PLUCKY AFFLUENT LIMITED (“Plucky”, “Advertising Agency”, “Agency” or “Ad Agency”) and the Advertiser (“Advertiser” or “Client”); (hereinafter collectively referred to as “the Parties”) agree to the following Terms and Conditions (“T&C”) as well as the IO. (Insertion Order) and/or any other Annexes which may be attached to this Agreement (all together reffered to as “the Agreement”). The referred Agreement governs the parties´common understanding upon the provision of the Agency´s services from the date of the signature.

 

Parties involved

  • The Agency, a company registered in Hong Kong, whose registered office is at RM 2A 14/F Chun Wo Comm Ctr. 23-29 Wing Wo St. Central. Hong Kong. Tax Nº 67207247.

  • The Advertiser´s corporate information shall be appointed in the respective IO. And/or Annex.

Whereas

  • The main activity of the Agency is to display the Advertising Materials provided by the Advertiser and perform lead generation services which shall be described in the corresponding IO.

  • The Advertiser hereby appoints the Agency as Advertiser´s exclusive Advertising Agency in connection with the products and/or services of Advertiser described in IO. And/or Annex, attached hereto, for a term (“Term”) as hereinafter provided. 

 

It is agreed in consideration of the mutual covenants contained herein:

 

Definitions

Ad” means any advertisement provided by Agency on behalf of an Advertiser.

Advertiser” means the advertiser for which Agency is the agent under an applicable IO.

Advertising Materials” means text, artwork, copy, or active URLs for Ads, graphics, logos, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, popups, and pop-provided by an advertiser.

Agency” means the advertising agency listed on the applicable IO.

Company Network” means the advertising network owned and operated by Agency or other third parties.

CPA Deliverables” means Deliverables sold on a cost per acquisition basis.

CPC Deliverables” means Deliverables sold on a cost per click basis.

CPI Deliverables” means Cost per Install, specific for mobile applications.

CPS Deliverables” means cost per sale; this is, paying a commission on a sale only if the lead results in a purchase

CPL Deliverables” means Deliverables sold on a cost per lead basis.

CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.

Deliverable” or “Deliverables” means the inventory delivered by Agency (e.g., impressions, clicks, or other desired actions).

IO” means a mutually agreed insertion order that incorporates these Terms, under which Agency will deliver Ads on Sites for the benefit of Advertiser.

Media Company” means the publisher listed on the applicable IO.

Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company.

T&C or Terms” means these Terms and Conditions.

Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.

Third Party Ad Server” means a Third Party that will serve and/or track Ads.

User Action” means a completed action by the Advertiser, such as the completion of a lead form or product purchase.

 

Other definitions not provided herein shall be interpreted in accordance with the uses of the specific sector.

 

Agreement

 

  1. Scope of Advertising services: The Agency will place the Advertiser´s Advertising Materials through the Company Network according to the specifications within the IO. The Agency will act as the Advertiser´s agent in accordance with the T&C set forth in this Agreement. Should Advertiser request Agency to perform additional services beyond what is provided herein, an addendum to this Agreement or a new Agreement will be settled.

  2. Non-Viable Leads: If conversions are not being registered while ads are still being placed, the Advertiser should inform the Agency immediately to pause the campaigns or a Compensation shall apply; If due to the Advertiser´s Technical problems, fake conversions are being registered while ads are still being placed, the Advertiser should inform the Agency immediately in order to pause the campaigns or compensation shall apply; If the Advertiser detects and considers fraud leads, the Agency should be informed immediately or a Compensation shall apply; If the Advertiser conscientiously delays this information to the end of the month and refuses payment from those leads or If the Advertiser wants to pause a Landing Page (LP), it should inform the Agency within 48-hour notice. Unless otherwise provided in the IO, no offsets or chargeback’s may be taken for any non-viable or duplicate leads. Agency shall determine in its sole discretion what constitutes a non-viable lead. Without limiting the coverage of the foregoing, non viable leads shall include, but not be limited to, leads with incomplete contact information, leads from consumers under 18 years of age, etc. It is the responsibility of the Advertiser to insure that the IO accurately reflects the leads required.

  3. License: The Advertiser grants the Agency hereby and during the term of the present Agreement, a non-exclusive, worldwide, revocable (only under the circumstances described in the specific IO. Please refer to Clause 5 “Early Termination”), royalty-free and unrestricted license to use, reproduce, modify, adapt, translate, create derivative works from, publish, distribute, broadcast, transmit, communicate and any other performance the Agent may deem necessary to carry out the service described herein/IO. Regarding the generation of leads, the Agency shall market the Advertising material described in the corresponding IOl to Agency customers and/or customers on websites owned/operated by the Agency. The Agency may, at its own discretion, make available third party networks (“Network Members”) to the Advertiser, in which case, the Agency may refer or provide potential or actual customers to the Advertiser. The Agency may allow such Network Members to run the campaign, under the Agency´s own discretion.

  4. Ownership: All campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions, or other materials that are subject to copyright, trademark, patent, or similar protection (collectively, the “Advertising Materials”) provided by the Advertiser are the property of the Advertiser. Therefore, the provision of the services described herein, will not imply, in any case, the transfer of said property.

  5. Term: The term of this Agreement shall commence on the date provided in the IO. “Campaign Starting Date”) and shall continue until the “Campaign Ending Date “.

  6. Early Termination: The Advertiser may terminate this Agreement, upon 60 days´ written notice to the Agency. Notice shall be deemed given on the day of mailing. During the Notice Period, Advertiser´s rights, duties, and responsibilities shall continue. Payments will continue to be due to the Agency and Advertiser shall be liable for any amounts due under an IO for a period of five (5) years from the signing of the present Agreement. The Agency reserves the right, in its sole discretion, to immediately suspend any Advertisements from placement on the Agency Network if it reasonably suspects or determines that Advertiser has breached any of these Terms or by its own discretion with no cause. The Agency may terminate this Agreement at any time and without cause with the sole obligation of notifying the other party via email.

  7. Insertion Orders (IOs.):

    • Execution of IOs: From time to time, the parties may execute IOs. Once the parties send the signed IO via email, the Agency will start performing its services. As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.

    • Adjustments: Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by the Agency. These adjustments shall be effective upons the Agency’s acceptance of the change via e-mail.

    • Incosistency with Order: In the event of any inconsistency between an IO and this Agreement, the terms of the IO shall prevail.

  8. Billing Procedure and invoicing disputes: Agency may invoice Advertiser on the first day of the contract period set forth in the IO. The invoice will be made, ultimately, by the Agency statistics (this should always be confirmed monthly by a report provided by the Advertiser to see if there are discrepancies or not). Advance payments may apply if agreed in the IO. The Advertiser agrees with a Net15 payment policy, unless otherwise agreed in the IO. Net15 means that payment should be completed within fifteen (15) days after the invoice is issued. No later than the 5th of every calendar month, the Advertiser should send to the Agency by email the number of activations registered. If the Advertiser does not confirm the numbers until then, the Agency reserves the right to issue automatically an invoice with the data given by the Agency’s informatic system.
    Unless Advertiser objects to Agency s´ invoice, within forty-eight (48) hours, the amount invoiced shall be final and binding. Advertiser may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation and sent via email. To the extent Advertiser intends to dispute an invoice, Advertiser shall provide a written report to Agency, within 2 business days identifying, in detail, the discrepancies, between the invoiced amount and Advertiser’s evidence. Advertiser shall pay the Agency as per the requirements specified in the IO. All payments made to the Agency do not include any sales, use or similar tax associated costs associated with such payments, which shall be paid by the Advertiser. Advertiser shall, at all times, pay the Agency for its services, even when Advertiser it is not paid by a third party. All past due amounts shall accure the interest at the rate of two (2,0%) per month or the maximum rate allowed by law. In the event of any failure by Advertiser to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Agency in collecting such amounts. The Advertiser shall keep for the term of one (1) year, accurate records relating to amounts due hereounder. The Agency shall have the right to to audit such records in order to verify fulfilments of the Advertiser´s payments.

  9. Payment calculations: One (or more than one) of the following methods shall apply to the calculation of payments, as specified in each Order:
    CPA: To the extent that payments are based on a User Action (or Cost per Action), Agency may, in its sole discretion and if requested by the Advertiser, transfer User Action data that provides the basis for an invoice to Advertiser.
    CPC: Is one of the forms of CPA (cost per action) with the action being a click. CPA (above) will apply.
    CPI: Specific to mobile application. The Advertiser will be charged a fixed or bid rate (specified in the corresponding IO) only when the application is installed.
    CPS: is the amount an advertiser pays for each sale generated by an advertisement (specified in the corresponding IO)
    CPL: the Advertiser will pay the Affiliate for the leads generated by the ads (referred in the corresponding IO)
    CPM: the price of 1,000 (thousand) advertisement impressions on one webpage will be referred in the corresponding IO.

  10. Confidentiality and Safeguard of Property: Advertiser and Agency respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure. Agency and Advertiser will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither Agency nor Advertiser will be responsible for any loss or damage. 

  11. Indemnities: Advertiser agrees to indemnify and hold harmless the Agency with respect to any claims or actions by third parties against Advertiser based upon material prepared by Agency, involving any claim for libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright, except where any such claim or action arises out of material supplied by Advertiser to Agency.
    Advertiser agrees to indemnify and hold Agency harmless with respect to any claims or actions by third parties against Agency based upon materials furnished by Advertiser or where material created by Agency is substantially changed by Advertiser. Information or data obtained by Agency from Advertiser to substantiate claims made in advertising shall be deemed to be “materials furnished by Advertiser.” Advertiser further agrees to indemnify and hold Agency harmless with respect to any death or personal injury claims or actions arising from the use of Advertiser’s products or services. The Agency as blind network shall not be responsible for the traffic sent by its publishers.

  12. Amendments: The Agency reserves the right to modify the present Terms & Conditions at any time, to its own discretion. The Terms shall be effective as soon as they are sent to the Advertiser via email. They shall automatically apply to each Insertion Order or Insertion Order renewal concluded after the modifications.

  13. Notices: All notices and other communications between the parties must be in writing. The parties shall give all notices and communications between the parties by email. Any notice shall be deemed given on the day of e-mailing.

  14. Advertising Materials: Advertiser will provide the Agency all Advertising Materials when appointed in the IO. Company reserves the absolute right to refuse in its sole discretion to accept/not accept the Advertising Material provided by the Advertiser.

  15. Representations and Warranties: The Company is a corporation duly organized, validly existing, and in good standing under the laws of Hong Kong, has corporate power to carry on its business as it is now being conducted, and is qualified to do business in every jurisdiction in which the character and location of the assets owned by it or the nature of the business transacted by it requires qualification or in which failure to so qualify would have a material adverse impact on it. No proceeding is pending, or to the knowledge of the Company, threatened, involving the Company, in which it is alleged that the nature of its business makes qualification necessary in any additional jurisdiction.

  16. Limitation of Liability: In no event will the Agency be liable for any special, indirect, incidental or consequential damages whether such damages are alleged in tort, contract or indemnity or for loss of profits, interrupted communications, lost business or lost data arising out of or in connection with this Agreement, even if Agency has been advised of (or knows or should know of) the possibility of such damages.

  17. Governing Law and Jurisdiction: This agreement will be governed by and construed in accordance with the substantive laws in force in England and Wales. The courts of Hong Kong will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement. The language used will be English in any case.

  18. Assignment: The Advertiser may not assign this Agreement or any of their rights or obligations without the Agency's written consent. The Agency reserves the right to assign the present Agreement fully or partially to third parties.

  19. Prior Agreements: This Agreement supersedes and replaces any and all previous agreements between the parties.

  20. Severability: If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

  21. Force Majeure: The Agency shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is beyond the reasonable control of a party, materially affects the performance of any of its obligations under this agreement, and could not reasonably have been foreseen or provided against, but does not include general economic or other conditions affecting financial markets generally. obligation shall be to restore service as soon as reasonably possible.

 

Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.