Contractual Terms and Conditions
of mCanvas by Affinity Global Inc.
mCanvas Ad Formats:
Product 1: Rich Media interstitial ad formats are shown on popular mobile apps and websites to drive engagements.
Product 2: Single Screen Interstitial ad formats are shown on popular mobile apps and websites to drive clicks for branding campaigns.
Product 3: Video Interstitial ad formats are shown on popular mobile apps and websites with the objective of driving video views for brand campaigns.
Product 4: Distribute approved video assets across popular mobile OTT apps and CTV publishers to drive video views.
1.1 Payment Method: All payments due shall be made within the Credit Period computed from the date of receipt of each invoice and the same shall be made to Affinity via Credit Card, PayPal, Wire Transfer, Check or any other method as accepted by Affinity.
1.2 Payment Invoices and Remission: Affinity shall only send the invoices electronically to the Client’s email address and Billing email address set forth above if requested for. In case the Client has requested for Invoices, then the Client shall remit all payments within the Credit Period from the date of receipt of invoices, which will be deemed to be the date on which the Client receives the invoice(s) sent by Affinity. In the event of failure to acknowledge, intentionally or unintentionally, the receipt of the invoice(s) sent by Affinity, the date after two (2) working days of such electronically sent invoice shall be deemed to be the date of receipt of the invoice by the Client. The Client shall notify Affinity of any change in contact information for billing purposes by sending such notice by email to firstname.lastname@example.org as well as the Affinity contact email address listed above. In case the Client has not requested for Invoices, the Client shall remit all payments within the Credit Period from the last date of the billing month.
1.2 Discrepancy: In the eventuality of the Client choosing the aforementioned option of ‘Billing on Affinity Reporting’ then such Client agrees to pay to Affinity, the amounts based upon the numbers as reported by Affinity’s reporting portal. In the event of any disagreement by the Client with the numbers reported by Affinity’s portal, the Client shall raise objections along with adequate supporting evidence, within a period of fifteen (15) days from the date on which such numbers are communicated to the Client by Affinity. If the Client fails to raise objections along with sufficient evidence within the said period, it shall be deemed that the Client has agreed to the numbers reported by Affinity’s portal.
1.4 Overdue Payment: Client acknowledges that where any Insertion Order contains staged payments and any such payment is overdue in excess of fifteen (15) days, Affinity is not required to continue to perform the services required by it under this IO until all payments due are paid up to date. In addition to the foregoing, if any invoice is pending beyond the due date, Affinity may charge interest from the payment due date till the date of full and final payment (at a minimum rate of 5% per month, or the maximum rate allowed by law), plus reasonable attorney’s fees, disbursements and collection costs unless a dispute or disagreement is raised according to sub-clause (c).
1.5 Pre-payment: Affinity reserves the right to seek pre-payment of a partial or full amount, at its sole discretion, as may be due under this IO prior to the Start Date or at any point as may otherwise be requested by Affinity from any Client.
1.6 Material Breach: Any non-compliance with the provisions of the aforementioned clause will be deemed a material breach of obligation under this IO.
1.7 Refund: The Pre Paid Account Type Client upon exercising the Opt Out Option under the IO may seek refund of the balance pre-paid amount unspent and lying in Affinity’s account for the on-going campaign under the IO. Affinity shall refund the balance to such Client within ninety (90) business working days.
2. Affinity may discontinue the Redirects if the Total Redirects (as per the order specifications mentioned above) for any specified Order duration is reached prior to the scheduled End Date or if any other Affinity commitment as specified in the Insertion Order has been reached.
Non-circumvention – non solicitation
3.1 Advertiser recognizes that Affinity has proprietary relationships with publishers and agrees not to circumvent such relationships, or otherwise solicit, directly or indirectly contract for obtain services similar to the services performed by Affinity hereunder from any publisher during the term of any Insertion Order in effect and for a period of twelve (12) months after its expiry or termination.
3.2 Advertiser agrees, that, in addition to any other remedies that may be available to Affinity, in law, equity or otherwise, and that are expressly not excluded, Affinity shall be entitled to obtain injunctive relief against the threatened breach of this section or the continuation of any such breach by the Advertiser, without the necessity of proving actual damages.
Opt Out Option
4. Client may choose to exercise the Opt Out Option at any time during the campaign period by giving Affinity a 24 hour written notice provided it shall be a business working day. Opt Out Option however does not release the Client from fulfilling its obligations under the IO including but not limited to payment terms.
5. Client must provide all necessary Redirect URLs for each Sealed Site to Affinity in the time instructed by Affinity.
6. Client shall bear full responsibility for all Redirect URLs and all content, products or frame and the manner specified and/or as otherwise
6.2 Services offered, displayed, sold or licensed through the Client’s. Client will collect and pay all taxes related to the sale or licensing of such products or services.
7. Affinity will commercially undertake reasonable efforts to deliver the Order in accordance with the estimates set forth in this IO. However, Affinity makes no commitment regarding the Order delivery for any Redirects. Affinity will maintain the delivery assistance and Client acknowledges that such delivery statistics are the official and definitive measurements of Affinity’s performance on any delivery obligations provided in the IO.
8. Affinity shall not be liable for delays caused due to delivery and/or non-delivery due to occurrence of events beyond its control.
License and Warranties by Client
9. Client hereby grants Affinity the right to license, market, display, reproduce (including compression and temporary storage), distribute, perform, transmit and drive Users to the Redirect URLs through the Affinity Network. Client certifies that it has all necessary rights and permissions to display, offer, sell and/or license the Redirect URLs and all content, products and services made available through the Redirect URLs and the Client’s website, and that the Redirect URLs and all content, products and services made available through the Redirect URLs do not and will not violate any applicable laws or regulations or any third-party rights. Client certifies that the Redirect URLs and the Client’s website will at all times comply with all the standard, written policies applicable to Affinity’s Network, including the privacy policies, terms of service, and advertising and content guidelines. Without derogating from the generality of the foregoing, Client agrees not to display, transmit, serve, sell, offer, distribute, promote or send any material that: (1) is offensive, vulgar, racial, hateful, discriminating, unlawful, invasive of another’s privacy, information or instructions concerning illegal activities, information that is harmful, violent, threatening, abusive, harassing, defamatory, libellous, tortuous, obscene, or otherwise objectionable; (2) harasses, threatens, abuses, defames, degrades, embarrasses or causes distress or discomfort to another; (3) solicits for exchange, sale or purchase of sexually explicit images, including, but not limited to, any photograph, film, video, or picture or computer generated image or picture (actual or simulated); (4) is illegal under any law, including but not limited to any materials that infringes patent, trademark, trade secret, copyright or other proprietary right or violates any right of privacy or publicity; (5) contains software viruses, spyware, adware or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (6) disrupts the normal flow of information available on or through Affinity Network or otherwise, interferes with or disrupts the functionality of the Affinity Web site, Affinity Network, servers or databases; (7) intentionally or unintentionally violates any applicable local, state, national or international law or regulation; (8) is misleading in any way or contains unsubstantiated claims; (9) is connected to drugs, drug paraphernalia, tobacco and guns; or (10) links to or refers to content not allowed under this IO. The Client shall indemnify Affinity against the breach of this clause and default under these provisions will be termed as material breach of Client’s obligation under this IO.
Campaign Material Deadlines
10. Clients must submit Redirect URLs to Affinity two (2) business days (as per Pacific Standard Time (PST), prior to the Campaign Start Date. If the Redirect URLs are not provided in accordance with this policy, then Affinity shall not be responsible for the commencement of the corresponding campaign by the Start date.
11. Affinity shall not be liable or obligated with respect to any subject matter of this IO, negligence, strict liability or other legal or equitable theory for any special, incidental, consequential, or exemplary damages (including, without limitation, loss of revenue or goodwill or anticipated profits or lost business) and in no event shall Affinity’s aggregate liability under this IO exceed the payment received by Affinity as and by way of fees in the preceding month.
12. The Parties agree to indemnify each other against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by any Party in connection with any claims (including, without limitation, breach of contract, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or misleading advertising or sales practices) arising from the Redirect URL and/or material and/or any breach of/by the other Party.
12.1 The Client will defend or settle at its own expense any action or other proceedings brought against Affinity that relates to the Redirect URL and/or any material of the Client to which users can link through the Redirect URL. Affinity shall notify the Client promptly of any such claim and shall permit the Client to assume and control the defence of such action, in a manner which shall be reasonably acceptable to Affinity, and shall not enter into any settlement or compromise of any such claim without the Client’s prior written consent. The Client shall pay any and all proper costs, damages and expenses (including but not limited to reasonable legal fees and costs) awarded against or incurred by Affinity in any such action or proceeding. The breach of this clause will be termed as a material breach of obligation under this IO.
Changes in Insertion Order
13. All Insertion Orders are subject to change, upon notice from Affinity. In the event of such a change in the Campaign, the Client will have the option to cancel the remaining period of the Insertion Order with one month’s prior notice or as of the date of the change, whichever period is earlier, without penalty, or continue the order as per the changes.
14. Either Party may terminate this Insertion Order in the event of a material breach of this Insertion Order by the other Party, which remains uncured after fourteen (14) days of giving a written notice thereof. If Affinity terminates this Insertion Order due to Client’s material breach of any requirement of this Insertion Order or of any other written agreement with Affinity, all of Client’s payment obligations hereunder shall survive such termination. In addition, Affinity may terminate this Insertion Order upon a breach by the Client of any other agreement between the Parties, which is not cured within the cure period set forth in such agreement. If the Client terminates this Insertion Order due to Affinity’s breach of this Insertion Order, the Client will be responsible only for the Pro-Rata Payments.
14.1 Affinity may terminate this Insertion Order at any time for any reason upon giving written notice to the Client (or upon such shorter notice as may be designated by Affinity, in the event that Affinity believes in good faith that further display of the Redirect URLs will expose the Affinity Network to liability or other adverse consequences). In such an event, the Client will be responsible only for only the Pro-Rata Payments.
15. Both the Parties will keep the existence and terms of this Insertion Order confidential and neither Party will publish any press release related hereto without the prior written consent of the other Party.
16. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, United States as applicable, without regard to the principles of conflicts to law of any other jurisdiction.
17.1 Entire Agreement: This Insertion Order sets forth the entire agreement between Client and Affinity with respect to the transactions set forth herein, and supersedes any and all prior agreements of Affinity and/or the Client with respect to such transactions. If an advertising agency signs this Insertion Order on behalf of Client, the agency thereby represents and warrants that it has full authority to bind Client to the terms of this Insertion Order and that it will ensure that Client complies with all such terms.
17.2 Assignment: Client shall not make any assignment of this Insertion Order or any rights benefits or obligations hereunder (including, without limitation, by way of merger or consolidation) without the prior written consent of Affinity. In the event of an assignment, this Insertion Order shall be fully binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective successors and assigns.
17.3 Property Ownership: Affinity shall retain full ownership of and all rights to its technology used to drive the Redirects and any code, technology or communication protocol used to connect to the Affinity Network.
17.4 Intellectual Property: All intellectual property rights in all the information disclosed by Affinity to the Client in all/ any media comprising such information shall, as between the Parties, remain the property of Affinity and nothing in this Agreement shall be taken to represent an assignment, license or grant of other rights in or under such intellectual property rights.