Definitions
“Agreement” means the Cover Letter, the terms and the General Terms and Conditions
“Confidential Information” means any information which is marked as “Confidential” or “Proprietary” or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; including, without prejudice to the generality of the foregoing, the terms of this Agreement as well as KYC documentation, business plans, data, strategies, methods, customer and Client lists, technical specifications, Transaction data and customer data. Confidential Information does not include information which is or becomes: (i) publicly available otherwise than through a breach of this Agreement; or (ii) available to the receiving party otherwise than pursuant to this Agreement and free of any restriction as to its use or disclosure.
“Client” means the legal entity identified on the Insertion Order.
“Services” means the related advertising & marketing services mentioned in this agreement and insertion orders. Services are categorized according to the following pricing models:
“Cost Per thousand (CPM)” means the cost, per 1000 impressions, the client pays for brand placements on Tabby’s marketplace, affiliate services & social platforms.
“Cost Per Click (CPC)” means the cost per click the client pays for every click made on the advertisements placed on Tabby’s marketplace, affiliate services & social platforms.
“Cost Per Action (CPA)” means the cost the client pays for a specified action measured on the advertisements placed on Tabby’s marketplace, affiliate services & social platforms. The specified action is determined by Tabby in the insertion order
“Cost Per Reach (CPR)” means the cost the client pays to reach one unique customer through brand placements on Tabby’s marketplace, affiliate services & social platforms.
“Fixed Rate Pricing” means the fixed cost Tabby will charge for brand placements on Tabby’s marketplace, affiliate services & social platforms.
“Tabby” means Tabby FZ-LLC, a company incorporated in Dubai, with registered office at In5 Tech, DIC, Dubai, UAE, business registration number 96445
“Marketplace” means websites or other properties (including www.Tabby.ai) operated by or on behalf of Tabby
“Advertiser” means the individual or entity on whose behalf Client is placing Clients Ads onTabby’s marketplacethat has entered into a Tabby Ads Agreement.
“Advertiser Agreement” means the written agreement between Advertiser and Client containing the requirements in Section 4.2.2
Scope of Services
In consideration of payment of the fees as set forth on the Cover Letter by the Client to Tabby, Tabby hereby undertakes to provide and perform all and any of the advertising services, as the same may be amended from time to time, in accordance with the terms and subject to the conditions contained in this Agreement and with applicable laws.
The parties may mutually agree on insertion orders (“Insertion Orders” or “IOs”) under which Tabby will deliver advertisements or other content provided by Client (“Client Ads”) on websites or other properties (including www.Tabby.ai) operated by or on behalf of Tabby or its affiliates, including through any media, devices or networks. Each IO will specify: (a) where the Client Ads will be delivered; (b) the amount and type of advertising inventory on the Service being purchased (e.g., impressions, clicks, duration or other desired actions or metrics with respect to Client Ads) (the “Deliverables”); (c) the fees and rates applicable to the Deliverables; (d) the maximum amount of money to be spent pursuant to the IO (if applicable); (e) the start and end dates of the applicable Client Ad campaign. Tabby will not be bound by conditions or instructions printed or appearing on IO forms submitted by or on behalf of Client, and in the event of any conflict or inconsistency between any IO and these Terms and Conditions, these Terms and Conditions will control, except to the extent such IO expressly supersedes or amends a specifically referenced section of these Terms and Conditions.
Tabby will perform its obligations under this Agreement in accordance with applicable laws and it will ensure it has, at all times, all permits, licences, authorisations and consents necessary to perform its obligations under these Terms (and, in our case, necessary for us to perform the Services). Each Party shall comply with applicable consumer laws and Parties shall closely cooperate to promote the smooth conduct of operations of the Services.
Tabby may carry out planned and unplanned maintenance as notified to the Client.
Clients Ads and Deliverables
Placement of Client Ads.Tabby will deliver Client Ads in accordance with the terms of the applicable IO. To the extent that the size, placement, positioning or any other aspects of the presentation of any Client Ads are not specified in an IO, Tabby may determine any of the foregoing in its sole discretion. For Client Ads where Deliverables consist of placement for a specified period of time, Tabby may deliver such Deliverables as continuous placements for that period, or some other equivalent combination of duration and rotation. Scheduling of delivery of any Client Ads is subject to availability and may not be continuous. Tabby will use commercially reasonable efforts to notify Client in advance of any inability to deliver Client Ads in accordance with the terms of the applicable IO.
Changes to IOs.An IO may only be amended by signed, written agreement of Client and Tabby; provided, however, that Tabby may, in its sole discretion, accept a written request from Client to change the following provisions of an IO without a formal amendment of the IO: (a) a reallocation of placements between types of advertising Deliverables, (b) a change to delivery dates of specific lines of Deliverables on the IO, and (c) a change in demographic targeting (each of the foregoing, a “Limited Change”). Client shall submit Limited Change requests by email. If Tabby agrees to such Limited Change, Tabby may indicate such agreement by implementing such Limited Change without further confirmation. Tabby may also propose a Limited Change to maximize performance of a particular Client Ad campaign, but will not implement such Limited Change without email confirmation from Client. Notwithstanding anything to the contrary in this Section 3.2, in no event shall a change to the overall start or end date of a Client Ad campaign or the total spend amount under a Client Ad campaign be deemed a Limited Change and shall only be accomplished through signed written amendment of the IO between Client and Tabby.
Client Ad Content. All content for Client Ads must be in compliance with the then-current version of Tabby’s Advertising Guidelines s and any other applicable Tabby policies, including editorial, advertising, privacy, user experience, publicity and branding policies (collectively, the “Tabby Advertising Policy”). Each of the Tabby Guidelines is hereby incorporated by this reference. All content for Client Ads must be received at least 5 days in advance of the earliest Flight Date for any Deliverable on the applicable IO. Notwithstanding the foregoing, in the event Tabby has agreed to optimize the creative for any Client Ad (“Ad Optimization”), then Client will submit the necessary materials at least 5 days prior to the estimated flight dates for such optimization (as specified by Tabby). Client agrees that in connection with such Ad Optimization, Tabby may (a) rearrange Client- provided materials to create different versions of Client Ads, and (b) pause, reschedule or cancel delivery of impressions that are part of an Ad Optimization at any time. Changes to Client Ad content for text or standard graphical Client Ads must be received by Tabby at least 3 days in advance of requested change date; changes to content for all other Client Ads must be received by Tabby at least 5 days in advance of requested change date. Tabby will not be required to accept changes to Client Ad content more than once in any rolling 7 day period. Client shall not be relieved of its payment obligations under an IO for Client Ads not delivered due to delays by Client in delivery of Client Ads to Tabby.
Promotions. For any contest, sweepstakes, coupon or other promotion to be offered or promoted by or on behalf of Client on the Service (“Promotion”), Client (or a third party contracted by Client and for which Client is solely responsible) will perform and be solely responsible for such Promotion, including administration of the Promotion, ensuring that the Promotion complies with any and all applicable laws and regulations, setting and enforcing official rules and offer terms, collecting entries, drawing, selecting and notifying winners and timely procuring and fulfilling prizes, premiums or discounts that may be offered in connection with such Promotion (these and other similar obligations the “Promotion Obligations”). No approval by or assistance from Tabby in connection with a Promotion (including as may be specified in an IO or elsewhere) shall reduce or satisfy the Promotional Obligations, and Client shall remain solely responsible for the Promotion Obligations. Without limiting the foregoing, Tabby’s review or approval of the official rules, offer terms or regulations for any Promotion shall not constitute a legal opinion as to the legal appropriateness, accuracy or adequacy of those rules or their manner of use, nor a waiver of Tabby’s indemnity rights under this Agreement.
Failure to Deliver. IfTabby fails to deliver any Deliverables in accordance with the terms of an IO, Client’s sole and exclusive remedy shall be limited to the following, which Tabby may choose in its sole discretion: (a) a refund of the charges representing the Client Ads that were undelivered or delivered to the wrong location, (b) placement of the Client Ads at a later time in a comparable position as determined by Tabby, and/or (c) an extension of the term of the IO with a refund representing any remaining undelivered Client Ads at the end of such extended term.
Advertising Agencies
In the event that the Client on record is an Advertising Agency or other entity, including executing any IO or submitting advertisements to Tabby on behalf of an Advertiser, this Section 4 shall apply to Client.
Additional Representations and Warranties. Client represents, warrants and covenants that:
it is the authorized agent of Advertiser, and it has the legal authority to enter into this Agreement and any IO on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts (these rights “Agency Rights”);
it has or will enter into a written agreement with Advertiser (i) that obtains Agency Rights; (ii) that binds the Advertiser to terms as protective of Tabby as is this Agreement and (iii) to which Tabby is an intended third-party beneficiary with respect to Client Ads delivered on the Service.
it will not, without Tabby’s prior written consent: (i) make any representation, guarantee, condition, or warranty concerning any Service, or that Client is an affiliate or partner of Tabby, (ii) make any commitments (for example, guarantees as to placement of ads) to an Advertiser or potential Advertiser beyond Tabby’s obligations under this Agreement, (iii) negotiate any terms or conditions related to the Service which are inconsistent with this Agreement, or (iv) engage in any telesales or telemarketing in connection with the Service; and (d) it will perform its duties pursuant to this Agreement in a professional manner consistent with the requirements established by Tabby.
Agency Agreement and Relationship Termination Upon Tabby’s request, Client will immediately deliver to Tabby each applicable Advertiser Agreement. If Client’s relationship with an Advertiser terminates, Client agrees that Tabby may contract directly with such Advertiser to allow such Advertiser to continue to place Client Ads on the Service and obtain information related to Client Ads run on its behalf, including account and performance history, and that Client shall no longer have access to such Advertiser’s account.
Additional Liability. Without limiting any other provision of this Agreement, any acts or omissions by any Advertiser in violation of this Agreement shall be deemed a breach of this Agreement by Client, and Client will indemnify, defend, and hold Tabby harmless from and against all damages, liabilities, costs, and expenses that Tabby may incur as the result of such violation.However, Client acknowledges that Tabby may but shall in no event be obligated to directly contact any Advertiser and directly enforce the terms of such Advertiser Agreement, including if Tabby has not received payment for such Advertiser’s account within 30 days from the date of the applicable payment due date.
Additional Representations and Warranties.Client represents, warrants and covenants that:
(a) it is the authorized agent of Advertiser and it has the legal authority to enter into this Agreement and any IO on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts (these rights “Agency Rights”);
(b) it has or will enter into a written agreement with Advertiser (i) that obtains Agency Rights; (ii) that binds the Advertiser to terms as protective of Tabby as is this Agreement and (iii) to which Tabby is an intended third party beneficiary with respect to Client Ads delivered on the Marketplace (the written agreement between Advertiser and Client containing the requirements in this Section 2.2(b), the “Advertiser Agreement”);
(c) it will not, without Tabby’s prior written consent: (i) make any representation, guarantee, condition, or warranty concerning theServices, or that Client is an affiliate or partner of Tabby, (ii) make any commitments (for example, guarantees as to placement of ads) to an Advertiser or potential Advertiser beyond Tabby’s obligations under this Agreement, (iii) negotiate any terms or conditions related to the Service which are inconsistent with this Agreement, or (iv) engage in any telesales or telemarketing in connection with the Services; and (d) it will perform its duties pursuant to this Agreement in a professional manner consistent with the requirements established by Tabby.
Payments & Reporting
Payments. Any initial payment specified in any IO will be due and payable upon the effective date of such IO. For subsequent payments specified in any IO, unless otherwise specified in such IO, Tabby will invoice Client, at the address specified in the IO, based upon thecalendar monthin which activity occurred. Invoiced amounts will be due and payable thirty (30) days after Tabby’s delivery of the applicable invoice. Invoiced amounts and all other amounts payable by Client to Tabby are exclusive of any applicable tax, duty, levy, or other governmental charge, including but not limited to sales, use, value-added, withholding, and excise taxes (“Taxes”). Client is responsible for payment of all Taxes to the proper taxing or governmental authority.
Cancelled IOs. If Client cancels any portion of an IO pursuant to Section 9, then except to the extent otherwise specified in such IO, Client will not be charged for any Client Ads delivered under such IO after the effective date of such cancellation.
Confidentiality
Each of the Parties may be a recipient of Confidential Information. The recipient of Confidential Information shall take care to prevent the publication, distribution or utilization of the Confidential Information with at least the same degree of care which the recipient takes to protect its own confidential information of a similar nature, but in any case no less than an appropriate and reasonable degree of care.
Parties shall be permitted to disclose Confidential Information to those of its subsidiaries, advisors and lenders who are informed of the confidential nature of the information and have agreed to be bound by confidentiality obligations at least as stringent as those under this Agreement.
Recipient may disclose or utilise the Confidential Information: (i) when necessary to perform the Services under this Agreement; (ii) when required by law; (iii) to solicitors, barristers, attorneys, accountants or other professional advisers.
The obligations of this clause will remain in full force and effect until three (3) years after the termination or expiration of this Agreement.
Data Protection
Tabby warrants and undertakes that it shall process personal data (including but not limited to any of its customer’s personal data embedded in a transaction) in accordance with applicable data protection laws and handle such personal data with care and in a confidential manner. Tabby shall only process personal data to the extent necessary to perform its obligations under the Agreement and have in place appropriate technical and organisational measures which ensure an appropriate level of security for the processing of personal data.
Indemnification
The Client and Tabby shall indemnify each Party and hold each Party and its affiliates, officers, employees and agents free and harmless from any liability, loss, damage, claim or compliant, and reasonable attorney’s fees and costs, arising out of: (i) Party’s breach of this Agreement, including but not limited to, misrepresentation or breach of any covenants or warranties herein contained; (ii) the (contractual) relationship between each Party and its customers; and/or (iii) any fraud, negligent or willful misconduct by each Party’s employees/ subcontractors.
In no event will either Party be liable for any consequential, indirect, special, incidental, or punitive damages arising out of or related to this agreement.
Term, Suspension and Termination
The Term and any Renewal Term shall be as set forth in the Cover Letter.
Tabby shall have the undisputed right to suspend or terminate its Services, either partially or wholly in accordance with any such rights granted under this Agreement and additionally in the event that:
Client is in breach of this Agreement and/or applicable laws;
Client infringes the brands or marks of Tabby or uses these other than in strict accordance with Tabby’s instructions;
there is suspicious activity in relation to the Client’s use of the Services, as reasonably determined by Tabby;
the business conducted by the Client would endanger or negatively impact the safety, soundness of the business, integrity, good name, brand and/or the reputation of Tabby;
the Client, its directors or ultimate beneficial owners is/are wilfully dishonest, engage(s) in misconduct with respect to its/their business or affairs and/or Tabby reasonably suspects or has evidence that Client is conducting fraudulent activities; and/or
any other event or series of events (including, any adverse change in the Client’s business, assets or financial condition) or any acts or omissions by Client which in the sole but reasonable opinion of Tabby, may affect Client’s ability to comply with all or any of its obligations under the Agreement.
Client shall be notified in the event of Tabby’s exercise of its rights under this clause, unless prohibited pursuant applicable laws. Should any ground specified in the preceding clause subsists for more than ten (10) business days after any suspension, Tabby shall have the right to terminate some or all of the suspended Services or this Agreement. Tabby will have no liability for any losses Client may attribute to any suspension of the Services.
If a Party commits a material breach of this Agreement and such breach is not cured within thirty (30) days of receipt of written notice by the other Party, giving the particulars of the breach and, where appropriate, requiring it to be cured, then the other Party has the right to terminate this Agreement by written notice, which termination will be effective on the date set out in that notice.
Notwithstanding any other provisions of this Agreement, either party hereto may terminate this Agreement at any time by giving thirty (30) days written notice to the other party.
Licenses
License to Client Materials. Client hereby grants to Tabby (and its affiliates) a worldwide, non-exclusive, royalty-free, fully-paid license to (a) use, reproduce, perform, display, and distribute Client Ads and any related information provided by Client in connection with, on and through the Service (“Client Materials”) and (b) alter, modify, repurpose or create derivative works of Client Materials as necessary or desirable in order to serve advertising units and newsfeed content or other content on the Service. Client Ads include any copyrighted materials, and any trademarks, service marks, logos or other source or business identifiers included therein (“Trademarks”).
Publicity. During and after the term of this Agreement, Tabby may use ClientAds, name and logo, and may reference the type of advertising and flight dates for the advertising campaign delivered on behalf of the Client, in a factual and non-disparaging manner, for promotional or marketing purposes. In addition, Tabby may use performance data to discuss the results related to any Ad Optimization. Tabby may also reference any information publicly available about the Client on or off the Service.
Reservation of Rights. As between Tabby and Client, Client retains all rights in and to any Client Ads (including all Client Trademarks and all other related intellectual property rights embodied therein), and, upon the termination of this Agreement, all rights conveyed to Tabby hereunder with respect to Client Ads will cease and all such rights will revert to Client, except as otherwise provided herein. Client will not use, reproduce or display any Trademarks of Tabby in any manner without Tabby’s prior written consent.
Persistence. Notwithstanding anything to the contrary in this Agreement, Client acknowledges and agrees that Client Ads and other Trademarks that are used or displayed on the Service may continue to be used and displayed on the Service, even after Client has completed the ad campaign or terminated this Agreement or the applicable IO, as such Client Ads or Trademarks may have been incorporated into user profiles, news feeds or other features, and that such usage and display may continue indefinitely.
Miscellaneous
Governing Law and Jurisdiction. This Agreement is governed by and will be construed in accordance with the laws of UAE. Each party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the courts of UAE and waives any right to object to any proceedings being brought in those courts.
Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof, and shall supersede any and all other communications, understandings, representations and agreements.
Force Majeure. The Parties to this Agreement shall be released from liability for failure to perform any of the obligations hereunder where such failure to perform occurs by reason of any act of God, fire, pandemic, cyclone, storm, earthquake, tidal wave, communication failure, sabotage, war, military operation, national emergency, mechanical or electrical breakdown, malfunction of any communications media, insurrection, riot, civil commotion, governmental proclamation, regulation or priority failure or interruption (whether partial or total) of power supplies or other utility service, strike or other stoppage (whether similar or dissimilar to any of the foregoing) of labour, any law, decree, regulation, order, requisition, request or recommendation of any government, governmental body, governmentalagenciesoractinggovernmental authority (including any court or tribunal), either party’s compliance therewith, or any other cause beyond either party’s reasonable control, whether similar or dissimilar to such causes.
Notices. All notices and other communications required by this Agreement to be in writing must be sent to the recipient by hand, pre-paid post, courier (at the address as set forth in the Cover Letter) or email (at the address as set out below) or to such other address or email address as a party may notify the other party in writing.