1. GENERAL INFORMATION
1.1. The following are the Terms and Conditions governing the relationship between Clickky Group Limited, the company registered under the registration number 2193592 at Unit F, 11/F, CNT Tower, 338 Hennessy Road, Wan chai, Hong Kong, (“Clickky”) and any legal entity or individual (“Advertiser”), collectively referred to as the “Parties” and severally as the “Party”, during the Advertiser’s use of the Clickky’s advertising platform (“Platform”).
1.2. The Advertiser is an independent party and no joint venture, employment, or agency relationship exist between the Advertiser and Clickky as a result of these Terms and Conditions or the Advertiser’s consuming of the Services.
1.4. Clickky reserves the right to amend this Agreement at any time and indicate the date of the last amendments on the top in the “Last amended” field. The Advertiser’s continued use of the Platform after any such amendments and notification thereof (which may be provided by e-mail to the email address provided in the course of the Advertiser’s creating the account) shall constitute the Advertiser’s consent to and acceptance of such amendments.
2. TERMS OF SERVICE PROVISION
2.1.1. Clickky enables the Advertiser through the use of the Platform to carry out advertising campaigns (“Campaigns”) for the purpose of distributing and promoting their applications (“Apps”) through the Clickky’s publishers network (“Services”).
2.1.2. As a part of Services hereunder, Clickky shall automatically generate the Advertiser’s Creatives for the Campaign and place the resulting Advertisements for Campaigns via the Platform on mobile-optimized websites, mobile applications, and/or on rare occasion non-optimized mobile websites accessed through mobile devices. For the purposes hereof, “Creatives” shall mean all graphic materials, video, texts and other materials, which are provided by the Advertiser to Clickky needed for the Campaign; “Advertisement” shall mean the electronic advertisement, series of electronic advertisement that contain certain advertising content, including materials, links and creatives, the promotion(s) of the type(s) specified through the Account and relating to the product(s) or service(s) and the Campaign(s) of the Advertiser.
2.1.3. To be provided with the Services, the Advertiser shall create an account via the Platform under the terms of Section 2.2. hereof.
2.2. Advertiser’s Account
2.2.1. The Clickky’s Services are available for the Advertiser only upon the creation of an Advertiser’s account (“Account”).
2.2.2. By creating the Account, the Advertiser represents that they have full legal capacity to conclude contracts (for individuals, this includes the representation that they are at least 18 years old but in any way not less than the applicable age of majority (legal adulthood) where they are located) as well as they meet all other eligibility and residency requirements and they are fully able and legally competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth herein and to abide by and comply herewith.
2.2.3. When creating the Account, the Advertiser shall provide valid, current, complete, and accurate information. The Advertiser shall be fully responsible for safeguarding and maintaining the confidentiality of their Account and associated password, as well as for keeping the information up-to-date. The Advertiser shall remain fully and solely responsible for any and all actions taken under Advertiser’s account.
2.2.4. Clickky shall be entitled to refuse to open an Account (or if the Account has already been opened, immediately suspend it and cease any Campaign associated with such Account) without any liability to Clickky if, in Clickky’s sole discretion, the Advertiser is not in compliance with the provisions herein or is in violation of any applicable laws, Clickky’s rules, or policies.
2.2.5. By using the Account, the Advertiser shall be entitled to start Campaigns for the promotion of their Apps by integration into the Clickky’s network. To start the Campaign, the Advertiser shall fill in all required information to the cabinet (e.g., link to the App, tracking link for reporting purposes, daily budget etc.) and test it.
2.2.6. If the result of the testing is positive, the Advertiser shall transfer payment for the future Services to their Account. The Campaign shall successfully start only upon the prior payment of the amount required for such Campaign.
2.2.7. Through the use of the Account, the Advertiser shall be entitled to start or stop the Campaigns, to disconnect sources of installations, and to use any other functions of the Account offered via the Platform.
2.2.8. The Account may be terminated by the Advertiser at any time, should all due payments be made, as well as by Clickky under the terms hereof.
2.3.1. The Services shall be fully paid in advance through the transfer of the respective amount to the Advertiser’s Account before start of the respective Campaign. The amounts from the Advertiser’s Account are automatically charged as payment for the Clickky’s Services in the amount agreed through the Account on the cost per install (“CPI”) basis after the Campaign starts.
2.3.2. Payment shall be calculated and tracked solely based upon the reports that include the statistics on the Ads via the Platform. If the Advertiser has issues with traffic provided via the Platform, the Advertiser shall deliver a performance report to Clickky in the next 15 days after the provision of Services and no later than the 5th day of each month, with respect to each Campaign, based on the results measured by the tracking partner. To be accepted and paid thereunder, the reports shall meet, in form and substance, the reasonable requirements of Clickky.
2.3.3. The payment shall be made either via the transfer to the Clickky’s bank account (as provided through the Website or the Platform) through the integrated payment system or otherwise (e.g. PayPal or other means discussed with Clickky in advance), as agreed by the Parties and as chosen by the Advertiser.
2.3.4. The Advertiser alone shall bear any and all transfer fees and processing fees related to its payment (e.g. bank fees, PayPal, etc.).
2.3.5. Each Party shall bear its own taxes, duties, and charges imposed or that may be imposed by any applicable governmental agency in connection with the Agreement and each Party’s performance hereunder.
2.3.6. Clickky shall exercise reasonable efforts to endeavor that the Advertiser’s daily budget agreed in the Account shall not exceed the amount set.
2.3.7. Clickky has the duty to investigate the claim and reimburse any fee to the Advertiser should the claim be found to be legitimate at the Clickky’s sole discretion. In particular, should the Advertiser initiate the reimbursement of fees (refunds) wrongfully paid from the Advertiser’s Account for the Services hereunder, the Advertiser shall provide Clickky with the detailed report for such reimbursement. The report shall be submitted to Clickky within 15 (fifteen) days following the date of such wrongful payment but not later than the 5th (fifth) day of the month, and shall include at least the following information:
- Campaign Name;
- Click ID;
- Source ID;
- User’s IP;
- Lead date and time;
2.3.8. Should the Advertiser provide the report in accordance with paragraph 7. hereof, and should Clickky affirm the claim of fraud or a mistake, all fees wrongfully paid for the Services hereunder shall be transferred back to the Advertiser’s Account within 15 (fifteen) days following the date of the positive decision of Clickky.
2.3.9. However, it is hereby affirmed that without specific proof of fraudulent activity by one of the publishers on the Clickky’s platform, Clickky shall not be entitled to reimburse any fees. Any complaint in regards to low retention rates for the Apps or other performance indicators will not serve as proof of fraud and as such Clickky shall not be obliged to reimburse any fees.
2.3.10. Advertiser warrants that he has obtained active consents of data subjects to collect, store, process and transfer their personal data pointed above to Clickky for the purposes of determining fraudulent activity. As Clickky is located outside EEA, personal data of EU residents should be transferred elusively after concluding relevant data processing agreement (for which parties may use Model Contractual Clauses as determined in relevant data protection legislation of the EU). In cases Clickky will receive any complaint or request from data subject or relevant data protection authority, Advertiser covenants to provide necessary information regarding active consents of relevant data subjects for use of their data as pointed above.
2.4. Other Terms of Services Provision
2.4.1. Clickky reserves the right, in its reasonable discretion and without liability to reject, omit, exclude or terminate any Campaign for any reason at any time, with subsequent notice to the Advertiser, whether or not such Campaign was previously acknowledged, accepted, or published by Clickky.
2.4.2. Clickky may modify the Platform or any of the features provided in connection with the Platform at any time with or without notice to the Advertiser. Accordingly, the Advertiser shall have the right to use only the current version of the Platform as existing at relevant time. Clickky may conduct maintenance on or stop providing any Platform service at any time with or without notice to the Advertiser.
2.4.3. If Advertiser acts contrary to their warranties and representations hereunder, Clickky shall have the right (without prior notice to the Advertiser) to remove and take any measures needed to prevent or correct such conduct or activity from being used in connection with the Services; and suspend or cease the Campaign. For the removal of doubt, Clickky shall not have any liability to Advertiser whatsoever as a result of any of the foregoing actions taken by Clickky.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. “Intellectual Property Rights” in this Section shall mean any and all intellectual property rights, whether registrable or not, in any jurisdiction worldwide, inter alia, patents and trademarks (including applications), copyrights (including moral rights), domain names, trade secrets, know-how and the Confidential Information (as provided in Section 8 hereof).
3.2. Clickky retains all rights, title, and interest in and to all Intellectual Property Rights embodied in or associated with the Platform, the Website, all of the Services and the related Content as well as any derivative therefrom. “Content” shall mean any part of the Platform, inter alia, text, graphics, user interface, visual interface, photographs, trademarks, logos, artwork, and computer code, including but not limited to design structure, selection, coordination, expression.
3.3. Except as expressly stated herein, Clickky grants no ownership hereunder to the Advertiser or any third party of any part of the Platform, the Website, all of the Services and the related Content as well as any derivative therefrom. The arrangement of such Content is owned by Clickky and is protected by the Intellectual Property Rights and fair competition laws.
3.4. No part of the Content may be copied, reproduced, republished, posted, displayed, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or medium for publication or distribution or for any commercial enterprise, without the Clickky’s prior written consent.
3.5. Clickky hereby provides the Advertiser with a limited, non-exclusive, non-sub licensable, non-transferable right, under its Intellectual Property Rights and the licenses provided to it by third parties, only during the term of this Agreement, to use the Platform for obtaining the Services according to the terms hereof.
3.6. The Advertiser will own and have right and title to its trade names, trademarks, service marks, logos, and domain names (collectively “Marks”). In the event Clickky develops any Creative for the Advertiser, any Content used to create such Creative by Clickky for use directly in connection with Advertiser’s Marks is Clickky’s work product and shall belong entirely to Clickky and may not be used for any other use or by any other party without Clickky’s consent.
3.7. There are no implied licenses under the Agreement, and any rights not expressly granted to Advertiser hereunder are reserved by Clickky or its suppliers.
3.8. The Advertiser retains all rights, title, and interest in and to all Intellectual Property Rights embodied in or associated with their Apps and the Creatives.
3.9. Except as expressly stated herein, the Advertiser grants no ownership hereunder to Clickky or any third party of any portion of their Apps and the Creatives. Upon providing the Creatives to Clickky, the Advertiser hereby grants to Clickky and its publishers a non-exclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaigns in connection with any Services performed by Clickky.
4. WARRANTIES AND REPRESENTATIONS
4.1. Each Party hereby represents and warrants to the other Party that:
4.1.1. it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
4.1.2. this Agreement is a valid and binding obligation of such Party; and
4.1.3. it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals, and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules, and regulations (including with regard to the Intellectual Property Rights).
4.2. Advertiser represents and warrants that:
4.2.1. at all times they will be compliant with all relevant laws, regulations, and generally accepted standards in any relevant jurisdiction as well as with the applicable AppStore’s rules and policies, including without limitations with respect to privacy, collection, and processing of personal data and information, protection of minors, the rights of third parties, and fair competition. For the purpose hereof, the “AppStores” shall mean Android or iOS application distribution platforms that may include, without limitation, Google Play Store, Apple App Store, Amazon Appstore, etc.;
4.2.2. Creatives and the respective Advertisements of the Advertiser derrived from AppStores for certain Campaign, as well as their use of the Platform in general, does not contain illegal content, spyware, illegal drugs, medicine, child pornography, child abuse, phishing, pirated media (such as illegal MP3 or movie downloads), obscene or pornographic mobile applications or mobile websites, and/or any other illegal, libelous, defamatory, obscene, violent, bigoted, or hate-oriented content, does not introduce viruses, spyware, and malware, promotes online casinos and gambling in jurisdictions where such activity is prohibited, promotes weapons or ammunition, promotes hard alcohol, where the foregoing may otherwise harm Clickky, its business or reputation;
4.2.3. they will use the Platform, the Website, all of the Services and the related Content as well as any derivative therefrom, to which Clickky has Intellectual Property Rights, exclusively under the terms hereof;
4.2.4. at all times he will be compliant with the relevant data protection laws (including, but not limited to: General Data Protection Regulation), shall have legally obtained rights to use and transfer personal data of data subjects for the purposes Advertiser enters into agreements with Clickky, shall have necessary level of security measures and data protection policies in order to comply with the relevant data protection laws, shall assist Clickky in all the ways reasonably necessary for Clickky to comply with relevant data protection laws, requests of data subjects or data protection authorities.
5.1. The Advertiser shall indemnify, defend, and hold Clickky and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors, and permitted assignees harmless from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses, and/or liabilities (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) filed/incurred by any third party against Clickky arising out of a breach of any warranty, representation, or obligation under the Agreement.
6. DISCLAIMER OF WARRANTIES
6.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ADVERTISER EXPRESSLY AGREES THAT ACCESS TO AND USE OF THE PLATFORM IS AT THEIR SOLE RISK. THE PLATFORM IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND. CLICKKY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NON-INFRINGEMENT.
6.2. CLICKKY DOES NOT GUARANTEE THAT THE PLATFORM AND ANY SERVICES WILL BE AVAILABLE AT ALL TIMES, IN ALL COUNTRIES AND/OR ALL GEOGRAPHIC LOCATIONS, OR AT ANY GIVEN TIME, OR THAT CLICKKY WILL CONTINUE TO OFFER PARTICULAR SERVICES FOR ANY PARTICULAR LENGTH OF TIME (UNLESS WE EXPRESSLY SAY OTHERWISE AS PART OF THE SERVICES).
6.3. CLICKKY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE ADVERTISER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. CLICKKY DOES NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. CLICKKY MAKES NO REPRESENTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, OF ANY KIND, REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, APPROPRIATENESS, AND TIMELINESS OF ANY CONTENT AVAILABLE THROUGH THE SERVICE.
6.4. CLICKKY IS NOT RESPONSIBLE FOR ANY DAMAGE TO THE ADVERTISER’S MOBILE, TABLET, LAPTOP, OR DESKTOP DEVICE, COMPUTER SYSTEM, OTHER HARDWARE OR SOFTWARE, OR FOR ANY LOSS OF OR DAMAGE TO DATA THAT MAY RESULT FROM THE ADVERTISER’S USE OF THE PLATFORM AND SERVICES.
7. LIMITATION OF LIABILITY
7.1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, REGARDLESS OF THE FORM OF ACTION, AND IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
7.2. EXCLUDING PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR DELAY OR DEFAULT IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER IF SUCH DELAY OR DEFAULT IS CAUSED BY CONDITIONS BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, FIRE, FLOOD, ACCIDENT, EARTHQUAKES, TELECOMMUNICATIONS LINE FAILURES, ELECTRICAL OUTAGES, NETWORK FAILURES, ACTS OF GOD, OR LABOR DISPUTES.
7.3. THE TOTAL AMOUNT OF THE CLICKKY’S AGGREGATE LIABILITY HEREUNDER MAY NOT EXCEED THE AMOUNT OF PAYMENTS MADE BY THE ADVERTISER TO THE CLICKKY WITHIN THE LAST 180 (ONE HUNDRED AND EIGHTY) DAYS FROM THE DAY THE LIABILITY OBLIGATIONS AROSE.
8. PRIVACY AND CONFIDENTIAL INFORMATION
8.1. The Receiving Party may use the Disclosing Party’s Confidential Information only as necessary to exercise rights and perform obligations hereunder. During the term of this Agreement and three (3) years thereafter, the Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third party without prior written consent. The Receiving Party will protect the Disclosing Party’s Confidential Information from disclosure or misuse by using the same degree of care as for the Receiving Party’s own Confidential Information of like importance, but will at least use reasonable care.
8.2. For purposes hereof, the “Confidential Information” shall mean all non-public information whether disclosed orally, in writing, or in any other manner, in any form and in any media, including, without limitation, any and all financial, technical, business information relating to either Party, information related to clients, methods, ideas, concepts, software, trade secrets, or other intellectual property rights, formulations, data, know-how, designs, inventions, discoveries, processes, and any sales, financial, contractual, and marketing information, and any information of a confidential nature concerning products or services of the Parties.
8.3. However, the Confidential Information shall not include any information which is:
8.3.1. known by the Receiving Party (without breach of any confidentiality obligation by any third party) prior to disclosure by the Disclosing Party;
8.3.2. independently developed by the Receiving Party without the use of or reference to any Confidential Information;
8.3.3. legally received by the Receiving Party (without breach of any confidentiality obligation by any third party) from a third party that is not under a confidentiality obligation to the Disclosing Party; or
8.3.4. publicly available through no breach of this Agreement by the Receiving Party.
8.5. Neither Party shall be deemed to violate this Section, should the Receiving Party disclose the Confidential Information upon the Disclosing Party’s written approval or on the requirement of the competent legal or governmental authority.
9. TERMS AND TERMINATION
9.1. This Agreement shall be effective as of the date when the Advertiser accepts its provisions under the terms hereof, and shall remain in force until terminated by either Party.
9.2. This Agreement may be terminated either by Clickky or by the Advertiser at any time, for convenience upon prior written notice to the other Party. This Agreement may be also immediately terminated by Clickky under the terms provided herein.
9.3. Upon termination or expiration of the Agreement for any reason:
9.3.1. the Advertiser will remain liable for any amount due to the Publisher prior to the effective date of termination and such obligation to pay shall survive any termination of this Agreement;
9.3.2. any and all licenses and rights granted to either Party in connection with the Agreement shall immediately cease and terminate;
9.3.3. any and all Confidential Information or proprietary information of either Party that is in the other Party’s possession or control must be immediately returned, destroyed, or kept confidential.
10.1. Governing Law and Disputes Resolution. This Agreement shall be governed by the laws of Hong Kong, without reference to its rules regarding conflicts of law. The Parties agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with this Agreement through negotiations. Should the Parties fail to resolve any such disagreement within thirty (30) business days, the dispute may be submitted to arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules. The number of arbitrators shall be one. The seat of arbitration shall be Hong Kong. The language of arbitration shall be English.
10.2. Assignment. Neither Party shall assign this Agreement, in whole or in part, without the other Party’s prior written consent, except that either Party may assign this Agreement without consent of the other in case of merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit and bind the Parties’ respective successors and permitted assignors.
10.3. Complete Agreement; Waiver. This Agreement is intended to fully reflect the terms of the original agreement of engagement of the Clickky’s Services. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party’s rights hereunder at any time to enforce strict compliance thereafter with every term and condition hereof.
10.4. Contacts. The Advertiser may send any questions regarding the use of Platform and the Clickky’s Services or regarding this Agreement via e-mail at email@example.com.