Last updated: 2017/10/20
Account: means an account in which value is stored for You, which value You may then spend in using the services in accordance with this Agreement.
Advertising Materials: include but not limited to logos, pictures, texts, audio, video, banners, landing pages, active URLs, rich media, and other creatives etc.
Publisher Sites: means the traffic owner or traffic provider, including but not limited to Ad Exchange, etc.
Impression: an Impression occurs each time when a visitor hits to a media and the hit will be recorded.
Business Day: means a day other than Saturday, Sunday or public holiday in People’s Republic of China.
Confidential Information: means any information designated in writing, or identified orally at the time of disclosure, by the disclosing party as ‘confidential’ or ‘proprietary.’
Force Majeure: means events which are beyond the control of the Parties to this Agreement, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by each Party. Such events shall include earthquakes, typhoons, flood, war, riots or any other instances which cannot be foreseen, prevented or controlled, including instances which are accepted as Force Majeure in general international commercial practice.
In order to participate in ZingerMedia DSP, You will be required to create an account with ZingerMedia (“Account”).In creating Your Account, You certify that all information You provide is complete and accurate. You agree to update such information when required or requested, and You further agree not to use another person’s account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, Your Account and password, and You are solely responsible for all activities that occur under Your Account or password. You agree to notify us immediately of any breach of security or unauthorized use of Your Account. ZingerMedia shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of Your Account, and You agree to indemnify and hold ZingerMedia harmless for any such unauthorized use.
2. Provisions of services
2.1 ZingerMedia DSP allows You to buy impressions across a range of Publisher Sites. Often the price of those impressions is determined by a real-time auction, through a process of real-time bidding and impressions are simply auctioned off to the highest bidder.
2.2 You shall be responsible for preparing Advertising Materials to be used after a successful bid in accordance with ZingerMedia’s policies and specifications in effect from time to time and subject to the prior examination by ZingerMedia.
2.3 You grant ZingerMedia a non-exclusive, transferable, irrevocable right to use the Advertising Materials, the logos, trademarks, service marks and/or identifying words associated with You for the sole purpose of this Agreement. Furthermore, ZingerMedia is entitled to use the data collected for the performance of this Agreement.
2.4 ZingerMedia shall have the right, at its sole discretion, to reject or remove any Advertising Materials from ZingerMedia DSP at any time (as applicable), with or without notice, if: (a) ZingerMedia receives a complaint from any person or entity regarding any such Advertising Materials; (b) ZingerMedia reasonably believes that displaying any such Advertising Materials will have an adverse impact on ZingerMedia DSP and/or its reputation or business; (c) the Advertising Materials are in breach of any applicable law, rule or regulation, or industry best practices; (d) the Advertising Materials are in violation of any terms and conditions of this Agreement; or (e) the Advertising Materials result in the infringement of any third party’s right. ZingerMedia shall not be liable for any damages or costs resulting from the removal of any such Advertising Materials. The fact that ZingerMedia has not rejected any Advertising Materials shall in no way reduce, limit or otherwise affect Your responsibility and obligations under this Agreement.
3. Use Policy
Before you use the ZingerMedia DSP services, You shall research and read carefully the policies of the Publisher Site and you warrant to obey and observe such policies. You will not, and will not allow or encourage any third party to: (a) generate impressions or clicks through any automated, deceptive, fraudulent or other invalid means (including, click spam, robots, macro programs, and Internet agents); (b) encourage or require end users to click on Ads through methods that are manipulative, deceptive, malicious or fraudulent; (c) use a design that encourages or is reasonably likely to lead to accidental or unintended clicks by the user on any Ads; (d) use or modify any feature or functionality of the ZingerMedia DSP services to collect personally identifiable information; (e) engage in any action or practice that devalues ZingerMedia’s reputation or goodwill; or (f) create or attempt to create a substitute or similar service or product through use of or access to any of the ZingerMedia DSP services or proprietary information related thereto; (g) decompile, reverse engineer, or disassemble the ZingerMedia DSP services.
You acknowledge and agree that statistics recorded by ZingerMedia DSP are the final, conclusive and binding measurements for calculation of the charges under this Agreement. In the event that You dispute in good faith any portion of an invoice and claims a discrepancy, You must submit that dispute to ZingerMedia in writing and in sufficient details and proof within seven (7) days upon the receipt of the invoice. If You do not dispute the invoice as set forth herein or fail to provide sufficient convincing evidence, then You agree that You irrevocably waive any claims based upon that invoice.
The minimum initial prepayment to activate Your account for real-time auction is USD 500.00 and standard top-up option starting from USD 100.00. ZingerMedia reserves the right to set and negotiate specific initial prepayment amount on a customer-by-customer basis. The charges for impressions You successfully purchasing will be debited from Your Account at the time of purchase. It is Your responsibility to ensure Your Account with us has sufficient funds to pay for the impressions. You shall bear all related withholding taxes or bank transfer fees or other remittance fees. ZingerMedia is under no obligation to provide any services until payment is received. All payments are non-refundable and You are not entitled to apply for any refund.
In addition, ZingerMedia is entitled to request you to pay a deposit to guarantee your full compliance with this Agreement. If you commit any violation during your participation of ZingerMedia DSP, ZingerMedia is entitled to forfeit the deposit permanently and assess an additional deposit based on your violation. If there are no violations of this Agreement during your participation, ZingerMedia will refund the deposit to you within 5 business days upon the termination of this Agreement.
6. Representations and Warranties
You hereby represent and warrant that:
(1) You own or have the valid legal right or license (as applicable) to use and distribute the Advertising Materials, to the extent required or contemplated hereunder, and the right shall be complete and without any defects and other dispute;
(2) Any and all activities and/or obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations;
(3) You are solely responsible for the Advertising Materials and any content or technology that may be reached via the Advertising Materials;
(4) the Advertising Materials (a) are in compliance with all applicable laws, rules and regulations, industry best practices; (b) do not and will not, at any time during the term hereof, infringe or violate any proprietary right or any other right of any person or entity; (c) shall be true, lawful, and without any false statement and shall not deceive and misguide customers; (d) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promoting violence, promoting discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promoting illegal activities (such as gambling), containing profanity or otherwise containing materials that ZingerMedia informs You that it considers objectionable;(e) do not contain any virus, worms, Trojan horses, or any other computer code, files or programs designed to interrupt, hijack, malware, spyware, spam-ware, destroy, limit or adversely affect the functionality of any computer, computer software, mobile device, hardware, network or telecommunications equipment; (f) do not encourage or incentivize end users to visit, click or any other way for the purpose of generating revenues in an undue manner; (g) do not auto-load any video, web page or app etc.; (h) do not install or execute on end uses’ mobile device application(s)/software/program(s) without authorization of that user;
(5) You will only use ZingerMedia DSP for the purposes and in the manner expressly permitted under the Agreement;
(6) You shall not bind ZingerMedia to any agreement or obligation or give any representation, warranty or guarantee in respect of ZingerMedia, except for those that are specifically authorized by ZingerMedia in advance and in writing.
7. Liability for Breach of Agreement
ZingerMedia may suspend Your participation or deactivate Your account with or without prior notice to You and forfeit Your remaining balance due to Your breach of any terms of this Agreement. Furthermore ZingerMedia is entitled to impose a penalty on You, and the exact number shall be determined by ZingerMedia according to the consequences out of your breach. You agree to hold harmless, defend and indemnify ZingerMedia, and their respective officers, directors, shareholders, employees, agents and other Representatives harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses including reasonable attorneys’ fees based on or arising out of: (a) any breach of this Agreement by You; or (b) any gross negligence or willful misconduct by You or Your associated companies or any of Your respective directors, officers, employees, contractors, agents or other representatives.
8. Limitation of Liability
IN NO EVENT WILL ZINGERMEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR ANY LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, LOSS OF CUSTOMERS, LOSS OF ANY EQUIPMENT OR SOFTWARE, SYSTEMS, COMPUTER DAMAGE OR SYSTEM FAILURE, LOSS OF DATA OR INFORMATION, INTEREST CHARGES OR COST OF CAPITAL, COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT , ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR YOUR ABILITY OR INABILITY TO USE ZINGERMEDIA DSP UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT ZINGERMEDIA SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL ZINGERMEDIA’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT RECEIVED BY ZINGERMEDIA FOR THE PRECEDING THREE MONTHS. You confirm that You have entered into the Agreement with ZingerMedia relying on the limitations of liability stated herein and that those limitations are an essential part of the bargain between You and ZingerMedia.
9. Disclaimer of Warranty
ZingerMedia does not have any obligation to monitor the Advertising Materials, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Advertising Materials or anything described or written by You. ZingerMedia DSP and any other technology or services provided by ZingerMedia is provided on an ‘AS-IS’ basis. Except as expressly provided in the Agreement and to the fullest extent allowable by law, ZingerMedia makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and disclaims any such warranties. In addition, ZingerMedia does not represent or warrant that: (i) ZingerMedia DSP or any part therein will be error free or that any errors will be corrected; (ii) the operation of ZingerMedia DSP or any part therein will be uninterrupted; (iii) You will profit or derive any economic benefit from Your use of ZingerMedia DSP; or (iv) any specific content, service and/or feature will be made available to You via ZingerMedia DSP.
Furthermore ZingerMedia shall not be liable for the underlying advertising product(s) or service(s) provided by Publisher Sites available through ZingerMedia DSP. ZingerMedia do not warrant the correctness, accuracy, timeliness, reliability of any content or information posted on Publisher Sites nor do ZingerMedia makes any representation or guarantee regarding the level of impression, the conversion rate, or the timing of delivery of any impressions available through ZingerMedia DSP.
10. Confidential Information
During the term of this Agreement, and for a period of two years following any end date, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority.
11. Use of Data
You acknowledge and agree that data collected, in addition for ZingerMedia to perform the obligations to You, may be used for the following purposes:
(1) Optimization: ZingerMedia will collect the raw data from Your campaign (e.g. number of clicks, click time, click-through rate, bid price, cost-per-click, conversion rate, etc.) to optimize ZingerMedia DSP system including the algorithm and improve user experience;
(2) Publications: ZingerMedia will make some publications such as industry research/trend/data report to share with the market;
(3) Public Relations or Marketing.
This Agreement shall commence on the date of the creation of Your Account. Either party may terminate this Agreement at any time by providing notice to the other party two (2) business days before such termination become effective. ZingerMedia may terminate this Agreement immediately upon your breach of any provision of this Agreement.
13. Force Majeure
Either party shall not be held responsible for failure or delay to perform all or any part of this agreement due to Force Majeure. However, the party affected by the event of Force Majeure shall inform the other party of its occurrence in writing as soon as possible and thereafter send a certificate of the event issued by the relevant authorities to the other party within thirty (30) days after its occurrence. If the event of Force Majeure continues for more than forty-five (45) days, both parties shall negotiate the performance or the termination of this Agreement. If within three (3) months after the occurrence of the event of Force Majeure both parties cannot reach an agreement, either party has the right to terminate this Agreement. In the case of such a termination either party shall bear its own costs, further claims for compensation in connection with the termination shall be excluded.
Headings used in this Agreement are provided for convenience only and shall not be used to define, limit or describe the scope of this Agreement and shall not form a part hereof.
15. Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong, without giving effect to principles of conflicts of law. Any dispute hereunder will be negotiated in good faith between the parties within 45 days commencing upon written notice from one party to the other. If any dispute cannot be resolved by negotiation, then any Party may submit the dispute to the Hong Kong International Arbitration Centre for arbitration by arbitrators which shall be conducted in accordance with its arbitration rules in effect at the time of applying for arbitration. The place of arbitration shall be Hong Kong.
16.1 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.
16.2 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 mostly reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
16.3 This Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in the Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.
All payment shall be in prepay
Beneficiary name: Zinger Media Limited
Bank: Hang Seng Bank Limited
Bank Address: M83 Des Voeux Road Central, Hong Kong
Company Address: Rm. 19C, Lockhart Ctr. 301-307 Lockhart Rd., Wan Chai, Hong Kong
*CHIPS No.: 010522
*From USA: For remittance from USA, you should also provide our CHIPS No. 010522 in addition to your account information and Hang Seng Bank Limited’s SWIFT code.