1. iCLICK ADVERTISING NETWORK
iClick’s advertising network (iClick Advertising Network) aggregates advertising inventories across a number of advertising channels and platforms as selected by iClick from time to time, in connection with the execution of an advertising campaign. The advertising may include text, graphics, rich media or any other format and may be delivered physically, electronically, wirelessly or via any other media, channel or device. Advertisements may include search engine marketing, emails, short message service (SMS), multimedia messaging service (MMS), display ads, banner ads, video ads, pop-up windows, bridge or jump pages. iClick has the right to add to or subtract from the iClick Advertising Network any advertising inventories without notification to Client.
iClick will provide the service and perform the obligations as specified in the Service Order (the “Service Details”). With respect to a Service Order other than a Performance Marketing Service Order (as defined below), iClick’s provision of the services and other performance obligations shall be on a commercially reasonable-efforts basis. Client understands and agrees that the Service Details may be performed by any iClick group companies, and in the case of any Service Order other than a Performance Marketing Service Order, by any iClick group company and/or its service providers. iClick makes no guarantee with respect to the method it uses for measuring delivery or with respect to the accuracy of its measurement.
Client expressly agrees that iClick may at its discretion: (i) create or modify advertisements, (ii) add, modify or remove keywords, (iii) determine timing, placement, delivery, frequency, or number of ad units or impressions to be delivered on the iClick Advertising Network, (iv) make any other changes to any advertising campaign as it deems appropriate, and/or (v) control how the media budget is allocated amongst media channels [in the case of a Performance Marketing Service Order]. Client agrees and authorizes iClick to act on its behalf in connection with any advertisement iClick places, including sharing the confidential information of the Client with a third party, [subject to clauses 4, 5, and 8 of these terms and conditions].
3. ACCURACY OF INFORMATION
Client agrees and acknowledges that delivery statistics provided by iClick are based upon click count and pages opened, which are the sole, official and definitive measurements of iClick’s performance of the Service Details. Client acknowledges that iClick makes no representation, warranty or guarantee whether the click count and pages opened originated from a single individual, multiple individuals or individuals using Client’s service, or whether they were for research or any other purpose. Client acknowledges and understands that click count and pages opened may be corrupted and may not represent a true usage of Client’s website and that iClick makes no representation, warranty or guarantee that such statistics are a true and accurate representation of the usage of Client’s website.
4. USE OF DATA
Client acknowledges and agrees that data collected shall, in addition to performing the obligations to the Client, be used for the following purposes:
• Formation of algorithm: Our technology will collect the raw data from Client’s campaign (e.g. no. of clicks, click time, click-through rate, bid price, cost-per-click, conversion rate, etc.) to formulate our predictive algorithm (e.g. the impact of Christmas and other seasonal changes to a Client’s campaign can be factored into our algorithm for subsequent optimization);
• Product White Paper: Upon analyzing data collected, iClick would publish Product White Papers to disclose the findings obtained via our technology (e.g. how the number of clicks varies throughout the year for a particular industry);
• Marketing and Press Releases: Findings might be used in various marketing and press releases to share with the market.
Client hereby grants an indefinite non-exclusive license to iClick to use data collected for the purposes set out above, notwithstanding the Client ceasing to be a client of iClick and Client covenants and undertakes to iClick that it shall procure the necessary consent from its users for iClick to use such data collected, and provided that the data shall not be capable of identifying any individual user. This provision shall supersede any other prior non-disclosure or confidentiality agreement made prior to the date hereof between iClick, and any of its associated companies, and Client (if any).
5. ACCESS TO DATA
If Client is an agent executing the Service Order for and on behalf of its advertiser client(s), Client hereby represents, warrants and undertakes that: (i) it has the necessary power and authority to execute the Service Order on behalf of itself and its advertiser client(s) and to make all decisions, for itself as well as for and on behalf of its advertiser client(s), and to take all actions relating to the advertiser client(s)’ accounts, and that, the Client, by executing the Service Order on behalf of its advertiser client(s), binds its advertiser client(s) to the Service Order; (ii) it shall make all the representations and warranties on behalf of the its advertiser client(s) under the Service Order as if it were the advertiser client(s); and (iii) it will guarantee all the obligations of its advertiser client(s) under the Service Order as if it were the advertiser client(s). For the avoidance of doubt, nothing herein shall affect the obligations of the advertiser clients under the Service Order, which shall continue to bind the advertiser clients, who shall be deemed to have appointed the Client as its agent to execute the Service Order on its behalf. Upon iClick’s request, Client will immediately deliver to iClick each agreement that designates Client as the advertiser’s agent and authorizes the Client to act on the advertiser clients’ behalf in connection with the Service Order. Client and its advertiser clients shall be jointly and severally liable for all payment obligations due pursuant to the Service Order and these terms and conditions. Client acknowledges that iClick may directly contact any advertiser clients represented by Client in relation to any payment matters.
7. FEES AND PAYMENT
Client will pay iClick for all charges and fees as agreed by Client and iClick in writing. The statistics provided by iClick are the official and definitive measurements to calculate Client’s fees. Client will be invoiced as specified in the Service Order. Payment shall be made to iClick in accordance with the payment terms specified in the Service Order. Amounts paid after such due date shall bear interest at the rate of 1% per month or the highest monthly rate permitted by law, whichever is lower. All amounts payable to iClick shall exclude any sales, use, value-added and other taxes and all export and import fees, customs duties and similar charges (other than taxes based on iClick’s income) and any related penalties and interest, arising from the payment of any fees by Client to iClick or the delivery of service to Client, all of which the Client is responsible for paying, and upon iClick’s request, Client will provide iClick with official receipts and other proof of such payment. Client will make all payments to iClick free and clear of, and without reduction for, any withholding taxes. If iClick does not receive timely payment, Client will pay all amounts due on account upon demand and, in addition to any other rights, iClick may suspend performance and/or terminate services under the Service Order or any part of it and the Client will forthwith pay all outstanding fees (including accrued interest) to iClick.
9. REPRESENTATIONS AND OTHER ACKNOWLEDGEMENTS
Client represents and warrants to iClick that it (i) has obtained all required authorizations to consent to these terms and conditions; (ii) has all necessary licenses, consents and regulatory approvals to carry on its business and operations, (iii) is carrying on its business and operations in such a manner that there have been and are no breaches of applicable laws, regulations or bye-laws, (iv) has complied with the relevant laws and regulations on advertising, and (v) has not infringed on any third party intellectual property or other proprietary rights.
Client agrees that any products, services, code and/or programs provided by iClick (each a “Program”) for Client’s use are proprietary to iClick and are protected by applicable intellectual property laws and iClick retains all rights, title, and interests in the Programs, together with all derivative works, modifications, enhancements, and upgrades. Client further agrees that the content contained in any information presented to Client through iClick’s services or otherwise on iClick’s Advertising Network is protected by copyrights, trademarks, or other proprietary rights and laws.
Client hereby grants to iClick a non-exclusive, indefinite, worldwide, free of all fees and royalties and irrevocable license to:
• create, use, modify, reproduce, distribute and display Client’s advertisements and copies of any text, images, graphics, audio, or video on the websites to which Client’s advertisements links to;
• reproduce, distribute, display and transmit the advertisement in electronic or print form for marketing and promotional purposes; and
• upon completion of a Service Order, to grant a right to use, data collected for algorithm purposes, market research and press releases but without identifying Client and its individual users.
Client grants the right to iClick to use data collected for the purposes set out in item 4 above after Client ceases to be a client of iClick and Client shall procure the necessary consent from their users, but without identifying any individual user. Upon termination of the Service Order pursuant to clause 11, certain user information, not identifiable to an individual user, such as age group, income bracket, occupation, shall be retained by iClick for the purposes for preparing algorithm, Product White Papers and other general statistics for market research and press releases use.
Any Service Order may be terminated at any time during the campaign period by either party immediately upon written notice to the other party if the other party (i) becomes insolvent, or (ii) files a petition in bankruptcy, or (iii) makes an assignment for the benefit of its creditors; or (iv) breaches any of its obligations under the Service Order in any material respect, and which breach is not remedied within thirty (30) days following written notice to such party. In addition, Service Order may be terminated by iClick at any time during the campaign period by giving Client 7 days’ written notice in advance. Except as otherwise provided herein and in Service Order, the Service Order is irrevocable and not terminable by the Client. Any termination shall be without liability or obligation of the terminating party, other than with respect to any breach of the Service Order prior to the termination and payment of any fees due hereunder. The provisions of clauses [4, 7, 10-17] hereof survive any termination or expiration of the Service Order. Except as expressly set forth in the Service Order, neither party will be under any obligation to renew the Service Order upon expiration of the campaign period. If Client breaches any of the terms and conditions of the Service Order and the terms and conditions contained herein, iClick may suspend performance of all or any obligations under the Service Order until such breach is fully remedied. The right to suspend performance is without prejudice to any other equitable and legal rights that iClick may have for such breach and Client will be responsible for all reasonable expenses (including legal fees) incurred by iClick in relation to such breach.
Client agrees to indemnify and hold iClick and its agents, employees and otherwise harmless against any and all expenses and losses of any kind (including reasonable legal fees and costs) incurred by iClick in connection with claims of any kind relating to the advertisement (including, without limitation, any claim of design, trademark or copyright infringement, libel, defamation, breach of confidentiality, false or deceptive advertising or sales practices, any claim that the advertisement infringes in any manner any patent, copyright, trademark, trade secret or any other intellectual property right of any third party or violates privacy rights or any other rights of a third party) and/or any material of Client to which users can link through the advertisement.
Each party agrees to treat as confidential and not to disclose, duplicate, use or permit the use by a third party of any information, documents or materials provided by the other party under this Service Order and the terms and conditions contained herein other than for the purpose of providing its services under the Service Order or as may be required by law.
14. LIMITATION OF LIABILITY
All services supplied under the Service Order by iClick are provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose or non infringement. Neither the Service Order nor any documentation furnished under it is intended to express or imply any warranty that the services will be uninterrupted, in a timely manner or error-free. With respect to any Service Order other than a Performance Marketing Service Order, in the event that iClick fails to perform the Service Details in accordance with the campaign order details set out in the Service Order, the sole liability of iClick to Client shall be limited to, at iClick’s sole discretion: (a) a refund of the service fee or (b) extension of the campaign period. With respect to any Service Order including, for avoidance of doubt, a Performance Marketing Service Order, iClick’s maximum liability to Client shall not, for any reason, exceed the aggregate payments actually made by Client to iClick in respect of the campaign in question.
Notwithstanding anything to the contrary herein: (i) in the event that iClick fails to deliver in accordance with the campaign order details pursuant to the Service Order owing to a fault or delay caused by the Client, iClick shall not be responsible or liable for such failure to deliver and any damages caused as a result; (ii) in no event shall iClick be responsible for any consequential, damages, lost profits or any other form of damages arising from any failure to timely deliver the Service Details; (iii) iClick shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, Internet and/or electrical outages, computer viruses, acts of God, riot, explosion, strikes whether legal or illegal, shortages, war, acts of terrorism or any other condition beyond the control of iClick affecting production or delivery in any manner; (iv) iClick and its agents, employees or otherwise will not be liable to Client for any damages resulting from (a) the use of iClick’s services; (b) the cost of substitute goods and services; (c) unauthorized access to or alteration of Client’s data; (d) acts or omissions of any third party for goods and/or services provided, including with respect to clicks and/or impressions by any third party on Client’s advertisements, provided that, in the case of a Performance Marketing Service Order, the reference to “third party” in the immediately preceding sentence shall not include publishers; or (e) any other matter relating to iClick’s services.
15. GOVERNING LAW
Each Service Order and these terms and conditions shall be governed by and construed in accordance with, the laws of the Hong Kong Special Administrative Region and each party irrevocably agrees that the courts of the Hong Kong Special Administrative Region are to have non-exclusive jurisdiction to settle any dispute which may arise out of or in connection with any Service Order and that, accordingly, any legal action or proceedings arising out of or in connection with the Service Order may be brought in those courts.
The Service Order (i) may be amended only by a written agreement executed by an authorized representative of each party; and (ii) constitute the complete and exclusive agreement between the parties with respect to the subject matter hereof, and shall supersede and replace any and all other agreements, communications and undertakings, whether written or oral, between the parties regarding such subject matter. No conditions other than those as set forth in the Service Order shall be binding on iClick unless expressly agreed to in writing by iClick.
In addition to modifying the Service Order in writing signed by an authorized representative of each party, Client agrees that iClick may change these terms and conditions at any time by making such changes available on the iClick company website and/or by notifying the Client of such changes. If Client does not agree to such amended terms and conditions, it must notify iClick in writing within 5 business days of any notification of any change. The absence of such notice and/or Client’s continued use of the service shall be deemed to be an acceptance by Client of the changes to the terms and conditions.
If any provision of the Service Order or terms found herein should be found to be invalid or unenforceable, that provision and/or terms will be enforced to the maximum extent permissible, otherwise deemed to have been excluded from these terms and conditions, whilst the remaining provisions of the Service Order and terms and conditions herein will remain in full force and effect.
Neither the Service Order, nor any of the terms and conditions herein contained, may be construed as creating or constituting a partnership or joint venture between the parties.
No failure of either party to exercise or enforce any of its rights under the Service Order or the terms herein will act as a waiver of such rights.
The Service Order will bind and inure to the benefit of each party’s permitted successors and assigns. Client may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights shall be null and void. iClick may assign the Service Order, in whole or in part, to another iClick group company or service provider.
In case of discrepancy between the English version of this Service Order & the terms herein and its Chinese version, the English version shall prevail.
17. ADVERTISING GUIDELINES
Standard advertising material in such manner as set out in any Service Order must be submitted at least 3 working days prior to the launch of a campaign, failing which the campaign launch date may be delayed and iClick shall not be responsible for any loss resulting from such delay. If
• Client makes any changes to advertising material after submitting the same to iClick, such advertising material shall be reviewed and approved by iClick, and Client acknowledges that the campaign launch date may subsequently be delayed. Client will not change or cancel any media plans, bookings and advertising placements once iClick has confirmed in writing.
• All content submitted by the Client is subject to approval by iClick. iClick may return any part of any content to the Client to make changes or may, at its discretion, make changes to the content as it deems appropriate. If the Client makes any changes to the scheduled publishing date, such changes will be subject to the availability of advertising inventory on the iClick Advertising Network and the Client agrees to bear any additional costs that may result.
18. ADDITIONAL PROVISIONS WITH RESPECT TO PERFORMANCE MARKETING SERVICE ORDERS
A Performance Marketing Service Order refers to a Service Order under which iClick charges the Client based on the result of Client’s desired actions or specified parameters, which may include the number of clicks desired, the number of impressions desired, cost-per-clicks, cost-per-mille-impressions, cost-per-acquisition, or other metrics as specified in the relevant Service Order.
Where advertising fees are charged upon the number of actions (e.g. acquisitions/ conversions as defined in the Service Order), the fees payable by Client shall be the number of actions (if any) multiplied by the cost per action (“CPA”), subject to any overall caps or other terms agreed by Client and iClick in the Service Order. Notwithstanding the preceding sentence, iClick shall, in its sole discretion (i) decide the placement, timing, frequency, and number of ad units or impressions delivered, which in turn may impact the number of actions, and (ii) calculate the fees based on its own measurements or those of its third party service providers. Client shall render iClick its full cooperation to install and make fully functional as soon as reasonably practicable the Conversion Pixels (as defined below) on the Client’s website in accordance with the campaign period specified in the Service Order. “Conversion Pixel” means iClick’s tags (or the tags of third party nominated by iClick) on the confirmation page or any other code or file inserted or placed (or directed to be inserted or placed) by iClick (or third party nominated by iClick) on the Client’s website for the purposes of calculating fees due from Client. Client undertakes and agrees not to remove, alter, decompile, tamper with or deactivate the Conversion Pixels in any manner whatsoever without iClick’s prior written consent.
Where advertising fees are charged based on return on investment (“ROI”), ROI is defined as the sales revenue generated from users acquired through the advertisement specified in the Service Order (“Sales Revenue”) divided by advertising costs incurred by Client’s advertising account with publisher(s). Client shall provide iClick with the data on Sales Revenue periodically as agreed for iClick to consolidate, and upon iClick’s request, periodically provide advertisement conversion data in order to assist iClick in optimizing the advertisement. The fees payable by Client shall depend on the ROI achievement tier agreed in the Service Order. Client shall maintain, in accordance with applicable Hong Kong standards and practices, comprehensive books, accounts and records relating to the Sales Revenue for the calculation of ROI achievement, and iClick and its authorized representatives shall have the right to audit such books, accounts and records at all reasonable times upon 5 days prior notice to the Client to ascertain the accuracy of ROI calculated for billing purpose. Once the related invoice is issued by iClick, the ROI calculation becomes final and conclusive.
19. Interaction with Government Officials
These contract provisions may be used with Agents or other third parties (“the Representative”) interacting with Government Officials on behalf of iClick.
“Government Official” means any
(i) officer or employee of any
2. department, agency or instrumentality thereof (including any state-owned or controlled enterprise), or
3. public international organization;
(ii) political party or official thereof or any candidate for any political office; or
(iii) person acting for or on behalf of any such government or department, agency or instrumentality.
“Counterparty” means any of the Representative, its subsidiaries or affiliates.
Representations, Warranties and Covenants.
(a) Counterparty represents and warrants that it and its owners, directors, officers and employees are familiar with the requirements of the US Foreign Corrupt Practices Act, the U.K. Bribery Act of 2010 and applicable anti-bribery laws (the “Anti-bribery Laws”), and that none of them has violated or will violate the Anti-bribery Laws.
(b) None of Counterparty nor any of its owners, directors, officers or employees will make, offer, promise to make, authorize, or ratify (nor has it done so), whether in connection with the transactions contemplated by this Agreement or any other transaction involving iClick and its affiliates (the “Company”), any payment of money or gift of anything of value, directly or indirectly:
(i) to any Government Official, or
(ii) to any other person or entity while knowing that any portion of those payments will be made, offered, or promised, directly or indirectly, to a Government Official in order to obtain or retain business for or with, or to direct business to any person or to secure any improper advantage (e.g., a lower tax rate) for the Company.
(c) Counterparty represents and warrants that neither it nor any of its owners, directors, or officers is a Government Official or a member of the immediate family of a Government Official, except as has been disclosed in writing to the Company.
(d) If, after the date hereof, Counterparty or any of its owners, directors, or officers intends to become a Governmental Official or intends to become an affiliate or associate of any Governmental Official, it shall provide at least ten days’ prior written notice to the Company, which shall have the right to terminate this Agreement following such notice. If the Company terminates this Agreement pursuant to this paragraph, Counterparty shall not thereafter be entitled to any further fee or payment hereunder from and including the date of termination; provided that such termination shall not affect the right of Counterparty to payment for services rendered prior to such termination or to the extent otherwise required by applicable law.
(e) Counterparty represents and warrants that it is and will remain throughout the term of this Agreement in compliance with the laws, regulations, and administrative requirements of relevant country or jurisdiction of Counterparty incorporation and operations.
(f) Counterparty represents and warrants that it has not paid or offered and will not pay or offer, directly or indirectly, any political contributions in connection with its performance under this Agreement.
(g) The Company shall be entitled to request that Counterparty certify at any time or from time to time its compliance with the representations, warranties and covenants set forth in this Section, including as a condition to payment of any amount due to Counterparty hereunder, and to refuse payment of any such amount if the Company has reason to believe that any certification provided by Counterparty is inaccurate.
The status of Counterparty shall be that of independent contractor, and Counterparty and its employees shall not be deemed employees or agents of the Company. None of the terms of this agreement shall be deemed to create a partnership, joint venture, agency, employment, trust or other relationship between the Company and Counterparty or any of their respective employees. Counterparty shall not take or omit to take any action that may create any inference that Counterparty is an agent of the Company, nor shall Counterparty have any authority to create any obligation, express or implied, in the name or on behalf of the Company.
Payments and Records.
(a) All payments to Counterparty shall be subject to receipt by the Company of appropriate, detailed invoices from Counterparty, and to the provision of such other supporting documentation and accounting records as the Company may reasonably request. All payments to Counterparty shall be made by wire transfer to the account specified in this Agreement.
(b) Counterparty shall maintain accurate books and records associated with the transactions contemplated hereby, including without limitation, timesheets, work specifications, invoices, receipts and documentation of expenses. All such records shall be available for review and inspection by the Company or its representatives during Counterparty’s normal business hours, and Counterparty shall cooperate in any such review and inspection and shall provide all additional information related to this Agreement reasonably requested by Company.
(c) Notwithstanding any other provision of this Agreement to the contrary, if the Company has reason to believe that Counterparty has or may have violated any of its representations, warranties or covenants set forth in specify contract sections of agreement relating to anticorruption matters, the Company may immediately suspend all payments to Counterparty pending clarification to the Company’s reasonable satisfaction that no such violation has occurred. If the Company determines that Counterparty has violated any such covenant or representation, the Company may terminate this Agreement immediately and without penalty upon written notice to Counterparty.