GENERAL TERMS AND CONDITIONS FOR
DIGITAL ADVERTISEMENTS
1. DEFINITIONS
a)
“Accredited Agency” means any authorized agencies or entities affiliated with the Association of Accredited Advertising Agents Malaysia (4As) or such other client(s) duly authorised in writing by Digital Five in its sole and absolute discretion;
b)
“Advertisement” means the advertisement or promotion of a product or service of a Client on Digital Five Interactive Properties;
c)
“Advertisement Agreement” means the Booking Form and this General Terms and Conditions for Digital Advertisements;
d)
“Advertisement Material” means the booklet, brochures, catalogs, audio tapes, video tapes, compact discs, online material, photos and other material that is provided by the Client to Digital Five for the purpose of the Advertisement;
e)
“Advertising Sales Division” means all authorized personnel employed by Digital Five which shall include but not limited to freelancers within the Advertising Sales Division
f)
“Booking Form” means the form in the format provided by Digital Five to be completed by Client for the booking of an Advertisement ;
g)
“Client” means a person, firm or company making Advertisement bookings either directly or through their appointed advertising agency which shall include Accredited Agency and Non Accredited Agency;
h)
“Digital Five” means Digital Five Sdn Bhd (Company No.488331-D), its successors-in-title and/or permitted assigns;
i)
“Digital Five Interactive Properties” means the interactive properties that belongs to Digital Five and shall include but not limited to advertisements vide web banners, web page branding, hosted campaigns, e-mail blasts and mobile devices or cell phone;
j)
“Finance and Administration Division” means all authorised personnel under the Finance and Administration Division of Digital Five;
k)
“Intellectual Property Rights” means any and all patents, trademarks (registered and unregistered), design rights, copyright, rights to extract or re-utilise data from a database or other database rights, registered designs, applications or renewals for any of the foregoing, know-how, confidential information and any other industrial or commercial property right whatsoever, whether existing now or in the future;
l)
“Mobile Advertisement” means the Advertisement vide mobile devices or cell phone or handheld devices including personal digital assistant;
m)
“Non Accredited Agency” means any agencies or entities not affiliated with the Accredited Advertising Agents Malaysia;
n)
“Online Advertisement” means the Advertisement vide websites or internet;
o)
“Rates” means Digital Five’s rates for the Advertisement as set out in the Rate Card issued by Digital Five, as may be amended from time to time by Digital Five;
p)
“Rate Card” means the document containing standard and complete details of the advertisement rates, details on advertising, credit facilities and sales terms and conditions;
q)
“Technical Requirements” means the requirements as set out in Clause 2.3 and/or such amendments or variations thereto as may be notified by Digital Five to the Client from time to time.
r)
“Working Day” means normal working day (other than Saturday and Sunday or a federal public holiday) where a bank in Kuala Lumpur is open for business.
2. ADVERTISEMENT AND ADVERTISEMENT MATERIAL
2.1 Client must complete the Booking Form to place a booking for the Advertisement. The Booking Form can be sent to Digital Five by fax or email (with the original copy sent by post). A Booking Form shall not be deemed accepted unless confirmed in writing by Digital Five.
Except for Mobile Advertisements which bookings shall be made thirty (30) days prior to the actual date of Advertisement/(s), any online interactive shall be booked by Client not less than fourteen (14) Working Days prior to the actual date of Advertisement.
2.2 The Advertisement and Advertisement Material submitted by the Client shall:-
a) satisfy the Technical Requirements of Digital Five as set out in Clause 2.3 below or any other requirements or guidelines issued by Digital Five from time to time;
b) at all times comply with all relevant laws, by-laws, rules and regulations, advertising code or guidelines issued by any relevant authority and any amendments or revisions thereto;
c) comply with all requirements for payments of royalties or license fees or any other payments in respect of third party rights in connection with the Advertisement or Advertisement Material including the publication of the Advertisement by Digital Five; and
2.3 The Advertisement Material shall comply with the following Technical Requirements:
Online Interactive Advertising Product Specifications
Ad Product |
Image Type |
Max File size |
Width x Height |
Slot |
Location |
Animation Time |
Frame Rate |
Audio |
Category |
Page Tear |
SWF & GIF |
SWF: 40kb |
SWF: 400x400 |
1 |
Main page |
<15 sec |
>18 |
no |
Premium Ad |
Sky High Banner |
1 SWF file |
40kb |
760x300 |
1 |
Main |
<15 sec |
>18 |
no |
Premium Ad |
Site Takeover |
1 SWF |
100kb |
760x450 |
1 |
Before Main |
<8 sec |
>18 |
yes |
Premium Ad |
Site Domination |
3 SWF files |
Side Tower: 20kb |
Side Tower: 160x400 |
1 |
Main |
Side tower: <10 sec |
>18 |
no |
Premium Ad |
Super Banner |
1 SWF |
20kb |
728x90 |
1 |
Main and sub-pages |
<10 sec |
>18 |
no |
Premium Ad |
XP Super Banner |
2 SWF file |
Landing SWF: 20kb Floating SWF: 40kb |
Landing |
1* |
Main and sub-pages |
<15 sec |
>18 |
no |
Premium Ad |
XP |
1 SWF |
Landing SWF : 20kb |
Landing SWF : 150x120 |
1*** |
Main page |
<10 sec |
>18 |
no |
Standard Ad |
Rectangle |
1 SWF |
40kb |
300x250 |
1 |
Main page & sub pages |
< 10 sec |
> 18 fps |
no |
Standard |
XP Rectangle Banner |
2 SWF file |
Landing SWF: 20kb Floating SWF: 40kb |
Landing |
1** |
Main and sub-pages |
<15 sec |
>18 |
no |
Standard Ad |
I-Billboard |
1 SWF |
20kb |
150x120 |
6 |
Main and sub-pages |
<15 sec |
>18 |
no |
Standard Ad |
XP I-Billboard |
2 SWF |
Landing SWF : 15kb |
Landing SWF : 150x120 |
6*** |
Main and sub-pages |
<10 sec |
>18 |
no |
Standard Ad |
* Share ad slot with Super banner
** Share ad slot with Rectangle banner
*** Share ad slot with I-Billboard
3. ACCEPTANCE OF ADVERTISEMENT MATERIAL
a) The Client shall ensure that the Advertisement Material for an Advertisement is to be delivered to Digital Five not less than fourteen (14) Working Days for Mobile Advertisement and seven (7) Working Days for Online Interactive prior to the actual date of the Advertisement.
b) Delivery of the Advertisement Material shall be deemed to have been made only upon notification of acceptance by Digital Five.
c) In the event Digital Five finds that any of the Advertisement Material is unsuitable, it shall notify the Client in writing and the Client shall thereafter submit an alternative Advertisement Material as soon as possible and in any case not later than seven (7) Working Days for mobile advertisement and three (3) Working Days for online interactive prior to the actual date of Advertisement.
d) In the event of non-compliance with any of the requirements in Clause 2 and Clause 3 herein by the Client; :-
i) Digital Five shall not be held liable for any error and/or omission in the Advertisement and/or for any accidental misuse of the Advertisement Material; and
ii) Digital Five may in its sole and absolute discretion cancel any bookings and impose a surcharge in accordance with Clause 7 below.
e) The provisions of Clauses2 and 3 above shall be without prejudice to any special arrangements agreed between Digital Five and its Clients.
4. BOOKINGS
a) Digital Five shall endeavour to advertise on the dates and space as booked and confirmed by Client however Digital Five does not warrant and shall not be held responsible in the event Digital Five shall be unable to advertise on the agreed date/(s) and/or booked space in the Digital Five Interactive Properties.
Advertisement dates once booked and confirmed shall not be postponed or changed, without prior written consent from Digital Five and Digital Five shall be entitled to collect an upfront payment amounting to 50% of the Rates as security for the Advertisement and space booked for any changes or postponement of date.
b) Further, Digital Five does not warrant the accuracy or correctness of any Advertisement or the quality of the materials.
c) Digital Five reserves the right in its sole and absolute discretion to:-
i) decline any Advertisement without providing any reasons whatsoever however in such an event the Client shall not be liable to pay for such Advertisement. In addition, Digital Five shall have the sole and absolute discretion to utilize any advance payment made by Client towards payment of any or all subsequent bookings made by such Client;
ii) edit the Advertisement Material or any part thereof which in the opinion of Digital Five contains unsuitable material and/or change the position of an Advertisement, however, the Client shall remain liable to Digital Five for the charges payable for the Advertisement; or
iii) refuse to publish any Advertisement Material containing references to more than one product and unless a suitable alternative is submitted in accordance with Clauses 3(c);
and Digital Five shall not be liable to the Client or otherwise for any reason whatsoever.
d) Client shall remain liable to Digital Five for the said Advertisement in the event of occurrence of Clause 4(c)(ii) above.
e) Client shall notify the Digital Sales Division of any error in any Advertisement(s) and/or any addition within forty-eight (48) hours from the time such Advertisement is advertised, failing which the Advertisement shall be deemed accurate and Digital Five shall not be held responsible and/or liable.
f) In the event Digital Five accepts an error in its Advertisement, Digital Five’s liability shall be strictly limited to a reduction in the charge for the Advertisement which shall be mutually agreed between the parties. In any event, the Client agrees that the maximum liability of Digital Five in such cases shall be strictly limited to the full rate payable for the Advertisement.
5. FORCE MAJEURE
a) Notwithstanding any other terms and conditions herein, Digital Five shall not be deemed to be in breach and/or otherwise liable to the Client for any delay and/or failure in publishing any Advertisement caused by circumstances beyond its reasonable control such as, but not limited to war, server failure, civil disturbance, order of a government ministry or department or public authority, fire, flood, rain outage, natural catastrophe, royal demise, labour dispute, lock-out, withdrawal of services or supplies or other services or transport (public or otherwise) or act of God or break-down in equipment or other inevitable accident.
b) Upon the happening of any of the events above the obligations of Digital Five and any period of time then running shall be suspended for the period of the event plus such time as may be required to resume normality.
6. RATES
a) The Rates payable by the Client to Digital Five for the publication of an Advertisement shall be as set out in the Rate Card unless otherwise agreed between Digital Five and the Client.
b) Digital Five reserves the right to vary the Rates upon giving a thirty (30) days written notice to the Client.
c) In the occurrence of the event mentioned in Clause 6(b) above, the Client shall have an option to cancel any bookings affected by the change within seven (7) days from the date of the written notice.
d) The new rates shall only be effective for Advertisements published after the end of Digital Five’s notice period.
7. CANCELLATIONS
- Without prejudice to any antecedent rights of Digital Five, the Client may cancel confirmed bookings upon giving written notice to Digital Five and subject to the payment of the following surcharges :-
No of days |
Surcharge % of |
i) notification less than 14 days of the actual date of Advertisement |
100% |
ii) notification between 15-30 days from the actual date of Advertisement |
50% |
ii) notifications more than 30 days from the actual date of Advertisement |
10% |
b) Any written notice of cancellation shall take effect only upon actual receipt of the notice by Digital Five.
8. PAYMENT AND REBATES
a) Save for Clause 8 (b) below, Clients shall ensure that all payments for the Advertisement together with any applicable taxes are paid to Digital Five not later than seven (7) Working Days before the actual date of Advertisement. In the event of default of payment, Digital Five shall be entitled to decline the Advertisement without prejudice to any other remedies for breach of contract.
b) Digital Five may in its sole and absolute discretion provide credit payment term to Clients and Clients shall ensure that all payments are settled within 60 calendar days from the date of Digital Five’s invoice.
c) Digital Five shall be entitled to impose a late payment interest at the rate of 1.5% per month on a daily rest for any late payment; from the date such payment shall become due and payable. Further, Digital Five reserves its right in its sole and absolute discretion to:-
(i) remove the Accredited Agency from its list of accredited agents; and/or
(ii) reduce or completely revoke any rebates payable to the Accredited Agency or Non Accredited Agency.
d) All payments for the Advertisement shall be made in full and the Client shall have no right to claim any set-off or to make any counterclaim whether in any proceedings brought by Digital Five.
e) Digital Five reserves the right to appoint debt collectors, initiate legal action or take such other action to recover the same from the Client In the event the Client shall default is settling its payment, and the Client shall be liable to bear all costs and legal expenses incurred by Digital Five as a result thereof.
f) Time for payment is of the essence and non-receipt of any invoice shall not release the Client from its obligations to pay Digital Five on the respective due date/(s).
g) Invoice/(s) issued by Digital Five and any statement of accounts signed by an officer authorized by Digital Five shall (save for manifest error) shall be conclusive evidence of the amounts from time to time owing by the Client to Digital Five.
9. WARRANTIES AND INDEMNITIES; LIMITATION OF LIABILITY
The Client warrants and undertakes that:-
a) the Advertisement Material and Advertisement shall comply with the requirements set out in Clause2 above;
b) it has obtained at its own expense the necessary licenses and consents for the use of any copyright material, trademark and/or any other proprietary right of a person or for the appearance of any person in the Advertisement;
c) the Advertisement and the Advertisement Material shall not contain:-
i) false, inaccurate or misleading information about the product or other object of the promotion;
ii) statements derogatory, defamatory or slanderous of any third party or racially inflammatory;
iii) any material which infringe any third party Intellectual Property Rights, in any manner.
d) it shall indemnify and keep Digital Five indemnified against all actions, proceedings, penalties, claims and demands arising in any manner whatsoever (including but not limited to any royalties payable upon each of the Advertisement), in the event of any breach of the above warranties in any manner whatsoever or in consequence of the use or publication, in the form submitted or prescribed, of the Advertisement supplied by or published for the Agent or Client.
10. NO AGENCY RELATIONSHIP
a) Nothing herein shall be construed or taken to constitute a relationship of employer and employee, agents and principal, or to create a trust or partnership between the Parties and no party shall have the authority to act for or to incur any obligation on behalf of the other party or parties except as expressly provided for in this Agreement.
11. TERMINATION
Digital Five may terminate this Agreement at any time upon giving seven (7) days written notice to the Client in the event :-
i) the Client commits any breach of this Advertisement Agreement;
ii) the Client becomes insolvent, has a receiving order in bankruptcy filed or entered against it, compounds with its creditors or fails to satisfy any judgment entered against it within ten (10) days after entry of such judgment.
The termination of this Agreement shall be without prejudice to any other rights and/or remedies of Digital Five.
12. DIGITAL FIVE’S RIGHTS TO RETAIN COPY
The Client hereby grants to Digital Five the right to make a copy of the Advertisement Material and Advertisement for Digital Five’s records.
13. INTERPRETATION
Words and phrases used in this Agreement will, where the context allows, have the meanings ascribed to them in this Agreement. This Agreement contains the entire agreement between the parties to the exclusion of any other written and/or verbal representations and statements.
14. ASSIGNMENT/SUB-CONTRACT/OUTSOURCE
Digital Five reserves the right at any time to assign this Agreement (whether in part or in whole), sub-contract and/or outsource the production services or work under this Agreement to any third party. This Agreement may not be assigned by the Client unless prior written agreement by Digital Five is obtained.
15. WAIVER
Any waiver of any term or condition of this Agreement by Digital Five shall not be deemed to be a waiver of any subsequent breach of such term or condition or any other term or condition of this Agreement.
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Malaysia and the parties hereby submit themselves to the exclusive jurisdiction of the Malaysian Courts.
17. LIMITATION OF LIABILITY
Notwithstanding anything in this Agreement or otherwise to the contrary, Digital Five‘s liability under this Agreement whether arising in contract, tort negligence breach of statutory duty or otherwise shall not exceed the amount paid by the Client under this General Terms and Conditions for Digital Advertisements. Digital Five shall not be liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
18. TAX
Any sum set out in this Agreement or otherwise payable by any party hereto to any other party pursuant to this Agreement shall be deemed to be exclusive of any Goods and Services Tax (‘GST’) or tax of similar nature which is chargeable on the supply (or supplies) for which such sum is (the whole or part of) the consideration for GST purposes.
Where any GST or tax of similar nature is applicable on any goods or services supplied under this Agreement by the relevant Malaysian authorities, the Client shall pay for the appropriate GST under each invoice.
The parties agree to use reasonable efforts to do everything required by the relevant GST law or tax law of similar nature to enable or assist the other party to claim or verify any input tax credit, set off, rebate or refund in respect of any GST or tax of similar nature paid or payable in connection with goods or services supplied under this Agreement.
19. RIGHT TO AMEND/UPDATE
Digital Five reserve the right to vary, amend, change and update the terms and conditions of the Advertisement Agreement from time to time without prior notification.