ADV TERMS AND CONDITIONS GOVERNING INSERTION ORDER
ADV is the Flashtalking's Partner is an authorized representative of Flashtalking Pty Ltd, whose registered office is at Unit 301, Level 3, 92 Pitt Street Sydney, NSW 2000, Australia ("Flashtalking"), authorized to promote and sell Flashtalking’s Services in Malaysia, Vietnam, Philippines, Thailand, Cambodia, Brunei & Laos.
WHEREAS Flashtalking is a provider of digital advertising services which utilise and incorporate proprietary intellectual property rights relating to Flashtalking's systems, processes and platforms.
By issuing this Insertion Order (IO) or accepting or using the Services, Payer authorizes Flashtalking to perform the Services and agrees to pay for the Services via ADV, in accordance with the terms and subject to the conditions specified herein. Payer will be billed monthly or the campaign ends, in consideration for service rendered to it by Flashtalking and ADV, based on the rates specified in the IO, as maybe be amended by Flashtalking by providing Payer with written notice.
To avoid all doubts, Payer is fully and solely responsible for all campaign settings, including the “Start date" and "End date“ settings. The ad serving settings shall be determined and inserted by Payer on the Flashtalking Platform. In this regard, Payer will be billed based on the Flashtalking report, ad serving impressions, clicks and any activated advanced features.
Payer shall not use any third party’s video player unless specifically approved by Flashtalking in advance. Payer will be billed monthly or after the campaign ends (subject to ADV's approval if the campaign duration exceeds 30 days), within 10 business days from the end of the preceding month of service for the Services provided in the preceding month unless agreed otherwise by and between the parties in writing.
ADV reserves the right to require payment in advance.
GST / VAT / Digital Service Tax will be added if when and where it is applicable.
Payment must be received in full by ADV as per the amount stated in the invoice. If Payer is required by the applicable law to withhold and deduct taxes from the payment, then the payment to ADV shall be grossed up so that the payment to ADV will be as if there had not been any such withholding or deduction of any taxes. The overdue amount shall accrue interest of 1.5% per month of the amount due or any amounts not paid when due will bear interest at the highest rate permitted by law. ADV may charge, and Payer shall be responsible for payment of any applicable taxes payable in connection with the Services provided hereunder, as well as all reasonable expenses (including attorneys’‘ fees) incurred in collecting any overdue amounts from Payer.
If Payer fails to pay ADV any amounts when due, then subject to the notice and cure rights below, Payer assigns any and all of its rights to receive payment from third parties running the Flashtalking campaign (such as agencies, advertisers, etc.), up to the amount that is due and payable from Payer to ADV. ADV will provide Payer 5 business days prior written notice of nonpayment, during which Payer is entitled to cure the breach and to pay ADV in full; thereafter, ADV shall have the right to collect any and all payments due directly from those third parties, and Payer instructs and authorizes ADV to do so.
Payer grants Flashtalking a limited, non-exclusive, royalty-free license to use, reproduce, distribute, display and store the Advertisements and any customer data provided by Payer solely for the purpose of performing the Services as described herein. Flashtalking makes no warranties, express or implied, with respect to Flashtalking’s Services which are provided “as is“ by Flashtalking hereunder. Flashtalking shall have no responsibility for failures due in whole or in part to acts or omissions of Payer, networks, publishers, web sites, agencies, advertisers, viewers or third parties, or due to failures or defects in third-party hardware, software, networks or communications systems.
In no event shall Flashtalking or ADV be liable to Payer, networks, publishers, web sites, agencies, advertisers or viewers or any other party for any special, incidental, indirect or consequential damages, under contract, tort or otherwise, arising out of or in connection with this IO or with respect to Flashtalking’s Services, platform, ads, campaign or any other act, all of which are provided “as is“ by Flashtalking hereunder. Notwithstanding anything to the contrary herein, in no event shall Flashtalking’‘s total cumulative liability hereunder, from all causes or action of any kind, including contract, tort (including negligence), strict liability, breach of warranty, misrepresentation, or otherwise, exceed the amounts actually paid to Flashtalking pursuant to this IO. Payer warrants that its provision of any materials to Flashtalking in connection with this IO is authorized and does not breach Payer’s contractual obligations and/or any third party rights. Payer will defend and indemnify Flashtalking from and against any loss, damage, liability, cost or expenses, including reasonable attorneys’ fees, associated with Payer’s breach of its warranties hereunder. In addition to the foregoing terms, this IO is subject to the Flashtalking Privacy Policy located at: https://www.flashtalking.com/privacypolicy, as may be amended from time to time, and which are, to the extent not superseded or in conflict with these terms and conditions, incorporated herein by this reference. In the event of a conflict between the terms set out herein and the terms set out in the Flashtalking Privacy Policy, the terms set out herein shall prevail. Capitalized terms used but not defined herein have the meanings ascribed to them in the Flashtalking Privacy Policy. No change made by Payer in writing or otherwise to this IO or these terms and conditions shall be acceptable or binding on Flashtalking. Payer acknowledges and agrees that access to the Platform and this IO was granted only to authorized users of Payer whose signature herein shall be binding on Payer.
Payer will be billed monthly or the end of the campaign (subject to ADV's approval if the campaign duration exceeds 30 days), according to the actual number of impressions or clicks (as applicable) or the final media cost of any given Ad Format served, during each calendar month, at the Ad Format CPM / CPC rate (as applicable) or percentage of media spend specified in the IO.
TERMS AND CONDITIONS GOVERNING CREATIVES PRODUCTION SERVICES
13. Definition
“ADV Background IP” means Intellectual Property Rights owned by ADV immediately prior to the commencement date of this Agreement or developed independently of this Agreement.
“Creatives Production Services” shall mean services to convert, modify or develop Client Materials into the Creatives.
“Client Materials” means any documents, copy, data, text, trademarks, brands, logos, information, specifications, drawings and other materials provided by the Client, or their agents or employees to ADV for Creatives Productions Services.
“Creatives” means all materials data, banners, designs, artwork and rights to design and artwork (whether in digital or printed format) created or delivered by ADV under the Creatives Production Services.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
14. Timeline
14.1 Prior to signature of the Order, ADV shall provide the Client estimate the timeline or days required to complete all aspects of the Creatives Production Services. ADV reserves the right to alter the number of time or days required should the original estimate prove to be unrealistic, subject always to the approval of the Client.
14.2 In the event that the Creatives Production Services is delayed due to reasons directly attributable to the Client, ADV shall not be obliged to meet any original timeline, nor shall ADV be under any obligation to endeavour to make good any time lost due to actions or omissions on the part of the Client.
15. Client Material
15.1 Client warrants and undertakes that:
a. all Client Materials provided to ADV will be free and clear of all liens and encumbrances, and may be lawfully used by ADV without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright trade secret patent or trade mark rights of any third party.
b. the Client will be responsible for payment and obtaining the relevant authorizations and consents relating to the licencing, the copyright or the approval of any person relating to the Creatives.
c. the Client will also be responsible for payment and obtaining the relevant authorisations and consents relating to the use of the dramatic literary and artistic work and music and/or performers' services used in the advertisement. No advertisement copy will breach the copyright or other rights of or be defamatory to any third party.
d. it grants to ADV a fully paid-up, non-exclusive, royalty-free, non-transferrable license to copy, access, use, modify or create derivatives the Client Material for the purposes of providing services under this Agreement.
15.2 Client Materials must adhere to the ADV’s written requirements and must be in an editable format as specified by ADV. In cases, where the Client Material does not meet ADV’s requirements or not in the format specified by ADV, ADV shall in its own discretion to either:
a. reject the Client Materials without any liability on the part of ADV;
b. create new materials based on the artwork, images illustration or other materials provided by the Client or Advertiser; or
c. subject to the Client’s prior consent, modify the Client Materials to meet ADV’s requirements
15.3 Client Materials must be provided to ADV at least seven (7) days prior to the commencement of Creatives Production Services.
16. Scope of Work and Additional Works
16.1 The fees and charges for the Creatives Production Services are capped at two (2) rounds of approvals and five (5) rounds of Creatives revision.
16.2 If the Clients requires extra design, writing, editing or proof-reading services during a project, or extra files upon completion of a project beyond the initial scope of the Order. Client will be informed that the alterations or changes requested fall outside the scope of the original estimate. If the Client wishes these alterations to be made they must agree in writing, and an additional fee will be payable. All additional costs will be added to the final invoice.
16.3 Should the eventual post Creatives Production Services timeline is extended beyond that originally estimated by ADV, where the additional time required is directly attributable to requests for rework or additional services by the Client, ADV reserves the right to charge an additional fee in respect of the extra periods of post Creatives Productions Services timeline.
16.4 Due to the high demand for ADV’s Creatives Production services, ADV time may be occasionally booked out for days and weeks in advance. However, during such periods, if a Client should have a new creatives production project that requires quick turnaround to meet a crucial and imminent deadline and if ADV has the capacity to prioritise new jobs. In such cases additional minimum of 50% loading fees may be applicable dependant on available staff resources and number of workhours.
16.5 While reasonable care is taken to avoid errors, ADV accepts no responsibility for typographical errors, spelling mistakes or incorrect information on any Creatives committed to production. It is the Client’s responsibility to proof-read and approve all final artwork and written copy before production or publication. Email verification from the Client’s’ representative shall be conclusive as to the approval or all artwork and written materials prior to their release for ad serving, targeting, implementation, installation or any other form of publication.
16.6 ADV may use or purchase stock images in the creation of designs or Creatives if required by the Client and shall the Client shall be charged accordingly.
17. Intellectual Property Rights governing Creatives Production Services and Creatives
17.1 Until payment is received in full, the Creatives (whether in digital or printed format) shall remain the intellectual property of ADV.
17.2 Subject to Clause 10.1 above, ADV will assign to the Client all Intellectual Property Rights in the Creatives, except in relation to any of ADV Background IP or other intellectual property that ADV is not able or permitted to assign. In such case ADV shall have a perpetual, irrevocable licence to use, reproduce, modify, create derivative work such Intellectual Property Rights in the Creative for its internal and commercial purpose, unless agreed otherwise in writing. For the avoidance of doubt, Intellectual Property Rights that ADV had agreed to assign to the Client shall not include any licences (such as image licences) or other Intellectual Property Rights that ADV is not able or permitted to assign.
17.3 The assignment of Intellectual Property Rights to Client under Clause 10.2 does not extend to design proposals, artwork, drafts, concepts specifications, drawings and other materials submitted to but not approved or accepted by the Client for the scope of work outlined in the Order and ADV reserves its rights on the said materials. ADV further reserve its rights to RAW files, fonts, patterns, stock images, textures, colour palettes and other non-exclusive items or materials.
17.4 The Client further agree and acknowledges that all Intellectual Property Rights on native or source files or code ( including but not limited to the program that the file was originally built in, and is editable) of all work under the Creatives Production Services and Creatives shall belongs to ADV.
17.5 The Client’ agrees to allow ADV to showcase any/all work or Creatives as part of ADV’s portfolio. ADV reserve the right to use all artwork produced, concepts produced in the course of the Creatives Production Services (including those concepts not selected) and revisions for the purposes of promoting ADV in print or digital media portfolios, social media and blogs, except where the Client as specifically requested in writing otherwise.
17.6 ADV shall have the right to refuse ad serving, targeting, implementation, installation or any other form of publication of any Creatives or Client Material which in ADV's sole opinion is objectionable, unsuitable, impractical for any case or likely to contravene applicable laws or for any other reason without any responsibility or liability on the part of ADV.
GENERAL TERMS AND CONDITIONS GOVERNING THE ORDER
18. Payment and Termination
18.1 Client shall pay the Third-Party Costs, as invoiced by ADV. Examples of Third-Party Costs includes, but not limited to data storage fees, data processing fees, stock image/video/music fees, API access fees, and data feed fees. ”Third Party Costs” means the out-of-pocket costs, expenses, fees or applicable transaction costs incurred or accrued by ADV to third parties in relation to:
(a) access or use of third-party services when required under the Agreement; or
(b) when requested by the Client in writing.
18.2 Notwithstanding any provision to the contrary in this Agreement, either Party may, without prejudice to any of its other rights and remedies, terminate this Agreement by serving written notice on the other Party if:
(i) if the other Party commits a material breach of any of its obligations under this Agreement and such party fails to remedy such breach (if capable of remedy) within fourteen (14) day after being given notice to do so (a material breach means a breach which has a serious effect on the benefit which the terminating party would derive from this Agreement);
(ii) the other Party shall go into liquidation whether compulsory or voluntary (otherwise than for the purposes of restructuring or amalgamation which shall have been approved in advance) or if a petition shall be presented or an order made for the appointment of an administrator in relation to the other party or if a receiver, administrative receiver, judicial manager or manager shall be appointed over any part of the assets or undertaking of the other party and such appointment is not revoked within 30 days from the date of such appointment or if any event analogous to any of the foregoing shall occur in any jurisdiction;
(iii) it becomes illegal or unlawful for either Party to perform any of its duties and obligations under this Agreement.
18.3 ADV reserves the right to immediately terminate or suspend all or part of the Agreement at any time, if the Client is in default of its payment obligations or any other obligation owing to ADV under this Agreement.
18.4 If the Agreement or any part of the Agreement is terminated by Client for any reason whatsoever or where the Client’s acts or omissions result in termination of all or part of the Agreement, the Client agrees to pay to ADV early termination charges at 100% of the fees paid or payable under this Agreement and together with all Third Party Costs incurred. Such charges are to compensate for any costs or losses incurred by such actions as, but not limited to, work conducted prior to cancellation, any supplemental administrational work incurred by ADV and any loss of revenue due to rejected business opportunities
18.5 Except as otherwise expressly provided in under the Agreement, termination of the Agreement shall not affect the rights and obligations of the Parties that accrued prior to the effective date of such termination and shall be in addition to and not in lieu of all other rights or remedies that such Party may have at law or in equity or otherwise.
19. Personal Data and Privacy
19.1 Client shall notify ADV in writing if it requires ADV to receive, store, collect or otherwise deal with personal data or personally identifiable information and ADV has the discretion to determine whether it is able or willing to do so and ADV may impose an additional terms as it deem fit.
19.2 Client represents and warrants that any Client Data or Client Material that contains user identifiers, personally identifiable information and/or classified as personal data has been obtained via opt-in consent or otherwise to entitled the Client to provide such data to ADV for the purposes set forth under the Agreement.
19.3 Each Party undertakes, where applicable, to comply fully with the applicable personal data protection laws, regulations and/or policies in effect in any relevant territory from time to time and to procure that its employees, agents and contractors observe the said laws, regulations and/or policies. Any breach or potential breach of the provisions of these Data provisions shall be immediately notified in writing by the breaching party to the non-breaching Party.
20. Limitation of Liability and Indemnification
20.1 The maximum aggregate liability of ADV and ADV’s Affiliates under or in connection with the Agreement, whether in contract, tort (including negligence), strict liability, breach of statutory duty, or otherwise, shall in no circumstances exceed the amount equal to the remuneration or fees paid or payable from the Client to ADV under the applicable Order that give rise to such liability.
21.2 Neither ADV nor the Client shall be liable under the Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known and whether or not such Party has been advised of or is aware that such damages may be incurred.
21.3 If ADV’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, Advertiser or any other party outside its control, and such failure or delay in performance on the part of ADV shall not constitute a breach of this Agreement and ADV shall not be liable for any costs, charges or losses sustained or incurred by Client or Advertiser that arise directly from such failure or delay (including but not limited to revenue or publicity, missed deadlines or future opportunities).
21.4 Client shall indemnify ADV and keep ADV indemnified from and against all claims, demands, actions, losses, costs and expenses of any nature whatsoever (including legal costs) which may arise in respect of:
a. any alleged breach or actual infringement of Client’s representation, undertaking and warranties under these Terms;
b. any alleged or actual infringement, of any third party's Intellectual Property Rights (including without limitation patent, trademark, copyright and moral rights) arising out of the use of information, data or materials provided by the Client in accordance with the Agreement (including the Client Data or Client Material) “Intellectual Property Rights” in this clause means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.; or
c. Client’s breach of any applicable laws or legislation.
22. Confidentiality
22.1 Each Party shall treat all information provided by or obtained from the other Party under the terms of the Agreement as confidential and only use such confidential information to perform its respective obligations under the Agreement. Notwithstanding the above, the Client grant ADV the limited right to use the Client's name and logo on customer lists and informational materials.
23. Other Terms
23.1 ADV shall use reasonable endeavours to meet any dates specified in providing the services specified in the Agreement, but such dates shall be estimates only and time for performance by ADV shall not be of the essence.
23.2 Client acknowledges and agreed that Analytics Services and Creatives Production Services may be performed by ADV’s Affiliates. Client acknowledges that ADV may delegate, sub-contract or assign certain or all portion of ADV’s obligations under the Agreement to any third-party service provider or ADV’s Affiliates. “ADV’s Affiliates” under this Agreement means the ADV and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the ADV.
23.3 Neither Party may assign, transfer or novate this Agreement without the written consent of the other Party which is not to be unreasonably withheld or delayed; provided, however that ADV may assign, transfer or novate this Agreement, in whole or in part, to:
(a) ADV’s Affiliate.
(b) Successor company in connection with the sale, acquisition or transfer of all or substantially all of its shares, stock, business or assets to the successor company and/or merger with the successor company; and ADV shall give advance written notice to the Client of such assignment, transfer or novation as soon as reasonably practicable.
23.4 This Agreement shall be binding upon and shall inure to the benefit of each of the Parties and their permitted successors, transferees and/or assignees.
23.5 ADV is an independent contractor and not an employee, partner, or agent of the Client. Nothing in this Agreement shall be deemed to require the ADV to provide the services under the Agreement exclusively to the Client.
23.6 No variation or amendment to this Agreement shall be effective unless in writing signed by a duly authorized officer of each of ADV and the Client.
23.7 A person who is not a Party to this Agreement shall have no right under to enforce any of its terms.
23.8 The Client shall not, without the prior written consent of ADV, at any time from the date of this Agreement until the expiry of the 1-year period after termination of this Agreement, solicit or entice away from ADA or employ or attempt to employ any person who is, or has been, engaged as an employee of ADV in the provision of the IO.
23.9 This Agreement constitutes the entire agreement and understanding of the Parties and supersedes and excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written.
23.10 Section, clause, or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
23.11 This Agreement is governed by the laws of Malaysia. Any dispute arising out of or in connection with this Agreement, shall be referred to the courts of Malaysia
23.12 This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument. Delivery of this Agreement by email or functionally equivalent electronic transmission constitutes valid and effective delivery.
23.13 If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect.
23.14 Survival. Clause (and its subclauses, if any) 2, 3, 5, 8, 10, 11, and 12 will survive termination or expiration of this Agreement.