TERMS AND CONDITIONS

The following General Terms and Conditions shall apply to all Publishers for the use of the BidGear Service.

  1. PUBLISHER

    Publisher assigns BidGear as its representative for management and optimization of the Inventory. Publisher expressly grants BidGear rights to open, manage, and negotiate the terms of and accounts with potential and real buyers of the Inventory. Publisher will provide BidGear with the content parameters, upon BidGear's request.

  2. ACCOUNT REQUIREMENTS. Publisher agrees that:
    • The Services may only be used for legal purposes;

    • Publisher is responsible for maintaining the confidentiality of its account information and for any unauthorized use of its account;

    • It will not involve in any activity that impedes or disrupts the Services, or the servers and networks related to the Services.

  3. BIDGEAR SERVICES. Subject to the further terms and conditions hereof, BidGear will provide the following services to Publisher (the "Services"):
    1. Optimization. Subject to the content parameters identified by Publisher, BidGear will use its proprietary algorithm to identify and serve the advertisement that pays the highest price from among the resources available to BidGear to fill each impression in the Inventory.

    2. Existing Accounts. Publisher may elect to have BidGear manage and optimize accounts which were previously created by Publisher with certain buyers ("Pre-Existing Accounts"). Publisher agrees to provide BidGear with reasonably requested assistance in getting access to any and all information deemed necessary by BidGear to manage the Pre-Existing Accounts and keep track of Fees due therefrom.

    3. Relationship with Buyers. BidGear shall make its commercially reasonable best efforts to collect payment from non-Pre-Existing Account buyers. Publisher acknowledges and agrees that BidGear may not sell Inventory to any buyer on the basis of non-payment or otherwise.

PAYMENTS

  1. FEES.

    Publisher agrees that BidGear shall be paid the fees described above (the "Fees"). Within thirty (30) days after the end of each calendar month, BidGear shall pay Publisher the Fees generated from the Inventory Optimization ("Publisher Share"). Publisher acknowledges and agrees that the Publisher Share is not due and payable on any amount until payment is received from the buyer. BidGear shall not be responsible for any payment based on (a) any amounts which result from invalid clicks or impressions, generated by any person, bot, automated program or otherwise, as sensibly determined by BidGear, including but not limited to any clicks or impressions (i) from Publisher's IP addresses or computers, or (ii) solicited by payment of money, wrong representation, or request; (b) or clicks co-mingled with a remarkable number of invalid clicks described in (a) above, or (c) or as a result of any violation of this Agreement.

  2. AUDIT.

    Publisher may, no more than once per year upon no less than ten (10) days' written notice, at its own expense, check BidGear's books related to Publisher at the place where such records are ordinarily maintained. If the audit reveals a discrepancy of more than ten percent (10%) in favor of BidGear during any year, BidGear agrees to correct the discrepancy and return Web Publisher for all costs of the audit. BidGear shall keep all records regarding this Agreement for a period of three (3) years after the termination of this Agreement.

TERMINATION

  1. TERMINATION.

    This Agreement shall start on the Effective Date and end upon thirty (30) days written notice from either party. BidGear may end this Agreement immediately upon Web Publisher's material violation of this Agreement. Once termination, BidGear shall halt provision of the Services right away. BidGear shall pay Publisher the Publisher Share on any amounts received from buyers after termination.

OBLIGATIONS

  1. FORBIDDEN USES.

    It shall be deemed a material breach of this Agreement if Publisher, directly or through a third party:

    • Causes its Inventory to be incorrectly valued through any ways, mechanism, or technology;

    • Creates impressions or clicks on any advertisement through any automated, deceptive, fraudulent or other invalid ways, including but not limited to through repeated manual clicks or the use of robots or other automated query tools;

    • Modifies, filters, or changes any information contained in any advertisement, or removes, obscures or minimizes any advertisement in any way;

    • Frames, minimizes, removes or otherwise prohibits the full and complete display of any page accessed by an end user after clicking on any part of an advertisement;

    • Redirects an end user away from any advertisement;

    • Provides anything other than a direct link from an advertisement to the page indicated by the advertiser;

    • Displays any advertisements on any age that contains any pornography, violence, excessive profanity, or illegal content;

    • Accesses, launches, and/or activates advertisements through or from, or otherwise incorporates advertisements in any software application, page, or other medium other than as expressly allowed hereunder;

    • Crawls, spiders, indexes or in any non-transitory manner, stores or caches information gained from any advertisement;

    • Spreads malware or other malicious or damaging code (even if unintentionally malicious);

    • Creates a new account to use the Services after BidGear has halted this Agreement or Publisher's account;

    • Involves in any action or practice that reflects poorly on BidGear or otherwise disparages or destroys BidGear's reputation or goodwill. The existence of the forementioned termination right shall not preclude BidGear's exercise of any other rights and solutions, at law or in equity that BidGear may have.

  2. INTELLECTUAL PROPERTY.
    1. Software License. During the term of the Agreement, BidGear grants Publisher a non-exclusive, non-sublicensable, limited license to access the BidGear software for the purposes provided under this Agreement. This license shall immediately terminate upon termination of this Agreement.

    2. Content. All information or material accessible as part of, or through, the Services (including but not limited to any and all advertisements posted to an advertising space in the Inventory) (the "Content") is the single responsibility of the person from whom such material originated. All Content may be protected by intellectual property rights which are possessed by the provider of the Content (or by third parties). Publisher agrees that it will not modify, distribute, copy, sell, or create derivative works based on the Content. Publisher acknowledges and agrees that:

      • BidGear and its licensors own all legal, right, title, and interest in and to the Services, the BidGear software, and to the Content created by BidGear and its licensors, including any intellectual property rights which subsist in the Services, including any trademarks and the goodwill associated therewith (whether those rights happen to be registered or not, and wherever in the world those rights might exist) (the "BidGear IP") and that should Publisher ever acquire any right, title, or interest in the BidGear Intellectual Property, Publisher shall assign all such right, title, or interest to BidGear or its licensor upon request;

      • BidGear is at no time responsible for, nor shall have any liability related to, any Content which is not created by BidGear or its licensors.

  3. DISPUTES WITH THIRD PARTIES.

    Publisher acknowledges and agrees that BidGear is merely facilitating the delivery of advertisements to fill the Inventory based on Publisher's content parameters and price considerations. BidGear is in no way responsible for any disputes between Publisher and any buyer or other third party. If there is a dispute between Publisher and any buyer or other third party, Publisher agrees that BidGear is under no obligation to become involved and Publisher releases BidGear, its licensors, officers, employees, agents, representatives, and successors from any claims, demands and damages of every kind and nature, known or unknown, disclosed and undisclosed, arising out of, or in any way related to such dispute.

  4. PUBLISHER REPRESENTATIONS AND WARRANTIES. Publisher represents and warrants that:
    • All information provided to BidGear is true, accurate, correct, and complete;

    • It has the power and authority to enter in this Agreement;

    • Its performance of its obligations hereunder does not breach any agreement with any third party.

  5. CONFIDENTIALITY

    The term Confidential Information means any material revealed to the other party and designated in writing as confidential. Each party agrees that it will not reveal the Confidential Information to any third party and that this Agreement is Confidential Information.

  6. LIMITATION ON LIABILITY;

    DISCLAIMER OF WARRANTIES. SUBJECT TO ITS OBLIGATION TO PAY THE PUBLISHER SHARE, IN NO WAY WILL BIDGEAR HAVE ANY RESPONSIBILITY TO ANY PUBLISHER OR THIRD PARTY. IN NO EVENT WILL BIDGEAR BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, ARISING FROM OR IN ANY WAY RELATED TO, THIS AGREEMENT, EVEN IF BIDGEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BIDGEAR MAKES NO WARRANTIES HEREUNDER, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

  7. SURVIVAL.

    Upon termination of this Agreement, the provisions of paragraphs 6, and 8 through 18 shall survive.

  8. ACKNOWLEDGMENT.

    Publisher acknowledges and agrees that: (1) it has read and understood this Agreement; (2) the terms of this Agreement are equal, reasonable, and not unduly restrained; and (3) Publisher has had the opportunity to confer with legal consultation of its choosing regarding this Agreement prior to implementing same.

  9. NOTICES.

    All notices and other communication hereunder shall be in writing, shall be addressed to the receiving party's email address as listed foregoing or as a party may designate by notice hereunder, and shall be deemed to have been given at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise.

  10. WAIVER.

    Failure by any party at any time to require performance by another party or to claim a violation of any provision of this Agreement will not be construed as a waiver of any right accruing under this Agreement, nor affect any subsequent violation, nor influence on the effectiveness of this Agreement or any part thereof, nor prejudice any party as regards any subsequent action.

  11. GOVERNING LAW; JURISDICTION; VENUE.

    This Agreement shall be governed by Singapore law, without regard to conflicts of laws. Any proceeding arising out of the parties' relationship shall be brought exclusively in the courts of Republic of Singapore.

  12. ATTORNEY’S FEES.

    In terms of any litigation arising out of this Agreement, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorneys' fees, whether incurred during settlement, at trial, in arbitration, on appeal, or in any bankruptcy proceeding.

  13. ASSIGNMENT; BINDING EFFECT.

    This Agreement may be assigned to any buyer of all or considerably all of the assets of either party, if and only if the provisions of this Agreement are binding in full on the successor.

  14. ELECTRONIC SIGNATURE.

    Publisher acknowledges and agrees that the following electronic signature is as valid and binding on Publisher as any handwritten signature.