All capitalized terms not defined herein have the meaning set forth in the Agreement.
- “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common Control with, such entity.
- “Allspark” means a mobile-first audience cloud powered, proprietary data management and analytics platform that allows its customers to leverage multiple stream of data (including location, behavioral, demographic, interest and third party data) by permitting them to curate audience, target audience in real-time, in and around hand-picked locations, track exposure to store visits and attribution for conversion tracking and provides real-time insights and heat maps of curated and standard off-the-shelf audience.
- “API” means Company’s Application Program Interface, provided by Near in the form and manner agreed in Exhibit A of the Agreement.
- “Audience Card” means selecting different segments of Company Data to build an Audience Card in Allspark.
- “Company Data” means the aggregated and analyzed data, derived as an output from Allspark, specifically for the Customer. Company Data includes aggregated and analyzed consumer locations without use of GPS along with user behavior and context to build audiences/segments.
- “Control” means with regard to an entity, means the legal beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the share capital of such entity ordinarily having voting rights or effective control of the activities of such entity regardless of the percentage of ownership.
- “Customer” means the customer identified in the Agreement and includes the assignees, affiliates, agents, successors and legal representatives of the Customer.
- “Customer Content” means any information, data, details provided by Customer to the Company pursuant to these Terms and Conditions to be used in Allspark or to create Custom Data. Customer Content is Customer Confidential Information whether or not labelled or identified as such. Company acknowledges that it shall not use Customer Content and Custom Data except for performing its obligations pursuant to These Terms and Conditions or for improvements in its services generally.
- “Custom Data” means the aggregated data set created and customized from existing Company Data based on Customer specifications, for the Customer.
- “CPC Deliverables” means Deliverables sold on a cost per click basis.
- “CPM” means net media rates.
- “CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- “Deliverable” or “Deliverables” means the inventory delivered by the Company (e.g., impressions, clicks, or other desired actions).
- “Digital Application(s)” means application software designed to run on a mobile device, such as a smartphone, tablet computer or any other digital device.
- “Marketing Material(s)” means creative, artwork, copy, or active URLs of advertisement provided or approved by the Customer to the Company for running it through Targeting Platform.
- “Personal Data” means any information relating to an identified or identifiable natural person (“data subject”); an “identifiable natural person” being one who can be identified, directly or indirectly by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Data includes PII.
- “Personally Identifiable Information” or “PII” means any (i) personally identifiable information related to a data subject; (ii) social security number with the associated name; (iii) mother’s maiden name with the associated name; (iv) driver’s license or other government issued identification card numbers with the associated name; (v) telephone numbers identified as unlisted or unpublished; (vi) credit, debit card or financial account numbers with the associated name and any required PIN or access code; (vii) personally identifiable health information; (viii) personally identifiable payroll/financial information including employee identification numbers; or (ix) any non-public personal information, as that term is known under the applicable laws, including privacy and data protection laws and/or regulations.
- “Places” means place segments used in building a custom Audience Card in Allspark.
- “Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behaviour or activity, policies regarding consistency with Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the applications on which the advertisements are to appear), other editorial or advertising policies and Marketing Materials due dates made available by the Company from time to time.
- “Professional Services” means managed services provided by Company to the Customer pursuant to a separate Statement of Work executed between the parties. Professional Services will include operating Allspark and Targeting Platform on behalf of the Customer by an authorized representative of the Company.
- “Publisher Platform” means Digital Applications on which Company has a right to serve advertisements.
- “Statement of Work” means a document executed between the parties that will describe the (i) Professional Services to be provided by the Company, (ii) duration of the Professional Services, (iii) the fee for such Professional Services and all other details that parties may deem fit to include.
- “Targeting Platform” means the platform that interfaces with the Publisher Platform to enable the Company to run Marketing Materials on Publisher Platform.
- “Third Party Ad Server” means a third party engaged by the Customer that provides third party ad serving and/or ad tracking services.
- “Third Party Data End User Terms” means the terms required by third party data providers to be included in agreements for sub-licensing of third party data which are available on the third party’s website or upon request from the Company.
Company provides Services for the following purposes:
- To access Allspark for creating Audience Cards and/or
- To use Allspark in order to run Marketing Materials and access and use analytics suite made available on the Targeting Platform to measure campaign performances as well as to benchmark against competitors and/or
- To use the Company Data to tie up with Third Party Ad Server to receive third party services, subject to the restrictions and confidentiality obligations herein and/or
- Any other purpose, as agreed between the parties in the Agreement.
3. Usage And Restrictions
- Subject to compliance with the Terms and Conditions, Company hereby grants the Customer a fixed term, non-exclusive, revocable, non-transferable access, upon payment of applicable fees, access to Allspark and/or API and Targeting Platform for the Services described herein. All rights not expressly granted herein are reserved by the Company and its licensors. Company may create a white-labelled version of Allspark for the specific use of the Customer with Customer’s branding and collaterals upon mutual consent.
- Customer acknowledges that Company Data is based upon data which is provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable for Company to guarantee. Services involve models and techniques based on aggregate statistical analysis, probability and predictive behavior. Company is therefore not able to accept any liability for any inaccuracy, incompleteness or other error in the Services and any failure of Company Data to achieve any particular result for the Customer.
- Company will use commercially reasonable security technologies in providing Services and Customer shall comply with the applicable Company security policies made known to Customer. However, Company does not control the transfer of data, including but not limited to Custom Data, over telecommunications facilities, including the Internet, and Customer acknowledges and agrees that Company shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect the Customer’s computers, computer systems, software, infrastructure or data as a result of the Customer’s access to or use of Services.
- Customer acknowledges and agrees that (i) nothing in these Terms and Conditions guarantees that the Services will be free from interruption or errors, (ii) there will be periods when Service is unavailable and cannot be accessed and (iii) Company accepts no liability for any loss or damage the Customer may suffer or incur as a result of such unavailability at any time.
- Customer shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party access to Allspark and/or API, in any way; (ii) copy, translate, decompile, reverse-engineer or otherwise modify any parts of Allspark and/or API (including Company Data) modify or make derivative works based upon the Service offered; (iii) transmit any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (iv) create Internet “links” to Allspark and/or API or “frame” or “mirror” Allspark on any other server or wireless or Internet-based device; (v) interfere with or disrupt Company systems used to host the Company Data, other equipment or networks connected to Company Data, or disobey any requirements, procedures, policies or regulations of networks accessed; (iv) circumvent the user authentication/login provided; (vii) access Allspark and/or API in order to (x) build a competitive product or service, (y) build a product using similar ideas, features, functions or graphics of Allspark and/or API, or (z) copy any codes, ideas, features, functions or graphics of Allspark and/or API; (viii) except for access provided to Customer as permitted in these Terms and Conditions, allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by Customer to access Allspark and/or API.
- The Customer is not relieved of any of its liabilities or obligations under these Terms and Conditions due to the fact that the Customer engages the services of a third party and in so far as the acts, omissions, defaults and neglects of the Customer or any employee or agent of the Customer results in a breach of the Customer’s obligations under these Terms and Conditions, then such acts, omissions, defaults and neglects will be treated as if they were the acts, defaults or neglects of the Customer.
4. Intellectual Property Rights
By agreeing to these Terms and Conditions, Customer irrevocably acknowledges that Customer has no ownership interest in Allspark, Company Data, Custom Data and Services. Subject to any limitations associated with intellectual property rights of third parties, Company and its licensors, where applicable, shall retain sole and exclusive ownership in any and all patent rights, copyrights, trademark rights and other intellectual property rights in the Company Data, Custom Data and Services, as well as any enhancements, changes, revisions, modifications, design contributions or derivative works conceived, made or created to the same, including the know-how, techniques, or procedures acquired or used by Company. Except for the licenses described herein, nothing herein shall be construed to assign or transfer any intellectual property rights to the Customer. Customer shall not remove notices and notations on Company Data that refer to copyrights, trademark rights, patent rights and other intellectual property rights. All suggestions, solutions, improvements, corrections, and other contributions (“Feedback”) provided by Customer regarding Allspark, Company Data, Custom Data or Service, while using the Services, shall be owned by Company, and Customer hereby agrees to assign all rights in such Feedback to the Company. Upon written request from Company, and unless otherwise requested or required by law, Customer agrees to expunge or destroy all Company Data from its servers, computers, or networks within 15 (fifteen) days of Company’s written notice.
Customer owns and retains all right, title and interest (including without limitation all intellectual property rights) in and to the Customer Content and any updates or modifications to the foregoing, unless expressly agreed otherwise between Company and Customer. In case the Customer shares/uploads any Customer Content on Allspark or requires Company to use any Customer Content in combination with Company Data or Custom Data, or in any other manner required for provision of the Services, Customer grants to Company the non-exclusive, fully paid-up, worldwide, irrevocable, perpetual license to use the Customer Content for use in the Allspark, Company Data, Custom Data and/or Services as well as its internal business purposes and to further modify, compile, store, validate, integrate, normalise, aggregate, sort, manipulate, analyse, combine with other third party data and create derivative works of the Customer Content.
5. Fees & Payments
Fee for the Services are as agreed in the Agreement.
Customer agrees to keep confidential any and all information provided by Company in connection with these Terms and Conditions, which is not otherwise available to the general public without restriction (“Confidential Information”). Notwithstanding the foregoing, Customer is entitled to disclose such information: (i) to its agents, employees or representatives, who have a need to know such information for the purpose of receiving Services described herein, and are bound by confidentiality obligations that are as restrictive as the terms contained herein, (ii) to the extent required by applicable law, or (iii) during the course of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of these Terms and Conditions, provided that prompt notice shall be provided to Company prior to such disclosure and Customer shall comply with any applicable protective order or equivalent. Confidential Information shall not include information which the Customer can conclusively establish: (i) was in the possession of the Customer at the time of disclosure; (ii) prior to or after the time of disclosure became part of the public domain without the act or omission of the Customer to whom it was disclosed; (iii) was disclosed to the Customer by a third party under no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the Customer. Unless specified herein, Customer shall at all times maintain the confidentiality of the Confidential Information and shall use at least the same level of care (at all times being subject to reasonable care) that it uses to protect its own confidential information of a similar nature. The obligation to maintain the confidentiality of Confidential Information shall subsist during the term of this Agreement and for a period of five (5) years following its expiration or termination, save for, with respect to any trade secrets provided by a party, including but not limited to details of the software platform i.e. Allspark and/or API and Targeting Platform, in which case the confidentiality obligations shall continue indefinitely. Parties acknowledge that unauthorized disclosure or use of the Confidential Information would cause Company imminent irreparable injury and that the Company shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event Customer does not fulfil its obligations under this section. Company acknowledges that Customer Content is Confidential Information of the Customer and Company will not use Customer Content except for performing its obligations pursuant to these Terms and Conditions or for making improvements to its Services generally. Upon termination of the Agreement for any reason, each receiving party shall destroy all Confidential Information of the disclosing party and any copies thereof. Following any such destruction, each receiving party shall promptly confirm in a writing (email being sufficient) that it has fully complied with the requirements of this Section.
- Customer warrants that (i) it has the right, power and authority to provide Customer Content and Marketing Material to the Company; (ii) the Customer Content and Marketing Material is complete, accurate and in the agreed format; (iii) the Marketing Materials are not false, deceptive, misleading, obscene, defamatory, illegal (including without limitation, in violation of applicable advertising laws and other applicable state and local laws, rules and regulations), harmful, threatening, abusive, obscene, hateful, libelous, invasive of another party’s privacy, unethical or racially or politically objectionable; (iv) the Customer Content and Marketing Materials will not infringe or misappropriate the intellectual property rights of any third party, breach any duty toward or rights of any third party, including rights of publicity or privacy; (v) the Marketing Materials will be in accordance with the then existing Policies of the Company; and (vi) the performance of its obligations under these Terms and Conditions will not cause Company to infringe the rights of any third party.
- EXCEPT AS OTHERWISE SET FORTH HEREIN, COMPANY DATA, CUSTOM DATA ALLSPARK, API AND TARGETING PLATFORM AND ANY OTHER SERVICES PROVIDED BY COMPANY, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES, EXPRESS OR IMPLIED. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH COMPANY DATA, CUSTOM DATA, ALLSPARK, API, TARGETING PLATFORM OR SERVICES, OR ANY OTHER ASPECT OF THESE TERMS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Customer will keep Company indemnified and hold Company, its Affiliates, subsidiaries, successors or assigns, and their directors, officers, employees and representatives (“Company Indemnified Parties”) harmless against any and all claims and related suits, actions, proceedings, investigations, judgments, deficiencies, damages, settlements, liabilities, and reasonable legal fees arising out of, as a result of or in connection with:
- the use of Company Data and Services in breach of the purpose specified in these Terms and Conditions;
- Customer Content or Marketing Material infringing any third party’s intellectual property rights;
- Customer’s failure to secure necessary rights, title, and interest in the Marketing Materials to be displayed via the Targeting Platform;
- the allegation that the content, or that the services, products or goods being advertised by way of Marketing Material, violate any applicable law or misrepresent the services, products or goods;
- breach of confidentiality obligations under Section 6 (Confidentiality); and
- breach of these Terms and Conditions by the Customer.
9. Limitation Of Liability
- Company will not be liable for any indirect, special, incidental, exemplary, any attorney fees puniive or consequential damages or for any loss of data, loss of goodwill, loss of profit or revenue, arising out of or in connection with these Terms and Conditions, however caused, and under whatever cause of action or theory of liability brought including under any contract, negligence or other tort, even if Company has been advised of the possibility of such damages, notwithstanding the failure of essential purpose of any remedy.
- In no event shall Company’s liability for any and all claims arising out of or in connection with these Terms and Conditions, in aggregate, exceed the fee paid by the Customer to the Company, under these Terms and Conditions, during the one (1) month period, prior to the date the liability first arose, notwithstanding the failure of essential purpose of any remedy.
- Customer warrants that it will not provide any Personal Data to the Company under the Terms and Conditions. Customer understands that the Company does not require any Personal Data, for performing its obligations/Services under the Terms and Conditions. Customer shall ensure that it will review all Customer Content provided to Company and scrub any Personal Data from the same before providing it to the Company. In the event Customer determines that disclosure of Personal Data is crucial, for the performance of Company’s obligations hereunder, Customer shall provide Company with a prior written notice of Customer’s intention to disclose Personal Data. Such data shall be disclosed by Customer upon Company’s written acceptance of such notice and subject to any documentation that the Company requires the Customer to execute.
- Customer warrants that it will not use Company Data in combination with any third-party data that may lead to identification or disclosure of Personal Data.
- In case the Customer Content contains any Personal Data, or the Customer otherwise discloses Personal Data to the Company, the Customer represents and warrants that it will always have explicit consents from the respective data subjects who own such Personal Data (including, as applicable, the end users or customers of the Customer) in respect of the following:
- sharing such Personal Data with the Company;
- the Company’s processing of such Personal Data for data enrichment activity, which includes, but is not limited to, identifying the behaviour of such data subjects and profiling them based on their physical/digital world behaviour to create an enriched dataset from such Personal Data (“Enriched Data”);
- sharing of such Enriched Data by the Company with the Customer.
11. Term and Termination
- The Term of the Terms and Conditions is as specified in the Agreement.
- Company reserves the right to terminate these Terms and Conditions (i) anytime with or without cause; (ii) by giving fifteen (15) days’ notice if the Customer is in material breach of these Terms and Conditions and which breach is not cured within fifteen (15) days of receipt of a written notice from the Company or if such material breach is incapable of remedy.
- Customer may terminate the Terms and Conditions, if the Company is in material breach of its obligations hereunder, which breach is not cured within thirty (30) days of receipt of a written notice or which breach is incapable of remedy.
- Upon termination, all payments due till the date of termination shall be immediately paid by the Customer on or prior to the date of termination. Customer’s right to use the Services (including Company Data) shall cease on termination. Termination shall not affect any rights, obligations or liabilities, arising out of these Terms and Conditions, which have accrued before termination or which are intended to continue to have effect beyond termination. Customer shall return all Confidential Information (including Company Data) of the Company within ten (10) days of termination of the Agreement.
12. Third Party Data
- Company has entered into license agreements with third party data providers in relation to the use of and sub-licensing of third party data.
- If the Services includes third party data then these Terms and Conditions includes a sub-license for the use of the relevant third-party data and with respect to that sub-license the relevant provisions in the Third Party Data End User Terms are incorporated into these Terms and Conditions.
- If these Terms and Conditions includes a sub-license for third party data then the following will apply: Company shall use its reasonable endeavors to extend or renew the relevant third party data license agreement for the Term. In the event that the third-party data license agreement expires or is terminated and is not extended or renewed then the relevant parts of these Terms and Conditions will be removed from these Terms and Conditions with effect from the date of termination of the third-party data license agreement.
- In the event of any inconsistency between the provisions of the Third Party End User Terms and any other provisions of these Terms and Conditions then the provisions of Third Party Data End User Terms will prevail with respect to the relevant third party data including any provisions regarding the term of the license to the third party data and permitted use of the third party data.
Without prejudice to its obligations under these Terms and Conditions, the Customer shall effect and maintain, Commercial General Liability Insurance Policy (“CGL”) with a limit of USD 5 million, with a reputable insurance company. Upon receipt of a written request from Company, the Customer shall submit a certificate to confirm that Customer has and maintains the required insurance policy with a reputable insurance company.
Customer will allow the Company and person(s) authorized by the Company, access to Customer’s premises, during the term and for a period of six (6) months after the termination or expiry of these Terms and Conditions, to inspect the records maintained by the Customer in connection with the Terms and Conditions, for the purpose of enabling the Company to verify Customer’s compliance with the requirements of the Terms and Conditions. Customer will, at its own sole cost, provide such co-operation and assistance as Company reasonably requires in relation to the performance of any inspection under this Section. If audit reveals a material underpayment, Customer shall be responsible for the cost of such audit.
- Except for payment obligations, neither party will be responsible for any failure or delay in its performance under these Terms and Conditions due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
- The parties shall be independent contractors under these Terms and Conditions, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or Customers for any purpose.
- The Customer authorizes the Company to use the trade name, trademark and logo of the Customer for the purpose of listing Customer in its general list of customers. Customer also permits Company to bring out press releases, create case studies on anonymized basis and will be open to provide quotes from time to time solely for Company’s marketing purposes, provided Company obtains prior written approval of the Customer specific such quotes. Company shall comply with Customer’s guidelines regarding use of Customer’s trademarks.
- Customer shall not have the right to assign, transfer, resell or sublicense Customer’s rights or obligations hereunder. Any attempt to assign, transfer, resell or sub-license such rights or obligations without Company’s prior written approval will be null and void.
- If one or more of the provisions contained in these Terms and Conditions is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected. The provisions will be revised only to the extent necessary to make them enforceable.
- No action of Company other than an express written waiver may be construed as a waiver of any provision of these Terms and Conditions. A delay on the part of Company in the exercise of its rights or remedies will not operate as a waiver of those rights or remedies, and a single or partial exercise by Company of any of the rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
- These Terms and Conditions will be governed by the laws of Singapore. The Company and the Customer agree that any claims, legal proceedings, or litigation arising in connection with these Terms and Conditions, will be brought solely in the courts of Singapore. No modification to these Terms and Conditions will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Any notice required to be delivered hereunder will be deemed delivered: (a) upon delivery, if delivered by courier or by hand (against receipt); or (b) three (3) days after posting, if sent by electronic mail, fax, or certified or registered mail, return receipt requested. All notices to the Company and the Customer will be sent to the address provided by each party to the other. If no address is specified for the Customer, notice will be sent to Customer’s last known address.