These Terms and Conditions are made by and between the Advertiser and the Publisher set forth herein above in this Insertion Order, shall apply to all the Insertion Orders in which they have been referenced. The Advertiser and the Publisher (collectively the Parties) agree as follows:
Unless otherwise expressly provided, the terms used in the Terms and Conditions shall refer to the meaning below:
“Advertising Materials” means all the materials, elements and links or otherwise provided by the Advertiser to the Publisher, or the materials, elements and links designed by the Publisher and permitted by the Advertiser which may be used to promote for the benefit of Advertiser.
“Products” mean all the software, services or otherwise owned by or legally licensed to the Advertiser, as the object of promotion.
- Represents and Warrants :
- The Publisher represents and warrants that
- It has full legal right to enter into this Terms and Conditions and performs its obligations hereunder.
- It shall perform its obligations in a professional manner, and shall strictly abide by the promotion details proposed by the Advertiser.
- It will comply with all applicable laws, rules, regulations, and the Terms and Conditions hereof.
- It shall not modify any part of the Advertising Materials without the prior consent of the Advertiser.
- It will not engage in, or cause others to engage in fraud activities through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools.
- The Advertiser represents and warrants that:
- It has full legal right to enter into this Terms and Conditions and perform its obligations hereunder;
- The execution, and performance hereof will not result in a breach of any other agreement or obligation by which the Advertiser is bound;
- It owns all the necessary rights, including all trademarks and copyrights over the Advertising Material and the Products provided to Publisher pursuant to this Agreement;
- Except as provided in Clause 2.2, there are no express or implied warranties, representation, undertakings, or conditions made by the Advertiser.
- The Publisher represents and warrants that
- License and Use of Advertising Materials:
The Advertiser grants the Publisher a non-exclusive, non-transferable, revocable-at-will, sub-licensable license in the Territory to use, reproduce and distribute or display the Products or Advertising Materials, on computers and mobile phones that are owned or controlled by Publisher, solely for the purpose of this agreement.
- Report and Billing Data
- The billing data shall be settled on a monthly basis. At the beginning of each month or otherwise agreed by both Parties, the Advertiser will send the report of last month to the Publisher. The Publisher shall confirm the report and the billing data thereof and response to the Advertiser within 5 business days upon receipt. If no discrepancy is put forward by the Publisher during that period, such report shall be deemed final.
- In the case of a data discrepancy is less than or equals to 5% between the Advertiser’s report and the Publisher’s report, the Advertiser’s report shall prevail. In the case of a data discrepancy exceeds 5% between the Publisher’s report and the Advertiser’s report, both parties shall facilitate a reconciliation effort to decide which data is the correct billing data and the payment will be based on mutual agreed billing data.
- In case of any complaint/dispute regarding any fraudulent activity by the Publisher, the Publisher shall be solely responsible for providing conclusive evidence of its valid performance within five (5) days from the date of the complaint/dispute made known to them, failing which the Advertiser has the right to deduct the disputed charges from the payment to the Publisher.
- Payment shall be made in the Currency as mutually agreed between the Parties in the Insertion Order.
- Within 5 business days from the receipt of the reconciled billing data (final report), the Publisher will issue the Advertiser an invoice based on the final report, in accordance with the relevant agreed Insertion Order.
- Unless otherwise expressly provided, Payment for the agreed invoices shall be made within 30 days from the receipt of the invoice, after deducting applicable taxes therein.
- Unless otherwise stipulated in the Insertion Order, all the prices set forth hereunder shall be inclusive of all kinds of expenses, charges and taxes.
- All payments hereunder shall be effected by the Advertiser via wire transfer to the account of the Publisher according to bank details, specified in the Insertion Order/Invoice. Each party is solely and separately responsible for its own bank commission and duties for money transfer applicable to its servicing bank.
Except as set forth herein, all right, title and interest in and to and ownership of all intellectual property rights embodied within and relating to the Advertising Material and/or Products provided herein by the Advertiser shall remain with the Advertiser.
- Modification, Suspension and Termination
- The Advertiser shall have the right and at its sole discretion to modify the Advertising Material by sending a forty-eight (48) hour prior written notice to the Publisher via email.
- The Advertiser shall have the right and at its sole discretion to suspend or terminate the promotion by sending a forty-eight (48) hour prior written notice to the Publisher via email.
Each party shall keep secret and confidential the technical and business information, financial reports, financial data, employee data, software or firmware code, and all the other information, knowledge, trade practices, pricing and secrets communicated to such party by the other party under this Terms and Conditions. Any information accepted whether marked as confidential or not shall be used only as agreed and will not be released to any other third party without the express written permission of the disclosing party. Each party is obliged to prevent any unauthorized copying, use, and/or disclosure of any confidential information of or concerning the other party.
Either party shall indemnify and hold the other party and its officers, directors, employees and agents from and against any and all damages, liabilities, costs or expenses (including reasonable attorney fees and costs) whether incurred due to third party claims or otherwise, arising or resulting from or caused by any breach by indemnifying party of any representation, warranty, or provision contained in this Agreement.
- Limitation of Liability
IN NO EVENT SHALL EITHER PARTIES BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND REGARDLESS OF WHETHER EITHER PARITES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTIES BE LIABLE TO THE OTHER FOR ANY AMOUNT GREATER THAN THE AMOUNT PAID BY ADVERTISER TO PUBLISHER UNDER THIS AGREEMENT FOR THE MOST RECENT THREE-MONTH PERIOD PRIOR TO ANY ALLEGED CLAIM BY EITHER PARTIES.
- Severability & Non-Waiver
This Terms and Conditions shall be the only and entire understanding of the cooperation between both Parties hereto. If any provision of this Agreement was declared fully or partially invalid, illegal or unenforceable by any court of competent jurisdiction, the validity, legality or enforceability of other contractual provisions of this Agreement shall not be affected, and the provision or provisions considered null and void shall be replaced within the limits of what is allowed by law by new provisions expressing the intention of the parties. Failure to enforce any right under this Agreement by either Party shall not be construed to, and shall not, waive such Party’s right to enforce any portion of this Agreement.
- Force Majeure
Neither party shall be responsible for any failure to perform due to unforeseen circumstances or due to cause beyond that party’s control, including but not limited to the acts of God, war, riot, embargoes, act of civil or military authorities, fire flood or strikes. In the event of any such circumstances, the defaulting party shall be excused for a period equal to the time of the delay caused by thereby, provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its commercially reasonable efforts to cure the delay.
- Applicable Law and Jurisdiction
This Terms and Conditions shall be governed by the laws of India. Any dispute, controversy or claim arising out of or in connection with the terms herein, including any question regarding its existence, validity or termination and regardless of the nature of such dispute or difference, shall be referred to and finally resolved by the mediation or conciliation or arbitration as provided under the provisions of the Indian Arbitration and Conciliation Act, 1996. The seat of arbitration shall be at Chennai, India only.
This Terms and Conditions shall remain in full force within the term set forth in the Insertion Order. The Parties may not transfer or assign any of its rights under this Agreement, without prior written consent of the other Party. This Agreement may be modified only by a written document signed by both Parties. The Parties may deliver this signed Agreement by electronic (including email or facsimile) transmission. Both Parties agree that such electronic transmission shall have the same force and effect as delivery of original signatures and that each party may use such electronically-transmitted copies as evidence of the execution and delivery of this Terms and Conditions to the same extent that an original signature could be used.