers any advertisement or who otherwise voluntarily applies for hire without having been solicited or recruited by the hiring party.

12. INDEPENDENT CONTRACTOR. In making and performing this Agreement, the parties act and will act at all times as independent contractors and nothing contained in this Agreement will be construed or implied to create the relationship of principal-agent, partner, joint venturer, franchisor-franchisee or employer-employee between the parties. At no time will either party have any right, power or authority to create any obligation or responsibility on behalf of the other party.

13. GOVERNING LAW. This Agreement and all matters related thereto will be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflicts of law provisions thereof. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state and federal courts located in New York, New York, and the parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts and waive any right to trial by jury. In any action relating to the subject matter of this Agreement, the prevailing party will be entitled to recover reasonable legal fees and related costs.

14. FORCE MAJEURE. Except for the obligation to pay money, if, as a result of unforeseeable circumstances, acts of God, war (declared or undeclared), riot, revolution, fires, floods, strikes, labor disputes, sabotage, terrorist attacks, epidemics, network failures or other similar causes beyond a party’s reasonable control (a “Force Majeure Event”), such party is unable to perform or is materially delayed in the performance of any of its obligations hereunder, such failure or delay shall not be deemed a breach of this Agreement, but such obligations shall remain in full force and effect and shall be performed or satisfied pursuant to this Agreement, as soon as legally and practically possible after the termination of the Force Majeure Event; provided, however, that in the event such Force Majeure Event continues for more than forty-five (45) days or is of such nature that it is obvious it will continue for at least forty-five (45) days, then either party may terminate this Agreement upon ten (10) days’ written notice to the other party. During the pendency of any Force Majeure Event, each of the parties shall take reasonable steps to mitigate the effects of such Force Majeure Event on this Agreement.

15. ASSIGNMENT. Client may not assign or delegate this Agreement or any or all of its rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, to any person or entity without COPA90’s prior written consent. For the purposes of this Agreement, any change in control, merger, consolidation, or acquisition of all or substantially all of the assets of Client shall be deemed an assignment. Any attempted assignment in violation of the foregoing shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the successors and permitted assigns of the parties. COPA90 reserves the right to subcontract any of the Services; provided, however, any use of a subcontractor by COPA90 shall not relieve COPA90 of any of its obligations under this Agreement and COPA90 shall be responsible for the actions of the subcontractor.

16. DATA AND DATA PROTECTION. COPA90 will not, without Client’s prior written consent, collect, store, analyze or transmit, or target, track or monitor the behavior of, or otherwise provide any personally identifiable information regarding, any individual on Client’s behalf under this Agreement. For clarity, the foregoing does not apply to aggregate usage statistics or metrics (e.g., number of clicks or views) that do not identify, nor could be used to identify, any individual. To the extent that, in connection with the provision of Services under this Agreement, COPA90 is required to process personally identifiable information regarding any individual on behalf of Client, the parties will comply with the terms and conditions set forth in Schedule 1 attached hereto (Data Processing Agreement).

17. ANTI-BRIBERY. Each party shall, in connection with its performance under this Agreement: (i) not offer, authorize, give or promise, demand, solicit, accept, agree to accept, directly or indirectly, any undue monetary or other advantage of any kind, to or from a person, in order to obtain and/or retain a business or other improper advantage; (ii) adhere to all applicable laws, statutes, regulations and generally accepted principles relating to anti-corruption or anti-bribery; (iii) maintain adequate internal controls to ensure that any and all transactions related to this Agreement are properly accounted for in accordance with generally accepted accounting principles; (iv) promptly inform the other party in writing of any request or demand or suspicion of any request or demand it receives, if compliance with such request or demand would, or could have been reasonably expected to, constitute bribery, and such request or demand or suspicion of any request or demand is in any way directly or indirectly related to this Agreement or the transactions envisaged by it; and (v) immediately inform the other party in writing if it, or any of its subsidiaries or affiliates, is or becomes the subject of any investigation, inquiry, enforcement proceeding or conviction related to bribery, if such investigation, inquiry, enforcement proceeding or conviction could impact the other party.

18. NO PUBLICITY.

(a) Neither party will make or issue any public statement or announcement relating to the subject matter of this Agreement without the other party’s prior written consent.

(b) Notwithstanding the foregoing, COPA90 may, during and after the Term of this Agreement, use any Deliverable(s) that has/have been published, distributed or otherwise made available to the public, and Client’s name and/or logo, solely for the purpose of demonstrating its services and promoting its business (including on COPA90’s website, in sales pitches and in its showreel).

19. MISCELLANEOUS. This Agreement (including these General Terms (including Schedule 1 attached hereto), together with the Statement(s) of Work (including any schedules and exhibits attached thereto)), constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof. This Agreement is for the exclusive benefit of the parties who sign it. No third party will be entitled to assert third party beneficiary status or otherwise make a claim under this Agreement. This Agreement may be amended, modified, or supplemented only by a written agreement signed by a duly authorized representative of each party. Except as authorized in this Section 19, any other purported amendment or other modification shall be void and unenforceable. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement. In the event one or more of the provisions of this Agreement or the application thereof to any circumstance are found to be invalid or unenforceable to any extent, the remaining provisions shall continue in full force and effect. This Agreement may be executed in two or more counterparts, including by electronic delivery, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement.

 

SCHEDULE 1

 

Data Processing Agreement

Background

Client has appointed SUPPLIER (as defined in Section 1.1 below) to provide Services to Client under the terms of the Agreement. In connection with its provision of those Services, SUPPLIER may be required to process personal data on behalf of Client as further described in section 2.2 below (the “Data Processing Services”). This SCHEDULE is intended to be read in conjunction with the Agreement and shall supersede any provisions relating to the processing of personal data in the Agreement. All capitalized terms used, but not defined herein, have the same meaning ascribed to them in the Agreement.

Agreed terms

1 Interpretation

1.1 The following definitions and rules of interpretation apply in this SCHEDULE.

Data Protection Legislation” means Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the GDPR (the EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (when in force), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable, any guidance notes and codes of practice issued by the European Commission and applicable national Regulators including the UK Information Commissioner;

Regulator” means any regulatory body with responsibility for ensuring compliance with Data Protection Legislation.

Security Breach” means accidental or deliberate, unauthorised or unlawful acquisition, destruction, loss, alteration, corruption, access, use or disclosure of personal data processed under to this SCHEDULE or breach of SUPPLIER’s security obligations under this SCHEDULE.

SUPPLIER” means COPA90 Inc.[LS1]

1.2 References in this SCHEDULE to “data controller”, “data processor”, “processing”, “data protection officer” and “personal data” shall have the same meaning as defined in Data Protection Legislation.

1.3 In the event that a provision of this SCHEDULE conflicts with any other provision of the Agreement, the provision in this SCHEDULE shall prevail to the extent of such conflict.

2 The Data Processing Services and obligations

2.1 The parties agree that in respect of any personal data processed in connection with this SCHEDULE, Client shall be the “data controller” and COPA90 or Sub-processor (as defined below in Section 2.4(f) of this SCHEDULE) shall be the “data processor”.

2.2 The parties acknowledge and agree that in order to provide the Data Processing Services, SUPPLIER may process personal data on behalf of Client during the Term of the Agreement. The nature and purpose of the processing will be to access, retrieve, store and/or process the personal data in conjunction with the provision of the Services or as otherwise set out in the Agreement and/or associated Statement of Work. The types of personal data being processed, and the categories of data subject will be as set out in the Agreement and/or associated Statement of Work in order to provide the Services.

2.3 Each party acknowledges and agrees that each party has respective rights and obligations under applicable Data Protection Legislation.

2.4 SUPPLIER shall, without prejudice to its other rights or obligations, in respect of its processing of such personal data:

(a) process the data only to the extent, and in such a manner, as is necessary for the purposes of this SCHEDULE and in accordance with Client’s lawful documented instructions from time to time, and SUPPLIER shall not process, nor permit the processing, of the data for any other purpose. If SUPPLIER is unsure as to the parameters of the instructions issued by Client and/or believes that Client’s instructions may conflict with the requirements of Data Protection Legislation, SUPPLIER may notify Client for clarification;

(b) ensure the reliability of all its personnel who have access to the data and shall, in particular, ensure that any person authorized to process data in connection with this SCHEDULE is subject to a duty of confidentiality;

(c) at Client’s cost, provide Client with reasonable cooperation and assistance in relation to Client’s own obligations and rights under Data Protection Legislation, including providing Client and any relevant Regulator, as applicable, with all reasonable information and assistance relating to: notification and investigation of Security Breaches; carrying out privacy impact assessments; using appropriate technical and organisational measures in relation to security of processing; responding to and complying with data subject requests and the exercising of data subject rights; or otherwise to demonstrate Client’s compliance with Data Protection Legislation.

(d) having regard to the state of technological development and the cost of implementing any measures, take such technical and organisational measures against the unauthorised or unlawful processing of data and against the accidental loss or destruction of, or damage to data, to ensure a level of security appropriate to: a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage of the data; and b) the nature of the data to be protected provided that where such measures may require the use of resource and/or cost additional to that usually provided or incurred, or anticipated, by SUPPLIER, Client agrees to pay for the same (in addition to any other charges or fees, provided that SUPPLIER has notified Client of the fact that additional charges or cost may be payable;

(e) at Client’s cost, without undue delay, notify Client, and provide such cooperation, assistance and information as Client may reasonably require, if SUPPLIER:

(i) receives any complaint, notice or communication which relates directly or indirectly to the processing of the personal data under this SCHEDULE or to either party’s compliance with Data Protection Legislation; and/or

(ii) becomes aware of any Security Breach;

(f) be entitled to engage sub-processors to process data (or otherwise sub-contract or outsource the processing of any data to a third party) (each, a “Sub-processor”) including those already engaged by the SUPPLIER, provided that it:

(i) notifies Client of any new or replacement Sub-processors. If Client objects to the appointment of a new or replacement Sub-processor, it shall notify Client within five business days.

(ii) enters into a written contract with the Sub-processor that: provides protections or guarantees that Sub-processor considers necessary to implement appropriate technical and organisation measures in compliance with the Data Protection Legislation; and terminates automatically on termination or expiry of this SCHEDULE for any reason, and

(iii) remains liable for all acts or omissions of the Sub-processors as if they were acts or omissions of SUPPLIER (except to the extent caused or exacerbated by Client).

(g) at Client’s cost, return or destroy (as directed in writing by Client) all personal data it has in its possession and delete existing copies unless applicable law requires storage of the personal data.

(h) to the extent that SUPPLIER is required to transfer personal data pursuant to this SCHEDULE, including to the approved Sub-processors, to a territory outside of the EEA that does not have a finding of adequacy by the European Commission, the parties shall either (i) execute or procure the execution of the standard contractual clauses set out in Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC (“Model Clauses”) or (ii) agree another more appropriate lawful data Transfer Mechanism exists, for example, were the Sub-processor transferee has a Privacy Shield Certification. The parties agree that if the Model Clauses (or agreed alternative mechanism) cease to exist or are no longer considered by both parties to be a lawful method of transferring personal data outside of the EEA, the parties shall have a good faith discussion and agree an alternative lawful Transfer Mechanism and SUPPLIER may cease or procure that the relevant third party cease the processing of personal data until such time as the parties have agreed an alternative transfer mechanism to enable the personal data to be transferred outside of the EEA in a compliant manner.

2.5 Client, without prejudice to its other rights or obligations, shall comply with its obligations under applicable Data Protection Legislation and shall in particular ensure that it has appropriate rights and legal basis, or other ability to process personal data and that SUPPLIER is lawfully permitted to process personal data on its behalf, and will not give SUPPLIER any instructions that would cause SUPPLIER to be in breach of the Data Protection Legislation.