These Terms and Conditions are between HISY and Client and apply to the provision of the HISY Advertising Services.apply to the provision of the HISY Advertising Services. HISY enters these Terms on behalf of itself and other HISY affiliates, some of whom may provide certain services and invoicing as further detailed in these Terms.
Definitions & Interpretations
Agreement: means these Terms and associated Insertion Order placed by the Client.
Content: means photographs, text, data and other elements supplied by the Client to designing banners
Banner: means images, graphics, text, data, links or other creative elements organized in a designed for HISY to inclusion in Ads.
Ad: means any rich media banners/ videos promoting the products and/or services of the Client, which are created by the HISY or provided to HISY by client.
Client Data: means data that HISY collects through HISY tags on the Client’s properties which includes any information that can be attributed to a user via cookies or other technologies that record events related to users’ activity on Client’s properties (such as the number of pages viewed, the products the user viewed, user searches).
HISY Data: means data related to HISY ad serving activity such as the number of ads displayed to users and aggregated client data that does not identify or permit identification of a client.
HISY Network: means a network of publishers on supported interactive properties whose identity is unknown to the Client and administered at the sole discretion of HISY for displaying of Banners.
HISY Service: means the service chosen by the Client in the Insertion Order.
HISY Sourced Data: means aggregated data provided by third parties independently of the provision of the HISY Service to the Client and may include publisher data.
HISY Technology: means HISY’s performance advertising technology allowing it to serve the right ad to the right user at the right time.
Cross-Devices Linking: means the action of associating of two or more browsers and/or applications/devices, used, or likely used, by the same user.
Data: means Client Data, HISY Data and HISY Sourced Data.
Insertions Order: means a Client order which indicates the type of service chosen, the duration of the Service, the budget, the price and any other particular conditions.
Target Audience: means users on HISY Network who will be targeted with relevant performance advertising banners based on the HISY Technology.
Setting up the Service
The Client will comply with the technical requirements and specifications of the HISY Service together with
any other requirements and specifications HISY may specify in writing from time to time, for example in respect of providing and improving other
HISY products and services which the Client may be interested in receiving.
These technical specifications may include the following operations:
(i) including software code, tags and cookies supplied by HISY on the Client’s properties (including on its websites and, if applicable, Mobile Applications);
(ii) supplying HISY with banners that are supposed to be included in Ads which are published on HISY Network.
(iii) supplying HISY with banners in either SVG or EPA formats to build the ads.The Client shall be solely liable for performing these operations.
HISY does not warrant any dates (if any) stated in the Insertion Order. When setting up an advertising campaign the Client
shall select the Target Audience for the campaign which shall determine the HISY affiliate that delivers the HISY Service.
Multiple campaigns may be delivered by multiple HISY affiliates. Furthermore, the Client shall comply at all times
with HISY’s policies that include it’s privacy policy and advertising guidelines.The Client acknowledges that
these policies may be updated from time to time to reflect HISY’s practices and new products/services.
In the event of any material change to these policies, HISY shall communicate these changes in advance.
HISY has a Code of Business Conduct and Ethics available on its corporate website.
Banner Display
The Client acknowledges and accepts that the Banners are displayed on the HISY Network and that HISY has an absolute discretion as to where (and how often) the Banners will be displayed and how priority is to be governed between different clients. The Client acknowledges that Banners may be displayed next to banners of its direct or indirect competitors. HISY reserves the right to make changes to the HISY Technology and/or to cease or not commence display of Banners without notice or compensation to the Client. HISY uses commercially reasonable efforts not to display Banners on websites or other media that are of pornographic, defamatory, obscene or illegal nature. In the event Client notifies HISY in writing that Banners are being displayed on such media, HISY will promptly remove the Banners.
Measurements and Performance Report
HISY measures, through Google servers, the number of impressions and/or clicks and/or other metrics necessary for calculating the charges under the Agreement. The Client accepts that HISY’s measurements are final and shall prevail over any other measurements. HISY grants the Client access to an online report to access statistics on a weekly basis. Statistics are updated with a maximum delay of 48 hours. Any modifications made and approved (either by the Client or upon the Client’s instruction) –including, but not limited to, budget adjustments or pausing a campaign, are solely any costs incurred as a result of modifications. The Client gives permission for HISY to make modifications on its behalf in accordance with any specific instructions communicated in writing (including, but not limited to, CPC ranges, minimums and maximums and key campaign outcomes).
Invoicing and Payment
The Client minimum investment (if applicable) for setting up the HISY Service is defined in the Insertion Order. HISY retains the right, in its sole discretion, to request prepayment from a Client, as specified in the Insertion Order. The HISY Service will be charged on the basis in the Insertion Order and will include the cost of the HISY Service. In the event that there are multiple ad campaigns, HISY shall provide multiple invoices. HISY does not guarantee that the budget set up in the Insertion Order will be reached. Unless specified otherwise in the Country Schedule or Insertion Order, the Client shall pay all amounts due, without set-off, within 7 days from the invoice date. All payments to HISY shall be made in the currency of the invoice, and are quoted exclusive of any applicable tax which shall be payable at the time and in the manner required by law. HISY shall be entitled to charge interest and recovery costs on overdue amounts as specified by the relevant law or as set out in the Insertion Order. Any claim on the invoice can only be raised within one month of receipt. Unless stated otherwise in the Insertion Order, all invoices shall be payable solely by the Client.
Intellectual Property
Each Party remains sole owner of the intellectual property rights it owned prior to the execution of the Agreement.
HISY is the sole owner of all intellectual property rights in and to the HISY Technology and HISY Data.
Client is the sole owner of all intellectual property rights in and to the Client Data.
The Client authorizes HISY:
(i) to collect, use, analyze and process the Client Data, to combine the Client Data with HISY Data and HISY Sourced Data and to perform the Service for the Client;
(ii) to improve HISY Technology, HISY Service and other HISY products, programs and/or services, including, for example, HISY’s Display marketing service,
with Aggregated Client Data; and
(iii) to disclose Client Data if required by law.
For the duration of the Agreement, the Client grants HISY (including HISY affiliates)
a worldwide, royalty-free, non-transferable license to use, reproduce and represent the Client trademarks and logos, and to display, reproduce,
represent the Client Content of the Banners:
(a) on the HISY Network;
(b) on all documentation promoting the HISY Service. HISY shall seek prior
authorization from the Client for any press release using the Client’s
name, logos and/or trademarks. The Client shall not modify or attempt to modify the code or
otherwise reverse engineer or create derivative works of any aspect of the HISY Technology.
Warranties and indemnities
Except as set out in this clause, HISY gives no warranty or condition, express or implied, with respect to any matter and,
in particular, but without limitation, expressly disclaims any warranties or conditions of non-infringement or the quality or fitness for any particular purpose
of the HISY Technology, the HISY Network or any Service provided under the Agreement.
The Client warrants and represents to HISY that:
(i) it has the right, power and authority to enter into this Agreement and perform its obligations as set out herein;
(ii) it has the right to provide the Client Content to HISY for publication, without infringing any rights of any third party including,
without limitation, intellectual property rights;
(iii) the Client Content complies at all times with all applicable laws, statutes, statutory instruments,
contracts, regulations, advertising and marketing codes of practice in any of the jurisdictions where Banners are displayed;
(iv) the Client Content does not contain any material that is obscene, defamatory or contrary to any applicable law or regulations and does not give access
via hyperlinks to any property containing material that is obscene, defamatory or contrary to any applicable law or regulation;
(v) it shall not provide any personal data, via its data feed or otherwise, pursuant to applicable data protection laws;
(vi) any information provided under the Agreement is true, accurate, complete and current; and
(vii) it shall comply with all relevant laws and regulations including any guidelines or policies as
made available by HISY. The Client shall defend, indemnify, and hold HISY harmless from and against any third-party suit,
proceeding, assertions, damages (direct or indirect), cost, liability, and expenses (including court costs and legal fees),
incurred as a result of any breach of this clause 7 or of any claim which if true would be a breach of this clause.
Liability
To the maximum extent permitted by applicable law, neither party shall be liable for any special, indirect, incidental, consequential, punitive or exemplary damages in connection with the Agreement, even if said party has been advised of the possibility of such damages. Neither party shall have any liability for any failure or delay resulting from any event, beyond the reasonable control of that party including, without limitation fire, flood, insurrection, war, terrorism, earthquake, power failure, civil unrest, explosion, embargo, strike (force majeure event). Client acknowledges and accepts that the price paid by Client takes into account the risks involved in this transaction and this represents a fair allocation of risk. For the avoidance of doubt, nothing in this Agreement excludes or limits either Party’s liability for fraud, gross
negligence, death or personal injury or any other matter to the extent such exclusion or limitation would be unlawful. Save for the indemnity in clause 7 above, to the maximum extent permitted by applicable law, each Parties’ liability under the Agreement, for whatever cause, whether in contract or in tort, or otherwise, will be limited to general/direct money damages and shall not exceed the amount corresponding to the last 6 months invoiced to the Client. The Client acknowledges and accepts the risk that third parties may generate impressions, clicks or other actions affecting the charges under the Agreement for fraudulent or improper purposes. HISY shall have no responsibility or liability to the Client in connection with any third party click fraud or other improper actions that may occur.
Privacy
The Client acknowledges and accepts it will include said code and tags on its properties
(including, if requested in writing by HISY or specified in the technical specifications referred to in clause 2 above, on its email newsletters and websites).
Any data received by HISY via said tags will be used for performing the HISY Services, enhancing the HISY Technology and/or providing and improving any
other HISY products or services which the Client may be interested in receiving from time to time. HISY will collect and use such data in accordance with
applicable laws and regulations, including but not limited to laws governing privacy and data protection.
The Client undertakes to include on its properties
(i) a privacy policy that includes a link to the HISY privacy policy and when legally compulsory
(ii) appropriate notice and choice mechanisms that comply with relevant laws and regulations.
When notices are legally required they should indicate prominently to users
(i) that by continuing to browse on Client properties, they consent to cookie (or other tracking technologies) dropping for the purpose of serving targeted advertising;
(ii) allow users to learn more and object to HISY’s Services. When applicable, the Client undertakes to disclose that data may be collected and or shared with HISY for
Cross Device Linking purposes. Each Banner will include a link to HISY’s Privacy Policy page that will include information for users on how to disable HISY Service
(and insert an “opt-out” link).
Term and Termination
The Agreement shall apply as from the date of the Insertion Order and shall expire
(i) on the date stated in the Insertion Order; or
(ii) on the date when the total budget chosen by the Client (and as set out in the Insertion Order) is exhausted.
Without prejudice to any other rights and remedies, either Party may terminate the Agreement with immediate effect by written notice to the other Party:
(a) if the other commits a material breach of any of its obligations under the Agreement and in the case of a remediable breach,
fails to remedy it within seven (7) days of the date of receipt of notice in written from the other specifying the breach and requiring it to be remedied; or
(b) on the occurrence of a force majeure event that has continued for a minimum period of two months;
(c) to the extent permitted by applicable law in the event that either Party becomes insolvent, goes into liquidation, appoints an administrative
receiver or analogous proceedings under relevant local law. Expiration or termination (for any reason) of the Agreement shall not affect any accrued rights
or liabilities which either Party may then have nor shall it affect any clause which is expressly or by implication intended to continue in force after expiration or termination.
Confidentiality
Each Party undertakes that it will not at any time disclose to any person not explicitly mentioned in this Agreement, except its professional representatives or advisors or as may be required by law or any legal or regulatory authority, the terms and conditions of this Agreement or any confidential information concerning the business or affairs of the other Party (including the other Party’s affiliates) which is disclosed to it by the other Party. If such disclosure is required by law or any legal or regulatory authority, the Party required by the authority shall give the other Party written notice of such disclosure as soon as possible prior to making the disclosure and upon request, shall assist the other Party in obtaining a protective order or other relief.
Miscellaneous
(i) HISY reserves the right to modify the Terms at any time. The Terms are effective as soon as they are available online at the following link: HISY Terms & Conditions. They shall automatically apply to each Insertion Order or Insertion Order renewal concluded after the modifications.
(ii) Unless specified otherwise in the Country Schedule, this Agreement shall be governed by Indian law and the Parties submit to the exclusive jurisdiction of the courts of India in respect of any dispute or matter arising out of or connected with the Agreement.
(iii) The Agreement may be amended only by a written agreement executed by an authorized representative of each Party. The Parties acknowledge and accept that electronic format shall be deemed an acceptable means of communication for the execution or sending of an Insertion Order or to modify the terms of an Insertion Order including its renewal. All notices will be addressed to the contact information set forth in the Insertion Order executed between the Parties.
(iv) The Client’s placing of an Insertion Order implies full acceptance by the Client of the Terms notwithstanding any term to the contrary that may be contained in any of the Client’s documentation, in particular in any purchase order. The Terms and each Insertion Order, constitute the Agreement. If there is any contradiction between the Terms and Insertion Orders, the Insertion Orders shall take precedence in relation to the HISY Service.
(v) The Agreement constitutes the complete and entire agreement between the parties and shall supersede any and all other prior understandings, commitments, representations or agreements, whether written or oral, between the parties.
(vi) If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or enforceability shall not effect the other provisions of the Agreement which shall remain in full force an effect.
(vii) In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under the Agreement or by law, be deemed to be or construed as a waiver of that or any other right, so as to bar the enforcement of that, or any other right, power privilege, claim or remedy, in any other instance at any time or times subsequently.
(viii) Unless specified otherwise in the Agreement, no third party shall have any rights or obligation under the Agreement.
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