The following terms and conditions (the “Standard Terms”) shall be deemed to be incorporated into the attached advertisement order (the ” Service Order”):
1. Terms of Payment
The Service Order must be paid prior to any service start date unless otherwise agreed by Spot Response at its sole and absolute discretion. Any amounts paid after the Due Date shall bear interest at the rate of one percent (1%) per month or the prevailing rate as may be charged by Spot Response from time to time. In the event Client fails to make timely payment, Client will be responsible for all expenses (including legal fees on a full indemnity basis) incurred by Spot Response in collecting such amounts. Spot Response reserves the right to suspend performance of its obligations hereunder (or under any other agreement with Client) without further reference in the event Client fails to make timely payment hereunder or under any other agreement with Spot Response.
Client agree that all payments under the Service Order shall be exclusive of any value-added or goods and services tax imposed by any government, statutory or tax authority and that any such value-added or goods and services tax imposed by any government, statutory or tax authority in any country or territory in respect of such payments shall be borne by the Client. The Client further agrees that all amounts payable under the Service Order shall be paid as follows: (a) free of any restriction or condition, (b) free and clear of and without any deduction or withholding for or on account of any tax and (c) without deduction or withholding on account of any other amount, whether by way of set-off or otherwise. If at any time any tax or other amount must be deducted or withheld from the amounts paid or payable by, or received or receivable from, the Client under this Service Order, (except for a payment by the recipient of tax on its own overall net income) the Client shall pay such additional amount as is necessary to ensure that Spot Response receives on the Due Date and retains (free from any liability other than tax on its own overall net income) a net sum equal to what it would have received and so retained had no such deduction or withholding been required or made. Within 30 days after paying any sum from which it is required by law to make any deduction or withholding, the Client shall deliver to Spot Response evidence of that deduction, withholding or payment. As soon as the Client is aware that any such deduction, withholding or payment is required (or of any change in any such requirement), it shall promptly notify Spot Response.
Except as otherwise expressly provided in the Service Order, positioning of advertisements, keywords, search words category pages or search results (collectively advertisements) within Google, Facebook, YouTube, Yahoo, Bing, any ad networks and/or other online properties (the “Media Properties”) in the Service Order is at the sole discretion of the respective media owners (the “Media Owners”). The Media Owner may, at its sole discretion, remove the Service Order (and substitute with similar inventory) any advertisement that it believes to be a trademark, trade name, company name, product name or brand name belonging to or claimed by a third party for which Client has no permission to use. For the avoidance of doubt, the Media Properties are subject to all applicable Media Owner policies, including without limitation the editorial guidelines, privacy policies and any ad specification requirements (collectively, “Policies”). Policies may be modified at any time by the Media Owners.
4. Usage Statistics
Unless specified in the Service Order, the Media Owners and/or Spot Response make no guarantees with respect to the usage statistics or levels of impressions, page views, clicks or other similar statistics whatsoever (collectively know as the “Statistics”) for any advertisement. Client acknowledges that delivery statistics provided by the Media Owners and/or Spot Response are the official, definitive measurements of the Media Owners’ and/or Spot Response’s performance on any delivery obligations provided in the Service Order. No other measurements or usage statistics (including those of Client or a third party ad server) shall be accepted by the Media Owners and/or Spot Response or have bearing on the Service Order. Client further acknowledges that all statistics provided by the Media Owners and/or Spot Response in relation to its advertising products and services are purely estimates and should not be detrimentally relied on. Accordingly, the Media Owners and/or Spot Response make no representation or warranty with respect to such statistics whatsoever or with respect to its accuracy. Client also acknowledges that Spot Response makes no guarantee regarding the timing delivery of any impressions, clicks or conversions for any advertisement displayed on the Media Properties.
Spot Response is the legal owner and retains all right, title and interest in, and to, Spot Response’s underlying rights in its services provided, such as ad accounts, both Google and Facebook ad accounts, Facebook Pages created by Spot Response, reports provided to the Client (“Report”) including but not limited to the Report design, Report interface, Report functionalities, accounts created in the Media Properties for Clients, data collection functionalities, landing pages, microsites, supporting software, systems architecture, and any and all related technologies and processes (“Spot Response Intellectual Property”), including all improvements, modifications, suggestions, enhancement requests, feedback, recommendations, or derivative works thereof, including those made by Client, if any, which Client hereby assigns to Spot Response.
Client agrees not to: (a) sell, rent, sublicense or lease access to Spot Response Intellectual Property to provide services to third Parties, including but not limited to an ASP, time-share or other organization not provided for under the terms of this Agreement; (b) remove, obscure or alter any proprietary notices associated with Spot Response Intellectual Property; (c) willfully tamper with Media Owners’ and/or Spot Response’s provision of services and reports; (d) use Spot Response Intellectual Property, or allow them to be used, in any manner or for any purpose other than as expressly permitted herein; (e) reproduce, modify, make derivative works of, publicly perform, publicly display, use, make, have made, sell, offer to sell or import Spot Response Intellectual Property except as provided in this Agreement; or (f) disassemble, decompile, or reverse engineer Spot Response Intellectual Property.
7. No Assignment or Resale of Ad Space
Client may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights shall result in immediate termination of this contract, without liability to the Media Owners and/or Spot Response.
Except as expressly set forth in the Service Order, any renewal of the Service Order and acceptance of any additional advertising order shall be at the Media Owners’ and/or Spot Response’s sole and absolute discretion. Pricing and terms and conditions for any renewal period are subject to stipulations and changes initiated by the Media Owners and/or Spot Response from time to time.
9. Limitation of Liability
In the event (a) the Media Owners and/or Spot Response fail to publish a banner or media advertisement in accordance with the schedule provided in the Service Order, (b) the Media Owners and/or Spot Response fail to deliver the number of total impressions specified in the Service Order in relation to a banner or media advertisement (if any) by the end of the specified period, or (c) of any other failure, technical or otherwise, of such advertisement to appear as provided in the Service Order, the sole liability of the Media Owners and/or Spot Response to Client shall be limited to, at the Media Owners’ and/or Spot Response’s sole discretion, a pro rata refund of the advertising fee representing undelivered impressions, placement of the advertisement at a later time in a comparable position, or extension of the term of the Service Order until total impressions are delivered. For the avoidance of doubt the foregoing shall not be applicable to Media Owners’ and/or Spot Response’s search advertising products and services. In no event shall the Media Owners and/or Spot Response be responsible for any consequential, special, punitive or other damages, including, without limitation, lost revenue or profits, in any way arising out of or related to the Service Order/Standard Terms or publication of the advertisement, even if the Media Owners and/or Spot Response have been advised of the possibility of such damages. Without limiting the foregoing, the Media Owners and/or Spot Response shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of the Media Owners and/or Spot Response affecting production or delivery in any manner. Notwithstanding any other provision in this Agreement, except for liabilities for infringement of intellectual property or gross negligence, Spot Response’s total liability to Client shall not exceed the fees paid by Client to Spot Response.
10. Clients Representations
Advertisements are accepted upon the representation that Client has the right to publish the contents of the advertisement without infringing the rights of any third party and without violating any law. In consideration of such publication, Client hereby represents and warrants that it has obtained all necessary legal, regulatory and governmental approvals, licenses, consents and permits as the case maybe, in relation to the promotion, game, contest, lucky draw, sweepstake or lottery referred to and promoted in the advertisement campaign that the Service Order relates to (“Promotion”), if any. Client also warrants ownership or license to use the entire contents and subject matter contained in the creative including names, voices, pictures, and likenesses of persons, trademarks, service marks, and/or depictions of goods or services; including any testimonials or endorsements. Client agrees, at its own expense, to indemnify, defend and hold harmless the Media Owners and/or Spot Response, and its employees, representatives, agents and affiliates, against any and all expenses and losses of any kind (including legal fees and costs on a full indemnity basis) incurred by the Media Owners and/or Spot Response in connection with any claims , administrative proceedings or criminal investigations of any kind arising out of (a) publication of the advertisement; (b) the Promotion and its publication thereof; and/or (c) any Promotion, material, product or service of Client to which users can link through the advertisement (including without limitation, any claim of trademark or copyright infringement, defamation, breach of confidentiality, privacy violation, false or deceptive advertising or sales practices).
11. Provision of Advertising Materials
Client will provide all materials (including key or search words in respect of search advertising) for the advertisement in accordance with the Media Owners and/or Spot Response’s policies in effect from time to time, including (without limitation) the manner of transmission to the Media Owners and/or Spot Response and the lead-time prior to publication of the advertisement. The Media Owners and/or Spot Response shall not be required to publish any advertisement that is not received in accordance with such policies and reserves the right to charge Client, at the rate specified in the Service Order, for inventory held by the Media Owners and/or Spot Response pending receipt of acceptable materials from Client which is past due. Client hereby grants to the Media Owners and/or Spot Response a non-exclusive, worldwide, fully paid license to use, reproduce and display the advertisement (and the contents, trademarks and brand features contained therein) in accordance herewith.
12. Right to Reject Advertisement
All content of advertisements are subject to the Media Owners and/or Spot Response’s absolute approval. The Media Owners and/or Spot Response reserve the right to reject or cancel any advertisement, service order, URL link, advertisement reservation, search result placement or position commitment, at any time, for any reason whatsoever (including belief by the Media Owners and/or Spot Response that placement of advertisement, URL link, etc., may subject the Media Owners and/or Spot Response to criminal or civil liability).
Except as otherwise provided in the Service Order, the Service Order is non-cancelable by Client. All Service Orders have to be exercised by the Client within 6 months upon signing and confirmation of the Service Order (whichever is earlier). If the Service Orders are not exercised after the above mentioned period, the Service Order will be deemed to have expired and there will be no refunds of any money having been prepaid in such cases. Notwithstanding the generality of the foregoing, refunds may be given only upon receipt by the Media Owners and/or Spot Response of a detailed written statement and supporting evidence, satisfactory to the Media Owners and/or Spot Response, that the payment in question was made as a result of fraud.
This Service Order may be terminated by either party on ninety (90) days advance written notice effective as of the expiration of the notice period. Either party may also terminate any Service Order forthwith upon the occurrence of one or more of the events: (a) the other party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction); (b) the other party ceases or threatens to cease carrying on business; or (c) the other party commits a breach of any condition and fails to fully rectify and remedy the effects of such breach (if capable of rectification) within fourteen (14) days of service of a notice in writing. Any termination of any Service Order shall be without prejudice to any rights (whether accrued or otherwise) or obligations which either party may have against the other arising out of or connected with any Service Order.
(a) It is the responsibility of the Client to verify the accuracy of its published advertisement and where, for whatever reason, an advertisement is published with an error in it, the Client is responsible for informing Spot Response and/or the Media Owner of the error prior to the advertisement being repeated within 24 hours of the publication of the advertisement at the latest, failing which no complaints will be entertained. (b) To the fullest extent permitted by law, under no circumstances whatsoever shall Spot Response be liable to the Client for any liability, damages, losses, costs or expense incurred by the Client arising from or in connection with any electronic, electric, electrical, mechanical or other failure, error, omission, interruption or delay howsoever caused with respect to such firmware, bios, data, computer hardware or software, computer systems, communication systems or other automated systems, notwithstanding that Spot Response or its agents or employees are advised of the possibility of such liability, damages, losses, costs and/ or expenses.
16. Non-Solicitation of Employees
During the term of Spot Response’s assignment, and for a period of one year thereafter, neither Spot Response nor the Client may, without the other’s written consent, solicit or hire any employee of the other who was involved in the assignment. However, either party shall have the right to hire any individual employed by the other who, without other solicitation, responds to employment advertising in newspapers, trade publications, or other public commercial media or to any unsolicited walk-in candidates not related to the Agreement.
17. Press Release
Spot Response may issue a press release announcing client’s selection of Spot Response’s services 30 days after provisioning, and write a case study to be published 90 days after provisioning, the content of which will be mutually agreed upon.
No conditions other than those set forth in the Service Order or these Standard Terms shall be binding on the Media Owners and/or Spot Response unless expressly agreed to in writing by the Media Owners and/or Spot Response. In the event of any inconsistency between the Service Order and the Standard Terms, the Standard Terms shall prevail.
These Standard Terms, together with the Service Order, (a) shall be governed by and construed in accordance with, the laws of Malaysia, without giving effect to principles of conflicts of law; (b) may be amended only by a written agreement executed by an authorized representative of each party; and (c) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. Client shall make no public announcement regarding the existence or content of the Service Order without the Media Owners’ and/or Spot Response’s written approval, which may be withheld at the Media Owners’ and/or Spot Response’s sole discretion. All parties consent to the jurisdiction of the courts of Malaysia with respect to any legal proceeding arising in connection with the Service Order/Standard Terms.
20. Third Party Ad Serving
If the Media Owners and/or Spot Response have approved the (a) use by Client of a third party ad server; or (b) Client serving its own advertisements (both referred to as “Third Party Server”) in connection with this Service Order, the following provisions shall also apply: (i) The Client shall post each advertisement to a staging area and shall notify the Media Owners and/or Spot Response of such posting at least four (4) business days prior to the date on which Third Party Server is scheduled to serve such advertisement to the Media Properties. Such advertisement shall be reviewed by the Media Owners and/or Spot Response and must be approved in writing by the Media Owners and/or Spot Response before it can be served by Third Party Server. In accordance with Section 12, the Media Owners and/or Spot Response reserve the right to reject any advertisement or any element thereof, for any reason in its sole discretion. (ii) The Client shall post all scheduling changes, new target URLs, new HTML specifications, new graphics and all other new or revised advertisements (“Revisions”) to a staging area and shall notify the Media Owners and/or Spot Response of such posting at least four (4) business days prior to the date Client wishes such Revisions to take effect. Revisions shall not be implemented until approved by the Media Owners and/or Spot Response in writing, which approval shall be at the Media Owners’ and/or Spot Response’s sole discretion. (iii) If Client discovers that Client or Third Party Server has served, or caused to be served, an advertisement to the Media Properties in violation of this Agreement, Client must immediately provide notice to the Media Owners and/or Spot Response of the violation (along with a written explanation) and remove the advertisement from its placement or rotation on the Media Properties. Nothing in this Section shall limit any of the Media Owners’ and/or Spot Response’s right or remedies in the event of such breach. (iv) In the event the Media Owners and/or Spot Response exercise their right to cancel an advertisement in accordance with Section 12 hereof, the Media Owners and/or Spot Response shall notify Client in writing. The Client must cause the advertisement to be removed from the Media Properties and from its advertising rotation no later than four (4) hours after written notification by the Media Owners and/or Spot Response.
If an agency (appearing and named in the Service Order) (“Agency”) executes this Service Order for and on behalf of the Client, the Agency hereby represents, warrants and undertakes that: (a) it has the power and authority to execute this Service Order for itself and as well as for and on behalf of the Client; (b) it shall make all the representations and warranties of the Client under this Service Order/Standard Terms as if it were the Client; and (c) it will guarantee all the obligations of the Client under this Service Order/Standard Terms as if it were the Client. For the avoidance of doubt, nothing herein shall affect the obligations of the Client under this Service Order/Standard Terms, which shall continue to bind the Client, who shall be deemed to have duly executed this Service Order by its agent, the Agency.
22. Third Party Cookies
The Client warrants that:
Spot Response, and its suppliers/sub-contractors, are entitled to place cookies, pixel tags, pixel-less techniques or web beacons and related technologies and other relevant tags (the “Technology”) on, and collect information (including Client’s confidential information) from, the Client’s websites and other relevant sources of data in the performance of the services;
Any data provided by or on behalf of the Client shall not contain any information that Spot Response could use or recognize as personally identifiable information. The Client acknowledges: (i) any third party Technology and data (“Code”) is the property of its owner(s) and the Client does not have the right to use, adapt modify or copy any Code; (ii) that Spot Response does not make any warranty or representation of any kind in respect of the Code; and (iii) the Client assumes full responsibility for the operation of the Code. Any non-compete restrictions set out in the agreement between the Client and its agency shall not be applicable to Spot Response. To the extent permitted by law Spot Response’s liability shall not exceed the fees paid by Client to Spot Response.