Marketing Services Terms
SURVEY OR MARKETING SERVICES TERMS
All Insertion Orders ("IOs") entered into between InMobi Pte. Ltd, its subsidiaries, and affiliated companies (collectively, "InMobi" or "we", "us", "our") and You (hereby known as the "Company") to conduct Survey using InMobi’s mobile ad tech platform are governed by these Survey and Marketing Services Terms (“Terms” or “Agreement”). This Agreement shall commence on the date on which you Accept these Conditions or upon Your registration with InMobi and shall remain in full force and effect unless and until terminated in accordance with the terms of the Agreement.
“Deliverables” mean the response of the users and the results/reports of Survey conducted by InMobi which shall be provided to Company, in a mutually agreed format.
“IO” means a mutually agreed insertion order that incorporates these Terms, under which InMobi will conduct Survey for the benefit of the Company.
“Services” shall have the meaning ascribed to in the Scope section.
“Survey” means a set of questions presented to each user in form of a questionnaire (questions which may be provided by Company and InMobi, as the case maybe).
“InMobi” means InMobi Pte. Ltd. its subsidiaries and affiliated companies;
A reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute, as may be amended and in force from time to time.
The words and phrases “include”, “including” and “in particular” (and any variations of these words, or similar words) shall be deemed to be immediately followed by the words “without limitation” (where such words do not already immediately follow in these Conditions).
References to a person include an individual, company, corporation, body corporate or unincorporated, firm, partnership, public body, charity or other legal entity and that party’s personal representatives, successors and permitted assigns.
Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.
InMobi shall, on behalf of the Company, conduct a Survey through its platform (“Platform”) on certain end-users who may respond to the questions to register their response(“Services”).
InMobi may, at its sole discretion, add certain questions to the Survey(s) pursuant to any IO (“InMobi Questions”) in addition to the questions provided by the Company (“Company Questions”) (collectively referred to as “Survey Questions”. The users may submit their responses to such questions and any responses provided by users to InMobi Questions shall be deemed to be InMobi Materials.
The Company acknowledges that InMobi and its affiliates are engaged in the business of conducting surveys and may from time to time conduct similar survey(s) for various third parties.
INSERTION ORDERS AND MODIFICATIONS
IO Details: From time to time, InMobi and Company may execute IOs for conducting the Services. As applicable, each IO will specify: (i) the nature of the Deliverables, (ii) the price(s) for such Deliverables, (iii) the amount of money to be spent pursuant to the IO; and/or any other required detail.
Revisions to mutually agreed IOs will be accepted at the sole discretion of InMobi and will be subject to additional cost and extended timelines as may be ascertained by InMobi.
REPRESENTATION AND WARRANTY:
Each party represents and warrants that: (i) it is a duly incorporated duly and organized under the applicable and has full authority to carry on its business and enter into and carry out the terms of this Agreement; (ii) this Agreement constitutes its legal, valid and binding agreement, enforceable against it in accordance with its terms ; (iii) it shall comply with all applicable laws in performing its obligations under this Agreement; and (iv) the execution, delivery and performance of this Agreement shall not conflict with or result in a breach of any other agreement to which it is a party. Company represents and warrants that the content or subject matter of any survey material including Company Questions (a) shall be accurate; or (b) shall not contain content that is, illegal, obscene, defamatory, libelous, slanderous, hate-related, promoting violence or contain any other material, products or services which is illegal; or (c) violates or infringes any third-party rights.
DISCLAIMER: EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SERVICES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. INMOBI DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
Each party shall maintain as confidential all information received from the other party that is identified as confidential at the time of disclosure (“Confidential Information”). Confidential Information shall not include information that is independently developed by recipient or is in public knowledge or is already in the possession of the recipient or is received by receiving party from a third party. If receiving party is required to disclose Confidential Information due to a legal requirement, it shall provide prompt notice of the same to disclosing party. Confidentiality obligation shall survive for a period of two (2) years from date of initial disclosure. Each party shall comply with the applicable export and import laws and regulations.
TERM AND TERMINATION:
This Agreement shall come into effect on the Effective Date and, subject to provisions of this section, shall continue in force unless terminated pursuant to the term of this Agreement.
This Agreement may be terminated by either party immediately upon the occurrence of any of the following events: (i) if the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or any such proceeding is instituted against the other party and is not dismissed within sixty (60) calendar days; (ii) if the other party ceases to do business, or otherwise terminates its business operations; or (iii) if the other materially breaches the terms of this Agreement and fails to cure the same within a period of 30 days of notification by the non-breaching party. This Agreement may be terminated by InMobi immediately for convenience at any time, by fourteen (14) days prior written notice.
Provided that if any mutually agreed IO is terminated pursuant to the terms of this section the Company is liable to pay the following cancellation fees:
a. Within five (5) days from the date of execution of the IO– fifty per cent (50%) of the total IO Value;
b. Post five (5) days from the date of execution of the IO– One hundred percent (100 %) of the IO Value.
Regardless of the nature of termination, Company shall pay InMobi for all Services provided up till the effective termination of the Agreement.
Parties agree that the payment terms shall be as per the applicable IO. In the event there are no payment terms specified in an applicable IO then all invoices will be based on InMobi's reporting unless otherwise agreed by the parties. Payment will be made within thirty (30) days from the date of receipt of an applicable invoice. Fifty percent (50%) of the total IO value shall be paid at the time of execution of the IO and the remaining fifty percent (50%) shall be paid on the completion of the deliverable as per the IO.
Invoices will be sent to the Company’s billing address as set forth on this Agreement. A 2% per month (pro-rated for part thereof) interest on late payments may be levied at the InMobi’s option from the date of receipt of an invoice by Company.
Taxes Other than taxes levied on the income of a party, any taxes, including but not limited to, VAT, service tax, withholding tax, shall be paid by the Company.
Company acknowledges and agrees that all intellectual property rights in and relating to Survey Questions, any materials, data or information that are developed, owned, created or licensed by InMobi (whether by itself or any third party) including any feature(s) or enhancements thereto or other InMobi proprietary products (“InMobi Materials”) prior to or after the date of this Agreement, are and shall remain the sole property of InMobi. Company shall own all Intellectual Property Rights in and relating to its existing products including Company Devices or any materials, data or information that Company may independently develop without any reference to this Agreement or InMobi Materials (“Company Materials”). Company Materials and InMobi Materials are collectively referred to as “Materials”. Each party shall take all reasonable and necessary measures to protect the other party’s Materials that are in such party’s possession. Between Company and InMobi, InMobi shall have all rights, title and interests in the Survey. Other than as set forth herein, this Agreement does not grant to either party any rights to any of the other party’s Materials
Company grant InMobi, worldwide, perpetual, license to use the Deliverable for improving its products and services. Parties agree that the use of any such Deliverables by InMobi will be governed by the terms of this Agreement. For avoidance of doubt, the Deliverables shall not be deemed to be part of Company’s Materials.
Each party grants only the licenses and rights specified in this Agreement. No other licenses or rights (including licenses or rights under patents) are granted either directly, by implication, or otherwise. Each party shall retain ownership of its respective pre-existing intellectual property rights. Parties agrees that they shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to the other Party hereunder.
Company shall indemnify InMobi for a third-party claim arising out its breach of a) the representation and warranties hereunder; b) confidentiality obligations hereunder; c) Company gross negligence, willful misconduct or fraud; and d) any intellectual property right infringement claim arising out of Company Materials.
LIMITATION OF LIABILITY:
Except in case of InMobi's willful misconduct, gross negligence and/or fraud, in no event will InMobi be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by Company arising out of an IO, even if such party has been advised of the possibility of such damages.
Except in connection with the InMobi's willful misconduct, gross negligence and/or fraud, InMobi’s total cumulative liability to Company from all causes of action, claims and all theories of liability will be limited to direct damages only and will not, exceed the fees received by InMobi corresponding to the portion of the IO spend for Surveys conducted.
Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes: (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one business day after deposit with a transmission via fax (in each case, with confirmation of receipt) or transmission via email (with “CONTRACTUAL NOTICE” in the subject line), or (iii) three (3) calendar days after being mailed by standard mail to the address of the Company registered with InMobi and in case of InMobi the registered address of InMobi with a copy to firstname.lastname@example.org
CONFLICTS, GOVERNING LAW AND AMENDMENTS:
In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws set out in the terms of the IO. InMobi and Company agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in the country set out in the IO, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative. In the event of an IO not containing a law and jurisdiction provision the terms of the IO shall be governed by and construed in accordance with the laws of Singapore.
Severability:In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Entire Agreement: This Agreement (including the Exhibits) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement.
Assignment. Company shall not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without InMobi's prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). InMobi shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond InMobi’s reasonable control.