Terms and Conditions

Amplification of content on the SmartMatch™ platform

Last updated: 1st December 2019

Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the SmartMatch™ content amplification platform at https://my.smartology.co (“Service”, “Website”) operated by Smartology Ltd, a company incorporated in England and Wales, company number 04597890 (“Supplier”, “Us”, “We”, or “Our”). These Terms incorporate by reference our Privacy Policy.

These Terms constitute the entire agreement between you and Smartology Limited and govern your use of the Service (“Agreement”). Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service. By accessing or using the Service, you agree to be bound by these Terms. If you disagree with any part of the Terms then you may not access the Service. These Terms may be updated by us from time to time, so you should review the Terms periodically for changes at https://www.smartology.net/terms-of-service.

Definitions

In these Terms the following words and expressions shall have the following meanings:

“Advertisement Click” – A click will be counted each time a Data Subject clicks on Advertiser Content, redirecting the Data Subject to the Content URL defined by the Advertiser;

“Advertiser” means the originator of the content or their duly authorised agent, who has an account (or login) to the Service and uses the Service to Amplify Advertiser Content;

“Advertiser Content” is the content title, content body, image, company logo and content URL that together form the discrete data for Amplification. Advertiser shall provide this content using the Service. Advertiser Content must meet the terms of our Advertiser Content Policies;

“Affiliates” means any company, partnership or other entity which at any time directly or indirectly controls, is controlled by or is under common control with either Party including as a subsidiary, parent or holding company;

“Amplification” (Amplify or Amplifying) is the distribution of Advertiser Content through the SmartMatch™ platform, using Smartology’s proprietary Natural Language Processing platform, Real Time Bidding (RTB) and IAB Standard Ad Units across our network of publisher partners, with the purpose to generate Impressions or drive traffic to Advertiser’s designated Landing Page URLs;

“Approval” is the process of checking that a Campaign does not contravene any of our Advertising Content Policies or that of our publishers and advertising partners. Supplier aims to complete such checking within 48 hours of invoice payment. Campaign will not begin delivery until such process has been completed;

“Campaign” means the title, budget, start and end dates, geographic targeting, brand safety keywords, Advertiser Content, creative design including fonts, colours and logo that define the parameters the Service will use in choosing where and when to Amplify your Advertiser Content;

“Contracted Processor” means a Subprocessor;

“Cost Per Mille” (or CPM) is the cost per one thousand impressions, an industry standard measure. CPM will fluctuate between publishers, demand and other external factors beyond our control;

“Data Protection Laws” means any and all applicable federal, national, state, or other privacy and data protection laws (including, where applicable, EU Data Protection Laws) as may be amended or superseded from time to time;

“Data Transfer” means a transfer of Personal Data from the Company to a Contracted Processor or an onward transfer of Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

“EEA” means the European Economic Area;

“Data Subject” is the person to whom Advertiser Content is displayed via their browser and who may choose to interact with that Advertiser Content, by clicking on HTML links (Hyperlinks) to Advertiser Landing Pages;

“EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

“GDPR” means EU General Data Protection Regulation 2016/679;

“Impression” will be counted each time Advertiser Content is displayed on the web site of one of our network of publisher partners;

“Intellectual Property Rights” means intellectual property rights of whatever nature, whether arising now or in the future, including but not limited to any patents, trade marks, service marks, design rights, registered designs, applications for any of the foregoing, copyright, database rights, know-how, moral rights, rights in computer software (including all modifications, upgrades, enhancements, new versions and releases of software), rights in confidential information and other similar rights or obligations whether registered or unregistered and applications for any of them, existing or recognised anywhere in the world;

“Interaction Data” shall include information collected from Data Subjects when interacting with Advertiser Content or Advertiser’s websites (such as a Landing Page or Advertisement Clicks). Interaction Data shall include, but not limited to, IP addresses, browser type, operating system and mobile device information including advertising ID or mobile device ID and as such shall constitute Personal Data;

“Landing Page” means any resource accessible via a URL through the World Wide Web. In the context of the Service this will be the same as the URL you uploaded through the Service and used by the Service for matching using Our proprietary Natural Language Processing and should comprise text content as generally found in the form of articles, blogs and similar content types;

“Losses” means any and all third party claims, damages, fines, penalties, awards, judgments, and liabilities (including reasonable outside attorneys’ fees and costs);

“Measurement” – The Service will provide Advertiser with a summary of the number of Impressions and Advertisement Clicks, after applying our fraud detection algorithms, for each Advertiser Campaign;

“Party” (or Parties) together Smartology Limited and the Advertiser;

“Service Providers” those third parties who support Smartology Limited in the provision of Services (including, but not limited to the third party partners such as RTB exchange platforms);

“Subprocessor” means any person appointed by or on behalf of Controller to process Personal Data on behalf of the Company in connection with the Agreement;

The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

Fees, payment and taxes

You agree to compensate the Supplier for the use of the Service. We commence Amplification of a Campaign through our Service after a payment has been made in full and We will provide an invoice with instructions for payment. Supplier will not execute any portion of a Campaign if Advertiser fails to pay any invoice in advance and will not begin Approval of Campaign until payment of invoice has been made by Advertiser.

Each Impression will incur a deduction from the prepaid Campaign budget. Deductions will be based on the price per impression (1/1000th of CPM associated with that Impression) and our Commission which is added to the per impression cost before deduction.

For purposes of clarity, the Campaign budget shall be executed in U.S. Dollars. Where Advertiser selects a currency other than U.S. Dollars, Supplier will convert the budget to U.S. Dollars at an exchange rate set by Supplier based on the prevailing exchange rate on the 1st day of every month. The prevailing exchange rate for any given month, can be requested by emailing support@smartology.net.

Supplier may charge any applicable taxes, including value added taxes, that Supplier is legally obligated to charge (the “Taxes”). In the event that any amount payable by Advertiser is subject to deduction or withholding for Taxes, the amount stated on the applicable invoice and amount due from the Advertiser shall be increased to include such Taxes. If applicable, Advertiser will be responsible for reporting relevant Taxes, in its place of residency.

Service licence

The Supplier grants to the Advertiser a non-exclusive, royalty free, worldwide right and licence to:

access and use the Services for its own business purposes and as specified to permit the Advertiser’s own advertising, sales and marketing teams to view and use the Service for the sole purpose of Amplifying Advertiser Content; and
permit its employees, agents, contractors and persons contracted to use the Service to the extent reasonably necessary for the performance of such business purposes in connection with the Advertisers use; and
solely for purposes of managing Advertiser’s Campaigns and reviewing the performance data associated with Advertiser’s Campaigns.

Advertiser may not grant sub-licences to use the Services to any party including any Affiliate. The licence granted by this agreement will cover employees and agents of Advertiser (including contractors, sub-contractors and suppliers acting as agents of the Advertiser who are under the control of the Advertiser) to the extent necessary to allow such employees and agents to make use of the Service for the purposes of Amplification.

The Advertiser shall not make any copies or duplicates of the Service and has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, or make error corrections to the Service in whole or in part.

The Advertiser acknowledges that all Intellectual Property Rights in the Service and any enhancements, updates, modifications or other changes to it made by the Supplier shall remain vested in the Supplier and other than the limited licence granted above no right title or interest in the Service is granted to the Advertiser.

The Advertiser is not required to provide any feedback or suggestions to the Supplier regarding the Service. To the extent the Advertiser does provide any such feedback or suggestions for improvement, the Advertiser hereby grants to Smartology Limited and its affiliates a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit all such feedback and suggestions in connection with the Service without restriction.

Advertiser understands and agrees that Advertiser is solely responsible for its own actions in using the Service. Advertiser agrees to keep their account passwords and login information confidential, and will be responsible for all activity and payments owed under its account.

Supplier may terminate these Terms and your use of the Service immediately and without notice, if we determine, in our sole discretion, that you are in violation of these Terms.

Content and Data Ownership

Advertiser owns all Intellectual Property Rights in the Advertiser Content and the content displayed on Advertiser’s Landing Pages.

Advertiser grants Supplier a limited, revocable, non-exclusive, royalty-free right and license to (i) access, index, host and otherwise use the Advertiser Content in the Amplification as defined by a Campaign until such time as the spend reaches the budget amount; (ii) use Advertiser Content, Advertiser’s name, logo, trademarks, and any other proprietary content provided by Advertiser in connection with the Amplification of Advertiser Content; and (iii) share Campaign performance data (Impression and Advertisement Click), including performance per Advertiser Content item.

Each Party shall own all right, title and interest in and to any and all Interaction Data that is collected on or through such Party’s servers and such ownership rights include (as to each Party) the right to sublicense its respective Interaction Data and to create derivative works or modeled data sets and analytics from such data. All Interaction Data collected and Processing of same must comply with Data Protection regulations applicable to the Data Subject.

Notwithstanding the foregoing ownership provisions, Smartology Limited agrees to not disclose any Campaign related data to any third party for any commercial purpose on a non-aggregated basis (i.e., in a way that refers specifically to Advertiser, the Campaign, or any Advertiser brand).

Campaign delivery

Advertiser acknowledges and agrees that We do not guarantee how often the Service will Amplify any Advertiser Content and that the number of Impressions during any period may not use any or all of Advertiser’s Campaign Budget.

Advertiser may change the Campaign details except for the Campaign budget. Any change in a Campaign by Advertiser, will result in Campaign being paused and resubmitted for Approval. This will interrupt Campaign delivery and may mean the Service is unable to use all of the Campaign budget before the Campaign end date.

Our Measurement regarding Impressions are the definitive measurements under this Agreement and will be used to calculate the amounts due to Us.

Advertiser understands and agrees that Advertiser is responsible for its own actions with respect to the Campaign. We will not review Advertiser’s activity, nor will We actively monitor performance of the Campaign delivery. We are not responsible or liable for (and will not grant any credits for) any mistakes made by Advertiser in the managing of its own Campaign. We reserve the right to restrict Advertiser’s ability to edit Campaign details in the Service for any reason.

We reserve the right to (i) reject or remove any Advertiser Content, (ii) pause any Campaign, (iii) restrict Advertiser’s access to the Service, or (iv) cap total budget across all Advertiser’s Campaigns in any given month.

To the extent that Advertiser requests that we assist with the optimisation of any of Advertiser’s Campaign and we agree to do so, Advertiser (i) represents and warrants that it can substantiate any and all information that it has provided to us for use in the creation or optimisation of such Campaign; (ii) shall be solely responsible for all claims made in such Campaigns; and (iii) shall indemnify us for any Losses arising out of any such Campaign.

Advertiser shall not attempt to gain access to the accounts of other Service customers or to extract data from Service for commercial purposes.

Representations and Warranties

Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to consummate the transaction contemplated herein and that the persons executing this Agreement on each party’s behalf have the authority to do so. The Parties hereto agree to perform any and all lawful additional acts, including without limitation, execution of additional stipulations, agreements, documents, and instruments, as are reasonably necessary or as reasonably requested by any party hereto at any time to effectuate the intent of this Agreement, to satisfy the Terms contained herein, or to give full force and effect to this Agreement.

Advertiser represents and warrants that (i) it has all necessary rights, licenses, and clearances to enter into this Agreement, to grant the rights granted herein, and to use the Advertiser Content as specified herein, including, without limitation, the Intellectual Property Rights therein; (ii) its Advertiser Content and the content on Advertiser’s Landing Pages will not infringe upon the rights of any third party; (iii) it will comply with and ensure that its Advertiser Content and the content on Advertiser’s Landing Pages shall contain all disclosures required by rules, regulations, guidelines, and other industry standards and practices; (iv) its Advertiser Content and the content on Advertiser’s Landing Pages will comply with Advertising Content Policies, which may be updated from time to time; (v) it will comply with these Terms and Conditions, which may be updated from time to time; (vi) it will comply with all applicable laws and regulations in its use of the Service; and (vi) it will not take any action that could result in economic sanctions or other trade control restrictions or penalties being imposed on Smartology Limited. In addition, Advertiser represents that all of the business and payment information provided by it to Us is true, correct, and accurate and that Advertiser is a valid business entity or individual and not a fictitious or nonexistent entity or individual. If Advertiser is a “doing business as” entity, Advertiser agrees that the business entity doing business as Advertiser under this Agreement shall be liable for all of Advertiser’s obligations hereunder and that the person executing this Agreement on behalf of Advertiser agrees to be personally bound to the terms of this paragraph and personally liable for any breach thereof.

Smartology Limited represents and warrants that it possesses all of the rights and authority necessary for it to enter into this Agreement and to grant the rights granted herein.

THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY SMARTOLOGY LIMITED. SMARTOLOGY LIMITED PROVIDES THE SERVICE “AS IS” INCLUDING ANY AD PLACEMENT THAT COMPRISES THE SERVICE. SMARTOLOGY LIMITED EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Data Processing

Both Parties act as a Data Controller in relation to Interaction Data collected by each Parties servers and each Party shall comply with the requirements of any and all applicable Data Protection Laws in the Processing of Personal Data.

Each party agrees that it shall process the Interaction Data that it collects only for the purposes permitted by this Agreement.

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, each Party shall in relation to the Interaction Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

If Personal Data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the Personal Data is adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

Indemnification

Advertiser shall indemnify and hold Smartology Limited and the Service Providers, and their subsidiaries, affiliates, directors, officers, agents, co-branding partners and other partners, and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of Advertiser use of the Service, your connection to the Service, your violation of these Terms or your violation of any rights of any third party.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY THE LAWS APPLICABLE TO THESE TERMS, SMARTOLOGY LIMITED DISCLAIMS LIABILITY FOR ANY DAMAGES OR INJURY ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THIS SITE, THE SERVICE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES, EVEN IF SMARTOLOGY LIMITED SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SMARTOLOGY LIMITED BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT, POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE OR THE SERVICE.

Smartology Limited makes no representations regarding the availability of the Service and Advertiser acknowledges and agrees that the Service may be unavailable from time to time due to (i) equipment, software, or service malfunctions; (ii) maintenance and update procedures or repairs; or (iii) causes beyond the control of Smartology Limited or its affiliates, including, without limitation, interruption or failure of telecommunication or digital transmission links, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion, or other failures, and that Smartology Limited shall not be liable for any unavailability caused by any of the foregoing.

In addition, Advertiser acknowledges and agrees that Smartology Limited has no responsibility or liability with respect to the operation of the publisher websites that form Our publisher network.

Finally, the Supplier reserves the right to discontinue the Service or to change the content of the Service in any way and at any time, with or without notice to you, without liability.

General

Due to the nature of the Services, it shall, using proprietary Natural Language Processing software, semantically match Advertiser Content with the content appearing on a Publishers Website to achieve a relevant match between both. As such the Supplier cannot guarantee nor shall be liable for:

An absolute match between the content of the advertisement and the content appearing on the Publisher’s website although it will be within relevance tolerances;
The appropriateness of the match in terms of the Advertiser’s brand protection, however, the Supplier shall provide an exclusion list service which uses Natural Language Processing to exclude Publisher content that is classified as belonging to one of the following categories: abortion, air-crash, banking-economic-and-financial-crime, child-mistreatment, crime, cyber-threat, danger-and-death, demonstrations, diseases-and-syndromes, drug-addiction, drunk-and-disorderly, extreme-right-and-nationalist-parties, financial-crisis, fire, fraud, industrial-accidents, job-loss, manipulation-of-people, natural-disasters, prejudicial-discrimination, sexual, terrorism, torture, unrest-conflicts-and-war;
Given the nature of the way in which content can use many different words and expressions to deal with the same topic the black list is not full proof;
The Service will, additionally, allow the Advertiser to specify words or word pairs which it does not want to be associated with and which should be “blacklisted” from the match when comparing the Advertiser Content with that of the Publisher’s website;
It is the responsibility of the Advertiser to choose, maintain and update the Blacklist keywords. The Supplier may provide advice in relation to the words chosen by the Advertiser but shall not be liable to monitor the Advertiser Content against that of the Publisher’s website to ensure the protection of the Advertiser’s brand.
These Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales. Any dispute arising under these Terms and Conditions shall be subject to the exclusive jurisdiction of the courts of England and Wales.
Neither Advertiser nor Smartology Limited will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, terrorism, telecommunications line failures, electrical outages, network failures, acts of God, or labour disputes.
This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes any and all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter.
The failure of either party to enforce strict performance by the other party of any provision in this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of that party’s right to do so at any later point.
In the event that any provision of these Terms is held to be unenforceable or invalid under any applicable law or by any applicable court decision, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole but these Terms shall be modified, to the extent possible, by the adjudicating entity to most fully reflect the original intent of the parties as reflected in the original provision.