1 ADKNOWLEDGE ASIA ADVERTISER MASTER TERMS AND ...

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ADKNOWLEDGE ASIA ADVERTISER MASTER TERMS AND CONDITIONS 1. Introduction. These Master Terms are entered into by Adknowledge and the business, company or other entity that agrees to these Master Terms, and set forth the terms and conditions upon which Adknowledge will deliver Campaigns (if applicable, as set forth in an Insertion Order or an Addendum) and/or Advertiser or Agent (if applicable) may access the Platform. These Master Terms are applicable to and shall bind Adknowledge, Advertiser, and, if applicable, Agent in all Campaigns. Capitalized words used in these Master Terms shall have the meanings ascribed to them in Section 2 below. 2.

Definitions.

(a) “Action” means an act or event by a third party upon which Advertiser’s payment obligation may be based, as set forth in this Agreement. (b) “Ad Unit” means an advertising unit provided by Advertiser or an Agent on behalf of an Advertiser. (c) “Addendum” means an addendum that is attached to these Master Terms or that is otherwise agreed to in writing between the parties and that incorporates these Master Terms by reference. (d) “Adknowledge” means Adknowledge Asia Pacific Pte. Ltd. (Company Registration No. 201405137H), a company incorporated in the Republic of Singapore. (e) “Advertiser” means the business, company or other entity that engages the services of Adknowledge or accesses the Platform under this Agreement, either directly or indirectly through an Agent. (f) “Advertising Content” means the Ad Unit and/or content, applications, products, and/or services associated with the Campaign, including but not limited to the content and operation of any Web pages. (g) “Agent” means an advertising agency acting on behalf of Advertiser. (h) “Agreement” means the Insertion Order, these Master Terms, any applicable Addendum and, and any supplemental terms agreed to by Adknowledge and Advertiser. (i) “Authorized User” means an Advertiser employee, or other person authorized by Adknowledge to access the Platform. (j) “Campaign” means (i) the delivery of an Ad Unit by Adknowledge from time to time pursuant to an Insertion Order or an Addendum, and/or (ii) the delivery of users to the Advertising Content under this Agreement including, but not limited to, Web pages and through Advertiser’s use of the Platform. (k) “Confidential Information” means any information disclosed by either party to the other party that is designated as “Confidential,” “Proprietary,” or some similar designation. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within one hundred and twenty (120) days after the oral disclosure. Confidential Information does not include information that the receiving party can document (i) is or becomes (through no improper action or inaction of the receiving party or its Representatives) generally known by the public, (ii) was in its possession or known by it without restriction prior to receipt from the other party, (iii) is independently developed by the receiving party without use of or reference to the Confidential Information of the other party, or (iv) becomes available to it from a source other than the other party or its Representatives having no obligation of confidentiality. (l) “Consumer Data” means consumer-related data collected or provided by Advertiser under this Agreement, which may include, but not be limited to, email address.  

 

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(m) “CPA” means cost per action. (n) “CPC” means cost per click. (o) “CPI” means cost per install. (p) “CPM” means cost per thousand impressions. (q) “Install” means an installation of an application by a third party upon which Advertiser’s payment obligation may be based, as set forth in this Agreement. (r) “Insertion Order” means a signed insertion order or statement of work agreed to in writing between Advertiser and Adknowledge that incorporates these Master Terms by reference. (s) “Law” means applicable laws, rules, regulations, treaties, and statutes. (t) “Master Terms” means these Adknowledge Asia Advertiser Master Terms and Conditions. (u) “Media Spend” means all amounts spent and owed to Publishers each calendar month for Campaigns. (v) “Network” means Adknowledge or third party distribution networks which may include, but not be limited to, Facebook and Twitter. (w) “Platform” means the advertising optimization system provided by Adknowledge under this Agreement which allows Ad Units and Campaign details to be implemented on the Network. (x) “Platform Fees” means the Platform fees set forth in an Insertion Order for Advertiser’s access to the Platform. (y) “Privacy Policy” means a privacy policy that complies with Law, that is prominently available to users, and that contains the following: (i) a description of the use of advertising technology relating to data collection and targeting activities, (ii) a description of the collection and use of user data by Advertiser and third parties, (iii) a description of the provision of user data to third parties, and (iv) a free, functioning, easy to use “opt-out” or “unsubscribe” method for users to opt-out of data collection. (z) “Publisher” means the owner or operator of the Network on which a Campaign is delivered. (aa) “Representatives” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees. (bb) “Taxes” means any government-imposed taxes or charges imposed on Advertiser pertaining to the performance of this Agreement, including but not limited to value added, sales, use, withholding, and excise taxes. 3.

Platform Use and Campaigns.

(a) Advertiser may use the Platform to run Campaigns or direct Adknowledge to run Campaigns which have been approved by Advertiser pursuant to this Agreement. Ad Units shall generally be displayed across the Network. (b) Adknowledge reserves the right to approve, reject, cancel or remove any Advertising Content, URL link, or website to which Advertising Content is linked at any time for any reason whatsoever and Adknowledge, its employees, consultants and other agents shall have no liability for such decisions. Advertiser acknowledges and agrees that Adknowledge does not control Ad Unit placements, and cannot guarantee any particular Ad Unit placement or its physical positioning on any Network, website or application. Adknowledge does not guarantee that the Advertising Content will be available or displayed and Advertiser understands that Adknowledge reserves the right to not place Ad Units.

 

 

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(c) In certain cases, when selecting certain optimization models in the Platform, Adknowledge will automatically modify bids (such as, but not limited to, CPC, CPM, CPI and CPA bids) on the Network to work towards the optimization goal defined by Advertiser. Advertiser is responsible for paying all costs to the applicable Network related to such bid changes, subject to any maximums specified in an Addendum, Insertion Order or the Platform. Advertiser is required at all times to allow Adknowledge to access the associated Advertiser account on the applicable Network where the Ad Units are being created. Advertiser shall not, at any time, disable this permission unless the account has been officially closed. Advertiser must have and maintain a current and paid-up applicable Network advertising account in order to use the Platform. (d) Advertiser shall access and use the Platform strictly in accordance with any and all guidelines provided by Adknowledge. Advertiser shall allow only Authorized Users to access the Platform. Advertiser acknowledges that access to the Platform is through a unique user name and password that is individual to each Authorized User. In no event may a user name or password be used by anyone other than an Authorized User. Advertiser shall safeguard its usernames and passwords and shall be solely responsible for all acts and omissions of Authorized Users. Advertiser shall notify Adknowledge immediately if it becomes aware of any unauthorized use of any user name, password, the Platform or any other known or suspected security breach. (e) Adknowledge may from time to time offer the products and services of third parties to Advertiser through reseller arrangements. If Advertiser elects to receive such products or services, Advertiser acknowledges and agrees that: (i) prior to receiving such products or services, it may be required to sign a separate document (e.g., an Insertion Order, Addendum or order form) with Adknowledge setting forth the nature and pricing for such products and services, and that such document may contain additional terms and conditions required by Adknowledge; and (ii) it may be required to sign an additional agreement with the third party provider of such products or services. (f) THE PLATFORM AND ADKNOWLEDGE’S SERVICES ARE SUBJECT TO PERIODIC UPDATING, WHICH MAY RESULT IN INTRODUCTION, WITHOUT NOTICE, OF NEW DISTRIBUTION NETWORKS AND/OR ELIMINATION OR MODIFICATION OF EXISTING NETWORKS, AND CERTAIN PRODUCT OFFERINGS MAY BE CPA OR CPC BASED, NOTWITHSTANDING A DIFFERENT MODEL FROM SOME OR ALL OF THE OTHER PRODUCTS IN THE SAME NETWORK. SUCH MODIFICATIONS MAY HAVE AN ADVERSE IMPACT ON THE QUALITY OF CLICKS, ACTIONS, IMPRESSIONS, INSTALLS, OR OTHER PAYABLE EVENTS. ADKNOWLEDGE RESERVES THE RIGHT TO DISCONTINUE THE PLATFORM OR ANY PART THEREOF AT ANY TIME. 4.

Payment.

(a) Unless otherwise set forth in an Insertion Order, (i) the Platform Fees are due and payable on the first day of each thirty (30) day period during the term of this Agreement, and (ii) all other fees and charges are due and payable within thirty (30) days from the date of invoice. The amounts owed are measured by tracking reports prepared by Adknowledge, and Advertiser understands and agrees that such reports shall be sole measure of the amounts owed. Advertiser shall pay for all charges in US Dollars, unless otherwise agreed in writing by Adknowledge. If Advertiser is paying by credit card, Advertiser  

 

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    hereby authorizes Adknowledge to charge the Platform Fees, in advance, on or about the first day of each thirty (30) day period during the term of this Agreement on an automatic, recurring basis to the credit card on file provided by Advertiser through the Platform. If Adknowledge offers to provide Advertiser with a free trial use of the Platform and Advertiser agrees to such, Adknowledge will make the Platform available for use by Advertiser on a limited trial period, at no charge, until the earlier to occur of (i) the end of the free trial period offered by Adknowledge, or (ii) the start date of any paid use of the Platform agreed to by Advertiser. Upon expiration of the trial period, Advertiser agrees to pay Adknowledge the Platform Fees as set forth above in this Section 4(a). If Advertiser is unable to charge Advertiser’s credit card, Adknowledge may, in its sole discretion and in addition to any other remedies available to it under this Agreement and any and all Laws, suspend or terminate Advertiser’s account. Advertiser shall be responsible for the payment of any and all charges incurred by Adknowledge from any credit chargeback due to improper credit card information provided to Adknowledge. Adknowledge may, in its sole discretion, extend, limit, revise, or revoke credit terms to Advertiser, which may include, but not be limited to, requiring a parent guaranty. (b) Unless otherwise set forth in an Insertion Order or an Addendum, Advertiser shall be responsible for paying each Publisher directly for the Media Spend and other applicable amounts payable to the Publisher. Additionally, Advertiser shall pay Adknowledge the Platform Fees, and any and all other agreed fees and charges. Except as otherwise expressly set forth in these Master Terms, an Insertion Order, or an Addendum, payment obligations are non-cancelable and fees and charges paid are nonrefundable. The Platform Fees and other fees and charges may be changed or modified from time to time by Adknowledge, in Adknowledge’s sole discretion, upon notice to Advertiser; provided, however, that (i) Adknowledge will provide Advertiser with at least ten (10) days’ prior notice (email sufficing) of any such change or modification, and (ii) if Advertiser does not agree to any such change or modification, Advertiser may terminate this Agreement by giving written notice to Adknowledge within ten (10) days after notice of such change or modification from Adknowledge. Any additional services performed by Adknowledge under this Agreement will be subject to a separate fee or charge, as set forth in an Insertion Order or an Addendum. (c) Advertiser understands and agrees that if Advertiser is past due in payments owed to Adknowledge under this Agreement, (i) such past due payments shall accrue interest at the rate of 1.5% per month or the highest rate permitted by Law, less, (ii) all costs of collection, including but not limited to reasonable legal fees, court costs and related expenses, shall be borne by Advertiser, and (iii) Adknowledge may offset that amount from any payment otherwise owed by Adknowledge or any parent, subsidiary, or affiliate of Adknowledge to Advertiser or any parent, subsidiary, or affiliate of Advertiser. Advertiser is responsible for and shall pay all Taxes in connection with Advertiser’s performance hereunder. Advertiser acknowledges that where any Insertion Order contains staged payments and any such payment is overdue, Adknowledge is not required to continue to perform the Services until all payments due are paid up to date. (d) If Advertiser selects a CPC-based Network, payment obligation is based solely on the number of clicks and redirects multiplied by the amount Advertiser bids to pay for each click or redirect and not Advertiser’s ability to convert clicks or redirects to sales, registrations or other user actions.

 

 

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(e) If Advertiser selects a CPA or CPI-based Network, Advertiser shall pay Adknowledge the CPA and/or CPI amount agreed by Advertiser for each Action and/or Install recorded by tracking pixel. Advertiser understands that it must place the tracking pixel and that Adknowledge is not responsible for such placement. Advertiser shall (i) pay for each fired pixel (e.g., even if Advertiser later determines the pixel was not placed on the appropriate page), and (ii) be responsible for any tracking error which occurs as a result of Advertiser’s action or inaction in performance of this Agreement (by way of example and not by way of limitation, if Advertiser accidentally causes a pixel to activate or otherwise confirm a transaction, it shall be liable to pay for each resulting action). With respect to payments for CPA-based lead generating services, an invalid lead shall be a lead generated with: (i) inaccurate personal information; (ii) personal information which cannot be confirmed; (iii) inaccurate credit card information; or (iv) a bot, script or any means other than a living human being with a bona fide intent to provide data about him or herself. (f) If Advertiser selects a CPU or CPV-based Network, Advertiser shall pay Adknowledge the CPU and/or CPV amount agreed by Advertiser for each user and/or view recorded. If Advertiser selects a CPM-based Network, Advertiser shall pay Adknowledge the CPM amount agreed by Advertiser for each impression. (g) Payments due under this Agreement are exclusive of Taxes, unless otherwise agreed in writing by Adknowledge. (h) Any Advertiser demand for a chargeback, credit or refund for any charges under this Agreement must be tendered in writing to Adknowledge (i) for prepaid accounts and payments made by a credit card auto-payment feature, within thirty (30) days after the end of the calendar month in which the charge occurred, (ii) for invoiced accounts, within thirty (30) days after the date of invoice, or (iii) if applicable, the period specified in the respective Addendum or Insertion Order. Any demand for a chargeback, credit or refund may be investigated by Adknowledge, and Adknowledge shall not be obligated to issue a chargeback, credit, or refund after the period referenced in the immediately-preceding sentence. Adknowledge may issue to Advertiser a credit or refund, as it deems appropriate in its sole discretion. 5. Representations and Warranties. Advertiser is responsible for the Advertising Content and any and all liabilities, losses, costs, claims, and expenses arising out of or relating to the Advertising Content. Advertiser represents and warrants that: (a) it is a business duly organized and in good standing in its jurisdiction of organization, and has full power and authority to execute and be fully bound by the terms of this Agreement; (b) it has the right and authority to permit the use, reproduction, distribution, and transmission of the Advertising Content; (c) the Advertising Content, at all times during the term of this Agreement, (i) is factually accurate, (ii) does not contain any fraudulent or deceptive materials, and (iii) does not contain any material which misrepresents or defames any individual or group, or any material which discriminates against persons on the basis of age, color, national origin, race, religion, gender, sexual orientation, handicap, or other prohibited basis; (d) the Advertising Content, at all times during the term of this Agreement, does not promote or make claims that are not easily provable, and does not falsify the Ad Unit or message being communicated; (e) the use, reproduction, distribution, or transmission of the Advertising Content does not and will not (i) violate any Law, codes governing standards of practice, or industry best practices, (ii) infringe, dilute, misappropriate or otherwise violate any rights of any third

 

 

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    party, including but not limited to, any copyright, patent, trademark, trade secret, or other proprietary or property right, or constitute false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or any other right of any person or entity; or (iii) violate any applicable Publisher terms, conditions, terms of service, rules, regulations, policies, guidelines or other requirements; (f) Advertiser is not in violation of any obligation, contract, agreement, or law, by entering into this Agreement, by performing its obligations hereunder, or by authorising and permitting Adknowledge to perform its services hereunder (g) if the Advertising Content is subject to any specialized Law(s), Advertiser is a member, duly licensed and in good standing, in its regulated community, fully expert in and compliant with such Law(s); (g) Consumer Data shall comply with all applicable terms of service, Laws, and codes governing the collection and use of such Consumer Data; (h) Consumer Data shall only be collected by Advertiser according to the terms of a Privacy Policy; and (i) Advertiser shall not tender Consumer Data to Adknowledge absent Advertiser’s express right and Adknowledge’s express request for the same. 6. Confidential Information. (a) Each party agrees that it shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the Confidential Information of the disclosing party. The obligations of each receiving party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and generally available through no action or inaction of the receiving party. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use. Adknowledge Confidential Information includes, without limitation, this Agreement, the Platform, the Campaign and all information related to Campaigns (including, but not limited to, Campaign terms, reports, and Adknowledge’s fees) and the Platform, and information pertaining to Adknowledge’s Publishers and other advertisers. (b) Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement and may only provide such Confidential Information to its Representatives who “need to know” such Confidential Information and who have provided written assurance sufficient to ensure such Representatives’ compliance with, or are otherwise obligated to honour, the terms of this Agreement, or as required by Law (provided prompt notice of such required disclosure is provided to the disclosing party prior to disclosure where permissible). (c) The parties agree and understand that a material breach of this Section 6 may cause the nonbreaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement.

 

 

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    7. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, ADKNOWLEDGE WILL NOT BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE OR DATA IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF ADKNOWLEDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL AGGREGATE LIABILITY FOR ADKNOWLEDGE ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY ADVERTISER TO ADKNOWLEDGE FOR THE ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. EACH PARTY ACKNOWLEDGES THAT IT HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. ADVERTISER SHALL NOT HOLD ADKNOWLEDGE OR ITS AFFILIATES LIABLE OR RESPONSIBLE FOR THE ACTIVITIES OF VISITORS WHO COME TO ADVERTISER’S WEBSITE(S) THROUGH A LINK PROVIDED FROM ADKNOWLEDGE, THE NETWORK, OR AN ADKNOWLEDGE PUBLISHER. 8. Indemnity. Advertiser shall defend, indemnify and hold Adknowledge, and its directors, officers, employees, representatives, publishers, agents, parents, and subsidiaries harmless from and against any judgment, loss, liability, cost, damage, or expense (including reasonable attorneys’ fees) arising out of a third party claim relating to (i) any breach of this Agreement by Advertiser, (ii) the Advertising Content, or (iii) any act or omission by Advertiser. Any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) that is subject to the indemnification obligations set forth herein shall be subject to the prior written approval of Adknowledge, in its sole reasonable discretion, if such settlement or resolution results in any further obligation or liability for Adknowledge. 9. Disclaimer of Warranties. OTHER THAN AS EXPRESSLY STATED HEREIN, THE PLATFORM AND THE SERVICES PROVIDED BY ADKNOWLEDGE, THEIR USE, AND THE RESULTS OF SUCH ARE PROVIDED ON AN “AS-IS,” AND “AS AVAILABLE” BASIS. OTHER THAN AS EXPRESSLY STATED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADKNOWLEDGE SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (A) THE NETWORK AND THE FUNCTIONALITY OR AVAILABILITY OF THE NETWORK, (B) THE NUMBER OF PERSONS WHO VIEW OR CLICK ON ADVERTISING CONTENT, (C) ANY BENEFIT THAT MIGHT BE OBTAINED FROM HAVING ADVERTISING CONTENT ADVERTISED HEREUNDER, (D) THE QUALITY OF CLICKS, ACTIONS, IMPRESSIONS, OR INSTALLS DELIVERED OR HOW MUCH OF A LISTING IS DISPLAYED ACROSS THE NETWORK, AND (E) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE PLATFORM AND SERVICES PROVIDED BY

 

 

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    ADKNOWLEDGE HEREUNDER. FURTHER, ADKNOWLEDGE DOES NOT GUARANTEE ANY RETURN ON INVESTMENT. 10.

Term and Termination.

(a) The term of this Agreement begins on the date Advertiser’s application to open an advertising account with Adknowledge is accepted by Adknowledge and continues for twelve (12) months thereafter, unless otherwise terminated pursuant to the terms hereof, and will automatically renew for successive one-year periods, unless otherwise terminated pursuant to the terms hereof. (b) Either party may terminate these Master Terms (along with all Insertion Orders and Addenda) (i) upon at least ninety (90) days prior written notice to the other party, or (ii) immediately upon written notice to the other if (1) the other party materially breaches any provision of this Agreement and fails to cure the breach, if such is a curable breach, within five (5) days after notice thereof, or (2) the other party becomes insolvent or files a voluntary or involuntary petition in bankruptcy, a receiver is appointed for the assets of the other party, or the other party makes an assignment for the benefit of creditors. Additionally, Adknowledge may terminate an Insertion Order or an Addendum upon two (2) business days’ prior written notice to Advertiser. If this Agreement is terminated by Advertiser in accordance with Section 10(b)(ii), Adknowledge will refund any prepaid fees and charges covering the remainder of the term of the Agreement, after the effective date of termination. If this Agreement is terminated by Adknowledge in accordance with Section 10(b)(ii), Adknowledge will not refund any prepaid fees or charges. Advertiser shall remain responsible for the payment of any and all fees and charges payable by Advertiser prior to the effective date of termination of this Agreement. (c) Failure by Advertiser to submit an Ad Unit for more than a year for a Campaign may result in termination of Advertiser’s account at Adknowledge’s option, which if exercised constitutes termination of this Agreement by Adknowledge, with no obligation to provide notice. Notwithstanding anything to the contrary in this Agreement, for any prepaid accounts, any amount remaining in Advertiser’s account under US$75 after termination or expiration of this Agreement and deduction of any non-refundable deposit shall be forfeit to Adknowledge; Adknowledge’s sole obligation shall be to mail one check to the last known address of Advertiser for any greater amount. 11. Intellectual Property. Advertiser shall not modify, reverse engineer, reverse assemble or reverse compile the Platform or any other intellectual property or other information (whether oral, written, tangible or intangible) made available to Advertiser under this Agreement. Advertiser shall not distribute, sell, rent, lease, sublicense or transfer the Platform or any other intellectual property made available under this Agreement to any third party, or otherwise allow direct or indirect use of the Platform or any other intellectual property made available under this Agreement by any third party. Advertiser shall only use the Platform and any other intellectual property made available under this Agreement as expressly permitted herein. Advertiser shall not use the Platform or any other intellectual property made available under this Agreement for any unauthorized or competitive purpose, including, without limitation, to develop a competitive product. Advertiser shall not remove, modify or obscure any Adknowledge intellectual property or other proprietary rights notices that appear in the Platform or any other intellectual property made available pursuant to this Agreement. Adknowledge reserves all right, title, interest and ownership in the data collected by Adknowledge through the Platform, and Adknowledge may disclose  

 

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    such data, which may include, but not be limited to, aggregate statistics about the Platform, trends, and demographics; provided, however, that such disclosure does not specifically identify Advertiser without Advertiser’s prior approval. 12. Agent. If these Master Terms are entered into by an Agent, Agent represents and warrants that it has the power and authority as Advertiser’s agent to bind Advertiser to this Agreement, and that all of Agent’s actions related to this Agreement will be within the scope of such agency. Agent agrees to use commercially reasonable efforts to collect and clear payment from Advertiser on a timely basis. Agent acknowledges and agrees that Adknowledge may seek payment directly from Advertiser if Adknowledge has not received payment in a timely manner.   13. Survival of Obligations. This Agreement may expire or terminate as described herein. The terms of Sections 1, 2, and 6 through 21 of these Master Terms shall survive any termination or expiration of this Agreement, together with Advertiser’s obligation to make payments to Adknowledge under this Agreement for services rendered before the date of termination or expiration. 14. Publicity. Advertiser grants Adknowledge a limited, revocable, fully-paid, royalty-free, worldwide right and license to display Advertiser’s logo in promotional material to identify Advertiser as a customer of Adknowledge. Additionally, Adknowledge may reference Advertiser in a general press release which does not reveal any specific terms or conditions of this Agreement, depicting Advertiser’s corporate logo, publicizing the fact that an agreement has been executed. Any other public statement or press release referencing the name or trademark of a party shall only be made upon the express prior written consent of such party. 15. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties, with respect to the subject matter hereof. Neither party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties. If there is any conflict between the terms of these Master Terms, an Addendum, and any Insertion Order, the order of priority for resolution of the conflict shall be the Insertion Order followed by the applicable Addendum, followed by the Master Terms. Except as otherwise agreed in writing signed by a duly authorized representative of Adknowledge, Adknowledge expressly rejects any and all terms, conditions and provisions provided by Advertiser that are supplemental to, or otherwise related to, this Agreement including, but not limited to, any standard terms and conditions of Advertiser and any Advertiser insertion order. 16. Choice of Law and Venue. This Agreement shall be interpreted and enforced in all respects under the laws of the Republic of Singapore. The parties agree to submit to the exclusive jurisdiction of the Singapore courts. 17. Force Majeure. Except as otherwise expressly stated in this Agreement and except for payment obligations, the parties shall not be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of

 

 

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    the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone. 18. Waiver. Failure by a party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions. 19. Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision. 20. No Rights under Contracts (Rights of Third Parties) Act. A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act (Cap 53B) to enforce any of its terms. 21. Miscellaneous. Advertiser agrees that data which Advertiser provides about itself may be used and processed in the United States of America. Adknowledge is an independent contractor and not an agent, representative, partner or joint venture partner of Advertiser. Any rights under this Agreement may only be waived by an agreement executed by the parties. Adknowledge may amend or modify this Agreement by posting such in the Platform or by email notice to Advertiser and Advertiser’s continued use of the Platform after notice of such amendment or modification shall be deemed Advertiser’s acceptance of the amendment or modification. Except as permitted by the immediately preceding sentence, this Agreement may only otherwise be amended or modified by an agreement executed by Adknowledge and Advertiser. Advertiser shall not assign or delegate this Agreement or any right, duty or obligation hereunder, in whole or in part, and any such attempt is void. Notices to Adknowledge under this Agreement shall be transmitted via courier to: Adknowledge Asia Pacific Pte. Ltd., 30 Raffles Place, Level 17, Chevron House, Singapore 048622.

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