Mobile Standard Advertising Terms and Conditions
These Standard Advertising Terms and Conditions (“Standard Terms”) shall be deemed incorporated by reference into any insertion order (the “Insertion Order”) between Weever Media Ltd, (hereafter “Company”), submitted by the Advertiser and shall govern the Insertion Order, superseding all terms therein except for those relating to Advertisement scheduling and pricing. As used herein, “Advertiser” means the advertiser or its agency set forth in the Insertion Order and “Advertisement” means any promotional, marketing, or other advertising material provided or made available to Company by Advertiser or developed by Weever Media for Advertiser under the Agreement. All Insertion Orders are subject to acceptance by Weever Media. The Standard Terms and Insertion Order shall be collectively known as the “Agreement.”
1. Term of Agreement.
The term of this Agreement commences on the date of the last signature set forth on the Agreement and shall remain in full force and effect until full payment of the amounts due hereunder is received by Company, which will be no later than 30 days after the Campaign End Date specified on the Insertion Order. The Advertiser may elect, in its sole discretion, to renew the Insertion Order upon prior written notice to Company. Except as expressly set forth in the Insertion Order, acceptance of any renewal of the Insertion Order by the Advertiser or any additional advertising order shall be at Company’s sole discretion. Pricing for any renewal period is subject to change by Company from time to time.
2. Terms of Payment.
The Insertion Order must be paid 30 days from the date of invoice. Full payment for invoices issued in any given month must be received by Company within thirty (30) days after the invoice date, or your Company account will be considered delinquent and your access to the service may be suspended. Unpaid charges are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Any account which is suspended for more than 30 days may be terminated without any obligation on the part of Company to maintain your content/data. In the event of any failure by Advertiser to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts. All payment amounts in this Agreement are in EUR.
3. Provision of Advertising Materials.
Advertiser must provide final Advertisements to Company no later than 5 business days prior to the Campaign Flight Date. If a Campaign Flight Date is delayed due to Advertiser’s delay in providing acceptable materials, then Company may, at its option, if it cannot honour the original Campaign Flight Date (and corresponding Campaign End Date) (i) reduce the number of impressions to be delivered on a pro rata basis based on the time available to Company after the delayed Campaign Flight Date; or (ii) extend the length of the campaign. Company will not issue a credit due to late or incorrectly submitted Advertisements and/or late or incomplete information. Advertiser hereby grants to Company a nonexclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit, and distribute the Advertisements and all contents therein in accordance herewith and solely to perform its obligations under this Agreement. If Advertiser uses third parties to serve the Advertisements hereunder (“Third Parties”), Advertiser shall be responsible for such Third Parties complying with the terms of this Agreement. Except as otherwise expressly provided in the Insertion Order, positioning of Advertisements is at the sole discretion of Company.
4. Right to Reject Advertisements.
All contents of Advertisements (including those served by Third Parties) are subject to Company’s approval. Company reserves the right to reject or cancel any Advertisement, Insertion Order, URL link, space reservation or position commitment, at any time, for reasonable cause (including, without limitation, belief by Company that any placement thereof may subject Company to criminal or civil liability or damage its business reputation). Company takes no responsibility for any content or applications within which Advertisements may be associated, and Company has no obligation to monitor such third-party content or applications within which Advertisements may be displayed. Advertiser must submit Advertisements in accordance with Company’s then existing advertising criteria or specifications; adult or gambling oriented content, content including alcohol, cigarettes and tobacco products, prescription and illegal drugs and any illegal or offensive content is prohibited.
5. Sole Remedy.
In the event that Company fails to publish an Advertisement in accordance with the schedule provided in the Insertion Order, or in the event that Company fails to deliver the number of impressions specified in the Insertion Order (if any) by the Campaign End Date specified in the Insertion Order, or in the event of any other failure, technical or otherwise of such Advertisement to appear as provided in the Insertion Order, the sole liability of Company and exclusive remedy of Advertiser shall be limited to, at Company’s sole discretion, placement of the Advertisement at a later time in a comparable position, or extension of the Campaign End Date specified in the Insertion Order until the total impressions are delivered.
6. No Warranty.
EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EACH PARTY EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, HOLD OR DELIVER ANY NUMBER OF IMPRESSIONS, OR OPERATE WITHOUT ERROR.
7. Limitations of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, LOST BUSINESS, LOST REVENUE, LOST PROFITS, INDIRECT OR OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT FOR A BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE OR WILFULL MISONDUCT, either party’s AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY COMPANY FROM ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE CLAIM. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THE SAME IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THEM. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR NEGLIGENCE CAUSING DEATH OR PERSONAL INJURY.
8. Advertiser’s Representations; Indemnification.
Advertiser represents and warrants to Company, that (i) it holds all necessary rights to permit the use of the Advertisements by Company for the purpose of this Agreement; and (ii) the use, reproduction, distribution, transmission or display of Advertisements, any data regarding users, and any material to which users can link, or any products or services made available to users, through the Advertisements will not (x) violate any criminal laws or any rights of any third parties or (y) contain any material that is unlawful or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or guidelines, including any third party intellectual property or proprietary rights. Advertiser and its agency (if applicable) shall be jointly and severally responsible under this Agreement. Advertiser agrees to indemnify, defend and hold Company harmless from and against any and all lawsuits, losses, causes of action, damages, claims and liabilities whatsoever, including, without limitation, reasonable attorneys’ fees and expenses, arising from, relating to or in connection with an alleged or actual breach by Advertiser of any of Advertiser’s representations or warranties made under this Agreement.
9. Company’s Representations; Indemnification.
Company represents and warrants to Advertiser that the technology underlying the Company service does not infringe any applicable copyright. Company agrees, at its expense (including payment of reasonable attorneys’ fees), to defend and/or settle any claim brought against Advertiser by a third party to the extent arising out of the alleged or actual breach of any of Company’s representations and warranties expressly set forth in this Agreement, and Company shall pay any settlement amounts entered into and damages finally awarded to the extent attributable to such claim;
10. Indemnity Process.
The indemnifying party will: (i) promptly notify the indemnified party in writing of the claim and (ii) have sole control of the defense and/or settlement of the claim. The indemnified party will provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim.
Except as otherwise provided in the Insertion Order, the Insertion Order is non-cancelable by Advertiser. If Advertiser cancels the Insertion Order, in whole or in part, and a volume of advertising impressions less than that specified in the Insertion Order is used and paid for, (i) any rate discount will be nullified and (ii) Advertiser agrees to pay any additional short-rate charges. As used in this Section, “short-rate charges” are charges for the difference between the rates set forth in the Insertion Order and the rates applicable for the volume actually used, in accordance with the applicable rate schedules.
12. Termination; Effect of Termination.
In the event of a material breach by either party, the non-breaching party may terminate this Agreement immediately without notice or cure period, without liability to the non-breaching party. In the event of any termination, (i) Advertiser shall remain liable for any amount due under an Insertion Order for Advertisement(s) delivered by Company and (ii)Company shall promptly refund Advertiser all monies for services not already provided and delivered prior to termination and each such obligation to pay shall survive any termination of this Agreement. Sections 2, 5, 6, 7, 8, 9, 10, 12 and 13 shall survive any termination or expiration of this Agreement.
This Agreement is governed by the laws of Federal Republic of Germany. The exclusive forum for any actions related to this Agreement shall be in the Courts in Berlin, Germany and the Parties consent to such venue and jurisdiction. This Agreement may be amended only by a writing executed by a duly authorised representative of each party. Advertiser agrees that Company may refer to Advertiser in its marketing materials and on any Company websites. The parties are independent contractors with respect to each other, and this Agreement does not constitute a partnership or joint venture among the parties hereto, or an employee-employer relationship. Company may assign this Agreement without the consent of Advertiser. Advertiser may not resell, assign, or transfer any of its rights hereunder and any attempt to do so shall result in immediate and automatic termination of this Agreement, without liability to Company. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, internet or telecommunications failures, third-party technology providers, shortages of or inability to obtain labour, energy, or supplies, war, terrorism, riot, acts of God or governmental action, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by facsimile or nationally recognised express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement 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 most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by Advertiser, including Advertiser’s insertion order, and Advertiser hereby disclaims any terms therein, except for terms therein relating to Advertisement scheduling and pricing. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.