Terms of Advertisement
This Agreement for Advertising Services (this "Agreement") consists of:
- any order page or insertion order submitted by the advertiser (the "Advertiser") set forth on the applicable Order and accepted by MYP Online Marketing™ (each, an "Order");
- these MYP Online Marketing (MYP) General Terms of the Advertiser ("General Terms");
- the "Legal Notice" located at http://www.themyp.com/legal of which yellow.mu, other myp network sites and third parties sites forms part of
- the advertising network; the "Terms of Service and Use" located at yellow.mu/terms-of-advertisement directly linked to this section of advertisingmauritius.com/terms-of-use; and
- any other terms as provided herein, all as in effect on the date of the Order. The Order, the MYP Services Terms, the Terms of Service and Use and such other terms are expressly incorporated herein by reference. (General Terms, Terms of Service and Use, and MYP Services Terms are collectively referred to as, "Terms & Conditions"). In the event of any conflict between the MYP Services Terms and the General Terms, the MYP Services Terms will prevail with respect to the particular Advertising or Service. In the event of a conflict between the Terms & Conditions and an Order, the Terms & Conditions will prevail. In the event of any other conflict among the Terms & Conditions, the General Terms will prevail. If the Advertiser does not accept the Terms & Conditions, Advertiser must cancel all Orders within the Cancellation Period as described in Section 3 below.
This Agreement is between the Advertiser and the following company (referred to herein as "MYP"):
- where MYP-branded online directories (business and special industry) targeting local and international audience (B2B and B2C),
- MYP Advertising is displayed on own or partner online network,
- and, with respect to mobile-based Services (m.yellow.mu), all of the partners doing business as MYP or in their own name; and
- in all other areas, doing business as MYP or in its own name.
1. Advertising And Services
Ad Materials; Fulfilment Each Order will set forth the advertising or promotional message(s) that Advertiser desires to have placed (the "Advertising") and the services to be performed by MYP, which may include the placement of Advertising (the "Services"). Advertiser is responsible for all artwork, copy, and all other information and materials made available to MYP by or on behalf of the Advertiser or that the Advertiser authorises MYP to utilise (including Advertiser Generated Content, as defined below, "Ad Materials"). Any estimates of performance are provided for informational purposes only, and do not constitute, and shall not be considered, a guarantee of performance or a guarantee of return. MYP reserves the right, on behalf of itself and any of its third-party service providers ("MYP Suppliers"), not to place, publish, and/or distribute any Advertising or Ad Materials for any or no reason, including not meeting MYP's or MYP Suppliers' specifications or standards, and the Advertiser acknowledges and agrees that neither MYP nor MYP Suppliers shall be liable for not placing, publishing or distributing any Advertising. At their sole discretion, MYP and/or MYP Suppliers may, but are not required to, alter the Advertising or Ad Materials in order to meet publication specifications with or without notice or obligation to the Advertiser. The Advertiser waives any right to inspect, review or approve the finished Advertising. MYP may take all actions reasonably necessary for the fulfilment of an Order ("Fulfilment"), including but not limited to provisioning, displaying, publishing, distributing, or otherwise placing Advertising into the stream of public commerce or making Advertising or a Service accessible to/by an end user. MYP reserves the right to begin Fulfilment, without notice to the Advertiser and when MYP determines Advertising is ready for Fulfilment, using a template, placeholder or other substitute chosen by MYP, if MYP determines in its sole discretion that, following an executed Order, Fulfilment of Advertising will be delayed due to the Advertiser's action, inaction or omission. UNLESS OTHERWISE AGREED TO IN WRITING, MYP MAKES NO WARRANTY REGARDING THE APPLICABILITY OF ANY REQUIREMENTS, STANDARDS AND/OR PRACTICES OF A LEGAL, REGULATORY, SELF-REGULATORY, AND/OR ETHICAL NATURE (COLLECTIVELY "REGULATIONS") TO ANY ADVERTISING OR WITH RESPECT TO ANY COMPLIANCE THEREWITH. EACH ADVERTISER IS SOLELY RESPONSIBLE FOR ENSURING ITS OWN COMPLIANCE WITH REGULATIONS APPLICABLE TO IT AND/OR ITS ADVERTISING.
Only MYP's performance of Services under an Order will constitute MYP's acceptance of the Order. The term of this Agreement commences upon MYP's acceptance of the first Order hereunder and will continue for an initial period as set forth in the Order (Minimum 30,000 exposure over 1 month). The term of this Agreement will automatically renew, unless terminated as set forth in this Agreement, for a like term under the then-current Terms and Conditions. If no deadline for cancelling the renewal of an Order is set forth therein, the Advertiser will be responsible for obtaining the deadline for cancelling the renewal of such Order by contacting MYP's online Customer Service Centre specified therein. MYP may provide a special banner test campaign, payable or not, of less that the Minimum 30,000 exposure. In such case the Advertiser have no rights or control of the placement, the timeline of exposure, or any other claim whatsoever.
3. Cancellation Of Orders
The Advertiser may cancel this Agreement only by written notice within ten days of execution (First Order is mandatory when paid and accepted by MYP), or authorisation of this Agreement (the "Cancellation Period"), with such notice signed by an authorised representative of Advertiser, sent during the Cancellation Period by Certified Mail, or by email or fax with all notice required, return receipt requested, to "MYP, ATTN: Cancellation Advertisement Agreement," to MYP's address on the applicable Order. After the Cancellation Period, if Advertiser requests cancellation and such cancellation is reasonably practicable to MYP, then the unpaid balance for the remainder of the term for the applicable Advertising and/or Services shall become immediately due and payable and any and all priority regarding the placement or positioning of Advertising and/or performance of Services under this Agreement will be extinguished. Test campaign,payable or not, have no cancellation period or rights whatsoever.
4. Termination By MYP
MYP may terminate this Agreement or any Order, in whole or in part, at any time upon written notice, including via email and fax, to the Advertiser. If MYP intends to cease the provision of a particular Service, MYP may, at its discretion, substitute the performance of substantially similar Services on the terms and conditions then applicable to such Service. If MYP ceases to provide a Service and does not substitute a substantially similar Service, then the portions of each Order for the performance of such Service will terminate automatically. In addition, MYP may terminate, remove, and/or suspend any or all Advertising or Services upon the Advertiser's failure to pay any amount when due as set forth herein. MYP, in its sole discretion, may repurpose and/or reallocate any resources, including advertising and/or media inventory, which may have been allocated toward the use or support of the Services, and the Advertiser shall have no rights with respect to any such resources and/or Services.
5. Payment, Billing, And Collections
All charges for Advertising and Services will be due and payable prior to commencement of MYP's delivery of the Advertising or performance of the Services. If MYP issues an invoice to the Advertiser, the invoiced amount will be due in full and without set off on or before the due date set forth in such invoice (or, if no due date is set forth in the invoice, within 30 days after the date of the invoice). First Order payment and Creation payment are as principle non-refundable. MYP reserves the right to require full payment, in advance, or to charge the Advertiser a reasonable fee beyond anything specified on the applicable Order for requests that exceed MYP's customary services. MYP has the right to allocate and apply periodic payments received from the Advertiser to and among charges owed by the Advertiser as it sees fit, including those that are separately billed. The Advertiser will pay all sales, use, or other local, foreign, or other taxes or governmental fees arising out of or in connection with this Agreement, other than taxes based on MYP's net income. If more than one person/entity requests Advertising under this Agreement or any Order, all such persons/entities will be jointly and severally liable for all charges due and payable under this Agreement. Late payments will accrue interest at a rate of 2% per month (or the highest lawful rate, if less). The Advertiser will pay attorneys' fees and internal and external costs that MYP and/or its agents incur in collecting any unpaid amounts in addition to a collection activity fee of MUR 1,000 for each month that the Advertiser does not pay MYP the full amount of charges due by the invoice due date. The Advertiser agrees that the collection activity fee is not an interest charge for the time value of unpaid money and recovers costs that are different from the costs recovered by the late payment interest charge described in this Section. The Advertiser may agree, in writing or by electronic authorisation, to make single or recurring payments electronically via credit card or by automatic debits to the Advertiser's bank account or through physical payment (Bank account deposit and Mauritius Post). MYP may condition its acceptance of cash payments upon the Advertiser's completion of a separate authorisation form. Unless otherwise specified at the time the Advertiser agrees to recurring electronic payments, the applicable automatic payment will be deducted on the due date of each invoice. Authorisation for recurring electronic payments will remain in full force and effect until MYP has received express written notification of the Advertiser's intention to cancel such authorisation, and automatic deductions that were submitted for processing prior to MYP's receipt of the notice of cancellation may still be processed. The Advertiser hereby releases MYP and its Suppliers, including any payment processors, from any and all claims arising from the use of any means of electronic and/or automatic payment method, including any fees associated therewith. MYP may disclose any or all information it has concerning the Advertiser to any MYP Party (as defined below) and/or any third parties, including credit-reporting agencies. If the Advertiser applies for business credit and is denied, the Advertiser has the right to a written statement of the specific reasons for the denial, which the Advertiser may obtain by contacting MYP within 60 days after the Advertiser is notified of the decision at MYP, 14 Avenue Sodnac, Quatre Bornes, Mauritius, Attention: Credit Manager. MYP will send the Advertiser a written statement of reasons for the denial within 30 days of receiving the Advertiser's request.
If the Advertiser fails to claim funds remaining on account with MYP within 180 days of the last date upon which MYP performed Services under the applicable Order, the Advertiser will pay MYP a reasonable fee for the maintenance and administration of those funds equal to MUR 500 per month. MYP may deduct this fee from the Advertiser's funds on account until the funds are transferred to the Advertiser or exhausted. If the Advertiser fails to claim any non-cash credit issued by MYP within 180 days, the Advertiser will be deemed to have waived such credit and will have no claim to the credited amounts.
7. Bundles And Incentive Pricing
If an Order provides for Advertising and/or Services at bundled, unitary, promotional, or incentive pricing (each, a "Bundle"), MYP's commencement of performance of Services provided as part of a Bundle will constitute commencement of performance for all Services within the same Bundle. Cancellation of part of a Bundle will not relieve the Advertiser's obligation to pay the full price for the Bundle. Cancellation of or failure to pay for part of a Bundle may result in incentive pricing reverting to the full undiscounted rate for same, which the Advertiser shall be obligated to pay.
8. Comprehensive Advertising Plans
If an Order includes Services pursuant to which MYP may, in its sole discretion, place Advertising on the Advertiser's behalf in various media or channels of distribution(e.g. Social Media, Google Adwords, MYP and Partner online network and/or printed publications), then the Advertiser agrees and understands the terms applicable to all such media or channels of distribution in which Advertising is placed by MYP, in addition to those terms specific to Comprehensive Advertising Plans, shall apply, and all such terms are located at themyp.com/legal and/or themyp.com/terms_of_services.
9. Warranties And Covenants
Advertiser warrants and covenants to MYP, its parent(s), subsidiaries, affiliates, and MYP Suppliers, and their respective directors, officers, employees, and agents (the "MYP Parties") that: Advertiser owns or otherwise controls all necessary rights to any trademark, service mark, logo, name, message, data, image, text, photos, graphics, audio, video or other material or intellectual property contained or embodied in any Ad Materials, and the Advertiser will maintain such ownership or control throughout the term of this Agreement; Advertiser is a business and not a consumer and that it is at all times solely responsible for the truthfulness and accuracy of all of the Advertiser's Advertising, and the Advertiser will not, and will not allow any third party to, submit any Ad Materials that, or use the Services in any manner that: violates any law, regulation, or industry guidelines; is harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, violent, obscene, pornographic, indecent, lewd, libellous, invasive of another's privacy, or racially, ethnically or otherwise offensive, hateful, or abusive; infringes any third party's patent, trademark, trade secret, copyright, other intellectual property rights, or other rights (collectively, "IP Rights"); advocates or solicits violence, criminal conduct, or the violation of any local, state, national or international law or the rights of any third party; is deceptive in any way or contains an impersonation of any person or entity or misrepresents an affiliation with a person or entity; provides MYP material support or resources (or conceals or disguises the nature, location, source or ownership of same) to any organisation designated by the Mauritius government as a foreign terrorist organisation; and/or reproduces, sells, resells, or exploits for any commercial purpose any portion of, use of, or access to the Services; Advertiser will provide MYP all information, materials, consents, and authorisations necessary for MYP to place and publish the Advertising or to perform the Services, and will do so in a timely manner; Advertiser will not, and will not allow anyone working for it to: engage in any form of spamming or improper (as determined by MYP) clicking, impression generation, e-mailing, texting, or marketing in connection with the Advertising and/or Services; access any of MYP Party's network or system for any purpose other than internal use to access Services and/or manage its accounts(s); interfere or attempt to interfere with the proper working of any MYP Party's network or system; and/or use any data from any MYP Party's network and/or system for any purpose outside of the limited purpose contemplated by this Agreement and the applicable Order; Advertiser shall be solely responsible for all fees, royalties, and other amounts of any kind or nature payable in connection with Advertising: to record companies, artists, and all other royalty participants resulting from exploitation of any copyrighted materials ("Compositions"); to publishers or other owners of Compositions or under union or guild collective bargaining agreements; to third parties in connection with the use of their names, images, voices, or likenesses as part of any Advertising; and to any and all other third parties with respect to the provision, receipt, or use of Services; and Advertiser waives all provisions of so-called "Do Not Call," "Do Not E-mail," and "Do Not Fax" laws in respect to MYP Parties' placement of telephone calls, e-mails, and faxes to the Advertiser, and the Advertiser agrees to accept such phone calls, faxes, e-mails, and other communications sent by or on behalf of MYP Parties related to MYP's services, including future services.
10. Intellectual Property
The Advertiser, for itself and any third party with an interest in or to Ad Materials, grants MYP a nonexclusive, worldwide license, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform, reproduce, promote, resize, rearrange, modify, and otherwise use the Ad Materials in any media or service, in whatever format, now or in the future, provided that such use is pursuant to this Agreement and/or in furtherance of distribution of Advertising on behalf of the Advertiser. In addition, MYP shall have the irrevocable right to use the Ad Materials in any materials advertising, promoting, and/or publicising MYP's services and/or products. Except as otherwise provided herein, MYP owns all IP Rights in and to the Advertising, the Services and all information, materials, logos, software, or other tools or information used to develop or display the Advertising or to provide the Services. The Advertiser may not reproduce the Advertising, any medium in which such artwork is distributed or any MYP-developed artwork for any purpose without the express prior written permission of MYP.
11. Collection And Use Of Data
12. Advertiser Generated Content
MYP will have no obligation to investigate or confirm, and does not in any way endorse, the accuracy, legality, legitimacy, validity, suitability, or reliability of any content directly generated or controlled by Advertiser, its representatives, employees, contractors (other than MYP), or agents ("Advertiser Generated Content"), including any of the products, services, offers, deals, coupons, or other promotional materials or representations contained or referenced in the Advertising. MYP makes no representations or warranties whatsoever concerning any products or services advertised, sold, or provided by the Advertiser (including, without limitation, the quality, safety, or legality of such products or services or the sale thereof), or any offers, deals, coupons, or other promotional materials or representations contained or referenced in any Advertiser Generated Content. Any commercial, sales, use, membership, subscription, affiliation, participation, or promotional relationship the Advertiser may create with any third party, including obligations undertaken by the Advertiser with respect to payment and delivery of related goods or services, and any other terms, conditions, and warranties or representations associated with such dealings, are solely between the Advertiser and such third party.The Advertiser will be solely liable to any third party claimant with respect to the content of the Advertiser Generated Content.
13. MYP Suppliers
The Advertiser acknowledges that the essential value of the Services is the dissemination of information facilitating individuals to visit, contact, and/or learn more about the Advertiser, and that MYP may, in its discretion, determine the methods of such dissemination (e.g., distribution of directories and the geographic coverage of the Services). THE ADVERTISER ASSUMES ALL RISKS CONCERNING THE FUNCTIONALITY, PERFORMANCE, AND RESULTS OF THE ADVERTISING AND SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE MYP PARTIES MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO THE ADVERTISER OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY, PERFORMANCE, OR RESULTS OF THE ADVERTISING OR THE SERVICES OR OTHERWISE UNDER OR RELATED TO THIS AGREEMENT. For the avoidance of doubt, no MYP Party will be bound by, and the Advertiser acknowledges that the Advertiser is not relying on: any representation or warranty concerning revenue, profit, return on investment, or results to be generated from its Advertising; any representation or warranty regarding either the number, makeup, or distribution of people who will view Advertising and/or the residences or businesses that will access or receive the media containing the Advertising; any representation, warranty, or covenant concerning the quantity, quality and/or validity of traffic, impressions, or interactions with or leads generated by Advertising; any custom or prior course of dealing; or the nature of others' advertising. Although MYP will use commercially reasonable efforts to include any Ad Materials and/or design elements that the Advertiser may reasonably request be included in the Advertising, subject to the procedures established by MYP for that purpose, MYP expressly disclaims any liability for failure to include, and Advertiser's payment obligations hereunder shall not in any way be contingent upon inclusion of, any such Ad Materials and/or design elements in the Advertising.
15. Infringement And Indemnity
If a third party claims, or if MYP believes that a third party may claim, that any Advertising or Ad Materials, or the placement or publishing thereof, infringes any third party's IP Rights, MYP may terminate this Agreement, in whole or in part, and/or reject, cancel, discontinue, or suspend the Services, in MYP's sole discretion, without liability, until Advertiser has resolved the actual or potential third party claim to MYP's satisfaction. Advertiser shall indemnify and hold blameless the MYP Parties against all claims, actions, losses, expenses, damages, costs, and liabilities, including professional advisors' fees and other expenses incurred in the defence of any claims arising from this Agreement, including in connection with: breaches of any warranty or covenant made herein; the Ad Materials, Advertising, and the Advertiser's requests for advertising and/or services; and Advertiser's failure to honour any promise, offer, or other statement set forth in any Advertising, Ad Materials or Advertiser Generated Content.
16. Limitation Of Liability
Any claim arising out of an error or omission in MYP's performance of the Services must be made in writing by Certified Mail (return receipt requested) to MYP within six months of the first occurrence of such error or such claim shall be deemed waived. If the General Terms & Conditions (located at themyp.com) applicable to the Service out of which such claim arose provide for make goods, then MYP's compliance with its obligations with respect to such make goods will constitute the MYP Parties' sole obligation and the Advertiser's sole and exclusive remedy for any breach of this Agreement relating to such Advertising or Service. In no event will the MYP Parties' aggregate liability under this Agreement exceed the amount paid under the applicable Order for the specific Advertising and/or Service at issue. UNDER NO CIRCUMSTANCES WILL THE MYP PARTIES BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, OR LOSS OF GOODWILL, FOR ANY REASON WHATSOEVER, INCLUDING THE RESULT OF ERRORS OR OMISSIONS, THE REJECTION OR REMOVAL OF ANY ADVERTISING, ANY DELAY IN DISPLAYING, MYP PARTIES' FAILURE TO DISPLAY OR DISTRIBUTE ADVERTISING, OR MYP PARTIES' FAILURE TO PERFORM SERVICES. MYP'S ACCEPTANCE OF THIS AGREEMENT AND THE RATES CHARGED FOR THE ADVERTISING AND OTHER SERVICES ARE BASED UPON THE LIMITATION OF THE MYP PARTIES' LIABILITY AS SET FORTH HEREIN. The Advertiser may negotiate to pay additional charges (based on MYP's sole assessment of risk factors) in lieu of this limitation of liability by calling Customer Service as listed on the applicable Order and entering into an agreement with MYP providing otherwise. Such an agreement must be in writing, signed by both parties. MYP has no obligation to accept or enter into such an agreement if it feels it does not adequately compensate it for the additional risk, costs.
17. Force Majeure
MYP will not have any liability to the Advertiser, and the Advertiser will remain responsible for all moneys owed to MYP, if MYP's performance of its obligations is delayed by the occurrence of: fires, floods, earthquakes, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, sabotage, embargo, government action or order, blackouts, epidemic or quarantine, strikes/labour difficulties, or any other similar cause; or any event or circumstance within the control of, or caused by information provided by, the Advertiser or a third party (including MYP Suppliers).
18. Miscellaneous, Exclusive Venue
This Agreement and all claims and disputes arising under or relating to this Agreement will be governed by and construed in accordance with the laws of Mauritius, without giving effect to its conflicts of law principles. The parties consent to the exclusive jurisdiction and venue in the Commercial Supreme Courts in Port Louis. The Advertiser hereby consents and submits to the exclusive jurisdiction and venue of those courts and waives any objection based on the convenience of these exclusive venues. All claims and disputes arising under or relating to this Agreement shall be adjudicated on an individual basis, and the Advertiser will not consolidate or seek class treatment for any claim unless previously agreed to in writing by MYP. MYP's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all other communications, including all prior agreements, between the parties with respect to such subject matter. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. MYP may assign its rights and duties under this Agreement to any party at any time without notice to the Advertiser. The Advertiser's rights and duties under this Agreement are not assignable without the written consent of MYP.