Terms of Service

Terms of Service Agreement

We are Smart RTB LLC. and provide an ad-serving platform (“the Platform”) enabling advertises to serve ads direct to publishers (“the Service”).

These are the terms on which you can use this Service. These terms apply from January 2019 - use of the service acknowledges your acceptance of these terms.

These terms govern the relationship between you and Smart RTB LLC. and any use which you make of the Platform. If you do not accept the terms and conditions laid down in this Agreement, please do not use or subscribe to the Service. If you are acting on behalf of a company, then by accepting these terms and conditions and using the Service, you certify that you are entitled to do so on behalf of the company whose details you enter below:

THIS SELF-SERVICE TERMS OF SERVICE, (“Agreement”) is made as of this ___ Day of _______, 2018 is by and between ______________________, a company incorporated in _______ and whose registered office is at _________________ ___________________________________ (hereinafter referred to as “User”, or “You”, which expression shall, unless it be repugnant to the subject or context thereof, mean and include its successors and assigns) and Smart RTB, LLC whose registered office is at 320 S Boston, Ste #847 Tulsa, OK 74103 (hereinafter referred to as “SMARTRTB”).

1. Definitions and Construction

1.1 In this Agreement the following expressions shall apply (save where the context otherwise requires):

“Account” means your account with us to which you transfer funds to pay Ad Placement Costs.

“Ad Impression” means a single instance or insertion of an advertisement.

“Ad Placement Costs” means the cost to you of each Ad Impression served via the Platform based on CPM.

“Administration Fee” 15 per cent of the funds then on your Account or the bank charges we incur in refunding moneys to you or $500 whichever is the higher.

“Confidential Information” means all information of a confidential nature (including trade secrets and information of commercial value) that may become known to one party in relation to the other during the course of this Agreement.

“CPM” (or “Cost per Mille”) means the cost for serving 1000 advertisement impressions to a particular website.

“Criteria” means the criteria selected by you for Ad Impressions to be served via the Platform, including criteria such as websites to which you do not wish Ad Impressions to be served, CPC or CPM and the locations, times and types of ad as well as such other targeting criteria set out in your campaign settings on the SMARTRTB interface.

“Customer Data” means all data relating to you or provided by you and processed by SMARTRTB pursuant hereto.

“Forex Conversion Costs” means the costs of converting the currency with which you fund your Account into the currency with which we pay any particular Publisher Fees and which will be subject to the foreign exchange cross rates applicable at the time of conversion.

“Intellectual Property Rights” means all copyrights, patents, image rights, privacy rights, database rights, registered and unregistered design rights, domain names, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.

“Personal Data” means personal data as defined in the Data Protection Act 1998.
“Platform Fee” means the commission charged by SMARTRTB for providing the Service and which forms part of the Ad Placement Costs.

“Platform Management Regulations” means regulations introduced by SMARTRTB from time to time for the better management of the Service.

“Publisher Fees” means that part of the Ad Placement Costs paid by SMARTRTB to the publisher/operator of the website(s) to which Ad Impressions are served.

“Server” means the computer(s) used by SMARTRTB to provide the Service.

“Service” means the provision of the Platform to enable your Ad Impressions to be served to websites in accordance with the Criteria.

“Service Interruption” means a period during which there is partial or total loss of the Service.

“Smart RTB” Smart RTB LLC. of 320 S Boston, STE #847 Tulsa, OK 74103

“Software” means the software used by SMARTRTB to provide the Service which is either SMARTRTB’s proprietary software or third party software in respect of which SMARTRTB has a license.

“Term” means the effective term of this Agreement.

"Unacceptable Content" means content which under the laws of any jurisdiction from which the Platform may be accessed may be considered either: 
A. inaccurate, out-of-date, dishonest, discriminatory, illegal, illicit, indecent, obscene, racist, offensive, pornographic, insulting, false, unreliable, misleading, violent, alleged to be or actually defamatory or in infringement of third party rights (of whatever nature and including, without limitation, any Intellectual Property
B. in breach of any applicable regulations, standards or codes of practice (notwithstanding that compliance may not be compulsory);
C. to contravene legislation, including without limitation, that relating to financial services, gambling, weapons, drugs, animals, children or alcohol; or
D. to harm SMARTRTB's reputation.

“we” means SMARTRTB and “our” and “us” will be interpreted accordingly.

2. Provision of Service and Charges

2.1 SMARTRTB agrees during the Term in consideration of the payment of the Ad Placement Cost by you to supply the Service on a non-exclusive basis upon the terms and conditions of this Agreement.

2.2 Subject to Clause 2.3, the Platform will serve Ad Impressions to websites in accordance with the Criteria.

2.3 You agree that the CPM is merely indicative of likely Publisher Fees in respect of any Ad Impression served to that particular website and that and the actual Publisher Fees charged by any website for publishing an Ad Impression are beyond the control of SMARTRTB and will vary depending on size, position, time and other factors.

2.4 You acknowledge that the Ad Placement Costs comprise the Platform Fee and the Publisher Fees.

2.5 All Forex Conversion Costs, should they be incurred, will be debited to your Account.

2.6 In the event that you make transfers to your Account via wire transfer, all associated bank fees will be for your account and if we are debited with any such fees, we will be entitled to recover such cost by way of deduction from your Account or by requesting immediate reimbursement by you.

2.7 All fees payable by the user, pursuant to this agreement, will be denominated in U.S. Dollars and will be paid by wire transfer, or the methods located inside of the platform. SMARTRTB will invoice the user on a monthly basis for all impressions purchased during the prior month. Any pre-pay or funds added via transfer will be deducted from the monthly invoice in accordance with SMARTRTB’s terms.

2.8 SMARTRTB will not be held liable for any customer technical issues in regards to billing discrepancies. All other billing discrepancies between SMARTRTB and you, the user, may be solved on a good faith basis. Such disputes must be received seven days before the due date in order to be valid.

2.9 Invoices will accrue late fees at the rate of 2% per month late, starting the 1st day of each late month. SMARTRTB may turn invoices over to any relevant collections firm at any time as determined by judgement.

2.10 If the user is found breaking any compliance rules set forth by SMARTRTB, SMARTRTB’s partners, or this agreement, then we have the right to close the user’s account without warning or without refund.

3. Duration, Termination and Suspension

3.1 Subject to earlier termination in accordance herewith, this Agreement will continue whilst there are unpaid invoices and/or an outstanding account balance. You may credit your Account via wire transfer or credit/debit card transaction as set out in more detail on our website.

3.2 You can terminate this Agreement by giving us written notice at any time to expire at the end of the subsequent calendar month. Subject to a minimum $500 media spend during the lifetime of your account, we will refund the balance on your account minus the Administration Fee on expiry. Where the lifetime media spend on your account is less than $500, no refund will be provided.

3.3 If you breach this Agreement, we can either:

3.3.1 Terminate immediately by email to the email address you provided on registration or as updated by you subsequently. In such event, we would within 30 days of receipt of your written request send you back any moneys on your Account minus the Administration Fee; or

3.3.2 Suspend provision of the Service hereunder until such time as the breach is remedied to our satisfaction or we decide to terminate this Agreement in which case Clause 3.3.1 will apply.

3.4 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

3.5 In the event of termination, each party shall immediately return to the other all property and materials containing Confidential Information belonging to the other.

4. Warranties and Service Interruptions

4.1 SMARTRTB warrants that:

4.1.1 it will use its reasonable efforts to provide the Service in accordance with the terms of this Agreement and to exercise reasonable care and skill;

4.1.2 it has full right power and authority to provide the Service to you in accordance with the terms of this Agreement;

4.1.3 it is and will remain compliant with the Self-Regulatory Principles for Online Behavioral Advertising as may be found at http://www.aboutads.info/resource/download/seven-principles-07-01-09.pdf and the NAI Code located at http://www.networkadvertising.org.

4.2 Except for the express warranties set forth in this Clause 4, the Service is provided on an “as is” basis, and your use of the Service is at your own risk. SMARTRTB does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. SMARTRTB does not warrant that the Service will be uninterrupted, error-free, or completely secure.

4.3 SMARTRTB does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof). Although SMARTRTB will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid Service Interruptions, SMARTRTB cannot guarantee that such events will not occur. Accordingly, SMARTRTB disclaims any and all liability resulting from or related to Service Interruptions.

5. Your Obligations, Warranties and Indemnity

5.1 You warrant that:

5.1.1 You will only use the Service only for lawful purposes and that your Ad Impressions will not contain any Unacceptable Content and acknowledge that you will be solely liable for any false, misleading, inaccurate, infringing or otherwise Unacceptable Content, and you will fully indemnify us against any liability and loss we may suffer as a result of such content or any use of the Platform which is unlawful, or otherwise in breach of this Agreement;

5.1.2 You will comply with all legal and regulatory obligations and requirements to which you are subject, including, where applicable, the Data Protection Act 1998, the EU Privacy Directive and any regulations made thereunder, and the Advertising Standards Agency’s CAP Code; and Online Behavioral Advertising as may be found at http://www.aboutads.info/resource/download/seven-principles-07-01-09.pdf and the NAI Code located at http://www.networkadvertising.org.

5.1.3 you either own or are fully licensed in respect of all Intellectual Property Rights forming part of the Ad Impressions and are fully entitled to have such Ad Impressions served to websites via the Platform.

5.2 You undertake to:

5.2.1 Ensure that you use all appropriate care in selecting the appropriate Criteria and creating the content for Ad Impressions so as to ensure that the Ad Impressions are fit for purpose and served to appropriate websites; and

5.2.2 At all times during the Term to comply with then current Platform Management Regulations and SMARTRTB shall give not less than 7 days' email notice to you of additions and changes to Platform Management Regulation.

5.3 In the event that you are in breach of any of your warranties or obligations under this Agreement, then:

5.3.1 SMARTRTB cannot be held responsible should the Service fail as a result (directly or indirectly) of such breach;

5.3.2 Subject to your prior approval, not to be unreasonably withheld, SMARTRTB shall be entitled to charge you for staff time engaged on rectifying any resulting problems at SMARTRTB’s then current standard charging rates.

5.3.3 SMARTRTB may without any liability terminate or suspend or terminate the Service in accordance with Clause 3.3 above

5.4 You agree fully to indemnify us and hold us harmless against any liability, loss, damage, costs or expenses we may suffer as a result of any breach by you of this Agreement. You agree to be responsible for any monetary damages, or fees, as a result of breach to either SMARTRTB or one of SMARTRTB’s partners.

6. Security

6.1 Each party recognizes that it is impossible to maintain flawless security but (where relevant) SMARTRTB shall take all reasonable steps to prevent security breaches in its servers' interaction with you and security breaches in any interaction with resources or users outside of any firewall that may be built into SMARTRTB’s servers.

6.2 You are responsible for maintaining the confidentiality of any passwords which are required to access the Platform and use the Service and are solely responsible for any damage caused by any unauthorized access.

7. Limitation of Liability

7.1 Except as expressly stated in Clause 7.2, SMARTRTB shall have no liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which constitute any of the following: special damage (even though SMARTRTB was aware of the circumstances in which such special damage could arise), loss of profits, loss of anticipated savings, loss of business opportunity, loss of or damage to goodwill, loss of or damage to data.

7.2 To the extent that not excluded by Clause 7.1 or otherwise, the total liability of SMARTRTB, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed in aggregate a sum equal to $100.

7.3 You agree that, in entering into this Agreement, either you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if you did rely on any representations, whether written or oral, not expressly set out in this Agreement) that you shall have no remedy in respect of such representations and (in either case) SMARTRTB shall have no liability otherwise than pursuant to the express terms of this Agreement.

7.4 The exclusions in this Clause 7 shall apply to the fullest extent permissible at law but SMARTRTB does not exclude liability for death or personal injury caused by the negligence of SMARTRTB, its officers, employees, contractors or agents, fraud or fraudulent misrepresentation, or breach of the obligations under United States law.

7.5 SMARTRTB shall not be liable for any loss or damage of whatsoever nature suffered by you arising out of or in connection with any act, omission, misrepresentation or error made by or on your behalf or arising from any cause beyond SMARTRTB's reasonable control.

7.6 You accept that SMARTRTB is in no way liable for any virus or other contaminants which enter your email system or computer network via email.

7.7 SMARTRTB shall not be liable for any Service Interruptions arising directly or indirectly from:

7.7.1 Interruptions to the flow of data to or from the internet;

7.7.2 Changes, updates or repairs to the Platform;

7.7.3 The effects of the failure or interruption of services provided by third parties;

7.7.4 Your actions or omissions (including, without limitation, breach of your obligations set out in this Agreement) or any third parties;

7.7.5 Problems with your equipment and/or third party equipment;

7.7.6 Interruptions to the Service requested by you.

7.8 You agree that you are in a better position to foresee and evaluate any loss you may suffer in connection with this Agreement and that the Platform Fee has been calculated on the basis of the limitations and exclusions in this Clause 7 and that you will effect insurance as is suitable having regard to your particular circumstances and the terms of this Clause 7.

8. Intellectual Property Rights and Content Removal

8.1 Without prejudice to your rights in your own materials, you hereby acknowledge that you shall not acquire any Intellectual Property Rights whatsoever in respect of the Software or Platform.

8.2 The copyright in all other aspects of the Service, including the format of any content management application we may provide remain the property of SMARTRTB or of the copyright owners (as the case may be).

8.3 You hereby grant to SMARTRTB:

8.3.1 Anon-exclusive, royalty-free, world-wide license during the Term to use, copy, reproduce, and manipulate data and content provided by you in connection with the provision of the Service;

8.3.2 A non-exclusive, royalty-free, world-wide license during the Term to use, reproduce and display your trade marks for the purposes of the provision of the Service; and

8.3.3 The right to use your name, logos and trademarks in marketing materials that we may compile from time to time to demonstrate that we have provided services to you and the general nature of those services, subject always to Clause 9 below.

8.4 SMARTRTB undertakes only to use your trade marks for the purpose of providing the Service.

8.5 Whilst we do not accept responsibility for monitoring or editing your content, we reserve the right to withdraw without notice any content which comes to our notice as potentially in breach of these terms or which is in our sole discretion objectionable.

9. Confidentiality and Ownership of Customer Data

9.1 Subject to Clause 9.4, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the Term and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party (Confidential Information).

9.2 SMARTRTB reserves the right to aggregate information (including transactional information) and statistics for the purposes of monitoring usage of the Platform and to develop the Platform and the services it offers.

9.3 SMARTRTB hereby undertakes not without your written consent disclose Customer Data to any other person save to those of its employees, agents and sub-contractors involved in the provision of the Service and who have, and to the extent that they have, a need to know the same.

9.4 The provisions of Clause 9.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:

9.4.1 Trivial or obvious;

9.4.2 Already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;

9.4.3 In the public domain other than as a result of a breach of this clause; or

9.4.4 To the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavors to notify the Disclosing Party of such requirement prior to making the disclosure.

9.5 For the avoidance of doubt, all Customer Data shall remain at all times your exclusive property and may only be used by SMARTRTB in order to fulfil its obligations pursuant hereto.

9.6 In no event will we store any Personal Data relating to you or otherwise comprised within the Customer Data on the Platform or pass any such data to any third parties unless obliged to do so by any law enforcement agency.

9.7 The provisions of Clause 9 shall remain in full force and effect notwithstanding any termination of this Agreement.

10. European Union Data Subjects

10.1 The General Data Privacy Regulation (“GDPR”) affords additional rights to EU data subjects. Those rights include the right to complain to EU Supervisory Authorities and the right to access, correct, port to another party and delete certain personal data processed by SMARTRTB.

10.2 With respect to EU data subjects, personal data includes pseudonymous information such as an IP address, a mobile advertising ID or a cookie ID. Where SMARTRTB is a controller of data (e.g., via our DSP), the legal basis will be both legitimate interest and consent depending on the type of information subject to processing and the information we receive from upstream partners. Where we rely upon legitimate interest, we have assessed the processing is not high risk and will not violate fundamental human rights of EU data subjects.

10.3 Where SMARTRTB receives from an EU data subject a request to cease processing of data, SMARTRTB will stop all data processing with respect to the opted out browser or device unless such processing is required by law.

10.4 If you’re an EU data subject and believe SMARTRTB is processing your pseudonymous information (e.g., SMARTRTB cookie ID or mobile advertising ID) or your contact information (e.g., email address, telephone number) and you wish to exercise your right to access, delete, port or remove such information, please send an email to info@smrtb.com and we will respond to your request within 30 days.

11. General

11.1 Subject to Clause 10.2, this written Agreement and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof and neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this Clause 10.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance on the same as being fair and reasonable.

11.2 SMARTRTB reserves the right to alter its terms of business from time to time. The Effective Date at the time the User is reading these terms is set out at the top of this Agreement. Prior to entering into a transaction, Users should check that the Effective Date has not altered. If it has, the User should examine the new set of terms and only enter into a transaction if it accepts the new terms.

11.3 If any provision of this Agreement or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.

11.4 SMARTRTB reserves the right to assign or subcontract any or all of its rights and obligations under this Agreement.

11.5 The User may not assign or otherwise transfer its rights or obligations under this Agreement without SMARTRTB's prior written consent.

11.6 Any notice given pursuant hereto may be served personally, by post or by email to the last known email address of the addressee. It is the responsibility of Users promptly to update SMARTRTB of any change of address or email address. Such notice shall be deemed to have been duly served upon and received by the addressee, when served personally, at the time of such service, when sent by email 24 hours after the same shall has been sent, or if sent by post 72 hours after put into the post correctly addressed and pre-paid.

11.7 SMARTRTB shall not be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.

11.8 Any delay or forbearance by SMARTRTB in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.

11.9 This Agreement shall be governed by the laws of the United States of America and the parties submit to the non-exclusive jurisdiction of the Courts of the United States of America.

11.10 No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.