Acceptance of Terms and Conditions
AFFLE HOLDINGS PTE LTD AND ALL ITS SUBSIDIARIES PROVIDES ADVERTISEMENT SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS. THE FOLLOWING TERMS AND CONDITIONS WILL APPLY TO ALL CONTRACTS BETWEEN AFFLE AND PUBLISHER INCLUDING FUTURE BUSINESS TRANSACTIONS BETWEEN AFFLE AND PUBLISHER, EVEN WITHOUT EXPRESS REFERENCE THERETO. THESE TERMS AND CONDITIONS REPRESENT THE ENTIRE AGREEMENT BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL OTHER AGREEMENTS BETWEEN THE PARTIES, WHETHER WRITTEN OR ORAL.
THE TERMS AND CONDITION IS ONLY AVAILABLE IN ENGLISH VERSION. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS BETWEEN THE PARTIES.
PUBLISHER UNDERSTAND THAT OUR CONTRACTUAL RELATIONSHIP AND OBLIGATION ONLY EXTENDS TO THE PUBLISHER. IF PUBLISHER CHOOSE TO USE THE SERVICE ON BEHALF OF ANY THIRD PARTY, PUBLISHER REPRESENT AND WARRANT THAT SUCH THIRD PARTIES ARE AUTHORIZED TO ACT ON BEHALF OF AND BIND THAT THIRD PARTY OF THESE TERMS OF SERVICE. FURTHER SUCH THIRD PARTY SHOULD NOT BE BLACKLISTED BY AFFLE OR SHOULD NOT BE HAVING ANY UN-RESOLVED ISSUES WITH AFFLE.
AFFLE DOES NOT HAVE A CONTRACTUAL OBLIGATION WITH THE END USERS WHO PURCHASE AND/ OR INSTALL YOUR PRODUCTS, PARTNERS OR THIRD PARTY AFFILIATES OR ANY OTHER PARTY WITH WHOM YOU CHOSE TO ENGAGE TO PERFORM ANY TRANSACTIONS INVOLVING THE SERVICE. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.
AFFLE SHALL BE ENTITLED FREELY TO ASSIGN OR SUBCONTRACT ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT. PUBLISHER MAY NOT ASSIGN OR TRANSFER THIS AGREEMENT OR ANY RIGHT OR OBLIGATIONS HEREUNDER WITHOUT AFFLE’S PRIOR WRITTEN CONSENT WHICH SHALL NOT BE UNREASONABLY WITHHELD. EITHER PUBLISHER OR AFFLE MAY, UPON NOTICE TO THE OTHER, ASSIGN THIS AGREEMENT TO A PARENT, SUBSIDIARY, DIVISION, AFFILIATES, OR SUCCESSOR UPON THE MERGER, CONSOLIDATION, SALE OR TRANSFER OF ALL OR SUBSTANTIALLY ALL ASSETS, SO LONG AS YOUR OR OUR SUCCESSOR TO SUCH TRANSACTION ASSUMES ALL OBLIGATIONS UNDER THIS AGREEMENT.
PLEASE READ THESE TERMS AND CONDITIONS (“AGREEMENT”) CAREFULLY AFTER COMPLETING THE REGISTARTION PROCESS AND CLICKING TO THE ‘I ACCEPT’ BUTTON, YOU ACKNOWLEDGE AND AGREE TO BE BOUND AND GOVERNED BY THE TERMS UNDER THIS AGREEMENT.
TERMS AND CONDITIONS
- “Advertising Asset” means any mobile/tablets/desktop site or application that provides Ad Inventory for marketing or promotion for any person, products or services.
- “Ad Inventory” means digital advertising inventory, including, without limitation, web, mobile, application and/or widget-based advertising inventory; however, that an application may constitute Ad Inventory hereunder only if such application (i) provides the user with clear and conspicuous notice about all material functionality, (ii) obtains informed consent from the user prior to download/install, and (iii) allows the user to maintain control over his or her computing environment.
- “Ad Tag” means any programming code or HTML, placed as is or via APIs or via SDK (Software Development Kit), that request AFFLE’s platform to serve an Ad Format.
- “Ad Format” means a unit or units of advertising content served via the Ad Tag such as banners, ads, native ads, video ads, install ads etc.
- “Advertisement” means marketing communication for offering goods and services including virtual goods and services through text ads, graphic, sound, video, programming code and/or other content that comprises the advertisement, as well as the websites/wapsite to which an advertisement is linked.
- “Buying Model” means the payment method adopted for completion of an Objective (Clicks, Installs, Registration, Sale, Activations or Impressions). Buying model will consist of CPCV, CPV, CPC, CPI, CPA, CPM, CPS or CPR.
- “CPCV” means cost per complete view.
- “CPV” means cost per visit.
- “CPC” means cost per click.
- “CPI” means cost per Install on first open.
- “CPM” means cost per thousand.
- “CPS” means cost per sale.
- “CPR” means cost per Registration.
- “Click Tracker Tag” means a click-tracking tag used by AFFLE hereunder to track a user’s “click”.
- “Insertion Order” would mean a mutual agreed document that incorporates these terms and conditions and would capture all commercial and time period details about the advertising campaign/transaction including the Buying Model, which may be executed. If there is any conflict between this agreement and the Insertion Order, the terms and conditions of the Insertion Order will prevail.
- “Publisher” means a person or company or publishing house who supplies online content or search content and places advertising for consumption/viewing by user in their proprietary mobile network and/or mobile application including any software code, website, wapsite, technology, widget, content and other material included therein or in connection thereto, excluding the Affle services.
- “Term” has the meaning set forth in Clause 3 hereto.
- Advertising Services: Publisher will display the Advertising through Ad Tags/ Ad formats/ Creative as per the Ad Inventory on their Advertising Assets based on the Buying Model. Affle hereby grants to Publisher during the Contract Period a non-exclusive, revocable, royalty-free, worldwide right non-sublicensable license or sub license, as applicable, during the Term and for sole purpose for distribution, marketing and promotional activity.
- Term: This agreement shall take effective from the signing date of this Agreement or from the date of the signing of the Insertion Order and shall remain in effect for a period of twelve (12) consecutive months (the “Term”). Upon completion of term, this Agreement shall automatically get extended for another period of one year unless terminated in accordance with this term.
- Publisher agrees to;
Affle agrees to;
- Integrate Ad Tags/Ad Formats/Creatives on all relevant Advertising Assets as per the pre-determined targeted advertising based on the agreed Ad Inventory and Buying Model.
- Provided necessary support on integration and testing Ad Tags, Ad Formats and Creative.
- At all times on best effort basis keep Affle notified on any expected delivery variations.
- Represent and warrant that it will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any technology platform, code, software, services, interface, applications, solution, provided hereto by Affle for provision of service under this agreement.
- Editing of Affle’s Creative is strictly prohibited, except without prior written approval from Affle. Creative includes, but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign including survey questions and answers. Any changes to Creative, without prior written permission will result in the loss of payment.
- Ensure Advertising Asset does not contain content or material of any kind (including, but not limited to, text, graphics, images, photographs, sounds, etc.) that are illegal or objectionable as per the respective laws of the territories in which the campaign are being run (for example, materials that may be considered obscene, pornographic or defamatory).
- Run the campaigns as per the target and cap limit as specified by Affle. In case it is found that the advertisements run by the Publisher are not running with the specified targeting, and has exceeded the cap limit, Affle will with immediate effect from the date of such event stop/pause the campaign without any notification to the Publisher and Publisher will not be entitled for any payments for that particular campaign in case of wrong targeting. In case of exceeding of cap limit, the Publisher will not be entitled for any payment for the exceeded number of caps over the cap limit.
- Affle may in its sole discretion at any time may determine the scope of the territory whether to stop or add other than the agreed territory to run the campaign based on the Advertising asset and Ad Inventory of the Publisher.
- All delivered campaign KPIs or other performance metric must be resulted by user initiation action only. All auto initiation of Video Views, Page Visits, Clicks, Install, Registration, Sale, Activations or any other user actions are strictly prohibited.
- All campaign request by Affle are strictly prohibited for re-brokering unless it is agreed by Affle in writing.
- Participate in any joint press releases and marketing announcements, with mutual consent of both the parties.
- Publisher warrants that it has the right to enter into the agreement and all the service performed under this agreement shall be performed using adequate care and skill.
- Affle has the right to stop and/or pause any campaign of any kind initiated in furtherance to this agreement at any time, with due notification sent to the Publisher. Affle shall not be liable to pay for any campaign deliveries which happens post such notification.
Fraud and Unethical Activities
- Provide Ad Tags/Ad Format/Creatives and/or Click Trackers along with creative files, SDK’s suitable for use on relevant Advertising Asset.
- Provide Publisher with reasonable technical support for the integration of Ad Tags/Ad Formats/Creatives.
- Provide Publisher with advertising target and specify the territory to run the campaigns.
- Ensure that Ad Tag shall not contain content or materials of any kind (including, but not limited to text, graphics, images, photographs, sounds, etc) that are illegal or objectionable under the applicable law (for example, materials that may be considered obscene, pornographic or defamatory).
- Provided online Dashboard and reports with details on completion of objective such as Clicks, Install, Registration, Sale, Activation or Impression, which shall be the basis of invoicing by the Publisher.
- Participate in any joint press release and marketing announcements, with mutual consent of both the Parties.
Invoicing and Payments
- Publisher shall not employ improper ways and means to deliver Objectives (Clicks, Install, Registration, Sale, Activation or Impressions) using either manual cheats, using incent traffic (unless specified), specialized programs, code/s, script/s, bot/s, Trojan/s, emulator/s or other fraudulent methods. Publisher acknowledges that if Publisher uses any of these improper ways and means the deliver Objectives, Affle has the right to forfeit any pending payments and terminate this agreement and/or Insertion Order whichever is applicable, or both, depending on the understanding of the parties.
- In the event of fraudulent activities detected by Affle or reported by the advertiser, resulting in any damages or liabilities to Affle or its subsidiaries, no pending payments, current payments would be paid and additionally the damages imposed on Affle or any of its subsidiaries due to such action would be recovered in full including any and all associated costs such as legal and administrative costs. Affle also reserves the right to take any action deemed appropriate in order to protect itself against individual or by the organization involved in these actions.
- The publisher shall not use incentivized traffic on any campaign unless specified in writing by Affle. Similarly, only specified ad formats and traffic sources (adult/ non adult) may be used. Failure to do so will cause forfeiting payments proportionate to such activities being detected. Additionally, any penalties imposed by the advertiser on Affle or any of its subsidiaries, due to these shall be wholly borne by the publisher.
- Invoice shall be raised by Publisher based on the Daily Reports as per the online Dashboard to Affle at each month end containing the total number of Advertisement Impression or Click or Acquisitions which are based on agreed terms generated during previous month.
- Pricing in the Invoice will be based on the terms of the agreed Buying Model and as per the reports displayed on the online Dashboard by Affle.
- If any dispute arises in the calculation in respect of the Daily Report as displayed on the online Dashboard, then in that case the Publisher will provide Affle a written notice (via email address as provided by Affle) specifying the reasons for the dispute with supporting documents (the “Dispute Notice”), by no later than (15) days as from the date of displaying of the report on the online Dashboard (the “Dispute Notice Period”). Following receipt of a Dispute Notice, Publisher and Affle will cooperate, in good faith, in order to resolve any such dispute. As per the foregoing if the parties are not able to amicably settle the matter within ___ days from the receipt of Dispute Notice, then the calculation in respect of the Daily Report of the Affle will be final and non-appealable.
- If no discrepancy is reported to Affle by Publisher within the first 15 days as from the date of displaying of the report on the online Dashboard, the numbers on the online Dashboard will be considered as correct, final and non-appealable.
- All invoices shall be paid by Affle within a credit period of 60 (Sixty) days from the receipt of the invoice.
- Invoicing will be raised exclusive of Service Tax but shall be subject to deduction of any and all taxes/levy required to be withheld under the law on payment including without limitation to income tax.
- If applicable law requires Affle to withhold any income taxes/levy levied on payment to be made pursuant to this agreement (following referred to as “Withholding Tax”), Affle shall levy the withholding tax as per ordinary local rules and shall be entitled to deduct such withholding tax from the payments due to the Publisher.
- If a Double Taxation Avoidance Treaty (following referred to as “DTA”) is applicable, Affle shall apply the reduced Withholding Tax rate provided for the applicable DTA. Affle shall apply the DTA rate only if, before the first payment and for every fiscal year, the Publisher shall provide Affle with :
- a copy of a tax residence certified issued by local Tax Authority.
- a copy of the certification of identification of the effective beneficiary; and
- any other document as required by the applicable law or regulation.
Indemnification and Limited of Liability: Both Parties shall indemnify and keep indemnified each other against any liability, damages, expenses, claim or cost (including reasonable legal fees and costs) suffered by or directly arising from a breach by the Indemnifying Party of any of it ’s obligations and /or warranties. Neither Party shall be liable in contact, tort (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise arising out of or in connection with this Agreement for loss of revenue, profits, contracts, business or anticipated savings; or any special, indirect or consequential losses. Notwithstanding anything written or otherwise, the Parties liability howsoever arising out of or in connection with this agreement shall not exceed, in total, regardless of the number of claims, in respect of all matters, an amount equal to the total Insertion Order or total financial gain. Parties agree that the limitation of liability shall not apply for (a). breach of confidentiality obligation, (b). infringement of Intellectual Property Rights or (c) any neglect act or omission of Publisher, its officers, sub-contractor, sub-licensee, directors, agents or employees to perform the obligation under this agreement.
Confidentiality: Each Party acknowledges Confidential Information shall be used solely for the business, affairs, plans, customers, technology, and products and shall exploit such confidential information for its own benefit or the benefit of another without the prior written consent of the other party. The term “Confidential Information” shall mean all non-public information this Agreement or a Party designated as being confidential or which under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and condition of this Agreement including but not limiting to pricing, marketing or promotion of any product or service, business policies or practices, customers, potential customers or documentation or information received from others that a Party is obligated to treat as confidential, however, in addition to the any other information comprising as confidential then the party shall with written notification within 10 days notify the other party.
- Parties to this Agreement at any time without cause in their sole discretion may terminate the Agreement upon Thirty (30) days prior written notice to the other party.
- Either Party may terminate this Agreement immediately by notice in writing to the other if other Party:
Is in material breach or persistent breach of any other provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within fifteen (15) days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it, or is declared insolvent, or has a liquidator appointed over its assets.
“Confidential Information” shall not include information that was known to a Party prior to the other Party’s disclosure or information that becomes publicly available through no fault of the Party. Each Party shall hold in strictest confidence, shall not use or disclose to any third Party, and shall take all necessary precautions to secure any Confidential Information of the other Party. Disclosure of such information shall be restricted solely to employees, agents, consultants and representatives who have been advised of their obligation with respect to Confidential Information.
Intellectual Property Rights:
- Publisher will retain all right, title and interest in and to its, or its licenses, copyright and other intellectual property rights relating to the Publisher’s Properties.
- Affle will retain all right, title and interest in and to its or its licenses, copyright and other intellectual property rights, provided that such IPR is not created or generated for Publisher and/or by using Publisher’s IPR.
- Parties agree that during the term of this Agreement, a non-exclusive, non-sub-licensable, royalty-free, revocable, worldwide license to use, reproduce and display each other’s logo and branding will be granted by the parties to the other party, solely for the purpose of marketing of the Advertisements.
- Upon the expiration or termination of this Agreement, each Party will cease using the IPR of the other party.
Force Majeure: Parties agree that neither party will be liable for failure to perform, due to acts of God, fires, explosions, telecommunications, internet or network failure, results or vandalism or computer tracking hacking, storm or other natural occurrence, national emergencies, insurrections, riots, wars, strikes or other labour difficulties, or any act or omission of any other person or entity. Parties will give notice and will use commercially reasonable efforts to minimize the impact of any such event.
Notices: Parties agree to receive electronic communication and agree that all notices, disclosure, and other communications that provided electronically, via email or by posting notices in your account area satisfy any legal requirement that such communication be in writing.
Key Contacts: The parties shall each appoint a key contact(s) who shall stay in regular contact during the term to ensure that each party complies with its obligations under this Agreement.
Non-Exclusive: This is a non-exclusive Agreement and it does not, in any manner, restricts Affle from appointing any other person(s)/agencies to do provided same/similar/identical services on such terms and conditions as Affle deem fit.
- Each Party to this Agreement represents and warrants to the other that it has, and will retain throughout the term, all rights, title and authority to enter into, and perform all of its obligations pursuant to, this Agreement.
- Parties warrants that it will comply with, and shall continue to comply with all applicable laws and regulations applicable during their respective performances under this Agreement.
- Parties warrants that use of each other’s IPR shall not infringe any third party rights.
Assignment: Neither party shall be entitled to assign its right and obligations under this Agreement without the prior written consent.
Governing Law and Jurisdiction: This Agreement is governed by the laws of Singapore to which both the parties agree to submit any dispute arising out of or in connection with this Agreement submitted exclusively to the competent courts of Singapore.
- If in addition to the terms and condition of this Agreement, the parties sign Insertion Order, then in that case the terms and condition of the Insertion Order will supersede the relevant clauses of the terms and condition of this Agreement. The Insertion Order and this Agreement, will together and collectively constitute the “Agreement”.
- In case of any dispute between the terms and condition and the Insertion Order, the terms set forth in the Insertion Order shall prevail.
- This Agreement constitutes the entire agreement between the parties in relation to its subject matter and replaces and extinguishes all prior agreements between the parties and all prior representations, whether written or oral, made by either with respect to such subject matter provided.
- All additions and/or modifications to this agreement must be made in writing and must be signed by both the parties.