Standard Terms and Conditions for WMS™ Messaging
The following terms and conditions (the “Standard Terms”) shall be incorporated into any Insertion Order (“IO”) by reference and shall be binding on the Client and Anacapa Holdings, Ltd. / free-hotspot.com (hereafter “Anacapa”).
1) Terms of Payment. Messages will be charged on a per Message basis (“Message Unit”) and at the rate specified on the IO. A Message is defined as a server request for a particular Message Unit that is received and counted by Anacapa’s WMS Server. Client must pre-pay for the full amount of their campaign prior to its scheduled run. At Anacapa’s discretion, and by mutual agreement, Client may be permitted to pay on a Monthly basis, in which case, and except as set forth in Section 5 below (i.e., cancellation by Client), Anacapa will invoice for WMS messages served during each month no more than 30 days past the end of that month. Payment is due in full no later than 30 days after receipt of invoice. Clients who do not pre-pay are subject to a credit check at the discretion of Anacapa by an approved method. If credit is not extended, Client must pre-pay all Campaigns.
2) Booking, Renewal and Acceptance of Messaging. Client acknowledges that Anacapa has the right, but no obligation, to review the Client’s Message content. Anacapa reserves the right, at its absolute discretion, and at any time, to reject, cancel or remove any Messaging (and any URL link therein) that is considered inappropriate to Anacapa or that in any way interferes with or is contrary to Anacapa policies, whether or not the same has previously been accepted and/or run. Such cancellation or rejection on the part of Anacapa shall not preclude payment on similar Messages previously delivered. Any renewal of the IO and acceptance of any additional Messaging order shall be at Anacapa’s sole discretion. Pricing for any renewal period is subject to change by Anacapa. Revisions to accepted IO’s must be made in writing and acknowledged by the other party in writing.
3) Grant of Right. Client grants Anacapa and the Wi-Fi networks and HotSpots represented by Anacapa under this IO (the “Participating HotSpots”) the right and license to use, reproduce, transmit, and distribute all creative materials supplied by or on behalf of Client, including without limitation, text and graphics (the “Creative”).
4) Campaign Conditions. In the event that Anacapa under-delivers the number of Message Units purchased or otherwise does not meet Campaign conditions due to circumstances within Anacapa’s control, at the election of Anacapa, in its sole discretion, Anacapa shall either (i) make-good for any discrepancy in Messages delivered within 60 days from the end of the Campaign as specified in this IO, in which case, the number of Message Units for any make good shall not exceed the number of Message Units under-delivered by Anacapa for such Campaign as set forth in the IO or (ii) require payment by Client only for those Message Units actually served by the end date of the Campaign. Client hereby agrees to pay for all Message Units served in accordance with Section 1 above, even if such Message Units are a “make good” served after the end date of the Campaign.
5) Cancellations. Two business days written notice is required prior to cancellation for any campaign and fourteen days written notice is required prior to cancellation of any sponsorship campaign. Client acknowledges that rates herein are based on contracted Message Unit level. If Client does not fulfill Message Unit levels during the contract time period, Client will be charged the earned rate (based on published Anacapa Rate Card) commensurate with Message Units served.
6) Confidentiality. Client shall not, without the prior written consent of Anacapa, (i) disclose any non-public information regarding this IO, including without limitation the nature of Client’s relationship with Anacapa, or (ii) use Anacapa’s name or intellectual property. This Confidentiality clause extends to all public communication, including but not limited to press releases, promotional and/or merchandising materials.
7) Message Content Submission. Creatives must be received prior to the Campaign start date, as follows: at least five (5) business days for rich media and video Creatives and at least three (3) business days for all other Creatives. Client must provide at least 48 hours notice of any request for modification to the Creatives for an ongoing Campaign and Anacapa shall use its commercially reasonable efforts to comply with such request.
8) Message Targeting and Acceptance by Participating HotSpots. Anacapa will use its best efforts to ensure that Client’s Messages are delivered to those HotSpots included in Client’s target segment. Client explicitly acknowledges that individual HotSpots have the right to reject, on reasonable grounds, any Messages for reasons including, but not limited to, inappropriate content or the promotion of a competitor or competitive product or service.
8) Message Auditing. All Message Units purchased as stated within any Anacapa IO will be determined, calculated and billed from the Anacapa WMS Server reports, regardless of whether Client utilises a third party ad server for centralised advertising campaign management and reporting. Anacapa and Client agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers to each other. Both parties agree to make a good faith effort to resolve any impression discrepancies of 15% or more.
9) Message Delivery. Client acknowledges that Anacapa has no responsibility with respect to the settings or operation of individual user devices, operating systems and other factors that may prohibit or affect the display of Client’s Messages on a user’s device. Therefore, Client agrees that any and all Message requests for HotSpots at which the Client’s Messages appear, or are scheduled to appear, shall count towards Client’s Message Units purchased under the attached insertion order, whether or not the Message was successfully displayed on the viewer’s device.
10) Client Representations. Client represents and warrants that: (i) it has all the necessary rights to the Creatives, which in this section includes material accessed by clicking on the Creatives; (ii) the Creatives are free of any "worm", "virus" or other disabling device (as such terms are understood in the computer industry); (iii) the Creatives do not violate any applicable law or regulation; and (iv) the Creatives do not violate or infringe upon any third party right. Client acknowledges that Anacapa is relying on the foregoing representations and warranties and that such reliance is based on Anacapa’s understanding that Client is familiar with all existing and later arising laws, regulations, rights and remedies pertaining to Messaging on Mobile Devices and/or the Internet. Client agrees to indemnify, defend and hold Anacapa and the Participating HotSpots harmless against any and all expenses and losses of any kind (including reasonable attorney’s fees and costs) incurred in connection with any claim arising from or related to the Messaging run or posted by Anacapa or its Participating HotSpots.
11) Limitation of Liability. Anacapa’s Message spaces, services and software are provided “as is” and “as available” and Anacapa disclaims all warranties of any kind, whether express or implied. Anacapa shall not be liable for the acts or omissions of any Client or content provider or the content of any Message, web site or web page. In the event that Anacapa fails to display any Messages in accordance with this IO (or in the event of any other failure, technical or otherwise), the sole liability of Anacapa and exclusive remedy of Client shall be limited to either a refund for the advertisement Campaign or placement of “make-good” Messaging within 30 days from the end of the Campaign as specified in this IO, at the election of Anacapa. Notwithstanding the foregoing, Anacapa shall have no liability for (i) any failure or delay resulting from conditions beyond Anacapa’s control; (ii) any failure to provide reference or access to all or any part of the Messaging due to systems failures or other technological failures of Anacapa or of the Internet; (iii) delays in delivery and/or non-delivery of a campaign, including, without limitation, difficulties with a Participating HotSpot, difficulties with a third-party server, or electronic malfunction; or (iv) errors in Content or omissions in any Creative or Messaging materials provided by Client. In no event shall Anacapa be liable for special, indirect, incidental or consequential damages.
12) General. In the event of any inconsistency between the IO and the Standard Terms, the IO shall control. These Standard Terms, together with the IO and all attachments which are incorporated herein by reference, (i) shall be governed by and construed in accordance with the laws of the Republic of Ireland, without giving effect to principles of conflicts law; (ii) may be amended only by written agreement executed by an authorized representative of each party; and (iii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. Failure by either party to enforce any provision of this IO shall not be deemed a waiver of future enforcement of that or any other provision. Client may not resell, assign, or transfer any of its rights hereunder.