1.1 Services. Smaato, Inc. (“Smaato”) owns and operates certain services (“Services”) aimed to facilitate the delivery and insertion of advertisements (“Ads”) by publishers and software developers (“Client” or “You”) on end-users’ (“End User”) wireless devices, including without limitation through mobile sites, mobile applications and wireless device platforms (“Mobile Properties”). The Services may be comprised of one or more of the following: various web pages available at www.smaato.com (“Site”) and certain software (“Ad-Enabling Smaato Technology”), including SDKs (“SOMA™ SDK”) that Smaato, in its sole discretion, may make available to Client from time to time.
1.2 Client Assent. THESE TERMS OF SERVICE (“Agreement”) ARE A LEGAL AGREEMENT BETWEEN CLIENT AND SMAATO. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES OR ANY PART THEREOF. BY CLICKING THE “ACCEPT AND AGREE” BOX, YOU (1) REPRESENT THAT YOU ARE (A) AT LEAST 18 YEARS OF AGE (IN CASE OF AN INDIVIDUAL) OR (B) AUTHORIZED TO ENTER INTO THIS AGREEMENT (IN CASE OF AN ENTITY), AND (2) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY SMAATO.
2.1 Delivery. In consideration for Client’s assent to this Agreement in accordance with Section 1.2 above, and subject to the terms and conditions set forth in this Agreement, Smaato may deliver or make available to Client certain Ad-Enabling Smaato Technology and/or the SOMA™ SDK.
2.2 License. Subject to the terms and conditions of this Agreement, Smaato hereby grants Client, during the Term, a nonexclusive, non-transferable, non-sublicensable, limited, revocable license:
(a) to access the Site and use the Services; and
(b) to copy and use the Ad-Enabling Smaato Technology provided by Smaato, to enable End-Users’ Mobile Property to operate with the Services to serve Ads to such End-Users’ wireless devices;
(c) if a “SOMA™ SDK” is being provided to a Client hereunder, to copy and use such SDK solely to integrate it with the Client’s mobile applications and to distribute such integrated mobile applications containing the SDK to End-Users.
2.3 License Limitations. Client shall not, reverse engineer, decompile, or disassemble the Ad-Enabling Smaato Technology or the SOMA™ SDK, except to the extent that such restrictions are expressly prohibited by applicable law. Further, except as expressly permitted in this Agreement, Client shall not (i) copy, modify or adapt the Ad-Enabling Smaato Technology or the SOMA™ SDK; or (iii) rent, lease, sublicense, sell, assign, loan or otherwise transfer the Ad-Enabling Smaato Technology or the SOMA™ SDK. Client must comply with all applicable laws when using the Services and must not use the Services in a manner than threatens the integrity, performance, or availability of the Services.
2.4 Updates. If Smaato, in its sole discretion, provides Client a new version or an update to the Ad-Enabling Smaato Technology (“Update”), Client shall promptly cease use of the prior version of such Ad-Enabling Smaato Technology, and instead, shall incorporate and use such Update in connection with the Service.
2.5 Ownership. The license granted in this Agreement does not constitute a transfer of ownership or sale of the Services, the Ad-Enabling Smaato Technology, the SOMA™ SDK (“Smaato Property”), or any other proprietary rights of Smaato, including the intellectual property rights in any of the foregoing. Except for the license granted above, Smaato retains all right, title and interest in and to the Services, the Ad-Enabling Smaato Technology and the SOMA™ SDK. Client agrees not to remove, alter or obscure any proprietary notices (including copyright notices) on any portion of the Service.
3.1 Ad Delivery. Client acknowledges and agrees, and Client shall require its End-User customers to acknowledge and agree that Smaato shall have the right, including the right to authorize third parties, to serve and deliver Ads to End-Users’ wireless devices as part of the Services and the right to access, index and cache requests made from Client’s Property to the Services. Client shall indemnify and hold Smaato harmless from any losses and liabilities arising out of Client’s failure to comply with this Section.
3.2 Non Interference. As between Smaato and Client, Smaato shall have the sole right to negotiate and conclude agreements with advertisers and ad networks for the delivery of Ads to End-Users’ mobile devices in connection with the Services, and Client shall not interfere with such Smaato business in any way.
4.1 Client shall strictly comply with Smaato’s Content Guidelines and not contribute, submit or make available through the Services, or use the Services in connection with, any content including but not limited to Client’s websites, Client’s services, Client’s URLs, Client’s applications, also including Ads (collectively referred to as “Client’s Property”) that would violate Smaato’s Content Guidelines. Smaato reserves the right, at all times, to discontinue any Services, if Smaato determines, in its sole discretion, that the Client is not in compliance with the restrictions under this Section.
Client acknowledges and agrees that, in addition to the remedies to which Smaato is entitled under the Section 11. Indemnification contained below, for failure to comply with the Content Guidelines, Smaato reserves the right, at its sole discretion, at all times to:(i) Retain all and any accrued payments or revenues of the respective Client for the months of the occurrence of such failures up to 6 months back.; and (ii) Immediately block the Client and subsequently discontinue using any Smaato Services.
5.4 Transfer of Information. In the event that Smaato or a portion of Smaato’s assets is acquired by another company, the information collected about You and End-Users through the Services may be one of the transferred assets. Please direct any questions You might have about our privacy practices to privacy(at)smaato.com.
6.1 Net Revenue Share
In consideration for the Publisher’s use of the Services and subject to the terms and conditions of this Agreement, Smaato shall pay Publisher an amount equal to the percentage of the Net Revenue set forth in Exhibit A (“Net Revenue Share”). “Net Revenue” means the amount actually received by Smaato or Publisher from third party advertisers or ad networks for Ads delivered to End-Users’ wireless devices through the Mobile Property that has been enabled by Ad-Enabling Smaato Technology or SOMA™ SDK provided in connection with the Services, calculated per impression (“CPM”), click (“CPC”) or action based on information and methodologies used by Smaato in the ordinary course of business or, from time to time, as reported by third parties, less any advertising agency fees, ad networks’ payout, rich media fees, RTB fees, wire and other banking costs.
6.2.1 Payment Reporting
Within thirty (30) days after the end of each calendar month during the Term, Smaato will provide Publisher a written or electronic report, or will enable Publisher to access such reports online, showing the bases for calculating the Net Revenue Share for such month (“Payment Reports”).
6.2.2 Payment Due
Within sixty (60) days after the end of each calendar month during the Term, Smaato shall remit the Net Revenue Share to Publisher for such calendar month in the manner and form agreed between Smaato and Publisher provided, however, that Smaato shall have no obligation to remit such Net Revenue Share to the Publisher until the applicable Net Revenue has been received by Smaato from the applicable advertisers or third party.
6.2.3 Payment Conditions
The credit notes issued by Smaato are subject to the minimum amount of one (1) USD, provided that no credit notes will be produced for amount less than one (1) USD. Further, for wire transfer, the Payment of the Net Revenue Share shall not be made until at least US$100 is payable to Client. For Paypal the US$100 threshold amount does not apply.
Payment of the Net Revenue Share shall be made in U.S. Dollars. If payments by advertisers or ad networks are made in currency other than the U.S. Dollars, or a non-U.S. currency is involved in the calculation or payment of the Net Revenue Share, then Smaato may, in its sole discretion, convert such payment to U.S. Dollars using the foreign exchange currency rates as published by www.oanda.com (or such other website or service which replaces it and which the pay-per-click industry recognizes as a standard) at the time the conversion is made by Smaato.
6.4 Costs; Taxes
Except as otherwise expressly provided hereunder, each party will be responsible for all costs and expenses incurred by such party in connection with the performance of its obligations under this Agreement. Client shall pay all applicable taxes or fees imposed by any government authority in connection with Client’s user of the Services.
6.5 No Fraudulent Clicks
Client shall not, and shall not authorize others, to generate fraudulent clicks or impressions on any Ads served as part of the Services, whether generated manually or by use of a device or other automated process. Failure to comply with the foregoing shall be deemed a material breach of this Agreement. In addition, no payment shall be made hereunder in connection with any such fraudulent clicks or impressions.
Client agrees and acknowledges that the Client’s Property it makes available through Smaato Services shall all times comply with the Content Guidelines and not contain the content as described in the Content Guidelines. Failure to comply with the foregoing shall be deemed a material breach of this Agreement. In addition Smaato is entitled to retain any due or accrued payments subject to the provisions described above under Section 4.
6.7 Forfeiture of Payment
Client agrees and acknowledges that upon it shall provide Smaato with correct and accurate PayPal Account or other bank account information for the purposes of Payment. Failure to comply with this section shall result in forfeiture of the due Payment after the expiration of six (6) month period as of the date of the issuance of the first credit note or invoice by Smaato, however only after three (3) successive unsuccessful payment attempts at the given Paypal or bank accounts information. Client agrees to hold Smaato harmless for the measures applicable should the Client be in default of providing accurate information about its PayPal or other bank account information to Smaato.
7.1 Access to Service. CLIENT AGREES THAT SMAATO HAS NO OBLIGATION TO ALLOW CLIENT ACCESS TO THE SERVICES OR ANY PART THEREOF, AND MAY REFUSE TO ALLOW ACCESS TO THE SERVICES TO ANY CLIENT AT ANY TIME. Further, Smaato may modify, suspend or discontinue the Services (or Client’s access to the Services), including the availability of Ads or other content, at any time and without notice or liability. Smaato hereby reserves the right to amend the herewith Agreement and Smaato Content Guidelines at any time and without notice, and it is your responsibility to review this Agreement for any changes. Your use of the Service will signify your assent to and acceptance of the revised Agreement and/ revised Content Guidelines.
7.2 Term. Without limiting anything set forth in Section 7.1, this Agreement shall become effective upon acceptance by Client as described in Section 1.2 and shall remain in full force and effect until terminated in accordance with the terms hereof
7.3 Termination for Convenience. Either party may terminate this Agreement at any time upon thirty (30) days’ prior written or electronic notice; provided that the effective date of such termination shall be the last day of the calendar month in which the 30th day of such notice falls.
7.4 Termination for Breach. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party, which breach has not been cured within 30 days of the notice from the non-breaching party.
7.5 Effect of Termination.
(a) Except as otherwise provided in Section 7.5(b), all rights and obligations of the parties under this Agreement shall terminate upon the expiration or termination of this Agreement, including without limitation all licenses granted pursuant to this Agreement. Client shall remove from its services, websites and marketing literature all references to Smaato or the Services. Client shall also cease all use and shall destroy or return to Smaato all Ad-Enabling Smaato Technology and other Smaato materials in its possession.
(b) Notwithstanding the foregoing, the following shall survive termination or expiration of this Agreement for any reason: 2.3 (License Limitations), 4 (Content), 7.57.5 (Effect of Termination), Section (b) (Confidential Information), Section 9 (Client Representations and Warranties), Section 10 (Warranty Disclaimer), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 13 (Miscellaneous), and any payment obligations of a party that accrue prior to the effective date of such termination or expiration.
8.1 Confidential Information. You will hold in strictest confidence the Ad-Enabling Smaato Technology, the SOMA™ SDK and any related materials or information provided by Smaato to You, either directly or indirectly in writing, electronically orally or by inspection of tangible objects (“Confidential Information”). Except as otherwise expressly permitted under this Agreement, You will not disclose any Confidential Information to third parties. You will take reasonable measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Confidential Information, including but not limited to limiting the disclosure of such Confidential Information to Your employees and independent contractors with a need to know to perform Your obligations under this Agreement and who have been advised of the confidential nature thereof, and have agreed not to disclose or use such Confidential Information except as permitted by this Agreement. You will immediately notify Smaato in the event of any unauthorized or suspected use or disclosure of the Confidential Information. Notwithstanding the foregoing, You shall have no obligations hereunder for any information which is already known to You prior to disclosure by Smaato; publicly available through no fault of Yours; lawfully and rightfully disclosed to You by a third party under no confidentiality obligation to Smaato; or is independently developed by You without reference to Confidential Information.
8.2 Data Ownership. Client and Smaato understand that all data, including, but not limited to, information provided by End-Users in response to an Ad and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by a party with respect to an End-User from such data shall be owned as follows: Client owns any data it collects and Smaato owns any data it collects.
Client covenants, warrants and represents that (i) Client owns or is authorized to use the Client’s Property in connection with the Services; (ii) Client is and shall comply with all applicable laws and regulations; (iii) Client’s content has not and will not infringe third party intellectual property rights and rights of privacy or publicity; (iv) Client’s Property does not contain, promote, contribute, submit, make available through the Services or have links to content that does not comply with the Content Guidelines.
THE SERVICES, THE SITE, AND ALL CONTENTS AVAILABLE OR ACCESSIBLE THROUGH THE SERVICES AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SMAATO MAKES NO OTHER WARRANTY AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE SITE, AND ITS CONTENT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. SMAATO MAKES NO WARRANTY OF ANY KIND THAT THE SMAATO SERVICE AND/OR THE SITE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, AND SECURE OR OPERATE WITHOUT ERROR OR THAT ANY SOFTWARE PROVIDED HEREUNDER WILL OPERATE WITHOUT ERROR. ANY CONTENT, INCLUDING ADS, TRANSMITTED THROUGH THE USE OF THE SERVICES IS DONE AT CLIENT’S OWN DISCRETION AND RISK AND CLIENT WILL BE SOLELY RESPONSIBLE THEREFOR. FURTHER, SMAATO MAKES NO REPRESENTATIONS REGARDING THE LEVEL OF CLICKS OR IMPRESSIONS ON ANY ADS THAT MAY BE DELIVERED THROUGH THE SERVICES. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
11.1 By Client. Upon Smaato’s request Client agrees to defend, indemnify and hold harmless Smaato and its Affiliates and third parties contractors, partners and Advertisements providers (Ad Networks, Advertisers and other such Ads Vendors) from and against all claims, costs, damages, liabilities and losses of any kind including reasonable attorneys’ fees (“Losses”) arising out of or relating to the breach of, or non-compliance with, any provision of this Agreement for which Client is responsible of in connection with Client’s Property made available or connected on or through Services, including, without limitation, Losses based upon a claim by a third party that Client’s Property including any modification or combination thereof with the Ad-Enabling Smaato Technology, the SOMA™ SDK or Smaato Services by any party other than Smaato (i) infringes any intellectual property rights of a third party or results in other third party liability claim; or (ii) infringes the Content Guidelines and/ or not in compliance with the content; or (iii) arising out of a breach by Client of any covenants, representations or warranties made in this Agreement. Without limiting the generality of the foregoing, you agree to indemnify and hold Smaato harmless for any improper or illegal use of your Account, including the illegal or improper use of your Account by someone to whom you have given permission to use your Account. You agree that you will be personally responsible for your use of Smaato Services and for all of your communication and activity on Smaato Services, including any content you contribute, and that you will indemnify and hold harmless Smaato and Smaato Affiliates from any liability or damages arising from your conduct on Smaato Services, including any content that you contribute.
11.2 By Smaato. Smaato shall defend and/or settle any claim (an “Infringement Claim”) brought against Client alleging that, when used in accordance with the terms of this Agreement, the Ad-Enabling Smaato Technology or the SOMA™ SDK (“Smaato Technology”) infringes any U.S. copyright or trade secret; provided that (i) Client promptly notifies Smaato in writing of such Infringement Claim, (ii) allows Smaato the sole control of the defense and/or any settlement of such Infringement Claim, and (iii) provides assistance, at Smaato’ expense, as reasonably requested by Smaato. Notwithstanding the foregoing, Smaato shall have no obligation hereunder to the extent that any such Infringement Claim arises out of or relates to any third party materials, or the modification or combination of the Smaato Technology with any third party’s software, services or other items not provided by Smaato (“Third Party Materials”) to the extent that no allegation of infringement or infringement would have occurred but for such Third Party Materials.
11.3 Indemnification procedure. The obligations of each party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless the other party and its respective directors, officers, employees, agents and representatives (each an “Indemnitee”) shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SMAATO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, HOWEVER CAUSED, AND WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS, LOSS OF DATA, OR OTHER SUCH PECUNIARY LOSS, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, EVEN IF SMAATO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. CLIENT SPECIFICALLY AGREES THAT SMAATO IS NOT LIABLE TO CLIENT, END-USER OR ANYONE ELSE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OR OTHERWISE OFFENSIVE CONTENT THAT MAY BE TRANSMITTED THROUGH THE SERVICES. CLIENT FURTHER AGREES THAT SMAATO WILL NOT BE LIABLE FOR ANY LOSSES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICES, WHETHER INTENTIONAL OR NEGLIGENT.
12.2 IF YOU ARE DISSATISFIED WITH THE SERVICES, THE CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR WITH ANY OF THE TERMS OF SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
12.3 IN NO EVENT SHALL SMAATO’S LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED THE LESSER OF (A) THE TOTAL PAYMENTS MADE BY SMAATO, OR (B) FIFTEEN THOUSAND (US$15,000) U.S. DOLLARS.
12.4 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.5 The warranty disclaimer, exclusive remedies, and limitations of liability and damages set forth above are fundamental elements of the basis of the agreement between Client and Smaato. Client acknowledges that Smaato would not be able to provide the Services on an economically reasonable basis without these limitations.
13.1 Notices. Any notice or other communication required or permitted to be given to Smaato hereunder shall be given in writing, delivered in person, sent via facsimile or delivered by recognized overnight courier service to Smaato at its address specified below. Notice shall be deemed effective upon receipt when hand delivered, within five (5) business days of mailing and on the business day following the day of facsimile transmission. Smaato may from time to time change the individual designated to receive notices or its address.
240 Stockton St, 10th Floor
San Francisco, CA 94108, USA
Attn: Legal Dept
T: +1 (650) 286-1198
F: +1 (650) 240-0708
13.2 Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to any conflict or choice of law principles.
13.3 Dispute Resolution. The parties agree to submit to the exclusive jurisdiction of the state and federal courts in Santa Clara County, California with respect to any disputes arising out of this Agreement, waiving all defenses related to jurisdiction, forum and venue.
13.4 General. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Client shall have no right, by operation of law or otherwise, to assume, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, to any third party, without the prior written consent of Smaato, including in the event of a merger or a sale of all or substantially all of Client’s stock or assets. Smaato’s failure to strictly enforce any term or condition of this Agreement or to exercise any right, power, or privilege arising hereunder shall not constitute a waiver of Smaato’s right to strictly enforce such terms or conditions or exercise such right, power, or privilege thereafter. All rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies Smaato may have at law or in equity. Any waiver by Smaato of a default by Client hereunder shall not operate as a waiver of any other default or of the same default thereafter. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, rights, powers, and privileges shall not be affected or impaired thereby. The prevailing party in any legal action hereunder shall be entitled to reimbursement of its expenses including without limitation reasonable attorneys’ fees. The paragraph headings herein are for convenience only and form no part of the Agreement and shall not affect the interpretation of the Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior agreements pertaining hereto. Any modification to this Agreement shall be made in writing (electronically or otherwise) and must be agreed by Client in writing (electronically or otherwise) or by using the Services following Smaato’s notice of such modification.
1. Net Revenue Share
|AD IMPRESSION LEVEL||NET REVENUE SHARE|
The Net Revenue Share for the actual month is based on the Ad Impression Level of the previous month. The first month’s Net Revenue Share is based on the entry level of 70/30 in favor to the Client. Any exceptions to this are subject to Smaato´s written confirmation.
2. Direct Ad Sales by Client or Smaato: If either Client or Smaato sources Ads directly, without the use of an ad sales network, the party sourcing such Ads will receive 40% of the revenue collected from advertisers/agencies payable to the party prior to the calculation of Net Revenue Share in accordance with the chart above.