ADVERTISERS TERMS & CONDITIONS
This terms and conditions and any Insertion Order, whether expressly provided herein or incorporated by reference (collectively, the ‘Agreement’) constitute the entire and exclusive agreement between EBS MEDIA LIMITED (hereinafter referred to as ‘ADAttract’) and the company (hereinafter referred to as ‘Advertiser’).
Who further collectively referred to as ‘Parties’, separately as ‘Party’ mentioned above.
The Parties agree as follows:
Any reference to ‘writing’ or similar expressions includes a reference to facsimile transmission as well as e-mail and other electronic communication which is capable of being printed by the recipient and other present and future comparable means of communication.
- ‘Advertiser’ means one or more clients of ADAttract who produce the advertising materials, authorize ADAttract as its intermediary to implement one or several campaign(s), and acquire traffic, actions or sales through ADAttract and ADAttract’s publisher
- ‘Advertising Materials’ includes but not limited to logos, pictures, texts, video, banners, landing pages, artwork, copy, or active URLs and creatives of campaign.
- ‘Product’ means the application or online service platform (website, etc.) which is wholly-owned by or licensed to Advertiser.
- ‘Campaign (Service)’ means the activities carried out by ADAttract for Advertiser on the basis of this Agreement, which mainly consist of placing and promoting the banner and landing pages of product by Advertiser, also includes other activities aiming at promoting the product as well as any required web marketing consulting
- ‘IO (Insertion Order)’ means document to clarify and describe the business details issued by Advertiser to ADAttract from time to time. This Agreement shall be accompanied with several IOs and each such IO shall be the part of this Agreement.
- ‘ADAttract Advertising Platform’ means ADAttract’s proprietary mobile platform located at http://affiliates.adattract.com and any service, software and/or features available therein which enable Advertiser to promote and distribute products.
- ‘CPA’ means deliverables sold on a cost per acquisition / action basis.
- ‘CPB’ means deliverables sold on a cost per billable acquisition / action basis.
- ‘CPS’ means deliverables sold on a cost per sale basis.
- ‘CPL’ means deliverables sold on a cost per lead basis.
- ‘CPI’ means deliverables sold on a cost per install basis.
- ‘CPD’ means deliverables sold on a cost per download basis.
- ‘CPC’ means deliverables sold on a cost per click basis.
- ‘CPM’ means deliverables sold on a cost per 1000 impressions basis.
- ‘Intellectual Property’ means rights, title and interest to and in any discovery, development, invention, patent, including application for the grant of such right, improvement, design (whether registered or unregistered), process, formula, method, database, information, drawing, code, computer program, copyright work or any work of authorship (present and future), semiconductor or other topography, trade mark (whether registered or unregistered) or trade name or get-up/trade dress.
- ‘Business Day’ means a day other than Saturday, Sunday or public holiday in People’s of Hong Kong.
- Formation of the Agreement
3.1 The Agreement sets forth the terms and conditions under which ADAttract shall represents Advertiser and provide service to Advertiser.
3.2 Any Other terms, conditions, performance criteria, guarantees or prior representations, warranties, whatsoever (whether written or oral), irrespective of the timing, shall be of no effect unless otherwise is provided herein.
Any modification to the Agreement shall be of no effect unless expressly specified in Insertion Order in writing and signed by both of Parties or respective authorized representatives of the Parties.
- This Agreement supersedes all previous discussions and agreements of the Parties (or their subsidiaries or parent companies) with respect to the subject matter of this Agreement.
- Provision of Service
- Subject to the terms and conditions, during the term of this agreement, ADAttract shall have the right (but not the obligation) to distribute and promote product, which is determined by ADAttract at its sole
- ADAttract shall be entitled to authorize ADAttract’s publisher(s) which has the according qualifications and licenses to publish advertising materials provided by Advertiser and the reconsignment shall not need the separate permission or authorization of Advertiser.
- ADAttract shall have the right, at its sole discretion, to remove any advertising material from ADAttract Advertising Platform at any time (as applicable), with or without notice, if: (a) ADAttract receives a complaint from any person or entity regarding any such advertising material; (b) ADAttract reasonably believes that displaying any such advertising material will have an adverse impact on ADAttract Advertising Platform and/or its reputation or business; (c) the advertising material is in breach of any applicable law, rule or regulation, or industry best practices; (d) the advertising material is in violation of any terms and conditions of this Agreement; or (e) the advertising material which results in the infringement of any third party’s right.
ADAttract shall not be liable for any damages or costs resulting from the removal of any such Advertising Material.
- Advertiser may request, by a written notice, that ADAttract suspends the distribution of any Product within three (3) business days and/or modifies any Advertising Material or any restrictions within 48 hours from receipt of such notice (the ‘Notice Period’).
4.5 ADAttract grants Advertiser a revocable, non-transferable, non-exclusive limited license to use ADAttract Advertising Platform and any data, reports, information or analysis arising out of such use solely for the purposes set forth in this Agreement.
- ADAttract’s approval of Advertiser’s participation and use shall be withheld or terminated at any point at ADAttract’s sole discretion, regardless of initial acceptance in accordance with this Agreement.
- Advertiser grants ADAttract a non-exclusive, transferable, irrevocable right to use the advertising materials for the sole purpose of advertising campaign set forth in the Insertion Order and the Agreement. Except as expressly specified herein, ADAttract shall not be granted any other rights and interests of advertising materials and trademarks, service marks, copyrights, patents or trade secrets of Advertiser
- ADAttract shall not be permitted to use any materials except for advertising materials provided by Advertiser, and alter, modify, manipulate or create derivative works of the links or any creative, copy or other materials owned by, or licensed to Advertiser in any way.
- All self-made creatives, texts, pre-landers or other own made materials for promotion of these products and derivatives shall be submitted to Advertiser to obtain prior approvals. If Advertiser fails to file any objection in writing in 2 business days, all creatives and materials made by ADAttract shall be deemed to obtain approvals.
- Advertiser shall provide all advertising materials to ADAttract at least 5 business days before the advertisement is published. ADAttract shall not be liable for any delay or cancellation of the advertisement release, provided such delay or cancellation is caused by Advertiser’s failure to provide the Advertising Materials in accordance with this Agreement.
- Tracking data, Payment and Payment Liability
- Advertiser shall start the verification of tracking data with ADAttract in writing and shall finish the verification within the first 15 days of each calendar month. If the conversion report is provide by the Advertiser and the discrepancy as to the data exceeds 5%, the Parties shall check and negotiate to decide the final number. If the Parities fail to finish the verification, or if there is any dispute about the related data and the dispute cannot be resolved within the first 15 days of each calendar month, REGARDLESS OF WHETHER ADVERTISER AGREES OR NOT, ADAttract’ s calculation of the billing amount shall be final, conclusive and binding on Advertiser.
- Invoice shall be issued by ADAttract monthly after the service is offered. Credit term shall be 30 days after the date of invoice. All payments due hereunder are in U.S. dollars.
- Advertiser shall pay the invoice by bank transfer as per the information given by ADAttract. Relevant expenses regarding the payment such as bank fees shall be individually paid by each Party.
- If the Advertiser delays its payment to ADAttract under the Agreement, Advertiser shall be charged a penalty interest of 0.05% of the overdue amount for every delayed day. In addition the Advertiser is obliged to indemnify ADAttract any damages caused by the delay and reimburse the costs of collecting the debt (including the costs of legal assistance, costs of submitting an extra-judicial claim and court expenses).
- If the Advertiser has made a prepayment and at the end of the validity of the Agreement, it appears that the Advertiser has spent for ADAttract service less than the Advertiser has prepaid. In such a case the Advertiser is entitled to ask for a refund within 30 days after the termination of the Agreement. Before refunding, ADAttract shall finalize all not invoiced spending and make necessary adjustments where needed. After finalizing all current statistics, Advertiser’s unused balance will be refunded to the Advertiser at Advertiser’s request, minus ADAttract’ s costs and fees, within 30 days.
- If ADAttract has an outstanding balance due to Advertiser under this Agreement or any other agreement between Advertiser and ADAttract, Advertiser agrees that it shall not offset any such amounts due to ADAttract from amounts payable to Advertiser under this Agreement without the prior written approval of ADAttract.
- The Parties agree that any taxes imposed on a Party by any governmental authority in connection with the execution and performance of this Agreement shall be paid by that Party. If any withholding tax is imposed by any relevant tax authority with respect to any sums due to ADAttract, then such sum will be paid to ADAttract, and Advertiser shall pay such with withholding tax to the relevant authorities and provide ADAttract with a copy of tax receipts.
- Fraud and Quality Report
- ADAttract is expressly prohibited from using any persons, means, devices or arrangements to commit fraud in order to increase the number of clicks, downloads, or obtain any required information etc. Such acts include but not limited to using automated means, spyware, steal ware, cookie-stuffing or any other deceptive acts that cause harm to Advertiser (collectively, ‘Fraud’).
- In order to detect and prove ADAttract’ s fraudulent activities, the Advertiser shall deliver ADAttract a weekly detailed quality report containing sufficient evidence that the Advertiser considers to be fraudulent within 5 business days. In case the fraudulent activities cannot be clearly identified based on the Advertiser’s report, the Advertiser shall provide additional evidence within 2 business days. Otherwise all traffic shall be considered as valid and Advertiser shall pay for all traffic.
- Representations and Warranties
- Each of the parties hereby represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) it is duly organized and in good standing under the laws of its state of organization; and (d) the execution of the Agreement or the performance of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
- ADAttract hereby represents and warrants that during the term hereof, it will use commercially reasonable efforts to perform its obligations hereunder.
- Advertiser hereby represents and warrants that: (i) it owns or has the valid legal right or license (as applicable) to use and distribute the advertising materials, to the extent required or contemplated hereunder, and the right shall be complete and without any defects and other dispute; (ii) any and all activities and/or obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations; (iii) it is solely responsible for the advertising materials and any content or technology that may be reached via the advertising materials;(ⅳ) the advertising materials meet the following requirements: (a) are in compliance with all applicable laws, rules and regulations, industry best practices of the country and district where the Parities are located and where the advertisement is published, (b) do not and will not, at any time during the term hereof, infringe or violate any proprietary right or any other right of any person or entity; (c) shall be true, lawful, and without any false statement and shall not deceive and misguide customers; (d) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that ADAttract informs Advertiser that it considers objectionable; (v) it will only use ADAttract Advertising Platforms for the purposes and in the manner expressly permitted under the Agreement; and (vi) it shall not bind ADAttract to any agreement or obligation or give any representation, warranty or guarantee in respect of ADAttract, except for those that are specifically authorized by ADAttract in advance and in writing.
- Limitation of Liability
In the event that ADAttract fails to place campaign in accordance with the schedule provided in the Insertion Order, or in the event of any other failure, technical or otherwise, the sole liability of ADAttract and exclusive remedy of the Advertiser shall be limited to, at ADAttract’s sole discretion, placement of the campaign at a later time in a comparable position, or extension of the end date specified in the Insertion Order until the campaign are delivered. IN NO EVENT WILL ADATTRACT, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO ADVERTISER OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE, LOSS OF DATA OR INFORMATION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT , ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ADVERTISER’S ABILITY OR INABILITY TO USE ADATTRACT ADVERTISING PLATFORM UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT ADATTRACT SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL ADATTRACT’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT RECEIVED BY ADATTRACT. The Advertiser confirms that it has entered into the Agreement with ADAttract relying on the limitations of liability stated herein and that those limitations are an essential part of the bargain between the Advertiser and ADAttract.
- Advertiser agrees to hold harmless, defend and indemnify ADAttract, and their respective officers, directors, shareholders, employees, agents and other Representatives harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses including reasonable attorneys’ fees based on or arising out of: (a) any breach of this Agreement by Advertiser; or (b) any gross negligence or willful misconduct of Advertiser or its associated companies or any of their respective directors, officers, employees, contractors, agents or other Representatives.
- ADAttract hereby agrees to indemnify, defend and hold Advertiser and their respective officers, directors, shareholders, employees, agents and other Representatives harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses including reasonable attorneys’ fees based on any breach of this Agreement, including any representation, warranty, restriction or obligation made by ADAttract herein.
- Disclaimer of Warranty
ADAttract does not have any obligation to monitor the advertising materials, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the advertising materials or anything described or written by Advertiser. ADAttract Advertising Platform and any other technology or services provided by ADAttract is provided on an ‘AS-IS’ basis. Except as expressly provided in the Agreement and to the fullest extent allowable by law, ADAttract makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and disclaims any such warranties. In addition, ADAttract does not represent or warrant that: (i) ADAttract Advertising Platform or any part therein will be error free or that any errors will be corrected; (ii) the operation of ADAttract Advertising Platform or any part therein will be uninterrupted; (iii) Advertiser will profit or derive any economic benefit from Advertiser’s use of ADAttract Advertising Platform; or (iv) any specific content, service and/or feature will be made available to Advertiser via the ADAttract Advertising Platform.
- Confidential Information
‘Confidential Information’ means (i) campaign, prior to publication, (ii) the Insertion Order and any ADAttract statistics which shall be deemed ADAttract Confidential Information; and/or (iii) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as ‘confidential’ or ‘proprietary.’ During the term of this Agreement, and for a period of two years following any End Date, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority.
- Cancellation, Term and Termination
- This Agreement shall commence on the date of signature of Insertion Order by both ADAttract and Advertiser. Unless terminated by either Party upon three 3 business days with prior written notice to other party, the Agreement shall automatically renew for successive 1 year term.
- Unless designated on the IO as non-cancellable, Advertiser may cancel the IO before ADAttract starts the Campaign, within a 48 hours with written notice. If ADAttract has made some preparations for the Campaign, Advertiser shall reimburse all the costs suffered by ADAttract.
- Unless otherwise provided in this Agreement, if one party breaches any provision hereof materially and has not made any correction within 15 days after the other party’s written notice, the other party shall be entitled to terminate this Agreement.
- Upon termination of this Agreement for any reason, Advertiser shall pay all unpaid amounts to ADAttract within 10 days from the termination date. And any and all licenses and rights granted to ADAttract in connection with this Agreement shall be immediately ceased and terminated. ADAttract will: (i) immediately terminate all use of and delete all links and intellectual property which provided by Advertiser. (ii) immediately cease to use any and all campaigns and/or related materials available to ADAttract in connection with ADAttract’s participation in the service.
- Force Majeure
‘Force Majeure’ means events which are beyond the control of the Parties to this Agreement, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by each Party. Such events shall include earthquakes, typhoons, flood, war, riots or any other instances which cannot be foreseen, prevented or controlled, including instances which are accepted as Force Majeure in general International commercial practice.
Either party shall not be held responsible for failure or delay to perform all or any part of this agreement due to Force Majeure. However, the party affected by the event of Force Majeure shall inform the other party of its occurrence in writing as soon as possible and thereafter send a certificate of the event issued by the relevant authorities to the other party within thirty (30) days after its occurrence. If the event of Force Majeure continues for more than forty-five (45) days, both parties shall negotiate the performance or the termination of this Agreement. If within three (3) months after the occurrence of the event of Force Majeure both parties cannot reach an agreement, either party has the right to terminate this Agreement. In the case of such a termination either party shall bear its own costs, further claims for compensation in connection with the termination shall be excluded.
Headings used in this Agreement are provided for convenience only and shall not be used to define, limit or describe the scope of this Agreement and shall not form a part hereof.
- Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong, without giving effect to principles of conflicts of law. Any dispute hereunder will be negotiated in good faith between the parties within 45 days commencing upon written notice from one party to the other. If any dispute cannot be resolved by negotiation, then any Party may submit the dispute to the Hong Kong International Arbitration Centre for arbitration by arbitrators which shall be conducted in accordance with its arbitration rules in effect at the time of applying for arbitration. The place of arbitration shall be Hong Kong.
Any notice to be given hereunder shall be in writing and shall be transmitted by facsimile or email or sent by express airmail, and shall be deemed given when transmitted by facsimile, the day of such facsimile to transmitted, or if sent by mail or email when received, to the parties at the addresses specified at the IO of this Agreement.
- The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
- If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that mostly reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
- The Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in the Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.