Last Updated April 2019
These Terms and Conditions (“Terms”) are between Delvify APAC Ltd. or its subsidiaries, affiliates and agents (“Delvify”, “us”, “we”, or “our”) and (“Client”) and apply to the provision of and the use of services and tools on our website and other online services (collectively the “Services”) owned and operated by Delvify. By using the Delvify website (“Website”) and/or Services, you confirm that you agree to become bound by these Terms and that you agree to comply with them. If you do not agree to all the Terms, you may not access the Site or use the Services.
Modifications of Terms
Amendments to these Terms can be made and effected by us from time to time without specific notice to your end. The Terms posted on the Site reflect the latest agreement and you should carefully review the same before you use our Services. Any such changes are binding on you.
Use of the Services
Our Services provide programmatic advertising services, product recommendation and product search tools that use data from our client’s website. You may use our Website and Services for lawful purposes only, but in no event shall you use such:
If you are not able to form legally binding contracts, are under the age of legal consent in the territory from where you access the services, or are temporarily or indefinitely suspended from using our Website, Services, or any tools provided by us;
In addition, you agree:
Your account and password
When you register an account for our Services, you may be asked to provide information about yourself and/or the business you represent. Such information should be true and accurate, and you should ensure it is kept up-to-date.
If you choose to use our Services and register as a user, you may be provided with a user identification code and password. You may also be required to provide further information as part of our security procedures. You must treat any such information as confidential. You must not disclose it to any third party.
We have the right to disable any user identification code or password if, in our reasonable opinion, you have failed to comply with any of the provisions of these Terms.
If you know or suspect that anyone other than you know or has access to your user identification code or password, you must promptly notify us at email@example.com.
Delvify will perform the Services and provide the deliverables (“Deliverables”) described on any Insertion Order (“Insertion Order” or “IO”) and/or order form(s) (“Order Form”) that the parties may enter into from time to time by mutual written agreement.
Client will receive monthly invoices from Delvify. Delvify does not guarantee that any budget set up in the Insertion Order will be reached. Unless specified otherwise in the Insertion Order, the Client shall pay all amounts due, without set-off, within 30 days from the invoice date.
Any account with an invoice overdue by 30 days or more will be charged an additional 10% of the total amount overdue. A further 10% will be charged on the total outstanding amount for each additional 30 days the account is overdue. Any additional amount will become due and payable immediately. This additional fee cannot be waived or otherwise setoff.
All payments are quoted exclusive of any applicable tax which shall be payable at the time and in the manner required by law. Delvify shall be entitled to charge interest and recovery costs on overdue amounts at its own discretion or as otherwise indicated in any Insertion order. Any claim against the invoice may be raised only within two weeks of delivery of such invoice. Unless stated otherwise in the Insertion Order, all invoices shall be payable solely by the Client.
Term and Termination
These Terms will remain in full force and effect while you use our Services. You may terminate your Services with us at any time with 90 days written notice. You may discontinue use of our Services prior to expiration of the 90 days by removing our code from your website and paying a fee equivalent to the sum of the remaining days until such notice period expires multiplied by the daily average of charges to you for the immediately prior three months or since inception of the services, whichever is shorter. We may terminate our Services to you for any reason at any time. Even after your Services is terminated, certain sections of these Terms will remain in effect. We reserve the right at our sole discretion to determine whether there has been a breach of these Terms through your use of our Services. When a breach of these Terms has occurred, we may take such action as we deem appropriate.
Disclaimer of Warranties and Limitation of Liability
THE SERVICES AND WEBSITE ARE PROVIDED BY DELVIFY ON AN “AS IS, AS AVAILABLE” BASIS, DELVIFY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE USE OR THE RESULTS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SERCURITY OR FITNESS FOR A PARTICULAR PURPOSE. DELVIFY MAKES NO GUARANTEES THAT YOUR USE OF THE SITE OR SERVICES WILL INCREASE YOUR SALES OR PRODUCTS OR SERVICES. WE MAY CHANGE, RESTRICT ACCESS TO, SUSPEND OR DISCONTINUE OUR SERVICES OR SITE OR ANY PART OF IT AT ANY TIME. DELVIFY SHALL HAVE NO LIABILITY FOR ANY INTERRUPTIONS IN THE USE OF THE SITE OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DELVIFY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE INFORMATION PROVIDED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; THEREFORE, THE ABOVE-REFERENCED EXCLUSIONS MAY BE INAPPLICABLE TO SOME USERS.
DELVIFY DOES NOT WARRANT THAT ITS SITE OR SERVICES WILL BE UNINTERUPTED OR OPERATE ERROR FREE OR THAT ITS SERVICE, SITE AND SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL GOODS AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTTIONS OR ERRORS. IF THE USER`S USE OF THE SITE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, DELVIFY IS NOT RESPONSIBLE FOR THOSE COSTS. WHEN YOU USE OUR SERVICES OR SITE, YOU UNDERSTAND AND AGREE THAT SUCH USE IS AT YOUR OWN RISK.
DELVIFY SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR DELVIFY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES OR THE INFORMATION CONTAINED IN THE SITE OR THE SERVICES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF DELVIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY BE INAPPLICABLE.
Unless otherwise provided for in these Terms, the parties agree to indemnify and hold each other (and its partners, affiliates, directors, officers and employees) harmless, from and against any claim or demand (including reasonable legal fees) arising from any violation by the other party of these Terms. We reserve the right, but not the obligation, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you at our expense.
Intellectual Property Rights
You hereby acknowledge that Delvify is the owner or licensee of all rights, titles and interests, including but not limited to rights covered by the intellectual property rights (including but not limited to text, graphics, logos, icons, photographs and images, audio clips, digital files, data compilations, tools and software), in and to our Site and Services. All rights not expressly granted under these terms are reserved by Delvify.
You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any of our services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the program or proprietary information related thereto.
You may not use any data mining, robots, web-crawlers or similar data gathering or extraction tools with respect to the Site or Services. You may not modify, reproduce, copy, republish, re-post, transmit, hyperlink, merge, publicly display or distribute any part of the Site or Services for any public or commercial purpose.
You agree not to disclose information you obtain from us. All information submitted to by an end-user customer is proprietary information of Delvify and its licensees. Such customer information is confidential and may not be disclosed. Publishers agree not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner.
Delvify subscriptions, advertising, and retargeting are non-refundable and Delvify is not obligated to provide you a refund at any time. We may, at our discretion, provide credits toward future subscription, advertising, or retargeting charges on a case-by-case basis.
Data Rights and Retailer Privacy
Third party sites and linked content
You consent to receiving electronic communications from us and represent and warrant that the recipient of every electronic communication sent in connection with your use of our Site and Services has agreed to receive such and that you shall not use the Site or Services to send unlawful, unsolicited electronic communications.
These Terms shall be governed by and construed in accordance with the substantive laws of Hong Kong. Any dispute, controversy or difference which may arise between the parties out of, in relation to or in connection with this Agreement is hereby irrevocably submitted to the exclusive jurisdiction of the courts of Hong Kong, to the exclusion of any other courts without giving effect to its conflict of laws and provisions of your actual state or country of residence.
Any dispute arising under this Agreement shall be finally settled on an individual basis in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Hong Kong, in the English language and the arbitral decision may be enforced in any court.
In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and legal fees.