- These terms of service (“Terms“) set out the terms and conditions which apply to the ringback tone replacement advertising services (the “Services“) which the Advoice Company (as detailed on the Booking Form) ( hereinafter referred to as “AdVoice“, “we” or “us” which expression shall mean and include unless repugnant to the context, its successors and permitted assigns), will provide to you (the Customer detailed on the Booking Form) (hereinafter referred to as the “Customer” or “you“) pursuant to and subject to these Terms and your advertisement campaign booking order (the “Booking Form“) submitted on this website (the “Website/Platform“).
- These Terms together with the particulars set out in your Booking Form constitute the contract between us in relation to the Services.
- Your contract is a contract with Advoice which is solely responsible for the provision of the Services and is represented by its authorised legal representatives.
- By accepting Terms and submitting the Booking Form, you confirm that you accept and agree to be bound by these terms and acknowledge that they constitute a legally binding contract between us and you (and, if relevant, any organisation on whose behalf you are acting). if you are acting on behalf of any organisation, you confirm that you have the requisite authority, power and right to fully bind that organisation. If you (or, if relevant, your organisation) do not agree/decline to all of these terms (or if you do not have the right to bind your organisation), you are not permitted to access or avail the services.
- In these Terms, unless the context otherwise requires, all further references to you (and your, etc) means both you as an individual user and also the organisation on whose behalf you are acting (if any).
- We reserve the right to change these Terms and the Booking Form from time to time by changing them on the Website. You should review these Terms regularly throughout the term that you avail the Services. Changes to the Terms will be effective immediately.
- “Effective Date” shall mean the date of execution/acceptance of these Terms and Conditions.
2. Appointment and Authorisation
- You hereby appoint and grant us and our affiliates, the rights, licenses, and authorisations in the content (ringback tone replacement advertising format (the “Advertisement/Content”)) necessary or desirable for us to upload your audio files in respect of the advertisements on to the platforms of mobile network operators and to serve the Advertisement as the ringback tone played to callers to subscribers to the AdVoice service within the parameters of the campaigns set out in your Booking Form including, without limitation, the non-exclusive, royalty-free, worldwide rights and license to use the Advertisements and excerpts within the ringback tone space, to play, transmit, copy, store on its servers, reproduce, modify, and create derivatives of the Advertisements in whole or in part to deliver the Services.
- These rights and licenses are for all copyrights and other intellectual property rights in and to the Advertisement including, without limitation, any musical compositions and recordings and any and all renewals and/or extensions thereof that you may now or hereafter own or control and provided to us without any obligations such as, but not limited to, return, destruction, storage etc.
- You represent and warrant that:
- you are the sole owner of the copyright and/or any other intellectual property rights to the Advertisements, or that you otherwise have the full legal right and authority to grant the rights, licenses, and authorisations granted in this agreement;
- you are authorised to act on behalf of, and have bound to these Terms, third parties, if any, for which you are placing Advertisements. If for any reason Customer has not bound such a third party to these Terms, Customer will be liable for performing any obligation that the third party would have if it had been bound to these Terms; and
- you are contracting with us as principal notwithstanding that you may be acting directly or indirectly for the advertiser of the product or service which is the subject of the Advertisement uploaded with the Booking Form.
- You also authorise us to reformat and make any adjustment to any Advertisement which we deem necessary for us to provide the Service in our sole discretion.
- You shall retain ownership of any intellectual property rights that you hold in the Advertisements.
- You acknowledge that all advertisement orders as set out in the Booking Form are subject to our acceptance and that we may decline to accept any such order at our sole and absolute discretion in which case the agreement between you and us will terminate without us incurring any liability to you.
- We will notify you within 24 hours whether or not we have accepted the order set out in your Booking Form.
- In the event that we reject your order, we will refund any monies paid as an advance to us for the order through the appropriate banking mode as mutually agreed.
- In the event that we do accept your order we will:
- use our reasonable endeavours to procure the upload of your Advertisements on to the platforms of the relevant mobile network operators and the service of the Advertisement as the ringback tone played to callers to subscribers to the AdVoice service within the parameters of the campaigns set out in your Booking Form;
- notify you of the delivery and serving of the Advertisements in accordance with the tracking and reporting requirements set out in the Booking Form; and
- provide the Services with reasonable skill and care.
- You warrant, represent and undertake that:
- the Advertisements have been authorised by the entity described in the Advertisement.
- the person/officer accepting these Terms and Conditions is your authorised representative (with confirmation of same).
- that you hold all of the rights in the Advertisements necessary for the purposes of this agreement;
- the Advertisements are not illegal, defamatory, infringes or breaches any other party’s rights or infringes any applicable laws or regulations;
- the Advertisements conform to all applicable laws, including without limitation consumer protection laws;
- the Advertisements do not advertise substances, services, products or materials which contravene applicable laws and regulations in any country in which the Advertisements are played or otherwise made available;
- the Advertisements do not contain offensive or inappropriate language;
- you will not engage in any other illegal or fraudulent business practice under the laws of any state or country where the Advertisement is made available;
- all information and authorisations provided by you are complete, true & correct and current; and
- the playing of the Advertisements will not: (i) violate, breach or encourage violation of any law or applicable regulation or code of practice and any equivalent advertising standards code of practice in any applicable jurisdiction; or (ii) infringe or breach any intellectual property rights of any third party and/or contain any material which may be harmful, abusive, obscene, threatening or defamatory.
- You shall not submit any Advertisements that contains or promotes anything which may be: (a) morally questionable, (b) illegal, (c) racist, (d) politically or religiously provocative, (e) promoting violence or hatred against any group on the basis of race, ethnicity, religion, political association, disability, age, sexual orientation or otherwise (f) containing malware or any virus, (g) fraudulent (h) not in line with any regulations set out in this regard, (i) adult, suitable only for users over the age of 18, (j) infringing any intellectual property rights of any third party; (k) promoting alcoholic beverages or tobacco related products in jurisdictions where the same is disallowed, or banned / illegal drugs or other controlled substances, explosives or hazardous materials, combustibles, corrosives, gambling transactions or any product or service which is not in compliance with all laws and regulations.
4. Charges and Payments
- Our charges are based on our rate card as published on the Website or as mutually agreed between Advoice and You.
- You accept to pay all charges at the time of making your booking by using one of the following payment methods:
(a) credit card payment through our designated payment gateway platform.
direct deposit, wire transfer or such other banking mode as provided in the Booking form or mutually agreed.
- You may add additional funds in the Account (if you are pre pay Customer) or budget (if you are a post-pay Customer) to restart or extend the run of a campaign. If your funds or budget are insufficient, the campaign will cease to run with immediate effect.
- Our rates are exclusive of taxes, and you shall be liable to pay all related taxes, other government charges and transaction charges if any. In case of an advance payments, funds will be adjusted to the extent of applicable taxes and charges.
- Customer must pay all charges in full.
- Subject to clause 2.8 above, we will not issue refunds for any reason. If you cancel a campaign before all of your funds placed on that Account have been exhausted, you will not be refunded the unused funds and will be at our sole discretion. Please refer to our Campaign Cancellation Policy at Clause 6 for details. You may not transfer funds from one Account to another for any reason. You may not offset or transfer any payment due against any other payment due to us.
5. Credit Policy for Post-Pay Customers
- AdVoice may, in its sole discretion offer, extend, revise or revoke credit at any time. AdVoice is not obligated to deliver any Services in excess of any agreed credit limit.
- Unless otherwise agreed to in writing by the parties hereto, if an Advertiser is approved for credit, payment is due within thirty (30) days from the invoice date. Invoice will be raised to you every month during which Service is delivered. Payments not received within thirty (30) days from the invoice date or by any other applicable payment deadline set forth herein may incur interest at the rate of 1.5% per month on the amount due and outstanding. In the event that AdVoice pursues collection of past due amounts, Customer shall bear all costs involved in such collection that are incurred by Us. In the event AdVoice does not receive payment within forty-five (45) days from the invoice date, AdVoice may elect to refuse new advertising schedules for Advertiser, and may cancel Advertiser’s existing advertising schedules.
- AdVoice reserves the right to cancel existing advertising schedules at any time upon written notice to the Advertiser or Agency in the event Advertiser: (i) is adjudicated to have engaged in fraudulent, criminal or grossly negligent conduct; (ii) ceases to do business, or otherwise terminates its business operations; (iii) becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other Party and such proceeding is not dismissed within ninety (90) days; or (iv) breaches any terms as agreed.
6. Cancellation And Termination
- Insufficient Account Balance
- For optimal and uninterrupted Campaign performance, you should have sufficient Account Balance covering at least the next seven (7) days of booked Campaigns.
- If the Account Balance is zero, Campaigns will be paused immediately.
- Unless resumed, Paused Campaigns will be cancelled, and their non-utilized inventory will be released, after five (5) days (including non-working days).
- New Campaigns that are to be run within the next seven (7) days cannot be booked when this causes insufficient Account Balance to cover the next seven (7) days of booked Campaigns.
- Due to the impact to its business, AdVoice reserves the right to demand Postpaid clients whose Campaigns are frequently cancelled to have sufficient Account Balance to cover the next 7 days of booked Campaigns and/or to have sufficient Account Balance to cover any or part of existing and new Campaigns. Campaigns of clients not complying with such demand may be paused within 5 days after such written request.
- In its sole discretion, and due to the impact to its business, AdVoice reserves the right to withdraw or reduce Credit Limits of clients whose Campaigns are frequently cancelled.
- This Agreement shall come into force on the effective date and remain in force until terminated under these provisions or under clause 7.2. You may cancel, pause, edit or terminate the Campaign at any time, subject to any penalties set out in the Campaign Cancellation Policy available at Clause 6.
- We may suspend or terminate the agreement between us at any time, for any reason, and in our sole discretion.
- You will defend, indemnify and hold harmless us, our officers, employees, agents and affiliates from any and all fees, penalties, liabilities, damages, claims, demands, losses, suits, injury to persons or property, judgments and associated costs and expenses of whatever kind including claims directly or indirectly related to the Services, the Advertisements, your breach of these Terms or any claims for intellectual property infringement in relation to the Advertisement. The obligations contained in this section shall survive the termination of these Terms.
- We will use reasonable skill and care in the provision of the Services. No other conditions, warranties or other terms apply to the Services. To the fullest extent permitted by law, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description). We do not make any guarantee in connection with the Advertisements or the results thereof.
- Our liability for loss or damages arising in relation to the Services, as a result of breach of contract, tort (including negligence) or otherwise, to each of you is limited to the amount of the fees paid by you under this contract to the extent campaign delivered.
- We shall not be liable (whether in contract, tort, including, without limitation, negligence or otherwise) under or in connection with these Terms for any:
- loss of profit;
- loss of anticipated savings;
- loss of business opportunity;
- loss or damage resulting from third party claims; or
- indirect or consequential losses.
- However, nothing in this contract shall limit or exclude any liability on us for death, personal injury or any claim or action arising from our fraud or dishonesty.
10. Intellectual Property Rights (IPR)
- You will retain all right, title and interest in and to its licensees, copyright and other intellectual property rights relating to the Content. AdVoice will retain all right, title and interest in the Service and to its IPR provided. Such IPR is not created or generated for you and/or by using your IPR. You shall not acquire any ownership interest or license in any of the Advoice products or services by reason of the present Agreement.
- You agree that other than to that extent agreed herein, You have and will have no right to use or to allow others to use the Advoice IPR or any part of it. You shall not seek to register any IPR on behalf of Advoice, or using Advoice’s name or trademark name, without Advoice express written consent.
- You will not use any trade mark or trade names or get-up which resemble the Advoice trademarks or trade names or get-up and which would therefore be likely to confuse or to mislead the public or any section of the public and You agree not do or omit to do, or authorize any third party to do or to omit to do, anything which could invalidate or be inconsistent with our IPR.
- Upon termination of these Terms, You shall forthwith cease to use all trademarks/logos belonging to Advoice, whether in relation to the Services or otherwise as were permitted to be used for the purpose of this Agreement.
- You undertake that you will not copy or reproduce any of Advoice’s material or Services and will not develop a product or service that is same as or similar to the Service.
- Customer grants to AdVoice, during the Term, a non-exclusive, non-sub-licensable, royalty-free, world-wide licence to use, reproduce and display Customer’s logo and branding in the form provided by the Customer solely for the purposes of marketing the Ads, which means the Logo’s can be used for the purpose of Presentations, Reports, Case studies, brochures and mailers only. Upon the expiration or termination of this Agreement, each Party will cease using the IPR of the other.
- In this Agreement, “Intellectual Property Rights (IPR)” means patents, trademarks, service marks, registered designs copyrights (including copyright in computer programs) and rights of a similar or corresponding character (whether or not the same are registered or capable of registration) and all applications for, or for the protection of, any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world and all IPR owned and/or used by a party to this Agreement.
11. Force Majeure
- We shall not be liable to you in any way for failure to perform our respective obligations under these Terms if the failure is due to causes outside our reasonable control of the party which has failed to perform.
- You agree not to disclose Confidential Information received by you or coming to your knowledge as a result of acceptance of the terms, without prior written consent except as provided herein. “Confidential Information” includes (i) submissions or modifications relating to any advertising campaign, (ii) rates or other statistics, (iii) all commercial information about campaigns, (iv) any technical information, (v) any information about Advoice or its affiliates (vi) any other information designated in writing as “Confidential” or reasonably expected to be confidential or proprietary in nature, (vii) submissions or modifications relating to any software applications (viii) information that is confidential and proprietary to a party or a third- party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential. It does not include information that has become publicly known through no breach by a party, or has been (i) independently developed without access to the other party’s Confidential Information; (ii) rightfully received from a third party; or (iii) required to be disclosed by law or by a governmental authority.
- You will be responsible for a breach of these Terms by any of your representatives. You shall promptly notify Advoice of discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with Advoice in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use.
13. Advoice Warranties
- AdVoice expressly disclaims all representations and warranties of any kind, whether express or implied, including but not limited to any implied warranties of quality, fitness for a particular purpose. AdVoice makes no representation or warranty about the quality, suitability, reliability, availability, merchantability, delivery, lack of viruses or other harmful components or accuracy of information relating to the Services sought to be purchased by you.
- AdVoice does not make any warranty that the Services it provides under this Agreement will meet your requirements or that they will be uninterrupted, timely, secure or error free. Advoice does not make any warranty as to the results or consequences of your use of any Services that AdVoice provides under this Agreement.
- You understand and agree that from time to time the Services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which AdVoice may undertake from time to time; or (iii) causes beyond the control of AdVoice or which are not reasonably foreseeable by AdVoice, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Sites or interfaces, network congestion or other failures. While AdVoice will attempt to provide the Services on a continuous basis, you hereby acknowledge and agree that AdVoice gives no guarantee of the availability of the Services on a continuous or uninterrupted basis. Terms of this Agreement are subject to AdVoice hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.
- You understand that Inventory levels may change depending on market conditions and booking at a certain rate does not guarantee a certain level of Inventory.
- AdVoice makes no guarantee regarding the levels of impressions or clicks that are available to you, nor any guarantee of the length of time it may take to deliver your campaigns. If you have been given such figures before running a campaign you understand that they are offered merely as a guide.
- AdVoice makes no guarantee that any targeting set will work in every case or that the campaigns will start or finish on exactly the times required. AdVoice will not be held responsible for any misplaced Ads or other Content, or targeting which goes amiss. Targeting and timings for campaigns are done on a ‘best effort’ basis.
- You agree to not hold AdVoice responsible for a poor return on investment or conversion rate from your Advertisements and there will be no refunds issued in such a case.
- You agree that all capping and auto top-up of campaigns is on a ‘best effort’ basis. AdVoice will not be held responsible for capping which over runs.
- You acknowledge and agree that Advoice has no special relationship with or fiduciary duty to you and that Advoice has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content a user accesses or receives via the Services; what Content other users may make available, publish or promote in connection with the Services; what effects any Content may have on you or any users or customers; how you or your users or customers may interpret, view or use the Content; what actions you or its users or customers may take as a result of having been exposed to the Content, or whether Content is being played properly in connection with the Services.
- Advoice makes no representations concerning any Content contained in or accessed through the Services, and Advoice will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or Services
- Advoice will not be liable for the privacy of e-mail addresses, phone or communication device numbers, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on its equipment and transmitted over networks or otherwise connected with your use of the Services.
14. Public Relation Release
- You and Advoice shall issue a mutual public relation release to their cooperation and the availability of the Services and Content. Each party may issue its own public relation release, upon its sole discretion, in order to promote the cooperation and the Content; furthermore, each party may use the other Parties names in its publications.
- Any amendment must be agreed to by both parties and expressly state that it is amending these Terms. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.
- You may not assign any part of these Terms without our prior written consent of Advoice or its affiliates. We may assign our rights and obligations to any affiliate.
- You and AdVoice are independent contractors and nothing in this Agreement shall make us a joint -venture, partners, employees, agents or other representatives of the other hereto. You shall not make any representation that suggests otherwise.
- If any provision in these Terms is or becomes invalid, illegal or unenforceable then it shall, to the extent required, be severed and shall be ineffective and the validity of the remaining provisions shall not be affected in any way.
- Except for any indemnity expressed to be given in favour of or any obligation expressed to be owed to any Group Company no term of this agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party.
- This agreement constitutes the entire agreement between the parties about the subject matter of this agreement and supersedes and extinguishes all earlier discussions, understandings and agreements between any of the parties.
- No failure or delay by any party in exercising any right under this agreement shall operate as a waiver of such right nor shall any single or partial exercise of any right preclude the exercise of any other right.
- All notices, including those of termination or breach, must be in writing and addressed to the other party’s legal representative or primary contact via email. Notice will be treated as given on receipt. These notice requirements do not apply to legal service of process which is governed by applicable law.
- These Terms will be governed by and interpreted in accordance with the laws of the Dubai International Finance Center.
- In the event of a dispute arising between the parties in connection with this agreement:
- where the dispute relates to a claim for a sum within the limits specified by the DIFC Small Claims Tribunal from time to time, then the dispute shall be referred by either party to the said Tribunal; and
- for all other disputes, the parties shall seek settlement of that dispute by mediation in accordance with the Mediation Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference to this clause. If the dispute is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the Parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference to this clause. The language to be used in the mediation and in the arbitration shall be English. In any arbitration commenced pursuant to this clause the number of arbitrators shall be one and the arbitration shall be conducted in Dubai.