24 May 2011
Terms of Service
These standard terms (Standard Terms) alone, to the exclusion of all other terms, apply to the transactions between ADZ and the Customer. Without limiting the generality of the previous sentence, another party's sale, purchase or other terms shall not under any circumstances apply, even if the applicable acceptance, purchase order, receipt or other correspondence relating to the relevant transaction purports to incorporate and to be made upon terms other than these Standard Terms. ADZ may time to time amend these Standard Terms. The Customer's continued dealing with ADZ after any amendment constitutes acceptance of these Standard Terms, as so amended.
1. Definitions
In these Adzila Pte Ltd (Singapore registration no.: 200810437W) (ADZ) standard terms, the following terms have the meanings set out below:
Advertisements means any form of advertising, marketing or promotion, for any person, product or service, which are subject to the Services, and which may be viewed as text, graphics, rich media or otherwise in any format existing from time to time and delivered physically, electronically, wirelessly or via any media, channel or device existing from time to time. Advertisements include emails, SMS, MMS, display ads, banner ads, video ads, framing techniques, pop-up windows, bridge or jump pages, placements, competitions, application embedded content and text advertisements with hyperlinks.
Advertisement Inventory means any inventory, property or media which may be used for Advertisements and which are subject to the Services.
Confidential Information means information which:
(a) constitutes proprietary information or confidential information , relating to commercial, financial, technical or any other subject matter whatsoever;
(b) by its nature should reasonably be treated as proprietary or confidential, or which the Receiving Party, acting in good faith and reasonably, would determine that the Disclosing Party desires to protect against disclosure;
(c) is marked "Confidential" or equivalent in writing;
(d) is disclosed in circumstances that show expressly or by necessary implication that it is disclosed in confidence; or
(e) constitutes Personal Information or Proprietary Information.
Consumer means any person who as a consumer views, uses, clicks on or otherwise deals with the Advertisements.
Cookies means
(a) in relation to Consumers, data which is stored on a hard drive or other storage device used by the Consumer that contains information relating to Advertisements, including banners seen or sites visited, and which is managed by the browser, flash or other software for that hard drive or storage device; and
(b) in other cases, any server-side records or data which relates to or is used to match Cookies described in the previous paragraph.
Customer means any person who as customer purchases, uses or otherwise deals with the Services as a demand-side user and consumer of Advertisement Inventory. Customers include advertisement agencies, brands and any other advertisers.
Disclosing Party means the party that discloses information directly or indirectly to the Receiving Party under or in anticipation of the agreements or dealings between the parties;
Inbound Fees means the fees, charges, disbursements and all other amounts which the Customer pays to ADZ.
Include (in all its forms) is construed without limitation.
Inventory Provider means any person who in the course of business sells or otherwise provides Advertising Inventory to ADZ.
Non-personal Information is information that is not Personal Information.
Non-proprietary Information means information which is not Proprietary Information. It includes information obtained from the Customer's advertising campaign but does not constitute Personal Information. For example, as part of a Customer's advertising campaign, Consumers fill out a form providing responses to the campaign. The Consumer's name, address and other Personal Information are Proprietary Information. The responses which does not constitute Personal Information - 99% of the respondents liked the campaign - is Non-proprietary Information. Information relating to the Customer's advertising campaign obtained from forms or any other method and which is not Personal Information is Non-proprietary Information.
Persons includes natural persons, unincorporated entities and incorporated legal entities.
Personal Information is information that relates to a natural person from which that natural person's identity may be directly or indirectly determined.It includes names, addresses and telephone numbers.
Proprietary Information means information which ADZ obtains, derives or otherwise sources from the Customer's:
(a) database which is not publicly available;
(b) spend on Advertisements or Services; or
(c) advertisement, marketing or promotion campaign which is the subject of the Advertisements or Services,
and in each case which constitutes Personal Information.
Receiving Party means the party that receives information directly or indirectly from the Disclosing Party.
Representative means a party's directors, officers, employees and professional advisers, collectively or individually.
Services means:
(a) providing an intelligent Advertisement buying platform that aggregates placement opportunities across all media types, channels and devices, helping Customers manage and optimise their ad-buying and other related services which ADZ provides from time to time in its ordinary course of business; and
(b) the goods and services which ADZ obtains from time to time in its ordinary course of business.
Start Date means the date ADZ and the Customer entered into the relevant agreement or dealing relating to the Advertisements or Services.
2. Privacy
2.1 Customer
(a) The Customer represents and warrants that all Personal Information which it provides for use in connection with the Advertisements or the Services are collected, stored, used and otherwise dealt with in accordance with all applicable laws and with the relevant personal consents.
(b) The Customer agrees to indemnify and hold ADZ harmless from and against all claims, proceedings and expenses which ADZ may suffer or incur arising out of or in connection with a breach of the previous representation and warranty, except to the extent caused by ADZ's own negligence or default.
(c) ADZ agrees to indemnify and hold the Customer harmless from and against all claims, proceedings and expenses which the Customer may suffer or incur arising out of or in connection with a breach of applicable laws relating to ADZ's handling or use of the Personal Information which the Customer provides for use in connection with the Advertisements or the Services, except to the extent caused by the Customer's own negligence of default.
(d) ADZ's privacy policy at http://www.adzcentral.com/user-privacy is incorporated by reference and forms part of these Standard Terms.
3. Cookies
3.1 ADZ does not use Cookies to obtain Personal Information. Subject to a Consumer's opt out which may be performed at http://adzhub.com/optout.html, ADZ from time to time uses Cookies for Consumers.
3.2 Subject to the above, ADZ from time to time uses Cookies. Cookies are used only:
(a) To obtain aggregated and cumulative information, including reach and frequency of a banner or campaign;
(b) To ensure that the appropriate click through is used for a banner;
(c) To measure and track Consumer preferences;
(d) For behavioural profiling, and
(e) For other appropriate purposes in accordance with applicable laws.
4. Content
4.1 The Customer agrees and acknowledges that ADZ sells and supplies Advertising Inventory, and has no control over Advertisement content.
4.2 Accordingly, but without limiting the previous sentence, the Customer alone is responsible for (a) all Advertisement targeting options, keywords, content, information and URLs (Creatives), (b) all web sites, services and landing pages which Creative links or directs Consumers to and (c) all advertised services and products.
4.3 The Customer shall comply with all Inventory Provider terms and policies relating to Advertisements. The Customer agrees that ADZ may enforce these terms against the Customer as if ADZ were the Inventory Provider.
4.4 The Customer shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect advertising related information from any website or property; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice.
4.5 The Customer represents and warrants that:
(a) it holds all rights (including copyright, trademark, patent, publicity or other rights) in all intellectual property arising out or in connection with the Advertisements;
(b) all information in Advertisements are complete, correct and current; and
(c) the Customer's Advertisements do not violate or encourage violation of any applicable laws, regulations, code of conduct or third party rights (including without limitation intellectual property rights).
5. Licenses
5.1 All materials, content and information the Customer accesses through the Services are ADZ's information, and the Customer has no rights to use them except in connection with the Services. The Customer shall not copy, distribute, reverse engineer, re-broadcast, hack, spoof, spam, use robots or spiders or scripts or otherwise interfere with these material, content and information.
5.2 The Customer shall provide Advertisements (where applicable) in the format which ADZ requires from time to time. The Customer grants to ADZ and its licensees a royalty-free, worldwide license to use, reproduce, market, display, publish, perform, distribute and transmit the Advertisements as part of ADZ's performance of the Services. ADZ shall not modify the Advertisements without the Customer's permission, except as strictly needed to perform the Services.
6. Proprietary Information
6.1 ADZ uses Non-proprietary Information in the ordinary course of performing Services, including to provide targeted advertising and to assist Customers better meet the needs of Consumers.
6.2 ADZ uses Proprietary Information only for the purposes of the Customer who provided the Proprietary Information or to whom the Proprietary Information relates. Without the consent of the Customer described in the previous sentence, ADZ shall not use the Proprietary Information for any other Customers.
6.3 On the written request of the Customer who provided the Proprietary Information or to whom the Proprietary Information relates, ADZ shall destroy all Proprietary Information relating to that Customer.
7. Confidentiality
7.1 Nothing in this clause (Confidentiality) shall be applied in a manner which is inconsistent with the use of Personal Information or Proprietary Information in accordance with these Standard Terms. This clause (Confidentiality) shall otherwise apply to Personal Information or Proprietary Information.
7.2 These confidentiality provisions apply to Confidential Information which is disclosed before and after the applicable Start Date.
7.3 The Receiving Party undertakes to the Disclosing Party:
(a) to keep Confidential Information secret at all times;
(b) not to disclose or allow to be disclosed any Confidential Information to any person; and
(c) not to utilise, copy, employ, exploit or use in any manner any Confidential Information otherwise than for the purpose of the Advertisements or the Services.
7.4 Representatives
The Receiving Party undertakes to the Disclosing Party to disclose Confidential Information only to those of its Representatives who reasonably require the Confidential Information for the purpose of the Advertisements or the Services, and on the conditions that the Representatives shall have:
(a) been informed of the Disclosing Party's interest in the Confidential Information and these confidentiality provisions; and
(b) agreed to treat the Confidential Information in accordance with these confidentiality provisions.
7.5 These confidentiality obligations shall not apply to any information which the Receiving Party can show by written records:
(a) was in possession of the Receiving Party prior to receipt from the Disclosing Party;
(b) is or subsequently becomes publicly known, otherwise than as a result of a breach of these confidentiality provisions;
(c) is developed independently by the Receiving Party or its affiliate;
(d) is disclosed by the Receiving Party to satisfy any applicable laws, legal or administrative process, but on the conditions that:
(i) before the disclosure the Receiving Party shall, to the extent reasonably possible, advise the Disclosing Party of the disclosure required, so that the Disclosing Party may defend, limit or protect against the disclosure and the Receiving Party at its own costs shall reasonably assist the Disclosing Party in the action; and
(ii) the Receiving Party shall in any event disclose only the parts of the Confidential Information which are strictly required by the applicable law, legal or administrative process, and the Receiving Party shall at its own costs use all reasonable efforts to obtain protective orders or other assurances that the Confidential Information so disclosed shall be subject to confidential obligations substantially similar to these confidentiality provisions;
(e) is disclosed to a person with the Disclosing Party's written consent and in strict compliance with any terms the Disclosing Party imposes;
(f) is received by the Receiving Party from another person without similar confidentiality restrictions and without breach of these confidentiality provisions; or
(g) was disclosed to its Representative in accordance with the provision with the heading Representatives.
8. Representations and Warranties
8.1 Information Security
ADZ represents and warrants that it shall use best efforts to ensure the information security of the Advertisements and Services.
8.2 Advertisement Accuracy
ADZ represents and warrants that is shall use best efforts to ensure that the Advertisements and Services will be accurately served to its target audience and link or otherwise relate to the intended context or information.
8.3 Disclaimers
The Customer and ADZ however agrees and acknowledges that no Advertisements and Services can be free of defects, errors or the effects of malware, virus or other malicious, destructive or corruptive code, programme or macros. Accordingly, and without limiting the generality of the previous sentence, ADZ does not represent and warrant that:
(a) any Advertisement or Service will be uninterrupted, timely, secure, error free or free from any malware, virus or other malicious, destructive or corruptive code, programme or macros;
(b) any Advertisement or Service will be free from the effects of click fraud or similar activities (whether intentionally or not) which affect the measurement of Consumer views, clicks or dealings with an Advertisement or CPM, CPC or other similar metrics;
(c) any Advertisement or Service will be fit for any particular purposes, whether or not the Company has notice of that purpose;
(d) the Advertisements or Services will produce any particular result, or that any result obtained from the use of the Advertisements or Services will be accurate, adequate, reliable, timely or complete; or
(e) any content or information received or transmitted through the Advertisements or Services will be accurate, adequate, reliable, timely or complete.
8.4 No Other Reps and Warranties
Except as set out above, ADZ provides all Advertisements and Services as-is and as-available, and (to the greatest extent allowed under applicable law), ADZ provides absolutely no other warranties whatsoever.
9. Inbound Payments
9.1 In consideration of ADZ's performance of the Services or the Advertisements, the Customer shall pay ADZ the Inbound Fees.
9.2 The Customer shall pay all Inbound Fees in accordance with the applicable online payment process, where applicable. Where there are no online payment process applicable, the Customer shall pay all Inbound Fees on or before the date falling 30 days after the date of ADZ's invoice or other payment advice.
9.3 All Inbound Fees are exclusive of GST and any other similar taxes for time being charged on the supply of goods and services under applicable Singapore laws. The Customer shall pay GST and similar taxes.
9.4 If the Customer is required by applicable laws to withhold or deduct any sums on account of withholding or similar taxes, the Customer shall pay to ADZ an additional sum, so that the amount received by ADZ shall be the full amount as invoiced or advised by ADZ as if no deduction or withholding has been made.
9.5 Except for a manifest, computational or administrative error, the Customer shall pay in full all Inbound Fees. The Customer shall not on account of any inaccuracy, discrepancy or dispute relating to the Services or Advertisement, including those relating to audience, context, CPM, CPC or other similar metrics, withhold or deduct Inbound Fees.
9.6 If the Customer fails to make payment in accordance with the previous provisions, ADZ may charge the Customer interest (both before and after any judgement) on the amount unpaid for the period commencing on the date the payment is due and ending on the date full payment is made, at the higher of (a) 6% per annum, or (b) the rate of interest for the time being which the Singapore court awards on judgement debts.
10. Liability
10.1 Nothing in excludes or limits a party's liability in respect of:
(a) death or personal injury caused by its negligence; or
(b) any other liability which may not be limited or excluded under applicable law.
10.2 A party shall not be liable, and excludes all liability, to the other in contract, tort, negligence, breach of warranty, breach of statutory duty or under any other cause, for any loss, damage, cost or expenses of any nature whatsoever, incurred or suffered by the claiming party, if the loss, damage, cost or expenses:
(a) is indirect, consequential or constitutes special damages ; or
(b) constitutes loss of turnover, profit, business or goodwill, whether arising directly or indirectly from or in connection with the relevant breach, and even if arising as a direct and natural result of the relevant breach,
and whether or not
(c) the claiming party has been informed or had notice (whether actual or constructive) of the loss, damage, cost or expenses;
(d) the parties had at the Start Date foreseen or contemplated the possibility of the loss, damage, cost or expenses;
(e) the parties had at the Start Date foreseen or contemplated the cause of the loss, damage, cost or expenses; or
(f) the loss, damage, cost or expenses results from supervening events or circumstances after the Start Date.
10.3 Without limiting the above, the application of this Clause (Liability) shall not be restricted to those circumstances the parties had in mind at the Start Date.
10.4 To the extent permitted under applicable law, in circumstances where the a party has not effectively excluded liability to the other under the previous provisions, the maximum limit of the ADZ's liability to the Customer, whether in contract, tort, negligence, breach of warranty, breach of statutory duty or under any other cause, shall be the lower of (a) the amount which ADZ has received for the transaction giving rise to the liability and (b) S$500,000. Nothing in the previous sentence applies to a claim for unpaid Inbound Fees.
11. Termination
11.1 ADZ may upon written notice terminate the relevant agreement or insertion order with the Customer relating to the applicable Advertisement or Service. The Customer shall pay for any Advertisements already run or Services consumed.
11.2 The Customer may upon prior written notice terminate the relevant agreement or insertion order with ADZ relating to the applicable Advertisement or Service. Terminated Advertisements may be published despite the termination, if the termination occurs after any applicable commitment date agreed between the parties.The Customer shall pay for any Advertisements already run or Services consumed.
12. Governing Law and Jurisdiction
These Standard Terms are governed by and construed in accordance with Singapore laws. The parties submit to the non-exclusive jurisdiction of the Singapore courts.