his Agreement regulates the relations between the Publisher (hereinafter – “Publisher”, “You”) and SmartyAds Inc. (hereinafter – “SmartyAds”) located at 31 W 34th St Suite 8035 New York NY 10001-3009 the Partnership is validly incorporated according to the DE, USA. The Agreement comes to the enforcement the moment a Publisher agreed upon, filled out and submitted the online registration form. As well, it administers and controls advertising matters served on Websites and platforms that belong to the Publisher.
The both parties automatically agree upon the following conditions:
A. SMARTYADS plans advertising campaigns and buys advertising media on behalf of its clients.
The Publisher commissions and entrusts SMARTYADS to perform digital media purchases and ad campaign planning.
2) The Publisher commits to sell certain advertising products of own choice and selection which will support the ad campaigns functioning on the Advertiser’s side.
3) The Publisher is interested in selling certain products or services and SMARTYADS is interested in buying them in the full correspondence with the functioning Agreement standards listed below:
THE MAIN TERMS
“Advertiser” depicts the client of SMARTYADS, the agent whose authorized creative (ad material) is delivered through the Publisher’s website or platform.
“Advertising Material” notion may involve different creative types and formats: the logo, graphic material, textual material, hallmarks or copyrighted banners, pop-ups, videos, buttons and other elements that bear Advertiser’s authorship.
“Approved Monthly Delivery” signifies the inventory which should be delivered according to the monthly campaign’s calendar plan, this inventory amount can be found in the Order.
“Approved Monthly Spend” signifies the maximum amount of money spend defined by SMARTYADS, in case such a limit is specified in the Order, SMARTYADS holds full responsibility for it in each specified calendar month.
“SMARTYADS HTML Insertion Code” is a string of the code applied on the Publisher’s website in order to deliver the advertising material of the Advertiser.
“SMARTYADS Network” represents the advertising network that belongs to the SMARTYADS and is run by SMARTYADS.
“Impressions” signifies how many times the creative has been shown to the visitor on the Publisher’s website or platform.
“Order” is an identifier of the order that Publisher accepts, it is provided by SMARTYADS via the Internet. It represents the Publisher’s proposition for the request that SMARTYADS accepts.
“Earnings of the Publisher” the gross revenue generated by SMARTYADS running campaigns on behalf of Publisher.
“Earnings of the SMARTYADS” is a relative revenue earning defined on the SMARTYADS company level and that belongs to SMARTYADS.
SMARTYADS defines own revenue based on the relevant variabilities, including but not limited to following metric measured during the ad campaign: CPA, CPC or CPM, also the campaign’s overall performance, how well performs the Publisher’s website, costs for the technological advancements and operational expenditures related to SMARTYADS’s Network.
Part 1. Ordering and Delivering.
1. Overall regulation. For the sake of the smooth mutual campaign management the parties may reconsider and subsequently reconstruct the Terms of the Advertising Materials delivery on the Publisher's inventory.
Part 2. Obtaining the Payment.
2.1. Obtaining the payment. The Publisher can get the total earning obtained during 60 days period after each month. The payment will be counted for the actual number of impressions approved by SMARTYADS and served on the Publisher's inventory.
Prior that, SMARTYADS receives the payment from the advertiser on the Publisher’s behalf according to the part 3.2
There is a minimum limit of payment established for the Publisher that accounts for $50. In order to receive the payment, it is important to be sure the sum has reached an essential minimum level on Publisher’s account.
2.2. The SMARTYADS as AdExchange. The SMARTYADS party functions as AdExchange, therein it depends on the Advertisers to proceed with the payment before SmartyAds will be able to pay the Publisher.
From its part SMARTYADS will make all possible efforts to ensure the payment share that belongs to the Publisher is paid in time, which is in 45 days after such payment obtained from Advertiser.
SMARTYADS can’t be held accountable for the purchases committed by Advertiser, thus can’t guarantee that Publisher’s inventory will be purchased.
Accordingly, payment for the display of each Advertisement is strictly subjected to and conditional upon the payment of fees for the same Advertisement ("Ad revenue") by the relevant Advertiser. Same way, the payment procedure for the advertisement display is subjected to the fees and "Ad revenue" fees payment by Advertiser.
Thus, SMARTYADS should not be kept liable for the full payment in case some segment of it wasn’t provided by the Advertiser. In other words, the Publisher must accept that SMARTYADS is not responsible for the insufficient Ad revenue delivered from the Advertiser to the Publisher through the system.
2.3. Ad Revenue Accountability. The Publisher needs to acknowledge the fact that SMARTYADS operates only as a service provider and as the agent for Advertisers.
SMARTYADS can be accountable only for the revenues actually obtained from the Advertiser which represents funds that can be immediately obtained, (referred to in this Agreement as “Cleared Funds”).
SMARTYADS fully embraces the responsibility to control the billing process and the procedure of payment collection from the Advertiser to make it timely and unobstructed.
The right to quit the payments can be reserved by SMARTYADS in cases the terms and conditions of service were severely violated by Publisher.
The clicks on the house banners are not subjected to payment by SMARTYADS and will not bring the revenue to the Publisher.
2.4. Obtaining the Invoice.
If the Invoice is submitted by Publisher. The Publisher should pay attention to the Invoice and indicate the right period of billing in it. Invoicing is taking place monthly, it should indicate the time period following the month after delivery.
Only actual delivery-based Invoices are taken into consideration, the contracted numbers in the Invoices are not regarded. When 45 days of receipt pass, all Invoices obtained by SMARTYADS will be considered correct and valid by default. In some cases, SMARTYADS may recognize the Invoice as invalid or inaccurate and notify the Publisher about it by email to resolve the issue.
In case the Publisher doesn’t provide its own Invoice SMARTYADS will make a determination of the Publisher’s balance on the first day in a month after the previous.
Such determination is due to calculation by the SMARTYADS tracking system which counts in the traffic provided. Then the amount of traffic is multiplied by the percentage of revenue share or the fixed rate. The resulting sum will be displayed at SMARTYADS system.
In case the Publisher doesn’t agree with the calculations the dispute should be submitted within 45 days after the last day in the month. In case the payment was not subjected to dispute during that period it automatically attributed to correct and final.
Disputes. The Invoicing issued by Publisher. In case The Invoicing was issued by Publisher and SMARTYADS disputes the all or only the section of it, SMARTYADS is paying the undisputed Invoice part. The section that is due to disputing should be subjected to the negotiation. During the negotiation SMARTYADS and the Publisher come to the resolution, after that SMARTYADS pays its share on disputed section.
The Invoicing not issued by Publisher. If the Publisher wants to dispute all or only the section of balance calculated by SMARTYADS which has been determined with a SMARTYADS tracking system, SMARTYADS is paying the undisputed Invoice part. The section that is due to disputing should be subjected to the negotiation. During the negotiation SMARTYADS and the Publisher come to the resolution, after that SMARTYADS pays its share on disputed section.
2.5. Taxes. The Publisher is fully responsible for paying own taxes and the consequences of dealing with them, SMARTYADS thereof cannot be held accountable for such matters. SMARTYADS will provide the Publisher with all necessary information concerning the taxation procedures and the 1099 Form for earnings. Federal Employee Identification Number or Social Security should be given to SMARTYADS in case the Publisher resides in US. This kind of information will only be needed for tax reporting and identification. Note that for accounts missing that information the payments will be impossible to execute. For the International Publishers filling necessary taxation forms might also be obligatory.
2.6 Fraudulent impressions. In case SMARTYADS finds out that the level of fraud in served impressions exceeds 10% the invoice payments can be cancelled and suspended. The suspended payments will be considered frozen till the case is not investigated and the mutual decision is not found by the parties. In section 3.4 more detailed information can be found.
2.7. Inactive account balance withholding. You accept and understand, that in the case your account remains inactive, for any reason, during the period of six (6) consequential months during which you have not requested the transfer of the account balance to your applicable account, all amounts of the account balance shall be automatically written-off by SMARTYADS in its favor. Any claims regarding the transfer of the account balance submitted to SMARTYADS upon the expiration of the above stated term shall be invalid and You shall forfeit the right to claim such amounts from SMARTYADS to the fullest extent possible.
Part 3. The Materials for Advertising.
3.1. How materials for advertising are delivered. The general advertising materials along with specific ones will be delivered at the time of serving to the Publisher through the servers which belong to SMARTYADS. In case some sort of a technical problem occurs and obstructs the Publisher from obtaining Advertising Materials from servers, the Publisher should terminate the delivery and immediately contact SMARTYADS in the first day the problem occurs. In such case, the delivery should not be restarted until SMARTYADS doesn’t give the permission for it, this is to make sure the problem is fully resolved. If trouble persists, SMARTYADS may organize the direct delivery of the advertising materials for the Publisher.
3.2. HTML Code on Publisher’s Website. Using SMARTYADS services the Publisher agrees to place the string of HTML code on the website or separate pages of it that will be used for the advertising delivery. This also means that SMARTYADS prohibits to modify this code string on the inventory unless the parties agree on that in the written consent. The HTML code string provided by SMARTYADS should not be used or shared on any other source except the webpage or the site it was placed on initially, including the chat rooms, emails or newsgroups as it may result in the wrong code execution. The Publisher also agrees to avoid using specific marketing practices such as Run On Network and others in case such practices usage wasn’t discussed and agreed upon in the written form with SMARTYADS. The violation of this rule may lead to the blocking of revenue, website declines or the personal account suspension with no subsequent traffic compensation from SMARTYADS.
3.3. Advertising Material and its alteration. Served advertising materials cannot be changed or altered by the Publisher without prior written consent obtained from SMARTYADS. The same way the materials cannot be shared in the emails, personal messages or any other source by the Publisher, copied, sold, or used for any other purposes. The codes used for advertising purposes should be treated the same way and can’t be disclosed at any circumstances. The violation of this rule may lead to certain circumstances as the payments or Agreement termination. The only occasion when the Publisher can modify the code can be the language pre-approving which is configured below or above the advertising material. The inquiry for the language approval SMARTYADS officially accepts via email: firstname.lastname@example.org
3.4. Service calculations. SMARTYADS takes Greenwich Time (GMT) as the default time in order to track the trafficking periods. SMARTYADS is in charge of performing all the calculations considering traffic, the number of clicks, impression served and related statistics, which Publisher can find out in the system at https://ssp.smartyads.com. In order to ensure the clarity and correctness of statistical information on its side, avoid mistakes, provide contractual bonuses, SMARTYADS can adjust the statistics gathered at the Publisher’s side that will take place at the end of the month. Since coding on the Publisher’s side often causes technical problems such as server glitches, accidental code changes, and other malfunctions, it may lead to the inaccurate number of impressions, therein the Publisher has to provide the response to the email alert which will be sent by SMARTYADS in 48 hours. In case such a response will not be provided by the Publisher, SMARTYADS can withdraw the payment for Impressions served after this period (48 hours) expires or stop delivering the advertising materials through the Publisher’s inventory.
3.5. Click Spam and Fraud. The Publisher acknowledges that any fraudulent activity aimed at augmenting the number of clicks is strictly prohibited and can bear severe consequences, regardless of intent, means or form of execution. As SMARTYADS’s advertising platform is in charge of counting the total number of impressions served and the revenue generated, the total sum that should be paid to the Publisher will be defined referring to the system’s indications combined with Publisher’s data assessed by SMARTYADS. To such prohibited methods can be attributed: manipulations with click destinations for ad-banner’s, redirection of users to different pages, browser auto-spawning, blind text links, other practices determined by SMARTYADS as harmful or unacceptable and affect impressions or click-through rates. On the automatically reloading pages the ad placement is also not accepted. Please do not ask the users to click on the certain areas of the website, don’t incentivise them to click on the advertising materials before they visit your website. Clicking on different links than those were provided by SMARTYADS’s Advertising Material or applying artificial click/visit boosters may inflict the sanctions on the Publisher ending with account and all payments termination. The decision of the termination is absolutely due to consideration of SMARTYADS team.
Note that SMARTYADS can also withdraw the chargeback sums required by advertisers from Publishers in the case during the investigation SMARTYADS Policy Team reveals that the performance was artificially boosted with any kind of fraudulent activity originated on the Publisher’s side. Also note, SMARTYADS reporting system may not reflect the final sums of revenue and can be modified at any moment in case different adjustments take place.
Part 4. Valid Website(s).
It is up to SMARTYADS to select which Publisher to collaborate with so the company reserves the right to decline certain affiliations:
- The website that violates the rights of other members (including the copyright and intellectual property violation, piracy (‘warez’, emulators, or cracks, unauthorized content usage, etc.)
- Websites with adult thematic, or the ones containing the fragments of such and links, etc.
- Websites with explicit content, violence, etc.
- Websites with promote antisocial behavior, have racial and political, gender, or religious abuses.
- Websites with spammy content and those that perform unacceptable newsgroup posting.
- Websites related to illegal activities, such as hacking or terrorism.
- Websites that give false online money-earning opportunities, contradictive investment offers.
- Websites that incentivize the users to click on the website elements and charity offers.
- Websites that are temporarily unavailable, unserviced, or incomplete.
- Websites that feature very narrow audience segments.
- Websites that feature content that can be deemed irrelevant, doubtful, and inappropriate.
- Websites that interfere with Federal privacy laws, that also involve Children’s Online Privacy Protection Act.
SMARTYADS reserves the right to make occasional website audits on Publisher’s website or platforms in order to ensure the inventory is compliant to the rules. If during the course of such inspection the violation will be revealed by SMARTYADS Policy Team, the account of such Publisher will be terminated and the Advertising Materials will not be served at such site. SMARTYADS will also not be accountable for compensating the revenue to the Publisher who served the ads at such inventory.
Part 5. Representations and Warranties.
Publisher guarantees to SMARTYADS party that:
- The products represented on the website are legal to use and distribute. All the products and services provided through the site are legal and do not violate the copyright, trademarks, or other rights and laws.
- At any circumstances the website serving the Advertising Materials will be practicing serving prohibited material which is listed in Section 4 of this Agreement;
- The websites are normally functioning, safe, and free of malware and viruses that can potentially harm the person system or software.
- The Publisher is familiar with all the laws and legislation that regulates the online activities and their website and business are fully compliant with them.
- The Publisher is eligible to accept the Agreement and is able to maintain the obligations bestowed herein.
Part 6. Term and contract Termination.
The termination Aftermath. SMARTYADS’s HTML code should be removed from the Publisher’s website the moment the written notice about termination has been delivered.
Mutual termination by Agreement. In case any of the party decides to break the contract before the time is due. The terms of the Agreement containing therein are valid during the 1 year starting for the date it was signed above. Such a contract may be prolonged by default for the next year unless the parties come to the conclusion, they end the collaboration and notify each other in the written form about the contract termination 30 days prior to the contract officially ends.
Termination without Agreement. The parties are eligible to terminate the contract without Agreement from another party at any moment. For this, the party should provide the written notice 30 days prior to the contract officially ends as well. Such notice can be sent via email, in such circumstances, it will be valid for 30 days after the email was delivered.
When SMARTYADS terminates a contract. Apart from the cases listed earlier in this Agreement, SMARTYADS has the right to suspend the Agreement due to the following reasons:
- Immediate contract termination due to the violation by the Publisher the collaboration
- Upon the time spans indicated in Part 7 here
- In case the Publisher has enough money on the personal account that reaches $50 sum, SMARTYADS pays the Publisher these funds in the following billing cycle. The smaller sum cannot be subjected to the transaction until it reached the necessary $50 level.
Account balance withholding upon the termination of the agreement. You accept and understand, that in the case You don’t request the transfer of the account balance during the period of three (3) consequential months after the termination date of the agreement, all amounts of the account balance shall be automatically written-off by SMARTYADS in its favor. Any claims regarding the transfer of the account balance submitted to SMARTYADS upon the expiration of the above-stated term shall be invalid and You shall fully forfeit the right to claim such amounts from SMARTYADS.
Part 7. The license of SMARTYADS and Intellectual Property.
SMARTYADS may act on behalf of trademarks and can use the names of Advertisers and parties without notifying their owners beforehand.
Part 8. Privacy
The parties oblige themselves to locate the privacy policies, terms and conditions on the website that state how the data can be collected, gathered, processed or shared, how the user emails will be used, and how to withdraw the Agreement for personal data usage. The privacy policies that belong to the Publisher should notify the users that the cookies of the vendors and third-party advertisers can be placed on the website or the platform.
8.2. How privacy is warranted and represented. Each party should guarantee that they commit to the existing laws and regulations during the period the Agreement is valid which also includes GDPR data protection regulation and other governmental-level privacies) The Publishers should guarantee their practices correspond to the Self-Regulatory Principles Governing Online Preference Marketing of the Network Advertising Initiative.
Part 9. Confidentiality.
As Client List belongs to strictly confidential matters that should not be disclosed under any circumstances, the Publisher must guarantee its safety and non-disclosure. Such information should not be revealed to any other party as well as it can’t be shared by the Publisher’s employees that deal with it, including the head staff. In case such a request arises SMARTYADS should receive and regard the written consent beforehand. In order to keep this confidential information safe, the Publisher should ensure every member and employee signs up for the non-disclosure Agreement.
The Publisher may disclose the fact that it collaborates with SMARTYADS but it can’t share under any circumstances the list of clients or the existing relationships between any client in the list with SMARTYADS. These non-disclosure Agreement requirements should be deemed valid even after the time the Agreement was officially terminated.
Part 10. Compensation.
Functioning within SMARTYADS Network the Publisher abstains from bestowing on SMARTYADS party or its collaborators any claims and legal damages, unpredicted expenses, liabilities, copyright infringements and other sanctions arisen from participation in the network. The Publisher also agrees to provide the compensation to SMARTYADS for legal fees incurred by SMARTYADS in accordance with the Agreement.
Part 11. The Limitations, Disavowals, and Exceptions.
The warranty disclaimer.
SMARTYADS DOES NOT GUARANTEE THAT YOU OR ANY THIRD-PARTY WILL BE ABLE TO ACCESS THE SMARTYADS’S WEB SITE AT ANY PARTICULAR TIME. SMARTYADS’S SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS. EXTERNAL FACTORS AND/OR FACTORS BEYOND SMARTYADS’S CONTROL MIGHT CAUSE SERVICE DISRUPTIONS AT TIMES FOR WHICH SMARTYADS MIGHT NOT HAVE ANY POWER OVER.
SMARTYADS GIVES THE DISCLAIMERS OF ANY WARRANTIES REPRESENTATIONS CONSIDERING THE TERMS AND CONDITIONS LISTED HERE, WHICH INCLUDES ANY IMPLIED WARRANTIES CONSIDERING VALIDITY OR MERCHANTABILITY OF A CERTAIN PURPOSE AND IMPLIED ASSURANCES THAT APPEAR FROM PROCEDURE OF DEALING OR PERFORMANCE.
Limitation of Liability.IN NO CASE SMARTYADS WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, OR LOSS OF CLIENTS, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SMARTYADS WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Part 12. Non-Circumvention.
Within the period the Agreement is valid between parties and one year after this Agreement reaches the cessation the Publisher should guarantee to not deal with any of the Advertisers listed in the Order in the direct or indirect way or encourage the Advertisers to do business directly with the Publisher.
The Publisher acknowledges the importance and scale of this consideration for the SMARTYADS for this mutual Agreement and that this condition is considered basic for the service provision.
Part 13. General Information.
Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of New York without reference to conflict of law principles. Jurisdiction and venue for all disputes hereunder shall be in New York City, and the parties hereby agree to such jurisdiction and venue.
Joint ventures are prohibited. Please note, your agreement with SmartyAds doesn’t extend to the joint venture, agency relationship, partnership creation between you and SmartyAds or its affiliates.
Transferring assignment. The rights and obligations that you are responsible for under this agreement can’t be transferred without obtaining prior consent from SmartyAds. SmartyAds can transfer its rights and obligations under this agreement at any time without providing you with prior notification. When such an assignment is executed, SmartyAds is released from all assigned obligations and the assignee starts to handle these obligations instead.
Validity. In case any provision of this agreement is regarded as invalid or unenforceable it is considered to be severable and will not affect other provisions of this agreement.
Force majeure. As a supplementary part to service disclaimer stated above, SmartyAds gives no operational guarantees in case of delay caused by force-majeure. To force-majeure can be attributed various events that stay beyond the control of SmartyAds, such as emergencies (flood, fire, earthquake, terrorism, power failure, etc.), disruptive social events, industrial or labor disputes, and third-party inflicted interruptions.
Subpoenas. In a state of emergency SmartyAds like any other entity may be subpoenaed by governmental entities. In such a case, if it’s required to provide information about your account, SmartyAds will do this according to subpoena requirements. SmartyAds isn’t responsible for providing you with information about subpoena or warning you what kind of information is being disclosed in this regard.
Notices. Any notice which is required can be provided by SmartyAds in the following way: posting it in the services, sending a personal email to the account indicated in your personal account, sending the mail to the street address indicated in your personal account. The notice is regarded as received once it was posted on the SmartyAds website or it was sent to your email (apart from cases when we receive a notification about the undelivered message).
Agreement modifications. SmartyAds retains the right to change or modify the conditions of this agreement. In regard to this, you need to revise the conditions of this agreement to stay updated because changes reflected on this web page will be valid as soon as they are posted. In case you don’t agree with some of the changes, you must refrain from using services instantly and let us know by sending a notification to SmartyAds.
Agreement conditions. This agreement with all the changes and future modifications represents the entire agreement set between you and SmartyAds. It outweighs all agreements that existed before it, with respect to the same subject matter. Neither you nor SmartyAds sales representative is in power to change the conditions of this agreement.
Jury trial waiver. The parties agree and realize that any controversial matters that can be caused by the conditions of this agreement may be complicated issues. In this regard, the court proceeding which is caused by this controversy must be handled in the competent jurisdiction court by a judge accompanied by no jury.