(1) COPA90 is a producer of football related video and other content. The Client has engaged COPA90 to distribute certain Client content and/or otherwise provide a range of services as more particularly described in the Insertion Order.
(2) These General Terms along with the associated Insertion Order form an Agreement between: COPA90 Ltd (company number 05851891) whose registered office is at 6th Floor, One London Wall, London, EC2Y 5EB and whose trading address is Exmouth House, 3-11 Pine Street, London, EC1R 0JH (“COPA90”); and the legal entity identified on the Insertion Order (the “Client”).
IT IS AGREED AS FOLLOWS:
Definitions & Interpretation
The following terms shall have the corresponding meanings for the purposes of this Agreement:
“Advertising and Content Regulation” means any present or future applicable laws, codes, code of practice, guidance or adjudication including of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice, the Advertising Standards Authority, Ofcom or other delegated authority, together with other relevant laws, statutes and regulations which are directly applicable to the Services;
“Agreement” means the Insertion Order and these General Terms together with all the recitals, clauses, schedules, annexes and all other documents referred to herein;
“Business Day“ means any day other than: a Saturday, Sunday or public holiday in the UK; orany day between 24 December in any year and 1 January in the immediately following year (inclusive);
“Campaign” means any campaign agreed between the parties in relation which COPA90 is to perform Services for the Client, as more fully described in the applicable Insertion Order;
“Campaign Timetable” means the timetable for various obligations of the parties as set out in the Insertion Order;
“Client Materials” means any video, artwork, copy, designs, photographs, brands, logos, character, music, voice over, sound recording, performance or any other material, assets or items, information, formats, concepts or ideas which are or are to be provided to COPA90 by or on behalf of the Client in relation to the Campaign;
“Deliverables” means the required impression, views, reach, engagement, watch time or other results across the Distribution Channels as specified in a Insertion Order;
“Distribution Channels” means the agreed channels (including social media and other websites) via which the Deliverables will be achieved as set out in the Insertion Order;
“Effective Date” means the effective date of the relevant Insertion Order;
“Fees” means COPA90 fees for the relevant Services, including any other identified costs, as set out in the applicable Insertion Order or otherwise agreed in writing;
“Insertion Order” or “IO” means the COPA90 Insertion Order as agreed and signed by the parties containing a description and details of the relevant Campaign;
“Intellectual Property Rights” means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration: any patents or patent applications; any trade marks (whether or not registered); inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; copyright or design rights (whether registered or unregistered); database rights; performer's property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world; any goodwill in any trade or service name, trading style or get-up; and any and all other intellectual or proprietary rights;
“Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses);
“Representatives” means a party’s employees, officers, agents, sub-contractors or authorised representatives;
“Services” means the Services to be supplied by COPA90 under this Agreement as set out in the relevant Insertion Order including the fulfilment of the Deliverables;
“Term” means the period commencing on the Effective Date and ending on the later of the effective date of termination of this Agreement in accordance with the termination provision herein or the completion of the Services;
“Territory” means the territory for the Campaign as set out in the applicable Insertion Order. Publication on globally accessible mediums such as the internet shall be directed and promoted towards the Territory only, but need not be geo-restricted;
In this Agreement, references to clauses, schedules and appendices are to clauses of and schedules to and appendices to this Agreement. Where any provision contained in the schedules or a Insertion Order conflicts with any provision of the General Terms the following order of precedence shall apply: Insertion Order ; schedules; General Terms.
Unless the context otherwise requires: a person includes a legal person (such as a limited company) as well as a natural person; the words “include” and “including” shall be construed without limitation; and any reference to an enactment of legislation includes any subordinate legislation made from time to time under it and is to be construed as references to that enactment as from time to time amended or modified or any enactment replacing it.
The headings in this Agreement are for ease of reference only and shall be disregarded in construing or interpreting the Agreement.
Appointment & Insertion Order
Subject to signing of a relevant Insertion Order relating to a Campaign, and receipt of the Fees, COPA90 shall perform the Services with the objective of fulfilling the Deliverables over the Distribution Channels in accordance with the agreed Insertion Order and these General Terms, and to the extent necessary the Client authorises and licenses COPA90 to use the Client Materials in relation to the Services.
Once a Insertion Order has been signed by both parties, such Insertion Order shall automatically form part of this Agreement.
COPA90 will not be obliged to perform any work on behalf of the Client until the Insertion Order has been signed by both parties.
This Agreement shall commence on the Effective Date of the Insertion Order and shall continue for the Term or until terminated in accordance with clause 11.
Client’s Obligations and Warranties
The Insertion Order will set out full details of the Services to be provided. Notwithstanding this, the Client will give COPA90 clear briefings and ensure that all the facts given are accurate and shall ensure that it, its Representatives and its other suppliers and agencies act in willing co-operation with, and provide reasonable assistance to COPA90.
The Client will comply with the timescales set out for it in the Campaign Timetable and in any event will deliver to COPA90 all Client Materials required by COPA90 or otherwise necessary to provide the Services in a format and technical specification as agreed.
Client is responsible for ensuring that it has all rights and licences in place to enable use by COPA90 of all Client Materials in accordance with this Agreement. Clearance and other costs will be at the Client’s cost.
The Client warrants that:
it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
the Client Materials will not, when used in accordance with this Agreement, infringe third party Intellectual Property Rights, and otherwise are accurate and complete in all material respects;
the Client Materials will contain nothing that infringes the statutory, common law, or other rights, title or interest of any third party, nor contain anything that is libellous, obscene, indecent, illegal, discriminatory, hateful, abusive or confidential;
the Client Materials do not and will not include or incorporate any Virus;
the Client Materials and their use in accordance with this Agreement will comply with all applicable third party and/or Distribution Channel policies and guidelines;
the Client Materials and their use in accordance with this Agreement will comply with all applicable law and all applicable Advertising and Content Regulations.
Client hereby indemnifies COPA90 against any Losses incurred by COPA90 as a result of breach by Client of its warranties and undertaking in clause4.4.
COPA90 is not required to vet or approve Client Materials, however COPA90 reserves the right, but not the obligation to, without any responsibility to the Client, reject, cancel or refuse to distribute any Client Materials that it reasonably considers unsuitable or contrary to the terms of this Agreement and remove, not publish, suspend or change the position of any such materials.
If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such delay or failure prevents COPA90 from performing any Services in accordance with this Agreement, COPA90 will be relieved of its obligations to the Client, and COPA90 shall not be liable for any Losses incurred by the Client as a result of any such delay or failure. Any costs or expenses suffered by COPA90 due to such delay or failure will be charged by COPA90 to the Client in addition to the Fees.
COPA90 Obligations And Warranties
apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services;
keep Client Materials reasonably safe and secure while they are in the possession or control of COPA90; and
use its reasonable endeavours to deliver all Services including fulfilment of the Deliverables over the Distribution Channels in accordance with the Campaign Timetable set out in the applicable Insertion Order or any other delivery date(s) agreed by the parties in writing.
If at any time COPA90 becomes aware that it may not be able to perform the Services or deliver any Deliverables by any date set out in the applicable Insertion Order (or any other deadline agreed by the parties in writing), COPA90 will promptly notify the Client and give details of the reasons for the delay.
In the event the Deliverables are not achieved due to the default of COPA90, COPA90 will at its discretion, either extend the Term to enable further fulfilment of the Deliverables, or adjust the Fees to provide a pro rata discount or refund. This shall be the Client’s sole remedy for failure to fulfil the Deliverables
COPA90's obligations, warranties and liabilities with regard to the Services and other provisions of this Agreement shall not apply to the extent of any non-conformance which is caused by the Client Materials, Client delay or by Client breach of the Agreement.
All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.
Amendments and cancellations
In the event that either party wishes to make any material amendment to a Campaign, any such amendment shall be subject to the agreement of both parties in writing.
Subject to clause 6.3 the Client may, on giving 5 (five) Business Day’s notice, request COPA90 to cancel any Campaign or part thereof, including any plans, schedules or work in progress in respect of any Campaign. COPA90 will take all reasonable steps to comply with any such request provided that COPA90 is able to do so within its contractual obligations to suppliers.
In the event of any cancellation the Client will reimburse COPA90 for all Fees up to the date of cancellation, including in relation to any Fees or costs incurred but not yet invoiced, together with any expenses, costs or third party charges incurred by COPA90 or to which COPA90 is committed, as well as any charges or other expenses or costs imposed on COPA90 by third parties arising from the cancellation, provided that COPA90 shall use reasonable endeavours to mitigate any such third party charges or expenses wherever possible.
The Client will pay COPA90 the Fees which will be invoiced in accordance with the payment schedule set out in the applicable Insertion Order and shall be payable within thirty (30) days of the date of the relevant invoice, or such other period as specified in the applicable Insertion Order.
All sums stated in this Agreement or in any Insertion Order, quotation or estimate exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by the Client at the rate prevailing from time to time.
In the event that the Client fails to make any payment in full when due to COPA90 under this Agreement, then without prejudice to its other rights and remedies under or in connection with this Agreement or otherwise in law, COPA90 shall be entitled to charge the Client interest on such overdue sum at the rate of 4 % above the base rate of Barclays Bank in the UK in force from time to time calculated from the due date up to the date of payment.
If the Client (acting reasonably and in good faith) has a bona fide reason to challenge the validity or accuracy of such invoice, the Client shall:
immediately notify COPA90 in writing of the reason for such withholding;
pay the undisputed part of such invoice in accordance with clause 7.1; and
work promptly and in good faith with COPA90 to resolve any such dispute over the relevant invoice.
If any payment of the Fees is subject to tax (whether by way of direct assessment or withholding at its source), COPA90 shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to COPA90 of the Fees after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
If the Client is overdue with any payment hereunder, then without prejudice to COPA90’s other rights or remedies:
COPA90 shall have the right to suspend performance of the Services on seven (7) days written notice until COPA90 has received payment of the overdue amount together with any accrued interest; and/or
COPA90 shall have the right to terminate the applicable Insertion Order immediately upon seven (7) days written notice to the Client.
Where a surcharge is levied by a supplier against COPA90 due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to COPA90 the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential, including the terms of this Agreement.
Confidential Information shall exclude information which:
at the time of receipt by the recipient is in the public domain;
subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
is lawfully received by the recipient from a third party on an unrestricted basis; and/or
is already known to the recipient before receipt hereunder.
Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.
Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Representatives to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
The Client acknowledges that nothing in this Agreement shall affect COPA90’s right to use as it sees fit any general marketing or advertising intelligence gained by COPA90 in the course of its appointment.
Neither party shall be in breach of this Clause 8 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
Each party hereby indemnifies the other party from and against all Losses arising out of or in connection with the other party’s breach of this Clause 8, including breach by each party’s Representatives.
Subject to clauses 9.2 and 9.3 each party’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the a sum equivalent to the Fees payable under the Insertion Order.
Nothing in this Agreement shall exclude or in any way limit either party’s liability in connection with the indemnity at clause 8.8 (Confidentiality), or the Client’s liability in connection with the indemnity at clause 4.5, (Client indemnities), whether in contract, tort (including negligence) or otherwise.
Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
Subject to clause 9.3, in no event will either party be liable under or in connection with this Agreement for:
loss of actual or anticipated income or profits;
loss of goodwill or reputation;
loss of anticipated savings;
loss of data; or
any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises:
the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
the Indemnified Party gives the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim, save that the Indemnifying party may not conclude settlement of any negotiations and proceedings which may have a material effect (whether financial, practical or in terms of reputation) on the Indemnified party without the Indemnified party’s prior written consent which will not be unreasonably withheld;
the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and
If within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit.
COPA90 shall take out and maintain insurance policies to the value sufficient to meet its liabilities under or in connection with this Agreement. Upon the Client’s reasonable request COPA90 will provide the Client with evidence that such insurance is in place.
Client shall take out and maintain insurance policies to the value sufficient to meet its liabilities under or in connection with this Agreement, including COPA90 as a named insured. Upon the COPA90’s reasonable request Client will provide COPA90 with evidence that such insurance is in place.
The Client may cancel a Campaign subject to clause 6 and payment of all Fees and/or third party charges as referred to in clause 6.
Either party may terminate this Agreement immediately upon written notice to the other party:
under Clause 14.4 (Force Majeure); or
in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or
the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.
Consequences of Termination
Upon termination of this Agreement for any reason:
the Client shall pay COPA90 all Fees if any due to COPA90 (including in accordance with clause 6 where relevant) including during the notice period, including in relation to any Fees or costs incurred but not yet invoiced; and
Subject to clause 12.1 (a) each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and which relate to all affected Campaigns, and shall on the request of the other party certify in writing that the same has been done.
Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement. Notwithstanding the generality of the foregoing, the following clauses shall survive termination of this Agreement: Clause 8 (Confidentiality); Clause Error! Reference source not found.5 (COPA90 warranties); Clause 4 (Client warranties); Clause 9 (Liability); Clause 10 (Insurance); Clause 12 (Consequences of Termination); Clause 13 IP; Clause 15 (Notices);, Clause 19 (Press and PR); and Clause 21 (Governing law and jurisdiction).
All Intellectual Property Rights in the Client Materials will remain owned by the Client, and COPA90 acquires no rights beyond the limited licence necessary to provide the Services.
The Intellectual Property Rights or other rights or ownership of the distribution channels, fans, data, know how, statistics, learnings and other information derived from the Service will, as between the parties, be the property of and exclusively owned by COPA90, unless otherwise specified in the Insertion Order.
Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”).
Force Majeure Events shall include but not be limited to the following events affecting either party or its Representatives:
strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of any Representatives of the party seeking to rely on the Force Majeure Event);
civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for military action or terrorist attack;
fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster;
impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
restrictions imposed by or actions or delay of local governments, authorities, governing bodies, border agencies or other agencies, bodies or authorities and/or
compliance with any law or governmental order, rule, regulation or direction.
The party whose performance is affected by a Force Majeure Event shall, as soon as reasonably practicable after becoming aware of the Force Majeure Event, provide a written notice to the other party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.
If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding one (1) month, the non-affected party shall have the right to terminate this Agreement immediately on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party, and copied to the in the case of COPA90: Damien Macaulay, CFO; and in the case of the Client: General Counsel / Head of Legal.
The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:
Deemed delivery date and time
Delivery by hand.
On signature of a delivery receipt.
Pre-paid first class recorded delivery post or other next working day delivery service providing proof of postage.
9.00 am on the second Business Day after posting.
Pre-paid airmail providing proof of postage.
9.00 am on the fifth Business Day after posting
For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
A notice given under this Agreement is not valid if sent by e-mail or fax.
Assignment and Sub-Contracting
COPA90 shall be entitled to sub-contract its performance of the Services and sub-licence any rights or permissions, provided that any sub-contracting or sub-licencing shall not relieve COPA90 from its obligations to the Client under this Agreement
Neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party.
Third Party Rights
Other than the Client to whom COPA90 has provided Services as identified in an applicable Insertion Order, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”)
Shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;
Shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;
Shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement;
shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under this Agreement which are at least equivalent to those imposed on COPA90 in this clause.
Press and PR
Neither party shall make or issue any announcement or public circular relating to the subject matter of this Agreement without the prior written approval of the other.
Notwithstanding the above, COPA90 shall be able during and after the Term be permitted to use the Client’s name and logo for the purposes of promoting its work and its business including on COPA90’s website, in credentials pitches and in its showreel. Any other use by COPA90 shall be subject to the Client’s prior approval.
The failure of either party to enforce or exercise at any time any term or any right under this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s later right to enforce or to exercise it.
If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing, along with any purchase order issued by the client at any time.
Each of the parties acknowledges and agrees that:
in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and
its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
No modification or variation of this Agreement shall be valid unless it is in writing and signed by each of the parties to this Agreement. Unless expressly set out in this Agreement, no modification or variation of this Agreement shall:
be construed as a general waiver of any provisions of this Agreement; or
affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver. The rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with this Agreement (save in respect of enforcement of judgments where their jurisdiction shall be non-exclusive).