1.1 The Agreement is a framework agreement under which the Client may request Shimmr AI Ltd (“Shimmr”) to provide Advertising Services to the Client in the Territory.
1.2 Shimmr and the Client may from time execute an Order Form for a Campaign or additional Campaigns. which shall then become part of this Agreement incorporating these Conditions.
2. INTERPRETATION
2.1 The following definitions and rules of interpretation apply in these Conditions:
Agreement: the agreement between Shimmr and the Client for the supply of Advertising Services comprising the Order Form(s) and these Conditions.
Advertising Services: the artificial intelligence powered web and app-based advertising services to be provided by Shimmr to the Client as specified in each Order Form.
Deliverable: an advertisement for a Title that may be composed of an image, a descriptor, the name of the Title and its author, that is created or produced by or on behalf of Shimmr for the Client in the course of a Campaign.
Business Day: any day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Campaign: an advertising campaign for one (1) Title provided by Shimmr composed of continuously self-optimising Deliverables.
Charges: the fees and charges price as advertised on Shimmr's website and set out in the Order Form that are payable by the Client under this Agreement.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.8.
Client: the person or firm who purchases services from Shimmr, as identified in the Order Form.
Effective Date: the date specified on the Order Form on which the Agreement becomes effective.
EPUB: the electronic machine readable copy of a Title.
Initial Term: the minimum initial term of one year from the Services Start Date.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade-marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights on any media whether or not currently existing or yet to be invented, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials: all information, data and materials provided to Shimmr by the Client in relation to the Advertising Services.
Renewal Term: one year from the end of the Initial Term or its anniversary.
Services Start Date: provided that the EPUBs and payment are received on or before the 20th, the first day of the month following the date on which Shimmr receives payment of the Charges.
Term: the Initial Term of the Agreement, and any Renewal Term.
Territory: websites and other globally accessible media targeting those countries in which the Advertising Services are to be provided as set out in each Order Form.
Title: a novel, biography, autobiography or other literary work that the Client wishes to advertise in the course of a Campaign.
Title Replacement Fee: the fee payable for replacing a Title during a Campaign.
Trade Marks: the Client’s registered trade marks and trade mark applications, and all unregistered trade marks and logos, specified in an Order Form and/or notified by the Client to Shimmr from time to time in writing.
Order Form: the document identified as “Shimmr Order Form” which details the number of Titles in a Campaign, the Territory, the Charges, and any additional matters agreed.
2.1 In the Agreement: (a) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted from time to time and includes any subordinate legislation made thereunder; (b) a reference to writing or written includes email; and (c) in case of inconsistency, the documents constituting the Agreement shall prevail in the following order: (i) the Order Form(s); (ii) these Conditions.
2.3 Any descriptive matter or advertising issued by Shimmr, illustrations or descriptions of the Advertising Services contained in Shimmr’s brochures or on the Shimmr website are issued or published for the sole purpose of giving an approximate idea of the Advertising Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4 These Conditions apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4.2 The Charges shall include media buying services which may be enhanced upon payment of additional fees agreed between the parties from time to time.
4.3 Shimmr will collect, store and allow Client to access commercial information including but not limited to sales data in relation to each Title by media channel to optimise the Advertising Services.
5. CLIENT RESPONSIBILITIES
5.1 The Client shall provide Shimmr with such information and Materials as Shimmr may require to provide the Advertising Services including but not limited to the EPUBs of the Titles and be responsible for the accuracy and completeness of the Materials.
5.2 The Client shall co-operate in a timely manner with Shimmr in all matters relating to the Advertising Services as Shimmr may reasonably require from time to time.
5.3 The Client shall comply with all applicable laws, including (without limitation) laws relating to copyright, trade marks or any other intellectual property right in any jurisdiction.
6. CHARGES AND PAYMENT
6.1 On or after the Effective Date, Shimmr shall invoice the Client for the first 4 months of the Campaign, and the Client shall pay the Charges in order to trigger the Service Start Date. The year / months of the Agreement begin on the Service Start Date.
6.2 The payment terms shall be as follows:
Months 1-4: Payment will be triggered via the Order Form, at which time payment details will be provided by Client and charged to Client.
Month 5 onwards: Payment will be automatically charged using the same payment details given by Client at the initial payment, and charged exactly 4 months from the first payment.
6.3 The Charges shall be payable via the Shimmr website via Shimmr’s payment services provider; or if the former is impracticable for any reason, by BACS transfer using the account details set out in the relevant invoice (available only for annual pre-paid subscriptions).
6.4 Should the Client wish to submit the specific Title names after execution of the Order Form, these must be emailed to [accounts@shimmr.ai] or notified to Shimmr via the Shimmr website using the Client’s log-in details. Should the Client wish to replace the Title or Titles in a Campaign during the Initial Term or Renewal Term, a Title Replacement Fee may be payable prior to such replacement. The Titles to be removed and Titles with which they are to be replaced must be emailed to [accounts@shimmr.ai] or notified to Shimmr via the Shimmr website using the Client’s log-in details. The relevant EPUBs must be provided to Shimmr along with the notification.
6.5 All amounts payable by the Client under the Agreement are exclusive of value added tax (or similar local tax), which, where applicable, shall be added to Shimmr's invoice(s) at the appropriate rate and paid by the Client.
6.6 The Charges do not cover the provision of Advertising Services outside the Territory, or any services other than the Advertising Services. If any such services are offered and / or requested, the fees for them will be separately agreed by the parties.
6.7 Shimmr reserves the right to increase the Charges, to be effective on or after the Initial Term or Renewal Term. Updated Charges shall be published on the Shimmr Website and notified to the Client at least 90 days prior to the Renewal Term.
6.8 The Client shall pay all amounts due under the Agreement in full without any deduction or withholding and the Client shall not be entitled to assert any credit, set-off or counterclaim against Shimmr in order to justify withholding payment of any such amount in whole or in part.
6.9 Without limiting any other right or remedy of Shimmr, if the Client fails to make any payment due to Shimmr under the Agreement by the due date for payment, Shimmr shall have the right to charge interest on the overdue amount at the rate of 4% a year above the then current Bank of England's base rate accruing on a daily basis from the due date for payment until the date of actual payment of the overdue amount, whether before or after judgment and compounding quarterly, but at 4% a year for any period when that base rate is below 0%; and suspend the provision of the Advertising Services upon 14 days’ written notice to the Client.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Shimmr acknowledges and agrees that Client and/or its licensors own all Intellectual Property Rights in the Materials.
7.2 Client hereby warrants that it has and undertakes that it shall continue to have during the Term the requisite rights and licenses to permit Shimmr’s use of the Materials to produce the Deliverables and provide the Advertising Services in accordance with this Agreement.
7.3 The Client grants to Shimmr a non-exclusive, worldwide, non-assignable, royalty-free licence to use the Materials for the sole purpose of performing its obligations under the Agreement. Client agrees that Shimmr may sub-license the Intellectual Property Rights in the Materials to the extent necessary to provide the Advertising Services.
7.4 Shimmr represents and warrants that all marketing assets, images, copy and other content created by Shimmr in the course of providing the Advertising Services (the "Generated Content") is crafted using artificial intelligence models with the Client's EPUB as context. The Generated Content is an original work created entirely by Shimmr's technology, which is a mix of AI models and other software engineering. Shimmr does not source, copy, reproduce or extract any portion of the Generated Content from any third-party copyrighted works.
7.5 Shimmr grants to the Client a non-exclusive, worldwide, non-assignable, non-sub-licensable, royalty-free license to use the Deliverables in the Territory during the Term.
7.6 Each party acknowledges and agrees that nothing in the Agreement will serve to transfer ownership of any Intellectual Property Rights from one party to the other. This clause 7.5 shall survive termination of the Agreement.
7.7 The Client shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights, and are not obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing or blasphemous (Inappropriate Content).
7.8 Shimmr reserves the right to reject Materials where it reasonably suspects it is Inappropriate Content.
8. DATA PROTECTION
8.1 Each party shall comply with all applicable data protection laws. Shimmr’s Privacy and Cookies Policy is available here.: https://shimmr.ai/privacy-cookies. With regard to business contact data, each party is a data controller on its own behalf. With regard to Title authors’ names cited in Deliverables, the Shimmr Privacy and Cookies Policy will apply.
8.2 Shimmr's advertising utilizes large language models (LLMs) provided by third-party AI platforms like OpenAI. Per Shimmr's terms with its AI providers, any Materials or ePUB content provided by Client is used solely for the benefit of creating and promoting ads for Client's titles. This Client data does not become part of the training sets or training data for the LLMs utilized by Shimmr. The EPUB content and other Client Materials are used only to generate the AI-Generated Content for Client's Campaigns. For avoidance of doubt, Shimmr shall not (and Shimmr has no right to) use or authorize use of any Materials (or any content, information, or data based on or derived from any Materials) for purposes of text and data mining and/or developing, training, tuning, or operating machine learning or artificial intelligence models or algorithms or to derive or create any content, information or data.
8.3 Shimmr's services all run within the AWS Cloud. All Shimmr services use encryption of data both in transit and at rest. Shimmr stores all data, including the Materials provided by Client and the AI-Generated Content, in an encrypted format.
9. LIMITATION OF LIABILITY
9.1 Shimmr shall have no liability for any damage or delays caused by any Materials provided to Shimmr by the Client or for any Advertising Services provided at the Client’s direction. If Shimmr's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation, Shimmr shall be relieved from the performance of any of its obligations to the extent it is thereby prevented or delayed in its performance of such obligations and shall not be liable for any costs or losses thereby sustained or incurred by the Client.
9.2 Except as expressly provided in the Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement.
9.4 Subject to clause 9.5, each party’s total aggregate liability shall be limited to the Charges paid by the Client to Shimmr under the applicable Order Form.
9.5 Nothing in the Agreement limits or excludes either party’s liability for death or personal injury caused by their own negligence, fraud or fraudulent misrepresentation, or any other liability which cannot be excluded or limited under applicable law.
9.6 The Client shall defend, indemnify and hold harmless Shimmr against all liabilities arising out of or in connection with the Client’s breach of clauses 7.2 and 7.5.
9.7 Each party shall indemnify the other from third party claims caused by their breach of this Agreement or relevant applicable laws.
9.8 This clause 9 shall survive termination of the Agreement.
10 TERM AND TERMINATION
10.1 The Agreement shall commence on the Effective Date and shall continue in effect for the Initial Term of an Order Form unless terminated in accordance with clause 10.2 or 10.4. Thereafter, on its anniversary, the Agreement shall automatically renew for a Renewal Term unless terminated earlier by either party in accordance with clause 10.2 or 10.4.
10.2 Either party may give written notice to the other to terminate an Order Form on not less than one month’s notice to become effective after the first 4 months from the Service Start Date.
10.3 The termination of an Order Form under clause 10.2 shall not terminate any other Order Form unless mutually agreed by the parties.
10.4 A party may terminate the Agreement (and / or any Order Form) immediately at any time by written notice to the other if:
10.4.1 the other party commits a material breach of the Agreement (including but not limited to late or non-payment of Charges) and (if such breach is remediable) fails to remedy that breach within 14 days of being notified in writing; or
1.4.2 the other party has a receiver or administrator appointed over the whole or any substantial part of its business or assets, or if any order is made or a resolution is passed for its winding up (other than for the purpose of a genuine amalgamation or reconstruction of a solvent company); or other party suspends or ceases, or threatens to suspend or cease, to carry on its business or is unable to pay its debts as they fall due or admits inability to pay its debts; or any event occurs or proceeding is taken with respect to other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 10.4.2.
10.5 On termination of the Agreement or any Order Form for any reason:
10.5.1 the Client shall immediately pay to Shimmr all of Shimmr's outstanding unpaid invoices under the Agreement and/or the applicable Order Form (and interest and, in respect of Advertising Services supplied but for which no invoice has been submitted, Shimmr shall submit an invoice, which shall be payable by the Client immediately on receipt);
10.5.2 Shimmr may destroy or otherwise dispose of any of the relevant Materials in its possession unless otherwise agreed between the parties in which case an appropriate fee may be charged by Shimmr to transfer Materials back to Client using agreed media, methods and if required encryption (or similar); and
10.5.3 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
12. FORCE MAJEURE
13. GENERAL
13.1 The Agreement constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Shimmr which is not set out in the Agreement. Nothing in this clause shall limit or exclude liability for fraud.
13.2 Each party may assign all or any of its rights or obligations under the Agreement subject their informing the other party of such assignment as soon as reasonably practicable. Save for the aforementioned, neither party may subcontract, charge, or deal in any other manner with this Agreement without the other party’s prior written consent which may not be unreasonably withheld.
13.3 All notices, documents and other communications relating to the Agreement must be in writing and delivered, or posted by first class pre-paid post or sent by e-mail transmission to the following addresses of Shimmr or the Client:
Shimmr
Address: 5a Bear Lane, London, SE1 0UH
E-mail: accounts@shimmr.ai
Client
Address: as identified in the Order Form.
Email: as identified in the Order Form.
Any such notice shall be deemed to have been duly served upon and received by the party to whom it is addressed at the time of delivery if delivered by hand, on the expiry of 48 hours after posting or at the time of transmission in the case of e-mail transmission unless an out of office message or other unavailability message is received in which case the serving party must use another of the abovementioned means of delivering notices.
13.4 No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 If any part of the Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were amended or deleted, the provision shall apply with the minimum modification or deletion necessary to make it legal, valid and enforceable.
13.6 Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 A person who is not a party to the Agreement shall not have any rights under or in connection with it.
13.8 Shimmr may amend these Conditions from time to time upon notice to the Client.
13.9 Each party irrevocably agrees that the laws of England and Wales shall govern this Agreement and the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation save that the parties shall be entitled to commence injunctive or enforcement proceedings in any court of competent jurisdiction.
13.10 Use of Client Logos. Client hereby grants Shimmr a limited, non-exclusive right to use Client's name, trademarks, service marks, and logos (collectively, the "Client Marks") solely for inclusion on Shimmr's website and in other Shimmr marketing materials for the purpose of displaying the Client Marks as a Shimmr client to advertise and promote Shimmr's services. Shimmr agrees to use the Client Marks solely in the form provided by Client. This limited right expires upon termination of the agreement between the parties. Client represents that it owns or has permission to use the Client Marks and has authority to grant this right to Shimmr. Shimmr grants the Client the right to withdraw the Client Mark's for cause.
