TERMS OF USE AND SERVICE AGREEMENT

Effective date: September 26th, 2014

  • 1. Scope of this Terms of Use and Service Agreement

    • 1.1.Scope. This Terms of Use and Service Agreement (the “Terms of Use”) sets forth the standards of use of the website http://www.smadex.com (the “site”), as well as the legal agreement between Smadex S.L. (“Smadex” or “us”), and the Customers of this site or of the services provided by Smadex (the “Customer”). Smadex is a Spanish company with seat in 08018 -Barcelona, c/ Llacuna 162, with Spanish Tax Number B-65322034, registered in the Commercial Registry of Barcelona at page B-399036.
    • 1.2.Acceptance. The use of this site entails full acceptance of the Terms of Use as published by Smadex at the moment of such use. If you do not agree with the Terms of Use, you should immediately cease all usage of this website.
    • The use of the services provided by Smadex, contracted either online or offline, entails the full acceptance and application of this Terms of Use as published by Smadex at the moment of such use, unless Smadex and the relevant Customer agree otherwise in writing.
    • 1.3.Effectivity. Smadex may change or amend this Terms of Use at any moment, without notice. An updated and effective draft of this Terms of Use is permanently accessible on the website through the url http://www.smadex.com/legal-terms. Customer should look at such url regularly to check for changes in the Terms of Use. Any changes to the Terms of Use will not apply retroactively and will become effective seven days after posting.
  • 2. Content of the site

    • 2.1.Ownership over the site.The site is owned and managed by Smadex.
    • 2.2.Use of the site. Subject to the terms and conditions of this Terms of Use, Smadex grants to Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the site, solely for the purpose of obtaining the mobile DSP services provided by Smadex.
    • 2.3.Services modification. Smadex may modify without prior notice the design, layout and/or configuration of this site, as well as some or all of its functionalities. Smadex reserves the right to modify or discontinue the service with or without notice to the Customer. Smadex shall not be liable to the Customer or to any third party should Smadex exercise its right to modify or discontinue the services provided by means of the site.
    • 2.4.No guarantee of technical availability. The Customer acknowledges that it is not technically possible that the site is 100% available 100% of the time. However, Smadex will strive to keep the site available and functioning as much as possible. Brief anomalies or temporary suspension may affect Smadex services, especially due to site maintenances, security reviews, or capacity issues, and because of events that may not be controlled or influenced Smadex (e.g. anomalies in public communication networks, power shortages, etc.).
  • 3. Insertion orders

    • 3.1.Binding nature.Where the Customer has submitted a Smadex Insertion Order (“IO”) in order to engage the services provided by Smadex, the terms contained in such IO shall be regarded as a binding agreement between the parties and shall be complementary to, but not a substitute of, this Terms of Use.
    • 3.2.Relation with the Terms of Use. The submission of the said IO shall not revoke or affect in any way the content and effect of these Terms of Use unless it is so laid down in the IO, or when there is discrepancy between the IO and these Terms of Use, in which case the IO shall prevail. If the IO and this Terms of Use establish a set of rules concerning one same matter (i.e. ad content policy), both set of rules shall apply at the same time, unless they are materially incompatible, in which case the IO shall prevail
    • 3.3.Relation with IAB Terms. IAB Standard Terms and Conditions for Internet Advertising for Media Buys (Version 3.0) (the “IAB Terms”), shall apply as subsidiary set of rules to this agreement. In case of discrepancy between the IAB Terms and either this Terms of Use or the applicable IO, the Terms of User or the applicable IO shall prevail.
  • 4. Customer obligations

    • 4.1.Indemnity. Customer undertakes to make diligent use of the site and the services provided by Smadex, in full compliance with the relevant IO, this Terms of Use, the IAB Terms when applicable, and the relevant regulations. Customer shall indemnify and hold Smadex (as well as its agents, affiliates, directors, officers, employees and partners), harmless of any damage, including any kind of cost, penalty, or loss profit, arising from the Customer’s non-compliance with its obligations.
    • 4.2.Information provided by the Customer. All information provided by the Customer through the site shall be truthful. Customer guarantees the authenticity of all data communicated as a result of completing the forms necessary for the subscription and use of the services provided by Smadex.
    • Customer shall be held responsible for keeping constantly updated all information provided to Smadex, so that said information is at all times accurate. Customer will be solely responsible for any false or inaccurate information provided to Smadex, as well as for the damage caused to Smadex or to third parties due to such unreliable information.
    • 4.3.Registry. Smadex may require at any moment that the Customer is registered in order to have access to any of the services provided by the site. In such case, the Customer password may not be transferred or assigned, even temporarily, to any third person. In the event that the Customer knows or suspects that his or her password is being used by any third party, the Customer shall inform Smadex of such undue use.
    • 4.4.Use of the site. Unless previous authorization is granted by Smadex, the Customer may not incur in the following behavior:
      • a) To use software or scripts in connection with site usage.
      • b) To block, overwrite, modify or copy the site code, unless such action is necessary for the proper use of the services offered at the site.
      • c) Any action that may impair the correct functioning of the site, especially overloading its servers.
      • d) To use any of the materials and information contained in this site for illegal aims, or by any aim expressly prohibited by these terms and conditions.
      • Smadex retains the right to terminate, at its sole discretion, any accounts involved with botnets and related activities.
    • 4.5.Payment terms. Invoices issued by Smadex shall become net and payable within 30 natural days since date of issuance. In case of late payment, Smadex shall apply different levels of penalties, including (i) stopping AdOps activities (quoting, reporting, launching new campaigns), (ii) stopping current campaigns, and (iii) a 1% daily default interest. Smadex shall have the right, but not the obligation, to seek payment of past due amounts directly from the applicable advertiser represented by the Customer (if there be one), without reducing or limiting Customer’s obligation in any way.
    • 4.6.Ad standards. Smadex, at its own discretion, may refuse to run any ad or campaign if it determines that such ad or campaign does not comply with Smadex ad quality standards, mobile advertising good practices or applicable regulations, or would otherwise be inappropriate or damaging to Smadex or its partners.
    • User shall refrain from submitting, and Smadex shall refuse to run, among others, (i) ads that promote or depict illegal content or activities, violence; (ii) ads that contain advocacy against any protected group (e.g., racial or ethnic origin, sexual orientation/gender identity, age, disability, sex, religion, color, national origin, or veteran status); (iii) ads that depict offensive content or activity; (iv) ads that infringe third party intellectual property; (v) ads that are deceptive or resemble Customer interface elements (e.g. text boxes) or feature excessive animation, shaking or smileys; (vi) ads that mislead the end user insofar as the ad doesn’t match with the final product; (vii) ads that include rotating or auto-expanding rich media creative; (viii) deceptive ads that replicate the Customer interface of OS notifications; (ix) ads that contain creative with iframes; or (x) ads that include applications such as viruses, spyware, and malware.
    • 4.7.Update of ad standards. Smadex may set forth at any time (for instance, in its IO) further restrictions on ad content and creative attributes.
    • 4.8.Fraudulent campaigns. Customer shall refrain from submitting campaigns that Smadex regards as deceptive, malicious, or fraudulent (“fraudulent campaigns). A campaign shall be regarded as fraudulent when it generates queries, impressions, click-throughs, conversions, subscriptions, and/or other actions through any automated, deceptive, fraudulent or other invalid means (including click spam, robots, macro programs, and internet agents), or encourage or require end users to click on ads through offering incentives or any other methods that are manipulative, or attempt to create a substitute or similar service through access to any of the Smadex services or proprietary information related thereto. A campaign shall also be regarded as fraudulent when it starts any kind of action (such as a download, a subscription or a call), without the end user’s informed consent and engagement.
    • Customer acknowledges that fraudulent campaigns may result in a direct damage to Smadex (including costs, penalties or loss profit, as well as Smadex’ exclusion from real time bidding markets). Customer shall fully indemnify and hold Smadex (including its affiliates, directors, agents or employees), harmless of any such damage caused by a fraudulent campaign, including income lost due to Smadex’ exclusion from a real time bidding market.
    • 4.9.Compliance check. At any given moment Smadex may require Customer to provide further evidence that its campaigns comply with the regulations set forth in this Terms of Use and in the IO. As an example, Smadex may require screenshots of the landing pages or tracking systems for any current, past or oncoming campaign managed by a Customer. Such compliance shall be specially required in case of mobile content subscription campaigns.
  • 5. Disclaimer. Warranties and liability

    • 5.1.Disclaimer. Except where expressly provided in this Terms of Use and in the applicable regulatory framework, Smadex is not responsible for damages of any kind that may result from the lack of accuracy, completeness or timeliness, or from errors or omissions in the contents of the site and the services provided to the Customer, unless the provision of such contents in certain conditions has been specifically guaranteed by Smadex to the Customer.
    • 5.2.No warranty. The site is provided by Smadex on an “as is” and on an “as available” basis. To the fullest extent permitted by applicable law, Smadex makes no representations or warranties of any kind, express or implied, regarding the use or the results of this site and the services provided by means of this site, in terms of its correctness, accuracy, reliability, or otherwise. Smadex shall have no liability for any interruptions in the use of this site. Smadex disclaims all warranties with regard to the information provided, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement.
    • 5.3.No liability. Smadex excludes any liability for damages of any kind (including any special, indirect, consequential, or incidental damages, or damages for lost profits, loss of revenue, or loss of use) that may be due to lack availability, continuity, or accuracy of the site, and the services rendered through the site.
    • 5.4.Third party information. While Smadex makes every effort to ensure that the information on the site is accurate, no representations or warranties are made as to the accuracy or reliability of any information provided on this site, specially the information provided by publishers or third parties of any kind.
  • 6. Links to third party websites

    • 6.1.Inclusion of third party links. Smadex may include in the site links to third party sites with the aim of facilitating access to relevant information available on the Internet. Smadex shall not be held responsible for the contents of the links between the site and third party sites not managed by Smadex. Such links or references are for informational purposes only and in no way imply an endorsement, approval, or commercial relationship of any kind between Smadex and the persons who manage or own the said third party sites.
  • 7. Intellectual Property Rights

    • 7.1.Copyright. The IP contents of this site, including its code, are subject to Copyright © 2014 – Smadex S.L. Consequently, all economic and/or exploitation rights in connection with the contents of the site are held by Smadex, unless they have been licensed to Smadex by a third party. The reproduction, transmission, adaptation, translation, modification, public communication or any other use of all or part of the contents of this site, in any form and by any means, is strictly prohibited unless it has been authorized in written form by Smadex.
    • 7.2.Content of the site. The text, graphics, images, audio, databases, logos, structure, brands and other elements of this site protected by intellectual property rights are held by Smadex and/or by any third party owners who have duly authorized their inclusion on the site by means of the corresponding agreement with Smadex.
    • 7.3.Trademark. Smadex, the Smadex logo, and all related marks and logos, are registered trademarks of Smadex. All other marks are the property of their respective owners. Such use of trademarks or links to the web sites of third parties is not intended to imply, directly or indirectly, that such third parties endorse or have any affiliation with Smadex.
  • 8. Privacy and personal data protection

    • 8.1.Smadex privacy policy. Smadex privacy policy regarding end user data is located in URL http://www.smadex.com/index.php/home/end-user-privacy-policy/. In such URL, Smadex maintains a means for end users to opt-out of having their information collected for ad serving purposes. Smadex will not provide to Customer any Personally-identifiable Information that would allow the personal identification of a particular end user.
    • 8.2. Customer compliance and privacy policy. Customer represents and warrants that, at all times during the term of this agreement it shall maintain a posted privacy policy accessible by direct link from the Customer’s home that (a) complies with all applicable laws, rules and regulations, (b) accurately discloses the data collection, use and disclosure practices applicable; and (c) discloses the use of one or more third parties for ad serving. Customer shall ensure that on each website where information is being collected by pixel, beacon or similar technology for retargeting purposes, such website displays a privacy policy disclosing such practice and a conspicuous opt-out link. It is prohibited to send any personally identifiable information to Smadex. Smadex may from time to time require Customer to provide specific additional notice mechanisms consistent with applicable laws or industry self-regulations.
    • 8.3. Children’s PrivacySmadex does not knowingly collect any personal information from children under age of thirteen (13). Should Customer’s site or services be directed to children under age of thirteen (13) or should Customer collect information from children under age of thirteen (13) (further collectively referred as “Children’s Content”), we require Customer at all times to comply with the Children’s Online Privacy Protection Act of 1998 (“COPPA”) as amended from time to time. In addition, we require Customer to immediately notify Smadex by sending an email to info@smadex.com or contacting its Smadex account manager in the event Customer uses the Smadex services in connection with Children’s Content. Should Customer choose not to notify us, we will assume that Customer is not using Smadex services in connection with Children Content and are compliant with COPPA. Smadex will not actively monitor Customer’s site or Customer’s service for Children’s Content and compliance with COPPA, therefore, we disclaim liability for Customer’s failure to prior notify us and honor its obligations as per the herewith request and per Smadex’s Privacy Policy.
    • 8.4.Data Ownership. Customer and Smadex understand that all data, including, but not limited to, information provided by end-users in response to an ad and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by a party with respect to an end-user from such data shall be owned as follows: Customer owns any data it collects and Smadex owns any data it collects.
    • 8.5. LOPD. In accordance with the provisions of Spanish Organic Law 15 /1999, concerning the Protection of Personal Data (hereinafter LOPD), Smadex informs the Customer of the existence of personal data files concerning the personal data of the Customer and/or its team, created and managed by Smadex as data controller. The Customer has the right to access, rectify, erase or block the personal data controlled by Smadex. These rights can be exercised by means of an email addressed to the address info@Smadex.com, quoting the above subject, or by regular mail addressed to Smadex SL, CIF: B65322034, Carrer Roselló, Barcelona 08029 (Spain).
    • 8.6. Customer Data Processing.  In addition to the foregoing, the Parties acknowledge that in some rare and extraordinary instances Customer may transfer to Smadex, or Smadex may independently collect, certain personal data necessary for the purposes of executing the advertising campaigns entrusted by Customer to Smadex (“Customer Personal Data”). For what concerns such processing of Customer Personal Data, the Parties agree that Customer shall be regarded as personal data controller and Smadex as personal data processor. Thus:
      • (i). Customer Personal Data shall be processed by Smadex exclusively for the purpose of providing the Smadex service contracted by Customer, under the instructions of the Customer. In no event shall Customer Personal Data be transferred to any third party, unless such transfer is necessary for providing the Smadex services.
      • (ii). When Processing Customer Personal Data, Smadex shall ensure that it implements and maintains compliance with appropriate technical and organizational security measures for the processing of such data, in accordance with the Spanish LOPD.
      • (iii). In no event shall Customer transfer to Smadex any personal data that may be included in the specially protected data categories defined in the LOPD and in EU Directive 95/46/EC (i.e. data requiring “medium level” or “high level” security measures).
      • (iv). The control of Personal Data remains with Customer, and as between Customer and Smadex, Customer will at all times remain the data controller for the purposes of this clause. Customer is responsible for compliance with its obligations as data controller under data protection laws, and shall inform any and all Data subjects of their right to access, rectify, erase or block the said personal data, and shall provide the means for effectively exercising such right. Customer must provide visible notice to, and where necessary, obtain consent from, its customers (including end users) regarding the scope of Customer’s and Smadex’s collection, sharing, and use of data in the context of the services provided by Smadex to Customer.
      • (v). Smadex may engage third party subcontractors to assist in the provision of the Smadex services –for instance in the provision of hosting services–; as a consequence, such third parties may take part in Customer Data processing. Customer acknowledges and authorizes this circumstance.
      • (vi). Following termination of the Smadex services, Smadex will return or otherwise make available for retrieval Customer’s Personal Data processed by Smadex. Following return of the data, Smadex will promptly delete or otherwise render inaccessible all copies of Customer Personal Data, except as may be required by law.
      • (vii). Smadex and/or its partners, such as Ad Exchanges, may transfer, storage, and use data in the United States, and in certain countries where data protection laws may be different from the EU regulations. Customer shall provide its customers with sufficient notice thereof, and when necessary obtain their consent for such transfer, storage and use.
    • 8.7. Smadex Data Processing. In the same sense, the Parties acknowledge that in some rare and extraordinary instances Smadex may transfer to Customer certain personal data (“Smadex Personal Data”) which may be necessary for the purposes of fulfilling Customer’s rights and obligations under this agreement. For what concerns such processing of Smadex Personal Data, the Parties agree that Smadex shall be regarded as data controller and Customer as data processor. Thus:
      • (i). Smadex Personal Data shall be processed by Customer exclusively for the purpose of fulfilling its rights and obligations under its agreement with Smadex, under the instructions of Smadex. In no event shall Smadex Personal Data be transferred to any third party, or subprocessed by a third party, unless such transfer is previously authorized by Smadex.
      • (ii). When Processing Smadex Personal Data, Customer shall ensure that it implements and maintains compliance with appropriate technical and organizational security measures for the processing of such data, in accordance with the Spanish LOPD.
      • (iii). In no event shall Smadex transfer to Customer any personal data that may be included in the specially protected data categories defined in the LOPD and in EU Directive 95/46/EC (i.e. data requiring “medium level” or “high level” security measures).
      • (iv). Following termination of the campaign in which the Smadex Personal Data were transferred to Customer, Customer will return or otherwise make available for retrieval Smadex Personal Data processed by Customer. Following return of the data, Customer will promptly delete or otherwise render inaccessible all copies of Smadex Personal Data, except as may be required by law.
    • 8.8. Data processing by third parties. In the context of the services provided by Smadex to Customer, Customer may instruct Smadex to transfer certain data to third parties such as ad serving or tracking companies (hereinafter “third party data processors”). In such event, Customer warrants to Smadex that it has entered into a data processing agreement with the relevant third party data processor, and that such third party data processor will use the transferred data (i) in compliance with all applicable laws; (ii) exclusively for the purpose of providing services to the Customer related to the ad campaigns run by Smadex; (iii) that the third party data processor will neither store nor share such data with a third party; and (iv) that the third party shall implement appropriate technical and organizational measures to protect the data against destruction or loss, alteration, unauthorized disclosure or access.
    • 8.9. Cookies. Smadex may use at any moment first-party or third-party cookies, aimed at increasing site Customer experience, site customization, or at facilitating access to information reserved to certain Customers. In accordance with the company data protection policy, the Customer is informed that the cookies, if used, shall be associated to an anonymous Customer and its computer. Therefore, the cookies shall not provide the name and surname of the Customer, or any other identifying personal information. The cookies shall not retain any information of a confidential or sensitive nature, such as political affiliation of a person. The Customer may reject the use of cookies by means of selecting the appropriate settings on its browser or device.
  • 9. Governing law and dispute resolution

    • 9.1.Applicable law and competent jurisdiction. These terms and conditions are governed by Spanish law. Any dispute arising from the use and/or contents of this site shall be submitted to the exclusive jurisdiction of the courts of Barcelona (Spain).