[vc_section][vc_row][vc_column width=”3/4″][ut_custom_heading tag=”h2″ font_size=”font-size-unit=px&desktop_large=40&desktop_small=global&tablet=global&mobile=global” line_height=”desktop_large=56&desktop_small=global&tablet=global&mobile=global” letter_spacing=”desktop_large=global&desktop_small=global&tablet=global&mobile=global” color=”#000000″]PANCAST TERMS & CONDITIONS[/ut_custom_heading][vc_column_text]
In reference to agreements provided by Pancast to its partners (both Publishers and Advertisers), please see the following definitions and common terms that shall apply:
1.1. In this Agreement, the recitals above and exhibits thereto, unless the contrary intention appears, the following definitions apply:
(a) “Ad Request” means the code sent from the Digital Video Streaming Platform or video player, that, when activated, sends the request for a DVA.
(b) “Ad Sales Revenue Share” is the percentage of the Gross Revenue payable to the Broadcaster, as per clause 6.3(c)(i) or 6.3(c)(ii) (as applicable).
(c) “Advertiser” means a brand, advertising agency or other party creating, producing or providing a DVA.
(d) “Advertiser Terms” means such terms and conditions as may be imposed by an Advertiser on the Broadcaster, as notified, provided or made available by an Advertiser to the Broadcaster from time to time during the Term.
(e) “Aggregate Advertising Revenue” refers to the Pancast Advertising Revenues generated during the relevant month, subject always to clause 6.2(d) below.
(f) “Agreement” means this document including the annexures, appendices and schedules to it (if any).
(g) “Applicable Terms” means any additional terms, conditions, obligations or other provisions which are applicable to a Primary Service or a Secondary Service and which are set out in Annex A or Annex B respectively.
(h) “Content” means any video available for Viewers to View on the Digital Video Streaming Service.
(i) “Commencement Date” means [the date of execution of this Agreement by the last party to execute it] / [insert date].
(j) “CPM” means Cost Per Mille (or cost per thousand) of DVAs where there is a valid DVA Impression.
(k) “Digital Video Streaming Service” means the online platform which the Broadcaster will use to offer the Content streaming service to Viewers via the internet.
(l) “DVA” means digital video advertisement, whether or not such advertisements are available on the Pancast Marketplace, and whether or not such advertisements are sourced by Pancast or any other entity (including the Broadcaster itself or any third party).
(m) “Gross Revenue”, “Net Revenue” and “Pancast Marketplace Fee” each have the meaning given in clause 6.3.
(n) “Monetisation Services” has the meaning given in clause 4.1.
(o) “Net Revenue” has the meaning given in clause 6.3(b).
(p) “Pancast Advertising Revenue” means the revenue generated through Suitable Pancast Advertisements being provided to the Digital Video Streaming Service that is calculated, reported and paid to Pancast by the SSP Partner.
(q) “Pancast Marketplace” means Pancast’s programmatic advertising private marketplace, designed specifically for digital video advertising, in an OTT environment.
(r) “Pancast Partnership Data Policy” means the data policy provided by Pancast to the Broadcaster, as amended by Pancast from time to time.
(s) “PDPA” means the Singapore Personal Data Protection Act 2012 and all subsidiary legislation related thereto.
(t) “Personal Data” has the meaning ascribed to it under the PDPA.
(u) “Primary Services” means those services which the Broadcaster must procure from either Pancast or a Third Party Service Provider in order for Pancast to be able to provide the Broadcaster with the Monetisation Services under this Agreement, including services to develop and operate the Digital Video Streaming Service effectively, as set out in Annex A to this Agreement.
(v) “Primary Services Costs” means the aggregate of:
(i) where Pancast is the Primary Services Provider, any costs incurred by Pancast in the provision of the Primary Services; and
(ii) where a Third Party Service Provider is the Primary Services Provider, any fees charged for Primary Services by that Third Party Service Provider, in each case as set out in Annex A to this Agreement.
(w) “Primary Services Provider” means either Pancast or a Third Party Service Provider providing Primary Services to the Broadcaster.
(x) “Suitable Pancast Advertisement” means a DVA from the advertising campaigns of Advertisers on the Pancast Marketplace where the Ad Request of a particular View matches the requirements of that advertising campaign.
(y) “Revenue Share Register” means the table in Schedule 1 to this Agreement.
(z) “Services” means the Monetisation Services, the Referral Services, the Primary Services and the Secondary Services.
(aa) “SSP Partner” means Pancast’s preferred supply side platform partner, such as SpotX or Talaria, which, for the purposes of this Agreement, is a Primary Service Provider.
(bb) “Term” means from the date of this MOU until such time as the parties complete the Pancast Partnership Agreement, or decide not to continue their business relationship.
(cc) “Third Party Service Provider” or “TPSP” means any third party which provides Primary Services or Secondary Services.
(dd) “Viewer” means any digital media audience who watches Content which is streamed by the Broadcaster through the Digital Video Streaming Service.
(ee) “View” means each instance that a Viewer views Content on the Digital Video Streaming Service and “Viewed” shall be construed accordingly.
COMMON TERMS AND CONDITIONS
7.1. Each Party undertakes that it and its directors, officers, employees, representatives, agents, contractors or Affiliates will fully respect the confidentiality of internal business affairs of the other Party. Each of the Parties hereby undertakes to treat as confidential all information obtained from the other Party or communicated to the receiving Party pursuant to this Agreement or through discussions or negotiations prior to this Agreement being entered into or acquired in the performance of this Agreement, and will not divulge such information to any person except to persons mentioned above who have a need to know the certain information, and will use such information solely in connection with performing its obligations under this Agreement and not for its own benefit or for the benefit of any third party.
7.2. The confidentiality of information shall not extend to information:
(a) which is rightfully in the possession of the receiving Party prior to the commencement of the negotiations resulting into the Agreement;
(b) which is already in the public domain or becomes so at a further date other than as a result of breach of this Clause;
(c) which is communicated or disclosed to the receiving Party by a third party lawfully in possession thereof and entitled so to disclose it; or
(d) which a party is required to disclose by any applicable law or by any order of a tribunal of competent jurisdiction.
8. LIMITATION OF LIABILITY
8.1. In no event shall Pancast or its directors, employees or agents, be liable to the Broadcaster or any third party for any Consequential Loss.
8.2. In no event shall Pancast or its directors, employees or agents, be liable to the Broadcaster or any third party for any Loss which arises out of or is in any way connected with any of the following:
(a) access or use of the Services;
(b) data, information, content or material provided to or provided by the Broadcaster whether intentionally or unintentionally;
(c) submission of any data (including personal data), or any unauthorised alteration to the access of or access of data (including personal data), any breach of security through the platforms used by Pancast;
(d) the acts or omissions of any Third Party Service Providers or Advertisers; or
(e) any technical errors, unavailability of the Services in whole or in part or any failure or delay in any way connected with the use of the Services.
8.3. Pancast’s liability shall be excluded to the maximum extent permissible under applicable law, save that nothing in this Agreement shall exclude or limit Pancast’s liability:
(a) for death or personal injury arising from Pancast’s negligence, fraudulent misrepresentation or intentional misconduct;
(b) for misrepresentation under any applicable law relating to misrepresentation; or
(c) in respect of any liability which cannot be excluded or limited under applicable laws.
8.4. Pancast makes arrangements with Advertisers to provide the Broadcaster with Suitable Pancast Advertisements. Advertisers may also engage the services of local operators and/or sub-contractors. Pancast does not control the Advertisers and does not supervise Advertisers. Pancast is not liable for acts, omissions, warranties, errors, breaches of negligence of any Advertisers or for any personal injuries, death, property damage or other damage or expenses resulting therefrom. In particular, Pancast accepts no liability for:
(a) the quality or suitability of any Suitable Pancast Advertisements, including whether they are in compliance with applicable laws or marketing standards;
(b) any acts or omissions of Advertisers or other third parties in the course of delivery of any Suitable Pancast Advertisements or any information in relation to the Suitable Pancast Advertisements, except to the extent that responsibility for those matters may be imposed on Pancast by laws that cannot be excluded;
(c) any delays, cancellations, force majeure or other causes beyond Pancast’s direct control; or
(d) the accuracy, reliability, effectiveness, or correct use of any information the Broadcaster receives through the Advertisers.
8.5. Pancast does not control nor supervise any Third Party Service Providers. Pancast is not liable for acts, omissions, warranties, errors, negligence of any Third Party Service Providers, including in relation to any Suitable TPSP Advertisement, for breaches by any Third Party Service Provider of a Third Party Agreement, or for any personal injuries, death, property damage or other damage or expenses resulting therefrom. In particular, to the fullest extent permissible by law, Pancast accepts no liability in respect of any representation which it makes in respect of any Third Party Service Providers.
8.6. In the event that the Services are not provided to the Broadcaster in accordance with this Agreement, the Broadcaster’s remedies against Pancast are limited to:
(a) seeking re-performance of the Services; or
(b) terminating the Agreement.
8.7. If, notwithstanding the limitations and exclusions of liability in the foregoing sub-clauses of this clause 8, Pancast is found liable to the Broadcaster for any Loss, then Pancast’s sole liability to the Broadcaster, whether in contract, tort or otherwise for any Loss of any kind shall in no event exceed in the aggregate an amount equal to the Ad Sales Revenue Share paid to the Broadcaster in previous 3 months before the date on which the relevant cause of action arose.
The Broadcaster agrees that it shall defend, indemnify and hold Pancast, its Affiliates and their officers, directors, members, employees, and personnel (Indemnified Parties) harmless from and against any and all Loss suffered or incurred by an Indemnified Party arising out of or in connection with:
(a) a breach by the Broadcaster of clause 2.3;
(b) a claim by a third party against the SSP Partner in relation to the Content which alleges that the Content violates any law, or violates, infringes upon or misappropriates any IP Rights, publicity or privacy rights, or that the Digital Video Streaming Service violates any law or the right of a third party, or which arises as a result of the Broadcaster’s breach of the warranty at clause 2.3(f);
(c) the Broadcaster’s use or misuse of the Services, and/or in the Broadcaster’s dealings with Advertisers, third party merchants, Third Party Service Providers, partners and/or sponsors;
(d) the Broadcaster’s violation or breach of any of the terms of this Agreement or any applicable law or regulation, whether or not referenced herein;
(e) the Broadcaster’s violation or breach of any Applicable Terms, the terms of any Third Party Agreement or Advertiser Terms; or
(f) the Broadcaster’s violation of any rights of any third party arranged via the Services,
save to the extent arising out of the fraud, negligence or wilful misconduct of Pancast.
If any provision of this Agreement is held or interpreted by any governmental or other competent authority or tribunal to be illegal or invalid under present or future laws or regulations effective and applicable during the term of this Agreement, such provisions shall be fully separable and this Agreement shall be construed as if such illegal or invalid provision had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain and continue in full force and effect and shall not be affected by the illegal or invalid provision or by its severance from this Agreement.
11. GOVERNING LAW & JURISDICTION
11.1. This Agreement shall be governed by and construed in accordance with the laws of Singapore.
11.2. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator to be appointed by the President of the SIAC. The language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the Parties.