a. Advertisement.: means a display advertisement which may include a data feed of relevant advertiser data, including but not limited to products, images, prices and services from the advertiser.
b. Click Redirects: means a code which sends the user through Vizury's server to be cookied and redirects them back to their desired landing page.
c. Client: shall mean the entity first named above which is procuring the Services under this IO.
d. App Data Post-backs: means any means of collecting app user data from Client app using server to server post backs from app analytics vendors, Client app data store or using the Vizury SDK in Client app.
e. Cookie: means an alphanumeric identifier that is assigned to an internet user's computer when such computer is in communication with a server and recovered by the server, including when Web Beacons (being the string of code that represents a request on a Web page or email that submits a request to Vizury’s server and allows Vizury’s server to set and/or read a Cookie) are activated.
f. Data: means any data or other information which is collected by Vizury including through Tags / App Data Post-backs.
h. Vizury Technology: means and includes any proprietary programming code and scripts provided by Vizury under this IO, including Vizury's Java-based client, installed to activate Vizury's Tags / App Data Post-backs and designs, inventions, functionality, graphics, techniques, methods, applications, programs, products or other technology used by Vizury or made available by Vizury through the Vizury website.
2. Vizury Obligations:
a. Vizury shall deliver customized Advertisements to Client using Vizury Technology based on campaign objectives set out in this IO.
c. Any Data received and/or collected by Vizury will be used for performing the Service and improving performance.
3. Client Terms and Obligations:
a. Client shall allow Vizury to deploy Tags / App Data Post-backs on its’ websites/apps to collect Data from and about the users of the websites/app and analyze the Data provided to Vizury by Client or collected by Vizury from and about the users of the Client websites / apps to enable Vizury to perform the Services.
c. Client shall be responsible for the contents of any Client Data, all inputs received for creating Advertisement and all Advertisements (which are approved by the Client). Client shall also be responsible for ensuring that it has all approvals and consents necessary for the collection and use of Data and any content provided to Vizury under this IO.
d. In any instance of non-compliance with Vizury’s ad-policy guidelines by the Client as per Section 8(b) (i) below, Vizury shall immediately notify Client. Client shall review the concerned feed and take necessary steps to adhere to the ad-policy guidelines within twenty-four (24) hours. In the event Client fails to do so, Vizury reserves the right to switch-off certain sensitive inventory sources for campaigns pertaining to the Client. In case of repeated defaults of non-compliance by the Client, Vizury shall treat it as a material breach and reserves the right to stop all campaigns of the Client.
4. Payment Terms:
a. Invoicing: Vizury shall send out an electronic monthly report by the 2nd of every month along with an electronic copy of the invoice to the Client for the immediately preceding calendar month, for immediate processing; a hard copy, of the same will be couriered to the Client, only on request. Invoices will be generated based on Vizury attribution system. Client can access these numbers via the User Interface (UI) access provided at the start of any campaign.
b. Credit Period: Client agrees to make the payment for each invoice within thirty (30) days of end of campaign month. Any late payment shall be subject to costs of collection (including reasonable legal fees) and shall bear interest at the rate of 1.5% per month (prorated for partial periods).
c. Taxes: The fee / charges required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Client shall reimburse Vizury for all sales, service, use, VAT, GST, excise, property, or other taxes or levies which Vizury is required to collect or remit to applicable tax authorities. Client shall not withhold any taxes at the time of payment.
d. Payment Disputes: Client can raise a dispute in good faith with regard to an invoice within seven (7) working days of the invoice date and the dispute shall be amicably resolved by the parties. Client shall pay undisputed charges when such payments are due. The parties agree that data / figures as reported by Vizury’s system shall be treated as final unless agreed otherwise.
5. Media Partner:
a. Vizury partners with a variety of ad-networks, ad exchanges, yield optimizers and large publishers (each a “Media Partner”) to buy display ad inventory on which they display the Advertisements. Vizury has selected these Media Partner post strong due diligence. In case Client is uncomfortable with any Media Partner, it may request Vizury for re-considering display on such a website / apps. However, the decision to display or not to display content is the sole prerogative of Vizury. Also, Vizury shall not have any obligation to inform Client about the designated Media Partners.
b. Media Partners may reject or remove a specific Client Advertisement or target at any time for any or no reason. Vizury shall not be responsible and held liable for such removal of Advertisements by Media Partners.
c. If a Media Partner suspends Vizury’s ability to utilize its services at any time without notice to Vizury, Vizury will make commercially reasonable efforts to inform the Client of such suspension. Vizury shall not be held liable for such suspension.
a. Client Intellectual Property: Vizury recognizes that the Client is the sole owner of all right, title and interest in the operating practices/ procedures or other intellectual property rights relating to the business of Client, the Data (collectively, the “Client Intellectual Property”). During the term of this IO, Vizury shall have a limited, non-exclusive license to use, display, copy, and modify the Client Intellectual Property and Data solely to effectuate the purposes of this IO and perform the Services. Any customization or modification done by Vizury shall not affect Client’s exclusive rights to and ownership of all or any of the services offered by Client.
b. Vizury Intellectual Property: Vizury or its affiliates or its third-party licensors own the intellectual property rights used in the process of rendering the Services, including the Vizury Technology and any modifications, improvements thereto (“Vizury Intellectual Property”) and in any methodologies, processes, know-how or technologies associated to such Vizury Intellectual Property or acquired due to the performance of this IO. Client shall have a limited, non-exclusive license, during the term of this IO, to use and display the Vizury Intellectual Property solely to effectuate the purposes of this IO and receive the Services from Vizury.
b. Obligations: Vizury or its affiliates or its third-party licensors own the intellectual property rights used in the process of rendering the Services, including the Vizury Technology and any modifications, improvements thereto (“Vizury Intellectual Property”) and in any methodologies, processes, know-how or technologies associated to such Vizury Intellectual Property or acquired due to the performance of this IO. Client shall have a limited, non-exclusive license, during the term of this IO, to use and display the Vizury Intellectual Property solely to effectuate the purposes of this IO and receive the Services from Vizury.
a. Confidential Information: Either party (“Receiving Party”) agrees to keep confidential all non-public technical, product, business, financial, and other information regarding the business and software programs of the other party (“Disclosing Party”), its affiliates, customers, employees, investors, contractors, vendors and suppliers (the “Confidential Information”). Confidential Information of Vizury includes Vizury Technology, documentation and related materials.
b. Exceptions: Confidential Information shall however not include information that: (i) is or becomes publicly known other than by way of breach of this IO by the Receiving Party (ii) was already known or was in possession of the Receiving Party prior to the disclosure under this IO (iii) independently developed or acquired by the Receiving Party without violating the terms of this IO (iv) obtained lawfully from a third party without Receiving Party’s knowledge of any breach by such third party of its existing confidentiality obligations.
(i) Receiving Party shall at all times protect and safeguard the Confidential Information and agrees not to disclose, give, transmit or otherwise convey any Confidential Information, in whole or in part, to any third party.
(ii) However, Confidential Information may be shared by the Receiving Party with its’ affiliates officers, employees and permitted subcontractors provided that they have a need to know hereunder and are bound by confidentiality terms substantially similar to those contained herein.
(iii) Receiving Party shall not, by authorized or unauthorized access, review, reverse engineer, disassemble or decompile any Confidential Information.
(iv) Except as provided hereunder, Receiving Party agrees that it will not use any Confidential Information for its own purpose or for the benefit of any third party and shall honor the copyrights and other intellectual property rights of the Disclosing Party and will not copy, duplicate, or in any manner reproduce any such copyrighted materials.
(v) Upon request of Disclosing Party or upon termination of this IO, the Receiving Party shall promptly deliver to the Disclosing Party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) that are in its possession or control except a copy of such material which are required to be retained solely for statutory compliance or archival purposes.
d. The obligations under this clause shall survive termination or expiry of this IO for a period of one (1) year.
a. Both parties hereby represent and warrant that (i) this IO constitutes a legal, valid and binding obligation of (ii) its execution and delivery of this IO and its performance thereunder, will not violate or conflict with any other contract or agreement to which it is a party (iii) it will comply with laws applicable to its business.
(ii) it has authority to grant the licenses with respect to Client Intellectual Property, including with respect to those provided to Client by a third party; and
(iii) it will comply with all applicable laws (including laws applicable to privacy, collection, use and storage of data) that apply to it and its business;
c. Except for the foregoing, Vizury disclaims all other warranties, including implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights with respect to the Vizury Technology and Services.
a. Client agrees to indemnify and hold harmless Vizury, its officers, directors and employees from and against all third party claims, demands, actions, suits or cause of actions arising out of (i) any claim that the Advertisement content and Data infringe the intellectual property rights of such third party; (ii) any unauthorized or unlawful disclosure of its user data to Vizury under this IO. (iii) the Advertisement breaching any applicable law or Vizury’s ad-policy guidelines; (iv) any claim whatsoever by any consumer related to products or services offered or provided by Client to such consumers as a result of Services offered under this IO.
b. Vizury agrees to indemnify and hold harmless Client, its officers, directors and employees from and against all third party claims, demands, actions, suits or cause of actions arising out of any claim that the Vizury Technology infringes the intellectual property rights of such third party.
10. Limitation of Liability
a. Notwithstanding anything contained herein, neither party shall be liable for any indirect, incidental, special, exemplary, or consequential damages of any kind and however caused or for business interruption or loss of profits, business opportunities, or goodwill arising hereunder even if such party has been advised in writing of the possibility of such damages.
b. Notwithstanding anything contained herein, either party’s total aggregate liability under this IO, excluding liability that may arise due to breach of confidentiality (Section 7), payment obligations (Section 4) and indemnity obligations (Section 9), will be limited to the fees receivable by Vizury under this IO during a period of one (1) month preceding the date of claim.
11. Pausing of Campaigns:
a. Either party can call for “Pausing the Campaigns” in the event of (i) campaign objectives not being achieved; (ii) set expectations not being adhered to; (iii) non-adherence to payment terms by Client; (iv) mutually agreeing with the other party.
b. In such an event, Vizury will start to ramp down the campaign from a mutually agreed date and within forty eight (48) hours completely pause the campaign, unless the parties agree otherwise within such period.
c. Client undertakes to pay for all invoices raised for the period prior to the complete pause of a campaign, including during ramp-down phase.
12. Term and Termination:
a. This IO would be subject to auto-renewal post the completion of its duration, unless intent not to continue the same has been expressed by either party. All the agreed terms and conditions as in the existing IO would hold good for the self-renewing IO, unless changes are mutually agreed upon between the parties in writing as an addendum to this IO.
b. This IO may be terminated prior to expiration or completion as follows:
• By either party in the event the other party has materially breached this IO and such failure is not corrected within thirty (30) days from receipt of written notice advising of such failure from the other party.
• By either party by giving a prior notice of thirty (30) days to the other party of its intention to terminate the IO.
c. The expiration or termination of this IO for any reason whatsoever shall not affect any obligation of either party having accrued under the IO prior to the expiration or termination of the IO and such expiration or termination shall be without prejudice to any liabilities of either party to the other party, including that of payment of fees due and pending by Client to Vizury.
d. All undisputed payments due and payable to Vizury under this IO shall be payable by Client within seven (7) days from the date of termination of the IO.
13. Governing Law and Dispute resolution:
a. If Vizury entity signing the Order Form is Affle (India) Limited, this Agreement shall be governed by and construed in accordance with the laws of the India without regard to the provisions of conflicts of law. The courts at Delhi, India, shall have exclusive jurisdiction over any dispute or claim arising out of or relating to this Agreement or any breach thereof.
b. If the Vizury signing entity is Affle International Pte. Ltd., this Agreement shall be governed by and construed in accordance with the laws of Singapore without regard to the provisions of conflicts of law. Any dispute or claim arising out of or relating to this Agreement or any breach thereof shall be solely settled by arbitration in Singapore in accordance with the Arbitration Rules of the Singaporean International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be incorporated by reference in this Section. The arbitration tribunal shall consist of one (1) arbitrator to be appointed by the Chairman of SIAC. The language of the arbitration shall be English. Subject to the above, the courts at Singapore shall have exclusive jurisdiction.
c. If the Vizury signing entity is PT Affle Indonesia, this Agreement shall be governed and construed in accordance with the laws of the Indonesia without regard to the provisions of conflicts of law. Any dispute or claim arising out of or relating to this Agreement or any breach thereof shall be solely settled by arbitration in Indonesia in accordance with the Arbitration Rules. The appointing authority shall be BANI (Badan Arbitrasi Nasional Indonesia). The arbitration tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English. Subject to above, the courts at Jakarta shall have exclusive jurisdiction.
d. If the Customer signing entity is located in the United States of America, this Agreement shall be governed and construed in accordance with the laws of State of California without regard to the provisions of conflicts of law. The State and Federal courts located in the County of San Francisco, State of California shall have exclusive jurisdiction over any dispute or claim arising out of or relating to this Agreement or any breach thereof.
a. Assignment: Customer may not assign its rights or obligations, in whole or in part, under this IO without the written consent of Vizury. Vizury may assign its rights or obligations, in whole or in part, under this IO to any third party.
b. Survivability: The terms of Sections 4, 6, 7, 8, 10, 12 and 13 shall survive the term of this IO.
c. Notices: All notices under the IO will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means (such as fax or e-mail as duly provided by the authorized representatives of either party for the said purpose) or by overnight air courier service, or as of three (3) working days after deposit in the mail (certified, return receipt requested) to the addresses mentioned hereinabove.
d. Force Majeure: In no event shall either party be liable to the other for any delay or failure to perform due to causes beyond the control and without the fault or negligence of the party claiming excusable delay, but only to the extent that such delay could not have been avoided by the taking of reasonable precautionary measures. Such causes shall include but are not limited to acts of God, floods, fire, utility failure, acts of terrorism, war etc.
e. Entire Agreement and Waiver: The provisions of this IO constitute the entire agreement between the parties with respect to the subject matter herein and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of the IO. A party's failure to exercise or delay in exercising any right, power or privilege under this IO shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereto.
f. Amendment: This IO may be amended only by a written instrument signed by the parties. Any changes agreed in writing to the specifics of the services to be performed for a campaign shall be on a prospective basis only.
g. Non-solicitation: During the term of this IO and for a period of two (2) years thereafter, Client agrees not to hire, solicit, nor attempt to solicit, the services of any employee of Vizury without the prior written consent of Vizury.
h. Publicity: Vizury shall have a right to use the Client’s name and trademark/logo solely for the purpose of including the Client’s name in Vizury’s general client base.
i. Severability: The invalidity or unenforceability of any provisions of this IO shall not affect the validity or enforceability of any other provision of this IO, which shall remain in full force and effect.
j. Independent Contractor:: Each Party is and will remain an independent contractor with respect to all performance rendered pursuant to the IO.
k. Headings: The section headings contained in this IO are for reference purposes only and shall not affect the meaning or interpretation of this IO.
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