A signed Contract must be submitted to Next Mobile seven (7) days in advance of the initial publication date. The placing of an order for the insertion of an Advertisement shall amount to an acceptance of the above conditions. No conditions other than those sets forth herein shall be binding on Next Mobile unless specifically agreed to in writing by Next Mobile. Next Mobile will not be bound by conditions printed or appearing on order blanks or copy instructions submitted by or on behalf of the advertiser/agency. These terms and conditions alone shall govern and be incorporated into the Contract made by Next Mobile and the advertiser/agency and supersedes all terms and conditions on Next Mobile's rate cards, and any previous agreements between Next Mobile and advertiser/agency.
The Advertiser shall prepare and deliver the ready-to-publish digital file(s) of the Advertisement to Next Mobile before the deadline set by Next Mobile. Late delivery of advertising material or cancellation of booking after the deadline will result in forfeiture of the space booked and the advertiser/agency shall be liable for full payment. The digital file(s) containing the Advertisement materials must conform to the quality and specifications advised by Next Mobile. The Advertiser agrees to pay the costs incurred by Next Mobile in processing Advertisement materials which does not meet the specification required by Next Mobile. Next Mobile shall not be held responsible for any loss or damage of the supplied advertising materials and the advertisers/agency shall at its own expenses collect them at Next Mobile’s office within one month after the publication of the advertisement, failing which Next Mobile shall be entitled to destroy or dispose of them as it deems fit without any liability to the advertiser/agency.
3. Changes and Cancellations
All artwork must be received at least seven (7) days in advance of publication date. Confirmed orders are non-cancellable. Copy changes will not be accepted after the published closing date. Next Mobile must receive changes to artwork at least five (5) days in advance of requested change date. Next Mobile reserves the right to alter or change any of its ad banner specifications at any time without prior notice. Any change orders by advertiser/agency must be made in writing and acknowledged by Next Mobile. Change orders cannot be submitted any more frequently than once every fourteen (14) days. This Contract may be cancelled or changed by Next Mobile at any time without prior notice or agreement by advertiser/agency. Rescheduling of Insertion Order by advertiser/agency must be made at least five (5) working days prior to campaign launch date with written notice and subject to inventory availability. For postponement of contracted booking, the campaign must be launched within 3 months from the original kick-off date. Homepage placement is subject to pre-emption with five (5) working days notice and is not eligible for postponement. Moreover Next Mobile may immediately terminate this Contract if any change occurs in any applicable laws or regulations that would, in Next Mobile's reasonable opinion, render Next Mobile's performance hereunder illegal or otherwise subject to legal challenge.
Unless otherwise agreed in writing and signed by the authorized signatory of Next Mobile who has waived all the requirements as a whole as set out in this paragraph, the validity of this Contract is always subject to the condition precedent that all payment due from the advertiser/agency must be paid by cash in advance (Payment by cheque is acceptable but this Contract is not valid pending the cheque is honoured upon presentation for payment.) upon the execution of this Contract, and in any event Next Mobile must have received the full payment in cash seven (7) days in advance of the initial publication date, failing which this Contract is not binding on Next Mobile Limited whatsoever and is deemed to be terminated forthwith. If, however, Next Mobile at its entire discretion chooses to waive the said condition precedent and print the Advertisement placed by the advertiser/agency nevertheless, the advertiser/agency shall be liable to Next Mobile for all legal costs, disbursements, and any costs of collection incurred by Next Mobile in association with or in connection to the enforcement of the full payment due from the advertiser/agency on a full indemnity basis. Interest will accrue on any past due amounts at the rate of two percent (2%) per month, but not in excess of the lawful maximum. Next Mobile shall have the right to hold the advertiser and/or its agency or agent jointly and severally liable for all amount due. All payments made to Next Mobile under this Contract shall be paid exclusive of any taxes imposed by any government, statutory or tax authority. Any such taxes shall be borne by the advertiser/agency.
5. Frequency and Discount
If Next Mobile fails to provide the guaranteed number of impressions, Next Mobile will make good on this Contract by providing advertiser with additional impressions. Next Mobile will not make good for under-delivery due to delays caused by advertiser/agency. Advertiser/agency may be entitled to a special discount on the Fees at such rate as may be determined by Next Mobile with regard to the quantity of Advertisements committed by the Advertiser under the Order. If special discount has been given to the Advertiser but the Advertiser fails to fulfill the quantity of advertisements committed under the Order upon termination or expiration of the Term for whatever reason, Next Mobile shall be entitled to charge the Standard Rates on all Advertisements committed under the Order. The Advertiser shall pay the difference between the Standard Rates and the discounted rate for all Advertisements displayed on the Site and the Standard Rates for all remaining Advertisements committed under the Order within seven (7) days after the termination or expiration of the Term.
6. Licenses and Indemnification
The Advertiser hereby warrants and represents that: (a). the Advertiser contracts with Next Mobile as principal (irrespective of whether it is an advertiser or an advertising agent or a media buyer and in case it is an agent, authorization to place the Advertisement has been obtained from the advertiser) and shall be principally liable for all liabilities under this agreement; (b). the publication of the Advertisement by Next Mobile will not be in breach of any contract or any third party's intellectual property rights including trade mark, service marks, logos, patent, copyright and trade secret; and (c). the Advertisement contains nothing that is defamatory, threatening, illegal, obscene, indecent, seditious, offensive, liable to incite racial hatred, discriminatory, menacing or in breach of any applicable rules or laws of Hong Kong.
In consideration of Next Mobile's acceptance of such advertisements and information for publication, the advertiser and agency will jointly and severally indemnify and hold Next Mobile harmless from and against any claims, prosecutions, judgments, losses, liabilities, costs, damages or expenses whatsoever arising out of or in connection with the publication of the Advertisement or the copying, printing, distributing, or publishing of advertiser's/ agency's advertisements, advertiser grants Next Mobile the right to use, reproduce, and distribute the advertisements.
7. Misleading Advertisement
The advertiser / agency shall be solely responsible for the contents of the Advertisement. The advertiser/agency shall not include any advertising on Next Mobile's Affiliate Sites and Mobile Apps that is untrue, misleading, unfair or deceptive and all advertising on Next Mobile's Affiliate Sites and Mobile Apps shall comply with all applicable laws and regulations of Hong Kong. The advertiser / advertising agency shall fully indemnify Next Mobile and hold Next Mobile harmless from and against any claims, prosecutions, judgments, losses, liabilities, costs, damages and expenses whatsoever arising out of or in connection with the publication of the Advertisement.
Next Mobile reserves the sole and absolute right to refuse order for any advertisement which is considered in Next Mobile’s sole discretion to be offensive or otherwise inappropriate for publication, with or without notice to the advertiser/agency. What constitutes as offensive or inappropriate is to be decided upon by Next Mobile exclusively.
9. Limitation of Liability
In any event Next Mobile shall not be liable for any errors in content or omissions. Should an error appear in an advertisement, Next Mobile's maximum liability will be limited to the cost of the advertisement (pro-rated for the publishing completed). Next Mobile will not be liable for any delays in delivery and/or non-delivery in the event of an act of God, action by any government entity, transportation, strike, network difficulties, electronic malfunction, etc. or any feasibility, reliability, or effectiveness related to Next Mobile’s Affiliate Sites and Mobile Apps. Next Mobile does not represent or warrant that Next Mobile’s Affiliate Sites and Mobile Apps will meet the objectives or needs of advertiser/agency or any third party. In no event will Next Mobile be liable for any failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, or other non-performance related to Next Mobile’s Affiliate Sites and Mobile Apps. UNDER NO CIRCUMSTANCES WILL NEXT MOBILE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST INCOME OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS CONTRACT, EVEN IF NEXT MOBILE HAD BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
10. Special Undertaking
With the Trade Descriptions (Unfair Trade Practices) (Amendment) Ordinance 2012 (the "Amendment Ordinance") coming into operation on 19th July 2013, the advertiser/agency hereby represents and warrants that they shall strictly comply with the provisions of the Amendment Ordinance and that all the contents of the Advertisement submitted for publication are true and correct. In consideration of Next Mobile accepting the Advertisement for publication, the advertiser / agency jointly and severally undertake that they shall indemnify, defend and hold Next Mobile harmless from and against any claims, prosecutions, judgments, losses, liabilities, costs, damages or expenses whatsoever arising out of or in connection with the publication of the Advertisement.
11. Advertorial Advertisement
In the event that the Advertiser/Advertising Agency instructed Next Mobile or its affiliated companies to prepare any advertisement(s) for the purpose of publication in Next Mobile’s Affiliate Sites and Mobile Apps, other than the terms and conditions already set forth hereinabove, the Advertiser/Advertising Agency further represents and warrants that such advertorial advertisement(s) would be prepared in strict compliance with the instructions and information from the Advertiser/Advertising Agency and that such instructions and information would not contravene the laws of Hong Kong (including, but not limited to the Amendment Ordinance). Next Mobile or its affiliated companies hereby expressly disclaim any liabilities in relation to the contents of such advertisement(s) and the Advertiser/Advertising Agency shall indemnify, defend and hold Next Mobile harmless from and against any claims, prosecutions, judgments, losses, liabilities, costs, damages or expenses arising out of or in connection with the publication of the advertorial advertisement under this term and condition.
12. Choice of Law and Forum
This Contract shall be interpreted and construed in accordance with the laws of Hong Kong Special Administrative Region and each party hereby submits to the non-exclusive jurisdiction of the Hong Kong SAR courts.
No public statements concerning the existence or terms of this Contract will be made or released to any medium except with the prior approval of both parties or as required by law. This Contract cannot be sold, assigned or transferred by advertiser/agency to any party. If any portion of the Contract is found unenforceable for any reason, the remainder will remain in full force and effect. No waiver by Next Mobile shall operate as a waiver of any other provision or any subsequent default. This document represents the entire agreement of the parties; Next Mobile will not be bound by the representations of any agents, brokers, or other third parties. Any modifications must be in writing and signed by an authorized representative of Next Mobile and the advertiser/advertising agency.
Updated on: 19 Aug 2015