GENERAL TERMS AND CONDITIONS

These General Terms and Conditions (the “T&C”) govern the relationship between SMADEX S.L.U. (the “DSP”) and advertisers, agencies, or other partners (the “Client”) for digital advertising services rendered by the DSP, including the execution of insertion orders (“IO”) for specific campaigns. By signing an IO, the Client agrees to the following terms:

  1. DEFINITIONS:  

The following terms shall have the following meanings:

  • “Ad(s)” means the advertising content, including text, graphics, rich media, video and/or audio material (and combination thereof), that is displayed on digital media inventory. 
  • “Ad Creative(s)” means an object that contains all the data for visually rendering the ad itself.
  • “Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party. 
  • “Agreement” means, these T&C and the Insertion Order. 
  • “Client Data” means all electronic data of Client submitted to the Platform by the Client or received by or collected and processed by or for the Client using the Services, and any data that specifically identifies the Client that is generated by or as a result of the Client’s use of the Services. 
  • “Fees” means income earned and invoiced by SMADEX from the sale of its Services.
  • “Guidelines” means the IAB’s standard content and advertising guidelines as provided at https://www.iab.net/guidelines.
  • “Insertion Order (IO)” A binding document that outlines the details of a digital marketing campaign, including start and end dates, budget, impressions, ad units, targeting, and other requirements agreed upon between the DSP and the Client.
  • “Promotional Material” means all material or content provided by the Client or contained in any Ad.
  • “Platform” means the SMADEX hosted software platform.
  • “Services” means SMADEX´S advertising and optimization platform and software.
  • “SMADEX Data” means the data used by the Services for bidding and delivery, the data derived from or generated by the Client’s use of the Services that does not specifically identify the Client, the data relating to any error, issue or enhancement to the operation or use of the Services, and the data that SMADEX would have regardless of the Client’s use of the Services. 
  • “Supplier” means a web or digital publisher or any other Third Party providing access to digital media inventory, data products or technology services which may be purchased or accessed through the Platform. 
  • “Third Party” means an entity or person that is not a party of this Agreement; for purpose of clarity, SMADEX, the Client, and any Affiliates of the foregoing are not Third Parties.
  • Scope of the Agreement

Services Provided: These T&C covers the provision of digital advertising services, including the planning, execution, optimization, and reporting of advertising campaigns as specified in individual IOs between SMADEX and the Client. SMADEX will use programmatic technologies, including but not limited to real-time bidding, to purchase ad inventory from third-party platforms on behalf of the Client.

Insertion Orders (IO): The services to be provided under this agreement will be specifically defined by individual IOs, which will detail the scope of each campaign, including budget, targeting, timeline, and deliverables. Each IO forms part of this agreement once signed by both parties.

Exclusions: These T&C does not cover any services beyond those explicitly specified in the IOs. Any additional services, including but not limited to creative development, custom data analytics, or consulting, must be requested in writing and agreed upon in a separate agreement or amendment.

  • IO Acceptance and Amendments

Campaign Setup: Each campaign is initiated upon mutual execution of an IO that specifies all deliverables, pricing, timelines, and targeting criteria.

Amendments: Any amendments to an IO must be agreed upon in writing by both the DSP and the Client, and any material changes (e.g., budget increases, flight extensions, changes to creative, etc.) may result in adjustments to the timelines or deliverables.

Rejection of IO: The DSP reserves the right to reject any IO for any reason, including inventory availability, non-compliance with applicable laws or policies, or concerns about creative or targeting.

  • Provision of services by SMADEX

Subject to the T&C as set forth herein, SMADEX hereby grants the Client a limited, non-exclusive, non-transferable, non-sublicensable right and license to access the Platform and use the Services made available by the Platform on a self-serve basis. Access will be provided through a password-protected login and the Client shall be responsible for maintaining the confidentiality of any such passwords and using commercially reasonable efforts to prevent unauthorized access to the Services. The Client may allow its Affiliates, agents, and subcontractors to access the Platform solely on the Client’s behalf in connection with the Client’s media campaigns; provided, however, that the Client will remain liable for the use of the Services by, and acts and omissions of (including the incurrence of costs and fees), all such Affiliates, agents, and subcontractors, as well as its employees. SMADEX may require a Third-Party access agreement from the Client’s agents or subcontractors prior to allowing access to the Platform by them. 

The Services are subject to modification from time to time at SMADEX´s sole discretion and SMADEX will use reasonable efforts to give the Client prior written notice of any such modification.  

In addition to these Terms and Conditions and the Insertion Order, the Client’s use of the Services shall also be subject to SMADEX’s Privacy & Data Protection Statement (available at https://smadex.com/privacy-policy/), except to the extent expressly and directly in conflict with the terms herein.

  • Ad creatives

The Client shall provide or make available all materials, including Ad Creative(s), necessary for SMADEX to perform the Services in a timely manner. All Ad Creative(s) must comply in all respects with the Guidelines. The Client represents and warrants that the Promotional Material will not, (a) (and the Client will not) infringe or violate any right of any Third Party, including without limitation, copyrights, trademark rights, and rights of privacy, publicity or freedom from defamation, (b) (and the Client will not) violate any governmental law, rule or regulation, including without limitation, laws relating to obscenity or false advertising, (c) contain any virus, worm, trojan horse or other contaminating or destructive feature, (d) contain any cookies, tracking features, or similar technology which has not been expressly approved by SMADEX in advance in writing, or (e) contain any offensive material not permitted by the Guidelines. 

  • Restrictions and Responsibilities 

The Client will not, and will not permit any Third Party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services; use the Services for any purpose other than its own use; use the Services other than in accordance with these T&C; or use the Services other than in compliance with all applicable laws and regulations, including but not limited to laws or regulations related to data privacy, intellectual property, consumer or child protection, obscenity, or defamation.  

The Client agrees to cooperate with SMADEX in fulfilling the obligations under these T&C by providing the necessary personnel and information as reasonably required, and by taking any additional actions reasonably requested by SMADEX. The Client is also responsible for maintaining the security of its account, including the creation and management of all passwords (administrative and user), and ensuring the safekeeping of files. The Client assumes full responsibility for any activity that occurs under its account, whether authorized or unauthorized.

  • Confidentiality

For purposes of these T&C, the term “Confidential Information” means non-public information that a party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation, the terms set forth in these T&C, the Insertion Order, the Client Data, SMADEX´s Data, information about the Services or derivatives thereof, and business or strategic development and marketing plans of either party. Confidential Information will not include information that: (a) was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the disclosing party; (b) is or otherwise becomes available in the general public through no breach of this Agreement by the receiving party; (c) was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; or (d) the receiving party developed independent of any disclosures of such information by the disclosing party. Neither party will disclose any Confidential Information to any Third Party; provided, however, that a party may disclose Confidential Information to its Affiliates, Suppliers, employees, agents and/or independent contractors to whom disclosure is reasonably required, provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in these T&C. Neither party will use any Confidential Information except as expressly permitted by, and as required to achieve the purposes of, this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature (but not less than reasonable care), to keep confidential the Confidential Information. Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by applicable law; provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) will give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the Disclosing Party will use its reasonable efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed. The parties agree that monetary damages for breach of confidentiality under this section will not be adequate and the non-breaching party shall be further entitled to injunctive relief.

  • Intellectual Property Rights 

Except as expressly set forth herein, SMADEX alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Platform or any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by the Client or any Third Party relating to the Services and/or the Platform, which are hereby assigned to SMADEX. SMADEX will obtain and process intellectual property provided by or on behalf of the Client, including but not limited to Ad Creative(s) only to perform its obligations under these T&C. The Client and its licensors shall (and the Client hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership) of all Ad Creative(s) distributed through the Services and the intellectual property rights with respect to those Ad Creative(s). However, SMADEX retains all right, title and interest (including, without limitation, sole ownership) of all underlying intellectual property used to create and develop such Ad Creative(s) and SMADEX is hereby granted a non-exclusive, nontransferable right to use the Ad Creative(s) during the Term of these T&C. The Client further agrees and grants SMADEX the right to utilize Client Data as provided to SMADEX by the Client to show dynamic Ads.  

  • Personal data 

The parties shall enter into a separate Data Processing Agreement (DPA) under the contractual model provided by SMADEX. Such DPA attached can be found at the following link and being an integral part of it shall establish the rights and obligations of both parties concerning the processing of Client Data by SMADEX to provide the Services to the Client.

  • Fraud 

If the Client reasonably believes that it has identified fraudulent activity, the Client shall notify SMADEX and SMADEX shall investigate the fraudulent activity in good faith. For any allegation of fraudulent activity, the Client shall provide SMADEX with the device ID and fraud status (e.g., suspected click injection, etc.) of all flagged installs. SMADEX agrees to investigate and upon the validation of any such fraudulent activity, SMADEX shall immediately remedy the issue either by blacklisting the fraudulent publisher or device ID or by taking any such action as SMADEX reasonably deems to be appropriate to cease the validated fraudulent activity promptly. SMADEX will not investigate any alleged fraudulent claim reported to SMADEX more than thirty (30) days after the issuance of an invoice. 

On condition that the Client is providing SMADEX with thresholds for maximum click-to-install times, the Client hereby agrees to change the attribution settings in its Mobile Measurement Partner (MMP) to match the specific thresholds and the Client shall send SMADEX a screenshot of this setup prior to the campaign going live. Finally, should the Client and SMADEX agree to the use of the Client’s Third Party fraud partner, SMADEX shall receive a report from said Third Party at a minimum of once per every two (2) weeks.  

  • Representations and warranties

 (a) Client. The Client represents and warrants that (i) the natural person executing these T&C has been duly authorized on behalf of the Client to do so, and (ii) the execution, delivery and performance of these T&C and the transactions contemplated herein does not and will not violate or conflict with any contractual obligations or arrangements to which the Client is bound. 

(b) SMADEX. SMADEX represents and warrants that (i) it has validly entered this Agreement and has the authority to do so, and (ii) it will use commercially reasonable efforts to prevent the transmission of viruses, worms, trojan horses or other malicious code to the Client. For any breach of a warranty above, SMADEX will use commercially reasonable efforts to promptly cure any failure. 

  • Fees

Both parties expressly agree that, for the provision of the Services, the Client shall pay SMADEX in accordance with the fees and budget set forth in the “Campaign Information” section on the first page of the Insertion Order. 

The Client acknowledges that the budget specified in the Insertion Order is exclusive of all applicable taxes. This includes, but is not limited to, national, state, provincial, and local taxes such as use, sales, value-added, property, and other similar taxes. The Client shall be responsible for the payment of any such taxes.

  • Term & Termination: 

(a) Term. These T&C and the Insertion Order shall be valid and in force from the Start Date to the End Date listed under “Campaign Information” on the first page of this Insertion Order (the “Term”) unless it is terminated in accordance with this Section 13. 

(b) Renewal. The parties expressly agree that this Agreement can be extended for thirty (30) days beyond the “End Date” only for the purpose of negotiating a new Insertion Order or renewing this one, unless either Party expresses their will to the other to end the Campaign with prior written notice of fifteen (15) days before such “End Date”. 

(c) Termination. Either party may terminate the Insertion Order and these T&C if: (i) the other party has materially breached its obligations hereunder and has failed to cure such breach (if curable) within thirty (30) days following the receipt of a written notice specifying the nature of the breach from the party seeking to terminate, or (ii) the other party becomes insolvent, makes a general assignment for the benefit of creditors, or becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition. 

(d) Early termination. Any party may cancel an Insertion Order upon 15 days written notice to the other party before the campaign start date. For any cancellation that occurs after the campaign has commenced, the Client will be responsible for paying all fees for any services or inventory delivered up until the effective date of cancellation.

(d) Suspension. Notwithstanding any other provision hereof, SMADEX shall have the right to suspend the Services immediately if SMADEX has reason to believe in good faith that the Client has breached its obligations under this Agreement and may terminate it upon determination that such breach is incapable of cure. (e) Effect of Termination. Upon termination of the Insertion Order and these T&C, without prejudice to any rights or remedies of either party: (i) the Client´s use of the Services shall be revoked, and (ii) the Client shall promptly pay to SMADEX all amounts due in accordance with this Agreement up to the effective date of termination. 

  • Reporting

SMADEX will provide performance reports to the Client as outlined in the Insertion Order (e.g., daily, weekly, monthly). These reports will contain key performance indicators (KPIs) such as impressions, clicks, CTR, conversions, etc. 

SMADEX will have sole responsibility for calculating and reporting metrics on delivered volumes of media bought through the Services (e.g., impressions, Ad clicks, user actions, etc.) as recorded by SMADEX and those metrics shall be used for calculating payments. SMADEX will make such metrics available to the Client through the Services. Both parties agree to accept the tracking numbers and reporting system of SMADEX as the final and binding source of data. In the event of a material discrepancy (greater than 10 % between the SMADEX and the Client’s reporting), both parties will work together in good faith to reconcile differences.

  • Survival

All sections of these T&C and the Insertion Order which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.  

  • Warranty disclaimer 

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9 OF THESE T&C, THE SERVICES AND SMADEX´S CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND. SMADEX HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.  

  • Indemnification 

The Client hereby agrees to indemnify and hold harmless SMADEX against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Client’s use of Services. Although SMADEX has no obligation to monitor the Promotional Material provided by the Client or the Client’s use of the Services, SMADEX may do so and may remove any such Promotional Material or prohibit any use of the Services that SMADEX reasonably believes may be (or alleged to be) in violation of the foregoing. SMADEX shall hold the Client harmless from liability to Third Parties resulting from infringement by the Services of any Spanish patent or copyright law or misappropriation of any trade secret, provided SMADEX is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; SMADEX will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by SMADEX, (ii) resulting in whole or in part in accordance from the Client’s specifications, (iii) that are modified after delivery by SMADEX, (iv) combined with other products, processes or materials where the alleged infringement  relates to such combination, (v) where the Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the Client’s use of is not strictly in accordance with this Agreement and all related documentation. The Client hereby agrees to indemnify and hold harmless SMADEX against any and all damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) related to any claim of infringement or misappropriation excluded from SMADEX’s indemnity obligation by the preceding sentence.

  • Limitation of liability

EXCEPT FOR DAMAGES RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, THE PLATFORM, THE USE OF THE SERVICES, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT IN THE EVENT OF A CLAIM OF INDEMNIFICATION OR A BREACH OF CONFIDENTIALITY, THE TOTAL LIABILITY OF A PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED IN THE AGGREGATE, THE LESSER OF (I) TEN THOUSAND DOLLARS, OR (II) THE FEES PAID TO SMADEX HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

  • Anti-bribery

Neither the Client, nor any of its subsidiaries or Affiliates, nor any director, officer, agent, employee or other person associated with or acting on behalf of the Client, or any of its subsidiaries or Affiliates, has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, to any employee or agent of a private entity with which the Client does or seeks to do business (a “Private Sector Counterparty”) or to foreign or domestic political parties or campaigns from corporate funds, (iii) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the U.K. Bribery Act 2010, or any other similar law of any other jurisdiction in which the Client operates its business, including, in each case, the rules and regulations thereunder, (iv) taken, is currently taking or will take any action in furtherance of an offer, payment, gift or anything else of value, directly or indirectly, to any person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage or (v) otherwise made any bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment. The Client and each of its respective subsidiaries has instituted and has maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with the laws referred to in subsection (iii) of the prior sentence and with the representation and warranty made in subsection (iii) of the prior sentence; and none of the Client, nor any of its subsidiaries or Affiliates, will directly or indirectly use the proceeds of the convertible securities or lend, contribute or otherwise make available such proceeds to any subsidiary, Affiliate, joint venture partner or other person or entity for the purpose of financing or facilitating any activity that would violate the laws and regulations referred to in subsection (iii) of the prior sentence.

  • Miscellaneous provisions 

(a) Governing Law and Jurisdiction. This Agreement shall be governed, construed, and enforced in accordance with the laws of Spain, without reference to its conflict of law principles and the parties submit themselves to the jurisdiction of the Courts of Barcelona. 

(b) Assignment. Except for an assignment of SMADEX´s duties and obligations to its Affiliate, neither party may assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without the other party´s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement in connection with an acquisition, sale, or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, reorganization, or similar transaction. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions this agreement will bind and benefit the parties and their successors and permitted assigns. 

(c) Entire Agreement. This Agreement together with the DPA constitutes the entire agreement between the parties and supersedes any prior understandings or discussions relating to the subject matter of this agreement. 

(d) Waivers. No failure or delay on the part of either party in exercising any right or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy prelude any exercise of any other right or remedy 

(f) Counterparts. This Agreement may be signed in multiple counterparts, and each such duly signed counterpart shall be deemed to be an original of this Agreement. 

(g) Relationship. Each party is an independent contractor with respect to the other party hereunder. This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the parties, or (ii) authorize any party to enter into any commitment or agreement binding on the other party. 

(h) Force Majeure. No party shall be liable under this Agreement for (or deemed in breach of this Agreement by reason of) any failure, delay, or interruption in performing any term or condition of this Agreement due to cause(s) entirely beyond the control of such party; subject however to the condition that such party gives the other party written notice thereof promptly and, in any event, within thirty (30) days following discovery thereof and takes immediate action to cure such cause. In the event of any such case, the time for performance shall be extended for a period equal to the duration of such cause. Payment of the Fees due under this Agreement shall not be subject to this provision. 

(i) Severability. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, then such portion shall be reformed or eliminated to the minimum extent necessary for this Agreement to be enforceable and legal, and this Agreement shall remain in effect in accordance with its provisions as modified by such reformation or elimination. 

(j) Notices. All notices pursuant to this Agreement shall be in writing and delivered either personally, by express courier, certified mail or email sent to the address set forth in the first page of this Agreement (parties´ information) or to such other address as a party may later specify in writing. All notices shall be deemed to have been given upon receipt. 

(k) Publicity. Subject to the Client´s written consent, the Client agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by SMADEX. SMADEX is permitted to disclose that the Client is one of its customers to any Third Party at its sole discretion.

By signing the IO, the Client acknowledges and agrees to be bound by these General Terms and Conditions and the Data Processing Agreement (DPA).