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Terms of Service

These Terms of Services (“Filed Terms” or “Terms of Services”) govern access to and use of any websites, products or services (collectively “Services” or “Service”) offered by Abstract Inc Limited an United Kingdom limited company with the company number 10775503 (“Filed” or “we”) to the Client defined in the Order Form (the “Client”). By signing an Order Form or agreeing to use the Services, whether via our website Filed.com or a physical order form signed electronically or otherwise, the Client acknowledges and agrees that the Client is subject to these Terms of Services and that the Client accepts these Terms of Services.

1. Definitions

As used in these Terms of Services, unless expressly otherwise stated or evident in the context, the following capitalized terms shall have the following meaning.

1.1 “Ad Account” means a predefined advertising account registered with Filed and associated with the advertising account(s) on Facebook and/or Google and/or any other Third Party Services.

1.2 “Advertising Platforms” include, but are not limited to, Facebook, Instagram, Google and any such platforms which Filed may include in its services at a later date.

1.3 “Advertising Spend” means all the advertising spend the client used on the Third Party Service for all advertising conducted with respect to an Ad Account in Facebook and/or Third Party Service.

1.4 “Agreement” means these Terms of Services together with the Order Form and any appendices thereto which shall govern the provision of the Service by Filed and the use of the Service by the Client.

1.5 “Campaigns” means in relationship to Section 3. Fully Managed Service the Campaigns that Filed builds on the Clients behalf.

1.6 “Content” means any advertising content created by or on behalf of Customer for an advertising campaign or otherwise.

1.7 “Facebook” means the social media site known as Facebook and all advertising platforms in Facebook’s ecosystem including but not limited to Facebook, Instagram, Messenger and WhatsApp and Facebook audience network.

1.8 “Feedback” means the Client providing suggestions, comments or other feedback to Filed with respect to the Service.

1.9 “Filed Software” means Filed’s proprietary advertising software, including any changes, updates, upgrades, modifications and enhancements made thereto, and any related modules, addons, tools, browser plugins and applications as well as any documentation relating thereto all of the foregoing to the extent offered by Filed.

1.10 “Free Trial” means access to Filed’s Service free of charge for 14-days or any period agreed by Filed. The trial period starts on the first day the Service is used by the Client, or an account is created with Filed or when otherwise agreed in writing.

1.11 “Fully Managed Service” means an additional service by which Filed provides Client Success Manager, and works with the Client on creating Campaigns and offering weekly reports and ongoing optimisations.

1.12 “Marketing Plan” means the plan a Client’s Client Success Manager puts together on the Fully Managed Service based on the Onboarding Call.

1.13 “Minimum Charge” means the predefined minimum charge a Client will be charged if their Advertising Spend is less than the agreed Monthly Spend listed on their Order Form. Minimum Charge information can be found in Section 8, or in the definitions of Price Tier. This refers to standard pricing offered by Filed and does not refer to any discounts or promotional offers that may become available.

1.14 “Monthly Fee” means the predefined percentage fee or flat price fee agreed on the Order Form of the Clients monthly Advertising spend for Ad Accounts on Advertising Platforms connected to Filed.

1.15 “Monthly Spend” means the Advertising Spend the client spends with third party Advertising Platforms.

1.16 “Order Form” means the order form through which the Customer orders the Service and which, by reference, incorporates these Terms of Service. In the event of a conflict between these Terms of Service and the Order Form or any other appendices thereof, the Order Form shall prevail unless expressly stated otherwise in the Terms of Service or any other appendices thereof.

1.17 “Onboarding Call” means the 30 minute call a Client gets when using the Full Managed Service.

1.18 “Overage Fee” means the predefined Overage Fee percentage on the Client’s Order Form for any Advertising Spend over the Clients agreed Monthly Spend on the Order Form.

1.19 “Price Tier” means the pricing structure shown below, which contains the Monthly Spend, Monthly Fee and Minimum Charge respective to the Clients Advertising Spend.

Monthly Spend Monthly Fee Minimum Charge Overage Percentage
Less than $2000 $295 10%
$2000 – $10,000 $495 8%
$10,000- $30,000 $995 7%
$30,000 – $150,000 5% of ad spend $2500 6%
Over $150,000 Bespoke pricingBespoke pricing-

 

1.21 “Terms of Service” means these terms and conditions applicable to the use of the Service. Filed may update and modify the Terms of Service from time to time and by continuing to use the Service after having been informed of the modification by written notice of Filed, the Customer accepts the modification and the revised Terms of Service shall enter into force after 30 days have elapsed from the notice of revised Terms of Service. All material changes to these Terms of Service shall be informed to the Client via email prior to them becoming effective.1.20 “Service” means the provision of Filed Software available on a software as a service (SaaS) basis via the Internet on Filed’s tool and website and/or by any other means via which the service is made available or can be used as well as any ancillary services that may be available and provided by Filed in relation to Filed Software.

1.22 “Third Party Services” means any gateways, integrations, links or other functionality that allows the Client and/or Users to use certain third-party services such as data upload services or advertising tracking services. It also means the services provided by Advertising Platforms, or for any other services, information or content accessed or purchased through Filed, which you may be able to access, use or connect to with our Services.

1.23 “Users” means all people that are accessing the Service.

2. Service

2.1 The Service consists of a software as a service (SaaS) advertising tools and AI optimisation provided by Filed and used by the Client via the Internet. The Service may be used by the Client to create, manage, optimise and report advertising campaigns on Facebook and/or Google and any other advertising platforms that Filed may offer in the future.

2.2 The Service is designed to help the Client in creating, managing, reporting and optimising its advertising campaigns, the Client remains responsible for how the Client uses the Service and for achieving the intended goals and results of the Client’s advertising campaigns. Filed’s Service operates between the Client and Facebook and Google’s platform on which the advertising campaigns are being conducted. It is the responsibility of the Client to ensure that the output and results of the Service meet the Client’s expectations and requirements.

2.3 Filed is entitled to produce the service as it deems appropriate. The Service and Facebook and Google are constantly evolving and, as a result, the features made available on the Service may change. In the event of any substantial or major change to the Service, Filed will inform the Client on its website at https://filed.com/ or via the Service (E.g. in the platform, via the support centre or by e-mail to the e-mail address on record with Filed) and will provide the Client with 30 days’ prior notice before any substantial or major changes come into effect.

2.4 Filed will provide assistance to the Client upon request and provide support via support tickets or via e-mail conversation. If required, the Client must allow Filed to access the necessary information. If requested by the Client or with the Client’s approval, Filed’s personnel may modify the Client’s advertising campaigns and other settings via Client’s Ad Accounts based on mutually agreed instructions.

2.5 Filed’s Client Support will be available as follows:
• E-mail: 09:00 – 18:00 Monday to Friday
• Live Chat: 09:00 – 18:00 Monday to Friday

Filed is entitled to change these hours if it deems it necessary and will inform the Client of any changes in writing, providing the Client with 30 days’ prior notice before any changes to these hours come into effect.

2.6 The Service does not include and Filed does not offer, any telecommunication or networking services or equipment, security services or systems, or hardware or other equipment. If the Client requires any of the foregoing, the Client must obtain such systems, services and equipment at its own expense from third party vendors. The Client is responsible for providing all hardware, software, connectivity and data storage necessary to access and use the Service.

2.7 The Client undertakes not to use the Service for any unlawful purposes. The Client also undertakes to comply with Filed’s reasonable directions and requests related to the service.

2.8 The Client is responsible for complying with all laws, rules and regulations applicable to the Client, including all laws, rules and regulations related to advertising and conducting
advertising campaigns.

2.9 All people that are to access the Service hereunder (collectively, “Users”) will be required to have unique identifications and passwords as supplied by Filed. The Client will ensure that reasonable steps are taken to prevent the disclosure of aforementioned unique identifications and that passwords are kept away from Third Parties, except to the extent necessary to carry out the purposes of this Agreement (if Filed provides its written consent for disclosure). The Client is responsible for ensuring that all users comply with this Agreement.

2.10 The Service may include gateways, integrations, links or other functionality that allows the Client and/or Users to use certain third-party services such as data upload services or advertising tracking services (collectively, “Third Party Services”). Filed does not supply and is not responsible for any Third-Party Services, which may be subject to their own licenses, agreements, privacy and security policies, and/or terms of use which the Client must enter into with the operators of such Third-Party Services. Depending on the integration required by the Client, Filed has the liberty of charging an extra fee for integrating that specific Third Party Service, which is outside the core integrations Filed offers.

2.11 Access to and use of the Service may be temporarily down, or deactivated due to maintenances, upgrades, equipment failure, power failure, and/or other scheduled or unscheduled downtimes or interruptions and Filed shall not be liable to the Client or any third-party for any such circumstances.

3. Fully Managed Service

The following Fully Managed Service terms are only specific to those Clients who have Fully Managed Service listed on the Order Form (“Fully Managed Service”). By requesting and paying for the Fully Managed Service, the Client expressly agrees to the Filed Terms of Service and this Section 3.

3.1 Filed will provide the Client with one (1) 30-minute onboarding session in the format of a video call over the Internet (the “Onboarding Call”). The Onboarding Call will take place over the Internet using a channel and tool selected by Filed; the Fully Managed Service is not provided by an in-person meeting. Filed is not responsible for the quality and strength of the connection for any Onboarding Call.

3.2 Filed will provide the Client with one (1) Marketing Plan based on the information collected during the Onboarding Call (“Marketing Plan”). Filed will deliver the Marketing Plan and request approval from the Client via email and will only continue to create the Campaigns once approval from the Client has been received via email or in writing. Filed takes no responsibility for delay caused by the Client. If the Marketing Plan is not approved by the Client Filed will make revisions up to two (2) times.

3.3 Once Filed receives the Marketing Plan, we will continue to create Campaigns on the Advertising Platform (the “Campaigns”) based on the agreed Marketing Plan. The Client acknowledges Filed will publish a campaign on the Client’s Advertising Platform(s) account as part of the Fully Managed Service, it may modify any element of the Client’s Advertising
Platform(s) account, including (but not limited to): audiences, conversions, campaigns (and all its associated components and setting). The Campaigns will be subject to the Clients approval via email or in writing before going live. If the Campaigns are not approved by the Client Filed will make revisions up to two (2) times.

3.4 Filed will provide reports to the Client’s on a Fully Managed Service weekly via email.

3.5 The Client will be provided with a dedicated Client Success Manager who will be available via email or phone via Filed’s Client Support line outlined in the Order form. Filed personnel will endeavour to respond within 1 working day during usual office hours Monday – Friday.

3.6 The Client acknowledges that before Filed can commence with the Fully Managed Service, the Client is responsible for providing any advertisement creatives, including photography, video and advertising copy. Filed will not create advertising copy from scratch, nor will it create photographs nor video. The Client must also ensure any tracking features such as the Facebook Pixel and any product catalogues are set up prior to the Fully Managed Service commencing.

3.7 The Client acknowledges that Filed requires access to the Client’s Advertising Platform Account(s) and is not responsible for any delays to the Service or Fully Managed Service that are caused on the Clients side.

3.8 Filed’s Fully Managed Service is available only during business days; if requested outside of normal business days, the Fully Managed Service will be completed and delivered on the next business day. Filed’s Fully Managed Service will only be provided in the languages offered by Filed at the time the Fully Managed Service is requested.

3.9 The Client acknowledges and agrees that Filed is not responsible for: (a) sending any appeals to any Advertising Platform for rejected campaigns; or (b) the performance of the campaign for which Filed managed under its Fully Managed Service (or for any other of the Client’s campaigns), whether or not the Client applied any suggestions provided by Filed or applied directly by Filed.

3.10 Filed reserves the right to reject a Client on Fully Managed Service request for any reason, in its sole discretion; without limiting the foregoing, Filed may reject a Fully Managed Service request if: (a) one or more campaigns in the Client’s Advertising Platform account violate any Third-Party Terms. If the Fully Managed Service request is rejected, Filed will inform the Client of the rejection by email, and refund the fee paid for the Fully Managed Service to the Client.

4. Registration and trial period

4.1 Unless otherwise agreed, the Client shall register on https://app.filed.com before commencing the use of the Service. In connection with the registration, the Client shall sign up to the Service and authorise Filed access to the Client’s Facebook account/s and/or Google account/s to all the information therein and the Client shall register their Ad Accounts with the Service. Filed shall confirm the Client’s registration and Ad Accounts in due course after having received the registration. The Client may add and remove its Ad Accounts in the Service.

4.2 In order to use the Service, the Client is required to complete an online registration. If given written permission by Filed or mentioned on the Order Form the Client is entitled to use the Service free of charge for a 14-day Free Trial period. The Client can also register for the service by agreeing to the Terms of Service electronically during the registration process. The trial period starts on the first day the Service is used by the Client, or an account is created with Filed or when otherwise agreed in writing. The Client’s right to use the Service shall automatically continue after expiry of the trial period unless the Client will notify Filed in writing and before the expiry of the trial period if it does not wish to continue to use the Service after the trial period. In the absence of such written notice, the Client’s right to use the Service shall continue after the trial period for an indefinite period until terminated in accordance with Section 12 below. The use of the Service after the trial period is subject to the fees set forth in Section 8 below. Except for an obligation to pay fees pursuant to Section 8 below, all other provisions of these Filed Terms shall apply during the trial period.

5. Third Party Content and Services

5.1 Whilst the Service includes functionality that allows the Client and/or Users to use certain Third Party Services we are not responsible for any such services provided by the Advertising Platforms, or for any other services, information or content accessed or purchased through Filed, which you may be able to access, use or connect to with our Services (together with the Advertising Platform services, the “Third-Party Services”). If you access a Third-Party Service through us, you do so at your own risk. When accessing any Advertising Platform services, you are responsible for complying with all of the terms, conditions, policies and guidelines which the applicable Advertising Platforms impose on their users (the “Third-Party Terms”), including (but not limited to) those published at:
https://www.facebook.com/terms.php and https://www.facebook.com/policies/ads/ in respect of Facebook services
https://help.instagram.com/581066165581870 and https://help.instagram.com/1554245014870700 in respect of Instagram services
https://policies.google.com/terms?hl=en and https://support.google.com/adspolicy/answer/6008942?hl=en in respect of Google services

5.2 You remain responsible for the payment of the ads purchased through our Services directly to the Advertising Platforms.

5.3 You understand that we have the right, but no obligation, to preview, verify, flag and/or modify Ads Content and that you must bear all risks associated with the publishing of ads on the Advertising Platforms. You also agree that Services interoperate with the Advertising Platforms, and that our Services are highly dependent on the availability of the Advertising Platforms. If at any time the Advertising Platforms cease to make their features or programs available to us on reasonable terms, we may cease to provide access to such features or programs to you. We assume no responsibility or liability related to Ad Content or to any Ad Content not being transferred to or published on the Advertising Platforms as a result of a malfunction in our Services.

6. Intellectual Property

6.1 You retain all right, title and interest to your Ads Content which you may upload to or with our Services. We will not use your Ads Content except for purposes of providing, supporting and improving our Services and in full compliance with all Terms of Service.

6.2 You may from time to time provide suggestions, comments or other feedback to Filed with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for us. Notwithstanding the foregoing, we will not disclose to any third party that you are the source of any Feedback. You shall, and hereby do, grant to us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

6.3 We retain all right, title, and interest in and to the Services.

7. Right of Use and Proprietary Rights

7.1 Subject to the Client’s compliance with all the terms of this Agreement, Filed grants to the Client a non-exclusive, non-transferable, limited right to access and use the Service, against due payment of agreed fees, solely in connection with the registered predefined Ad Accounts in Facebook and/or Google.

7.2 Client shall not i) attempt to copy, modify, duplicate, create or prepare derivative works from or; based upon, frame, mirror, republish, downloads, display, transmit, or distribute all or any portion of the Service in any form or media or by any means; ii) access all or any part of the Service in order to build a product or service or feature which competes with the Service; iii) attempt to obtain, or assist third parties in obtaining unauthorised access to the Service; iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise make the Service available to any unauthorised third party; or v) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the Filed Software (except and only to the extent any foregoing restriction is prohibited by applicable law). If the Client grants any subcontractor, supplier, end Client or other third-party any access to the Service, such subcontractor, supplier, end Client and third party shall be considered equivalent to the Client for the purposes of this Terms of Service and the Client shall be fully responsible and liable for all acts and omissions of such subcontractor, supplier, end Client and third-party as well for ensuring their compliance with the Agreement.

7.3 The Client agrees and acknowledges that the title and all intellectual property rights in and to the Service and any data, documentation, images and/or Filed Software related thereto are owned and remain vested in Filed or a third-party. No intellectual property right of Filed shall be transferred pursuant to this Agreement. Filed agrees that, unless otherwise agreed in this Agreement, Client-owned materials provided by the Client to Filed in connection with the Service shall remain the property of the Client and Filed agrees that the title and all intellectual property rights in and to such Client owned materials remain vested in the Client.

7.4 If the Client comments the Service or provides suggestions or ideas for improving the Service, notwithstanding anything stated to the contrary in this Agreement, the Client agrees that all such comments, suggestions and ideas thereof will be fully assigned to Filed and hence Filed shall own all rights to use and incorporate them into its product offerings.

7.5 For the avoidance of doubt, if the Service includes third-party solutions for which the Client has a direct contractual relationship with the providers of these third-party solutions (such as Facebook or other marketing platform or mobile measurement providers) regardless of anything to the contrary stated herein, their use shall be exclusively governed by their provider’s terms and conditions in their standard form, or as negotiated between the Client and such third party, applicable to such solutions. This Agreement does not modify or amend, and is not in lieu of, any terms, policies or rules of Facebook or any other third-party provider used by the Client.

8. Fees

8.1 Filed’s fee is based on the ‘Tier’ the Client’s Monthly Facebook and/or Google Advertising Spend falls in, for Ad Accounts to be connected to Filed. If the Client has a Monthly Facebook and/or Google Advertising Spend for Ad Accounts to be connected to Filed of over $150,000 then they will be contacted by a sales representative to discuss fees. The Tier 1, 2 and 3 fees are a monthly flat rate and Tier 4 fees are 5% of the Client’s Monthly Facebook and/or Google Advertising Spend for Ad Accounts connect to Filed. The monthly rate and percentage for Tier 4 (“Monthly Fee”), along with the Minimum Charge (“Minimum Charge”) for Tier 4 Clients, charged before a full month has passed to calculate the Client’s 5% of monthly ad spend on and the monthly spend (“Monthly Spend”) tier brackets are defined in the price tier list which can be found below. The Client also has an overage fee, which is a predefined percentage (“Overage Percentage”) that is charged on any Advertising Spend above the Clients Monthly Spend (“Overage Fee”) which can be found below. The Client’s Order Form or agreed Tier via the online registration process via Filed.com website and hereby agreeing to the Terms of Service electronically, provides all the information of the Monthly Spend tier they are in, what their Monthly Fee is, what the Minimum Charge is and what the Clients Overage Fee is.

8.2 For the first month of Service use the Monthly Fee shall be the Monthly Fee or the Tier 4 Minimum Charge. We will pro-rata these fees until the end of the month. On the 1st of the next month we will charge the Monthly Fee or Tier 4 Minimum Charge. On the 1st of the following month if the Client is within or below the agreed Monthly Spend, we will charge the Monthly Fee based on the Client’s tier or, if the client is in tier 4, 5% of the monthly ad spend. If the Client is over the Monthly Spend then the agreed Overage Percentage will be charged on the Facebook and/or Google Advertising Spend over the Client’s agreed Monthly Spend.

Monthly Spend Monthly Fee Minimum Charge Overage Percentage
Less than $2000 $295 10%
$2000 – $10,000 $495 8%
$10,000- $30,000 $995 7%
$30,000 – $150,000 5% of ad spend $2500 6%
Over $150,000 Bespoke pricingBespoke pricing-

8.4 If the Client has a free trial which has not been cancelled as detailed in Section 4 the Client will be billed a pro-rata amount calculated from the last day of the Client’s free trial until the end of the current month. The Client will then be billed in accordance to Section 8.1 and 8.2.8.3 Filed does not automatically send invoices via email to the Client, but the Client can always access their invoices through the Billing section in the Filed Service.

8.5 Any additional work referred to in Section 2.4 above shall be charged separately on a time and material basis as agreed separately by the Parties in writing.

8.6 If the Agreement is terminated as described hereinafter in Section 12, for the last month of use, at least the Monthly Fee is charged if the Agreement had terminated before end of calendar month.

8.7 Filed may change the fees from time to time upon 30 days prior notice. The change shall not affect the fees for invoicing periods commenced before the effective date of the change. In case of a price change the Client shall be entitled to terminate this Agreement to end on the effective date of the price change by notifying Filed thereof in writing.

8.8 The fees for the Service are invoiced monthly in advance of the applicable month via credit card or invoice, depending on the payment method offered by Filed at the time and chosen by the Client. The Client shall make payment on the invoice within 7 days of presentation and no later than the 1st of the month that it applies to. Interest on delayed payments accrues at 12% per annum or the maximum legal interest rate for late payment.

8.9 If the Client fails to make payment by the 1st of the applicable month, access to the Service will be paused until payment is received. If, after 14 days payment has still not been received, the Client’s Filed account and Service will be deactivated and the Client risks losing all data pertaining to Filed and the Service at this point.

8.10 If the Client is authorised to use the Service in connection with Facebook and/or Google, the Service will be linked to one or more of the Client’s Facebook and/or Google Advertising Accounts as provided by the Client, and will manage all ad operations within these accounts. Prior to the start of a campaign, the Client shall establish billing credentials with Facebook and/or Google and the Client will be billed directly by Facebook and/or Google for the Advertising expense and spend generated through the Service separately from the fees payable to Filed. The Client agrees to timely pay Facebook and/or Google for such expenses and accepts we are not liable in any form for failure to pay the Third Party Providers like Facebook and/or Google.

8.11 The fees are inclusive of VAT and any other government taxes and levies. The Client shall be solely responsible for VAT and other taxes and levies imposed on the Client by applicable laws and authorities in relation to the fees.

9. Warranties and Disclaimers

9.1 Filed endeavours to make commercially reasonable efforts to ensure that the Service will be available for use on a 24/7 basis excluding temporary maintenance, updating and repairs. Filed does not assume any liability for usage interruptions or breaks, but it endeavours to inform the Client of Service issues wherever reasonably possible. Filed does not warrant that the Service will be uninterrupted or error-free. However, Filed agrees to use commercially reasonable efforts to be at the Client’s disposal in order to support the Client and to correct any material error or deficiency in the Service.

9.2 The warranty does not cover errors or deficiencies attributable to (a) use of the Service contrary to this Agreement, or the written instructions given by Filed (b) use of the Service contrary to the Facebook and/or terms and policies; (c) disturbances or interruptions in the Service due to data network; or (d) a service or product not supplied by Filed or other similar reason outside of the Service.

9.3 The Client acknowledges that the use of the Service is dependent on Facebook and/or Google in which the Client’s advertising campaigns are carried out and that the actions of the Client and third-party data providers may also affect the use of the Service. Filed does not accept any liability for the operation and function of any Client or third-party products, services, actions or omissions, including, but not limited to, those of third-party data providers, Facebook and/or Google or any third-party that operates in or with Facebook and/or Google.

10. Liabilities & Limitations of Liabilities

10.1 TO THE EXTENT ALLOWED BY MANDATORY LAW, FILED DOES NOT HAVE ANY OTHER RESPONSIBILITY OR LIABILITY FOR THE SERVICE. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND FILED EXPRESSLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, CORRECTNESS AND FITNESS FOR A PARTICULAR PURPOSE.

10.2 YOU USE ALL SERVICES AT YOUR OWN RISK. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT OUR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, WE DISCLAIM ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES (INCLUDING ADVERTISING PLATFORM SERVICES) OR ACTIVITIES, ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ADVERTISING PLATFORMS, ANY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN (INCLUDING ADS CONTENT). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE FILED TERMS OF SERVICE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

10.3 OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE GREATER OF (A) THE FEES WE RECEIVED FROM YOU FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$500.

10.4 WE SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THE TERMS OF SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

10.5 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 SHALL (A) ALSO BENEFIT OUR AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS, (B) APPLY TO ANY CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT, STATUTE OR OTHER LEGAL THEORY, AND (C) NOT APPLY IF YOU CAN PROVE THAT: (I) OUR NEGLIGENCE CAUSED DEATH OR PHYSICAL INJURY; (II) WE CAUSED DAMAGES INTENTIONALLY OR WITH WILLFUL MISCONDUCT; OR (III) APPLICABLE LAW DOES NOT ALLOW A LIMITATION AS CONTEMPLATED IN THE TERMS OF SERVICE (IN WHICH CASE THE LIMITATIONS OF LIABILITY IN THE TERMS OF SERVICE SHALL BE REDUCED TO THE MAXIMUM LIMITATION THAT IS VALID AND ENFORCEABLE UNDER APPLICABLE LAW).

10.6 THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THESE TERMS OF SERVICE BETWEEN THE PARTIES AND LIMIT FILED’S POTENTIAL LIABILITY IN APPROPRIATE RELATION TO THE FEES CHARGED UNDER THE TERMS OF SERVICE, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS OF SERVICE.

11. Confidentiality

11.1 Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential, and may not use such material or information of the other Party for any purpose other than for the proper fulfilment of the Agreement. The confidentiality and non-use obligations shall not, however, be applied to material and information: (a) which is generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto or breach of confidentiality obligations.

11.2 Notwithstanding the confidentiality provisions, Filed may collect and analyse the Client’s Advertising Spend data and trends but may only disclose this Client data if the data is de-identified or if it is not attributable to any individual or company. In addition, Filed may collect, analyse, and use aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata etc.) to facilitate market research and analysis, quality control, product development/improvement and to provide support and maintenance services. Filed may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual or company.

11.3 Each Party shall promptly upon termination of the Agreement (or when the Party no longer needs the material or information in question for the purposes of the Service) cease using confidential material and information received from the other Party and, unless the Parties separately agree on destruction of such material, return the material in question (including all copies thereof). Each Party shall, however, be entitled to retain the copies required by law or regulations and Filed may use information in the connection with Section 11.2.

11.4 The duties and obligations of confidentiality contained in this Section 11 shall apply to and bind the parties for a period of twenty-four (24) months thereafter, provided however the Party’s obligations under this section will survive and continue in effect indefinitely with respect to any Confidential Information that was a trade secret under Applicable Law when disclosed.

12. Term & Termination

The Terms of Service shall remain in effect until either of us terminate them in accordance with this Section 12.

12.1 Client may terminate the Agreement and the use of the Service by sending a written notice (this will need to be done within your account within app.filed.com) 30 days prior to the current months fee, in which case Filed shall be required to speak to the account owner before cancelling to verify the account holders details. Upon confirmation by speaking to the account holder Filed shall end charging of the Client. However, at least a monthly minimum fee is charged if the Agreement has been terminated before the end of the calendar month. The purpose of this Agreement is to ensure that the proper elements and commitments are in place to provide consistent IT service support and delivery to the Client(s) by the Service Provider(s).

12.2 Filed may terminate the Agreement and the use of the Service for convenience upon 30 days prior written notice by e-mail to a nominated employee of the Client.

12.3 We may also cancel your Services, at our sole discretion, for any reason, without notice at any time. If you prepaid for Services for a specified term, and we terminate your Services under this section, we shall offer a pro-rata refund of the prepaid fees.

12.4 Upon expiration or termination of this Agreement, the Client is obliged to cease the use of the Service and shall return or destroy Filed’s material in its possession and upon Filed’s request confirm in writing that it has complied with the aforesaid.

12.5 Upon cancellation or termination of the Services by either party for any reason: (i) we will cease providing you Services and you will no longer be able to access your account; (ii) unless otherwise provided in these Terms of Service, you will not be entitled to any refunds, and you shall pay us all unpaid amounts owing. All provisions of the Terms of Service that by their nature are intended to survive, including but not limited to any disclaimer of warranty and limitation of liability provisions, shall survive the termination or expiry of the Terms of Service.

13. Processing of data

13.1 The Client expressly acknowledges and agrees that it is the Client’s obligation to observe and to comply with any and all privacy and data protection laws (including but not limited to EU General Data Protection Regulation, GDPR), regulations and terms applicable to information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context (“Personal Data”) contained in the materials provided by the Client for the purposes of the Service regardless of the country/state in which the Client is based. The above mentioned includes, but is not limited to, complying with terms and restrictions related to Client’s use of Client/contact databases and complying with any applicable privacy policies and cookie opt-in policies.

13.2 In the event that (i) Filed in connection with the Service processes Personal Data as a processor on behalf of the Client and (ii) the applicable legislation (such as the GDPR) requires Parties to put in place a data processing agreement (“DPA”) to govern such data processing, the DPA attached to this Agreement as Annex A shall apply. In such event, the DPA set forth in Annex A forms an integral part of the Agreement and shall be applied to the processing of Personal Data by Filed as a processor.

13.3 Filed may collect and process Personal Data regarding Client’s personnel and/or other representatives of the Client using the Service for the Client. Such processing is described in Filed’s Privacy Policy, the current version of which is available via the Service and on Filed’s website. The Client shall ensure that its employees and representatives engaging with the Service are informed about the contents of Filed’s Privacy Policy.

14. General Provisions

14.1 Filed is entitled to change the working methods, hardware, data communication links, software, user interface or other system components used in the providing the Service. Filed may also use subcontractors.

14.2 Filed is entitled to use the Client’s name and logo as a reference for advertising purposes only with the prior written consent of the Client for each use.

14.3 Neither party may assign this Agreement without other Party’s prior written consent. Parties shall, however, be entitled to assign this Agreement in whole or in part to its Affiliates and in the connection with a merger or acquisition process including but not limited to the transfer of business and/or any other corporate transaction or restructuring.

14.4 Neither Party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, terrorism, or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure. The delayed Party’s time for performance will be excused for the duration of the Force Majeure.

14.5 This Agreement and the information submitted by the Client during the registration process for the Service constitute the entire agreement with respect to its subject matter and replaces and supersedes any prior written and/or verbal communications.

14.6 If any provision herein is held to be invalid or unenforceable to any extent, then such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent.

14.7 Headings in this Agreement are for convenience of reference only and shall in no way affect interpretation of the Agreement.

15. Applicable Law & Dispute Resolution

15.1 These terms and conditions are governed by and construed in accordance with the laws of England and Wales.

15.2 Any dispute or claims arising in connection with these terms of service that failed to remedy will be subject to the exclusive jurisdiction of the courts of England and Wales.

Annex A – Data Processing Agreement (DPA)

1 Background and purpose

1.1 This Annex on data processing agreement (“DPA”) is an annex to and forms an integral part of the service agreement or other written or electronic agreement (“Agreement”) which governs the use of Services (as defined in Section 2) provided by Filed to the Client, as defined below.

1.2 In the course of providing the Service to the Client pursuant to the Agreement, the Filed may process Personal Data on behalf of Client. The purpose and scope of this DPA is to agree on the terms and conditions for the Processing of Personal Data by Filed on behalf of the Client in connection with the Services. This DPA together with the Agreement forms a data processing agreement in the meaning of applicable Data Protection Laws. For the purposes of this DPA only, and except where indicated otherwise, the term “Filed” shall also include Filed’s Affiliates.

1.3 The parties acknowledge and agree that, by executing the Agreement to which this DPA is attached, the Client enters this DPA on behalf of itself and, as applicable, in the name and on behalf of its Affiliates authorised to use the Services, thereby establishing a separate data processing between Filed and each such authorized Affiliate. Each authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement.

2 Definitions

2.1 For the purpose of this DPA, unless expressly otherwise stated or evident in the context, the following capitalised terms shall have the following meanings, the singular (where appropriate) shall include the plural and vice versa, and references to Sections or Subsections shall be references to sections and subsections of this DPA.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Client or Filed.

“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Filed’s Affiliates are listed at www.Filed or its subpages.

“Controller” means the entity, which determines the purposes and means of the Processing of Personal Data.

“Client” means Filed’s Client or other business partner for which Filed is providing the Services.

“Data Protection Laws” means applicable data protection regulations and legislation, including but not limited to the GDPR and the data protection or privacy laws of any other country.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.

“EU” means European Union.

“EEA” means the European Economic Area.

“GDPR” means the Regulation (EU) 2016/679 of the European parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” means the entity which Processes Personal Data on behalf of the Controller.

“Services” mean the services described in the Agreement and other services supplied by or on behalf of Filed to the Client either directly or through a third party engaged by the Client.

“Standard Data Protection Clauses” has the meaning given to it in Section 5.4.

“Sub-processor” means another processor engaged by Filed in the Processing of Personal data and, where applicable, possible other Processor engaged by the Sub processor of Filed.

“Supervisory authority” shall have the meaning set forth in the GDPR. 2.2 In addition, unless expressly otherwise stated, the applicable definitions provided in the Agreement shall be applied to this DPA. In case a definition provided in this DPA and a definition provided in the Agreement conflicts, for the purposes of this DPA the definition provided in this DPA shall prevail.

3 Processing of Personal data

3.1 Roles of the Parties

3.1.1 For the purposes of the Processing of Personal Data, the Client shall be the Controller and Filed shall be the Processor. There are also other parties involved in the provision of the Services (such as providers of social media marketing platforms). However, Filed does not have an access to the personal data held and processed by such third parties and such processing is not in the scope of this DPA.

3.2 Subject matter, nature and purpose

3.2.1 For the purposes of performing the Services, Filed Processes Personal Data on behalf of the Client.

3.2.2 The nature and the purpose of the Processing is to supply and enable the Services provided by Filed to the Client. The Processing of Personal Data shall take place solely for the purposes defined herein and Filed shall not be entitled to use the Personal Data for any other purposes, unless otherwise stated in the Agreement. The Client hereby authorises Filed to transfer Personal Data to those social media platforms and other third parties who are involved in the provision of the Services.

3.2.3 Nothing in this DPA shall operate to transfer, assign or otherwise grant to Filed any right or interest to the Personal Data, unless otherwise stated in the Agreement.

3.3 Personal data and Data subjects

3.3.1 The Client may submit Personal Data to the Services, the extent of which is determined and controlled by the Client in its sole discretion.

3.3.2 The types of Personal Data subject to the Section 3.2.1, considering the nature of the Services, consist of the end-user data from the social media platforms used by the Client, and possible direct and indirect Personal Data included to the custom conversion data provided by the Client or conversion data provided by Filed’s integrations as agreed in the Agreement.

3.3.3 Personal Data may include also other type of Personal Data if required by the purpose of the Processing as agreed between the Parties.

3.3.4 Personal Data may concern also other categories of Data Subjects if required by the purpose of the Processing as agreed between the Parties.

3.4 Duration and termination of the Processing

3.4.1 This DPA become effective simultaneously with the Agreement and shall continue to be in effect until the Agreement is terminated. The duration of the Processing of Personal Data is conditional to the term of the Agreement. Certain Processing activities shall be conducted as long as such Processing is required for the supply of the Services.

3.4.2 If any Processing by Filed is required after termination of the Agreement, e.g. in order to transfer data back to the Client such Processing shall be conducted in accordance with the provisions of this DPA.

3.4.3 In the event of termination of the Agreement, Filed shall delete the Personal Data, or if requested by the Client in writing, return the Personal Data to the Client in commonly used format as soon as practically possible after the end of the Agreement and shall be deleted thereafter from the systems of Filed.

3.4.4 If and to the extent it is required by law that any Personal Data need to remain in the possession of Filed, the Client shall be notified thereof and shall be provided with copies of such data. In such case, Filed shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is processed only when necessary for the purpose(s) specified in the applicable laws requiring such storage and for no other purpose.

3.4.5 After the termination of the Agreement, Filed shall provide, upon the Client’s request, the Client with a written certification that it has fully complied with the Subsections from 3.3.3 to 3.3.4 above.

3.5 Instructions for Processing

3.5.1 The Personal Data shall be processed in accordance with Client’s documented instructions for Processing of the Personal Data. This DPA and the Agreement are Client’s complete and final documented instructions at the time of signature of the Agreement to Filed for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the avoidance of doubt, Client’s instructions for the Processing of Personal Data shall comply with Data Protection Laws.

3.5.2 Filed shall process the Personal Data only according to documented instructions given by the Client, including with regard to transfers of Personal Data to a country outside the EU/EEA.

3.5.3 The instructions referred to in Subsection 3.5.1 may be amended from time to time as needed for the purposes of the Processing.

3.5.4 If Filed may not follow the instructions given by the Client due to applicable compelling laws or it considers an instruction to infringe any law, Filed shall immediately inform the Client of such matter.

3.6 General obligations of the Parties

3.6.1 Client shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws. Client shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Client acquired Personal Data.

3.6.2 Parties shall comply with all applicable Data Protection Laws in the Processing of the Personal Data. In addition, Filed must adhere with good practices of the industry. 3.6.3 Filed shall implement appropriate technical and organisational measures for security of Processing in order to ensure an appropriate level of security as required by the Data Protection Laws and considering the Personal Data specified in Section 3.3, including the measures provided in the Section 6 below.

3.6.4 Filed shall provide reasonable assistance to the Client in ensuring the compliance with the provisions on security of the Personal Data as set forth in the Data Protection laws.

3.6.5 Filed shall assist the Client by appropriate technical and organisational measures in the fulfilment of the Client’s obligation to respond to requests for exercising the data subject’s rights under the Data Protection Laws.

3.6.6 Filed shall make available to the Client all information necessary to demonstrate compliance with the obligations laid down in this DPA and the Data Protection Laws, in particular with the principles relating to Processing of Personal Data as laid down in the GDPR.

4 Subcontractors

4.1 Client acknowledges and agrees that (a) Filed’s Affiliates may be retained as Sub-processors; and (b) Filed and its Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services.

4.2 Upon Client’s request, Filed shall inform the Client in writing of the Sub-processors used in the Services and the specific Processing activities they are engaged for. Filed shall also inform the Client in writing of any intended changes concerning the addition or replacement of Sub-processors, thereby giving the Client the opportunity to object to such changes.

4.3 Where Filed engages a Sub-processor for Processing, Filed has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Sub-processor, in particular regarding the provision of sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the applicable Data Protection Laws.

4.4 Filed hereby enters into this Agreement for and on behalf of each of its Affiliates, thereby establishing a separate data processing agreement between the Client and each such Filed Affiliate. Addition or replacement of such Filed Affiliates shall be subject to Subsection 4.2 above. The Client may not object such additions or replacements without a cogent reason.

4.5 Where a Sub-processor fails to fulfil its data protection obligations, Filed shall remain fully liable to the Client for the performance of the Sub-processors obligations and any liabilities related thereto to the same extent Filed would be liable if performing the services of each Sub-processor directly under the terms of this DPA.

5 Location and transfers of data

5.1 The provisions of Sections 5.2-5.4 shall apply to any transfers of Personal Data processed under this DPA from the EU/EEA to countries that do not ensure an adequate level of data protection within the meaning of Data Protection Laws of the foregoing territories.

5.2 Filed may transfer to or process Personal Data in a non-EU/EEA country, which the EU Commission has not found to provide an adequate level of protection. In case Filed or Sub-processor engaged by Filed processes or in any way makes the Personal Data accessible outside the EU/EEA countries it must secure that such Processing is performed under appropriate safeguards and otherwise complies with the statutory requirements regarding the Processing of Personal Data outside the EU/EEA countries.

5.3 When applicable, Filed shall assist the Client to enter into appropriate contractual arrangements with the recipient in a non-EU/EEA country for the transfer of Personal Data to the applicable third countries outside the EU/EEA as adopted and approved by the EU Commission or competent data protection regulatory authority in accordance with applicable Data Protection Laws (“Standard Data Protection Clauses”). Alternatively, the Client may authorise Filed to enter into Standard Data Protection Clauses on its behalf.

5.4 Upon on the Client’s request, Filed shall provide written information about the location(s) in which Personal Data is processed pursuant to this DPA.

6 Security of Processing

6.1 Filed shall always implement and maintain appropriate operational, administrative, physical and technical measures in accordance with common industry practice to protect the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.

6.2 Filed shall ensure that persons authorised to process the Personal Data have committed themselves to appropriate confidentiality or are under an appropriate statutory obligation of confidentiality.

6.3 Filed shall limit access to the Personal Data to personnel on a need-know-basis. The Personal Data and the persons accessing to any data shall be limited to what is necessary in relation to specific Processing activities.

7 Data breaches

7.1 In case of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data (“Data Breach”), Filed shall notify the Client thereof in writing without undue delay after having become aware of it. The notification shall at least: (a) describe the nature of the Data Breach, the affected Personal Data, including the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (b) communicate the name and contact details of a contact point where more information can be directly obtained in case such person is other than the contact person under the Agreement; (c) describe the likely consequences of the Data Breach, in particular to the Personal Data; and (d) describe the measures taken or proposed to be taken by Filed to address the Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.

7.2 Where, and in so far as, it is not possible to provide the information under the Section 7.1 at the same time without undue delay, the information may be provided in several parts within the time limit.

7.3 Upon the Client’s request, Filed shall assist the Client with reasonable effort to document an occurred Data Breach as required by Data Protection Laws.

7.4 Upon the Client’s request, Filed shall assist the Client with reasonable effort in reporting the Data Breach to the supervisory authority and to the data subjects in accordance with the Client’s instructions.

8 Audit

8.1 The Client or another auditor mandated by the Client may, once a year at most, audit the level of the data protection on and appropriateness of the Processing of Personal Data by Filed upon fourteen (14) working days’ prior written notice to ensure the compliance with this DPA and Data Protection Laws.

8.2 The auditor mandated by the Client may not be direct or indirect competitor of Filed. Filed has a right to require the mandated auditor to enter into an appropriate confidentiality agreement prior to the audition.

8.3 Filed shall contribute to the aforementioned audits and make available all information required to complete the audits. The audits shall be performed during the normal working hours and shall not unreasonably disturb the operations of Filed.

8.4 Client shall carry its own costs relating to the audits and shall reimburse Filed for any reasonable costs and expenses that Filed may incur due to any such audit. Before the commencement of any such on-site audit, Client and Filed shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Client shall be responsible.

8.5 The Parties agree that Filed has the right to provide the Client with an audit report covering the data processing and especially the technical and organizational security measures at its own costs. In this case, the Client agrees that the rights to audit Filed have been satisfied and that the Client has no additional rights under this Section 8 to audit Filed provided that a) the audit has been performed by a recognized, independent third party with proven experience in the field; and b) the audit report is no older than twelve (12) months