The following terms and conditions shall govern the placement and delivery of advertising as set forth in any insertion orders or service agreements (“IO”) executed by and between Feeltap media. and Advertiser (the “Agreement”).
- Ads. Prior to the effective date of the campaign (as specified in the Insertion Order) Advertiser will create and deliver to FeeltapMedia all content required for any ads in the form requested by FeeltapMedia and in accordance with any specifications and policies set-forth by FeeltapMedia. The Advertiser represents and warrants that (i) Advertiser has all necessary licenses, right, title, interest and clearances in and to the ads, the advertising materials, any website(s), application(s) and material linked thereto or connected therewith, and the content contained or related therewith (the “Material”); (ii) the use of the Material by FeeltapMedia and its affiliates will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (iii) the Advertiser will fulfill all representations and commitments made in the Material; (iv) any and all Material are the sole responsibility of the Advertiser; (v) the Material and any website(s), app(s) and materials linked thereto or therewith do not and will not breach any duty toward or right of third party or entity including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories and the Materials will comply with all applicable laws, rules, restrictions, and regulations, including without limiting to, privacy laws, data protection laws and regulations, advertising laws, intellectual property laws and any and all laws and regulations applicable to the state or country where the ads are displayed; and (vi) the Material do not and will not include any content that is pornographic, illegal, racist, libelous, defamatory, contrary to public policy or otherwise inappropriate or unlawful; or any content that contains hate speech, “spam”, malicious code, adware, spyware or drive-by download applications; or any content that contains viruses or similar programs that might harm data or computer systems; or content promoting pornography, the use of illegal substances, illegal activity, racism, hate, “spam”, mail fraud, pyramid schemes or investment opportunities or advice not permitted by law; or content that is otherwise inappropriate or unlawful.
- Advertising Policy. Advertiser is solely responsible for the ads content, any website or application or other destination and the data and subject matter of any ad or advertising materials, and Advertiser releases FeeltapMedia from any and all liability arising from Advertiser’s use of the ads and advertising materials as permitted in this Agreement or IO. FeeltapMedia will not be required to publish any ad that is not in accordance with its policies, restrictions or specifications as determined in its sole discretion. Notwithstanding the foregoing, FeeltapMedia’s policies, specifications and/or recommendations should not be construed as legal advice, or as sufficient guidelines to ensure that such ads comply with applicable law. FeeltapMedia shall have no obligation to monitor or edit the ads, and FeeltapMedia assumes no obligation and hereby disclaims any liability for Advertiser’s use or placements of any ads. FeeltapMedia will determine the measurement of the impressions, clicks, offers, installs, conversions or other results and all payments will be based on such numbers and shall be final. FeeltapMedia shall not be responsible for any damage or loss as may be caused by the disruption of ads or the removal of ads by any third party, including but not limited to, any failure on the part of an advertising channel.
- Distribution of Ads. FeeltapMedia does not guarantee that Advertiser’s ads will be available through any specific part of the networks upon which FeeltapMedia places the ads, the timing of delivery of the ads and/or the placement and positioning of the Advertiser’s ads. FeeltapMedia reserves the right to approve, omit, edit or reject any of Advertiser’s ads for any reason at any time, including the right to make minor changes to the ads in order to optimize campaign results, with or without notice to the Advertiser. In addition, FeeltapMedia reserves the right, at any time, to remove any of Advertiser’s ads if FeeltapMedia determines, in its sole discretion that the ad or any portion thereof violates any of FeeltapMedia’s policies. In addition, FeeltapMedia shall have the absolute right to reject any URL link embedded within any ad. FeeltapMedia’s failure to reject, cancel, approve, omit, edit or modify shall not be construed as an acceptance of an ad, nor shall it negate other provisions of the IO or these terms and conditions, specifically with respect to liability. Third party publisher or its affiliates may reject or remove any ad for any or no reason. Advertiser agrees that FeeltapMedia shall not be responsible for any discrepancy in targeting criteria, which is the result of the publisher’s reporting methods.
- No Guarantee. To the fullest extent permitted by law, FeeltapMedia disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any impressions; (iv) clicks; (v) conversions or other results for any ads; and (vi) the adjacency or placement of ads within the advertising networks used by FeeltapMedia. Advertiser acknowledges, agrees and accepts the risk that prohibited or improper activity can be generated by third parties, and any credits or refunds for such activity are at FeeltapMedia’s sole discretion. FeeltapMedia shall have no responsibility or liability in relation with any third party click fraud or other improper actions that may occur.
- Payments. Advertiser will make payments to FeeltapMedia in accordance with the payment terms in the IO. Payments are due based on Advertiser’s ads placed by FeeltapMedia regardless of whether Advertiser has collected payment from its clients.
All amounts payable represent the net amounts to be received by FeeltapMedia and do not include any current or future transfer charges to correspondent banks, customs, duties, charges, sales tax, withholding tax, VAT or any applicable tax, which may apply and shall be borne, if applicable, by Advertiser. Advertiser shall pay FeeltapMedia the full amount invoiced, without offset or deduction.
Advertiser’s failure to make timely payment and/ or any charge-back by Advertiser shall constitute a material breach of the Agreement and Advertiser will be responsible for all reasonable expenses incurred by FeeltapMedia in collecting the amounts due plus interest at the rate permitted by law.
- Confidentiality. Advertiser agrees to keep this agreement and all of its terms, numbers and information, confidential. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation technical data, trade secrets, know-how, actual and anticipated research, developments or products, product plans, services, software, inventions, processes, discoveries, formulas, architectures, concepts, ideas, designs, drawings, personnel, customers, markets, marketing plans, distribution methods, business plans, finance and manufacturing plans). Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not include any information which (i) was publicly known prior to the time of disclosure by the disclosing party; (ii) becomes publicly known after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) was independently developed by the receiving party without use of the disclosing party’s Confidential information; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Each party shall use Confidential Information disclosed to it by the other party only for the purpose of the services of this Agreement and the IO signed by the parties and for no other purpose.
- License. Advertiser hereby grants to FeeltapMedia and FeeltapMedia’s affiliates and partners a non-exclusive, royalty-free, worldwide, transferable license, under all Advertiser’s rights, to: (a) use, perform, serve, place and display all ads and materials delivered hereunder; and (b) use all associated Advertiser intellectual property in connection therewith. Advertiser agrees that FeeltapMedia may include Advertiser’s name (including any trade name, trademark, service mark and logo) and any ad provided hereunder on FeeltapMedia’s advertisers list and in its marketing materials and sales presentations and provide FeeltapMedia with the license to use its trade names, trademarks, service marks and logo for the purpose hereof.
- OWNERSHIP. FeeltapMedia is the sole owner of any and all intellectual property rights associated with the services herein. FeeltapMedia retains all rights, title and interest, including any and all intellectual property rights in and to any materials created, developed or provided by FeeltapMedia in relation to Advertiser’s campaign. FeeltapMedia reserves all rights not expressly granted herein.
- NO WARRANTY. FeeltapMedia’s services provided hereunder are provided on an “as is” and “as available” basis, without any warranty of any kind and without any guarantee of continuous or uninterrupted display or distribution of any ad. In the event of interruption of display or distribution of any ad, FeeltapMedia’s sole obligation will be to restore service as soon as practicable.
- Limitation of Liability. In no event shall FeeltapMedia be liable for any consequential, incidental, indirect, punitive, special or other similar damages and any loss of profits, loss of revenue, loss of use, whether under tort, contract or other theories of recovery, even if it has been aware or advised of the possibility of such damages. THE CUMULATIVE LIABILITY OF FEELTAPMEDIA FOR ALL CLAIMS RELATING TO THE IO, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY ADVERTISER UNDER THE IO DURING THE THREE (3) MONTHS PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
- Indemnification. Advertiser agrees to defend, indemnify and hold harmless FeeltapMedia and each of its affiliates and their respective directors, officers, shareholders, employees and representatives from and against any and all damage, injury, liability, loss, costs and expense (including all court costs and reasonable attorneys’ fees) in relation to any proceeding or other claim, whether or not involving a third party claim, relating to (i) third party’ claim in relation to Advertiser’s use of the services hereunder, (ii) Advertiser’s alleged breach of or failure to perform Advertiser’s obligations or representations or warranties in these Terms or an IO , or (iii) any claim related to the ads, the advertising materials, any website(s), application(s) or materials linked or related thereto, and/ or the content of or representations made in or the services or products related therewith, (iv) any claim based on an assertion that any material provided in relation to these Terms or an IO infringe or misappropriate a patent, trademark or copyright or any other intellectual property right, and (v) the collection, processing or use of personal information by or on behalf of the Advertiser. FeeltapMedia will have the right to control the defense of any claim involving FeeltapMedia.
- Data Protection. For the purposes of these terms ‘Applicable Data Protection Law’ shall mean: (a) any applicable local implementing legislation of the Data Protection Directive; (b)from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR’s rules; (c) from the date of implementation, any applicable local legislation that supersedes or replaces the GDPR in a country or territory or which applies the operation of the GDPR as if the GDPR were part of any applicable local legislation; and (d) any other applicable data protection or privacy law of any jurisdiction. FeeltapMedia and the Advertiser agree to comply with the relevant provisions of Applicable Data Protection Laws. To the extent that any party processes any personal data that is either Controlled (as defined in Schedule 1) by another party in relation to this Agreement or Processed (as defined in Schedule 1) by another party on behalf of a third party Controller, it shall comply with the provisions contained in Schedule 1 of this Agreement. Where relevant, Advertiser warrants and undertakes that it has obtained and shall obtain all necessary consents (in accordance with all applicable law, including Applicable Data Protection Law) in relation to any Personal Data Controlled by the Advertiser and Processed (each as defined in Schedule 1) by FeeltapMedia in accordance with this Agreement.
- Miscellaneous. The IO and these terms will be governed and construed in accordance with the laws of HongKong without giving effect to conflict of laws principles. Any dispute or claim arising out of or in connection with an IO or these terms shall be adjudicated in Hongkong. This Agreement is not intended to and shall not be construed to give any third party any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or in the IO. Neither party may assign or transfer its rights under this Agreement without the prior written consent of the other party; provided that such consent is not required in the case of merger, acquisition or sale of all, or substantially all, of the assigning party’s assets, stock or business. The parties hereto are independent contractors and this Agreement does not create an agency, joint venture or partnership. Any notice permitted or required by this Agreement will be in writing and transmitted by e-mail to the receiving party at the address provided. Any such notice will be deemed to have been received on the same business day if sent by during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party. This Agreement, including all applicable Attachments and addendums hereto, constitutes the entire agreement between the parties concerning the services and related Confidential Information. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. FeeltapMedia reserves the right to modify, from time to time and in its sole discretion, any of the terms of this Agreement and Advertiser waives the right to receive notifications for changes. In the event that Advertiser continue the use of the services, it shall be deemed as acceptance by Advertiser of the modifications or changes. If Advertiser does not agree to the modifications or changes, Advertiser shall provide FeeltapMedia with written notification and stop using the services. No online click-through or online terms and conditions or policies shall be deemed to have modified this Agreement and the terms herein or any applicable IO signed in relation thereto, notwithstanding any requirement to technically click on or accept any such terms.
DATA PROCESSING ADDENDUM
This Data Processing Addendum amends the Agreement between Feeltap media. and our Partner and addresses the data protection requirements under applicable law. The terms herein form part of each Agreement between FeeltapMedia and Partner. Reference in this Addendum to “FeeltapMedia” shall include references to each applicable subsidiary or company within the group with whom Partner is engaged. Reference to “Partner” shall include reference to the entity that is acting as the provider/ vendor to FeeltapMedia.
Applicable Data Protection Law (a) any applicable local implementing legislation of the Data Protection Directive; (b) from 25th May 2018, the General Data Protection Regulation ((EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable UK national legislation that provides for specifications or restrictions of the GDPR’s rules; (c) from the date of implementation, any applicable local legislation that supersedes or replaces the GDPR in a country or territory or which applies the operation of the GDPR as if the GDPR were part of any applicable local legislation; and (d) any other applicable data protection or privacy law of any jurisdiction;
1 DATA PROTECTION
1.1 The parties agree to comply with the relevant provisions of Applicable Data Protection Laws and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Data Protection Law.
1.2 To the extent that any party processes any personal data that is either:
1.2.1 Controlled (as defined in Schedule A) by another party in relation to this Agreement; or
1.2.2 Processed (as defined in Schedule A) by another party on behalf of a third party Controller, it shall comply with the provisions contained in Schedule A of this Agreement.
1.1 In this Schedule the following terms shall have the following meanings:
“Controller” shall have the same meaning as set out in Applicable Data Protection Law;
“Data Subject(s)” shall have the same meaning as set out in Applicable Data Protection Law;
“European Economic Area, EEA” means the member states of the European Union from time to time plus additional states that are party to the EEA Agreement from time to time;
“Personal Data” shall have the same meaning as set out in Applicable Data Protection Law;
“Personnel” shall mean any staff (including temporary, casual and unpaid workers) and sub-contractors employed or appointed by the Processor;
“Processing” shall have the same meaning as set out in Applicable Data Protection Law and other parts of the verb “to process” shall be construed accordingly;
“Processor” shall have the same meaning as set out in Applicable Data Protection Law;
“Sub-Processor” shall mean an individual used by a Processor to process Personal Data on its behalf.
1.2 For the purposes of this Schedule the parties agree that either party may be transferring and/ or processing data under this Agreement. It shall be clear and agreed by the parties that FeeltapMedia may be Processor and/ or Sub-processor under this Agreement, and the obligations in paragraph 1.3 shall be construed accordingly.
1.3 Where the Processor Processes Personal Data on behalf of the Controller or the Sub-Processor Processes Personal Data on behalf of the Processor, the Processor or Sub-Processor (as applicable) shall:
1.3.1 process the Personal Data only in accordance with the documented instructions of the Controller or Processor (as applicable);
1.3.2 implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;
1.3.3 only employ or appoint Personnel to Process the Personal Data who have given binding undertakings of confidentiality;
1.3.4 without prejudice to paragraph 1.4, not transfer Personal Data outside of the EEA without the prior written consent of the Controller or Processor (as applicable) and (where the Controller or Processor (as applicable) consents to such transfer) covenant that the transfer shall be made in such a way as to ensure that the level of protection offered to natural persons by Applicable Data Protection Law is not undermined, which may, at Controller’s or Processor’s election (as applicable), involve the parties entering into standard contractual clauses as approved pursuant to ‘Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries’ (or any applicable superseding clauses);
1.3.5 comply with any obligations placed on it under Applicable Data Protection Law;
1.3.6 remain entitled to appoint third party Sub-Processors. Where the Processor or Sub-Processor appoints a third-party Sub-Processor, it shall, with respect to data protection obligations:
(a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as the Processor or Sub-Processor (as applicable) under this paragraph 1.3;
(b) upon request or if required by law, provide to the Controller or Processor (as applicable) copies of any documentation to demonstrate compliance with the obligations under this paragraph 1.3, and all Sub-Processors engaged by the Processor or Sub-Processor (as applicable) as at the effective date of this Agreement shall be deemed authorised;
1.3.7 in addition to the Sub-Processors engaged pursuant to paragraph 1.3.6 (above), be entitled to engage additional or replacement Sub-Processors, subject to:
(a) the provisions of paragraphs 1.3.6(a) and 1.3.6(b) being applied; and
(b) the Processor or Sub-Processor (as the case may be) notifying the Controller or Processor (as applicable) of the additional or replacement Sub-Processor, and where Controller or Processor (as applicable) objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith;
1.3.8 immediately alert and inform the Controller or Processor (as applicable) of a Personal Data breach (including, but not limited to, any unauthorised or unlawful Processing, loss of, damage to or destruction of the Personal Data) suffered by the Processor or Sub-Processor or third parties to which Personal Data has been transferred (“Personal Data Breach”) and provide all necessary co-operation and assistance to enable the Controller or Processor (as applicable) to comply with its obligations under Applicable Data Protection Law;
1.3.9 permit, or procure permission for, the Controller or Processor (as applicable) (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit the Processor’s or Sub-Processor’s data Processing activities and comply with all reasonable requests for information or directions by the Controller or Processor (as applicable) to enable them to verify and/or procure that the Processor or Sub-Processor is in full compliance with its obligations under this Agreement;
1.3.10 immediately notify the Controller or Processor (as applicable) if it receives a request from or on behalf of a Data Subject to have access to that person’s Personal Data or to exercise any of their other rights under Applicable Data Protection Law (a “Data Related Request”);
1.3.11 not respond to any Data Related Request without the prior written consent of the Controller or Processor (as applicable) and shall provide them with full co-operation and assistance in relation to a Data Related Request, including by:
(a) providing full details of the Data Related Request;
(b) assisting the Controller or Processor (as applicable) to comply with a Data Related Request (within any relevant timescales required by applicable law, including Applicable Data Protection Law and in accordance with their instructions;
(c) providing any Personal Data it holds in relation to an individual; and
(d) providing any other relevant information requested by them;
1.3.12 unless applicable law requires otherwise, upon termination of this Agreement:
(a) at the option of the Controller or Processor (as applicable) comply or procure the compliance with the following:
(i) return all Personal Data and any other information provided by the Controller or Processor (as applicable) to the Processor or Sub-Processor; and/or
(ii) delete all Personal Data provided by the Controller or Processor (as applicable) to the Processor or Sub-Processor permanently, safely and securely and provide a certificate of destruction; and
(b) cease to process the Personal Data;
1.3.13 where the laws of the country where the Processor or Sub-Processor is established require it to transfer the Personal Data to a third country or an international organisation, inform the Controller or Processor (as applicable) as soon as reasonably possible of that legal requirement unless that law prohibits such communication on important grounds of public interest.
1.4 By agreeing to this Schedule, Controller is entering into the EU Standard Contractual Clauses with the Sub-Processors established outside either the European Economic Area or countries considered by the European Commission to have adequate protection (Data Importers).
1.5 The nature/purpose of the Processing under this Agreement is to enable the Controller or Processor (as applicable) to carry out its obligations under the Agreement.
1.6 The duration of the Processing under this Agreement will be for the term of the Agreement.
1.7 The types of Personal Data which may be subject to Processing under this Agreement may concern contact details related to employees, consultants, subcontractors, advertisers, publishers or customers (including data related to users concerning the performance of ad campaign) of each Party.