ADVERTISING TERMS & CONDITIONS
TERMS OF SERVICE :
This agreement (“Agreement”) sets forth the terms and conditions under which constitutes an agreement (this "Agreement") between AkaDigital Pte Ltd and the Advertising customers, named hereunder as the "Company", and the "Party" to engage AkaDigital for online advertising services ( the "services") under the terms and conditions contained herein.
This Terms of Service agreement and the Insertion Order Form together comprise the "Agreement". We reserve the right to change these Terms and Conditions from time to time. Please consult this portion of the AkaDigital's website for important changes to the Terms and Conditions as AkaDigital may, at any time, and without notice, revise these Terms and Conditions by updating this posting.
The following Terms and conditions (the "Standard Terms") shall be deemed to be incorporated into the attached insertion order (the "Insertion Order").
1. CERTAIN DEFINITIONS.
1.1 “Fees” means the fees shown in this Agreement and the fees for any additional optional features and services that Company uses (e.g., use of third party targeting data). Fees for such features and services are shown in the Platform reporting interface.
1.2 “Inventory Partners” are the third parties who make digital ad inventory available for purchase through the Platform.
1.3 “Media Spend” means the cost of all ad inventory and/or data purchased by or on behalf of Company through the Platform.
1.4 “Services” means the AKADIGITAL hosted Ad platform (“Platform”), Analytics, campaign management and any other services AKADIGITAL provides to Company.
1.5 “Total Cost” means the total amount Company owes to AKADIGITAL. Total Cost includes Media Spend and any applicable Fees.
2.1 Services as used in this agreement, includes all services that AKADIGITAL make available to advertisers, including but not limited to the AKADIGITAL Advertisers platform, the AKADIGITAL ad serving Platform for advertisers, and digital marketing services across any partner networks, publishers sites and platforms. This agreement covers Advertiser’s participation with AKADIGITAL’s services for the purchase, deployment and management of advertising campaigns.
2.2 Licenses. Company will obtain, and hereby grants to AKADIGITAL, all rights and permissions needed to authorize AKADIGITAL to buy inventory on Company’s behalf (and any third party on whose behalf Company is acting), perform tracking and analytics, and to store and serve ads. During the Term, AKADIGITAL may offer additional services beyond those described herein. In addition, to the extent that Company requests AKADIGITAL’s help to manage campaigns and/or to use the Services, whether such requests are verbal or in writing, Company consents to the actions that AKADIGITAL performs on its behalf. Company retains sole responsibility for such assisted use of the Services.
2.3 Analytics. This section applies if Company implements the analytics code and tools (such as click and conversion tracking) (“Analytics”). During the Analytics set-up process, AKADIGITAL may append certain parameters to the URL associated with Company’s ad to enable Analytics. AKADIGITAL may gather and use information from cookies and/or other automated technologies, but that AKADIGITAL does not collect personal information such as the user’s name or email address.
3.1 Company will not use the Platform in connection with any ads or other digital content that contains “restricted Content”.
“Restricted Content “means any content or term that:
(i) Promotes or is related to illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes or chain letters);
(ii) Promotes or is related to tobacco, gambling or weapons;
(iii) Is related to pornographic or obscene material;
(iv) Is related to excessively graphic or explicit violence;
(v) Is defamatory, inappropriate or profane;
(vi) Is discriminatory or constitutes “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group;
(vii) Promotes or contains viruses, worms, corrupted files, cracks or other materials that are intended to or may damage or render inoperable software, hardware or security measures of Publisher, any user, or any other third party.
3.2 In addition, Company will not knowingly use the Platform in connection with any ads that violate any law, regulation or third party right (including intellectual property and privacy rights)
3.3 AKADIGITAL may reject any ads that do not comply with the applicable Ad Standards. AKADIGITAL may immediately suspend any campaign if AKADIGITAL reasonably determines that Company is not complying with this Agreement or applicable Ad Standards, or is using the Platform in a manner that could damage the Platform or reflect unfavorably upon AKADIGITAL, its affiliates, or Inventory Partners. AKADIGITAL will promptly notify Company in writing upon any such suspension.
Pre-payment for all campaigns unless it is agreed in writing between parties. If not pre-payment, then each month, AKADIGITAL will invoice Company for all amounts owed for the previous calendar month. Unless the parties agree otherwise in writing, AKADIGITAL will invoice and Company will pay in US dollars. For any invoice that is not paid in full within 30 days of the invoice date, AKADIGITAL reserves the right to
(a) charge interest of 1.5% per month (or the maximum allowed by law, whichever is lower), and
(b) suspend Services or terminate this Agreement if Company does not pay an overdue invoice in full within 5 days of receiving a default notice.
AKADIGITAL will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Platform and such metrics shall be used for calculating payments. AKADIGITAL will make such metrics available to Company in its reporting. In the event of discrepancies between Company’s records and AKADIGITAL’s metrics, AKADIGITAL may provide log files to Company for inspection at reasonable times and on reasonable notice. Any data made available to Company during an inspection is AKADIGITAL’s Confidential Information and Company will not disclose such data to any third party or use such data for any purpose other than verifying AKADIGITAL’s accounting. AKADIGITAL may revise and update numbers if there is delay in reporting affecting month-end invoicing.
A party may terminate this Agreement (a) for any reason or no reason on 14 days written notice to the other, or (b) for breach, if the other party has failed to cure a material breach within 10 days of receiving notice.
7. MUTUAL INDEMNIFICATION.
Company agrees to indemnify and hold AKADIGITAL harmless against any and all claims, actions or allegations resulting from Service Purchaser’s breach of any of its obligations under this Agreement. Company is responsible to review all creative and advertisements to ensure compliance with local and/or federal regulations.
8. FORCE MAJEURE.
No Party to this agreement shall be liable to the other Party for any failure or delay in fulfilling an obligation hereunder, if said failure or delay is attributable to circumstances beyond its reasonable control, including, but not limited to, any fire, power failure, labor dispute or government measure (“Force Majeure Event”), provided that no Force Majeure Event shall serve to excuse any payment obligation of either Party hereunder.
9. LIMITATIONS ON LIABILITY.
9.1 (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, HOWEVER CAUSED, AND WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION GROSS NEGLIGENCE), OR ANY THEORY OF LIABILITY, SUFFERED BY THE OTHER PARTY, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS UNDER OR ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE HEREUNDER, AND WHETHER OR NOT THE APPLICABLE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
(B) IN NO EVENT WILL EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO AKADIGITAL IN FEES DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
9.2 THE PARTIES HAVE AGREED THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE
EXCEPT AS SET EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. AKADIGITAL MAKES NO REPRESENTATIONS REGARDING THE BENEFITS TO COMPANY FROM THE PLATFORM, OR THAT THE PLATFORM WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION
11. REPRESENTATIONS AND WARRANTIES.
Mutual Warranties. Each Party represents, warrants, and covenants to the other Party that: (A) it has the full power and authority to enter into this agreement; (B) the execution of this agreement and performance of its obligations under this agreement do not and will not violate any other agreement to which it is a party; (C) this agreement constitutes a legal, valid and binding obligation of it when executed and delivered; and (D) any and all activities it undertakes in connection with this agreement will be performed in compliance in all material respects with applicable laws, rules and regulations.
12. GOVERNING LAW
This agreement shall be governed, construed and interpreted in accordance with the laws of the Republic of Singapore without giving effect to principles of conflict of laws. Each of the parties hereto consents to the exclusive jurisdiction and venue
13. ENTIRE AGREEMENT.
This Agreement and the Exhibits hereto constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. It supercedes and replaces all previous discussions, negotiations, and understandings between the parties. This Agreement may only be amended by a written amendment signed by authorized representative of both of the companies.