Those Terms and Conditions (the “T&C”) are entered into between the advertiser as defined in the Insertion Order (the “Client” which expression shall include any holding company and the final advertiser where Client acts as its agent) and Art of Click (“Art Of Click”). The Client and Art Of Click are collectively referred to as the “Parties”, individually as a “Party”. Those T&C are incorporated by reference to the Insertion Order and Client’s placing of an Insertion Order implies full acceptance by Client of those T&C. Those T&C and the Insertion Order shall form the agreement between the Parties, to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing (the “Agreement”). The Agreement shall govern the provisions of the Services by Art Of Click to the Client as described in the Insertion Order. In the event of conflicting provisions between the Insertion Order and these T&C, the Insertion Order shall prevail.
Unless otherwise agreed in writing by the Parties, fees charged by Art Of Click shall be based on the total amount reflected on the actual delivery at the end of each month or each campaign, whichever comes earlier, according to Client’s reports for CPI and CPA or Art Of Click’s reports for CPC and CPM. Art Of Click makes no representation or warranty as to the level of delivery under the Insertion Order. Client shall be responsible to validate all impressions, clicks, leads and/or conversions. (A) Where fees are based on Client’s reports, the Client shall send its report to Art Of Click no later than the 5th day of each month; failure to do so, fees shall be based on Art Of Click Reports and paragraph (B) below shall apply. Client shall, during the term of this Agreement and for a period of 3 months thereafter, retain books and records of all data necessary to compute the fees to be charged by Art Of Click to Client. Art Of Click (or any third party appointed by Art Of Click for that purpose) shall have the right from time to time to audit such books and records. In the event that the audit reveals an underpayment, Client shall forthwith pay such underpayment to Art Of Click together with late payment interests (in accordance with clause 3). If the underpayment is greater than 5%, Client shall reimburse Art Of Click the costs of the audit. Audit measurements are final. (B) Where fees are based on Art Of Click’s reports, Client shall notify Art Of Click Pte. Ltd. of any discrepancies between its measurements and the fees charged by Art Of Click within five (5) days from the date of Art of Click’s invoice. Failure to do so, Client acknowledges and agrees that Art Of Click measurements are final and prevail over any other measurements and Client waives any and all rights and title to dispute in connection or arising out of Art Of Click measurements. Whether fees are based on Client or Art Of Click reports, where no KPIs have been agreed in writing by Art Of Click and Client, Art Of Click shall not accept any rejection based on quality, including without limitation fitness for purposes, and all such rejections shall be charged by Art Of Click and paid by Client.
3. Invoicing and Payment.
All payments will be made in advance unless otherwise agreed in writing by Art Of Click. Art Of Click shall be under no obligation to perform any Services until full payment is received to the satisfaction of Art of Click. All payments shall be made in US dollars or any other currency as indicated in the invoice. Invoices are due and payable within thirty (30) days following the end of the month (i.e January 2017 invoice shall be paid on or before 28/02/17), whether the fees/invoice are disputed or not. If payment is not received within the due date, Art Of Click reserves the right, without prejudice to any other rights or remedies it may have under this Agreement, to charge 2% interest per month on the outstanding amount. Such interests shall accrue on a daily basis from the due date until actual payment of the outstanding amount. In the event of Client’s failure to pay invoices in accordance with this Agreement, (i) all costs for recovery, including without limitation attorney’s fees, incurred by Art Of Click, shall be reimbursed by the Client to Art Of Click and (ii) Art Of Click reserves the right to suspend the provision of the Services and/or to terminate this Agreement.
4. Taxes and Costs.
The fees charged by Art Of Click under this Agreement are exclusive of, and the Client shall bear, all taxes (including without limitation GST/VAT and withholding tax), banking costs, exchange costs, wire transfers, duties and any other costs arising out of or in connection with this Agreement. If the Client is required to withhold or deduct any tax from the fees, the Client shall pay such additional amount to Art Of Click as is necessary to ensure that Art Of Click receives a sum equal to what would have been received had no such withholding or deduction been required.
5. Content Guidelines and Ad Content.
The Advertisement Content is subject to Art Of Click’s approval and must comply with industry standard content guidelines. Art Of Click reserves the right not to publish any Advertisements that is not in accordance with its Content Guidelines.
6. Warranties and Indemnities.
Each Party represents and warrants to the other Party that it has the authority and requisite power to enter into this Agreement. Services are provided “AS IS” and, except as set out in this clause, Art Of Click gives no warranty or condition, express or implied, with respect to any matter and, in particular, but without limitation, expressly disclaims any warranties or conditions of non-infringement or the quality or fitness for any particular purpose of any Service provided under the Agreement. Client warrants and represents that it has all necessary rights and licences to permit the use of the Advertisement by Art Of Click under this Agreement and that all information provided under this Agreement is true, accurate, exhaustive and up-to-date. The Client further represents and warrants that the Advertisement (i) shall not infringe any rights of any third party (including without limitation intellectual property rights) or any other agreements or arrangements, (ii) shall comply with all applicable laws, (iii) does not contain any material that is obscene, defamatory or contrary to any applicable law or regulations and does not give access via hyperlinks to any property containing material that is obscene, defamatory or contrary to any applicable law or regulation and (iv) is free from any viruses. The Client shall indemnify, defend and hold harmless Art Of Click, its officers, shareholders, employees, representatives, agents and associated companies, against any and all losses of any kind, damages, claims, liabilities and expenses (including without limitation attorney’s fees and costs) suffered, incurred, awarded against Art Of Click or which are agreed by Art Of Click to be paid by way of settlement or compromise arising out of or in connection with clause 16 (Non Competition-Non Solicitation), the Advertisement and/or any material, product or service of Client to which users can link through the Advertisement.
7. Limitation of Liability.
Neither party limits its liability for (i) fraud or theft by it or its employees; (ii) death or personal injury caused by its negligence or that of its employees, agents or subcontractors as applicable and (iii) under clauses 8 (Confidentiality), 6 (Warranties and Indemnities) and 16 (Non Competition-Non Solicitation). Subject to the foregoing, the total aggregate liability of a Party under this Agreement, for whatever cause, whether in contract, tort or otherwise, shall not exceed in any event an amount equal to the last 3 months invoiced to and paid by the Client. Neither Party shall be liable to the other Party for any indirect or consequential loss or damage including, without limitation, any indirect loss of business or profits in each case whether arising from negligence, breach of contract or otherwise. The Parties expressly agree that if any limitation or provision contained or expressly referred to in this clause 7 is held to be invalid under any applicable statute or rule of law it will to that extent be deemed omitted but if any Party becomes liable for loss or damage which would otherwise have been excluded that liability will be subject to the other limitations and provisions set out in this clause 7. Nothing in this clause 7 will be taken as in any way reducing or affecting a general duty to mitigate loss suffered by a Party. The Parties agree that they have negotiated this clause 7 and that it represents a fair and equitable position.
Each Party shall treat and keep all information received under, or arising out of, this Agreement (including without limitation any data pertaining to any campaign, all information regarding the specific viewing of Art Of Click’s advertisements, the click-through rates of such Advertisements or Impressions generated, and the demographics of users that respond to the advertisements, processes, software, know-how, data and, subject to clause 12, contents and existence this Agreement) (the “Confidential Information”) as secret and confidential. The receiving Party shall not, without the disclosing Party’s written consent, directly or indirectly, communicate or disclose (whether in writing or orally or in any other manner) Confidential Information to any other person other than in accordance with the terms of this Agreement. The receiving Party will only use the Confidential Information for the sole purpose of complying with its obligations under this Agreement. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information: (i) to those of its directors, officers, employees, agents, professional advisers, contractors, sub-contractors or any associated company (the “Agents”) who strictly need to know the Confidential Information for the sole purpose set out in this clause provided that the receiving Party shall ensure that such Agents are made aware prior to the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the disclosing Party on the same terms as contained in this Agreement. The receiving Party shall at all times remain liable for any actions or omissions of such Agents that would constitute a breach of this Agreement; or (ii) to the extent required by law or the rules of any applicable regulatory authority. If any Confidential Information is copied, disclosed or used otherwise than as permitted under this Agreement then, upon becoming aware of the same, without prejudice to any rights or remedies of the disclosing Party, the receiving Party shall as soon as practicable notify the disclosing Party of such event and, if requested by the disclosing Party, take such steps (including the institution of legal proceedings) as shall be necessary to remedy (if capable of remedy) the default and/or to prevent further unauthorised copying, disclosure or use. Notwithstanding whether the receiving Party uses the Confidential Information in accordance with this Agreement or not (including modifying or amending the Confidential Information), all Confidential Information shall remain the property of the disclosing Party and its disclosure shall not confer on the receiving Party any rights of the disclosing Party (or its Agents), including intellectual property rights, over the Confidential Information whatsoever beyond those contained in this Agreement. The receiving Party agrees to ensure proper and secure storage of all Confidential Information and any copies thereof to at least the same standard as the receiving Party keeps its own Confidential Information. The receiving Party shall not make any copies or reproduce in any form any Confidential Information except for the purpose of disclosure as permitted in accordance with this Agreement. Without prejudice to any other rights or remedies of the disclosing Party, the receiving Party acknowledges and agrees that damages would not be an adequate remedy for any breach by it of the provisions of this clause 8 and that the disclosing Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the receiving Party or its Agents, and no proof of special damages shall be necessary for the enforcement of the rights under this clause 8. If there is a change of control of the receiving Party to a competitor of the disclosing Party then the receiving Party whose control has changed shall not, without the disclosing Party’s prior written consent, directly or indirectly, communicate or disclose (whether in writing or orally or in any other manner) Confidential Information to the new controlling party. This clause shall survive the termination or expiry of this Agreement.
9. Intellectual Property.
Each Party remains sole owner of the intellectual property rights it owned prior to the execution of the Agreement. Client grants Art Of Click a royalty free, worldwide, transferable, sub-licensable and unlimited licence to use, reproduce and represent the data provided by Client to perform the Services under this Agreement, including without limitation to use aggregate demographic information once stripped of any personally identifiable user information or advertiser-specific information, and to use, reproduce and display the Advertisement.
10. Term and Termination.
This Agreement shall come into full force and effect on the date of the Insertion Order and shall continue (i) for an indefinite period or (ii) until the date stated in the Insertion Order. Without prejudice to any of its other rights and remedies, either Party may terminate this Agreement immediately by written notice to the other Party (i) if the other party is in material breach of this Agreement (being a single event or a series of events which are together a material breach) and either such breach is not capable of remedy or, if the breach is capable of remedy, such other Party has failed to remedy such breach within 30 days of receiving written notice requiring it to do so; (ii) if a force majeure event persists for more than 30 days or (iii) if the other Party becomes insolvent, goes into liquidation, appoints an administrative receiver or analogous proceedings under relevant local law. Any termination or expiry of this Agreement for whatever reason will not affect any accrued rights or liabilities of either Party nor will it affect the coming into force or continuation in force of any other clauses and provisions of this Agreement which are expressly or by implication intended to come into force or continue in force on or after termination, including without limitation clauses 3 (Invoicing and Payment), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Intellectual Property), 11 (Governing Law. Dispute Resolution). On termination or expiry of this Agreement for whatever reason, Client shall immediately deliver to Art Of Click and/or destroy any and all Confidential Information which may be in the possession of, or under the control of the Client.
11. Governing Law. Dispute Resolution.
This Agreement shall be governed and construed in accordance with the laws of Singapore. All disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (the “SIAC”) in accordance with the Arbitration Rules of the SIAC for the time being in force, which rules are deemed to be incorporated by reference in this clause 10. The seat of arbitration shall be Singapore. Arbitration shall be held in English language. The tribunal shall consist of one (1) arbitrator.
Art Of Click reserves the right to use Client’s name, logos and trademarks for presentations, media kits, PR releases, PR campaigns, marketing and promotional materials, customer lists, financial reports and press releases. The respective trademarks and logos referred herewith are and remain the property of Client or their respective owners.
13. Downtime Compensation.
Client shall notify Art Of Click whenever it experiences downtime that may affect or affects the performance of Art Of Click obligations under this Agreement. In the event that Client’s site goes down during a campaign, Client shall compensate Art Of Click by the following process:
- Identify when the downtime occurred.
- Check server log of Client (avg. subscriptions generated per hour 3 hours before errors started to occur and 3 hours after errors were resolved). Lost sales would be determined by the average number of sales generated per hour of normal service minus the average number of sales generated during the downtime period multiplied by the number of hours of downtime.
- Art Of Click will check the server log for avg. revenue generated per 3 hours before errors started to occur and 3 hours after errors were resolved. Lost revenue will be determined by the average number of revenue generated per hour of normal service minus the average # of revenue generated during the downtime period multiplied by the number of hours of downtime. Lost sales would be the lost revenue divided by the payout per sale.
- Client shall pay Art Of Click the average of the lost sales estimate determined by Client and the lost sales estimate determined by Art Of Click
(A) Incent offers: incent traffic is usually used by applications to have a better rank in AppStore/Google Play. As for that, Art of Click will not accept any KPI on quality on the traffic: quality is not the goal of incent traffic. (B) Non-incent offers: Client has to provide quality KPIs (retention, in-app purchase etc) via server-to-server postbacks. If Client does not have any automated capability to send those KPIs by S2S, Art of Click expects two (2) reports per week on quality at a SubID level in order to optimize the traffic.
- If quality reports are given, Art of Click will work on optimization. If quality is not met after a certain time of optimisation the Client will have the choice to pause or stop the campaign. Client shall still pay for all conversions made from start of the campaign.
- If quality reports are not given, then Art of Click will not accept any rejection of traffic (for quality reasons or KPI not met) at the end of a campaign or during invoicing time at the end of the month.
If a fraud is suspected, or if the Client thinks that incent traffic is delivered on a non-incent offer, then evidence at a SubID level is required to reject those conversions. If the fraud is proven, then only fraud conversions will be rejected at invoicing time, without any impact on the rest of the campaign invoicing. Client shall notify Art of Click and provide evidences no later than the 5th of each month. Art of Click will not accept any rejection based on numbers already approved by Client.
16. Non-competition. Non Solicitation.
Client shall not, during the term of this Agreement and for  months thereafter, either alone or jointly, directly or indirectly, engage in or be involved in services which compete with the Services, marketing or distributing any products subject to the campaign described in the Insertion Order on the web. Whilst the restrictions in this clause are regarded by the Parties as fair and reasonable, each of the restrictions is intended to be separate and severable. Client shall not, during the term of this Agreement and for  months thereafter, either alone or jointly, directly or indirectly, solicit or entice or attempt to solicit or entice, any employee of Art Of Click to become employed whether as employee, consultant or otherwise by Client, whether or not such employee would thereby commit a breach of his contract of service.
17. Entire Agreement.
Except to the extent of any misrepresentation which constitutes fraud, this Agreement constitutes the entire agreement between the parties relating to the transactions contemplated by this Agreement and supersedes all previous agreements (whether oral or in writing) between the Parties relating to the transactions. Subject to this clause, each Party acknowledges that in entering into this Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement) made by or on behalf of any other Party before the date of this Agreement. Each Party waives all rights and remedies which, but for this clause 17, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
This Agreement, and any rights granted hereunder, may not be transferred, assigned, subcontracted or novated by Client without the prior written consent of Art Of Click. Art Of Click may freely transfer, assign subcontract or novate any or all of its rights, licenses and obligations associated with this Agreement at any time. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
- The Agreement may be amended only by a written agreement executed by an authorized representative of each Party. The Parties acknowledge and accept that electronic format shall be deemed an acceptable means of communication for the execution or sending of an Insertion Order or to modify the terms of an Insertion Order including its renewal. All notices will be addressed to the contact information set forth in the Insertion Order executed between the Parties.
- If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties. To the extent it is not possible to delete or modify the provision, in whole or in part, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall not be affected.
- When used in this Agreement, a company if a “holding company” of a Party if that holding company (i) holds a majority of the voting rights in it; (ii) is a member or shareholder of it and has the right to appoint or remove a majority of its board of directors or equivalent managing body; (iii) is a member or shareholder of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or (iv) has the right to exercise a dominant influence over it, for example by having the power to give, or by actually giving, directions with respect to its operating and financial policies with which its directors are obliged to comply.
- No variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of Client and Art Of Click.
- The rights of each Party under this Agreement may be exercised as often as necessary, are cumulative and not exclusive of rights or remedies provided by law save to the extent that such rights are inconsistent with those rights as expressly set out in this Agreement; and may be waived only in writing and specifically. Delay in exercising or non-exercise of any such right is not a waiver of that right.
- Each Party undertakes, at the request and cost and expense of the other Party, to sign all documents and to do all other acts, which may be reasonably necessary to give full effect to this Agreement.
- Nothing in this Agreement will be deemed to constitute a partnership between the Parties nor constitute either Party the agent of the other Party for any purpose.
- A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term of, or enjoy any benefit under, this Agreement.