Mobile Advertsing Agreement
Spark Technologies , hereinafter referred as “Spark ”, a mobile Ads provider, and “Advertiser”, enter into this Advertiser Agreement (“Agreement”) to establish the terms and conditions by which Advertiser may associate with Spark Technologies and display advertisements on Spark Technologies Publishers (“Publishers” or “Customers”) The Site, SparkTechnologies.in, is owned and operated by Spark Technologies, hereinafter referred as(“SparkTechnologies.in” or “we” or “us” or “our” or other similar pronouns).
1. Spark Technologies Services
This agreement, shall constitute Advertiser, Ad Agency, Ad Network, their Clients, Partners and Agents (herein collectively referred to as “Advertiser”) understanding that Spark Technologies’s sole obligation is to promote the Advertiser’s products or services by showing banner and text creative (”Creative”) provided by the Advertiser on mobile site(s) and mobile application(s) across the multiple Networks. The submission of a signed release order/insertion order by Advertiser to Spark Technologies is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. Any and all modifications to the release order / insertion order are invalid unless acknowledged and accepted in writing by both Spark Technologies and the Advertiser. Advertiser agrees that Spark Technologies may, but is not obligated to, display creative across the entire Spark Technologies advertising network or on specific mobile site(s) and mobile application(s). Spark Technologies may, at its option, modify the launch date of a campaign(s) if the creative or linking URL’s: are not provided to Spark Technologies on time, there are delays due to 3rd party ad-serving, inventory fluctuation or other issues.
Spark Technologies may change the Terms and Conditions from time to time, at any time without notice to Advertiser, by posting such changes on the Site. Advertiser’s continued access or use of the Site constitutes your acceptance of the changes. It is your responsibility to regularly check the Site to determine if there have been any changes to these Terms and Conditions. BY ACCESSING, USING, BROWSING, OR REGISTERING FOR SERVICES PROVIDED THROUGH THE SITE, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. If you do not agree to these Terms and Conditions, you may not access or otherwise use the Site. If you breach any of the Terms and Conditions, your authorization to access or use this Site or the products and services offered through it may be terminated without notice by Spark Technologies.
2.General Terms – Advertiser
- The Service is available to any Advertiser who registers with spark for the Service, provides all the required information, and pays for the advertising submitted (“Advertisement”) in the manner required by the Advertiser Guidelines.
- Advertiser shall be liable for all charges that accrue based on the Advertisements and other services actually purchased. All prices and charges – entered by Advertiser (including, but not limited to, Maximum Bid, Daily Budget, etc.) are exclusive of Service Tax /VAT and any pertinent taxes unless stated otherwise. Advertiser agrees to pay all applicable charges under this Agreement, including Service Tax/VAT and any other applicable taxes or charges imposed by any government entity. Spark Technologies provides stats/reports, and in the event of any dispute in the running of an ad, the number of impressions, click-through or transaction on any Advertisement, Advertiser hereby agrees that the tracking reports provided by Spark Technologies shall be the official tracking reports for resolving the dispute.
- Spark Technologies and their designees reserve the right to, and in their sole discretion may, at any time review, reject, or remove any Advertisement. The sole liability of – Spark Technologies to Advertiser for removal of any Advertisement is limited to a refund of any fees paid for Advertisements that have not yet run, if any. No liability of – Spark Technologies or their designees shall result from any such decision.
- Payments are to be made via Wire to the account designated by Spark Technologies. If an Advertisement is not accepted, Spark Technologies or its designees shall return the fee paid upon submission of the Advertisement to Advertiser via either 1) bank wire, bank transfer, or 2) by mailing Advertiser a cheque to the postal address registered with Spark Technologies. If a refund is not claimed within a 90-day time period, Advertiser forfeits the entire amount and the payment is cancelled. Any cheque not cashed within its expiry period will be forfeited and the payment is cancelled. Other than as specifically described above, all fees paid for Advertisements are non-refundable.
- Advertiser may not use the Service, (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, including any information that personally identifies any consumer, or (c) that is defamatory, obscene, threatening, libellous, abusive, hateful or otherwise illegal, or (d) any data that is personally identifiable information, including but not limited to an individual’s name, mailing address, phone number, or e-mail address. Spark Technologies reserves the right to restrict, suspend, or terminate Advertiser’s access to all or any part of the Service at any time, for any or no reason, with or without prior notice, and without liability.
- Advertiser agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activities conducted on Spark Technologies’s servers. Advertiser agrees not to take any action that imposes an unreasonable or disproportionately large load on the Service’s hardware, bandwidth or software. Advertiser agrees not to impede or interfere with others’ use of the Service. Advertiser further agrees not to alter or tamper with any information or materials on or associated with the Service.
- By submitting an Advertisement to the Service, Advertiser represents and warrants that it is the owner of all patent, copyright, mask work, trademark, service mark, and any and all other proprietary rights and interests therein. Advertiser hereby grants Publisher, Application Provider and their designees the right to communicate such works to the public, perform and display the content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of this Agreement for the purpose of providing the Service and posting the Advertisement as described in this Agreement. Advertiser also permits any Viewer to access, display, view, store and reproduce such content. Subject to the foregoing, the Advertiser retains any and all rights that may exist in its Advertisements.
- Spark Technologies makes no guarantee regarding the level of impressions or clicks on any Advertisement, or the timing of delivery of such impressions and/or clicks.
- Advertiser acknowledges and agrees that Spark Technologies or its designees may preserve Advertiser Content and may also disclose Advertisements if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms and Conditions; (c) respond to claims that any Advertisement violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Spark Technologies, Publisher, Viewers and the public.
- Advertiser hereby represents and warrants that Advertiser is authorized to publish Advertisements and further represents, that the contents are not unlawful, do not infringe the rights of any person or entity and that the Advertiser has obtained all necessary permission or releases to display the Advertisement.
- Advertiser further represents and warrants that any Web Site linked to Advertiser’s Advertisement(s) complies with all laws and regulations in any state or country where the Advertisement is displayed, does not breach and has not breached any duty toward or rights of any person or entity and is not false, misleading, defamatory, obscene, libellous, slanderous, threatening, abusive, hateful or otherwise illegal.
Advertiser acknowledges and agrees that Publisher, Spark Technologies, their affiliates, partners and third-party service providers make no guarantee regarding the levels of impressions or clicks for any Advertisement(s) or for any Ad Space(s). Advertiser further acknowledges that Publisher and Spark Technologies, their affiliates and third-party service providers act as a passive conduit for the mobile distribution and publication of Advertiser-submitted information and have no obligation to screen communications or information in advance and are not responsible for screening or monitoring material posted by Viewers. Publisher, Spark Technologies, their affiliates and third-party service providers do not warrant or make any representations regarding the use or the results of the use of the materials posted in terms of their correctness, accuracy, timeliness, reliability or otherwise
3. Payment, Credit, Interest and Cancellation Terms
- All payments will be made in advance unless agreed upon otherwise or credit is approved and Spark Technologies is under no obligation to perform agreed upon services until payment is received.
- It is the Advertisers responsibility to validate all impressions, clicks, leads and/or acquisitions. The Advertiser must report any discrepancies related to their campaign to Spark Technologies within 24 hours of the occurrence. Spark Technologies is not liable for any discrepancies not reported within this time frame and Advertiser waives all right, title, and intent to dispute payment to Spark Technologies based upon any discrepancy not reported within this time frame
- Either party may cancel this Agreement upon providing two (2) weeks written notice via email, fax or Indian Post/Courier services. Advertisers can pause or terminate (stop) a campaign if needed with immediate effect. If Advertiser terminates campaign before maturity – payment in full for work performed and delivered up to the modified termination date will be owed and due and must be payable in full. Incase of a prepaid account the paid amount will be returned or transferred to another campaign after deducting the payment for work performed before termination of the campaign and any other deduction which may arise.
- If Advertiser fails to pay overdue invoices for previous campaigns, Spark Technologies reserves the right to immediately terminate any active campaigns.
- Advertiser understands and agrees that in no event, and under no circumstance will data provided by any Spark Technologies representative constitute final billing numbers. Only invoices mailed or emailed directly to Advertisers and Agencies are to be construed as representative of billable amounts.
- If Advertiser wishes to terminate the campaign early, Advertiser agrees to abide by the cancellation procedures. Any cancellation notice will be based on the date the written notice was received by Spark Technologies.
- Upon receipt of cancellation order, we will initiate the refund process if applicable. The refund will be made to the same payment option(s) originally used to pay for the order. In case an Advertiser used publisher earnings to fund the advertiser account, the balance will be transferred back to the publisher earnings account and payment will be made per the next payment cycle.
4. Limitation of Liabilities
SPARK TECHNOLOGIES SHALL NOT HAVE ANY LIABILITY TO THE ADVERTISER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT SPARK TECHNOLOGIES’S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE CHARGE FOR THE ADVERTISEMENT IN QUESTION. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SPARK TECHNOLOGIES MAKES NO OTHER WARRANTIES TO ADVERTISER AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- All creative has been accepted and published upon the representation that the Advertiser is authorized to publish the entire contents and subject matter thereof. Advertiser agrees to indemnify and hold Spark Technologies, its Publishers or Lists Providers and its respective affiliates, employees, officers, agents, directors and representatives (“Spark Technologies Indemnified Parties”) harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) for any claim or suits for libel, defamation, violation of rights of privacy, plagiarism, attorney’s fees, trademarks, copyright infringement, unauthorized content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in creative or the unauthorized use of any person’s name or photograph, arising from Spark Technologies reproduction and publishing of such creative pursuant to Advertiser’s submission.
- Advertiser understands that Spark Technologies in due diligence cannot monitor all Spark Technologies Partner mobile sites/services for appropriate content and Spark Technologies may not be held responsible for the content of any Partner mobile site/services. If Advertiser reasonably determines that the placement of any advertisement by Spark Technologies hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with mobile sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libellous, defamatory, or other offensive materials, then Spark Technologies shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser’s notice thereof to Spark Technologies; provided, however, that if Spark Technologies reasonably believes that removal of an advertisement from a site/service will have a material impact on Spark Technologies’s ability to deliver advertisements in accordance with the release order, Spark Technologies may condition such compliance on Advertiser providing an extension of the campaign dates.
- Advertiser guarantees that data regarding consumers gained by this campaign will be only used for legal purposes and Advertiser will indemnify, defend and hold harmless the Spark Technologies Indemnified Parties from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney’s fees) and losses which result from any claim of damages brought or sought against Spark Technologies that alleges consumer data gained by this campaign was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on Spark Technologies giving prompt written notice of any such claim. Spark Technologies will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph shall survive the termination of this Agreement.
- Advertiser agrees not to resell, market, or transfer any data regarding consumers gained through this campaign to any third party unless expressly permitted by Spark Technologies in writing.
6. Force Majeure
Spark Technologies is not liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet service failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond Spark Technologies’s control affecting production or delivery in any manner.
Parties have disclosed or may disclose to each other information relating to each party’s business (including, without limitation, data and other information pertaining to publisher mobile sites/services, affiliates and vendors that are or have been part of the Spark Technologies Network), all of which to the extent previously, presently or subsequently disclosed to each other is “Proprietary Information”. Proprietary Information does not include information that each party can document (a) is or becomes (through no improper action or inaction of each party or its representatives (as defined below)) generally known by the public, (b) was in its possession or known by it without restriction prior to receipt from the other party or (c) becomes available to a party from a source other than the other party or its representatives having no obligation of confidentiality. (“Representatives,” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees). Parties agree (i) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each party employs with respect to its most confidential materials), (ii) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of Advertiser’s advertising campaign, (iii) not to copy any Proprietary Information for any purpose whatsoever without written permission from each party, and (iv) not to divulge any Proprietary Information or any information derived there from to any third party or employee, except those of each party’s employees who have a legitimate “need to know” and are bound in writing to the restrictions herein. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use.
8. Intellectual Property
All Advertisements uploaded to the Service by Advertiser including, without limitation, all intellectual property rights in the same, shall remain Advertiser’s sole and exclusive property. All software, equipment, data, information and materials, developed or provided by Spark Technologies or its suppliers under this Agreement or used by Spark Technologies to provide the Service, including all intellectual property rights in the same, shall remain the sole and exclusive property of Spark Technologies or its suppliers, as the case may be.
Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third- party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). Spark Technologies’s campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Upon termination of this Agreement, or upon written request by Spark Technologies, Mobile Advertiser must destroy or return to Spark Technologies any Confidential Information provided by Spark Technologies under this Agreement.
10. Choice of Law and Attorneys Fees
This Agreement is governed by Indian laws Any arbitration will be conducted in English and the place of arbitration will be India. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.
No rights or obligations under this Agreement may be assigned by Mobile Advertiser without the prior written consent of Spark Technologies. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Spark Technologies and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party.
12. Independent Contractors
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
14. Remedies and Waiver
Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.