WILDCARD SERVICES LIMITED:
TERMS AND CONDITIONS

 
1    APPLICATION OF THESE TERMS AND CONDITIONS    
1.1    These terms and conditions apply to each Statement of Work that Wildcard Services Limited (“Wildcards”) enters into with a client named in the relevant Statement of Work ("Client").
1.2    Any terms or conditions proposed by the Client (whether included in a purchase order, communication, or otherwise) that conflict with or seek to override these terms and conditions shall be excluded and have no effect.
1.3    In this terms and conditions the capitalised words shall have the meaning given in clause 17 (Definitions).
1.4    Headings are for convenience only and do not affect how these terms and conditions interpreted. Whenever words like ‘include’ or ‘including’ are used, that means ‘including but not limited to’.
1.5    If there is any conflict or uncertainty between different parts of a Statement of Work, they will be interpreted in the following order of priority (with the higher items taking precedence over the lower ones):
1.5.1    the provisions of the Statement of Work;
1.5.2    any applicable Service Specific Terms referred to in the Statement of Work; and
1.5.3    these terms and conditions.

2    DURATION
2.1    Each Statement of Work shall commence on the Service Commencement Date and, unless terminated earlier in accordance with these terms and conditions or the terms of the Statement of Work, shall continue in force until the Service Expiry Date.  
2.2    If the Statement of Work has no express Service Expiry Date, the Statement of Work shall have an initial term of 12 months and thereafter shall automatically renew on an annual basis unless and until either Party terminates the Statement of Work with effect from the date of renewal by giving the other Party not less than three months’ prior written notice. 
2.3    Where the Services are provided on a trial basis (as stated in the SOW), the Services will be provided for the Trial Period (as defined in clause 17 below) and may be terminated by the Client giving one Business Day’s notice to Wildcards during the Trial Period. After the expiry of the Trial Period the term of the Statement of Work shall automatically extend to the first anniversary of the Service Commencement Date and shall thereafter renew, and may be terminated, in accordance with clause 2.2. The selected Service Tier set out in the SOW shall apply following the extension of the SOW beyond the Trial Period.

3    STATEMENTS OF WORK
3.1    If the Client requests from Wildcards new or additional Services, Wildcards will prepare a Statement of Work based on the Client’s request that will outline the required Services and associated deliverables and timescales.  These terms and conditions shall apply to the Statement of Work in addition to any applicable Service Specific Terms that are referred to in the Statement of Work.
3.2    A Statement of Work only becomes binding once signed by authorised representatives of both Parties. Wildcards is not obliged to provide the Services until the Statement of Work is signed and returned to Wildcards.
3.3    Once signed, Wildcards will deliver the Services from the Service Commencement Date in accordance with these terms and conditions.

4    SERVICES
4.1    Wildcards shall supply the Services in accordance with:
4.1.1    Good Industry Practice; 
4.1.2    all Applicable Laws applying to Wildcards’ responsibilities under the Statement of Work; and
4.1.3    the requirements of these terms and conditions.
4.2    The Services are provided solely for the benefit of, and use by, the Participating Brand and within the Participating Geography (as specified in the SOW).
4.3    The Parties will work together to seek to achieve the timescales agreed between the Parties in writing for the delivery of the Services and the Deliverables. To support such timescales the Client will deliver its Client Dependencies in a timely manner.  However, the Parties acknowledge that time of delivery of the Services and the Deliverables cannot be guaranteed.
4.4    If the Client breaches these terms and conditions, Wildcards may suspend the Services until the breach is resolved.

5    DELIVERABLES APPROVAL PROCESS
5.1    As part of the delivery of the Services, Wildcards will develop and share with the Client a draft of any digital materials which constitute a Deliverable (or a component thereof) for the Client’s feedback and approval.   The Client will provide all such feedback promptly and Wildcards will make any reasonable adjustments based on such feedback.  Wildcards provide the Deliverables in a production ready state for the Client’s final approval and, following such approval, Wildcards will provide the completed Deliverables to the Client.
5.2    The Client shall be responsible for providing the Client Content and obtaining the relevant consents, approvals and licences: 
5.2.1    in respect of (i) all Third Party Content which is listed as a Client Dependency in the relevant Statement of Work; and (ii) any Gaming Content that the Client provides Wildcards under or in connection with a Statement of Work; and
5.2.2    otherwise agreed in writing between the Parties,
to enable Wildcards to use, modify and manipulate the Third Party Content to create assets for the purpose of promoting the game to which such Third Party Content relates. 
5.3    The Client shall be solely responsible for ensuring that the Client’s use of all Deliverables and the operation of its business complies with applicable games manufacturer, social media and other applicable Channel guidelines or policies (including any applicable advertisement platform guidance), and with Applicable Law.

6    INTELLECTUAL PROPERTY OWNERSHIP AND LICENSING 
6.1    The Client shall retain ownership of all Intellectual Property Rights subsisting in the Client Content and Wildcards shall retain ownership of all Intellectual Property Rights subsisting in the Wildcards Content.  All Intellectual Property Rights subsisting in the Third Party Content shall remain vested in the relevant third party licensor.  Subject to the foregoing, all Intellectual Property Rights subsisting in the Deliverables shall vest in the Client upon payment of the relevant Charges to Wildcards.
6.2    The Client hereby grants to Wildcards a personal, non-transferrable licence to utilise the Client Content solely for the purpose of performing the Services including the creation of the Deliverables.
6.3    Wildcards grants to the Client a personal, non-transferrable licence to utilise the Wildcards Content contained within the Deliverables or required to benefit from the Services solely for use within the Channels set out in the applicable Statement of Work. This licence is limited to the term of the SOW for any Code and perpetual for all other Wildcards Content.
6.4    Wildcards shall (i) indemnify the Client against any Liabilities suffered or incurred by or awarded against the Client arising from any Client IPR Claim, and (ii) conduct or (at its option) settle any Client IPR Claim (at no cost to the Client).
6.5    In relation to any Client IPR Claim which comes to its attention the Client shall:
6.5.1    promptly notify Wildcards of the Client IPR Claim;
6.5.2    procure any authorisation reasonably required for Wildcards to conduct or settle the Client IPR Claim;
6.5.3    provide Wildcards with all reasonable assistance to conduct or settle the Client IPR Claim; and   
6.5.4    not admit, compromise or settle any part of the Client IPR Claim without first obtaining Wildcards' written agreement.

7    CHARGES AND PAYMENT 
7.1    The Client shall pay the Charges in accordance with the terms of this MSA and the relevant Statement of Work. Unless otherwise stated in the SOW, Charges shall be invoiced on a monthly basis in advance.  The Charges are stated exclusive of VAT (where applicable) which the Client shall pay in addition to the Charges at the rate prevailing on the date of the invoice.  The Client shall be solely responsible for any and all import tariffs, duties, and other similar charges imposed on the receipt or provision of the Services and/or Deliverables (“Duties”). Wildcards shall not be liable for any such Duties, and the Client agrees to indemnify and hold Wildcards harmless from any claims, liabilities, or expenses arising from the imposition of such Duties.
7.2    Unless otherwise set out in a SOW, the Client may move between Service Tiers once in any 12 month period by giving Wildcards not less than 30 days’ prior written notice.
7.3    Unless otherwise set out in a SOW, the Charges set out in the SOW are subject to change by Wildcards from time to time provided that any increase shall be made no more than once in any 12 month period and shall be no greater than the percentage increase in the [Retail Prices Index (as published by the Office for National Statistics (or successor index)] during the preceding 12 months.  Wildcards shall give the Client not less than 30 days’ prior written notice of any change to the Charges.
7.4    The Client shall pay each invoice within the period of 30 days following the date of the valid invoice.  Any Client queries regarding any invoice must be raised with Wildcards within 14 days of receipt of the invoice.
7.5    All payments due under a SOW shall be made in the currency stated in the SOW.
7.6    If the Client fails to make any payment due to Wildcards under a SOW by the due date for payment, Wildcards may charge the Client interest on the overdue amount at the greater of 4% per annum above the base rate of the Bank of England and the rate prescribed by Applicable Law.  
7.7    The Client shall not be entitled to set off any Charges due to Wildcards against any amounts due to the Client from Wildcards either under a SOW or otherwise.

8    CONFIDENTIALITY
8.1    Each Party agrees to use the other Party’s Confidential Information only for exercising its rights or performing its obligations under these terms and conditions (“Permitted Purposes”).
8.2    Each Party must keep the other Party’s Confidential Information confidential and only share it with its employees who need to know it for the Permitted Purposes. Each Party will ensure those employees are aware of and comply with this clause 8.
8.3    Clauses 8.1 and 8.2 do not apply to Confidential Information that:
8.3.1    is already public or becomes public other than through a breach of this clause 8;
8.3.2    was known to the receiving Party before discussions began, and was not subject to any confidentiality obligation; or
8.3.3    must be disclosed by law or regulation, provided the disclosing Party is consulted (where practicable) to limit the disclosure to what is legally required.
8.4    If either Party becomes aware of any unauthorised disclosure of the other Party’s Confidential Information, it must notify the other Party and provide reasonable assistance (at the other Party’s reasonable cost) in any enforcement action.
8.5    The obligations in this clause 8 continue after each SOW expires or is terminated.

9    DATA PROTECTION 
9.1    Wildcards processes a limited amount of personal data in connection with its performance of its obligations under each SOW.  All data processing by Wildcards is undertaken in accordance with its Privacy Policy set out on its website. 

10    LIABILITY
10.1    Wildcards shall not be liable to the Client for any liability arising from: 
10.1.1    Wildcards’ reliance upon instructions given by the Client in connection with Wildcards’ performance of its obligations under a SOW; or
10.1.2    the use of Third Party Content.
10.2    The Client hereby indemnifies Wildcards from and against all Liabilities suffered or incurred by Wildcards arising from the Client’s breach of clause 5.2, 5.3 or 6.3.
10.3    Subject to clauses 10.2 and 10.5, neither Party shall not in any circumstances have any liability for any losses or damages which may be suffered by the other, whether the same are suffered directly or indirectly or are immediate or consequential, which fall within any of the following categories: 
10.3.1    special or punitive loss or damage even where a Party was aware of the circumstances in which such special damage could arise; 
10.3.2    loss of profits, anticipated savings, contract or business opportunity; 
10.3.3    loss of goodwill; or 
10.3.4    loss or corruption of data.
10.4    Subject to clause 10.5, the total liability of Wildcards, whether in contract, tort (including negligence) or otherwise under a SOW for all causes of action arising in any 12 month period shall in no circumstances exceed the amounts payable to Wildcards under such SOW (excluding any pass through expenses or costs) during such 12 month period.
10.5    Nothing in these terms and conditions shall exclude or limit a Party’s liability for:
10.5.1    fraud or fraudulent misrepresentation; 
10.5.2    death or personal injury resulting from its negligence; or 
10.5.3    any matter for which it would be unlawful to limit its liability.

11    TERMINATION RIGHTS
11.1    Either Party may terminate the relevant SOW with immediate effect on giving notice to the other Party if the other Party:      
11.1.1    commits a material breach of a SOW which is incapable of remedy (save as to time of performance); 
11.1.2    commits a material breach of a SOW which is capable of remedy but fails to remedy that breach within 30 days of being notified of the breach;
11.1.3    has a liquidator (both provisional and following a winding up), receiver (including a fixed charge receiver), administrative receiver, administrator, nominee, supervisor or other similar officer appointed in respect of itself or any of its assets under the law of any jurisdiction; 
11.1.4    in the reasonable opinion of the terminating Party is unable to pay its debts as they fall due or, in the reasonable opinion of the terminating Party, the aggregate value of all its assets is less than that of all its liabilities (including its contingent and prospective liabilities); 
11.1.5    suffers an insolvency event analogous to any of the events set out in clause 11.1.3 or in any jurisdiction; or
11.1.6    suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.
11.2    Wildcards may terminate any and all SOWs with immediate effect on giving notice to the Client if the Client fails to comply with clause 5.2.
11.3    On termination of a SOW for any reason:
11.3.1    the Client shall immediately pay to Wildcards any sums due to Wildcards under the SOW; 
11.3.2    subject to clause 11.3.3, each Party will promptly destroy or return all documents and materials belonging to the other Party then in its possession, custody or control; and
11.3.3    Wildcards will delete all copies of the Client Content on its systems save to the extent Wildcards is required to retain such Client Content to comply with Applicable Laws.
11.4    The expiry or termination of any SOW shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at expiry or termination.
11.5    Any provision of these terms and conditions which expressly or by implication is intended to come into or continue in force on or after the expiry or termination of any SOW, shall remain in full force and effect after the SOW expires or terminates.

12    NON SOLICITATION
12.1    Neither Party shall during the term of any SOW or during the period of one year after it has terminated, entice or induce or attempt to entice or induce away from the other Party any person who, at any time during the term of the SOW, is, or has been, employed by the other Party in relation to the provision of the Services to the Client or the receipt of the benefit of such Services pursuant to such SOW.

13    FORCE MAJEURE 
13.1    If either Party is delayed or prevented in the performance of any of its obligations under a SOW by a Force Majeure Event, that Party shall not be liable for such delay or non-performance and the time for performance of the affected obligation shall be extended by such period as is reasonable to enable that Party, using all reasonable endeavours, to perform that obligation.

14    GENERAL
14.1    The Client may not assign, transfer, charge, create a trust over or otherwise deal in any SOW or any of its rights or obligations under any SOW (or purport to do so) without the prior written consent of Wildcards.
14.2    These terms and conditions does not create any right or benefit enforceable by any person not a Party to it except for a person who under clause 14.1 is a permitted successor or assignee of the rights or benefits of a Party that may enforce such rights or benefits.
14.3    Each Party acknowledges and agrees that in entering into each SOW it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, warranty or understanding made by or on behalf of a Party (whether made innocently or negligently) which is not expressly set out in the SOW.
14.4    Neither these terms and conditions nor any SOW  constitutes, establishes or implies any partnership, joint venture, agency, employment or fiduciary relationship between the Parties. 
14.5    Neither Party shall have, nor represent that it has, any authority to make or enter into any commitments on the other’s behalf or otherwise bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).
14.6    Except as expressly provided in these terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.   Any right or remedy expressly included in any provision of these terms and conditions (or the exercise of them) shall not be considered as limiting a Party’s rights or remedies under any other provision of these terms and conditions (or the exercise of them).
14.7    If any provision, or part of a provision, of these terms and conditions is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable such invalidity, illegality or unenforceability shall not affect the other provisions of these terms and conditions, which shall remain in full force and effect.
14.8    A failure to exercise, or delay in exercising, a right, power or remedy provided by these terms and conditions or by law shall not constitute a waiver of that, or any other, right, power or remedy and shall not, and nor shall any single or partial exercise of any such right, power or remedy, preclude the further exercise of that, or any other, right, power or remedy.
14.9    Any waiver of any right under these terms and conditions is only effective if it is in writing and it shall only apply to the Party to whom the waiver is addressed and to the circumstances for which it is given.

15    NOTICES
15.1    Any notice or similar communication given under or in connection with these terms and conditions shall be in writing and shall be delivered:
15.1.1    by hand;
15.1.2    sent by pre-paid post providing for next Business Day delivery (or pre-paid air mail if overseas) providing proof of postage; or 
15.1.3    (subject to clause 15.2.4) by email,
to the recipient Party at the address or email address, and for the attention of the persons, set out in the relevant Statement of Work.
15.2    Notices and similar communications shall be deemed to have been received:
15.2.1    if delivered by hand, at the time of delivery to the address;
15.2.2    if sent by pre-paid post, at 09.00 on the second Business Day after posting;
15.2.3    If sent by pre-paid air mail, at 09.00 on the fifth Business Day after posting; and
15.2.4    if sent by email, at 09.00 on the next Business Day after sending provided that the subject line of the email identifies that it is a notice being given under these terms and conditions and provided that a confirmatory copy is provided by one of the other means referred to in clause 15.1 dispatched on the same date as the email was sent, failing either of which the email shall not constitute a valid notice.
15.3    Faxes and electronic communications other than email are not valid notices under these terms and conditions.

16    GOVERNING LAW AND JURISDICTION
16.1    These terms and conditions and any dispute arising in connection with these terms and conditions (including any Services provided pursuant to them) shall be governed by and construed in accordance with the laws of England and Wales.
16.2    Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any Dispute.

17    DEFINITIONS
 In these terms and conditions the following expressions shall have the following meanings:

17.1    Agency Product: Any tool, platform, software, template, workflow, methodology, prompt, model configuration, or other proprietary asset developed or owned by Wildcards (whether created before or during the performance of the Services) that is used by Wildcards in the provision of the Services but is not created specifically for or exclusively on behalf of the Client pursuant to a Statement of Work, and which Wildcards retains the right to use, adapt and commercialise for other clients. For the avoidance of doubt, Agency Products form part of Wildcards Content and no Intellectual Property Rights in any Agency Product shall vest in the Client by virtue of these terms and conditions or any Statement of Work.
17.2   Applicable Law:  All laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal, all codes of practice having force of law, statutory guidance, regulatory policy or guidance and industry codes of practice.
17.3    Business Day: Any day which is not a Saturday, Sunday or a public or bank holiday in England.
17.4    Channels: The websites, social media and/or other marketing channels set out in the relevant Statement of Work.
17.5    Charges: The charges to be paid by the Client for the Services as described in the Statement of Work.
17.6    Client Content: Content provided by the Client in connection with a SOW, the Intellectual Property Rights in which are owned by the Client, and excluding Third Party Content.
17.7    Client Data: All data or records of whatever nature in whatever form relating to the Client, its operations, facilities, assets, employees, students or otherwise relating to its business, whether subsisting at the date of the relevant SOW, or created or processed in connection with the Services or as provided by the Client to Wildcards in connection with the Services. Client Data shall include all Client Personal Data.
17.8    Client Dependencies: All Client Content, third party licences, consents and approvals that the Client is required to provide to enable Wildcards to perform its obligations under a SOW and to enable the Client to utilise the Deliverables within the Channels.
17.9    Client IPR Claim: Any claim or allegation that the Client infringes a third party’s Intellectual Property Rights that arises out of, or in connection with, the receipt or use of the Services or the Deliverables in accordance with these terms and conditions an each SOW, save to the extent such claim or allegation arises from the Client’s failure to comply with the terms of the relevant SOW.
17.10    Client Personal Data: All Personal Data which is owned, controlled or processed by the Client which is provided by or on behalf of the Client to Wildcards or which comes into the possession of Wildcards as a result of or in connection with the supply of the Services.
17.11    Code: Software applications, databases, computer programs (including source code and object code for any such programming), and executable code.
17.12    Confidential Information: Information of commercial value, in whatever form or medium, which has been kept confidential by the Party from whom the information originates and which has not come into the public domain during the term of the SOW in breach of any obligation of confidence.
17.13    Content: All software, data, branding, text, images, audio, video, photographs, metadata, raw game assets, generative AI output and other content or assets, in any format.
17.14    Deliverables: All creative assets and other digital materials to be delivered by Wildcards in the performance of the Services, as set out in the relevant Statement of Work.
17.15    Force Majeure Event: Any cause affecting the performance by a Party of any of its obligations under a SOW which is beyond its reasonable control and which, by its nature, could not have been foreseen or, if foreseeable, was unavoidable.
17.16    Gaming Content: Content relating to the game library to be offered by the Client to its customers, and would include (for example), marketing packs, gameplay recordings and character art relating to the game.
17.17    Good Industry Practice: The exercise of that degree of skill, diligence, prudence, foresight and operating practice which, at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same or a similar business.
17.18    Intellectual Property Rights: Any of the following rights existing in any part of the world: all patents, utility models, rights to inventions, copyright and neighbouring and related rights, rights in designs, trade and service marks, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, domain name registrations, database rights and rights in confidential information and all other intellectual property rights, in each case whether registered or unregistered; applications to register any of those rights; rights to apply for and be granted renewals or extensions of, and rights to claim priority from, any of those rights; and any similar or equivalent rights.
17.19    Liabilities: All losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis).
17.20    Party: Wildcards or the Client, as the context requires.
17.21   Service Commencement Date: As defined in the relevant Statement of Work.
17.22    Service Expiry Date: As defined in the relevant Statement of Work.
17.23   Service Specific Terms: Additional terms and conditions specific to the Services to be provided pursuant to a Statement of Work.
17.24    Services: The digital creative and technology services, media buying and/or consultancy services set out in the relevant Statement of Work (including the sourcing, creation and delivery of the Deliverables set out in such Statement of Work) utilising the resources set out in the Statement of Work.
17.25    Service Tiers: The service tiers and associated Charges set out in the SOW in the section titled “Services & Charges“, as may be updated from time to time in accordance with clause 7.3.
17.26    Statement of Work: A statement of work entered into between the Parties pursuant to clause 3.
17.27    Third Party Content: All Content in which any Intellectual Property Rights of any third party subsist. Such Content shall include Gaming Content and any video, game tiles, screenshots or other content extracted from Third Party Content which constitute a Deliverable under the relevant Statement of Work.
17.28    Third Party Contract: Contracts entered into by Wildcards with Vendors in connection with the provision of media buying services pursuant to a SOW.
17.29    Trial Period: A period of 30 days or such other period defined in the Statement of Work.
17.29    VAT: Value added tax chargeable under the Value Added Tax Act 1994 and any other tax of any jurisdiction based on sales of goods or services such as sales taxes and any similar, replacement or additional tax.
17.30    Vendor: Any entity from which goods or services are acquired by Wildcards for or on behalf of the Client in connection with the provision of media buying services pursuant to a SOW.
17.31    Wildcards Content: (a) all existing Content produced, collated or otherwise stored by Wildcards that is made available to the Client in connection with the provision of the Services (including delivery by API) or as part of the Deliverables; and (b) all Code developed or provided by Wildcards under or in connection with a SOW; but excluding, for the avoidance of doubt, the Client Content.