Effective Date: November 19, 2020
This Online Promotion Service Agreement (“Agreement”)is entered into by and between Baidu (Hong Kong) Limited, a company registered in Hong Kong, with its contact address at Room 1102,The Lee Gardens, 33 Hysan Avenue, Causeway Bay, Hong Kong (“Publisher”) and any customer that clicks “ AGREE AND SUBMIT ,” or otherwise affirms an intent to be bound by this Agreement https://business.mediago.io/platform/user/register (“Online Marketing Customer”).
Online Marketing Customer represents and warrants that Online Marketing Customer has the authority to bind that entity, organization or company to this Agreement and agrees to be bound by this Agreement on behalf of that entity, organization, or company.
Publisher and Online Marketing Customer shall hereinafter be referred to individually as a “Party” and collectively as the “Parties”.
By accessing, using or requesting the services of Publisher described in this Agreement, by clicking “Agree,” “Submit,” “Confirm” or “Consent,” or otherwise affirming an intent to be bound by this Agreement, Online Marketing Customer signifies that it has read, understood, and agrees to be bound by this Agreement as of the date of such access, use or request, and has read and understood Publisher’s Privacy Policy, located at https://www.mediago.io/privacy. If Online Marketing Customer is entering into this Agreement on behalf of an entity, organization, or company, Online Marketing Customer represents and warrants that Online Marketing Customer has the authority to bind that entity, organization or company to this Agreement and agrees to be bound by this Agreement on behalf of that entity, organization, or company.
WHEREAS, Publisher is the owner of the MediaGo Online Promotion Platform (the “MediaGo Platform”), which will assist its customers promoting on third party media resources (the “Media Resources”) which Publisher or its affiliates have cooperation relationship with;
WHEREAS, Online Marketing Customer wishes to collaborate with Publisher, and Publisher wishes to assist Online Marketing Customer in promoting and displaying promotions on Media Resources via the MediaGo Platform in exchange for financial compensation from Online Marketing Customer.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
Table of Contents
2. RIGHTS AND OBLIGATIONS OF PARTIES
3. REVENUE SPLITTING AND PAYMENT TERMS
4. Representations, Warranties and Covenants
5. INTELLECTUAL PROPERTY RIGHTS
8. DISCLAIMERS
10. Governing Law
13. Assignment
14. Miscellaneous
1.1. In order for Publisher to perform online promoting and marketing services, the Online Marketing Customer agrees to grant Publisher along with its affiliates and subsidiaries a non-exclusive, royalty-free, worldwide right and license (“License”) to distribute, display, use, serve, copy, reproduce, subcontract, in any Media Resources now known or hereafter developed the Content (as defined below) in connection with the Promotion. The License is revocable, transferable and sub-licensable.
1.2. Online Marketing Customer will deliver and will be solely responsible for providing to Publisher all of the materials and information required for the Promotion, including but not limited to text, pictures, graphics, programming code, programs, software, data, landing pages, logos, trademarks (collectively, the “Content”).
1.3. Online Marketing Customer should register and open an account on MediaGo platform, and set online promotion offers in its MediaGo account. Publisher provides online promotion, display and distribution services to Online Marketing Customer, including but not limited to distribute offers through different Medias Resources, optimize traffic, provide statistic analysis based on MediaGo platform, etc (“Promotion”). Online Marketing Customer can check promotion performance in MediaGo account.
1.4. Subject to the Online Marketing Customer’s payment of any fees due under this Agreement, the Publisher agrees to grant the Online Marketing Customer a non-exclusive, non-sublicensable, non-transferable limited license (“Platform License”) to access and use the MediaGo Platform as permitted by the features of the MediaGo Platform in connection with the Promotion, including to place offers. Publisher may terminate the Platform License at any time for any reason or for no reason. Publisher reserves all rights not expressly granted herein in the MediaGo Platform. Online Marketing Customer agrees not to engage in any of the following prohibited activities on the MediaGo Platform: (i) copying, distributing, or disclosing any part of the MediaGo Platform in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the MediaGo Platform in a manner that sends more request messages to the MediaGo servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the MediaGo Platform; (v) taking any action that imposes, or may impose at Publisher’s sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the MediaGo Platform; (vii) collecting or harvesting any personally identifiable information, including account names, from the MediaGo Platform; (viii) using the MediaGo Platform for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting Online Marketing Customer’s affiliation with a person or entity, conducting fraud, hiding or attempting to hide Online Marketing Customer’s identity; (x) interfering with the proper working of the MediaGo Platform; (xi) accessing any content on the MediaGo Platform through any technology or means other than those provided or authorized by the MediaGo Platform; or (xii) bypassing the measures Publisher may use to prevent or restrict access to the MediaGo Platform, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the MediaGo Platform or the content therein.
1.5. Publisher will perform the specific Promotion activities through the following means:
1.5.1. Publisher will perform the Promotion activities set forth in one or more order forms. Online Marketing Customer shall submit the order form(s) in the form of the Order Form to Publisher, which shall be formally signed by both Parties.
1.5.2. Publisher will perform the Promotion activities set forth in emails confirmed by Parties. The business contact person of Online Marketing Customer shall submit the Promotion requirements (including but not limited to specific promotion content, starting and ending date of promotion, settlement, etc.) to the business contact person of Publisher via e-mail in the form of the Order Form. The Promotion requirements shall take effect upon confirmation by the business contact person of Publisher via E-mail.
1.5.3. Publisher will perform the Promotion activities based on the offers placed by Online Marketing Customer in MediaGo Platform.
2.1. Online Marketing Customer shall provide the Publisher with truthful, accurate and complete Content. If any such Content changes, Online Marketing Customer must notify Publisher in writing immediately.
2.2. Online Marketing Customer shall ensure that the Content must not contain or make reference to any content or information that could be considered in violation of any laws, regulations or policies of the local market in which such Content will be displayed, including but not limited to (where applicable):
- Drugs, cigarettes and alcoholic drinks;
- Pornography, pedophilia or explicit sex;
- Services providing forgery, information stealing and site penetration;
- Arms trade, violence and killing;
- Gambling and lottery services;
- Viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots or other software defects or computer programming routines that could impair or injure any person, or entity, computer equipment or software, including the Platform;
- False or deceptive marketing, sweepstakes, gambling, or trade disparagement;
- Misrepresentations or content that is defamatory or violates any rights of privacy or publicity;
- Any linking to software piracy services or content;
- Any form of illegal activity (i.e., how to build a bomb, hacking, etc.);
- Any gratuitous displays of violence, obscene or vulgar language, or abusive content or content which endorses or threatens physical harm;
- Any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.);
- Any inappropriate newsgroup postings or unsolicited e-mail (spam);
- Any Content that includes malicious charges;
- Any other Content that is in violation of applicable laws, rules or regulations.
2.3. The Publisher shall have the sole right in deciding whether or not to post or display any part or all of the Content if the Content violates any laws, regulations or policies of MediaGo Platform or Media Resources.
2.4. The Publisher may amend or alter the Content depending on the delivery medium and method of the Publisher with the Online Marketing Customer’s written (including by email) consent.
2.5. The Online Marketing Customer acknowledges and understands that the Publisher is unable to guarantee or commit to providing any minimum guarantees with respect to being able to display the minimum number of promotions as set out in this Agreement.
2.6. Publisher will not retain, use or disclose any “personal information” as such term is defined in the California Consumer Privacy Act of 2018 (“CCPA”) and any “personal data” as such term is defined in the Hong Kong Personal Data (Privacy) Ordinance (“PD(P)O”) included in the Content except as required to perform its obligations under this Agreement or as otherwise permitted under the CCPA, the PD(P)O or other applicable law.
3.1. Revenue shall be calculated using the following revenue model ( “Revenue Model”):
CPC: Revenue shall be generated through a Cost Per Click model (“CPC”), whereby the click number shall be calculated by every click user generates, based on MediaGo’s system data, to be paid to Publisher at a per-click rate identified in the MediaGo Platform.
3.2. Payment Process
3.2.1. Subject to receipt of an invoice from Publisher, Online Marketing Customer shall make advance top up payment (“Advance Payment”) to Publisher account set forth on the MediaGo Platform in U.S. Dollars by electronic funds transfer. Publisher will begin to provide Promotion service only after receiving the full Advance Payment.
3.2.2. Deduction of the Advanced Payments are calculated based on system data on the MediaGo Platform. Reports of system data for the current week or month (“Reports”) shall be sent weekly or monthly by Publisher to Online Marketing Customer to a designated email address as specified when it register and open its account on MediaGo platform within the first ten (10) Business Days of the following month. In order for Publisher to provide continued Promotion service, Online Marketing Customer should make another Advance Payment before the previous Advance Payment is run out.
3.2.3. In the event that Reports rendered by Publisher are disputed, Online Marketing Customer shall raise any such dispute within five (5) Business Days upon receipt of the Reports supported with an analysis of the dispute and any relevant documentation, or else the data in the Reports are deemed undisputed. The Parties shall resolve said dispute within five (5) Business Days of it being raised. If said dispute cannot be resolved within five (5) Business Days, the Reports shall be calculated based on system data on the MediaGo Platform.
3.2.4. For avoidance of doubt, Business Day in this Agreement shall mean a day, other than Saturday, Sunday or a public holiday on which commercial banks in Beijing or Hong Kong are authorized or required by applicable law to close.
3.2.5. All payments shall be made by Online Marketing Customer using the payment method made available on the MediaGo Platform.
3.2.6. Each Party shall be liable for any and all transaction fees, expenses and/or costs associated with its own payment obligations to the other Party under this Agreement.
3.2.7. The Online Marketing Customer agrees that timely payment is necessary for continued display and promotion of the promotions and, as such is the case; the Publisher reserves the right to halt the provision of its services at any time upon the Online Marketing Customer’s failure to make up the Advanced Payment or comply with the payment terms as set forth above. Further, the Publisher reserves the right to terminate its services immediately when all the Advance Payment is consumed.
3.2.8. The Publisher shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys' fees, in-house counsel costs, expenses and costs) incurred in attempting to collect outstanding or overdue payments from Online Marketing Customer.
3.2.9. All taxes arising in connection with the performance of this Agreement imposed on either Party shall be borne by said respective Party. Namely, the Online Marketing Customer shall pay Publisher an amount equal to the original price calculated based on the system data as agreed by both Parties.
3.2.10. For the purpose of verifying payments due from Online Marketing Customer under this Agreement, upon thirty (30) Business Days prior written notice to Online Marketing Customer, not more than once during any twelve (12) month period, Publisher may, by appointment and during normal business hours, have an independent, certified auditor inspect the records of Online Marketing Customer related to the calculation of payments due to Publisher. Before reviewing any of Online Marketing Customer records, the auditor shall enter into a non-disclosure agreement with Online Marketing Customer. If the auditor determines the amounts actually paid by Online Marketing Customer to Publisher are less than the amounts due to Publisher under this Agreement, Online Marketing Customer shall pay Publisher the amount of any such underpayment. Any audit shall be conducted at the sole cost and expense of Publisher, except that (i) if the examination of Online Marketing Customer’s books or records reveals an underpayment by Online Marketing Customer to Publisher of ten percent (10%) or more of the total amounts due to Publisher during the period examined, Online Marketing Customer shall pay all reasonable expenses related to the performance of the audit.
4.1. Each Party hereby represents and warrants that:
(a) it has full corporate power and authority to enter into and perform this Agreement, and no contract, agreement, promise, undertaking or other fact or circumstance will prevent the full execution and performance of this Agreement;
(b) the execution, delivery and performance of this Agreement has been duly authorized by each Party, and shall not violate any applicable law; and
(c) it is duly organized and in good standing in the country or state of its formation.
4.2. Online Marketing Customer represents, warrants and covenants that:
(a) If Online Marketing Customer is entering into this Agreement on behalf of an entity, organization, or company, Online Marketing Customer represents and warrants that Online Marketing Customer has the authority to bind that entity, organization or company to this Agreement and agrees to be bound by this Agreement on behalf of that entity, organization, or company.
(b) it has and shall maintain full authority to provide and license the Content to Publisher hereunder;
(c) it shall comply fully with all applicable laws, regulations, government orders, related platform rules or online agreements and the like;
(d) Online Marketing Customer has accurate and lawful agreements and privacy policies with end users that comply with applicable data protection and privacy laws, regulations, and self-regulatory frameworks (together, “Privacy Laws”), including but not limited to the EU General Data Protection Regulation, the CCPA, the PD(P)O the Network Advertising Initiative (NAI) Code of Conduct and the Digital Advertising Alliance (DAA) Self-Regulatory Principles, adequately discloses all of its activities to end users prior to installation or use of such Content, and does not violate any third party rights; and
(e) it shall be solely responsible for the provision of technical and customer service support to end users in accordance with industrial standards by means as are generally prevalent in the industry, and in any event, the standards shall be no less than that provided to end users from any other platform that is reasonably similar to the MediaGo Platform.
4.3. Publisher does not give any guarantee against failure of all or some of the service functions at any time, or against any technical or technological fault in the service or any security penetration made by a third party, nor does it provide any warranty in that respect.
4.4. Publisher does not give guarantee the use of the service by any party and/or its current or potential customers, and consequently, it does not guarantee the generation of any revenue from the service.
5.1. “Intellectual Property Rights” means any right that is or may be granted or recognized under applicable laws regarding patents, copyright, design right, trademark, trade name, service mark, logo, rights in confidential information, database right, trade secret, patent advertisements, rights in inventions, know-how and/or other present or future intellectual property right of any type, whether registered or unregistered, and including rights in any application for any of the foregoing.
5.2. Each Party is the owner or licensed user of its Intellectual Property Rights and nothing in this Agreement or otherwise shall confer on a Party any right, title or interest in the Intellectual Property Rights of the other Party. Except as may be expressly provided herein, neither Party shall have or obtain any rights in or to any Intellectual Property Rights of the other Party in connection with this Agreement.
5.3. Nothing in this Agreement provides each party a right to use any of the other party’s trademarks without any prior written approval of such party.
5.4. Online Marketing Customer shall only incorporate third party Intellectual Property Rights in the Content where (a) each such use is specifically permitted by the third party; and (b) no royalty payment is required to be paid by Publisher to Online Marketing Customer or any third party. Online Marketing Customer shall obtain all necessary consents from third party licensors, and hereby grant to Publisher the License for the purposes of and to the extent necessary to perform Publisher’s obligations under this Agreement.
6.1. “Confidential Information” may include any information (including, without limitation, technical and business information, business plans, financial reports, financial data, employee data, software or firmware code, product designs and/or specifications, algorithms, computer programs, mask works, inventions, unpublished patent applications, manufacturing or other technical or scientific know-how, specifications, technical drawings, diagrams, schematics, technology, processes, and any other trade secrets, discoveries, ideas, concepts, know-how, techniques, materials, formulae, compositions, information, data, results, plans, surveys and/or reports of a technical nature or concerning research and development and/or engineering activity, proprietary ideas, patentable ideas, copyrights and/or trade secrets, existing and/or contemplated products and services or software) whether marked as “Confidential” at the time of its disclosure or not, and provided by one party (“Discloser”) to another party (“Recipient”) in the course of ordinary business. Each party agrees that the information it provides in performing this Agreement shall be considered its Confidential Information. Recipient shall not disclose the Confidential Information to any Third Party without the Discloser´s written consent. Each party will promptly return or destroy the other party’s Confidential Information (including marketing materials) upon written request.
6.2. “Confidential Information” does not include information that: (i) is generally available in the public domain at the time of its disclosure; or (ii) was developed by employees or agents of the Recipient independently of, and without reference to, the Confidential Information; or (iii) is rightfully received by the Recipient from a Third Party not owing a duty of confidentiality to the Discloser (in which case and if requested by the Discloser, the Recipient will inform the Discloser about the identity of the Third Party and the exact information received). In the event that one Party is requested or required (whether by law or regulation) to disclose any Confidential Information or a portion thereof, that Party agrees to (y) give the other non-disclosing Party prompt written notice of such request or requirement so that the non-disclosing Party may seek an appropriate order or other remedy protecting the Confidential Information from disclosure and (z) cooperate with the non-disclosing Party, at the non-disclosing Party’s expense, to obtain such protective order or other remedy. In the event that a protective order or remedy is not obtained or if the non-disclosing Party waives its right to seek such an order or other remedy, then the disclosing Party may furnish only that portion of the Confidential Information which it is legally required to disclose and it shall give the non-disclosing Party written notice of the Confidential Information to be disclosed as far in advance of disclosure as practicable and use commercially reasonable efforts to obtain assurances that confidential treatment shall be accorded to such Confidential Information.
7.1. Online Marketing Customer is fully responsible for its Content, and undertakes to indemnify and hold harmless Publisher, Media Resources, and its and their parents, subsidiaries and affiliates, and its and their respective directors, officers, employees, and agents, and their respective successors, heirs and assigns (“Indemnitees”) from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, action, suit, demand, judgment or proceeding (a “Claim”) (collectively, “Losses” and individually, a “Loss”), whether or not involving a third party claim, which arise out of, relate to or result from (i) Online Marketing Customer’s breach of any representation or warranty contained in this Agreement; (ii) any third party claim that the Content infringes upon said third party’s rights and/or intellectual property rights; (iii) a claim that the Content infringes upon a trade secret; (iv) any violation of any applicable data protection and Privacy Laws; or (v) any other breach of its obligations under this Agreement or any applicable law.
7.2. Publisher will promptly notify Online Marketing Customer of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve Online Marketing Customer’s obligations except to the extent such Party is prejudiced by such failure or delay) and will: (i) provide reasonable cooperation to Online Marketing Customer at Online Marketing Customer’s expense in connection with the defense or settlement of all Claims, and (ii) be entitled to participate in the defense of all Claims at Online Marketing Customer’s expense. In the event that any third party Claim is brought, Online Marketing Customer shall have the sole and exclusive control of the defense of such action with counsel of its choice, provided however that Publisher may, participate in the defense of any such Claims at Online Marketing Customer’s expense. Online Marketing Customer shall not concede or settle or compromise any Claim that imposes any obligation or liability on Publisher without the prior written approval of Publisher.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PUBLISHER DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY, ACCURACY, ABSENCE OF VIRUSES OR OTHER MALICIOUS SOFTWARE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF PAYMENTS UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, PUBLISHER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE, LOST PROFITS, LOST CLIENTS OR BUSINESS INTERRUPTION) ARISING OUT OF ANY PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OR NOT OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO APPLICABLE LAW IN NO EVENT SHALL PUBLISHER’S TOTAL LIABILITY UNDER THIS AGREEMENT BE GREATER THAN THE TOTAL AMOUNTS THAT ONLINE MARKETING CUSTOMER PAYS TO PUBLISHER PURSUANT TO THIS AGREEMENT.
9.1. “Force Majeure” events shall mean earthquakes, typhoons, fire, flood, wars, strikes, riots, hacker attacks, telecommunications line failures, technological controls by telecommunications authorities, epidemic, change of law, act by governmental authorities or similar events that is not foreseeable (or although foreseeable but not preventable), is not within the reasonable control of either Party and prevents either Party from fully perform this Agreement.
9.2. In the event that Force Majeure result in Promotion failure or loss of stored information, neither Party shall pursue further and both Parties agree that the other Party is exempt from performing the obligations under this Agreement to the extent that is affected by Force Majeure and during the period that Force Majeure subsists. The Parties may consult and agree to extend the term of collaboration under this Agreement for the period delayed by Force Majeure. Neither Party shall be liable for breach of this Agreement as a result of a failure to perform if said performance is made impracticable due to an event of ForceMajeure.
9.3. The Party alleging Force Majeure shall, as soon as possible, notify the other Party of the details of Force Majeure including the nature, the date of occurrence, expected duration and also the extent that it is prevented from performing the obligations under this Agreement, together with written certificate in support of Force Majeure confirmed by relevant authorities, if applicable and shall make best effort to mitigate the damages caused by Force Majeure.
9.4. If a Force Majeure event continues for a period of thirty (30) days and the Parties fail to reach an agreement on continuing to perform this Agreement, either Party has the right to terminate this Agreement by written notice to the other Party.
10.1. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong, without regard to conflicts of law principles. Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The arbitration shall be conducted in English by three (3) arbitrators, each Party appoints one (1) arbitrator and the appointed 2 (two) arbitrators appoint the third arbitrator in accordance with the said Rules. The seat of arbitration shall be Hong Kong. The award shall be final and binding on both Parties. Expenses of the arbitrator(s) shall be borne equally between the Parties.
10.2. The Parties shall keep confidential all information relating to the arbitration, including without limitation, the existence of arbitration proceedings (or the possibility thereof), the proceedings themselves, all statements given or made during the course of the proceedings, all documents and other information submitted by parties in connection with the proceedings, all documents and other information issued by the arbitrator and/or the arbitration centre and the arbitral award. Nothing herein shall be deemed to limit the Parties’ rights to seek interim injunctive relief from any court to prevent or curtail any breach of this Agreement.
10.3. Any breach of this Agreement may result in irreparable damage to Publisher for which Publisher will not have an adequate remedy at law. Accordingly, in addition to any other remedies and damages available, Online Marketing Customer acknowledges and agrees that Publisher may immediately seek enforcement of this Agreement by means of specific performance or injunction, without any requirement to post a bond or other security.
11.1. This Agreement become effective on the Effective Date upon both Parties signed, shall remain valid for a period of twelve (12) months, and shall automatically be renewed for successive twelve (12) month periods (the initial 12-month period and subsequent 12-month renewal periods are herein collectively referred to as the “Term”). Should either Party elects not to renew this Agreement, it shall notify the other Party to this effect in writing at least thirty (30) days prior to the expiry of the Term, to which the other Party shall respond in writing within ten (10) Business Days.
11.2. Should either Party wish to extend the Term for a further period of a year, it shall notify the other Party to this effect in writing at least thirty (30) days prior to the expiry of the Term, to which the other Party shall respond in writing within ten (10) Business Days.
11.3. This Agreement may be terminated: (a) by each Party at any time with thirty (30) days prior written notice, or (b) when either Party has a receiver, manager, administrator, or other encumbrance appointed over any of its undertaking or assets or goes into liquidation or bankruptcy or enters into any agreement with its creditors or ceases to carry on its business, whether on account of debt or otherwise.
11.4. In the event this Agreement is terminated for any reason, Online Marketing Customer shall pay the Publisher all due payment under this Agreement and where applicable for any work that has been commenced and has not been terminated. Such payments shall be paid within thirty (30) Business Days from the date of termination of this Agreement.
11.5. Upon the termination of this Agreement, each Party shall return and/or destroy all copies of any Confidential Information of the other Party that it has in its possession or control, except for the documents and information saved in Media Resources couldn’t be returned. Each Party shall provide confirmation in writing to the other Party that it has done so.
12.1. Unless prior written notice of a change of address is given by the relevant Party, all correspondence between the Parties shall be delivered using the contact information made available on the MediaGo Platform.
12.2. All claims, instructions, consents, designations, notices, waivers, and other communications in connection with the Agreement will be in writing to the address set made available on the MediaGo Platform. Such notifications will be deemed properly given to the other party (a) when received if delivered personally or by a recognised courier service, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail.
13.1. Except as expressly set forth in the Agreement, neither Party shall have the right to assign, transfer, or otherwise convey any of its rights or obligations under this Agreement to any third party, wholly or partially, without the other Party’s prior written consent.
13.2. Notwithstanding anything to the contrary, either Party may assign, transfer charge, subcontract or deal in any other manner with any of its rights and obligations to an affiliate; or to an entity that purchases all or substantially all of the assets or equity of a party that assumes all of such party's obligations under this Agreement.
14.1. For all purposes under this Agreement, each Party shall be and act as an independent contractor. Nothing contained in this Agreement, nor any action taken by any Party to this Agreement, shall be deemed to constitute either Party (or any of such Party's employees, agents, or representatives) as being an employee, or legal representative of the other Party, nor to create any partnership, joint venture, association, or syndication among or between the Parties.
14.2. All comments, feedback or materials submitted by Online Marketing Customer to Publisher including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by Publisher on a non-confidential and unrestricted basis. Publisher will be free to use, display, perform, distribute, copy, adapt, and promote, in any medium now known or later developed, without compensation to Online Marketing Customer, the Feedback for any purpose whatsoever, including without limitation, developing, marketing and selling products and services incorporating such Feedback. Online Marketing Customer agrees that, in submitting Feedback, it will not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity. Online Marketing Customer further agrees that no Feedback Online Marketing Customer submits will be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, or any form of “spam.”
14.4. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
14.5. Failure or delay on the part of either Party to exercise any right hereunder shall not operate or be interpreted as a waiver thereof, nor shall any single or partial exercise of any right preclude any other future exercise thereof.
14.6. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the Parties with respect to the subject matter of this Agreement. The offers/orders and any supplemental agreement that incorporates this Agreement by reference forms an integral part hereof and has the same legal effect as this Agreement.
14.7. Online Marketing Customer acknowledges and agrees that Publisher has the right to change this Agreement from time to time and without prior notice. Online Marketing Customer agrees to review this Agreement periodically. If Publisher makes a change to this Agreement, the change will be effective as of the “Effective Date” listed at the start of the Agreement. If Publisher makes a material update to the Agreement, Publisher will notify Online Marketing Customer using a commercially reasonable notice method. By continuing to access or use the MediaGo Platform or otherwise request services pursuant to this Agreement after it has been updated, Online Marketing Customer agrees to be bound by the updated Agreement. If Online Marketing Customer do not agree to the updated Agreement, Online Marketing Customer has the right to terminate the Agreement as set forth in Section 11. Any disputes under this Agreement will be governed by the version of Agreement in effect at the time of the first event giving rise to the dispute.
By clicking “Agree and Submit” below, Online Marketing Customer listed above agrees to be bound by Publisher’s Online Promotion Service Agreement, available at https://business.mediago.io/platform/user/register, and represents and warrants that Online Marketing Customer has read and understands Publisher’s Privacy Policy, available at https://www.mediago.io/privacy.