STANDARD TERMS FOR THE PROVISION OF SERVICES TO SMARTODDS
THIS AGREEMENT FOR CONTRACTED SERVICES (this “Agreement“) effective as of the Effective Date by and between Smartodds (UK) Limited, a company registered in England under number 5108548, with its registered office at Unit 520, Highgate Studios, 53 – 79 Highgate Road, London NW5 1TL (hereinafter referred to as “Smartodds”), and the Contractor. (Smartodds and Contractor are each a “Party” and collectively the “Parties“). Capitalised terms not defined in the main body of the Agreement shall be as set out at the end of this Agreement.This Agreement incorporates terms set out in a front sheet agreement for provision of services, specifying the identity of the Contractor and other key terms.
Smartodds and Contractor hereby agree as follows:
Contracted Services
A.1 Scope of Contracted Services. In consideration of the Fees, Contractor shall provide to Smartodds the Contracted Services. Smartodds and Contractor shall from time to time agree further details of the Contracted Services including key Deliverables, schedules for delivery, Acceptance Criteria and success objectives which shall be recorded in writing and shall be automatically incorporated into this Agreement.
A.2 Performance of the Contracted Services. Without prejudice to any performance and/or service levels set out in the Agreement, Contractor shall: (a) ensure provision of the Contracted Services to a high professional standard, in a timely manner and to the reasonable satisfaction of Smartodds; (b) obey all lawful and reasonable directions of Smartodds in relation to the provision of the Contracted Services and timing of delivery; and (c) ensure provision of the Contracted Services and resultant Deliverables are in accordance with (i) all applicable laws and regulations; (ii) any Smartodds guidelines, policies or standards made available to Contractor by Smartodds from time to time, and (iii) the Acceptance Criteria.
A.3 Project Management; Smartodds Overhead Accounts.
A.3.1 Project Managers. Each Party may from time to time designate a project manager (“Project Manager“) who shall act as a liaison between the Parties. Each Party shall notify the other of the identity of its Project Manager.
A.3.2 Progress Reports and Meetings. If requested by Smartodds, Contractor shall submit such detailed progress report(s) on the status of the Contracted Services to the Smartodds Project Manager with such content as Smartodds may reasonably request. The Parties’ Project Managers shall meet at regular intervals in order to review the status of the Contracted Services.
A.4 Acceptance of Services. All Contracted Services supplied by Contractor pursuant to the Agreement shall be subject to acceptance by Smartodds in accordance with the Acceptance Criteria where applicable.
B. Intellectual Property Rights
B.1 All Intellectual Property Rights in any New Works are the property of Smartodds and all title and interest therein shall vest in Smartodds upon creation, and to the extent necessary, such rights are hereby irrevocably assigned to Smartodds. Contractor warrants that all work included in the New Works provided to Smartodds will be created for the purposes of this Agreement and all Intellectual Property rights in the New Works shall belong exclusively to Smartodds. Contractor shall and shall ensure that any other employee, sub-contractor, or agent of Contractor shall promptly and completely disclose to Smartodds in writing any and all New Works. Contractor hereby waives, and shall procure that any other employee, sub-contractor, or agent of Contractor, waives Moral Rights in the New Works.
B.2 To the extent that title to any New Works may not, by operation of law, vest in Smartodds, Contractor hereby irrevocably assigns (and shall promptly procure an equivalent assignment to Smartodds from any other of its employees, sub-contractors, or agents, if necessary) to Smartodds all right, title and interest to any New Works. All New Works shall belong exclusively to Smartodds, and Smartodds shall have the right to obtain and to hold in its own name, copyrights, registrations, patents, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Contractor shall at the request of Smartodds give Smartodds and any person designated by Smartodds such assistance, as is required to perfect, secure and protect Smartodds’ Intellectual Property Rights and other rights set forth in this Clause B, including but not limited to executing or procuring the execution of all documents necessary to perfect, secure and protect such rights.
B.3 On creation, and in any event upon the completion of the Contracted Services or earlier termination, Contractor shall immediately deliver to Smartodds all New Works and Contractor Materials owned or licensed to Smartodds or its Affiliates under this Agreement.
C. Fees
C.1 Fees and Invoices. Subject to the Contracted Services being carried out to the full satisfaction of Smartodds, Smartodds shall pay Contractor the Fees as set out on page 1.
C.2 Hour / Day rates. Where Contractor provides services pursuant to an hourly or daily rate Smartodds may require Contractor to provide an estimate for the number of hours or days Contractor will provide Contracted Services in any week or month. Contractor shall not exceed such estimate without prior written approval from Smartodds. Contractor shall provide a full breakdown of hours worked with each invoice to Smartodds upon request.
C.3 Expenses. In addition to the Fees, Contractor shall be entitled to reimbursement of expenses necessarily and actually incurred as a result of performing Contracted Services provided that: (i) Smartodds has given its prior written approval in advance of incurring such expenses; (ii) the expenses have been detailed on a form acceptable to Smartodds and submitted to the Smartodds Project Manager for review; and (iii) at Smartodds’ request, Contractor submits supporting documentation in addition to the expense form. Smartodds may, at Smartodds’ sole discretion, require Contractor to make travel arrangements through an Smartodds-approved travel agency.
C.4 Right to Withhold. Contractor agrees that Smartodds shall be entitled to make deductions or deferments from any invoiced Fees in respect of any bona fide disputes with, or claims against, Contractor.
D. Termination
D.1 Termination For Breach. Smartodds may immediately terminate this Agreement at any time in the event of a material breach by Contractor. Contractor may terminate this Agreement at any time in the event that any sum payable under this Agreement which is not disputed by Smartodds in good faith remains due for more than thirty (30) days after the due date of the applicable invoice.
D.2 Termination Upon Notice. Smartodds may terminate this Agreement for any reason by giving Contractor seven (7) days’ prior written notice, save in respect of so-called “Watcher” services which may be terminated forthwith for any reason by giving Contractor written notice by email, instant message or verbal notice, such notice to be confirmed in writing forthwith.
D.3 Termination for Bankruptcy/Insolvency. Either Party may terminate this Agreement on immediate written notice to the other Party if the other Party (i) ceases to do business in the normal course, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (iv) makes an assignment for the benefit of creditors.
D.4 Smartodds Rights and Payment Upon Termination. If either Party terminates the Agreement for reasons other than material breach of Contractor, Smartodds shall pay Contractor for all Expenses incurred by Contractor with Smartodds’ approval in accordance with this Agreement up to the date of notice of termination. In the event Smartodds terminates this Agreement prior to the completion of the Contracted Services, otherwise than for the material breach of Contractor, and provided the Contracted Services have been carried out to the reasonable satisfaction of Smartodds, Contractor shall be paid the pro rata portion the Fees due and outstanding to Contractor under this Agreement in respect of Contracted Services carried out to the reasonable satisfaction of Smartodds up to the date of termination. Termination under this Agreement shall not affect Smartodd’s rights in and to all New Works pursuant to this Agreement.
FURTHER TERMS AND CONDITIONS
1. No Rights In Smartodds Property / Trade Marks
1.1 No Ownership or Licence. Nothing in this Agreement shall convey to Contractor any right, licence, title, interest in and to the New Works, Smartodds Materials, or any other Smartodds property, property interest, licence or right, including for the avoidance of doubt the “Smartbapps” web application or data accessible through that application.
1.2 No Right to Use Trade Marks. Contractor shall have no right to use any Smartodds trade name, trade mark or service mark other than as may be specified in the main body of this Agreement, or as otherwise agreed in writing between the parties.
2. Confidentiality / Press Releases
2.1 Confidentiality. Contractor acknowledges that (1) Smartodds and its Affiliates (or their licensors) are the owners of Confidential Information (2) in the performance of the Contracted Services, Contractor may receive or become aware of Confidential Information or materials containing Confidential Information and (3) unauthorised disclosure or use of any Confidential Information would irreparably damage Smartodds and Smartodds’ Affiliates. Contractor further acknowledges that the services which Smartodds, and/or its Affiliates perform for clients and/or partners are confidential; that to enable Smartodds and its Affiliates to perform these services, its clients and/or partners furnish confidential information concerning their business affairs, finances, properties, methods of operation and other data (“Third Party Confidential Information“); that the goodwill of Smartodds and its Affiliates depend, among other things, upon its keeping such services and information confidential and that unauthorised disclosure of the same would irreparably damage Smartodds and its Affiliates. By reason of its duties hereunder, Contractor may come into possession of Third Party Confidential Information, even though they do not themselves take any direct part in or furnish the services performed for such third parties.
2.2 Non-Disclosure. Contractor agrees that, except as otherwise directed by Smartodds or as permitted in this Agreement, Contractor will not at any time during or after Contractor’s engagement under this Agreement: (a) disclose any Confidential Information or Third Party Confidential Information to any person, or permit any person, to examine and/or make copies of any reports or any documents prepared by Contractor or that come into Contractor’s possession or under Contractor’s control by reason of Contractor’s services except as may be directed by Smartodds; or (b) use the Confidential Information or Third Party Confidential Information other than for the purposes of providing the Contracted Services, and that upon termination of this Agreement, Contractor will return to Smartodds, or at Smartodds’ request destroy, all documents, papers, and other matter, including all copies thereof, in Contractor possession or under Contractor’s control that contain or relate to such Confidential Information or Third Party Confidential Information. Notwithstanding the above, Contractor may disclose any Confidential Information to the extent that such disclosure is required by law, rule, regulation or government or court order provided that Contractor shall provide Smartodds with not less than seven (7) days’ written notice of such disclosure.
2.3 Publicity and Statements to Third Parties. Contractor agrees that it will not, without prior written consent of Smartodds, use in advertising, publicity, or otherwise the name of Smartodds, or refer to the existence and/or the terms of this Agreement in press releases, advertising, or materials or other statements distributed and/or made to any third parties.
3. Representations and Warranties.
3.1 Contractor represents and warrants that: (a) Contractor has and will have the proper skill, training, and background so as to be able to perform in a competent and professional manner and that all work will be performed in accordance with any applicable standards specified by Smartodds; (b) Smartodds shall receive free, good and clear title to all New Works which may be developed by Contractor under this Agreement or which is provided or delivered to Smartodds by Contractor pursuant to this Agreement; and such title shall be free and clear of any and all liens, encumbrances, claims or litigation, whether pending or threatened; (c) no New Works, or other materials delivered by Contractor to Smartodds hereunder, shall infringe or violate (i) any third party Intellectual Property Right, (ii) any other proprietary or other right of any third party (iii) any applicable law, regulation, code of practice or court order, (iv) Any Smartodds guidelines, policies or standards made available to Contractor by Smartodds from time to time, and (d) no New Works, or other materials delivered by Contractor to Smartodds hereunder, shall contain any scandalous, defamatory or unlawful matter or material which is not specified by Contractor in written specifications of New Works.
3.2 Each Party represents and warrants to the other Party that: (a) such Party has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and
3.3 Each Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for in this Agreement.
4. Indemnity
4.1 Contractor shall defend, indemnify and hold harmless Smartodds, its officers, directors, agents, Affiliates, distributors, franchisees and employees from any and all loss and third party claims, demands, liabilities, costs or expenses, including without limitation reasonable outside and in-house legal fees and expenses (“Liabilities“) resulting from: (a) actual or alleged infringement of any third party Intellectual Property Rights, based on any Deliverable and/or other material furnished to Smartodds by Contractor pursuant to the terms of this Agreement (including without limitation, the New Works) or the use thereof by Smartodds, (b) any determination that Contractor is not an independent contractor, or litigation determining a change of Contractor’s independent Contractor status, including liability for taxes and other penalties assessed upon Smartodds because of Contractor’s change or lack of independent contractor status,(c) Contractor’s material breach of any obligation, duty, representation or warranty contained in the Agreement or in any Exhibits attached thereto.
4.2 Duty to Inform. Contractor shall promptly inform Smartodds of any information related to the Contracted Services, including without limitation the New Works, which could reasonably lead to a claim, demand or liability of or against Smartodds and/or its Affiliates by any third party.
5. General
5.1 Independent Contractor. Contractor is an independent contractor. Contractor shall not be deemed for any purpose to be employees of Smartodds. Smartodds shall not be responsible to Contractor or any governing body for any taxes related to the performance of the Contracted Services by Contractor, including but not limited to, income tax and national insurance but not including VAT (if Contractor is registered for VAT, and VAT is properly payable). Contractor represents and warrants that Contractor has or shall file all required forms and make necessary payments appropriate to Contractor’s tax status.
5.2 Control. Unless otherwise specified in this Agreement and subject to Smartodds determining the scope for the Contracted Services and the specifications for Deliverables, Contractor shall be responsible for determining the means by which Contracted Services are provided, including location of service provision and the resources which may be required. Provided that the Contractor remains responsible for the provision of the Contracted Services to Smartodds, and notifies Smartodds of the identity of the applicable third party in advance, the Contractor shall be entitled to delegate or sub-contract the provision of Services to a third party.
5.3 Services for Third Parties. Unless otherwise specified in this Agreement, Contractor may provide services to any third party at the same time as providing Contracted Services to Smartodds.
5.4 No Agency. Neither Party is an agent, representative or partner of the other Party. Contractor shall have no right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability on behalf of, or to otherwise bind, Smartodds. This Agreement shall not be interpreted or construed to create an employment relationship, an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
5.5 Force Majeure. Neither Party shall be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such Party’s reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence.
5.6 Notice. Any notice, approval, request, authorisation, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered by confirmed facsimile; (ii) on the delivery date if delivered personally to the Party to whom the same is directed; (iii) one (1) business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) five (5) business days after the mailing date, whether or not actually received, if sent by first class post, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. In the case of each Party, such notice will be provided to the Project Manager at the address set forth in the first paragraph of this Agreement, unless otherwise notified by such party.
5.7 No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.
5.8 Entire Agreement. This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing, provided that nothing in this Agreement shall operate to limit or exclude either Party’s liability for fraudulent misrepresentation.
5.9 Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless agreed between the Parties in writing.
5.10 Further Assurances. Contractor shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by Smartodds for the implementation or continuing performance of this Agreement.
5.11 Assignment. Contractor shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of Smartodds. Smartodds may assign this Agreement or any right, interest or benefit under this Agreement to any third party without the prior written consent of Contractor. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective successors and assigns.
5.12 Subcontract. No work or services to be performed by Contractor under this Agreement shall be subcontracted to or performed on behalf of Contractor by any third party, without prior notification to Smartodds’ of the identity of the applicable third party. In the event that Smartodds objects to such third party, Contractor will provide an alternative. Contractor shall remain liable to Smartodds for the performance of its obligations under this Agreement.
5.13 Construction; Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
5.14 Remedies. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the Party may possess at law or in equity.
5.15 Applicable Law; Jurisdiction. This Agreement shall be interpreted in accordance with the laws of England and Wales and each Party consents to the exclusive jurisdiction of the courts of the England and Wales.
5.16 Third Party Rights. Except as expressly stated otherwise, no term of this Agreement shall be enforceable under the Contract (Rights of Third Parties) Act 1998. This does not affect any right or remedy which exists or is available apart from under that Act.
DEFINITIONS
Acceptance Criteria. The criteria agreed between the parties in writing from time to time for the testing and acceptance of the Contracted Services and/or the Deliverables to be provided by Contractor to Smartodds. Such criteria shall include, without limitation, (i) that all Deliverables be provided to Smartodds in accordance with the requirements set out in any project specifications provided to Contractor by Smartodds and (ii) that all Deliverables be fit for the purpose or purposes for which they are intended, as notified to Contractor by Smartodds from time to time;
Affiliate. A member of the named entity’s group and in addition, any holding company of it together with and any subsidiary of that holding company and any entity that controls, is controlled by or is under common control with any of them. For the purpose of this definition, “group” has the meaning specified in s. 53 of the Companies Act 1989, “holding company” and “subsidiary” have the meanings specified in s. 736 of the Companies Act 1985, and “control” has the meaning specified in s. 435 of the Insolvency Act 1986, each as amended.
Confidential Information. Any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party, including, but not limited to, the terms of this Agreement, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, projections, and marketing data.
Intellectual Property Rights. Intellectual property rights of whatever nature (including patents, trade marks, trade secrets, rights of confidence, database rights, design rights (in each case whether registered or unregistered), present and future copyright and all rights and forms of protection of a similar nature or having an equivalent effect which may subsist anywhere in the world, together with all applications for the same and in all cases including the right to sue for damages for past infringement).
Moral Rights. All rights described in Part I, Chapter IV of the Copyright Designs and Patents Act 1988 and any similar rights of authors anywhere in the world.
New Works. Any and all materials, deliverables, services, designs, creative and/or other outputs or products created by Contractor in connection with this Agreement (including where created by any employee, sub-contractor, or agent of Contractor from time to time) whether created independently or jointly with Smartodds or its Affiliates.
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