SmobiAd Kft (hereinafter "the Company") is a company registered in the Hungary.
Among others, the Company is in the business of operating as a marketing agency by connecting and bringing together Publishers (individuals and/or businesses who have their own websites, as well as traffic resellers) with Advertisers (individuals and/or businesses who need to advertise their products online). For the provision of these services, the Company charges the Advertisers a small fee.
The following terms and conditions (hereinafter collectively referred to as "the Agreement") govern the relationship between the company and the "Advertiser" as this is identified in the Insertion Order, in respect to the placing of an Insertion Order (hereinafter referred to as the "IO"). It is hereby acknowledged between both the parties that both this Agreement and the IO form and constitute a single document
Subject to the terms and conditions of this Agreement, and provided that the IO has been approved by the Company in writing, the Company hereby undertakes to embark on all commercially reasonable efforts to supply the services and to undertake the campaign described as this is described in the IO (collectively referred to as the "Campaign(s)").
For these services to be rendered by the Company, the Advertiser hereby pledges, covenants and agrees to pay to the Company the amounts which are set out in the IO and any additional payments which are to be agreed upon between the parties.
For the purpose of effecting payments, the Company will issue the Advertiser with invoices at monthly intervals, or at any other such intervals which are set forth in the IO and/or agreed between the parties. The Advertiser hereby promises, agrees and covenants to effect payment of the amounts mentioned in the invoices. Such amounts may include — without limitation — all applicable and pertinent sales, use, excise and/or any other taxes, without set-off. Such amounts might also include abatements, compensations or deductions, all in accordance with the terms of this Agreement and the additional terms set out in the IO. Payment, unless there is an agreement to the contrary, shall be made to the Company within 14 (fourteen) calendar days from the date that the invoice is issued and sent by the Company to the Advertiser.
Undisputed overdue payments will accrue interest at the rate of 20% per annum or in any case at the maximum permissive by law rate. Interest rate shall begin to accrue after 14 (fourteen) calendar days from as from the date on which the invoice (for which payment is due) was issued and sent to the Advertiser, up and until final settlement of the said invoice and it shall be calculated on a daily basis.
Where applicable and in order to observe, monitor and record the performance of any campaign, the Company might ask the Advertiser to place the Company's tracking pixel(s) or any other necessary mechanisms for the purpose of observing, monitoring and recording the performance of any campaign (collectively referred to as "the Tracking Tools"). Such placement and testing shall be the sole responsibility of the Advertiser. Even in the event that the Advertiser fails to correctly place the Tracking Tools on the IO website or where the Tracking Tools will not be recording valid leads or actions, the Advertiser hereby acknowledges and accepts that it will pay for each and every lead or action generated and recorded by the Company, unless such lead and/or action is determined to be fraudulent or invalid (as this is defined in the applicable IO).
The Advertiser hereby agrees to grant to the Company and its publishers a non-exclusive, worldwide, royalty free license and right to use, perform, reproduce, display, transmit, modify, copy and distribute the advertisement, including all content, trademarks, images, trade names and brand features (collectively, the "Advertising Material") and any trademark, logos, and graphics of the Advertiser in accordance with the IO and this Agreement.
The Company reserves at any time the right to reject, suspend or cancel any campaign and/or to reject any advertising material which - in the opinion and/or discretion of the Company is not deemed suitable and appropriate for publication for any reason. Furthermore the Company reserves the right to reject, suspend, postpone or cancel any advertisement which in the opinion of the Company may expose the Company into criminal and/or civil liability and/or any other form of liability. Furthermore the Company might refuse, reject, suspend or cancel any Campaign if in its opinion it is deemed to be offensive or objectionable.
The timing, positioning and distribution of the Advertising Material for any Campaign(s) shall be at the sole discretion of the Company, unless such timing, positioning and distribution is specifically provided for in the IO and agreed between the Parties.
The Advertiser hereby represents, acknowledges and warrants that (a) it has the legal capacity and authority to enter into and be bound by the present Agreement and the IO; (b) it is entitled to use and also permit the Company to use, reproduce, transmit and display the Advertising Content and (c) the Advertising Content is not and will not in ay way (i) violate any third party copyright, trademark, trade name trade secret or other form of intellectual property (ii) violate any applicable laws rules and/or regulations (iii) contain false or deceptive advertising or any machine-readable code including but not limited to any virus, Trojan-horse or other self-executing program, (iv) contain any content that can de classified as defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate, or (v) violate any applicable law or regulation and particularly in respect to the offering of sweepstakes, gambling, promotions etc. The Advertiser hereby accepts that if it is in breach of any of the above representations, acknowledgements and warranties, then the Company has the right to immediately terminate the present Agreement and the IO and take any other necessary step and/or action deemed appropriate.
The Advertiser covenants, agrees and undertakes that: (a) it will, at all times, comply with all laws applicable in the jurisdiction where the Advertiser is situated or otherwise conducts its business; (b) it will, at all times, comply with the terms of this Agreement and the IO; (c) it will at all times comply with legal provisions pertaining to spam; (d) it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from the Company; and (e) it will, within 2 (two) business days from the end each billing period (as defined in the IO) deliver to the Company a report of its data and statistics relating to the Campaign(s).
In the event that the IO provides for or otherwise permits marketing by electronic mail, the Advertiser agrees to deliver its suppression list for each email campaign to the Advertiser immediately upon execution of the IO and thereafter to provide an updated suppression list for each campaign not less than once in every seventy-two (72) hour period of time for the duration of the Campaign.
Either party may terminate this agreement and cancel the IO without providing a reason for such termination, by giving a 3 (three) working days' written notice to the other party. In such a case any undisputed amounts owed by the Advertiser, must be settled within 14 (fourteen) working days as from the date that the termination becomes effective.
The Company might also immediately terminate this Agreement and the IO by means of a written notice to the Advertiser, in cases where the Company considers that the Advertiser has been in breach of any of the terms of this Agreement and the IO or if it is considered that the Advertiser has acted and/or the Campaign has been managed in a way which (a) is in contravention and/or violation of applicable laws, by-laws, rules and regulations, (b) is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate; or (c) might harm the good reputation of the Company, it's Directors, publishers or any other person and/or body for which the company is in law responsible.
Either party (hereinafter the "Disclosing Party") may, from time to time, disclose to the other party (hereinafter the "Receiving Party") certain information relating to the Disclosing Party's business or customers, publishers, subsidiaries, agents, or employees; business and marketing plans, processes, strategies and methods which may not be standard industry practice or which are not generally known in the industry and/or to any section of the public; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (all collectively referred to as the "Confidential Information"). The Disclosing Party and the Receiving Party hereby agree and acknowledge that such Confidential Information will be provided at the sole discretion of the Disclosing Party, and nothing in this Agreement obligates the Disclosing Party, its directors, agents or employees to disclose or grant to the Receiving Party access to any Confidential Information. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party hereby promises, pledges, covenants and agrees (a) to use the Confidential Information only for the purposes expressly contemplated in this Agreement; (b) that no Confidential Information will be disclosed to any third party, publisher, subsidiary, or agent of the Receiving Party without the prior written consent of the Disclosing Party. The Receiving Party acknowledges that the Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Receiving Party agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of the Disclosing Party, with the exception that one (1) copy may be made for backup and archival purposes only. The undertakings and obligations of each party under this Section shall not apply to any information which it can established to have: (a) become publicly known through no action on the Receiving Party's part; (b) been known by the Receiving Party prior to receipt; (c) been independently developed by the Receiving Party; (d) been approved for public release by the Disclosing Party's written authorization; or (e) been required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Disclosing Party is notified immediately of such required disclosure and given the opportunity to seek a protective order.
Unless the Company has provided its prior, express written consent, the Advertiser will keep the IO and the terms of the Agreement strictly confidential, and may not make any unauthorized disclosure of the same to any person.
The confidentiality non-disclosure provisions shall survive this Agreement for a period of 3 (three) years.
Neither party may assign this Agreement and the IO without the express written consent of the other. Notwithstanding the foregoing however the Company is able - and if this is deemed appropriate - and may broker or assign this Agreement and the IO at any time, in part or in whole, to a publisher with whom the company has entered into its standard publisher agreement. Such an assignment may be effected without seeking the prior written consent of the Advertiser, but the Advertiser might be notified of such an occurrence at the discretion of the Company.
The company reserves the right to include the Advertiser's name in any advertisement, publication, press release or promotional material, without seeking the Advertiser's prior consent. In case that promotional materials will need to be produced by the Company, the company may request from the Advertiser and the Advertiser will supply the Company with at least 1 (one) digital copy of art and/or other possible promotional materials produced that may be copied, printed, and/or distributed at conferences, signings, mailings, trade shows, etc.
THE COMPANY DOES NOT GUARANTEE THAT THE ADVERTISER OR ANY THIRD-PARTY WILL BE ABLE TO ACCESS THE COMPANY'S WEB SITE AT ANY PARTICULAR TIME. THE COMPANY'S SERVICES ARE PROVIDED ON AN "AS–IS, AS–AVAILABLE" BASIS. EXTERNAL FACTORS AND / OR FACTORS BEYOND THE COMPANY'S CONTROL MIGHT CAUSE SERVICE DISRUPTIONS AT TIMES FOR WHICH THE COMPANY MIGHT NOT HAVE ANY POWER OVER.
This Agreement and the IO shall be interpreted in accordance with the laws of the B.V.I.
Any Amendments to this Agreement and the IO shall be made in writing and signed by both Parties.
This Agreement and the IO constitutes the entire agreement between the parties with respect to the Campaigns noted in the IO and supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written between the Parties.