This Agreement (“Agreement”) is effective and accepted by publisher by applying or submitting an online registration form and governs the relations between SMARTYADS LLP, located at 122-126 Tooley Street, London SE1 2TU Company No. OC368278, (“SMARTYADS”) and the Publisher. This Agreement governs advertising delivered through Publisher’s Web site(s) or platform(s) (the “Publisher’s Site(s)”). SMARTYADS and Publisher agree as follows:
A. SMARTYADS plans advertising campaigns and buys advertising media on behalf of its clients.
B. Publisher sells certain advertising products and services that it is willing to make available in support of SMARTYADS’s clients’ advertising campaigns.
C. Publisher desires to sell and SMARTYADS desires to purchase certain of Publisher’s products and services in accordance with the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:
”Advertising Material” means the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders is created by an advertiser.
“Advertiser(s)” means one or more customers of SMARTYADS which create the Advertising Material, and authorizes SMARTYADS Interactive as its agent to include it on the Publisher’s Site(s).
“Approved Monthly Delivery” means the amount of inventory to be delivered for each calendar month of the campaign as stated in the Order.
“Approved Monthly Spend” means the amount of money that SMARTYADS sets as spending limit, and for which it will be liable for any calendar month if specified under a particular Order.
“SMARTYADS HTML Insertion Code” means the code in which Publishers are permitted to use Advertising Material delivered to the Publisher’s Site(s).
“SMARTYADS Network” means the advertising network owned and operated by SMARTYADS.
“Impressions” means the number of times Advertising Material is served to a person visiting the Publisher’s Site(s).
“Order” means an insertion order that is submitted by SMARTYADS and is accepted by Publisher, or an online order via the Internet, which is a proposal that is submitted by Publisher in response to a request for proposal and is accepted by SMARTYADS.
”Publisher Earnings” and “SMARTYADS Earnings”. “Publisher Earnings” means the total revenue SMARTYADS generates by running advertising campaigns for Publisher using the Advertising Materials less “SMARTYADS Earnings”,and subject to the Total Spend. “SMARTYADS Earnings” are calculated at the campaign level at the sole and absolute discretion of SMARTYADS. SMARTYADS evaluates each advertising campaign and makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, technology costs, and other factors relating to the campaign, the performance of Publisher’s site(s) and SMARTYADS’s Network as a whole.
1. Relationship. From time to time, the parties may negotiate the terms under which Publisher will deliver Advertising Material for advertising campaigns to its Site(s) for the benefit of each Advertiser.
2.1. Payment. Within 60 days after the last day of each calendar month SMARTYADS will pay Publisher its Publisher Earnings for Advertising Material actually delivered by Publisher to each of Publisher’s Site(s) approved by SMARTYADS during the applicable calendar month and for which SMARTYADS has been paid by the Advertiser in accordance with Section 3.2 herein, subject to the applicable Order’s specifications, terms and conditions. Publisher acknowledges that SMARTYADS bills its Advertisers, and pays its Publishers, based on actual delivery. Additionally there is a minimum threshold on publisher payments in the amount of $50 dollars and any publisher below this threshold will receive payment when the cumulative reaches the minimum.
2.2. Publisher acknowledges that SmartyAds operates as an Ad Exchange and is therefore reliant on payment by Advertisers to SmartyAds before SmartyAds will pay Publisher. SmartyAds will use reasonable endeavors to pay Publisher the relevant advertising revenue less the revenue share within 45 days of receipt of the relevant ad revenue from the Advertiser. SmartyAds does not guarantee that payment by Advertiser will be made. Accordingly, payment for the display of each Advertisement is strictly subject to and conditional upon the payment of fees for the same Advertisement ("Ad revenue") by the relevant Advertiser. In the event that SmartyAds does not receive full payment of the Ad revenue, SmartyAds shall not be liable to make any corresponding payment to Publisher. Publisher acknowledges and agrees that SmartyAds has no liability to pay Publisher in the event that Publisher does not receive the relevant Ad revenue from the Advertiser.
2.3. Liability for Publisher’s Revenue. Publisher understands and agrees that SMARTYADS acts solely as an agent for the Advertisers; and that SMARTYADS shall only be liable to Publisher for Publishers Revenue based on payments from Advertisers that it has received without restrictions that constitute immediately-available funds to SMARTYADS (hereinafter called “Cleared Funds”). SMARTYADS agrees to make every reasonable effort to bill, collect and clear payment from the Advertisers on a timely basis. SMARTYADS, reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein. SMARTYADS shall not pay for clicks generated from SMARTYADS house banners. Clicks from SMARTYADS house banners will result in no revenue for Publisher.
2.4. Invoicing and Payments.
2.5. Taxes. SMARTYADS assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the SMARTYADS Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof. SMARTYADS shall provide Publisher with appropriate tax information, including earnings on Form 1099. Publisher residing in the United States agree to provide their Social Security number or Federal Employee Identification Number to SMARTYADS for tax reporting purposes. In no event will payments be made on accounts that have not provided proper tax identification information. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.
3.1. Delivery of Advertising Material. SMARTYADS shall provide all Advertising Material to Publisher via servers at SMARTYADS. Publisher shall obtain the Advertising Materials from the SMARTYADS services at the time of delivery the Advertising Materials for a specific advertisement. If Publisher is unable to obtain the Advertising Materials from the SMARTYADS servers on a consistent basis, Publisher shall cease delivering Advertising Material and shall contact SMARTYADS promptly, but in no event more than one business day after the problem first occurred. Publisher shall not resume the display of Advertising Materials until SMARTYADS directs Publisher to do so. In the event of a persistent outage of the SMARTYADS servers, SMARTYADS may, at its option, provide Publisher with the Advertising Materials directly, and may direct Publisher to serve the Advertising Materials from its servers.
3.2. SMARTYADS HTML Insertion Code. Publisher shall place the SMARTYADS HTML Insertion Code on all appropriate pages within its Site(s). Publisher shall not alter, sell or disclose the SMARTYADS HTML Insertion Code in any way without SMARTYADS’s prior written consent. The SMARTYADS HTML Insertion Code for Advertising Material may not be used on a web page other than one located at an approved Site and may not be distributed or submitted to any newsgroup, e-mail distribution list, chat room, guest books, or other location which would result in the execution of such code without a bona fide visit to an approved Web Site. Use of any marketing technics, such as Run On Network or any other is forbidden, unless agreed in written form with SmartyAds. In case of using such technics the following consequences will apply immediately: site rejection, revenue blocking or account refusal without any payment obligation from SmartyAds for all the traffic provided by such Publisher.
3.3. Modification of Advertising Material. Advertising Material must not be modified from original format without consent from SMARTYADS. Advertising Material cannot be placed in email messages. Publisher can not alter, copy, modify, take, sell, reuse, or divulge any computer code for the Advertising Materials, except as is necessary to partake in the SMARTYADS Network, provided, however, with the prior approval of SMARTYADS, the Publisher may, in certain instances, modify the Advertising Material computer code for purposes of inserting certain pre-approved language above or below the Advertising Material. Requests for language approval should be sent to firstname.lastname@example.org. If Publisher violates this provision, SMARTYADS, may, at its option, either reduce or eliminate any and all payments due hereunder, and/or terminate this Agreement as provided herein.
3.4. Recording of Service Counts. SMARTYADS shall have the sole responsibility for calculation of statistics, including Impressions and click-through numbers. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics shall be available to Publisher online at http://ssp.smartyads.com. Publisher understands that SMARTYADS’s online statistics may not be 100% accurate and that SMARTYADS may make adjustments to Publisher’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. In the event that coding on Publisher’s Site(s) generates substantial number of erroneous impression due to a technical problem such as server malfunction, coding alteration or a mistake in entering code, Publisher agrees to respond to the e-mail generated by SMARTYADS technical support within 48 hours. If Publisher does not respond to this alert, SMARTYADS reserves the right to (a) withhold payment on all Impressions and clicks delivered after the 48-hour period has expired, or (b) not show any revenue-producing Advertising Material on the relevant Site(s).
3.5. Fraudulent Impressions & Click Spam. Any methods and or means direct or indirect, intentional, accidental, incidental, that artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Final counts of impressions or clicks and revenue earned, and amounts to be paid to publisher will be decided solely on the basis of reports generated by SMARTYADS’s advertising systems/ad server(s) and the assessment of publisher data by the SMARTYADS Policy Team. These prohibited methods include but are not limited to: framing an ad-banner’s click-through destination, auto-spawning of browsers, blind text links, running ‘spiders’ against the Publisher’s own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by SMARTYADS, acting reasonably, or based on industry practices) click-throughs and/or impressions. Advertising Material may not be placed on pages, which reload automatically. Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s clicks-throughs of any link other than SMARTYADS’s Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, SMARTYADS may terminate this Agreement effective upon delivery of notice and at its sole discretion withhold any payments due to publisher. Such determination and action is at the sole discretion of SMARTYADS and is not in lieu of any other remedy available at law or equity. SMARTYADS’s ad server(s) will be the official counter for determining the number of Advertising Material delivered, and amounts payable under this Agreement. Additionally SMARTYADS may withhold amounts relating to advertiser chargebacks or credits from payment to publisher if SMARTYADS and SMARTYADS Policy Team in its sole reasonable discretion, believes the performance related to them is fraudulent or invalid in nature, or if SMARTYADS was charged or credited back in their respect by any customer. Payment amounts displayed in SMARTYADS reporting systems may be adjusted at any time and may not reflect final payment to publisher as per adjustments made hereunder.
SMARTYADS reserves the absolute right to refuse in its sole discretion to affiliate with any Publisher. The following are examples of sites that are not eligible for participation:
At any time SMARTYADS may investigate any Site for violation of this Agreement. SMARTYADS regularly performs compliance audits. If SMARTYADS determines that Publisher’s Site(s) includes any undesirable content, SMARTYADS may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Advertising Material on such Site(s) . In no event, will SMARTYADS or its Advertisers be obligated to pay for Advertising Material delivered through Sites containing undesirable content after Publisher’s receipt of such notice from SMARTYADS.
Publisher represents and warrants to SMARTYADS that:
SMARTYADS shall use the trade names or trademarks of the other party or Advertisers without prior written approval from the party owning such name or mark.
8.2. Privacy Representations and Warranties. Each party warrants to the other that, during the term of this Agreement, it shall comply with all applicable laws and regulations (including but not limited to laws governing privacy, and data protection). Publisher warrants that it shall comply with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://www.networkadvertising.org/aboutnai_principles.asp).
Publisher agrees that the Client List is sensitive and highly confidential information that it shall use solely for its performance under this Agreement, and that it and its officers, employees, directors, members, agents and representatives shall not disclose it to any other party for any purpose without the prior written consent of SMARTYADS. Publisher shall ensure that each of the persons or parties in the previous sentence have signed confidentiality agreements with Publisher consistent with the aforesaid sentence before it may disclose the Client List to them. Notwithstanding the previous two sentences, however, Publisher may disclose to any third party the existence of its relationship with SMARTYADS; but it cannot disclose the Client List or the existence or nature of SMARTYADS’s relationship with any Advertisers included in the Client List. Publisher’s obligations under this paragraph shall continue indefinitely following the date of termination of this Agreement.
The Publisher agrees to indemnify and hold SMARTYADS and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the Publisher in the SMARTYADS Network, (ii) operation of the Publisher’s Site(s) submitted to SMARTYADS for participation in the SMARTYADS Network or (iii) otherwise arising from Publisher’s relationship with SMARTYADS. The Publisher also agrees to indemnify SMARTYADS for any legal fees incurred by SMARTYADS, acting reasonably, in investigating or enforcing its rights under this agreement.
Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, SMARTYADS MAKES, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL SMARTYADS BE LIABLE TO PUBLISHER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT SMARTYADS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL SMARTYADS’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE PUBLISHER HEREUNDER.
During the Term of this Agreement, and any renewal thereof, and for one (1) year after its termination for any reason, Publisher agrees that it will not do business directly or indirectly with any Advertiser specified in an Order, or directly or indirectly solicit or induce such Advertiser to do business directly with the Publisher. Publisher understands and agrees that this prohibition is a key consideration and inducement for SMARTYADS to enter into this Agreement with Publisher, and to provide the services hereunder.
13.1. Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.
13.2. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of England and Wales and each of the parties submits to the exclusive jurisdiction of the courts of England and Wales.
13.3. Assignment. Any assignment, transfer or delegation by Publisher of its rights or duties hereunder will be governed by this Agreement, subject to the parties’ termination rights hereunder.
13.4. No Prior Agreements. This Agreement, together with all fully-executed Addenda, attachments and exhibits attached hereto, and all proper Orders, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.
13.5. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
The Parties represent that they fully acknowledge and agree to the terms of this Agreement by using the SmartyAds services.