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 FeelTapMedia and its subsidiaries (“FeelTapMedia“) and Publisher.
1. Services. FeelTapMedia will enable the provision of commercial advertisement ads on Publisher’s Site(s) (as defined below) through the use of the FeelTapMedia platform (the “Services”). Publisher may implement the Services only on such approved Publisher’s properties as set forth in a given IO (the “Site(s)“) and in accordance with the instructions agreed to by the parties hereto. Any change or amendment to the list of Site(s) must be done in writing and approved in advance by FeelTapMedia. Publisher shall be responsible and solely liable for all actions of its partners and affiliates, including without limiting to, compliance with the terms of this Agreement and any IO.
2. Consideration.(i) In return for the Services, FeelTapMedia shall retain a percentage of the Net Revenues (as defined below) derived from the Services, as set forth in the IO. “Net Revenue”means the revenue actually received from advertisers in relation to Qualified Transactions as part of the Services, less any taxes that FeelTapMedia is required to pay or collect in relation to the supply of Services, any credit card processing fees, bad debt and charge-backs, commissions or discounts allowed or paid to advertising agencies, refunds to advertisers and third-party partners and other payments to third parties if applicable. FeelTapMedia will pay Publisher in accordance with the revenue statement forty-five (45) business days following the end of the calendar month for which payment is due. (ii) It is hereby clarified that non-qualified transactions are not payable. FeelTapMedia may, at its discretion, discount, credit back or accrue a credit against revenue shares already provided to the Publisher for transactions which were deemed to be non-Qualified Transactions following payment. To the extent that inventory is determined by FeelTapMedia to be a result of non-qualified transactions, then, in addition to any other remedy available to FeelTapMedia, Publisher agrees that invalid impressions shall not be payable by FeelTapMedia. Any and all payments previously made by FeelTapMedia to Publisher on account of Publisher Sites which are subsequently deemed to include non-qualified transactions shall be promptly refunded to FeelTapMedia. FeelTapMedia shall have the right to off-set any amounts owed to it pursuant to this paragraph against any amounts owing to Publisher under this Agreement. A “Qualified Transaction” means a transaction that occurs when a bona fide Internet user views or fulfills some kind of actions (as agreed between the parties) in relation to the ad that appears in the Site(s); Without limiting the above, it is hereby clarified that transactions due to injection traffic, bot traffic or automatic injections by toolbars shall not be considered Qualified Transactions.(iii) All payments due are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including without limitation VAT) (collectively, “Taxes”). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder.
3. Reporting. Calculation of all payments made hereunder to Publisher will be made based solely on FeelTapMedia’s reporting system and statistics. FeelTapMedia will provide Publisher with access to its reporting interface that will enable Publisher to view an estimate of any amounts owed to it under the IO
4. Reporting. Calculation of all payments made hereunder to Publisher will be made based solely on FeelTapMedia’s reporting system and statistics. FeelTapMedia will provide Publisher with access to its reporting interface that will enable Publisher to view an estimate of any amounts owed to it under the IO.
6. Confidentiality. Publisher agrees to keep confidential the terms herein, the terms of the IO and any and all numbers, statistics and information with respect to the Services. Publisher agrees to keep all and any non-public information which is given by FeelTapMedia confidential, unless otherwise approved in writing by FeelTapMedia. FeelTapMedia may disclose the terms of the IO to third party processors on its behalf and to its advisors as necessary.
7. Term,Termination and Renewal. This Agreement shall be in full force and effect for a period of one (1) year beginning on the Effective Date of the IO and shall automatically renew for successive one (1) year terms, provided that FeelTapMedia may terminate the IO signed by the parties at any time and for any reason, upon 48-hours’ notice; Upon termination of the IO FeelTapMedia’s obligations relating to the Services will terminate.
8. Publicity. Publisher agrees that FeelTapMedia may use Publisher’s name and logo in presentations, marketing materials, financial reports and listings.
9. Indemnification. Publisher agrees to indemnify and hold harmless FeelTapMedia and its affiliates, directors, officers, agents and authorized representatives from and against any costs, losses, liabilities and expenses (including court costs and reasonable attorneys’ fees) in relation to any proceeding, legal action, arbitration or other claim, whether or not involving third party’s claim, in relation to (i) alleged breach of Publisher’s representations, warranties and obligations made hereunder , or (ii) Publisher’s collection or use of any data in connection with the IO; or (ii) the Site(s), the content of the Sites and the use by FeelTapMedia and its advertising partners and affiliates of the Sites or Publisher’s services and materials (iii) any claim related to the modified or amended ads or materials or based on an assertion that the Publisher, the Sites or the content linked therewith, infringe any right of third party, including without limited to, intellectual property right.
10. NO WARRANTY; LIMITATION OF LIABILITY. FeelTapMedia’s services are made available to publisher on an “as is” basis and without any warranty or representation, whether expressed or implied, of any kind including, but not limited to, warranties of merchantable quality, satisfactory quality, fitness for a particular purpose, noninfringement, or those arising by law, statute, usage of trade, or course of dealing. FeelTapMedia does not warrant or guarantee that the service or the operation thereof will be uninterrupted or will meet publisher’s needs. Publisher understands and agrees that the Services and actions in relation thereto are being affected by automated means and third parties, and FeelTapMedia is not responsible for, nor does it give any warranty or representation as to the outcome of such process. FeelTapMedia will not be liable for any consequential, incidental, indirect, punitive, special or other similar damages and any loss of profits, loss of revenues, loss of savings, loss of clientele, loss of use or loss or corruption of data, whether under tort, contract or other theories of recovery, even if FeelTapMedia should have been aware or advised of the possibility of such damages.In no event will FeelTapMedia’s liability arising out of this agreement from any cause of action whatsoever will exceed the aggregate amounts actually paid under this agreement to Publisher during the three (3) months prior to the date the cause of action arose. FeelTapMedia is not responsible for any web sites, application(s) or material that can be linked to or from the ads or for the results of any act or omission of any advertiser or any other provider of or for FeelTapMedia.
11. Miscellaneous. This Agreement 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 HONG KONG. 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 Publisher waives the right to receive notifications for changes. In the event that Publisher continue the use of the services, it shall be deemed as acceptance by Publisher of the modifications or changes. If Publisher does not agree to the modifications or changes, Publisher shall provide FeelTapMedia with written notification and stop using the services.