Terms and Conditions (‘Vuclip T & C’) are incorporated by reference into one or more Insertion Order(s) (IOs) entered/executed by and between the Parties mentioned on the IOs. If there is a conflict between these Vuclip T&Cs and IOs or terms and conditions issued by the Publisher in addition to IOs, these Vuclip T & C shall prevail. These Vuclip T&C set forth herein together with the IOs and terms and conditions of the Publisher shall collectively be referred to as the “Agreement”. This Agreement shall be deemed executed upon the IO being executed by Vuclip and Publisher (the “Parties”).

1. Definitions

1.1. “Publisher” means the agency/publisher whose name is stated in the IO.

1.2 “Advertisement Content” means any content made available by Vuclip to the Publisher for use in connection with the display of an Advertisement Offer, inter alia, any designs, drawings, texts, logos, graphics, audio content, visual content and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing.

1.3. “Advertisement Offer” means an advertisement and/or interactive advertisement that contain Vuclip Content.

1.4. “Vuclip Product/Service” means the product and/or service promoted by Vuclip using the Advertisement Offer.

1.5. “Fees” means the fees to be paid by Vuclip to Publisher for the Services rendered as referred in the in the IO and in accordance with Clause 4 of these T&C.

1.6. “Intellectual Property Rights” means, any and all intellectual property rights, whether registrable or not, in any jurisdiction worldwide including without limitations: (a) copyrights, including moral rights, registrations and applications for registration thereof; (b) computer software programs, data and documentation; (c) patents, patent applications and all related continuations, divisional, reissue, design patents, applications and registrations thereof, certificates of inventions; (d) trademarks, trademarks applications, domain names, trade secrets and Confidential Information (as defined below), including without limitation, know-how, manufacturing and the software process and techniques, designs, prototypes, enhancements, improvements, work-in progress, research and development information.

1.7. “Services” means the advertisement services provided by Publisher as described in the IO and Clause 3 of these T&C.

1.8. “User(s)” means a user of the Website(s).

1.9. “Vuclip” means the Vuclip entity stated in the IO.

1.10. “Website(s)” and/or “Platform” means any third party websites, WAP sites, applications and/or platforms or properties (as may be stated in the IO).  

2. Purpose of Engagement

Vuclip wish to promote certain Vuclip Products/Services to Users of the Website(s) by placing Advertisement Offer that shall enable such Users to view and participate in such Advertisement Offer of the applicable Website, subject to and in accordance with the terms and conditions set forth in this Agreement.

3. The Services

3.1. During the term of this Agreement, Publisher shall provide advertisement services to launch the applicable campaign set forth in the IO, and ensure that the Advertisement Offer submitted to Publisher by Vuclip shall be displayed on the applicable Website(s) and/or Platform.

3.2. Publisher shall use the Advertisement Offer and/or Vuclip Content for the sole purpose of providing the advertisement services to the Vuclip based on terms set forth in the Agreement.

3.3 Publisher agrees that it will obtain Vuclip’s prior written approval before disseminating any Advertisement Content to the public.  

4. Fees and Payment Terms

4.1. Fees. Vuclip will pay to the Publisher, all Fees, according to the amounts, and instructions set forth herein and in the IO. Vuclip shall not be liable to pay to Publisher any interest, abatement, or penalty of any nature.

4.2. Advance Payment. Publisher shall not be entitled to advance payment, unless otherwise agreed by Vuclip in the IO. In the event of cancelation of an IO in accordance with these Terms and Conditions, the Publisher shall be refund the non-used balance of the Advance Payment (if any) within 15 days of such cancelation to Vuclip.

4.3. Payment Terms. The Fees that were recorded as accrued and due on a certain month shall be paid within the payment term set forth in the IO starting from the end of such month, and shall be paid against an invoice issued by Publisher.

4.5. Tax. All amounts payable by Vuclip under this Agreement are inclusive of any foreign or domestic governmental taxes, duties, fees and other governmental charges of any kind that may be applicable, including, without limitation, excise, sales, use, withholding or value-added taxes. Publisher shall be liable to pay all applicable taxes, levies, duties, governmental charges arising or in connection with the services rendered under this Agreement including but not limited to value added tax, GST and withholding tax.

4.6. Discrepancy in reports. In the event of general discrepancy in reports of the Publishers for any reason, the maximum allowable discrepancy is cap at 5%, beyond which Vuclip’s reported numbers shall be the final and binding applicable under all conditions, for the purpose of calculation of payment and Fees.

5. Reports.

Publisher shall provide to Vuclip other with periodic reports detailing Qualified Transactions and other related information in accordance with the format to be mutually agreed.

6. Confidentiality

6.1 Each receiving party agrees and undertakes (i) not to disclose the confidential information of the disclosing party to any third party; (ii) not to make any use of the confidential information except as required for performing its obligations and permitted for utilizing its rights under this Agreement; and (iii) to protect the confidential information by using the same means of security that it uses to protect its own information of a confidential nature, which in any event, shall not be less than a reasonable level of protection.

7. Warranty and Warranty Disclaimers

7.1. Limited Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EITHER PARTY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. EITHER PARTY DOES NOT MAKE OR THIS AGREEMENT DOES NOT PASS TO THE OTHER PARTY IN ANY WAY ANY REPRESENTATION, WARRANTY OR UNDERTAKING ON BEHALF OF THE SUPPLIERS OR LICENSORS OF EITHER PARTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

8. Indemnification

8.1. Indemnification. Either party (the “Indemnitor) will indemnify, defend and hold the other party and/or other Party’s officers, directors and employees (the “Indemnified Party”) harmless, at its own expense, against any claims, actions, damages and costs (including but not being limited to attorneys' fees and costs) finally awarded by a court of competent jurisdiction, arising out of or based upon :(i) a claim that a Party’s property (which may include its services, trademarks, technology, materials and content) (the “Infringing Property”) infringes Intellectual Property rights of third parties; or (ii) the breach of any representation or warranty of a Party set forth herein, (collectively, the “Claim”). In addition, Publisher shall indemnify, defend and hold Vuclip, its officers, directors and employees harmless, at its own expense, against any claims, actions, damages and costs (including but not limited to attorney’s fees and costs), arising from the gross negligence by the Publisher.  In the event a Claim is brought against an Indemnified Party, such Indemnified Party shall give the Indemnitor as soon as reasonably possible notice of such Claim; provided that failure of an Indemnified Party to give prompt notice as provided herein shall not relieve the Indemnitor of any of their obligations hereunder, except to the extent that such failure materially prejudiced the ability of such Party to defend against any such Claim. The Indemnitor shall have the right, at its own expense, to participate in or assume the defence of such Claim. The Indemnified Party shall assist the Indemnitor in the defence of such Claim. Either party may not adjust, settle or compromise any Claim brought against the Indemnified Party for which the indemnity set forth herein is sought without the prior written consent of the other party, which consent will not be unreasonably withheld.

8.2. If a Claim alleging infringement is brought or Indemnitor believes one may be brought, Indemnitor shall have the option at its own expense, to (i) modify the Infringing Property to avoid the allegation of infringement; (ii) obtain for the Indemnified Party, at no cost to to such party, a license to continue and display the Infringing Property in accordance with this Agreement; (iii) ask Indemnified Party to immediately remove the Infringing property from the applicable Websites.

9. Limitation Of Liability

9.1. OTHER THAN IN EVENTS OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), SERVICE LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2. OTHER THAN IN EVENTS OF GROSS NEGLIGENCE, WILFUL MISCONDUCT, THE ENTIRE LIABILITY OF EITHER PARTY SHALL BE LIMITED TO THE AMOUNT OF CONSIDERATION ACTUALLY PAID OR DUE TO VUCLIP DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS APPLICABLE TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW.

9.3. Both Parties acknowledge and agree that the Parties entered into this Agreement in reliance upon the disclaimers and limitations of liability set forth herein, which constitute a material agreement upon which this Agreement is based and correctly and fairly represent the allocation of risk as mutually agreed between the Parties. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

10. Term And Termination of Agreement

10.1. Term. The Terms shall be the period mentioned under the IO.

10.2. Termination. Either Party hereto may terminate this Agreement, at any time, for any reason, by giving the other Party prior written notice of 15 days or such other notice period as stated in the IO. Additionally, Each Party shall have the right to terminate this Agreement upon seven (7) business day’s prior written notice if the other Party is in material breach of any material obligation under this Agreement and the breaching Party fails to remedy such breach within the notice period.

10.3. Effects of Termination. Upon termination of this Agreement for any reason: (i) All rights and licenses granted to either Party under this Agreement shall forthwith terminate, expire and immediately revert to the other Party; (ii) Each party shall return to the other or destroy any Confidential Information then its possession and Publisher shall cease any and all use of the Vuclip’s Intellectual Property; (iii) All representations and warranties and provisions hereunder which, by nature, are meant to survive any termination of this Agreement shall so survive, including without limitation, Clauses 7,8,9, 10,11,12,13 and 14.

11. Governing Law and Courts

This Agreement and matters concerned with the performance thereof shall be construed, interpreted, applied and governed in all respects in accordance with the laws stated in the IO, without reference to conflict of laws principles. The competent courts as stated in the IO shall have non-exclusive jurisdictions over any dispute arising out in connection with this Agreement and the performance thereof. Notwithstanding the foregoing, either Party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief.

12. Miscellaneous

(i) Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party; such consent shall not be unreasonably withheld. Notwithstanding the above, such consent shall not be required, in connection with any merger, consolidation, reorganisation or restructuring, or the sale of substantially all of a Party’s assets as long as such successor or assignee of this Agreement agrees in writing to be bound by this Agreement, provided however that in such event the other Party (not the assignor) may terminate the agreement with a 7 days’ prior written notice. Any assignment in violation of this provision shall be deemed null and void; (ii) the Parties are independent contractors and neither Party is an agent, representative or partner of the other; (iii) This Agreement and the IO sets forth the entire agreement between the Parties, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein; (iv) This Agreement may be amended only by a writing executed by a duly authorised representative of each Party; (v) Any notices under this Agreement shall be sent to the addresses set forth in the IO, by email or express delivery service via courier and deemed given upon receipt; (vi) The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party; (vii) If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.