Last updated: January 15, 2015
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 (“Publisher” 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 including SDKs (“SOMA™ SDK”), Smaato Ad Server, RTB Technology that Smaato (“Ad-Enabling Smaato Technology”), in its sole discretion, may make available to Publisher from time to time.
1.2 Publisher Assent. THESE TERMS AND CONDITIONS (“TERMS”) ARE A LEGAL AGREEMENT BETWEEN PUBLISHER AND SMAATO. PLEASE READ THESE TERMS 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 THESE TERMS (IN CASE OF AN ENTITY), AND (2) AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, CLICK THE “DECLINE” BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY SMAATO.
2.1 Delivery. In consideration for Publisher’s assent to these Terms in accordance with Section 1.2 above, and subject to the terms and conditions set forth in these Terms, Smaato may deliver or make available to Publisher certain Ad-Enabling Smaato Technology and/or the SOMA™ SDK, RTB Technology and any associated software or service that enables the You and Your Publishers to sell advertising inventory to and receive advertisements from third-party advertisers for the placement of such advertisements on publishers’ mobile properties. Subject to the terms and conditions of these Terms, Smaato hereby grants Publisher, during the Term, a nonexclusive, non-transferable, non-sublicensable, limited, revocable license to use the Service for the purpose of displaying advertisements on the advertising inventory made available by Publisher, in accordance with the terms of these Terms and with the policies and requirements specified by Smaato from time to time. These Terms applies to Publisher’s use of the Service for itself and on behalf of any of Your Publishers.
2.2 License Limitations. Publisher 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 these Terms, Publisher 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. Publisher 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.
2.3 Updates. If Smaato, in its sole discretion, provides Publisher a new version or an update to the Ad-Enabling Smaato Technology (“Update”), Publisher 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.
2.4 Ownership. The license granted in these Terms 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. Publisher agrees not to remove, alter or obscure any proprietary notices (including copyright notices) on any portion of the Service.
3.1 Ad Delivery. Publisher acknowledges and agrees, and Publisher 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 Publisher’s Mobile Properties to the Services. Publisher shall indemnify and hold Smaato harmless from any losses and liabilities arising out of Publisher’s failure to comply with this Section.
4.1 Content Guidelines. Publisher shall strictly comply with Smaato’s Content Guidelines (to be found at www.smaato.com/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 Publisher’s websites, Publisher’s services, Publisher’s URLs, Publisher’s applications, also including Ads (collectively referred to as “Publisher’s Property”) that would violate Smaato’s Content Guidelines, which may be amended from time to time. Smaato reserves the right, at all times, to discontinue any Services, if Smaato determines, in its sole discretion, that the Publisher is not in compliance with the restrictions under this Section.
Publisher 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 Publisher for the months of the occurrence of such failures up to 6 months back.; and (ii) Immediately block the Publisher 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.
5.5 Data Ownership. Publisher 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: Publisher owns any data it collects and Smaato owns any data it collects.
6.1 Compensation. Reporting. Provided that You are not in breach with these terms, Smaato will pay You a portion of the revenues actually received by Smaato from advertisers for advertisements displayed on Your advertising inventory via the Service, as determined by Smaato from time to time in its sole discretion. The compensation payable to Publisher shall be based on the percentage of the Net Revenue set forth in Exhibit A (“Net Revenue Share”). Payments will be calculated solely based on records maintained by Smaato, and no other measurements or statistics of any kind will be accepted or have any effect. Within thirty (30) days after the end of each calendar month during the Term, Smaato will provide You a written or electronic report, or will enable You to access such reports online, showing the bases for calculating the Net Revenue Share for such month.
6.2 Payment Terms. Smaato will pay You within sixty (60) days after the end of the calendar month in which the applicable revenues was received by Smaato. If the amount payable to You for any given month is less than $100, Smaato may roll such amount over to the subsequent payment period until the amount payable reaches a minimum of $100. All payments will be made in U.S. dollars. As a condition to Smaato’s obligation to make payments hereunder to Publisher, You must provide and maintain accurate contact and payment information associated with Your account, including without limitation a completed and accurate W9 or equivalent (for US based Publishers) or a completed and accurate W-8 or equivalent (for non US-based Publishers). This process will continue until such time that Smaato receives your completed W-9 or W-8 form, as applicable.
6.3 Taxes. Except for taxes on Smaato’s income, You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your use of the Service.
6.4 Offset. Smaato reserves the right to offset any amount owed by Smaato to Publisher under these terms by any amount owed by You to Smaato for use of any other service.
6.5 Exclusions. Smaato will not be liable for making any payment based on (a) any fraudulent impressions or fraudulent clicks generated by any person, robot, automated program, or similar device, as reasonably determined by Smaato; (b) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in (a) above; or (c) any breach of these terms and conditions. Without prejudice to any other rights and remedies of Smaato, Smaato reserves the right to withhold payment or claim back payments due to any of the foregoing or any breach of these Terms by You.
7.1 Access to Service. PUBLISHER AGREES THAT SMAATO HAS NO OBLIGATION TO ALLOW PUBLISHER ACCESS TO THE SERVICES OR ANY PART THEREOF, AND MAY REFUSE TO ALLOW ACCESS TO THE SERVICES TO ANY PUBLISHER AT ANY TIME. Further, Smaato may modify, suspend or discontinue the Services (or Publisher’s access to the Services), including the availability of Ads or other content, at any time and without notice or liability if Smaato reasonably believes that You have violated, or is likely to violate, these Terms. Smaato hereby reserves the right to amend the herewith Terms and Smaato Content Guidelines at any time and without notice, and it is your responsibility to review these Terms for any changes. Your use of the Service will signify your assent to and acceptance of the revised Terms and/ revised Content Guidelines.
7.2 Term. Termination. Without limiting anything set forth in Section 7.1, these Terms shall become effective upon acceptance by Publisher as described in Section 1.2 and shall remain in full force and effect until terminated in accordance with the terms hereof. Either party may terminate these Terms at any time upon thirty (30) days’ prior written or electronic notice.
7.3 Effect of Termination. Upon expiration or termination of these Terms, Publisher’s right to use the Service will immediately ceases and You will immediately remove any Smaato technology from Your mobile properties and destroy or return to Smaato all other Smaato materials in its possession. Sections 2.3 (License Limitations), 4 (Content), Section 6 (Compensation), 7.3 (Effect of Termination), Section 8 (Confidential Information), Section 9 (Publisher Representations and Warranties), Section 10 (Warranty Disclaimer), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 13 (Miscellaneous) of these Terms will survive the expiration or termination of these Terms.
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 these Terms, 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 these Terms 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 these Terms. 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.
Publisher covenants, warrants and represents that (i) it owns or is authorized to use the Mobile Properties in connection with the Services; (ii) it will comply with all applicable laws and regulations in connection with its use of the Service (including without limitation any relevant data protection or privacy laws); (iii) its mobile properties used in connection with the Service, and any material displayed therein, (a) comply with all applicable laws and regulations; (b) do not infringe any third party’s rights, including without limitation intellectual property rights and privacy rights; (c) will not introduce viruses or other malware to the Services or Smaato systems or end users, and (d) comply with the Content Guidelines (to be found at http://www.smaato.com/content-guidelines/); (iv) it will comply with the Content Guidelines; (v) it will not spread malicious code, viruses, Trojan horses, trap doors, malware, spyware or similarly harmful measures through the Service.
THE SERVICES, THE SITE, AND ALL CONTENTS AVAILABLE OR ACCESSIBLE THROUGH THE SERVICES (INCLUDING WITHOUT LIMITATION ADVERTISING MATERIALS) AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, 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 (A)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; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA OR REPORTING WILL BE ACCURATE, RELIABLE OR FREE FROM LO; ANY CONTENT, INCLUDING ADS, TRANSMITTED THROUGH THE USE OF THE SERVICES IS DONE AT PUBLISHER’S OWN DISCRETION AND RISK AND PUBLISHER 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 Publisher. Upon Smaato’s request Publisher 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 these Terms for which Publisher is responsible of in connection with Publisher’s Mobile Properties made available or connected on or through Services, including, without limitation, Losses based upon a claim by a third party that Publisher’s Mobile Properties 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 Publisher of any covenants, representations or warranties made in these Terms. 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 or settle any claim, demand, suit or proceeding (“Claim”) brought against Smaato by any third party arising out of: (i) a breach by Smaato of Section 9 or of any representation or warranty provided by Smaato under these Terms. Notwithstanding the foregoing, Smaato shall have no obligation hereunder to the extent such Infringement Claim arises out of or relates to modification or combination of the Smaato Ad-Enabling Technology by Publisher with any third party’s software, services or other items not provided by Smaato or its vendors (“Third Party Materials”) unless such modification or combination was foreseeable or otherwise approved by Smaato. In addition, with respect to any Ads displayed on any mobile inventory of Publisher’ sites which Ads are made available by Smaato, if and to the extent that Smaato is indemnified by the advertiser with respect to the content of such Ads (“Indemnified Ad”), Smaato will pass through such indemnity to Publisher for third party Claims brought against Smaato alleging that the Indemnified Ad Content contains any Prohibited Ad Content. ; .
11.3 Indemnification procedure. The obligations of each party (the “Indemnitor”) under these Terms 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 AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES 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. PUBLISHER SPECIFICALLY AGREES THAT SMAATO IS NOT LIABLE TO PUBLISHER, END-USER OR ANYONE ELSE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OR OTHERWISE OFFENSIVE CONTENT THAT MAY BE TRANSMITTED THROUGH THE SERVICES. PUBLISHER FURTHER AGREES THAT SMAATO WILL NOT BE LIABLE FOR ANY LOSSES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICES, WHETHER INTENTIONAL OR NEGLIGENT. IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF SMAATO AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES, EXCEED THE LESSER OF (A) FIFTEEN THOUSAND U.S. DOLLARS (USD 15,000), OR (B) THE AGGREGATE AMOUNT OF FEES PAID BY SMAATO TO PUBLISHER UNDER THESE TERMS DURING THE 12 MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
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.
13.1 Notices. All notices, requests, approvals, demands and other communications hereunder must be in writing and shall be deemed given: (i) if delivered personally, on the date given; (ii) sent via facsimile; (iii) if by certified or registered mail, postage prepaid, return receipt requested 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. These Terms shall be governed by the laws of the State of California, without regard to any conflict or choice of law principles. 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 these Terms, waiving all defenses related to jurisdiction, forum and venue.
13.3 Assignment. Neither Party shall assign these Terms in whole or part without the prior written consent of the other Party, provided however that either Party may assign these Terms to an acquirer of all or substantially all of such Party’s assets, whether by merger, operation of law or reorganization or sale of a substantial part of the assets or business to which these Terms relates or to any of its affiliates or otherwise, without the other Party’s prior written approval.
13.4 No Waiver. Failure or delay by Smaato in exercising or enforcing any right or remedy it has under these Terms or at law shall not operate as a waiver of that or any other right or remedy, and shall not preclude or restrict any further exercise or enforcement by Smaato of that or any other right or remedy.
13.5 Severability. The provisions of these Terms are intended to be severable. If any provision of these Terms is held to be invalid or unenforceable by any court having competent jurisdiction, such provision will be revised to the extent necessary to cure the invalidity or unenforceability, and the remaining provisions of these Terms will remain in full force and effect.
13.6 Relationship of the Parties. The parties are independent contractors, and nothing contained in these Terms shall be deemed or construed to create an agency, joint venture, partnership, fiduciary or other similar relationship between the parties. There are no intended third party beneficiaries under these Terms.
13.7 Force Majeure. Neither party will be liable for failure or delay in performing its obligations due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, acts of government, fire, flood, earthquake, electrical outages, failure of network connections, failure of telecommunications, failure of mobile service providers, or Internet service provider disruptions (including without limitation denial of service attacks).
13.8 Counterparts. These Terms may be executed in counterparts (including, without limitation, counterparts by facsimile, PDF or other electronic copies), each of which will be deemed an original, but all of which together will constitute one and the same instrument.
13.9 Entire Agreement; Amendment. These Terms, together with the Exhibits, constitutes the entire agreement between Publisher and Smaato with respect to Publisher’s use of the Service and supersedes all prior agreements and understandings between Publisher and Smaato with respect thereto. Any modification to these Terms shall be made in writing (electronically or otherwise) and must be agreed by Publisher 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 of the Publisher. Any exceptions to this are subject to Smaato’s written confirmation.
2. Direct Ad Sales by Publisher or Smaato: If either Publisher 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.
3. Publisher’s Networks: It is agreed between Publisher and Smaato that Publisher is required to allocate at least 10% of its total available inventory for sourcing the Ads from Smaato. In the event Publisher does not comply with this requirement, Publisher recognizes and understands that Smaato is entitled at its own discretion to charge the Publisher a certain fee.