Apple Daily E-Classified Limited – Advertising

Terms & Conditions

By using this site (the “Site”), you (“you” or the “Advertiser”) agree to the terms and conditions that we (“Apple Daily E-Classified Limited”) have provided. If you do not wish to agree to the outlined terms and conditions (the “Terms of Use” or “Agreement”), please refrain from using the Site.

  1. General

The placing of an order for the insertion of an Advertisement in the website/mobile site/app of Apple Daily E-Classified Limited shall amount to an acceptance of the terms and conditions by you as an advertiser.

These Terms govern Advertiser’s participation in Apple Daily E-Classified Limited’s advertising programs and services (i) that are accessible through the account(s) given to Advertiser in connection with these Terms or (ii) that reference or are referenced by these Terms (collectively, Programs).  In consideration of the foregoing, the parties agree as follows:

 

Advertiser authorizes Apple Daily E-Classified Limited and its affiliates to place Customer’s advertising materials and related technology ( “Ads”) on any advertising  products and services ( “the Services”) provided by Apple Daily E-Classified Limited. Customer is solely responsible for its use of the Services including but not limited to Ad trafficking or targeting decisions; Properties to which Creative directs viewers along with the related URLs and redirects Destinations and services and products advertised on such Destinations. The Program is an advertising platform on which Customer authorizes Apple Daily E-Classified Limited to use automated tools to format Ads.  Apple Daily E-Classified Limited may make available to Customer certain optional Program features to assist Customer with the selection and generation of Targets and Ads.

 

  1. Materials

The advertiser shall prepare and deliver the ready to publish digital file(s) of the Advertisement to Apple Daily E-Classified Limited.  The digital file(s) containing the Advertisement materials must conform to the quality and specifications advised by Apple Daily E-Classified Limited. The Advertiser agrees to pay the costs incurred by Apple Daily E-Classified Limited in processing Advertisement materials which does not meet the specification required by Apple Daily E-Classified Limited.  Apple Daily E-Classified Limited shall not be held responsible for any loss or damage of the supplied advertising materials and the advertisers/agency shall at its own expenses collect them at Apple Daily E-Classified Limited’s office within one month after the publication of the advertisement, failing which Apple Daily E-Classified Limited shall be entitled to destroy or dispose of them as it deems fit without any liability to the advertiser.

 

  1. Changes and Cancellations

Confirmed orders are non-cancellable. Copy changes will not be accepted after the published closing date. Apple Daily E-Classified Limited must receive changes to artwork at least two (2) business days in advance of requested change date. Apple Daily E-Classified Limited reserves the right to modify or change any ads placed or to be placed at any time without prior notice. Any change orders by advertiser must be made in writing and acknowledged by Apple Daily E-Classified Limited. This Contract may be cancelled or changed by Apple Daily E-Classified Limited at any time without prior notice or agreement by advertiser. There is no rescheduling and postponement of Insertion Order by advertiser.  Moreover Apple Daily E-Classified Limited may immediately terminate this Contract if any change occurs in any applicable laws or regulations that would, in Apple Daily E-Classified Limited’s sole discretion, render Apple Daily E-Classified Limited’s performance hereunder illegal or otherwise subject to legal challenge.

 

  1. Payment

Unless otherwise agreed in writing, hundred percent (100%) of total contract amount are due upon commitment of insertion order.  In addition, advertiser shall be liable to Apple Daily E-Classified Limited for all solicitors’ costs and other costs of collection. Interest will accrue on any past due amounts at the rate of one percent (1%) per month, but not in excess of the lawful maximum. Apple Daily E-Classified Limited shall have the right to hold the advertiser liable for all amount due. All payments made to Apple Daily E-Classified Limited under this Contract shall be paid exclusive of any taxes imposed by any government, statutory or tax authority.

 

  1. Frequency and Discount

If Apple Daily E-Classified Limited fails to provide the guaranteed number of impressions, Apple Daily E-Classified Limited will make good on this Contract by providing advertiser with additional impressions and which is the advertiser’s sole remedy. Apple Daily E-Classified Limited will not make good for under-delivery due to delays caused by advertiser.   Advertiser may be entitled to a special discount on the Fees at such rate as may be determined by Apple Daily E-Classified Limited with regard to the quantity of Advertisements committed by the Advertiser under the Order.   If special discount has been given to the Advertiser but the Advertiser fails to fulfill the quantity of advertisements committed under the Order upon termination or expiration of the Term for whatever reason, Apple Daily E-Classified Limited shall be entitled to charge the Standard Rates on all Advertisements committed under the Order. The Advertiser shall pay the difference between the Standard Rates and the discounted rate for all Advertisements displayed on the Site and the Standard Rates for all remaining Advertisements committed under the Order within seven (7) days after the termination or expiration of the Term.

 

  1. Licenses and Indemnification

The Advertiser hereby warrants and represents that: (a). the Advertiser contracts with Apple Daily E-Classified Limited as principal (irrespective of whether it is an advertiser or an advertising agent or a media buyer and in case it is an agent, authorization to place the Advertisement has been obtained from the advertiser) and shall be principally liable for all liabilities under this agreement; (b). the publication of the Advertisement by Apple Daily E-Classified Limited will not be in breach of any contract or any third party’s intellectual property rights including trade mark, service marks, logos, patent, copyright and trade secret; and (c). the Advertisement contains nothing that is defamatory, threatening, illegal, obscene, indecent, seditious, offensive, liable to incite racial hatred, discriminatory, menacing or in breach of any applicable rules or laws of Hong Kong.

In consideration of Apple Daily E-Classified Limited’s acceptance of such advertisements and materials for publication, the advertiser undertakes to indemnify and hold Apple Daily E-Classified Limited harmless from and against any claims, prosecutions, judgments, losses, liabilities, costs, damages or expenses whatsoever arising out of or in connection with the publication of the Advertisement or the copying, printing, distributing, or publishing of advertiser’s advertisements, advertiser hereby grants Apple Daily E-Classified Limited the right to use, reproduce, and distribute the advertisements.

 

  1. Prohibited Content and Misleading Advertisement

The advertiser shall be solely responsible for complying with all applicable laws and regulations of Hong Kong.  The parties agrees that the site/services is a mere platform channel for Advertiser to place its advertisement.  Apple Daily E-Classified Limited  disclaims any responsibility to censor,  edit or control the Advertisements placed, published, distributed or made available through the services/site.   The Advertiser shall at all times be solely responsible for and liable for the contents of the Advertisement placed on the site. The Advertiser shall not include any content/advertisement on the site or  Apple Daily E-Classified Limited’s Affiliate Sites and Mobile Apps that is illegal, inappropriate, untrue, misleading, unfair or deceptive.  The advertiser shall fully indemnify Apple Daily E-Classified Limited and hold Apple Daily E-Classified Limited harmless from and against any claims, prosecutions, judgments, losses, liabilities, costs, damages and expenses whatsoever arising out of or in connection with the publication of the Advertisement.

 

  1. Rejections and Remove

Apple Daily E-Classified Limited reserves the sole and absolute right to refuse order for any advertisement which is considered in Apple Daily E-Classified Limited’s sole discretion to be offensive or otherwise inappropriate for publication, with or without notice to the advertiser. Apple Daily E-Classified Limited also reserves the right to remove or modify any advertisement that have already been placed on the site at any time and terminate this agreement at Apple Daily E-Classified Limited’s sole discretion without prior notice.

 

  1. Limitation of Liability

In any event Apple Daily E-Classified Limited shall not be liable for any errors in content or omissions. Should an error appear in an advertisement, Apple Daily E-Classified Limited’s maximum liability will be limited to the cost of the advertisement (pro-rated for the publishing completed). Apple Daily E-Classified Limited will not be liable for any delays in delivery and/or non-delivery in the event of an act of God, action by any government entity, transportation, strike, network difficulties, electronic malfunction, etc. or any feasibility, reliability, or effectiveness related to Apple Daily E-Classified Limited’s Affiliate Sites and Mobile Apps. Apple Daily E-Classified Limited does not represent or warrant that Apple Daily E-Classified Limited’s Affiliate Sites and Mobile Apps will meet the objectives or needs of advertiser/agency or any third party. In no event will Apple Daily E-Classified Limited be liable for any failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, or other non-performance related to Apple Daily E-Classified Limited’s Affiliate Sites and Mobile Apps. UNDER NO CIRCUMSTANCES WILL APPLE DAILY E-CLASSIFIED LIMITED BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST INCOME OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS CONTRACT, EVEN IF APPLE DAILY E-CLASSIFIED LIMITED HAD BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

 

  1. Special Undertaking

With the Trade Descriptions (Unfair Trade Practices) (Amendment) Ordinance 2012 (the “Amendment Ordinance”) coming into operation on 19th July 2013, the advertiser hereby represents and warrants that it shall strictly comply with the provisions of the Amendment Ordinance and that all the contents, information and components of the Advertisement that it made available or submitted for publication are true, correct, current and appropriate to the products or services being offered.  In consideration of Apple Daily E-Classified Limited accepting the Advertisement for publication, the advertiser undertake to indemnify, defend and hold Apple Daily E-Classified Limited harmless from and against any claims, prosecutions, judgments, losses, liabilities, costs, damages or expenses whatsoever arising out of or in connection with the publication of the Advertisement.

 

  1. Choice of Law and Forum

This Contract shall be interpreted and construed in accordance with the laws of Hong Kong Special Administrative Region and each party hereby submits to the non-exclusive jurisdiction of the Hong Kong SAR courts.

 

  1. Miscellaneous

No public statements concerning the existence or terms of this Contract will be made or released to any medium except with the prior approval of both parties or as required by law. This Contract cannot be sold, assigned or transferred by advertiser to any party. If any portion of the Contract is found unenforceable for any reason, the remainder will remain in full force and effect. No waiver by Apple Daily E-Classified Limited shall operate as a waiver of any other provision or any subsequent default. This document represents the entire agreement of the parties; Apple Daily E-Classified Limited will not be bound by the representations of any agents, brokers, or other third parties. Any modifications must be in writing and signed by an authorized representative of Apple Daily E-Classified Limited and the advertiser.

Apple Daily E-Classified Limited Transactional Joint Promotion

General Terms And Conditions

 

This Agreement is made between:

  • Merchant; and
  • Apple Daily E-Classified Limited

 

The Merchant wishes to offer its products or services for sales and promotions with the particular transactional deal promotion characteristics identified in the Apple Daily E-Classified Merchant Application Form, in accordance with this Agreement.

 

The Merchant’s products or services shall be promoted on a website/mobile site/app from Apple Daily E-Classified Limited, and it is agreed as follows:

 

  1. Definitions

 

  • “Merchant Product Offering” or “Products” means the product(s)/service(s) to be supplied by the Merchant to Apple Daily E-Classified Limited

 

  • “Promotion Period” means the period during which the Merchant’s products or services are promoted for sales on a website/mobile site/app from Apple Daily E-Classified Ltd.

 

  • “Merchant Application Form” means written confirmation from the Merchant to Apple Daily E-Classified Limited confirming the Merchant’s intention to offer its products or services of a particular type for sales;

 

  • “Redemption Period” means the period during which a customer may redeem a purchased offer at a designated outlet for the price he or she paid.

 

  • “Voucher” means the redemption proof of the product purchased

 

  1. Merchant’s Responsibilities

 

  • The Merchant warrants, represents and undertakes that:
  • it has the full right and authority to enter into and perform this Agreement and that this Agreement is signed by an authorized representative of the Merchant
  • all information provided by the Merchant and set out in this Agreement is accurate, complete and correct, including but not limited to, the Merchant Product Offering, the discount or any shipping dates or delivery timeframes (if applicable)
  • during the term of this Agreement, it shall not give any individuals other than a Voucher Holder who has presented a Voucher to the Merchant a discount for the products and/or services which constitute the Merchant Product Offering; and
  • that the price specified in the Merchant Application Form as the “original price” was the actual selling price of the Merchant Product Offering for at least 30 days prior to the Effective Date of this Agreement.
  • The Merchant shall ensure that the products supplied by it are exclusive in the market and shall use its best efforts to assist and co-operate with Apple Daily E-Classified Limited in promoting and organizing the Program throughout the promotion period.
  • It shall comply with all relevant legal, regulatory and other requirements for the time being in force in Hong Kong and shall at its own costs obtain any licenses and approval required for the manufacturing and supplying of the Product to the public;
  • The products supplied by it are authentic products, and the Merchant is the owner or has acquired all necessary licenses of all Intellectual Property Rights in the Products (including but not limited to patent, design, trade name, trademark, copyright, trade secret or know-how in relation to the Product), and to the extent any documentary evidence exists attesting such ownership, the Merchant shall produce it to Apple Daily E-Classified Limited from time to time at Apple Daily E-Classified Limited’s request;
  • It shall supply the Products to customers without interruption during the Redemption Period; and
  • The Product supplied by the Merchant in accordance with the terms of this Agreement shall be of good merchandisable quality and be fit for its intended purposes, and shall conform to the specifications and standards of the Product as provided by the Merchant to Apple Daily E-Classified Limited or as agreed from time to time between the parties.

 

 

  • The Merchant shall not change the redemption price (“Apple Daily E-Classified Limited Price”) or redemption outlets (as stated in the Merchant Application Form) without the written consent of Apple Daily E-Classified Limited.

 

  • Merchant acknowledges that Apple Daily E-Classified Limited shall not be liable for any loss of goods in any case. The Merchant shall ensure and maintain all quality standards for the product and be solely responsible for any product loss, damage, return or replacement arising from or in connection with (1) product return/replacement by customers; (2) products that do not conform to their description, specification and quantity as contained in the Merchant Application Form; (3) products damaged in transportation; and/or (4) flaws or defects of any kind (whether in material, workmanship, quality and/or safety). For the avoidance of doubt, should there be any request from customers for product return or replacement, the Merchant shall perform any return or replacement in accordance with Apple Daily E-Classified Limited’s requirements and as soon as commercially and practically possible (in any event within 5 days upon receiving notice of such return / replacement from Apple Daily E-Classified Limited). All relevant costs arising therefrom shall be borne by the Merchant.

 

 

  • The Merchant agrees and acknowledges that Apple Daily E-Classified Limited does not assume and should not be exposed to Merchant’s business and operational risks associated with  any complaint, claim or dispute whatsoever arising in connection with the Products. The Merchant undertakes that it shall handle all complaints or disputes whatsoever in its sole responsibility and at its own cost and cause no troubles to Apple Daily E-Classified Limited. Should there be any complaint or claim whatsoever from a customer or any third party, upon receiving written notice from Apple Daily E-Classified Limited, the Merchant shall defend Apple Daily E-Classified Limited and/or cooperate with Apple Daily E-Classified Limited in any way to resolve it.

 

 

  • The Merchant shall not withdraw from the promotion in the Promotion Period as stated in the Merchant Application Form without the prior written consent of Apple Daily E-Classified Limited. The Merchant also agrees that in the event it is in breach of any terms or conditions under this Agreement, it is liable for compensating Apple Daily E-Classified Limited for any loss or damage arising as a result of such breach.

 

  • If the Merchant ceases or suspends its business during the Promotion Period or the Redemption Period, it shall make compensation to Apple Daily E-Classified Limited for all the losses or damages resulting therefrom (including but not limited to economic loss or any damage caused to Apple Daily E-Classified Limited’s goodwill).

 

  • The Merchant shall be solely responsible for providing after-sale service and support of the Product to customers, including but not limited to product maintenance and warranty and/or handling any customer complaints, if any (“Maintenance”). The Merchant shall provide a customer hotline for customers’ inquiry.

 

  • The Merchant shall provide Apple Daily E-Classified Limited with any and all product layouts, descriptions and specifications in accordance with Apple Daily E-Classified Limited’s requirements and the formats of which should be ready-to-display on Apple Daily E-Classified Limited’s Portal via apps, websites, etc.

 

  1. Insurance

 

The Merchant shall at its own expense take out and maintain sufficient insurance to cover any and all public or private liability arising from any claims of any death, injury, loss or damage suffered by any person arising from any defaults or defects in the Product. The level of the insurance cover shall be such level as is reasonable and prudent in the light of the intended use of the Product but shall not be less than HK$5,000,000 or alternatively, the Merchant should maintain an insurance policy to cover any and all of its products liabilities in an aggregate amount of not less than HK$10,000,000. The Merchant shall provide a copy of such insurance policies to Apple Daily E-Classified Limited on the request of Apple Daily E-Classified Limited.

 

  1. License and Copyright

 

  • The Merchant grants to Apple Daily E-Classified Limited, its Affiliates and relevant Apple Daily E-Classified Limited authorized third parties, a non-exclusive worldwide license and right to use, reproduce, display, distribute and transmit the Merchant’s name, logo and any trademarks and any photographs, graphics, artwork, text and other content provided or specified by the Merchant in connection with the marketing, promotion, sale or distribution of the Merchant’S products or services

 

  • The Merchant agrees that Apple Daily E-Classified Limited reserves the right in its absolute discretion to alter the design, the content of the Advertisement upon notification to the Merchant. Apple Daily E-Classified Limited shall not be held liable for any loss or damage arising as a result of such alteration or non-publication of the whole or part of the Advertisement. No compensation of any kind shall be granted to the Merchant in the event of any alteration, delay or non-publication of the Advertisement.

 

  • The Merchant recognizes that the copyright in the Advertisement created by Apple Daily E-Classified Limited is owned by Apple Daily E-Classified Limited. The Merchant shall not by itself or cause any third party to reproduce the Advertisement in whole or in part without the written consent of Apple Daily E-Classified Limited.

 

 

  1. Schedule

 

Apple Daily E-Classified Limited reserves the rights to change the offering schedule including but not limited to the right on its own control for the arrangement of the promotion start date and end date, the promotion channel, etc.

 

  1. Payment Arrangement

 

  • Payment Terms shall be as stated in the Merchant Application Form or as otherwise agreed in writing by Apple Daily E-Classified Limited and the Merchant.

 

  • Any loss or damage of the Merchant arising from the failure of full payment due to the breach of contract of customers shall be borne by the Merchant, and the Merchant agrees to waive Apple Daily E-Classified Limited from any liability.

 

  • Apple Daily E-Classified Limited shall be entitled to set-off the amounts of its commission, production fee, service charge and receivables or the price of defective or recalled Product (if any), etc. from any sum that would otherwise be due to the Merchant whether under this Agreement or otherwise

 

  • For the avoidance of doubt, Apple Daily E-Classified Limited’s Commission in respect of a Voucher shall become due when the Voucher is sold and Apple Daily E-Classified Limited is under no obligation to transfer any amounts (including, but not limited to, any Remittance Amount) to the Merchant where a Voucher is not redeemed or, even if redeemed, the Merchant informs Apple Daily E-Classified Limited of the same after expiry of the Notice Period.

 

  • The parties agree that a Voucher is redeemed when:

 

  • The Voucher Holder has presented the Voucher to the Merchant within the Redemption Period;
  • The Merchant has delivered the Merchant Offering in full to the Voucher Holder;
  • The Merchant has provided to Apple Daily E-Classified Limited evidence of (a) and (b) prior to the end of the Notice Period (including the Voucher security code and/or other evidence Apple Daily E-Classified Limited may reasonably request as proof of the provision of the Merchant Offering, for example, but not limited to, a delivery confirmation in case of delivery of physical goods); and
  • The Voucher Holder whose Voucher or Voucher’s security code the Merchant has submitted to Apple Daily E-Classified Limited has not asked Apple Daily E-Classified Limited for a refund and Apple Daily E-Classified Limited has not given the Voucher Holder a refund.

 

For the avoidance of doubt, if any of the above four described requirements are not met, a Voucher is not redeemed and Apple Daily E-Classified Limited is under no obligation to pay the Merchant any amount in respect of that Voucher.

 

  • Any payment made by Apple Daily E-Classified Limited to the Merchant shall be without prejudice to any claims or rights which Apple Daily E-Classified Limited may have against the Merchant.

 

 

  1. Termination

 

  • Apple Daily E-Classified Limited is entitled to terminate this Agreement at any time or this Agreement may be terminated by either party: (a) immediately if the other party becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors or files a petition in bankruptcy; (b) by giving written notice to the other party if the other party commits any continuing or material breach of any of the provisions of this Agreement. Any termination of this Agreement shall be without prejudice as to any rights and obligations of either party to the other accrued prior to such termination.

 

  • The representations, warranties and indemnity stated in clause 5, 8, 9, 10 and 11 shall survive the expiration or any termination of this Agreement.

 

 

  1. Indemnity

 

Notwithstanding anything contained herein to the contrary, the Merchant shall indemnify in full and hold Apple Daily E-Classified Limited and its agents, employees, associated company or affiliates harmless from and against any and all claims (whether or not successful, compromised or settled), actions, fines, penalties, proceedings or judgments which may be made, instituted or established (each a Liability) from time to time against or otherwise involving Apple Daily E-Classified Limited and from all Losses (including legal and any incidental costs and expenses) each a Expenses) that Apple Daily E-Classified Limited may suffer or incur from time to time (including but not limited to product recall costs, any expenses incurred in handling product complaint and/or in seeking advice regarding any Liability or in any way related to or in connection with the indemnity in this clause, in any such case arising out of, based upon or in connection with, whether directly or indirectly):

 

  • Any defaults of or defects in the Product. “Defaults” or “Defects” includes any defaults or defects arising in the manufacturing process, the design or packaging of the products, failure by the Merchant to give adequate warning of the dangers of the products, or providing incorrect instructions for the use of the products and includes all defects whether discoverable or not at the time of sale and those which may be ascertained in the future;

 

  • Any infringement of Intellectual Property Rights (or other rights) of third parties including, without limitation, by the import, possession, promotion, advertising, use, disposal, hire, export, sale or offer of sale of the Products by Apple Daily E-Classified Limited;

 

  • Any breach of representations or warranties, whether express or implied, by the Merchant;

 

  • Any act, neglect or default of the Merchant or its agents, employees, licensees with respect to its supply of the Product to Apple Daily E-Classified Limited; and

 

  • Any other claims made against Apple Daily E-Classified Limited or its agents, employees, associated company or affiliates with respect to the Product under any relevant legislation or laws relating to product liability including Hong Kong and other countries.

 

  1. Personal Data/ Privacy Protection

 

The Merchant agrees to strictly observe the privacy policy of Apple Daily E-Classified Limited, and warrants that any personal data obtained through Apple Daily E-Classified Limited shall be kept confidential and solely used for the purposes of performing the services under this Agreement and are protected against loss and destruction, and against unauthorized or accidental access, processing, erasure, transfer, use, modification, disclosure or other misuse, and that only personnel authorized by Merchant have access to it. The Merchant undertakes that it shall destroy the personal data immediately after the Feature Period or completion of the dealing of the services or products concerned.

 

 

  1. Authority and Relationship of the parties

 

  • At no time shall the Merchant or its employees hold themselves out as being employees of Apple Daily E-Classified Limited and/or its affiliates or agent. The Merchant or its employees shall not assume, create or incur any liability or obligation on behalf of Apple Daily E-Classified Limited (and acknowledges that the Merchant has no right to do so) save as specifically authorized in writing by Apple Daily E-Classified Limited.

 

  • The Merchant shall not, at any time after the termination of this Agreement, either personally or by an agent directly or indirectly represent himself, and shall not procure that any such agent and shall not represent itself, as being in any way connected with or interested in the business of Apple Daily E-Classified Limited.

 

  • The Merchant shall not assign to any other third party any or all of its rights and duties under this Agreement without the prior express written consent of Apple Daily E-Classified Limited.

 

  • Neither this Agreement, nor any terms and condition contained herein, may be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party shall have the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.

 

 

  1. Confidentiality

Both parties agree and acknowledge a duty during and after the term not to disclose without the other’s prior written permission any confidential information either concerning the other’s business, business plans, customers or associated companies or resulting from studies or surveys commissioned under this Agreement.

 

Both parties also agree that rights in respect of all personal data as may be collected by Apple Daily E-Classified Limited or the Merchant under the performance of this Agreement shall belong individually to the collecting party absolutely.

 

 

  1. Law and Jurisdiction

This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the Hong Kong SAR and the parties irrevocably submits to the exclusive jurisdiction of the Courts of the Hong Kong SAR.

SUBSCRIPTION TO PROXIMITY MARKETING SOLUTIONS

TERMS AND CONDITIONS

 

Apple Daily E-Classified Limited shall make available to the Merchant the Services and Merchant shall pay Apple Daily E-Classified Limited all the relevant service charges, pursuant to this Agreement. Please read these Terms and Conditions carefully before submitting a signed Merchant Agreement for subscribing the Services. Merchant will be legally bound by these Terms and Conditions when Apple Daily E-Classified Limited sends Merchant a countersigned Agreement.

 

  1. Service Subscription

 

1.1  Upon subscription, Merchant is required to install a “Beacon” at the shop/office/premise as specified on the subscription Agreement, on an agreed display/showcase area.  Merchant acknowledges and agrees that Apple Daily E-Classified Limited will not be liable for any loss or damages suffered by Merchant or any other person arising directly or indirectly from such installation activities;

 

  1. Merchant’s Responsibilities

 

2.1  Upon subscription, Apple Daily E-Classified Limited will offer a Merchant Tool for the Merchant (Subscriber) to compose its marketing message, and upload its e-coupon or promotional flyer contents (the “Marketing Materials”).

 

2.2  Merchant is required to create a login account to the Merchant Tool. Once it has login to the Merchant Tool, Merchant can use the message sending service for composing its own promotion message and uploading image/content of its “Marketing Material”.

 

2.3  Merchant shall entirely be responsible for maintaining the security and confidentiality of the login account and for any and all use and activities of the login account.  Apple Daily E-Classified Limited shall not be liable for any loss, damages or claims arising out of any authorized use of the login account.

 

2.4  Merchant acknowledges and warrants that it shall (a) be solely responsible for the truthfulness, accuracy, quality and legality of Merchant’s “Marketing Materials”; (b) use the Service only in accordance with the applicable laws and government regulations; (c) not make any Service available to, or sell, license, distribute or use any Service for the benefit of anyone other than Merchant itself; and (d) not use the Service to transmit any infringing, defective, or otherwise unlawful or tortious data or material, or to transmit any data or material in violation of any third-party rights.

 

2.5  In addition, Merchant acknowledges that Apple Daily E-Classified Limited shall not in any way be responsible for any of the contents of the “Marketing Materials” including but not limited to e-coupon and promotional flyer terms and conditions involved.

 

  1. Fees and Payment

 

3.1  Merchant shall pay all fees specified in this Agreement during the relevant commitment period (the “Subscription Term”). Unless otherwise specified herein, the Services charges shall be paid on a monthly basis.

 

3.2  Merchant’s payment obligations herein are non-cancelable and fees paid are non-refundable. No credit or refund is available in respect of any time when the Service (or any part thereof) is disrupted or suspended for maintenance or as a result of technical difficulties or a circumstance beyond Apple Daily E-Classified Limited’s reasonable control.

 

3.3  Apple Daily E-Classified Limited may issue a monthly bill to Merchant (Subscriber) if so requested and will bill the Merchant in advance for the fees.  The monthly bill will be sent to the Merchant’s designated address or to Merchant’s specified email address.  Unless otherwise agreed, the monthly bill can be accessed and viewed on Merchant Tool.

 

3.4  Merchant agrees to pay the specified fees without set off or deduction before the Due Date unless otherwise agreed by you.  If Merchant fails to pay the fees required under this Agreement within 14 days after the date such fees become due,  Apple Daily E-Classified Limited shall have the right to charge a handling fee, reconnection fee and/or require a security deposit if Merchant’s access to the Service is suspended or terminated before payment is made.

 

3.5  Apple Daily E-Classified Limited may appoint: (i) any person as its agents to perform any of its obligations or exercise any of its powers under the Agreement and (ii) any other person or third party (include any debt collection agency or solicitors) to collect any or all indebtedness owned by the Merchant to Apple Daily E-Classified Limited and the Merchant shall be responsible for all reasonable costs and expenses which may be reasonably incurred by Apple Daily E-Classified Limited for that purpose on each occasion.

 

  1. Subscription via Credit Card Payment (if applicable)

 

4.1  Upon subscription through the option of credit card payment, Merchant shall provide Apple Daily E-Classified Limited with (a) valid and updated credit card information; and (b) Authorization for credit card direct debit.  The credit card must be valid for 6 months or above from the date of signing the Agreement. The credit card holder must be the registered contact person of the Merchant.

 

4.2  Merchant hereby authorizes Apple Daily E-Classified Limited to charge its Account for all monthly service charges incurred in connection with the Services, which should not exceed the relevant amount.  This authorization shall become effective upon the signing of this Agreement until otherwise notified in writing by Apple Daily E-Classified Limited.

 

4.3  If there is insufficient credit or fund available in the Account to meet the fee payment, Merchant acknowledges that the relevant Bank shall nonetheless be entitled, in its discretion, to effect such debit to Apple Daily E-Classified Limited.  Apple Daily E-Classified Limited is entitled to charge Merchant the administrative fee and the relevant bank charges for any direct debit or cheque payments which are returned to us because you do not have enough funds in your account.

 

  1. Term and Termination

 

5.1  This Agreement shall commence on the effective date and continue until the expiration of the Subscription Term. Merchant agrees that this Agreement shall automatically renew for additional periods of one year unless either party notifies the other party of its intention not to renew the Agreement in a writing given 30 days prior to the expiration of the then current Term.

 

5.2  If Merchant cancels all or any part of the Service before the expiry of the current Subscription Term or fails to pay to Apple Daily E-Classified Limited Service charges as required herein, or otherwise materially breached the Agreement or these Terms and Conditions, Apple Daily E-Classified Limited may, at its option (a) suspend the Service until such breach is cured, or (b) terminate the Agreement. Upon termination of the Agreement under this Clause, Apple Daily E-Classified Limited shall be entitled to recover from Merchant the early termination charges, as liquidated damages, which is based on the remaining total monthly charges within the Subscription Term.

 

5.3  Notwithstanding the above, this Agreement may be terminated by either party: (a) immediately if the other party becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors or files a petition in bankruptcy; (b) by giving written notice to the other party if the other party commits any continuing or material breach of any of the provisions of this Agreement.

 

5.4  Any termination of this Agreement shall be without prejudice as to any rights and obligations of either party to the other accrued prior to such termination.

 

 

  1. Limitation on Liability

 

6.1  Services shall be provided on “as is” basis. Apple Daily E-Classified Limited does not guarantee the sequence, accuracy, or completeness of the Service or fit for the purpose of the Merchant and shall not be held liable in any way to Merchant or any third party for any delays, inaccuracies, errors or omissions in the Service or in the transmission or delivery of all or any part thereof or for any damage arising therefrom or occasioned thereby.

 

6.2  Merchant agrees that Apple Daily E-Classified Limited reserves the right in its sole discretion to alter the design, the content of the “Marketing Materials” composed and uploaded by Merchant to the Service upon notification to Merchant. Merchant agrees that Apple Daily E-Classified Limited shall in any event not be liable for any loss or damages arising as a result of such alteration or non-distribution of the Services shall be provided on “as-is” basis.

 

6.3  The aggregate liability of Apple Daily E-Classified Limited to Merchant in respect of any claim that arises out of the Agreement shall not exceed the total fee paid by the Merchant under the Agreement. To the fullest extent permitted by law, Apple Daily E-Classified Limited will not be liable to Merchant for any consequential or indirect loss, including but not limited to loss of profit, loss or corruption of data, loss of goodwill or loss of business.

 

  1. Indemnification

 

7.1  Merchant shall defend Apple Daily E-Classified Limited against any claim, demand, suit or proceeding made or brought against Apple Daily E-Classified Limited by a third party alleging that Merchant’s uploaded image/content or its use of the Service is in breach of this Agreement, infringes such third party’s intellectual property rights or violates any applicable law and will indemnify Apple Daily E-Classified Limited from any damages, attorney fees and costs incurred or awarded against Apple Daily E-Classified Limited.

 

7.2  If the Merchant breaches the contract, the Merchant shall pay to Apple Daily E-Classified Limited forthwith on demand legal costs on a full indemnity basis and all other reasonable costs and expense reasonably incurred by Apple Daily E-Classified Limited for enforcement against the Agreement.

 

  1. Intellectual Property rights

 

8.1  Apple Daily E-Classified Limited retains all right, title and interest in and to the Services including all intellectual property rights therein.  Merchant acknowledges that “Beacon” is the property of Apple Daily E-Classified Limited and Merchant is a subscriber of the Services. All intellectual property rights subsisting in “Beacon” or with respect to the Services are expressly reserved to Apple Daily E-Classified Limited.  The Services provided by Apple Daily E-Classified Limited to Merchant does not grant any Intellectual Property Rights, owned by either the  Apple Daily E-Classified Limited or by third parties, to the Merchant.

 

8.2  Upon Subscription, Merchant grants to Apple Daily E-Classified Limited a non-exclusive license and right to display, distribute and transmit the Merchant’s name, logo and any trademarks and any photographs, graphics, artwork, text and other content provided or specified by the Merchant in connection with the Services.

 

  1. Miscellaneous

 

9.1  Force Majeure:  Apple Daily E-Classified Limited shall not be liable to Merchant for any delay or failure in performance caused by acts beyond Apple Daily E-Classified Limited’s reasonable control, including acts of God, sabotage, accidents, fires, floods severe weather conditions, insurrection, labor disputes, mechanical breakdowns, shortages or delays in obtaining suitable parts or equipment, material, labor or transportation, acts of subcontractors, interruption of utility services, acts of any unit of government or government agency.

 

9.2  Confidentiality: Both parties agree and acknowledge a duty during the term not to disclose without the other’s prior written permission any confidential information either concerning the other’s business, business plans, customers or associated companies or resulting from studies or surveys commissioned under this Agreement.

 

9.3  No Assignment: The rights and obligations of Merchant under the Agreement may not be assigned or transferred without the express written consent of Apple Daily E-Classified Limited.

 

9.4  Entire Agreement: The Agreement together with these Terms and Conditions constitute the entire agreement between the parties relating to the subject matter herein, and supersedes all preceding oral or written agreements.  No amendment or modification shall be binding unless it is reduced to writing and is signed by both of the parties.

 

9.5  No Waiver: The failure of either party at any time to require performance by the other party of any provision hereof shall in no way affect the right of such party to enforce the such provision, nor shall any waiver by either party of any breach of any provision herein be constituted as a waiver of any succeeding breach or the provision itself.

 

9.6  Notice: All notices under this Agreement will be deemed given when delivered to the Billing Address set forth at the front-page of the Agreement.

 

9.7  Governing Law and Jurisdiction: This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region and the parties irrevocably submit to the exclusive jurisdiction of the Courts of the Hong Kong Special Administrative Region.