Terms of SERVICE AND MASTER SERVICES AGREEMENT
Last Updated on 30 December 2019.
Knorex (“Knorex”, “Knorex Affliates”, “we”, “us”, or “our”) owns and operates the websites located at knorex.com (“Site”), and the Platform. These Terms of Service and Master Services Agreement (“Agreement”) state the terms and conditions that govern your use of the Site, the Platform and any optional Managed Services.
By accepting this Agreement, either by
- your continued use of the Knorex XPO platform; and/or
- executing an order form with Knorex to perform media buying or purchase a subscription plan referencing this Agreement, you acknowledge that you have read, understood, agree and accept the terms and conditions of this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its Affiliates.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SITES OR THE SERVICES.
“Affiliate” means (a) its holding or parent company; (b) any of its subsidiaries or associates; or (c) any subsidiary of its holding or parent company.
“Authorized User” means an individual who may include the employee, officer, consultant, contractor, agent or supplier of Company, who is authorized to access and use any part of Platform.
“Company Data” means all data that Company or its Customers imports or enters into Platform, including information provided via Company’s data management platform (DMP), and/or any personal data or audience data provided via Company’s customer relationship management system (CRM). Company Data shall also include data collected about end users via the embedding of Platform’s pixel/tag or equivalent tracking code into Company’s or its Customer’s website or app.
“Customer” means any Company’s customer that engages Company’s services, utilizes Platform or Services that are provided by Knorex to Company on behalf of such customer.
“Managed Services” means any campaign setup and management, creatives adaptation (not production or design work), content change, media buying and optimization, tags management, attribution and reporting, and any other services that Knorex provides to Company or its Customers for a fee. Such supplementary services are optional.
“Media Spend” means the amount payable by Company or its Customers to purchase ad inventory and/or data using Platform or Order Form.
“Order Form” means a purchase order, proposal or equivalent document that is agreed and signed by authorized representatives of the Parties for the engagement of Services that may include statement of work, service description, associated obligations, fees, and any additional terms and conditions, which shall reference this Agreement and will be subject to the terms of this Agreement unless expressly stated otherwise.
“Platform” means Knorex XPO™, a cloud-based online advertising software platform that consists of a suite of applications and/or modules that enables creation, management and publishing of an assortment of ad formats across multiple advertising channels, feed creation and management, ad serving, tracking and attribution, ads buying and performance optimization, analytics and reporting.
“Platform Data” means all data residing in the Platform and that are not Company Data, Service Data or any third-party audience data.
“Services” means Platform, Service Account, Managed Services or any other services that Knorex provides to Company, subject to this Agreement and if applicable, any Order Form.
“Service Account” means the portal by which Authorized User(s) can access and use Platform and carry out certain activities, including but not limited to, viewing order information, reports, campaign management and other related information.
“Service Breach” means the breach of security of the facility, systems or site of Company where Platform is provided through, and an unauthorized person that has acquired the access to Platform and Service Account when Service Credential is stolen or compromised.
“Service Credential” means the private and confidential login information provided to Authorized User to use and access Services.
“Service Data” means any data collected or generated in connection with the use of Services and that are not Company Data or Platform Data.
“Service Fees” means all fees shown in Exhibit A of this Agreement and any other applicable fees for additional Services shown via the Platform or in Order Form that Company opts to purchase.
“Service Material” means any written/editorial, graphical and/or multimedia contents provided, submitted or transmitted to Platform and/or as part of Managed Services, including without limitation, sample code, prototypes, accompanying media (hardcopy or electronic version) or documentation, user manual, technical guides, photographs, illustrations, mockups, creative designs, derivate works, iterations, and any modifications, provided by either Party or its Authorized Users, or any other third party.
“Territory” means the geographic region within which the Services may be used and where Authorized Users may be located. In this Agreement, Territory shall be where you are located.
2. Self-service. Subject to all the terms and conditions of this Agreement, Knorex grants to Company and its Authorized Users a limited, non-exclusive, non-sublicensable, non-transferable right during the Term, to access and use Platform within Territory on a self-service basis. In the event Company requests (verbal or in writing) to Knorex or its Affiliates to assist with the use of Platform, Company agrees that Company consents to the actions that Knorex or its Affiliates performs on its behalf and Company shall retain sole responsibility for such assistive use of Platform.
3. Changes to Platform. Company acknowledges that Platform is a cloud-based software service and Knorex may make changes to Platform from time to time, provided that if such changes render Platform unsuitable for Company’s use (as determined by Company), Company may terminate this Agreement by giving Knorex one (1) month prior written notice within one (1) month from the introduction of such changes.
4. Account Access. To access and use Platform, Company is provided with one or more Service Accounts. Company is responsible for all activities that occur under Company’s Service Account, except to the extent caused by Knorex’s negligence, misconduct or breach of this Agreement. Company shall contact Knorex as soon as practicable upon becoming aware of any Security Breach.
5. Authorized Users. If Company designates any of its Customers as Authorized Users for use of Platform, Company shall be responsible for their use of Platform as Company would be for any other Authorized Users. Accordingly, Company must enter into valid, binding agreements with its Customers that require them to comply with the terms of this Agreement to use and access Platform on a limited use basis. Company’s Customers may only use and access Platform for its report purpose, or for testing ad tags purpose, or for mockup purpose. As an Authorized User, Company’s Customers may interact with Platform but may not be assigned with any administrator rights. Knorex shall not have any direct or indirect liability or obligation to any of Company’s Customers. For the avoidance of doubt, Company’s Customers are not a party to, or third-party beneficiary under this Agreement.
6. Term and Start of Work. This Agreement begins on the Effective Date and last for one (1) year (“Term”) and shall automatically renew for one more Term unless earlier terminated in accordance with the terms of this Agreement. Each Order Form begins on the effective date of such Order Form and continues until terminated pursuant to such Order Form or this Agreement. Any Order Form continuing beyond the termination of this Agreement shall be governed by the terms of this Agreement. Knorex shall not commence any work until a signed Order Form is received from Company.
7. Termination and Its Effects. Either Party may terminate this Agreement (a) with or without reason by providing a sixty (60) calendar days prior written notice to the other Party; (b) if the other Party breaches any obligation hereunder and such breach has not been cured within seven (7) calendar days after the receipt of written notice; or (c) for reasons stated in Section 3, 14 or 30. No refund shall be granted in the event of termination or cancellation except for termination by the Company pursuant to Section 3, for which the refund amount shall be pro-rated, if applicable. Upon termination of this Agreement, all rights and obligations of Parties shall terminate, except any accrued or owed obligations or undisputed fees by either Party for Services performed through the date of termination. Such accrued or owed obligations shall survive the termination of this Agreement until fully settled. Sections 16, 17, 18, 19, 21, 22 and 29 will survive termination or expiration of this Agreement.
8. Invoices and Payment. Company shall prepay all Media Spend and Service Fees incurred for the first three (3) months (“Pilot”) if Company is signing this Agreement for the first time. After Pilot, Knorex may extend credit term to Company at its sole discretion if Company is compliant and continues to be compliant with all terms of this Agreement. Knorex shall invoice in accordance with the payment terms specified in Order Form. Company shall pay to Knorex in the instructed currency and payment method(s) upon Company’s receipt of an undisputed, true and correct invoice, without any set-off, deduction or withholding unless mutually agreed in writing. In the event invoices are payable in a currency other than U.S. Dollars, any applicable conversion and exchange rate shall be based on rate as quoted in the Platform. Company must email Knorex within seven (7) calendar days of Company’s receipt of the invoice in dispute, and must specify, in detail, the basis for the disputed amount, otherwise, all undisputed amounts are non-refundable and due for payment. The Parties shall co-operate in good faith to resolve all such disputes within seven (7) calendar days of Company’s delivery of the written notice of dispute. A four and a half percent (4.5%) convenience fee will be added to the amounts if paid via credit card. Knorex reserves the right to charge a late payment fee of two percent (2%) per month on the overdue amount.
9. Taxes. All prices quoted herein exclude consideration for any applicable goods and services tax, sale and use tax, or any assessable governmental charge. Any goods and services taxes and/or duties levied by the government in respect of this Agreement shall be borne by Company. If any deduction or withholding tax is required by law, Company shall pay to Knorex any additional amounts necessary to ensure that the net amount that is received, after any deduction and withholding, equals the amount that Knorex would have received if no deduction or withholding had been required. Company shall provide the documentation showing the withheld and deducted amounts that have been paid to the relevant taxing authority. Notwithstanding the foregoing, Company shall provide to Knorex the legally sufficient tax exemption certificate(s) for each taxing jurisdiction if Company is legally entitled to an exemption from any sales, use, or similar transaction tax.
10. Additional Third-Party Fees. Some inventory and/or data sellers may impose their own fees, including but not limited to, for instance, creative approval fee or additional fee for the purchase of their inventory and/or data (“Third-Party Fees”). Company may at its option, choose to purchase inventory from such sellers and Knorex shall pass on any such Third-Party Fees applicable to such purchase to Company. Knorex will not be responsible for any delays, service disruptions, degradation in service or inability to perform caused by delays or non-performance by inventory and/or data sellers.
11. Travel. To the extent that Knorex personnel is required to travel to provide Services to Company, travel plan and expenses must be pre-approved in writing by Company prior to any expenses being incurred. Company shall reimburse Knorex of reasonable travel costs including transportation, hotel and per diem rates according to mutually agreed rates.
12. Support and Service Level. The terms and conditions of this Agreement entitle Company to receive technical support, bug fixes, updates services (“Support Services”) from Knorex under the standard support level in accordance with Exhibit B. To receive additional support level, Company may opt to engage Knorex.
13. Analytics and Tallying. Knorex shall have the sole responsibility for calculating and reporting metrics such as ad serving impressions, ad tracking, media spend and related metrics that are trackable by Platform. Such metrics are made available to Company via Platform, and specifically, the ad impressions and clicks may be used for calculating payments.
14. Permitted Use and Restrictions.
- (a) Platform is provided to Company and its Authorized User(s), solely to access and use Platform via the provided user interface for its own use or for its Customers’ use;
- (b) it will not use or authorize the use of Platform for any purpose not permitted under this Agreement or use Platform for any other purpose other than that for which Platform is intended for;
- (c) it may not sell, resell, transfer, sublicense, share or disclose Service Credential, to any third-party;
- (d) it may not use Platform to create applications that offer or promote any activities that may be damaging to, disparaging of or otherwise detrimental to Knorex, or any activities that contravene any applicable laws or regulations;
- (e) it shall not rent, lease, loan, sell, resell, sublicense, distribute, or otherwise transfer, or use Platform outside of the scope of use as granted in this Agreement;
- (f) it will not circumvent any of the security measure of Platform;
- (g) it will not, and will not authorize any third-party to reproduce, distribute, copy, modify or adapt, prepare derivative works of, reverse engineer, reverse compile or disassemble any Knorex-provided ad tag, Platform or any part thereof;
- (h) it will not utilize rotating ad tags or otherwise violate Ad Standards;
- (i) it will not distribute viruses or other malware through the ads or any other mechanism;
- (j) it will not create or attempt to create a substitute or similar service or product through the use of or access to Platform or Confidential Information related thereto. Knorex may immediately revoke all Service Credentials and suspend access or terminate this Agreement upon any breach by Company of this Section 14; and
- (k) it will not incorporate Platform into a product or service for direct Platform resell but may sell to Customers managed services using Platform.
Knorex may immediately suspend Company’s access or terminate this Agreement upon any breach by Company of this Section 14. Any prepaid amount during the Pilot shall be forfeited. In the event of a breach of this Section 14 by Company that results in a termination or suspension of Knorex’s ability to conduct business with a third party partner, without limiting any rights or remedies available to Knorex, and notwithstanding any other provision in this Agreement to the contrary, Company shall be liable to pay to Knorex US$50,000 for the loss resulting from such suspension.
15. Ad Compliance. Company shall comply at all times with all of Knorex’s and its ad inventory partners’ ad standards, specifications, guidelines and security requirements provided to Company via https://knorex.zendesk.com/hc/en-us or via Platform as may be updated by Knorex from time to time (collectively, “Ad Standards”). Knorex and/or its ad inventory partners may reject any non-compliant ads and may suspend any campaigns of Company or its Customers’ if Knorex and/or its ad inventory partners reasonably determine that Company or any ad provided by Company or its Customers has failed to comply with this Agreement or the applicable Ad Standards. Knorex will notify Company in writing via email or via Platform upon any such rejection or suspension. If Company fails to cure its non-compliance within seven (7) calendar days of notice or if Company repeatedly fails to comply, Knorex may opt to terminate this Agreement.
16. Representations and Warranties. Knorex represents and warrants that:
- (a) Services will be performed in a professional, timely, and competent manner in accordance with accepted industry standards and in accordance with the specifications and deadlines outlined in Order Form;
- (b) as delivered to Company, Services shall not infringe any copyright, patent, trade secret or other proprietary right held by any third party;
- (c) Knorex holds and will maintain the applicable licenses to perform the specified Services;
- (d) Knorex will provide Platform in accordance to general industry standards reasonably applicable to the provision thereof. Knorex does not warrant that Platform will be error-free or uninterrupted, for example, when deemed reasonably necessary or prudent by Knorex to upgrade/update, repair or maintain or for causes beyond Knorex’s reasonable control, provided that Knorex undertakes to ensure that Platform will comply with the minimum uptime and service levels stated in this Agreement;
- (e) Knorex will notify Company via Platform and/or by email at least twenty-four (24) hours in advance of any known planned platform-related outages; and
- (f) Knorex does not control the transfer of data over communications facilities, including the internet, and that Platform may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Knorex is not responsible for any delays, delivery failures, or other damage resulting from such problems.
17. Intellectual Property Rights and Data Use.
- (a) This Agreement shall not be construed to grant any title, interest, license or other rights to each Party in any patent rights, know-how, technology, or other intellectual property owned or controlled by the other Party or its Affiliates, except for those rights and licenses that are necessary for the Party to perform its obligations under this Agreement;
- (b) All Service Material provided by each Party shall remain the copyright and intellectual property of that Party and are non-transferable unless in writing;
- (d) Knorex, including any of its licensor, retains all right, title and interest in Services and Platform Data. Company may use such data solely in connection with use of Platform and Services;
- (e) Company retains all right, title and interest in Company Data. Knorex may use Company Data solely to provide Services;
- (f) Both Parties shall use Service Data as allowed by the applicable laws as follows: (i) Company may use such data for its internal business purpose provided that it complies with all terms of this Agreement, including Section 14; (ii) Knorex may use such data for its internal business purpose and externally as aggregate data or statistics that cannot be attributed to Company (e.g. industry trend or report), or to perform and enhance Services, including to third parties whose services Company opts to use.
18. Indemnification. EACH PARTY (“INDEMNIFYING PARTY”) SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD THE OTHER PARTY (“INDEMNIFIED PARTY”) HARMLESS FROM AND AGAINST ANY LIABILITY, LOSS, COST, THREAT, SUIT, DEMAND, CLAIM, AND EXPENSE INCLUDING, BUT NOT LIMITED TO, ATTORNEY’S FEES AND COURT COSTS OR DAMAGES TO PROPERTY OR PERSON RELATED TO (A) ANY ACT OR OMISSION OF INDEMNIFYING PARTY IN CONNECTION WITH ITS PERFORMANCE UNDER THIS AGREEMENT; (B) ANY CLAIM BY A THIRD PARTY THAT THE SERVICES VIOLATES THE THIRD PARTY’S PATENT, TRADE SECRET, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT; AND (C) ANY CLAIM BY ANY CURRENT OR FORMER EMPLOYEE OF INDEMNIFYING PARTY ALLEGING VIOLATION OF FEDERAL, STATE, OR LOCAL LAWS REGARDING EMPLOYMENT. IN THE EVENT INDEMNIFYING PARTY FAILS TO PROVIDE LEGAL DEFENSE AS SET FORTH ABOVE, INDEMNIFIED PARTY SHALL HAVE THE RIGHT, THROUGH COUNSEL OF ITS CHOICE AND AT INDEMNIFYING PARTY’S SOLE EXPENSE, TO DIRECT, MANAGE AND CONTROL THE DEFENSE OF ANY MATTER TO THE EXTENT IT COULD DIRECTLY OR INDIRECTLY AFFECT THE INDEMNIFIED PARTY. INDEMNIFYING PARTY WILL ALSO REIMBURSE INDEMNIFIED PARTY FOR ALL EXPENSES REASONABLY INCURRED BY INDEMNIFIED PARTY TO PROTECT ITSELF FROM, OR TO REMEDY, INDEMNIFYING PARTY’S DEFAULTS UNDER THIS AGREEMENT.
19. Limitation of Liability. Knorex shall have no responsibility or liability whatsoever for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any third-party content, goods or services available on or through any such third-party external website or resource. Knorex shall not be liable for any transaction executed via Platform as a result of input errors made into Platform by Company or on Company’s behalf, including but not limited to, incorrect pricing, targeting, dates or budgeting information. Unless as specified in this Agreement, all express or implied conditions, representations and warranties, including any implied warranty of merchantability or fitness for a particular purpose are disclaimed by the Parties, except to the extent that these disclaimers are held to be legally invalid. The Parties’ aggregate liability to each other under this Agreement for any claim is limited to the amount paid to each Party, except for the Indemnity set forth in Section 18 and Company’s liability for Knorex’s loss in Section 14 of this Agreement. The Parties acknowledge that each has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the Parties.
20. Independent Contractor. Knorex’s performance under this Agreement is that of an independent contractor and nothing in this Agreement creates the relationship of employer and employee, partnership, principal and agent or joint venture between Company and Knorex. Knorex has no right or authority to enter into or incur any debt or liability, of any nature, in the name of or on behalf of Company. Personnel assigned by Knorex to provide Services under this Agreement will remain employees or independent contractors of Knorex and shall not be construed to be employees of Company. Knorex is solely responsible for the payment of all wages, taxes, and fringe benefits due the persons furnished to provide Services under this Agreement.
21. Confidentiality. Both Parties acknowledge that during the engagement, each Party will have access to and become acquainted with confidential or proprietary information owned, licensed or used by the other Party, whether furnished before or after Effective Date, including, without limitation, business plans, training materials, marketing plans, identity of customers and other customer-related data, trade secrets, technical data, financial data, test or evaluation results, system concepts, drawings, models, product designs, product specifications, product performance data, information pertaining to the Parties, the Parties’ shareholders or officers, employees, Affiliates and agents, personal data and other commercial information whether or not patented or copyrighted (“Confidential Information”). The Parties agree (a) to hold Confidential Information in strict confidence; (b) not to disclose Confidential Information to any third party; or (c) to use Confidential Information in any manner, either during or after the term of this Agreement, except as required in the course of fulfilling Services.
22. Safeguard and Notification. Each Party shall maintain adequate and reasonable administrative, technical and physical safeguards to (a) to ensure security and confidentiality of Confidential Information; (b) to protect against any anticipated threats or hazards to the security or integrity of Confidential Information; and (c) to protect against unauthorized access to or use of Confidential Information. The Parties agree to notify the other Party without undue delay in the event that the reporting Party reasonably suspects that Confidential Information has been, or may have been, lost or subject to unauthorized internal or external access.
23. Affiliates. Company’s Affiliate may receive Services from Knorex by (a) entering into an affiliate adopting agreement to this Agreement (“Affiliate Adopting Agreement”), thus creating a direct relationship between Knorex and Affiliate; or (b) if Company uses Services on behalf of its Affiliate. In the event that Affiliate has not entered into an Affiliate Adopting Agreement, Company will remain responsible to Knorex for the actions and obligations of any such Affiliate, and Company will pay directly to Knorex for all costs for Services incurred by such Affiliate.
24. Governing Law. This Agreement is governed by and construed under the laws of Singapore, without reference to its conflicts of law provisions.
25. Disputes. In the event of any dispute, controversy or claim arising out of or relating to this Agreement, tort or otherwise including any questions regarding its existence, validity or termination (“Dispute”), the Parties shall attempt in good faith to resolve the matter within thirty (30) calendar days after the Dispute arises. Failure to attempt for amicable solution, the Parties consent for such Dispute to be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of Singapore International Arbitration Centre. The number of arbitrators shall be one. The place of arbitration shall be Singapore. The language to be used in the arbitration proceedings shall be English.
26. Non-waiver. Any delay, failure or neglect by either Party to enforce at any time any of the provisions herein shall not be construed or deemed to be a waiver of such Party’s rights hereunder nor shall it in any way affect the enforceability or validity of the whole or any part of this Agreement nor prejudice such Party’s rights to take subsequent action.
27. Severability. If any provision of this Agreement is held to be unenforceable or declared void, this Agreement will remain in full force and effect with the provision omitted.
28. No Publicity. No Party may make any public statement relating to this Agreement without the prior written consent from the other Party. Knorex may include Company’s name and logo in the marketing, promotional materials and customer lists of Knorex.
29. No Solicitation. In consideration of the disclosure of Confidential Information and in furtherance of the obligations of the Parties, no Party shall directly or indirectly solicit for employment, entice away, hire, or utilize the services of any employee of the other Party during the time any Services are being performed and for one year after the completion of Services, or assist any third party in doing so. This shall not apply to any employee who, in good faith (a) responds to a job search conducted by an independent third party which does not target such employee, or (b) responds to a job advertisement generally available to the public.
30. Force Majeure. A Party cannot be held liable for delays or failure to perform their obligations due to occurrences beyond the control of that Party, which occurrences shall include but not limited to, natural disasters, epidemic, war or riots (collectively, “Force Majeure”). To the extent caused by Force Majeure, no delay, failure, or default will constitute a breach of the Agreement. Notwithstanding the foregoing, the Party experiencing Force Majeure must take all necessary actions in order to continue to fulfill its obligations under this Agreement. If Force Majeure exceeds thirty (30) calendar days, then each Party may immediately terminate this Agreement by written notification to the other Party without any liability to the other Party for any loss.
31. Notices. Any notices under this Agreement shall be given in writing by overnight courier or Certified U.S. mail to each Party at the address listed below or to the designated address as updated from time to time. Notices are effective when received.
33. Miscellaneous. No Party may assign this Agreement without the prior written consent of the other Party, except to any successor to its business by merger, consolidation, re-organization, divestiture, sale of assets, or to any entity controlling, controlled by or under common control with the Party. A person or entity that is not a Party to this Agreement shall have no right to enforce any term of this Agreement. Each Party expressly represents and warrants that no promise or agreement which is not herein expressed has been made to them in executing this Agreement, and that each Party is not relying upon any statement or representation of any of the parties hereto other than those expressly set forth herein. Each Party is relying upon its own judgment in entering into this Agreement. Any amendment or change to this Agreement must be in writing signed by the Parties. This Agreement may be signed in counterparts, each of which constitutes an original and which together shall constitute on in the same agreement.
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