These Terms and Conditions govern and are by reference incorporated into, and made a part of, any and all Advertising Orders and/or client approval request of any entity that places advertising or secures other marketing services in the Pregnancy Tracker Mobile Application (“Application”) or on third party advertising platforms using audience segment data collected by virtue of the Application, whether for own use or in favor of the Advertiser (“Client”). This document, when incorporated into an Advertising Order, represents the Parties’ common understanding and constitutes agreement between the Company and the Client. This document may not fully cover other arrangements involving content association or integration, and/or special production, but may be used as the basis for the media components of such contracts.

These Terms and Conditions may be modified from time to time by Company; additional placement of advertising or use of marketing services following such modifications will constitute Client’s agreement to such modifications.

DEFINITIONS

“Ad” means any advertisement to be placed in the Application.
“Advertising Materials” or “Ad Materials” means copy, artwork, photography, video, URLs and other advertising materials for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agreement” means the Advertising order and the Terms, including any schedules and exhibits thereto.
“Application” or “Pregnancy Tracker Mobile Application” is the mobile application that is owned, operated, or controlled by Company and that is published in online stores:

- Google Play;
- iTunes/Appstore;
- AppGallery.

“Business Day” means an official working day in any of the domicile territories of either of the Parties.
“Client” means the advertising entity as defined above and is listed on the applicable AO.
“CPA” or “Cost-per-Action” means cost model based on a visitor taking some specifically defined action in response to an Ad. Actions are to be specified in the applicable AO.
“CPC” or “Cost-per-Click” means cost model where the cost of advertising is based on the number of clicks received.
“CPL” or “Cost-per-Lead” means cost model (form of CPA cost model), in which a visitor provides certain information at the site determined by Client.
“CPM” or “Cost-per-Mile” means cost model where the cost of advertising is based on a thousand Impressions.
“CPS” or “Cost-per-Sale” means cost model where the cost of advertising is based on the number of generated transactions (sales).
“CPV” or “Cost-per-View”, means cost model where the cost of advertising is based on the number of Views.
“Deliverable” or “Deliverables” means the inventory delivered by Company (e.g., impressions, clicks, issues of a publication, valid registrations or other desired actions). Requirements for valid registrations shall be provided in the Advertising Order.
“AO” or “Advertising Order” means a filled in and signed Advertising Order form that incorporates these Terms by reference, under which Company will deliver Ads in the Mobile Application for the benefit of the Client, or the Advertiser.
“Company” or “PTR” means Period Tracker & Pregnancy and Baby Calendar Limited, a legal entity organized and existing under the laws of SAR Hong Kong, with its principal place of business located at: 2301, Bayfield Building, 99 Hennessy Road, Wanchai, Hong Kong, Business Registration No.: 2798808PTR.
“Impression” or “View” means a single display of an Ad to a user’s web-enabled device.
“Parties” means the Company and the Client, “Party” means either of them.
“Registration Field Placement” means placing Client’s subscription box on the registration screen of the Application where the users of the Application are given an opportunity to sign up for Client’s promotional program by way of submitting their registration data to Client according to the Client`s Privacy Policy. In such cases the Data Processing Agreement is applied unless another document governing personal data issues (including any other Data Processing Agreement) is concluded between the Client and the Company in writing, in which case the latter prevails.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Services” means all the Deliverables specified in the AO.
“Terms” means these TERMS AND CONDITIONS FOR ADVERTISING in Pregnancy Tracker Mobile Application, as may be revised and/or updated from time to time.
1. Agreement. The applicable Advertising Order and the Terms, including any schedules and exhibits thereto, constitute the entire agreement between the Parties for the services listed in the Advertising Order and cannot be modified without Company’s prior written consent, including any terms in the Advertising Order. Both Parties shall be legally bound by the Agreement. Where the Terms and the Advertising Order contradict, the Advertising Order shall govern.
2. Subject Matter of the Agreement. The Parties agree that the Client shall purchase the Services listed in the applicable Advertising Order. Both Parties will comply with the Agreement, including all Ad placement restrictions. Unless otherwise specifically provided for in the applicable AO Company does not guarantee any purchases.
3. Services. Unless otherwise specifically stated in the applicable AO Company reserves the right to insert advertising anywhere within the App at its discretion.
4. Company’s Right to Reject, Cancel or Terminate Advertising Orders. Company may, in its sole discretion, refuse to publish any Advertising Materials submitted to it or defer publication of any Ad at any time.
5. Delivery of Services. Unless otherwise specified in the Advertising Order to which these Terms apply, a Client’s media spend is for a certain number of Deliverables, not for a fixed period of time. Inventory for display of Advertising Materials by Company is based on availability at time of impression delivery or publication, as applicable. Impression delivery for all campaigns will be measured by Company’s designated ad serving system.
6. Under-delivery. Unguaranteed Deliverables. Company will create a reasonably balanced delivery schedule. If Company determines that the number of guaranteed Deliverables likely to be delivered by the end of the campaign is less than 90% of the amount specified in the applicable AO, Company will use good faith efforts to notify Client prior to the end date of such campaign. Unless otherwise is specifically provided for in the applicable AO in case of under-delivery the term of the campaign shall automatically be prolonged by the time when all the Deliverables are delivered in full. Otherwise, Client and Company may by a mutual written consent arrange for a makegood consistent with these Terms.
7. Technical Specifications. Company will submit per e-mail or otherwise make electronically accessible to Client its final technical specifications within five (5) business days of the acceptance of an AO. Changes by Company to the specifications of already-purchased Ads after that five (5) business day period will allow Client to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the Parties) in order to (i) send revised Advertising Materials; (ii) request that Company resize the Ad at Company’s cost, and with final creative approval of Client, within a reasonable time period to fulfill the guaranteed levels of the AO; (iii) accept a comparable replacement; or (iv) if the Parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
8. Term and Termination. This Agreement will commence on the Effective Date and continue until the Services are completed. Each Party may terminate the Agreement by a written notice sent to the other Party via email within fifteen (15) days prior to the date of termination of the Agreement unless otherwise provided for in the applicable AO or in the Terms.
9. Advertising Materials. Cancellation Policy. Custom programs and event sponsorships, including without limitation all media spends associated therewith, are non-cancelable, non-refundable, and exempt from viewability and frequency caps except as otherwise expressly agreed upon in writing. No changes to the AO shall be effective unless in writing and signed by both Parties. Client is responsible for delivering Advertising Materials five (5) working days prior to the Campaign Start Date (“Ad Materials Due Date”). Advertising Materials will not be deemed delivered unless in a format specified or otherwise approved by Company. In the event Advertising Materials are delivered after the end date Client is still responsible for the media purchased pursuant to the AO. Except as otherwise stated in the AO or as mutually agreed upon by the Parties, if Advertising Materials are received late, Company may run a Public Service Announcement (PSA) or house advertisement as a replacement until the creative is received. If cancellation is permitted by Company as set forth above, Client will be responsible for a fee in the amount of 50% of the applicable advertising fee provided for in the AO for cancelling an order past the End Date, but prior to the Campaign Start Date. In the event that Client cancels an order after the End Date and the Campaign Start Date, Advertiser will be responsible for a fee in the amount of 100% of the applicable advertising fee provided for in the AO. As noted above, and for the avoidance of doubt, custom programs may not be cancelled at any time.
10. Payment Terms. Except as otherwise provided for in the AO, all Services are billed in full upon the end of each billing period with payment due within fifteen (15) business days thereafter. All other invoices are due net fifteen (15) business days after invoicing. Should any invoice become past due, Client agrees to pay the costs of collection, including attorneys’ fees if incurred, together with interest at a monthly rate of the lesser of 1.5% or the greatest amount permitted by applicable law. Should any portion of an invoice be disputed, Client agrees to pay the undisputed portion according to its terms pending resolution of the dispute. In addition to all other remedies, Company may suspend its performance if any payment is past due. Suspension will not relieve Client of its obligation to pay in full. Client will be short-rated if the number of insertions upon which specified rates are based are not used. All billing is based on actual Deliverables delivered, as determined by Company. Company reserves the right to consider campaigns within 10% of the impression goal at the end of the campaign completed unless otherwise agreed in writing. In such event, Company will have no obligation to deliver a “make good” and Company will invoice, and Client will pay, for impressions actually delivered based on the contracted rate and without regard to any short rate. Unless stated otherwise on the AO, ad campaigns are billed upon publication of the Advertising Materials or completion of delivery of Deliverables, as applicable; provided that for campaigns with a duration of longer than one (1) month, Company reserves the right to bill in-progress on a monthly basis. COMPANY DOES NOT ACCEPT SEQUENTIAL LIABILITY AND MAY HOLD CLIENT AND ADVERTISER JOINTLY AND SEVERALLY LIABLE FOR ALL AMOUNTS DUE HEREUNDER.
11. Ad License. Multiple formats. Client grants to Company a non-exclusive right and license to display, perform, publish, modify and transmit the Advertising Materials furnished by the Client and/or Advertiser and/or any of their representatives for the purposes contemplated hereby. If the Services in which any Advertising Materials submitted under an Advertising Order are published are converted into and distributed in any other formats or media, Client hereby grants to Company all rights necessary to convert, publish and distribute such Advertising Materials in such other formats and media.
12. Nondisclosure of Confidential Information. Each party shall keep confidential and not disclose to any third party or use (except as contemplated by this Agreement), any non-public information obtained from the other party that is marked or otherwise designated confidential (“Confidential Information”); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that: (i) is publicly available or becomes publicly available through no act or omission of the receiving party, (ii) is or has been disclosed to such party by a third party who is not under an obligation of confidentiality with respect thereto, (iii) is or has been independently developed by such party, without use or reference to the other party’s Confidential Information, by persons without access to the same, or (iv) must be used or disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law.
13. Representations & Warranties; Disclaimers.
a. Company’s Representations & Warranties. Company represents and warrants to Client that: (a) it shall provide the Services in a professional and workmanlike manner; (b) it has all rights necessary to perform its obligations under this Agreement; and (c) that this Agreement does not conflict with any obligation Company has to any third party. EXCEPT AS SET FORTH IN THIS SECTION, ALL SERVICES, PROMOTIONS ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, AND COMPANY DISCLAIMS ALL WARRANTIES RELATED TO THIS AGREEMENT, IMPLIED OR EXPRESS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
b. Company’s Disclaimers. Company is not responsible for errors or omissions in any Advertising Materials provided by Client or its Representative or any third party on behalf of Client (including errors in key numbers) or for changes made after closing dates.
c. Client’s Representations & Warranties. Client represents and warrants to Company that: (a) it has all rights necessary to perform its obligations under this Agreement, (b) Advertising Materials, and the use thereof as contemplated under this Agreement, does not and will not violate any third party right; and (c) the Advertising Materials will be truthful, substantiated, and in compliance with all applicable laws, and as of the Effective Date, Client’s, or Advertiser’s, products or services to be included in the Deliverables have not been subject to any products liability issues, allegations, recalls, or claims.
14. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR THE INDEMNITY OBLIGATIONS HEREUNDER, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO COMPANY UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
15. Force majeure. Excluding payment obligations, neither Client nor Company will be liable for delay or default in the performance of its respective obligations under the Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Company suffers such a delay or default, Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Client, Company will allow Client a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Client will have the benefit of the same discounts that would have been earned had there been no default or delay. If Client’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Client’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Client will make every reasonable effort to make payments on a timely basis to Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Client from any of its obligations as to the amount of money that would have been due and paid without such condition. If a Force Majeure event has continued for five (5) business days, Company and/or Client has the right to cancel the remainder of the AO without penalty.
16. Miscellaneous. Any term of this Agreement may be amended or waived only with the written consent of the Parties. Client hereby consents to the Company’s including the Client’s name for the purpose of promoting the Company’s services on client materials, Company’s website or marketing events.
17. Applicable Law. Arbitration. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of Hong Kong, without giving effect to the principles of conflict of laws. The Parties agree to refer to arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules any dispute, controversy, difference or claim (including any dispute regarding non-contractual obligations) arising out of or relating to this Agreement. The law of this arbitration agreement shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in the English language.