Effective Date: October 18, 2016
1.1 Services. Publisher and Smaato agree that Smaato may deliver Ads to Media Ad Inventory located on the Publisher Properties. Publisher will make the Publisher Properties available pursuant to these Terms of Service and may facilitate such actions or transactions to enable Publisher to receive payments for Ads delivery on the Publisher Properties. For these purposes, Publisher may use Smaato’s Services in connection with the sale of such Media Ad Inventory. Smaato and Publisher are each a “Party,” and collectively are the “Parties” to these Terms of Service.
Smaato, Inc. (“Smaato”) owns and operates certain services (“Services”) aimed to facilitate the delivery and insertion of Ads by mobile website publishers, mobile application publishers, and/or mobile application developers (“Publisher”), through the Publisher Properties, on End-Users’ Wireless Devices. 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 SOMA™ SDK and the Smaato Publisher Platform (SPX) (software collectively “Smaato Ad Services”), that Smaato may make available to Publisher in its sole discretion.
1.2 Publisher Assent. THESE TERMS OF SERVICE (“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.
“Advertisement” or “Ad” means an advertisement represented by text, graphics, audio, video, or rich media such as movement, animation, flash, or other promotional activity provided by Advertisers.
“Advertiser” means the person or entity providing Ads, who has contracted with Smaato to purchase, or to have Smaato purchase on its behalf, Media Ad Inventory for the purpose of displaying Ads on the Publisher Properties.
“Content Guidelines” means the editorial and content guidelines, available at http://www.smaato.com/publisher-content-guidelines/ (which may be amended periodically), for any content on the Publisher Properties.
“End-User Information” means any non-personally identifiable information about an End-User who visits the Publisher Properties. Non-personally identifiable information includes, but is not limited to: the type of Wireless Device used by an End-User, IP addresses, the Ads delivered to an End-User, when such Ads were delivered to End-Users, and which Ads an End-User clicked, as well as any precise geo-location data (e.g., latitude/longitude coordinates), where Publisher permits such collection.
“End-User” means any visitor accessing the Publisher Properties through a Wireless Device.
“Impression” means a single instance of displaying an Ad to a bona fide End-User on such End-User’s Wireless Device. “Impression” excludes any display of Ads obtained by fraud or other illegal conduct, where an Ad has been viewed in exchange for consideration or monetary incentive, and/or by mechanical or other technical means where there is no bona fide, human End-User that actually views the display on their Wireless Device.
“Media Ad Inventory” means the advertising space on the Publisher Properties that Publisher makes available for the display of Ads on an End-User’s Wireless Device when visiting the Publisher Properties.
“Publisher Properties” means the mobile websites and/or mobile applications owned or managed by Publisher and where the Media Ad Inventory is located.
“Wireless Devices” means the mobile phones, tablets, and other wireless computing devices from which End-Users access the Publisher Properties.
2.1 Delivery. In consideration for Publisher’s assent to these Terms in accordance with Section 1.2 (Publisher Assent) above, and subject to these Terms, Smaato may deliver or make available to Publisher certain Smaato Ad Services that enable Publisher to sell Media Ad Inventory to, and receive Ads from, third-party Advertisers for the placement of such Ads on the Publisher Properties.
2.2 License. Subject to the these Terms, Smaato hereby grants Publisher, during the Term, a non-exclusive, non-transferable, non-sublicensable, limited, and revocable license: (a) to access the Site and use the Services ; (b) to copy and use the Smaato Ad Services and Services with the Publisher Properties, in order to serve Ads to End-Users’ Wireless Devices; and (c) if a SOMA™ SDK is provided to Publisher, to copy and use such SDK solely to integrate it with the Publisher Properties and to distribute such integrated Publisher Properties to End-Users.
2.3 License Limitations. Publisher shall not reverse engineer, decompile, or disassemble the Smaato Ad Services. Further, except as expressly permitted in these Terms, Publisher shall not (a) copy, modify, or adapt the Smaato Ad Services, or (b) rent, lease, sublicense, sell, assign, loan, or otherwise transfer the Smaato Ad Services. 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.
2.4 Updates. If Smaato provides Publisher a new version or an update to the Smaato Ad Services (“Update”), Publisher shall promptly cease use of the prior version of such Smaato Ad Services, and incorporate and use the Update in connection with the Services.
2.5 Ownership. The license granted in these Terms does not constitute a transfer of ownership or sale of the Services or the Smaato Ad Services, or any other proprietary rights of Smaato, including all intellectual property rights in any of the foregoing (collectively referred to as “Smaato Property”). Except for the license granted above, Smaato retains all right, title, and interest in and to the Smaato Property. Publisher agrees not to remove, alter, or obscure any proprietary notices, including copyright notices, on any portion of the Services.
3.1 Ad Delivery. Publisher acknowledges and agrees, and Publisher shall disclose to its End-Users, that third parties such as Smaato have the right to (a) serve and deliver Ads to End-Users’ Wireless Devices as part of the Services and (b) access, index, and cache requests made from the Publisher 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.
3.2 Non-Interference. As between Smaato and Publisher, Smaato shall have the sole right to negotiate and conclude agreements with Advertisers and ad networks for the delivery of Ads to End-Users’ Wireless Devices in connection with the Services, and Publisher shall not interfere with such Smaato business in any way.
4.1 Content Guidelines. Publisher and the Publisher Properties shall strictly comply with the Content Guidelines and shall not contribute, submit, or make available through the Services, or use the Services in connection with, any content that would violate the Content Guidelines. Smaato reserves the right to discontinue Publisher’s access to the Services if Smaato determines, in its sole discretion, that Publisher is not in compliance with this Section.
Publisher acknowledges and agrees that, in addition to the remedies to which Smaato is entitled under Section 11 below, for failure to comply with the Content Guidelines, Smaato reserves the right at all times in its sole discretion to: (a) retain any and all accrued payments or revenues of the respective Publisher for the months of the occurrence of such failures up to 6 months, and (b) immediately block Publisher and subsequently discontinue Publisher’s access to the Services.
4.2 Third-Party Terms. Publisher (a) will comply with any third-party terms and conditions applicable to the development and distribution of any Publisher Properties operating on the Android, iOS, or any other operating systems supported by Smaato (collectively, “Third-Party Terms”) and (b) will not cause Smaato to be in violation of any such Third-Party Terms.
4.3 International Compliance. Publisher shall not use the Services to serve Ads from, or target Ads to, countries, entities, or individuals subject to United States trade sanctions or other United States export control laws. Publisher shall not use the Services in connection with any Publisher Properties that are distributed or otherwise made available to any countries, entities, or individuals subject to United States trade sanctions or other United States export control laws. Further, Publisher represents and warrants that Publisher (a) is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, (b) is not identified as a “Specially Designated National” by the Office of Foreign Assets Control, (c) is not placed on the United States Commerce Department’s Denied Persons List, and (d) shall not access or use any of the Services if any applicable laws in Publisher’s country prohibit Publisher from doing so in accordance with these Terms.
5.1 Publisher Privacy Compliance: General. Publisher shall obtain all legally required consents, licenses, and permissions, including applicable opt-ins and opt-outs, from End-Users for any data collection, use, disclosure, and transfer resulting from the placement of Ads hereunder. Publisher’s collection, use, disclosure, and transfer of End-User Information hereunder shall comply with all applicable laws, rules, and regulations.
5.3 Children’s Privacy. If the Publisher Properties are directed to children under the age of thirteen (13), or if Publisher collects information from children under age of thirteen (13) (collectively referred to as “Children’s Content”), Publisher must comply with the Children’s Online Privacy Protection Act (“COPPA”) at all times. In addition, Smaato requires Publisher to immediately notify Smaato by sending an email to firstname.lastname@example.org or contacting the Smaato account manager in the event Publisher uses the Services in connection with Children’s Content. Should Publisher choose not to notify Smaato, Smaato will assume that Publisher is not using the Services in connection with Children’s Content and is compliant with COPPA. Smaato will not actively monitor the Publisher Properties for Children’s Content and compliance with COPPA. Therefore, Smaato disclaims liability for Publisher’s failure to comply with this Section.
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 Publisher and End-Users through the Services may be one of the transferred assets.
6.1 Net Revenue Share. In consideration for the Publisher’s use of the Services and these Terms, Smaato shall pay Publisher an amount equal to a percentage of net revenue actually received by Smaato from third-party Advertisers and/or ad networks, for Impressions delivered to End-Users’ Wireless Devices, through the Publisher Properties, via the Services. The amount payable to Publisher shall be based on the percentage of the net revenue set forth below (“Net Revenue Share”) (less any advertising agency fees, refunds, rebates, or commissions, ad networks’ payout, rich media fees, real-time-bidding technology fees, Smaato’s direct campaign fees, or wire and other banking costs, if any).
6.1.A Net Revenue Share
|AD IMPRESSION LEVEL||NET REVENUE SHARE|
The Net Revenue Share for the actual calendar 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 approval.
6.1.B Direct Ad Sales by Smaato: If Smaato sources Ads directly, Smaato shall pay the amount shown in the Smaato Ad Services dashboard and which was actually collected from the Advertisers.
6.1.C Publisher’s Third-Party Mediation Ad Networks: If Publisher elects to use third-party mediation ad networks with the Smaato Ad Services, Publisher shall allocate at least ten percent (10%) of its total available inventory (within the Smaato Ad Services) for sourcing Ads from Smaato’s demand partners. If Publisher does not do so, Smaato, in its sole discretion, may charge a five percent (5%) fee from the revenue generated from Publisher’s third-party mediation ad networks used in the Smaato Ad Services.
6.2 Payment Terms. 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 on the Services (“Payment Reports”). The Payment Reports will show the bases for calculating the Net Revenue Share for such month, and payments are calculated solely based on Smaato’s records. Publisher shall raise any dispute within ten (10) business days of receiving the Payment Report, or else any dispute shall be waived. Within sixty (60) days after the end of each calendar month, Smaato shall remit the Net Revenue Share to Publisher for such calendar month in the manner and form agreed between Smaato and Publisher, provided that Smaato shall have no obligation to remit such Net Revenue Share to Publisher until Smaato receives payment from the corresponding Advertiser or third party to cover the Net Revenue Share otherwise due to Publisher. If the amount payable to Publisher for any given month is less than $100 U.S. Dollars (“USD”), Smaato may roll such amount over to the subsequent payment period until the amount payable reaches a minimum of $100 USD.
6.3 Currency. Payment of the Net Revenue Share shall be made in USD. If payments by Advertisers are made in a currency other than USD, or a non-U.S. currency is involved in the calculation of the Net Revenue Share, then Smaato may convert such payment to USD using the foreign exchange currency rates as published by www.oanda.com at the time of the conversion.
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 these Terms. Publisher shall pay all applicable taxes or fees imposed by any government authority in connection with Publisher’s use of the Services.
6.5 No Fraudulent Clicks or Impressions; Non-Viewable; Denied. Publisher shall not, and shall not authorize others, to generate fraudulent clicks or Impressions on any Ads served on the Publisher Properties as part of the Services, whether generated manually or by use of a device or other automated process. No payment shall be made hereunder in connection with (a) any clicks or Impressions that have been generated via fraud or other illegal conduct, or generated manually or via the use of a device, automated process, or other technical means where there is no bona fide End-User that actually views or performs the click on the Ads served on their Wireless Devices or (b) any Impressions commingled with fraudulent Impressions or fraudulent clicks as described in 6.5(a) (collectively “Fraudulent”). Further, no payment shall be made hereunder in connection with (i) any clicks or Impressions that do not meet the viewability standards set forth in the current rules or guidelines of the Media Rating Council (MRC) of the Interactive Advertising Bureau (IAB), provided that where no such rules or guidelines are in place, the minimum viewability standard required for payment shall be at least 50 percent of pixels in view for one consecutive second for a non-video, i.e., display, ad, and two consecutive seconds for a video ad (“Non-Viewable”), or (ii) any clicks or Impressions for which payment is denied by an Advertiser (“Denied”). Failure to comply with this Section shall be deemed a material breach of these Terms and Smaato reserves the right to withhold payment if it considers that Publisher has engaged in activity that is in violation of this Section or of these Terms. In the event that Publisher has already received payments from Smaato for Fraudulent, Non-Viewable, or Denied actions, Smaato shall receive credit from future earnings or refunds from Publisher.
6.6 Forfeiture of Payment. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher’s account. Failure to comply shall result in delay or forfeiture of Publisher’s due payment, as follows: Publisher shall forfeit payment (a) at the expiration of a six-month period from the date of Smaato’s first issuance of credit note or invoice, or (b) after three consecutive unsuccessful payment attempts at Publisher’s given PayPal or bank account(s).
6.7 Network Reporting. Network reporting allows Publisher to view information including revenue, ad requests, Impressions, and eCPM for the third-party mediation ad networks that Publisher has selected to use with the Services (“Network Reporting”). To enable Network Reporting, Publisher must have a valid account with such third-party mediation ad network (“Ad Network Account”) and provide Smaato with valid credentials for the Ad Network Account. By enabling Network Reporting, Publisher authorizes Smaato to access, collect, and use information, including revenue, ad requests, served ads, fill rate, Impressions, view rate, eCPM, and clicks, from Publisher’s Ad Network Account.
Publisher represents and warrants that (a) Publisher is an authorized user of the Ad Network Account, (b) Publisher has all necessary rights to authorize Smaato to access, collect, and use Publisher’s Ad Network Account to provide Network Reporting, and (c) Smaato’s access, collection, and use of the information from Publisher’s Ad Network Account shall not violate any third-party agreements or policies. Publisher may only use Network Reporting for internal business purposes solely in connection with the Services. Publisher understands and acknowledges that Network Reporting is provided by the third-party mediation ad networks and Smaato shall not be responsible for discrepancies in reporting.
7.1 Access to Services. 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. Publisher’s use of the Services is subject to the Content Guidelines, which are hereby incorporated by reference. Smaato reserves the right to amend the Content Guidelines at any time, and Smaato shall provide prior notice to Publisher of such amendments. Publisher’s use of the Services indicates the assent to and acceptance of the revised Content Guidelines.
7.2 Term. 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 herein.
7.3 Termination for Convenience. Either Party may terminate these Terms for any reason or no reason, and 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 these Terms in the event of a material breach of these Terms by the other Party, provided that the breach has not been cured within thirty (30) days of the notice from the non-breaching Party, except that Smaato may terminate these Terms immediately if it believes in good faith that Publisher is in violation of any law, any right held by a third party, or Smaato’s Content Guidelines, or is engaged in any other practices that Smaato reasonably deems may harm Smaato’s reputation if made public.
7.5 Effect of Termination. Except as otherwise provided in this section, all rights and obligations of the Parties under these Terms shall terminate upon the expiration or termination of these Terms, including all licenses granted pursuant to these Terms (but not any ownership rights recognized herein). Publisher shall remove from its services, websites, and marketing literature all references to Smaato or the Services. Publisher shall also cease all use of the Smaato Ad Services and destroy or return all of Smaato’s materials in its possession.
Notwithstanding the foregoing, the following shall survive termination or expiration of these Terms: Section 2.3 (License Limitations), Section 7.5 (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), and any payment obligations of a Party that accrue prior to the effective date of such termination or expiration.
8.1 Confidential Information. During the term of these Terms and for three (3) years after the termination or expiration of these Terms, neither Party shall make use of the other Party’s Confidential Information (as hereinafter defined) for purposes other than the performance of its obligations under these Terms. Each Party shall protect the other Party’s Confidential Information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care. The receiving Party shall only disclose the Confidential Information to its employees, consultants, and subcontractors who have a need to know such Confidential Information in order to perform its obligations under these Terms. “Confidential Information” shall mean all information of either Party not generally available to the public which is provided to the receiving Party by the disclosing Party or which the receiving Party has access to or discovers in the performance of these Terms, including without limitation all information relating to a Party’s products, business, and operations (including without limitation business plans, financial records, customers, suppliers, vendors, products, costs, sources, strategies, inventions, procedures, forecasts, sales materials and data, technical advice or knowledge, contractual agreements, pricing, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies, algorithms, designs, drawings, work sheets, blueprints, manufacturing processes, computer programs and systems, and know-how or other intellectual property of a Party and its affiliates that may be at any time furnished, communicated, or delivered by a Party to the other Party, whether in oral, tangible, electronic, or other form). All Confidential Information shall remain the property of the disclosing Party.
Confidential Information shall not include any information that: (a) was rightfully known to a Party prior to disclosure by the other Party; (b) is rightfully obtained by a Party from a third party; (c) is made available by the disclosing Party to the public without restrictions; (d) is disclosed by a Party with prior written permission of the other Party; (e) is independently developed or learned by the recipient Party through legitimate means; (f) is disclosed by the disclosing Party to a third party without a duty of confidentiality on the third party; or (g) is disclosed pursuant to any applicable laws, regulations, or order of a court of competent jurisdiction, or by the recipient Party in defense of a claim against the recipient Party. Each Party will provide reasonable prior written notice to the other Party, unless prohibited by applicable law, if it is required to disclose any of the other Party’s Confidential Information under operation of law, and such disclosure shall not constitute a breach of these Terms.
9.1 Publisher warrants and represents that (a) Publisher owns or is authorized to use the Publisher Properties in connection with the Services, (b) Publisher shall comply with all applicable laws, rules, regulations, and industry self-regulations in connection with Publisher’s use of the Services, (c) Publisher shall not infringe any third-party intellectual property rights or privacy rights, and (d) Publisher shall not spread malicious code, viruses, Trojan horses, malware, spyware, or similarly harmful measures to the Services or End-Users.
10.1 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 BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, SMAATO MAKES NO OTHER WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE SITE, AND THEIR CONTENTS, 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 WARRANTIES OF ANY KIND THAT THE SERVICES OR SITE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, 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 PUBLISHER’S OWN DISCRETION AND RISK, AND PUBLISHER WILL BE SOLELY RESPONSIBLE FOR SUCH USE. FURTHER, SMAATO MAKES NO REPRESENTATIONS REGARDING THE LEVEL OF CLICKS OR IMPRESSIONS ON ANY AD DELIVERED THROUGH THE SERVICES. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND PUBLISHER MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
10.2 SMAATO ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR THE CONTENT OF THE ADS AND PUBLISHER UNDERSTANDS THAT SMAATO DOES NOT PRODUCE AD CONTENT BUT RATHER FACILITATES TRANSACTIONS BETWEEN PUBLISHERS AND ADVERTISERS. SMAATO HAS NO RESPONSIBILITY TO REVIEW THE AD CONTENT PROVIDED BY ITS ADVERTISERS OR AD NETWORKS.
11.2 By Smaato. Smaato hereby indemnifies and agrees to defend and hold harmless Publisher, and its directors, officers, employees, agents, and representatives, from and against any and all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs, or expenses (“Infringement Claim”), including without limitation reasonable attorneys’ fees and the costs of any investigation, directly or indirectly arising from any claim that the Services infringe any third-party intellectual property right, provided that the relevant Infringement Claim: (a) does not arise from any modification to the Services made by the Publisher that is not under the approval or direction of Smaato, and (b) does not arise from the combination of the Services with other products or technology not approved or provided by Smaato. For the avoidance of doubt, 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 Ad Services with any products or technology not approved, directed, or 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. If and to the extent that Smaato is indemnified by its Advertisers with respect to the Content Guidelines, (“Indemnified Ad Content”), Smaato will pass through such indemnity to Publisher for third-party claims brought against Publisher alleging that the Indemnified Ad Content does not comply with the Content Guidelines.
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 (such 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 EXCEPT FOR THE PARTIES’ CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 OF THESE TERMS AND THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OF THESE TERMS, IN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES BE LIABLE UNDER THESE TERMS TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, STATUTORY, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST SAVINGS AND LOST REVENUES, LOSS OF DATA, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, EXCEPT WHEN SUCH DAMAGES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY, ITS EMPLOYEES, OR AGENTS. FOR THE AVOIDANCE OF DOUBT, PUBLISHER SPECIFICALLY AGREES THAT SMAATO SHALL NOT BE LIABLE FOR ANY LOSSES ARISING FROM INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES, WHETHER INTENTIONALLY OR NEGLIGENTLY. PUBLISHER FURTHER AGREES THAT SMAATO SHALL NOT BE LIABLE TO PUBLISHER OR END-USERS FOR ANY THREATENING, DEFAMATORY, OBSCENE, OR OTHERWISE OFFENSIVE CONTENT THAT MAY BE TRANSMITTED THROUGH THE SERVICES.
12.2 SOLE AND EXCLUSIVE REMEDY. IF PUBLISHER IS DISSATISFIED WITH THE SERVICES, THE CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR ANY OF THE TERMS OF THE SERVICES, PUBLISHER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. THIS REMEDY IS INTENDED TO BE THE SOLE AND EXCLUSIVE REMEDY OF THE PUBLISHER UNDER THESE TERMS. THE PARTIES ALSO AGREE THAT, REGARDLESS OF THE FAILURE OF THE SOLE AND EXCLUSIVE REMEDY, SMAATO WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, STATUTORY, PUNITIVE, OR EXEMPLARY DAMAGES, LOSS OF USE, LOSS OF PROFITS, OR BUSINESS INTERRUPTION ARISING FROM OR RELATING TO THE PUBLISHER’S USE OF THE SERVICES OR FROM ANY BREACH BY SMAATO OF THESE TERMS.
12.3 IN NO EVENT SHALL THE TOTAL MAXIMUM AGGREGATE LIABILITY OF SMAATO AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES EXCEED THE LESSER OF (A) THE AMOUNTS PAID BY SMAATO TO PUBLISHER UNDER THESE TERMS PRIOR TO THE EFFECTIVE DATE OF THE NOTICE OF ANY SUCH CLAIM, OR (B) FIFTEEN THOUSAND U.S. DOLLARS ($15,000 USD).
12.4 NO ACTION OR PROCEEDING AGAINST SMAATO OR SMAATO’S DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARENTS, SUBSIDIARIES, SUCCESSORS, OR ASSIGNEES MAY BE COMMENCED MORE THAN TWELVE (12) MONTHS AFTER THE CLAIM ARISES.
13.1 Notices. All notices and other communications required or permitted to be given to a Party pursuant to these Terms shall be in writing, and shall be deemed duly given (a) on the date delivered if personally delivered, (b) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party (Smaato’s address set forth below), or (c) on the business day following the day of facsimile or email transmission; provided that a Party hereto may change its address for receiving notice by the proper giving of notice hereunder.
240 Stockton St, 10th Floor
San Francisco, CA 94108, USA
Attn: Legal Department
Fax: +1 (650) 240-0708
13.2 Governing Law. These Terms shall be governed by, and construed in accordance with, the laws of the State of California without regard to the conflict of laws provisions thereof. Each Party hereby submits to the exclusive jurisdiction of the state and federal courts in San Francisco County, California for purposes of all legal proceedings arising out of or relating to these Terms and the subject matter hereof, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. The prevailing Party in any litigation shall be entitled to recovery of its reasonably attorneys’ fees from the other Party in addition to any other award of damages from the court.
13.3 Binding Effect; Assignment. These Terms and the rights, obligations, and licenses herein, shall be binding upon, and inure to the benefit of, the Parties hereto and their respective heirs, successors, assigns, and personal representatives. Neither Party shall assign these Terms in whole or part without the prior written consent of the other Party, except that either Party may assign these Terms in connection with a merger, reorganization, or sale of a substantial part of the assets or business to which these Terms relate.
13.4 Severability; Waiver. If any portion of these Terms is held to be illegal or unenforceable, that portion shall be restated, eliminated, or limited to the minimum extent necessary so that these Terms shall reflect as nearly as possible the original intention of the Parties, and the remainder of these Terms shall remain in full force and effect. Any waiver (express or implied) or delay by either Party to enforce any term or condition of these Terms or to exercise its right, power, or privilege arising hereunder shall not constitute a waiver thereof.
13.5 Relationship of the Parties. The Parties are independent contractors, and nothing contained in these Terms shall be deemed to create a joint venture, partnership, fiduciary, or other similar relationships between the Parties. Each Party has sole responsibility for its activities and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.
13.6 Headings; Interpretation. The section headings used in these Terms are intended for reference purposes only and shall not affect the interpretation of these Terms. If an ambiguity or question arises with respect to any provision of these Terms, these Terms will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of these Terms.
13.7 Force Majeure. Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event. “Force Majeure Event” means (a) floods, earthquakes, or other similar elements of nature or acts of God; (b) riots, civil disorders, rebellions or revolutions in any country; or (c) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans, or other reasonable precautions.
13.8 Cumulative Remedies. All rights and remedies under these Terms are cumulative and are in addition to any other rights and remedies a Party may have at law or in equity.
13.9 Entire Agreement; Amendment. These Terms constitute the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. Smaato reserves the right to change or modify any of the terms and conditions contained in these Terms at any time and in its sole discretion upon providing prior notice to Publisher. Any changes or modifications will be effective immediately upon posting the revised Terms on Smaato’s Services, and Publisher waives any right Publisher may have to receive additional notice of such changes or modifications. Publisher’s continued use of Smaato’s Services following the posting of the revised Terms shall constitute Publisher’s agreement to be bound by the revised Terms. If Publisher does not agree to any of the terms of the revised Terms, Publisher must stop using the Services.