Terms of Service - Advertiser

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Last updated: July 5, 2018

These Terms of Service ("Terms") explains your rights and obligations as an Advertiser, defines and regulates the contractual relationship between Tribal Living and the Advertiser referenced on the corresponding Tribal Beacon Advertising Placement Form ("Placement Form”). These Terms shall be deemed incorporated by reference into any corresponding Placement Form submitted by Advertiser and constitute a legally binding agreement between the Advertiser and Tribal Living. The Terms and the Placement Form shall be collectively referred to herein as the "Agreement." We suggest that you access and become familiar with these Terms. We may, in our sole discretion, change these Terms at any time by updating this web page. You are bound by all such modifications, and it is your responsibility to review these Terms on a regular basis. Please read

Definitions

Advertiser: The business identified on the Placement Form and signed by the Advertiser’s authorised representative (“You” and/or “Advertiser”).

Tribal Living: Tribal-Living (HK) Limited, a company with its registered office situated at Unit 205B, 2/F, Block B, Sea View Estate, 4-6 Watson Road, North Point, Hong Kong. Advertiser and Tribal Living may hereafter be collectively referred as the “Parties”.

Duration: This Agreement shall continue in force until all of the beacon advertisement transmissions (the “Transmissions”) specified in Section 2 of the Placement Form have been transmitted and shall then expire unless renewed.

Fee: The advertising fee referenced in Section 3 of the Placement Form and paid by the Advertiser for the agreed number of Transmissions.

Locations: The Deployment Location(s) referred to in the Placement Form.

PREAMBLE

Tribal Living enjoys beacon deployment privileges with a variety of commercial venues throughout Hong Kong that attract thousands of customers and passers-by every day. Advertiser wishes to promote opportunities or other content (the “Content”) to potential consumers. In exchange for the Fee, Tribal Living enables Advertisers to reach these consumers with its beacon technology sending out the Content via Transmissions sent to consumers’ mobile devices.

Application

Your Placement Form is a binding offer to Tribal Living in respect of engaging Tribal Living to provide the Services. Tribal Living's acceptance of your Application shall occur, and the Agreement shall form only once Tribal Living approves the Placement Form.

Scope of these Terms

The provision of wireless transmission of beacon advertising the Advertiser’s agreed Content (collectively, the “Services”) and payment of the Fee are governed solely by the Agreement.

Terms of Payment

All Fees must be paid in advance, on a prepaid basis, prior to Services being delivered. 

Right to Reject Content

All Content is subject to Tribal Living's approval. Tribal Living reserves the right to reject any Content or Placement Form at any time, with or without prior notice or explanation, and without liability. Notwithstanding the foregoing, Tribal Living will not cancel placement of Content due to inventory demand from other advertisers. Advertiser remains ultimately responsible for the completeness of its Placement Form and appropriateness of its Content. 

Targeting and Optimization

Advertising shall be targeted at consumers based on proximity to the Locations. In the absence of other instructions from Advertiser, Content will be shown on a consumer’s device whenever the user approaches. Advertiser may in good faith optimize its campaign by increasing the number of Locations specified in the Placement Form to increase the number of Transmissions sent, but in no event may the Advertiser reduce the number of Locations or Transmissions without express consent from Tribal Living. 

Reporting and Statistics

Tribal Living will provide Advertiser basic statistics of daily Transmissions and an anonymised list of all consumer mobile devices that received Transmissions is available upon request.  Tribal Living makes no warranties or representations regarding who will receive the Transmissions or the rate at which Transmissions can be sent in any particular Location. Tribal Living’s record of Transmissions shall be definitive as to its performance of the Service. 

No Assignment or Resale of Transmission Rights

Advertiser may not resell, assign, or transfer any of its rights hereunder. Any attempt by Advertiser to resell, assign, or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to Tribal Living. 

Limitation of Liability

In no event shall Tribal Living be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of Advertiser or third parties (if any). In no event shall Tribal Living be liable under this Agreement for any consequential, special, indirect, exemplary, punitive, or other damages, including but not limited to, damages for loss of data, lost profits, loss of business, or procurement of substitute goods or services, whether based in contract, tort (including negligence) or otherwise, even if Tribal Living has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. Tribal Living's aggregate liability under this Agreement for any claim is limited to the amount received by Tribal Living from advertiser for the insertion order giving rise to the claim. Without limiting the foregoing, Tribal Living shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, terrorism, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown, Internet failures or communications lines failures or any other condition affecting production or delivery of the Content in any manner beyond the control of Tribal Living. Advertiser acknowledges that Tribal Living has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties. This limitation of liability shall survive any termination of this Agreement.

Advertiser's Representations; Indemnification

Advertiser represents and warrants to Tribal Living and third parties (if any), that: (a) Advertiser holds all necessary licenses, rights, consents, permissions and releases for your Content and to grant the licenses and rights set out in this Agreement. You are also responsible for any fees, royalties or other monies owing by reason of any Content you provide; and (b) the use, reproduction, distribution, transmission or display of the Content and/or any material to which users can link, or any products or services made available to users, through the Content:  (i) is not fraudulent, false, misleading or deceptive; (ii) will not or infringe the intellectual property rights of others;  (iii) is not deemed harassing, threatening, indecent, obscene, pornographic, libellous, defamatory or otherwise objectionable, unlawful or tortious, harmful to children, or which violates third party privacy rights, as determined by Tribal Living in its sole discretion; (iv) does not contain software viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) does not contain any material that encourages conduct that constitutes a criminal offense; or (vi) will not otherwise violate any criminal laws or give rise to civil liability, or otherwise violate any applicable law any rights of any third parties.  Advertiser agrees to defend Tribal Living and third parties (if any) from and against any third party claim (including damage awards, settlement amounts, and reasonable legal fees and expenses incurred by Tribal Living in such defence), arising out of or related to: (1) breach of any of the foregoing representations and warranties, (2) any third party claim arising from the Content or any material to which consumers can link, or any products or services made available to consumers, through the Content under this Agreement. This provision shall survive any termination of this Agreement. 

Grant

By submitting the Placement Form, Advertiser grants Tribal Living an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, transferable, sublicensable right and license to use, modify (for formatting and display purposes), publicly perform, publicly display, reproduce and distribute such Content via the Transmissions.  

Renewal

Except as expressly set forth in the Placement Form, any renewal of the Duration and acceptance of any additional insertion orders shall be at Tribal Living's sole discretion. Pricing for any renewal period is subject to change by Tribal Living in its sole discretion. 

Right to Terminate; Non-cancellation

Tribal Living has the right to terminate any Placement Form (and this Agreement), with or without cause, at any time. 

Termination

Upon the expiration or termination of the Agreement, Tribal Living shall cease to provide the Services but Advertiser shall remain liable for all amounts due under a Placement Form for Content already transmitted by Tribal Living and such obligation to pay shall survive any termination of this Agreement. 

Warranty Disclaimer

Tribal Living makes no warranty, express or implied, with respect to any matter, including without limitation the Services, and expressly disclaims the warranties or conditions of noninfringement, merchantability and fitness for any particular purpose, performance, accuracy, reliability, and non‐infringement. Tribal Living does not warrant that the delivery of Services hereunder will be error-free, uninterrupted or continuous or that the Advertiser’s beacon Content will generate business or meet any other expectations. This disclaimer shall survive any termination of this Agreement.

Notices

In any case where a notice or another form of communication with Tribal Living is to be given or made pursuant to any provision of this Agreement, such notice or communication shall be sent to its address at: 

Unit 205B, 2/F, Block B, 

Sea View Estate, 

4-6 Watson Road, 

North Point, Hong Kong

Effective Date

These Terms will become effective on the date stipulated on the Placement Form or when Tribal Living accepts the Placement Form. These Terms and the contract that they establish may be terminated by either Party with cause, i.e., if the other Party is in breach of the terms and conditions hereof or any applicable law and fails to remedy the same within 30 (thirty) days of receipt of a written notice to that effect from the Party not in breach. 

Responsibilities

If any of these Terms is deemed invalid, void, or for any reason unenforceable, that condition will be deemed severable and will not affect the validity and enforceability of any remaining condition.

If you breach these Terms and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these Terms.

You agree that these Terms do not intend to confer and do not confer any rights or remedies upon any person other than the Parties identified herein.

Waiver

Either Party’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of any such rights.

Severability

If any provision contained in these Terms is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of these Terms and this Agreement will remain in full force and effect.

Entire Agreement

These Terms and all comments, exclusions and inclusions on the Placement Form constitute the entire agreement between the Parties as to the matters set forth herein and supersedes any such prior agreement or communication. Any subsequent waiver or modification of this Agreement, or any part of it, shall only be effective if reduced to writing and signed and dated by both Parties.

Priority

These Terms supersede any and all conflicting terms in a Placement Form unless: (a) the terms relate to scheduling of Transmissions or pricing amounts; or (b) in a situation where a provision of these Terms expressly allows for control by the Placement Form. 

Governing Law

This Agreement is governed by or shall be construed in accordance with the laws of Hong Kong and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts.