ACCEPTANCE OF TERMS 1.1 Binding Effect. By signing or accepting the JaGaAds Order Confirmation Form (“the Form”), you are deemed to acknowledge and agree to be bound by these terms and conditions read together with any and all associated schedules, appendices and annexures including but not limited to the details, terms and conditions contained in the Form (collectively as “Terms and Conditions” or “this Agreement”). This Agreement shall form part of a legally binding agreement between Red Ideas Sdn Bhd (201301019072/ 1048902-M) (“RISB” or “JaGaApp”) and the counter party named in the Form (“the Advertiser”) (individually as “Party” and collectively as “Parties”).
1.2 Effective Date. Unless otherwise agreed by the Parties, this Agreement shall become effective upon the date on the Form and upon the Parties’ due execution of the Form (“Effective Date”).
DEFINITIONS 2.1 “Advertisement” means any and all advertisement campaign types elected by the Advertiser under the Form.
2.2 “Advertiser” means the entity identified in the Form entering into this Agreement intending to advertise.
2.3 “Advertising Materials” means any advertising materials and related content provided by or on behalf of Advertiser including but not limited to graphics, artworks, texts, files, URLs and computer code of which may contain subject brands, products and services that the Advertiser aims to promote.
2.4 Affiliates” means parent company, subsidiary or an associated company of JaGaApp and any entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement, where control means the ownership of more than 50% of the voting shares or other ownership of such entity.
2.5 “Fees” has the meaning set forth in Clause 4.1.
2.6 “Platform” means any platform operated by JaGaApp and selected by the Advertiser in the Form to place the Advertisement.
2.7 “Prohibited Content” means any content or term that: a. promotes or is related to illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes or chain letters); b. promotes or is related to tobacco, gambling or weapons; c. is related to pornographic or obscene material; d. is related to excessively graphic or explicit violence; e. is defamatory, inappropriate or profane; f. is discriminatory or constitutes “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation, or language of such individual or group; and g. promotes or contains viruses, worms, corrupted files, cracks, or other materials that are intended to or may damage or render inoperable software, hardware or security measures of JaGaApp, any user or any other third party.
2.8 “Renewal Term” has the meaning set forth in Clause 9.1 below.
2.9 “Term” has the meaning set forth in Clause 9.1 below.
2.10 “Terms of Use” means all terms and policies governing the Platform including additional guidelines required or updated by JaGaApp from time to time.
ADVERTISING PLACEMENTS 3.1 Authorization. Advertiser grants JaGaApp and its Affiliates a non-exclusive, worldwide and fully paid license to use, perform, reproduce, display, transmit and distribute the Advertising Materials on selected Platform in accordance with this Agreement.
3.2 Advertisement Campaigns. The Advertiser will be provided with options of Advertisement Campaigns under the Form. The Advertiser shall elect, fill up and execute the Form in respect of each Advertisement the Advertiser wishes to place, particularly amongst others the preferred Platform, duration, quantity, pricing and other relevant information.
3.3 Order Confirmation Form. The offer contained in the Form shall remain valid and open for acceptance until the date specified in each Form, after which it shall automatically expire unless otherwise agreed in writing by the Parties. The Form shall be governed by the Terms and Conditions herein, and if there is any conflict between these Terms and Conditions and the Form, these Terms and Conditions will prevail, unless otherwise agreed by the Parties.
3.4 Submission of Advertising Materials. The Advertiser shall submit to JaGaApp the Advertisement Materials by the submission deadline required and determined by JaGaApp from time to time. JaGaApp shall not be responsible for any delay on launching the Advertisement due to delay of submission of Advertisement Materials by the Advertiser.
3.5 Cancellation and Changes of Advertisement. JaGaApp has the rights to cancel any of the Advertisement scheduled, at any time with or without cause and with or without prior written notice to the Advertiser. Upon execution of the Form, the Advertiser is not allowed to cancel the Advertisement and/or this Agreement. Any cancellation shall lead to forfeiture of the Advertisement and the Fees in whole (if paid), the Advertiser remains liable to pay the Fees (if unpaid) and no refunds shall be entitled by the Advertiser. Subject to JaGaApp’s approval and the Platform’s availability, the Advertiser may request for changes on the Advertisement particularly on the launching dates of Advertisement and details on Advertisement Materials, by giving at least one (1) week prior written notice to JaGaApp. The Advertiser is only allowed to make one (1) time request of changes on the Advertisement within the Term. No further changes shall be allowed thereafter. The Advertiser’s failure to comply with new launching dates of Advertisement shall lead to JaGaApp forfeiting the Advertisement and no refunds of the Fees shall be entitled by the Advertiser.
FEES AND PAYMENT TERMS 4.1 Advertising Fee and Campaign Cost. In consideration of the Advertisement placements, the Advertiser agrees to make payment of such Fees prescribed in the Form to JaGaApp in the manner as required in the invoice(s). Unless otherwise provided by this Agreement, all paid fees are non-refundable.
4.2 Invoicing and Payment Terms. The Advertiser agrees to pay the full amount billed/ charged by JaGaApp from time to time including and not limited to the advertising fees/ campaign costs and any applicable taxes pursuant to this Agreement. JaGaApp may issue tax invoice(s), sales order(s), pro-forma invoice(s) and/ or any other documents reflecting the payments due and payable by the Advertiser. Unless otherwise agreed by the Parties, the payments shall be made by the Advertiser within the payment terms as prescribed under the Form. By execution of the Form, the Advertiser agrees to the payments policy adopted by JaGaApp including but not limited to the late payment charges if any. JaGaApp reserves all rights to suspend, withhold or discontinue any Advertisement until full payments of outstanding amount and interests thereon are received by JaGaApp in clear funds.
ADVERTISER’S COVENANTS 5.1 Business Conduct. The Advertiser will not engage in any unconscionable, false, deceptive, misleading, or fraudulent conduct, including by misrepresenting its own websites. Advertiser must ensure the truthfulness and accuracy of content in all Advertising Materials. Advertiser will not advertise substances, services, products, or materials that violate applicable laws.
5.2 Relationship with Advertisers. The Advertiser agrees that JaGaApp shall not be deemed as an agent to the Advertiser and may not make any commitment or incur any obligations on behalf of JaGaApp or contractually bind JaGaApp in any manner.
5.3 Compliance with Laws and Terms. The Advertiser will ensure that the Advertising Materials, and placement of each Advertisement comply with all applicable laws in jurisdictions in which each Advertisement is placed and in which Advertiser is located or provides goods and services, the Terms of Use, and other existing criteria or specifications required by JaGaApp (including content limitations, technical specifications, privacy requirements, user experience requirements, and requirements regarding JaGaApp’s public image).
5.4 Prohibited Uses. The Advertiser will not, and will not allow any third party to: (a) use robots or other automated query tools, computer generated search requests, or fraudulent use of search engine optimization services to generate or conceal impressions, inquiries, clicks, or conversions that are fraudulent or invalid; or (b) use any automated means, form of scraping, or other data extraction methods to access, query, collect, or use JaGaApp advertising-related information from the Platform without JaGaApp’s prior written consent.
JAGAAPP’S RIGHTS 6.1 Platform. JaGaApp will operate and maintain the Platform. No changes relating to the features of functionalities of the Platform will affect the validity and enforceability of this Agreement.
6.2 Rights to Cancel, Reject and Remove. JaGaApp reserves the right to review any Advertising Materials and related documentation submitted by Advertiser. If, in JaGaApp’s sole judgment: (a) any Advertising Material violates the Terms of Use of the Platform; (b) Advertiser violates or encourages violation of any applicable laws; (c) Advertiser breaches its obligations under this Agreement (including failure to pay the Fees); (d) any Advertiser violate or encourage violation of any applicable laws; (e) JaGaApp believes that any Advertising Material may subject JaGaApp to a criminal, civil, or administrative liability or, (f) any Advertising Material constitutes Prohibited Content, JaGaApp may take one or more of the following measures: a. reject, remove, cease, or discontinue delivery of the Advertisement; b. require Advertiser to cure its violation, non-compliance, or breach within a specified period of time; c. for each violation, impose a fine on Advertiser as liquidated damages, which fine or deduction will not relieve Advertiser from its liabilities if JaGaApp’s losses exceed such amount; and/ or d. terminate this Agreement in accordance with the Terms and Conditions herein.
6.3 Changes to Terms of Use. Subject to the Terms of Use, JaGaApp may, at its own discretion, update, amend, or modify the Terms of Use, including the eligibility requirements for Advertisers (e.g., natural persons, legal persons), prohibited categories of products or services that may be advertised, Advertising Materials review standards, payment requirements, scope of credentials review, additional fees, and waivers regarding certain industries. By continuing to execute the Form, Advertiser agrees to be bound by the updated, amended, or modified Terms of Use. Any changes to the Terms of Use shall not affect the validity and enforceability of this Agreement.
CONFIDENTIAL INFORMATION 7.1 Confidential Information. “Confidential Information” means: (a) any proprietary information of a Party to this Agreement disclosed by one Party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; (b) the JaGaApp materials and all other non-public marketing or technical information, even if not marked as confidential; and (c) all information collected or developed by JaGaApp regarding its customers. Confidential Information also includes oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure.
7.2 Exceptions. Confidential Information will not include any information that: (a) was publicly known and made generally available before the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the lawful possession of the receiving party at the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of that third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (f) is disclosed by the receiving party pursuant to the disclosing party’s prior written approval.
7.3 Non-Use and Non-Disclosure. Each Party will: (a) treat as confidential all Confidential Information of the other Party; (b) not disclose that Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section and such Party has obtained the written consent to that disclosure from the Party that provided the Confidential Information; and (c) not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each Party is permitted to disclose the other Party’s Confidential Information if required by law so long as the other Party is given prompt written notice of that requirement before disclosure and assistance in obtaining an order protecting that information from public disclosure.
INTELLECTUAL PROPERTY RIGHTS AND CONTENT MATERIAL 8.1 Rights Vested on JaGaApp. The Advertiser acknowledges and agrees that all rights, titles and interest in the Platform including all patent rights, proprietary indicia, trademarks, service marks, copyrights, trade names, logos, symbols, brand names, and all other Intellectual Property Rights, including software (e.g. the Platform and any API’s or other software) and data (e.g. sales data, performance data, customer data) shall belong exclusively to JaGaApp and its licensors. The Advertiser will not claim any Intellectual Property Rights, sell, assign, license, publish, lease or otherwise commercially exploit such software and data, and will immediately cease their use and processing upon termination of the Agreement or if so required by JaGaApp at any time.
8.2 Use of Intellectual Property. The Advertiser will not be entitled to use any Intellectual Property belonging to JaGaApp.
8.3 License to Use. The Advertiser represents and warrants that it is the owner or has lawful rights with respect to the use of Intellectual Property rights concerning the Advertisement Materials and hereby grants JaGaApp a royalty-free, non-exclusive, right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially and non-commercially exploit in any manner, any and all of the Advertisement Materials.
8.4 JaGaApp’s Rights. JaGaApp has no obligation to verify the accuracy, completeness and legality of Advertisement Materials. JaGaApp retains the right to determine the use and placement of Advertisement Materials, and the structure, appearance, design, functionality and all other aspects on the Platform, and, if any, the sales traffic activities. Nothing herein contained will be deemed to limit or restrict the rights of JaGaApp or any third party to assert claims for violation of any Intellectual Property rights against the Advertiser.
TERM AND TERMINATION 9.1 Term. This Agreement takes effect on the Effective Date and continues for the Term specified under the Form (“Term”). No renewal of term shall be applicable in this Agreement. The Advertiser shall execute a fresh Form for any new engagement(s) with JaGaApp.
9.2 Termination upon Mutual Agreement. This Agreement may be terminated immediately upon mutual written agreement of the Parties.
9.3 Termination for Convenience. JaGaApp may terminate this Agreement at any time without cause by providing the Advertiser with a seven (7) days’ prior written notice.
9.4 Termination by Cause. Either Party may terminate this Agreement immediately in the event of: a. either Party’s dissolution or ceasing to do business, or the institution by or against either Party of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts; b. the other Party does not cure material breach of this Agreement within thirty (30) days of receiving written notice of material breach from non-breaching party; and/ or c. the occurrence of an event of Force Majeure that continues for more than thirty (30) days.
9.5 Effects of Termination. Upon termination of this Agreement, all rights and obligations of the Parties under this Agreement shall cease except as otherwise provided herein or as required for the enforcement of any rights or obligations accrued prior to the date of termination. The Advertiser shall promptly pay any outstanding amounts due to JaGaApp up to the effective date of termination. Termination of this Agreement shall not in any manner prejudice any rights of any Party to seek any remedies available under the laws or equity including but not limited to damages, specific performance and/ or injunctive relief.
9.6 Survival. Provisions of this Agreement which by their nature are intended to survive termination, including but not limited to confidentiality, indemnification, limitation of liability, shall remain in full force and effect following the termination.
REPRESENTATIONS AND WARRANTIES 10.1 Representations and Warranties by Advertiser. The Advertiser represents and warrants that: a. it is duly organized, validly existing and in good standing in the jurisdiction it is formed; b. its execution and delivery of this Agreement has been duly and validly authorized; c. this Agreement constitutes a valid, binding and enforceable obligation upon its execution; d. it will comply with all applicable laws in performing under this Agreement; e. the execution, delivery, and performance of this Agreement will not be in conflict with or constitute a default under the terms of any agreement, instrument, judgment, decree, or any order, statute, rule, or governmental regulation applicable to Advertiser; f. all of the information provided by Advertiser to JaGaApp is complete, true, accurate, and current, and Advertiser has the right to conduct its business, including offering its products or services; g. the Advertising Materials submitted by Advertiser are true and accurate; h. each Advertiser has the right or authorization to use, market, and promote the applicable Advertisement Materials, and the use, marketing, and promotion of such Advertisement Materials in accordance with this Agreement are compliant with all applicable laws; i. no Advertising Materials contains (i) any information that violates or encourages violation of any applicable law; (ii) fraudulent or deceptive information or incentives; (iii) virus, malware, spyware, Trojan, phishing, or other malicious code that could breach or circumvent any Platform security measure; (iv) information marketing or promoting fake or counterfeit goods or illegal businesses (including apps or software that contain hidden charges); (v) any material that infringes any rights of any third party; or (vi) material that may be harmful, abusive, pornographic or obscene, threatening, or defamatory; and j. Advertiser has all necessary rights to permit and hereby grants JaGaApp all such rights that are necessary for JaGaApp to use, store, copy, modify, reform, reproduce, publish, display, transmit, display, and distribute the Advertising Materials on the Platform.
INDEMNIFICATION 11.1 Indemnification by Advertiser. Advertiser will indemnify, defend, and hold harmless JaGaApp and its affiliates and their directors, officers, and employees from and against all claims, actions, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) any breach by Advertiser of this Agreement; (b) any failure of Advertiser to perform its obligations under this Agreement in compliance with all applicable laws; (c) any violation of any rights of any third party by an Advertisement, or Advertising Material; or (d) Advertiser’s fraud, negligence or wilful misconduct.
LIMITATION OF LIABILITY 12.1 Disclaimer of Warranties. ALL PERFORMANCE BY JAGAAPP AND ITS AFFILIATES AND ANY JAGAAPP MATERIALS ARE PROVIDED “AS IS.” JAGAAPP MAKES NO GUARANTEES REGARDING THE SUCCESS OF A CAMPAIGN OR AD, NUMBER OF VISITS, SALES, OR CONVERSION RATES. ADVERTISER ACKNOWLEDGES AND AGREES THAT JAGAAPP CANNOT ENSURE THAT ANY MATERIAL SUBMITTED BY OR ON BEHALF OF ADVERTISER WILL BE PROTECTED FROM THEFT OR MISUSE, AND JAGAAPP WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE.
12.2 Disclaimer on Consequential Damages. JAGAAPP WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO ADVERTISER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS.
12.3 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL JAGAAPP’S OR ANY JAGAAPP AFFILIATE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT RECEIVED FROM ADVERTISER BY JAGAAPP UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD PRECEDING THAT CLAIM.
MISCELLANEOUS 13.1 Non-Exclusivity. This Agreement is non-exclusive and shall not prevent JaGaApp from entering into similar agreements with third parties, including other advertisers within the same geographic location of any Advertiser.
13.2 Non-Solicitation. During the Term of this Agreement, neither Party shall, directly or indirectly, solicit, induce, or attempt to solicit or induce any advertiser, client, or business partner of the other Party with whom they have had direct or indirect contact or dealings during the term of this Agreement, to terminate or alter their relationship with the other Party.
13.3 Entire Agreement. This Agreement, including these Terms and Conditions, the JaGaAds Order Confirmation Form and all associated forms, constitute the entire agreement of the Parties and supersedes any and all prior oral or written agreements or understandings between the Parties.
13.4 Variation. Unless otherwise provided in this Agreement, JaGaApp may vary, modify, add or delete these Terms and Conditions including terms in the JaGaAds Order Confirmation Form and any other schedules, appendices or annexures associated herein, at any time, and such amendments shall be effective once they are posted on JaGaApp’s website(s) or mobile application(s) or notified to the Advertiser in any manner deemed fit by JaGaApp. It is the Advertiser’s responsibility to review these Terms and Conditions regularly. If the Advertiser uses and/or continues to use the services under this Agreement after the date on which such variation comes into effect, such use shall be deemed acceptance of such variation by Advertiser.
13.5 Independent Contractor. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise. The Parties are independent contractors in the performance of this Agreement. Neither Party is authorized to bind the other Party to any liability or obligation or to represent that it has any authority to do so.
13.6 Press Release. Except as expressly set forth in this Agreement or as required by the laws of any jurisdiction, neither Party will make any public announcement or press release regarding the cooperation contemplated by this Agreement without the prior consent of the other Party. Any Party required by law to make a public announcement regarding any matter related to the cooperation contemplated by this Agreement will solicit from and consider in good faith the other Party’s feedback on the content of that public announcement.
13.7 Force Majeure. Neither Party will be liable to the other Party for any failure or delay in fulfilling an obligation (other than the financial obligations) under this Agreement if that failure or delay is attributable to circumstances beyond its control, including any fire, power failure, labour dispute, war, civil dispute, or government action (including any new law or regulation) or inaction (“Force Majeure”). The deadline for fulfilling the obligation in question will be extended for a period equal to that of the continuance of the Force Majeure event.
13.8 Governing Law and Disputes Resolution. This Agreement shall be governed by and construed in accordance with the laws of Malaysia, and the Parties agree to submit to the exclusive jurisdiction of the courts of Malaysia.
13.9 Notices. Any notice given by one Party to the other under this Agreement will be sufficiently served or made if sent by email, post or facsimile transmission to the address set out in the Form. The Advertiser shall be deemed to have received such notices of any updates made to these Terms and Conditions within two (2) days of the notice being sent by e-mail or made available on JaGaApp’s website.
13.10 Non-Assignment. Advertiser may not voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement (in whole or in part), including by direct or indirect change of control, merger (whether or not Advertiser is the surviving entity), or operation of law, without JaGaApp’s prior written consent, which JaGaApp may withhold in its sole and absolute discretion. Any direct or indirect change of control of equity ownership or management or control of Advertiser, whether or not Advertiser survives as an entity, will be deemed an assignment and delegation of this Agreement that requires JaGaApp’s prior written consent. An assignment by Advertiser will not relieve Advertiser of its obligations under this Agreement unless JaGaApp expressly states otherwise in its written consent. JaGaApp will not release Advertiser of its liability under this Agreement unless JaGaApp expressly states otherwise in its written consent. JaGaApp may voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement (in whole or in part) without Advertiser’s consent. Any purported assignment or delegation in violation of this clause will be null and void. This Agreement will bind and inure to the benefit of each Party’s respective permitted successors and permitted assigns.
13.11 Non-Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.
13.12 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavour in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
13.13 Remedies Cumulative. No single or partial exercise of any right or remedy will preclude any other or further exercise of any other right or remedy. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
13.14 Time of Essence. The Parties acknowledge and agree that time is of the essence in the performance of this Agreement. Any dates, deadlines and/ or time frames specified herein must be strictly adhered to failing which may result to non-breaching party pursuing legal remedies and/ or terminating this Agreement.
13.15 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement.
13.16 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
13.17 Prevalence. In the event that the provisions of these Terms and Conditions, the Form and any other annexures thereof are inconsistent in any manner, these Terms and Conditions shall prevail over the Form and the other annexures (if any), while the Form shall prevail over the other annexures (if any).
13.18 Interpretations. Reference to “applicable laws” or “laws” in this Agreement shall refer to any applicable constitution, laws, by-laws, statutes, ordinances, codes, rules, regulations, orders, judgments or decrees of any government, states or political subdivision thereof, courts, regulatory or semi-regulatory or administrative bodies. References to any statutes, rules, regulations, orders, directives shall be construed as references to such statutes, rules, regulations, orders, or directives as may be amended, re-enacted or as modified by any other statutes, rules, regulations, orders or directives.