General Terms and Conditions
This General Terms & Conditions (“T&C”), shall govern the relationship between Advertiser and Publisher. All Insertion Orders（“IOs”）shall enter into this T&C.
1. 定义 DEFINITIONS
“Service” means any service provided by Publisher to Advertiser in accordance with an applicable IO.
“End User” means visitors or users through the Publisher’s or third party’s website(s) to visit or use Advertiser’s products.
“Deliverable” or “Deliverables” means the service delivered by Publisher to Advertiser in accordance with the IO.
“IO (Insertion Order)” means document to clarify and describe the service details issued by Publisher to Advertiser from time to time. This T&C shall be accompanied with several IOs and each such IO shall be the part of this T&C and have the same effective with this T&C.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
1.7 “CPI （cost-per-install, 每次安装成本）”是指广告主按照用户通过发布方或第三方平台有效安装供应商产品的数量向发布方支付服务费的推广模式。
“CPI” means deliverables sold on a cost per install basis.
1.8 “CPC（Cost Per Click，按每次点击付费）”是指广告主按照用户通过发布方或第三方平台有效点击供应商产品的数量向发布方支付服务费的推广模式。
“CPC Deliverables” means Deliverables sold on a cost per click basis.
1.9 “CPM （Cost Per Thousand Impressions，每千人印象费用）”是指广告主按照供应商产品信息在发布方或第三方平台每展示1000次向发布方支付服务费的推广模式。
“CPM Deliverables” means Deliverables sold on a cost per thousand impressions basis.
2. 条款的效力 EFFECT OF TERMS
Acceptance of IO shall be subject to the T&C set forth herein.
Any modification to the T&C shall be of no effect unless expressly specified in IO in writing and signed by both of Parties or respective authorized representatives of the Parties.
This T&C supersedes all previous discussions and agreements of the Parties (or their subsidiaries or parent companies) with respect to the subject matter of this T&C.
ISSUANCE, ACCEPTANCE AND TERMINATION OF INSERTION ORDERS
Unless otherwise agreed by the Parties, IO is formally generated through either party and sent to the other party through post or email.
This IO will be effective on the date of both Parties’ signature. And the Parties confirm that the validity of the IO shall not be affected, whether or not the signed IO has been returned.
Either party may terminate this IO or part of this IO for its sole convenience by giving written notice of termination to the other party. However, Advertiser shall pay Publisher the relevant payments in accordance with the IO.
All the content and scope of the services provided by Publisher to Advertiser shall be in accordance with the IO or the notice form written in the IO.
Either party’s claim amount shall be limited to net cost of required work written in IO in process which has already happened.
4. 定价和税款 PRICING AND TAX
Pricing and tax shall be calculated by both parties and be in accordance with Item name, period of Item, Item objective, targeting criteria and so on, which are described in the IO.
5. 结算金额争议解决 BILLING DISPUTE
Billing amount shall be agreed by both of the parties and if there is dispute, final number shall be determined by both parties.
6. 保证 WARRANTY
Each of the parties hereby represents and warrants that it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement, and the execution of the T&C or the performance of its obligations under the T&C do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
Advertiser hereby represents and warrants that all publish contents including but not limited image, video, link, and banner are legally. Advertiser has exclusive ownership of Publish contents. If Advertiser breaches any of the foregoing representations and warranties, or items are otherwise non-conforming, at Publisher’s option, Advertiser shall promptly change, amendment, replace and shall pay to Publisher all incidental and consequential damages arising from breach of the foregoing representations and warranties.
Publisher hereby represents and warrants that it is qualified owns the right to engage in the services written in IO, and commitments on the information during the term of this contract the media will not due to the violation of the relevant laws, regulations and is ordered to close down, pause or for any reason cannot normal operation. Publisher guarantees that the contract of media ownership or information management rights, information agency, the signing of the contract, shall not violate any binding legal documents to the limit. If Publisher breaches any of the foregoing representations and warranties, or items are otherwise non-conforming, at Advertiser’s option, Publisher shall promptly change, amendment, replace and shall pay to Advertiser all incidental and consequential damages arising from breach of the foregoing representations and warranties.
Publisher is entitled to be on the information content of any modification, change, adaptation, edit or other forms of treatment in accordance with requirement of publish platform, law of country and/or region under written consent by Advertiser, and Publisher guarantees the promotion information provided by Advertiser, especially the company name, trade name, trademark, Logo, game, shall be used only with agreed cooperation contract. Publisher has the right to request correction or refused to release the advertisement if the contents and its formation provided by Advertiser for advertising do not comply with all the applicable laws and regulations, and it shall guaranteed that all the reviewed and revised contents and formation shall be in accordance with all the applicable laws and regulations.
Publisher shall not click or refresh Advertiser’s product without any reasons on its website. Any click produced by human factors is prohibited. Prohibited situation including but not limited to: clicking Publisher’s own ads or use any means to artificially inflate the number of impressions or clicks, asking others to click Publisher’s own ads or use deceptive implementation to get clicks, forging clicks or impressions, or other defraud clicks or refresh by software. Advertiser has the right to terminate the contract immediately and waive of the breach, include but not limit to request Publisher to make up the issue of the advertisements valued twice as much as the defaulted advertisements.
7. 免责声明 DISCLAIMER OF WARRANTY
Publisher does not have any obligation to monitor the materials provided by Advertiser, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the materials provided by Advertiser or anything described or written by Advertiser. Publisher Platform and any other technology or services provided by Publisher is on an “AS-IS” basis. Except as expressly provided in the T&C and to the fullest extent allowable by law, Publisher makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and disclaims any such warranties.
Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, theft, war, riot, embargoes or acts of civil or military authorities. If Delivery is to be delayed by such contingencies, either party shall immediately notify the other party in writing:
7.2.1 extend time of performance, or;
7.2.2 terminate the uncompleted portion of the IO.
8. 保密和公开 CONFIDENTIALITY AND PUBLICITY
During the course of IO, either party may have or may be provided access to the other’s confidential information and materials. Each party agrees to maintain such information in confidence and limit disclosure on a need to know basis, to take all reasonable precautions to prevent unauthorized disclosure, and to treat such information as it treats its own in formation of a similar nature, until the information becomes rightfully available to the public through no fault of the non-disclosing party. Both parties agree that neither will disclose the existence of IO, nor any of its details or the existence of the relationship created by IO, to any third party without the specific, written consent of the other. Neither party may disclose any confidential information to any other third party for other purposes without the other party’s written consent. Once request by one party, the other party should promptly sign the confidential agreement with it.
9. 知识产权保护 INTELLECTUAL PROPERTY INDEMNIFICATION
Both parties mutually recognize and respect respective registered trademarks and rights related thereof as well as other intellectual property rights of the other party. Unless otherwise specifically set out in the Agreement, the Agreement shall not be construed as authorization of the right to use any other intellectual property rights by either of the parties thereof to the other party. Both parties shall indemnify and hold the other party harmless from any costs, expenses (including reasonable attorneys’ fee), losses, damages, or liabilities incurred because of actual or alleged infringement of any patent, copyright, trade secret, trademark, or other intellectual property right arising out of the use or sale by Advertiser or Advertiser’s customers of Items or Advertiser’s products manufactured using the Item(s) or containing the Item(s), irrespective of whether Publisher furnishes any specifications to Advertiser, except as otherwise provided in this paragraph.
If necessary, either party has the right to request the other party promptly to sign the intellectual property protection memo.
10. 个人隐私 PRIVACY
If Advertiser transmits any personal information to Publisher, Publisher warrants that it shall not transfer such personal information to any third party that it’s unrelated to execute IO and T&C or use it for any purpose other than as described in IO and the T&C.
If Publisher obtains personal information in the course of performance of services, Publisher warrants that it shall not transfer such personal information to any individual in IO and this T&C.
Publisher shall take reasonable measures to ensure the security of data.
11. 赔偿总则 GENERAL INDEMNIFICATION
Either party shall, to the fullest extent permitted by law, protect, defend, indemnify, and hold the other party harmless from and against any and all claims, liabilities, demands, penalties, forfeitures, suits, judgments, and the associated costs and expenses (including attorney’s fee), which either party may hereafter incur, become responsible for, or pay out as a result of: any violation of IO and/or the T&C; and/or any violation of law, governmental regulation or orders.
If Advertiser does not conduct the scheduled payment in accordance with the provisions of this Agreement, in addition to the payable service fee, a daily 0.5% of the total amount of the billing amount shall also be paid as a breach penalty to Publisher. Meanwhile, failure to resolve or settle the payment after being received the notice from Publisher within seven (7) days, Publisher can immediately stop the advertising service and Advertiser shall assume Publisher the direct or indirect losses caused by it (including but not limited to the associated costs and expenses such as reasonable attorney’s fee, litigation fee and etc.)
If Publisher modifies, changes, edits or using any other technique to deal the information contents without any written consent by Advertiser, Advertiser is entitle to immediately terminate the contract and request Publisher to undertake the liquidated damages of 30% of IO or accumulated IOs’ amount, at the same time, Publisher shall indemnify, defend and hold harmless Advertiser against any and all losses, liabilities, damages, and penalties, and all related costs and expenses (including reasonable attorneys’ fees) (collectively “Claims”) until Advertiser’s all claims are made up.
APPLICABLE LAW AND DISPUTE RESOLUTION
The laws and the dispute resolution of this T&C shall be in accordance with the Framework Agreement for the Supply of Digital Advertising Services that signed by Parties.
13. 其他 MISCELLANEOUS
This T&C is written and executed in both the English and Chinese languages. Both parties acknowledge that they have reviewed both the Chinese and English language versions and hereby confirm that in all aspects except for language of expression the two language versions are substantially identical. In the event of any inconsistency between the two language versions, the Chinese version shall prevail.
Both parties hereby acknowledge that their relationship is provision and acceptance of service. Either party’s acceptance of IO and this T&C shall not be construed to create any partnership, corporation, joint venture, agency, or employer/employee relationship with the other party.
The T&C has the same legal effect with IO. In the event of a conflict between the T&C and IO, IO shall prevail.
If any provision contained in this T&C is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that mostly reflects the original intention of the parties, and the remaining provisions of this T&C will remain in full force and effect.