Advertiser Terms and Conditions
1. Background & Definitions
Choosing our, Smart Vast Ltd. (“Publisher“) services for your (“Advertiser“) online advertising needs, you are agreeing to the following terms as provided in this agreement (“Agreement”). Publisher shall strive to conduct a marketing campaign to promote code unit(s) of advertising content (such as text links, URLs, and banner ads) (“Ad Unit(s)”) provided by Advertiser according to the terms provided herein. Advertiser shall make payment to Publisher of the amount set forth in the real time biding platform (“Platform”).2. Advertiser’s Account
Advertiser is solely responsible for ensuring the accuracy of all information it provides in accessing the Platform and/or Publisher services (such as entering bid prices, bid criteria, and destination URLs). Advertiser must diligently protect its account password and take all measures to prevent unauthorized access. Advertiser shall be solely responsible for any unauthorized usage.
If Advertiser’s account has been compromised or is being used in an unauthorized manner, Advertiser must immediately notify Publisher. Advertiser is responsible for checking and reviewing from time to time its account and account activity.3. Reporting
All numbers with respect to the Ad Units distribution for the purposes of billing and payment shall be based on Publisher’s reporting system. Publisher will provide the Advertiser with automatic reports at least on a weekly basis through the Platform. The parties agree that Publisher's reports and winning bids (as recorded and/or calculated in Publisher’s logs) will be deemed as sole and decisive evidence with respect to amounts owed hereunder and shall be binding upon the Advertiser.
Publisher shall have the right to place certain tracking technology in the Ad Units (such as tracking pixel(s) or any other mechanism(s)) for observing and recording the performance of the Ad Units.4. Bidding & Payment
By bidding on ad inventory through the Platform, you are making a programmatic offer to purchase such ad inventory. If your offer is accepted, you have purchased such ad inventory (“Purchase ”). Purchases are non-cancellable.
Advertiser shall make prepayment by adding funds to its account balance in the Platform. Payment to Publisher of the amount specified in the Platform for every Action made in the Target Countries and according to other terms as specified in the Platform will be reduced from the existing account balance. “Action” shall mean thousand Impressions. “Impression” shall mean the display of Ad Units to an end user while viewing a web page.
Advertiser may make payments by Wire transfer, subject to Publisher prior approval. All payments will be made in U.S. dollars. Advertiser shall be responsible for all duties, tariffs and taxes related to its use of the Platform and/or Publisher’s services, except for taxes on income paid or payable by Publisher.
Publisher has, in its sole discretion and without any liability, the right to withhold any amounts from the existing account balance, terminate Advertiser’s account with or without charging back the existing account balance and/or submit an immediate legal action against Advertiser and/or set a financial penalty, based on the damages caused to Publisher as a result of the use of Ads and/or any other content by Advertiser that includes or based on any inappropriate or illegal content including but not limited to any Ads that are not in compliance with the terms herein including Advertiser’s Guidelines attached herein as Exhibit A (“Unqualified Ads”).5. Cancellation
Publisher may cancel the campaign and terminate this Agreement immediately without notice to the Advertiser. Upon termination or expiration of this Agreement Advertiser shall immediately pay to Publisher all amount owed hereunder.
Advertiser may terminate this Agreement by deleting its account, subject to a prior written notice to the Publisher. In such case, Publisher shall refund Advertiser for unused funds minus an administrative fee of 15%, within 30 days.6. Intellectual Property
Advertiser has exclusive right, title and interest to the Ad Units and any marketing material provided to Publisher, and Publisher has no rights therein, save the limited right to use marketing materials pursuant to the terms hereof and allow end users to interact with the Ad Units. Publisher and its licensors have the exclusive right, title and interest to the Platform, its Trademarks, and to any of Publisher's software and related documentation. This section shall survive the termination and/or expiration of this Agreement.7. Advertiser’s Obligations
Advertiser will make every effort to uphold the highest ethical and commercial standards. Advertiser acknowledges that the Publisher has no obligation to distribute the Ad Units through specific sites, and that it has independently evaluated the desirability of utilizing Publisher's software and services and is not relying on any representation, guarantee or statement other than as set forth in this Agreement.8. Confidentiality
Any confidential information and/or proprietary data provided by one party (“Discloser”) to the other party (“Recipient”), including the Advertisement descriptions and the pricing of the Advertisement and the terms hereof, shall be deemed “Confidential Information” of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know such information, and that is bound by written confidentiality obligations at least as strict as those contained herein. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under this Agreement. All information concerning end user(s) who interacted with Publisher's software will be deemed as Publisher's Confidential Information, including rates, publisher referrals or any other data in connection to the services and/or Platform. This section shall survive the termination and/or expiration of this Agreement.9. Business Operations
Each party will make reasonable commercial efforts to keep its Website operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other liable for any of the consequences of such interruptions. The Advertiser acknowledges that changes to the configuration in which the Ad Units is distributed may be required only in writing, and will be subject to Publisher's approval. It is clarified that even if approve, such changes will be implemented within no less than 48 hours from Publisher's approval. The Advertiser further acknowledges that Publisher may make certain changes (such as editorial changes) to Ad Units provided to it.10. Relationships of Parties/Third Party Rights
The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall be deemed to constitute either party (or any of such party's employees, agents or representatives) an employee, or legal representative of the other party, nor to create any joint venture, association, or syndication amongst or between the parties.11. Force Majeure
Except for Advertiser's payment obligations under this Agreement, neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.12. Representations
Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of this Agreement by each party and the performance of their obligations and duties hereunder, do not and will not violate any agreement to which it is a party to or by which it is otherwise bound; (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms; and Advertiser represents that: (A) the Ad Units, including (a) all content provided therein; and (b) the methods by which and technology with which such content is made available to end users in the Target Countries, do not and will not: (i) breach any Applicable Law; (ii) infringe upon misappropriate or otherwise violate the rights of any third party (including intellectual property rights); (v) in any context harm the goodwill or reputation of the Publisher; (B) the Publisher's software (including the method by which, and technology with which, the Ad Units are made available to end users), and documentation presented by Publisher to end users to which the Ad Units are designated to have been reviewed by it, and found to be fully compliant with applicable directives, laws, regulations, industry guidelines or standards (including but not limited to Google Inc. guidelines) and Advertiser’s Guidelines attached herein as Exhibit A (“Laws”) (including the Laws which apply to the end user (at its place of residence), the Laws of the United States of America and the European Union) (“Applicable Law”); (C) It will not through its Ad Units or otherwise exploit Publisher's services or software in order to re-sell, distribute, license, sublicense or otherwise make use of end users' data (such as search terms, visits in URLS etc.) for commercial or for any other purpose; (D) It will not use Publisher's software of services except for the limited expressed purpose of this Agreement; (E) it will comply with Applicable Law when performing its obligations hereunder; and (F) It will not and will not allow any third party to act in violation of the foregoing terms. If Advertiser becomes aware to any legal restriction concerning the Ad Units usage and/or distribution it will immediately notify Publisher and Publisher will immediately cease such use. Advertiser will notify Publisher by a forty eight (48) hours prior written notice about any event, such as its servers' maintenance (including up-grades) or Ad Units updates, which may affect the services provided by the Publisher hereunder.13. Limitation on Liability
In no event shall Publisher be liable to the Advertiser for any incidental, indirect, special, exemplary, or consequential damages including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, in each case even if Publisher has been advised of the possibility of such damages. Without derogating from any of the foregoing, Publisher's total aggregate liability under this Agreement, if any, to the Advertiser or any other person or entity, in connection with any claim relating to this Agreement, including any services provided by or on behalf of Publisher, will be limited to an amount equal to the lower of (i) US$10,000 or (ii) the amount received by Publisher under this Agreement during the 30 day period immediately preceding the date of the claim. The existence of one or more claims will not enlarge this limit. This section shall survive the expiration and/or termination of this Agreement.
No action arising under or relating to this Agreement, regardless of its form, may be brought by either party more than six (6) months after the cause of action has occurred and in any event no later than three (3) months after the termination of this Agreement, except for an action for non-payment brought by the Publisher. The foregoing limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between the parties.14. Disclaimer
Publisher's Platform, software and services are provided with all flaws, "as available" and "as is". Publisher (including its subsidiaries, affiliates, and third parties that provide any kind of content or services through its Platform) makes any representation or warranties, expressed or implied, with respect to Publisher's Platform, software or services and expressly disclaim all other warranties, expressed or implied, oral or written, including, without limitation, any implied warranties of non-infringement, fitness for a particular purpose or merchantability. Publisher does not warrant that the Publisher's Platform, software or services will operate error-free, without any defects and/or uninterrupted. Publisher shall not be responsible for any software, materials and/or any other content that is served through or linked from and/or to Publisher's Platform. The parties acknowledge that the disclaimer above is a fundamental part of this Agreement, and Publisher would not enter into this Agreement absent such disclaimer.15. General
This Agreement contains the entire agreement between the parties and supersedes all other agreements between the parties. Without derogating from the generality of the foregoing, in the event that the terms of this Agreement are in conflict to the terms of any other agreement, provision, quote, order, acknowledgment, or other communications between the parties, the terms provided herein shall prevail over such conflicting terms (even if the conflicting terms are incorporated in a written instrument signed by the parties herein after the execution of this Agreement unless the Advertiser specifically referred in such instrument to the name and date of this Agreement and to the amendment of its terms and conditions). Advertiser may not assign this agreement without the prior written consent of the Publisher, and any assignments in violation of the foregoing shall be void. Nothing in this Agreement is intended or will be construed to give any person, other than the parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement or any other provision contained herein. This Agreement shall be interpreted in accordance with law of Hong Kong Special Administrative Region of the People’s Republic of China and the courts in Hong Kong shall have sole jurisdiction over any disputes hereunder. This Agreement may be executed in two counterparts, each of which shall constitute an original and the two together shall constitute a single agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement. The parties agree that Publisher may amend this Agreement / provide Advertiser with certain guidelines and that such amendments/guidelines shall be binding upon the Advertiser within 48 hours of the date such amendments/guidelines has been sent to the Advertiser.