SmartNews Ads Terms of Service
US Region
By accepting these Terms, you acknowledge that you have read, understand, and agree to be bound by them. you accept these Terms by clicking a box indicating acceptance and/or by using or accessing the Service.
These SmartNews Ads Terms of Service (these Terms) are the terms and conditions that govern the operation and use of the advertisement placement service (the Service) operated by SmartNews International, Inc. and its affiliates (SmartNews, we, us, or our) for placing advertisements (Advertisements) to run in advertisement slots on platforms and other distribution channels owned or otherwise operated by SmartNews in the United States (Advertisement Slot(s)). Use of the Service is also subject to our SmartNews Ads Data Policy and SmartNews Privacy Policy, which are incorporated into and made part of these Terms and which shall be referenced herein collectively as these Terms.
These Terms constitute the agreement between (i) SmartNews and (ii) each advertiser using the Service (Advertiser) and such Advertiser’s authorized users of the Service (each, a User, and collectively with Advertiser, you or your). Capitalized terms will have the meanings set forth in these Terms.
If an Advertiser desires to access or use the SmartNews Ads API, which provides advertising data and other information relating to the access, provision, use, and performance of an Advertiser’s use of the Service, whether such access or use is directly by Advertiser or through an authorized third party, such as an advertising agency or app developer, then, in addition to these Terms, the SmartNews Ads API Access Terms of Service shall apply to such access and use of our SmartNews Ads API and ad data collected through the SmartNews Ads API. The SmartNews Ads API Access Terms of Service are incorporated into and made part of these Terms and shall be referenced collectively as these Terms in this case.
THESE TERMS CONTAIN GENERAL DISCLAIMERS (SECTION 18); DISCLAIMERS OF WARRANTIES (SECTION 19), LIMITATION OF LIABILITY (SECTION 20), AND AN AGREEMENT TO BINDING ARBITRATION, WAIVER OF JURY TRIAL, AND A CLASS ACTION WAIVER (SECTION 23(h)).
The Service. The Service is designed to enable Advertisers to place and manage Advertisements in available Advertising Slots. The Service is accessed via the website located at https://ads.smartnews.com/am/. The Service is provided solely for internal use by Advertiser and its authorized Users on Advertiser’s behalf. IMPORTANT: These Terms are applicable only to Advertisement Slots in the United States – if you are placing advertisements on advertising slots on SmartNews platforms outside of the United States the terms of service for such platforms govern. Access or use of the Service is not allowed where prohibited by law.
System Requirements & Availability. To access the Service, a User needs a compatible computer or mobile device with Internet access (third party fees may apply) and running compatible browser software. The Service fully supports current versions of Firefox and Chrome and is also available on other browsers such as Edge and Safari although there may be from time-to-time differences in performance and functionality between different browsers, particularly those that are not fully supported by the Service. Certain features and Support may require use of email software and/or a mobile phone that is able to receive text messages (third party fees may apply). Apart from a compatible browser, use of the Service does not require the downloading or installation of any client-side software or app on your device. Because use of the Service involves your own hardware, software, and Internet access, a User’s ability to use the Service may be affected by the availability and performance of these items. You acknowledge and agree that such third-party system requirements and expenses, which may change from time to time, are solely your responsibility. The Service is generally available 24x7x365 except for periods during which the Service is down, in whole or in part, for updates, upgrades, maintenance, or due to network outages or other Force Majeure Events (Downtime). We use commercially reasonable efforts to provide at least [99%] Service uptime each calendar month, excluding periods of Downtime. We generally provide advance notice of scheduled or anticipated Service Downtime, but Downtime may occur at any time and without advance notice and may last longer than anticipated or communicated. Because Users are located in various time zones, we are unable to commit to any specific time of day when we schedule Downtime. If you or your Users elect to use any additional services offered by us, including but not limited to managed services, or engage any third-party services or external tools through a designated management console or other means that we may provide as part of the service from time to time, you acknowledge and agree that you shall be solely responsible for all acts, omissions, and performance of such third parties and external tools, and for any consequences or results of their use, as if such actions were performed directly by you. You and Users must comply with all rules and requirements stipulated by us in connection with such services and shall also comply with any rules or terms required by any such third-party service or external tool. Without limiting the generality of Section 21, you and your Users agree to indemnify, defend, and hold us harmless from and against any and all claims, damages, liabilities, losses, and costs (including reasonable attorneys’ fees) arising out of or related to the use of such third-party services or external tools.
Users. The Service may be accessed only by Users who are authorized to do so by an Advertiser and then only in accordance with these Terms. To access the Service, a User will use their validated email and system-generated password to log-in to an account created by SmartNews (each, an Account) and accept these Terms. Users will only consist of: (i) employees of Advertiser, and (ii) third party contractors of Advertiser, including advertising agencies, who are at that time providing related services to Advertiser that require access to the Service and who do not compete with us (Permitted Contractors). Employees of, or contractors for, our competitors are prohibited from accessing or using the Service without our express prior written consent, which consent may be withheld in our sole and absolute discretion. Advertiser is fully liable for the acts and omissions of Permitted Contractors. We may terminate an Advertiser’s or a User’s Account immediately if we believe there has been a violation of these Terms. To register for an Account, Advertiser and each authorized User needs a valid Advertiser email address and to provide certain additional information (Registration Information). For the processing of the Registration Information, we are the data controller. To the extent that you provide us with any Personal Data (as such term or similar applicable term is defined by Applicable Law), you grant us a limited, non-exclusive license to store, use, and process such Personal Data subject to the terms of these Terms and our Privacy Policy and Ads Data Policy. The Service is not for use by persons under 18 years old (or the age of majority in the jurisdiction in which the person resides) and such persons may not create or access an Account. Advertiser acknowledges that (i) User’s actions are considered as Advertiser’s own actions, (ii) Advertiser accepts all responsibility for the actions of Users, and (iii) Advertiser remains fully responsible for any and all action conducted by Users.
Privacy Policy. Use of the Service is also subject to our Ads Data Policy and our Privacy Policy, which are made part of these Terms. We may update the Ads Data Policy and/or Privacy Policy from time to time. Each such update will include the date of the last revision. Please note: We have, and the account administrator at Advertiser that authorizes a User to access the Service may have, and may authorize other Users to have, the ability to monitor and track a User’s use of the Service.
Compliance with Applicable Law. Use of the Service is subject to the Applicable Law. Applicable Law means all applicable local, state, federal, national, and international laws, statutes, ordinances, regulations, directives, codes, treaties, orders, and other binding requirements of any governmental authority, regulatory or administrative agency, or body, as may be implemented, amended, extended, superseded, or re-enacted from time to time, including, without limitation, those related to data protection, data privacy, data transfer, international communications, and the export of technical or personal data, that are applicable to the activities, transactions, or obligations contemplated under these Terms or any other terms or policies that are incorporated into or otherwise apply to or govern these Terms, including without limitation, our Privacy Policy and Ads Data Policy.
Support. We will provide you with basic in-Service online and follow-on e-mail support in connection with your use of the Service (Support). We may subcontract Support services at our discretion without notice or consent. You understand that we are not responsible to provide Support for any issues resulting from problems, errors, or inquiries related to your systems, hardware, software, or Internet service.
Service License. Subject to your ongoing compliance with these Terms and for so long as Advertiser has an active Account and is in good standing, we grant you a limited, worldwide, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the object code of the Service. All intellectual property rights of any nature in the Service and underlying data, and any associated metadata, together with our methods, techniques, graphics, images, designs (including user interfaces and dashboards), navigation, algorithms, tools, trade secrets, or other intellectual property rights of any nature used to provide the Service (collectively, our Background IP) remain solely with SmartNews and its licensors. For clarity, Background IP excludes any Advertiser Content.
Advertiser Content.
Advertiser Content. In using the Service, you will input Advertisements and other materials, which may include scripts, creative works, text, images, videos, and data, that are owned or licensed by Advertiser (collectively, Advertiser Content). You, not us, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to input and use, all such Advertiser Content. For clarity, there is no transfer of ownership of Advertiser Content from Advertiser to us under these Terms.
License to Advertiser Content. Advertiser hereby grants us and our service providers a non-exclusive, worldwide, transferable, fully-paid, royalty-free, and sublicensable license to use, reproduce, modify, adapt, distribute, publish, translate, publicly display, store, tag, create derivative works from, and transmit Advertiser Content in connection with the Service. We may use the Advertiser Content for any purpose related to the Service, including (i) making Advertiser Content available on the Service; (ii) formatting or summarizing Advertiser Content; (iii) placing advertising and other data around Advertiser Content; (iv) enhancing our services and products; (v) syndicating or distributing Advertiser Content to third parties; (vi) archiving Advertiser Content, and (vii) licensing Advertiser Content to advertisers for inclusion in third party platforms.
Advertising Policy. Advertiser Content must comply with our US Advertising Policy (the Advertising Policy), which is made part of these Terms. We may update the Advertising Policy from time to time. Each such update will include the date of the last revision. We may ask you to supply information reasonably necessary to confirm that Advertiser Content, or any website linked from an advertisement, complies with the then-current Advertising Policy.
Violations. We may require you to revise or replace relevant portions of such Advertiser Content, or, we may elect to suspend running the associated Advertisement(s) or suspend providing the Service (or portions thereof) to you if we determine, in our reasonable judgment, that (i) Advertiser Content violates the Advertising Policy, regardless of whether the associated Advertisement(s) have yet to commence running or are running or (ii) the subject matter of certain Advertisements is, or could reasonably be viewed as being, inappropriate in light of prevailing circumstances (for example, following an incident, accident, disaster, or other event of a nature such that a responsible and prudent advertiser would, in the ordinary course, refrain from placing or continuing the run of advertisements containing or relating to such subject matter for a reasonable period of time following such event, or where a valid complaint has been threatened or submitted by a third party). The manner and/or timing with which we provide you with any notice about your violations will be dependent on the nature of the violation as determined by us in our sole discretion. We will have no liability to you of any nature as a result of such Advertisements not being accepted for placement or having their runs suspended or ended prematurely.
Placement Deadlines. You will submit Advertiser Content by the deadline and in a manner specified in the Service or otherwise as set forth by SmartNews in writing. We will have no liability to you of any nature as a result of Advertisements not being accepted for placement or not commencing their runs as otherwise scheduled due to late or improper delivery of Advertiser Content.
Fees.
Advertising Fees.
Advertising fees (Fees) are as set forth in the Service and are incurred when impressions, clicks, conversions, and other conditions set forth in the Service or otherwise as set forth by us are met.
Fees quoted in the Service or otherwise by us are firm and not subject to audit, price revision, or price predetermination and are not subject to trade or other discounts (other than discounts expressly set forth in the Service or otherwise by us in writing). You acknowledge that pricing is based on the provisions of these Terms providing for an agreed allocation of the risk. You further acknowledge that the pricing and terms would have been different if there had been a different allocation of the risk.
Suspension of placed Advertisements, or a change in the advertising period, may take time before it is reflected in the Service, and we may charge Fees for Advertisements that run prior to such reflection.
Preparation of a budget does not guarantee that Fees due will not exceed the budget, and we may charge Fees for any advertising placement that exceed a budget.
You will not fulfill impressions, clicks, conversions, or other conditions by automated or other improper methods, or allow another party to use such methods. If we believe that such methods have been used, such impressions, clicks, conversions, or other conditions that are reasonably presumed to have been made by such methods will be deemed to be invalid.
Invoicing and Payment.
Fees, plus any applicable taxes, are invoiced monthly in arrears on or before the sixth (6th) business day of each calendar month for the prior month.
Unless otherwise set forth in the Service or otherwise in writing by us, payment terms are Net 30 from the date of invoice.
Payment will be made by ACH or wire transfer to an account we designate in writing for this purpose.
If Advertiser requires the use of a purchase order, Advertiser is responsible for providing the applicable purchase order prior to the applicable invoice date.
If Advertiser has set up a direct debit, we will not debit the designated account before seven (7) days have elapsed from the date of the invoice. If satisfactory open account credit is established, then until withdrawn, terms of sale are net thirty (30) days up to the available credit limit.
Advertiser will pay all amounts indicated on each invoice without setoff for any amount due to us regardless of any controversy that may exist.
If Advertiser fails to pay as required by these Terms, or if we have reason to suspect Advertiser’s financial condition or other circumstances do not warrant providing the Service on terms, we may at any time limit or cancel credit and demand payment in advance. Once paid, the deposit will be used to pay Fees as they become due and payable. If we reasonably determine that the deposit is insufficient, we may, without any advance notice to you or compensation to you, may temporarily suspend the Service until the deposit is increased. If and only if there are no Fees due (or to the extent any are in dispute) and no Fees that are to be incurred in the future, Advertiser may request a return of the remaining balance of the deposit once per quarter, and upon such demand we will return the balance of the deposit by remittance to an account of the financial institution designated by Advertiser. The deposit will not bear interest.
If Advertiser in good faith disputes all or any portion of the Fees in any invoice, Advertiser may withhold payment of the amount in dispute pending resolution of the dispute; however, we reserve our rights at law and at equity with respect to such sums. Advertiser will notify us within three (3) business days from the date of receipt of an invoice if Advertiser rejects all or part of the Fees in such invoice. Advertiser must provide written reasons for such rejection and the parties will attempt in good faith to resolve any controversy or complaint within ten (10) business days of the notification. Notwithstanding the foregoing, Advertiser is obligated to timely pay any undisputed portion of the invoice.
Taxes.
Prices quoted or accepted are exclusive of national, federal, state, provincial, municipal, or other government sales, excise, use, occupational, value-added, or other taxes, tariffs, customs, or export duties or fees. All such taxes, duties, tariffs, and fees are Advertiser's sole responsibility. Fees are subject to increase by the amount of any of these taxes, duties, or fees that we pay or are required to pay or collect relating to the Service. We will normally identify these as separate additional items on the invoice but our failure to do so does not shift responsibility for these items.
Past Due.
Any past due balance is subject to a monthly interest charge computed at a periodic rate of one-and-one-half percent (1.5%) per month but not to exceed the highest rate allowed by law, on the past due amount. Advertiser acknowledges that the late payment of any invoice will cause us to lose the use of that money and incur costs and expenses, including administrative and collection costs and/or processing and accounting expenses, the exact amount of which is difficult to ascertain. Therefore, we may also impose a late charge equal to five percent (5%) of such past due balance. Advertiser and we agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to us for the loss suffered from such non-payment by Advertiser. In addition, we may suspend delivery of advertisements until the full amount of Fees and any late payment fees are paid.
Your Warranties.
You warrant that the information provided to SmartNews and registered with the Service is true and accurate. You agree to update the information as needed to keep it current.
You warrant that Advertiser Content:
is not in violation of any laws or applicable voluntary rules (including the Advertising Policy);
to the extent you are required to obtain a license from, or the consent of, a person whose information is to be provided to SmartNews, you have obtained such consent;
does not infringe on the rights of SmartNews or a third party (including copyrights, moral rights of authors, trademarks, design rights, patents, utility model rights, privacy rights, publicity rights, image rights, or any intellectual property rights or other rights under Applicable Laws or contracts);
contains accurate and current information, and does not contain false information, information that may mislead or confuse viewers, information in violation of public order, computer viruses, or other harmful information;
includes applicable policies, terms of use, and contact information of the Advertiser; and
will function as described by the Advertiser when it was submitted and will meet the expected standards and intended purpose as outlined by the Advertiser.
If SmartNews receives a complaint, warning, objection, or demand from, or if a lawsuit is filed against SmartNews by, a third party with respect to any Advertiser Content, Advertiser is solely liable for resolving this at its own cost and expense without causing inconvenience to SmartNews.
Usage Rules.
General Usage Rules. Use of the Service is conditioned upon your compliance with the following (the General Usage Rules):
Access to and use of the Service is provided solely and exclusively to benefit Advertiser. The Service may not be used for the benefit of any person other than Advertiser or otherwise providing services for third parties.
You warrant, represent and certify that you have obtained all necessary consents and have the legal right to collect, use, and disclose any Personal Data provided to us in connection with your use of the Service. You further warrant that all such collection, use, and disclosure comply with all applicable privacy and data protection laws, including, but not limited to, the California Consumer Privacy Act (as amended by the California Privacy Rights Act) and other similar US state consumer privacy laws, as applicable (collectively CCPA), and any other laws related to or otherwise applicable to governing the protection of personal data in the jurisdictions where you operate or from where you provide or otherwise receive Personal Data. For purposes of the CCPA, you are considered a Business and we are a Third Party for consumers' Personal Data you provide to us.
You represent and warrant that you comply with all Applicable Laws and regulations concerning the collection, use, and sharing of Personal Data of individuals under the age of consent for data protection purposes, including but not limited to the US Children's Online Privacy Protection Act (COPPA), which prohibits the collection of Personal Data from individuals under the age of 13 without verifiable parental consent. You further represent and warrant that you do not collect, use, or share the Personal Data of individuals below the applicable age threshold under other relevant laws unless explicitly permitted and all required conditions under such laws are satisfied.
You will not access or attempt to access an Account that is not your Account.
You understand that we are not granting you any licenses or rights to our Background IP, and you agree not to access (other than allowed through the normal and expected use of the Service), copy, or extract any Background IP.
You agree not to "frame," "mirror," or serve the Service on any web server or other computer server over the Internet or any other network, or to publish, perform, demonstrate, copy, modify, reproduce, rent, lease, loan, sell, re-sell, distribute or redistribute the Service, or create derivative works of the Service, in any manner or in any form.
You agree (i) not to copy, modify, or reproduce the Service, or to create any derivative works thereof; and (ii) not to rent, lease, loan, sell, re-sell, distribute, or redistribute the Service under any circumstance without our express written consent.
You will not disassemble, decompile, or reverse engineer the Service or permit or assist others to do so. Disassembling, decompiling, and reverse engineering include: (i) converting the Service, or any element or component thereof, including Background IP, from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Service, or any element or component thereof, including Background IP, by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Service's operation and creating the original source code or any approximation thereof by, for example, studying the Service's behavior in response to a variety of inputs; or (iv) performing any other activity related to the Service that could be construed to be reverse engineering, disassembling, or decompiling.
You will not remove, obscure, or alter any copyright notices, trademark notices, logos, or similar labels in the Service.
You agree not to collect or harvest any third-party Personal Data, including names, mailing, social media handles, or email addresses, etc., from the Service for any purpose, nor to use such information or the Service for any solicitation purposes.
You agree not to conduct any systematic or automated data collection activities, including scraping, data mining, data extraction, or data harvesting on or in relation to the Service.
You agree (i) not to interfere with or disrupt the Service and/or the servers or the networks connected to the Service, or circumvent, disable, or interfere with security features of the Service; (ii) not to exploit the Service in any unauthorized way whatsoever, including by trespass or burdening network capacity.
You agree not to use or launch any automated system, including "robots," "spiders," "offline readers," or other similar systems that send more messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser.
You agree not to use the Service to promote or distribute any viruses, trojans, worms, root kits, spyware, or any other harmful software, programs, routines, applications, or technologies, or which may negatively affect the performance of the Service or a computer or introduce significant security risks to the Service or a computer.
You understand that the Service may be transmitted over various networks and changed to conform and adapt to technical requirements.
You agree not to engage in, facilitate, or further any unlawful conduct in connection with your use of the Service.
If you are located in a country embargoed by the U.S. or are on the U.S. Treasury Department's list of Specially Designated Nationals, you may not access or use the Service.
Special Usage Rules for Use of SmartNews Business Tools. Use of the Business Tools (as defined below) made available by SmartNews is additionally conditioned upon your compliance with the following (the Special Usage Rules): The Special Usage Rules and General Usage Rules may be collectively referred to herein as Usage Rules.
a) Usage Rules Applicable to You. If you use any business tool provided by SmartNews, such as API integration tools, where you transmit data containing consumers' Personal Data to SmartNews in connection with advertising, matching, measurement, or analytics (including but not limited to SmartNews Pixel and Conversion API, the Business Tools), you warrant that:
You display a consumer-facing Privacy Policy or similar public statement that includes clear and sufficient notice or any other required language or notification on each webpage providing the following clear explanations or language that is substantively similar to ensure the data sharing is compliant with the Applicable Law:
SmartNews and other third parties that you do business with may collect or receive data from or about the consumers (as defined in the Applicable Law) and may use that data for the purposes provided in the SmartNews Privacy Policy (including providing measurement services, targeting and delivering advertisements) and otherwise consistent with the Applicable Law; and,
How and where consumers can opt out of sharing their information for cross-context behavioral advertising, including without limitation, providing a clear opt out link to either your opt out procedures or SmartNews' opt out procedures (found here: https://www.smartnews-ads.com/en/optout/) in the consumer-facing Privacy Policy or webpage in a manner that consumers can easily opt-out as required by Applicable Law.
You will notify us of such opt out requests from consumers immediately or no later than 24 hours of receipt and specify any additional actions required from us in order to comply with the Applicable Law. Such notification can be provided by any method approved by SmartNews, including without limitation, sending out opt out signals to us or through any other means that enable us to meet the requirements by the Applicable Law, including without limitation cookie ID, external ID, and globally unique ID. You further agree to provide opt out request information by transmitting only hashed data, when practicable, to ensure that no information directly identifying a consumer is shared with us. You understand and agree that it is your sole obligation to ensure that you are using a method approved by SmartNews for notifying us of any opt out requests and related actions required for compliance with the Applicable Law;
In jurisdictions that require informed consent for storing or accessing information such as cookies on consumers' devices, you must obtain all necessary consents from consumers in a verifiable manner before sharing such information with SmartNews and otherwise enabling SmartNews to store or access information such as cookies on consumers' devices through the Business Tools; and
You shall only use, share, or retain consumers' Personal Data for explicitly permitted purposes as provided in any and all applicable terms or agreements, including but not limited to these Terms and the Ads Terms or Service.
Data Processing by Us. In accordance with the Applicable Law, SmartNews shall:
process consumers' Personal Data disclosed by you for the specific and limited business purposes of providing, improving, and developing our services including without limitation ads and article delivery service, improving and developing ads delivery services, its algorithm and any other services, and ensuring security and safety of our services, as applicable, and as further described in our agreements including these Terms and our Ads Data Policy, and Privacy Policy, or as otherwise permitted under the Applicable Law. Advertiser is making the consumers' Personal Data available to SmartNews, and SmartNews shall use the consumers' Personal Data, only for these limited and specified purposes;
comply with the Applicable Law and provide the same level of privacy protection required of Advertiser by the applicable obligations under the Applicable Law for consumers' Personal Data;
notify the Advertiser if it can no longer meet its obligations under the Applicable Law;
implement reasonable security procedures and practices appropriate to the nature of the Personal Data to protect it from unauthorized or illegal access;
grant the Advertiser the right (i) to take reasonable and appropriate steps to ensure that we use the consumer's Personal Data in a manner consistent with the Advertiser's obligations under Applicable Law, and (ii) upon notice to SmartNews to take reasonable and appropriate steps to stop and remediate any unauthorized use of consumer's Personal Data; and
comply with a consumer's request to opt out of the sale or sharing of their Personal Data for cross-context behavior advertising after we receive an appropriate opt out request from you, or from the consumer directly through SmartNews's opt-out link.
We reserve the right to verify your compliance with the Usage Rules through our audits or by requiring certifications that guarantee your compliance. We may in our sole discretion elect to exercise (or not exercise) any of the rights we have under these Terms or under any Applicable Law. Notwithstanding the foregoing, nothing in these Terms shall be construed to absolve you of your obligations under these Terms or otherwise constitute a waiver of our rights hereunder or under Applicable Law.
In our sole discretion, we may suspend or terminate your Account, limit your access to the Service, in whole or in part, or prevent you from registering for the Service in the future, if we believe that you have violated any Usage Rules.
Advertising Data.
We collect, analyze, and audit advertising data and other information relating to the access, provision, use and performance of the Service, including ad placement and associated metadata (collectively, Advertising Data), and we may use Advertising Data and other information to monitor and enforce these Terms and to develop and improve the Service and other offerings, and disclose Advertising Data and other information (other than to you) solely in an aggregated and anonymized format that does not permit identification of Advertiser or any User, apart from disclosures pursuant to legal order or process, investigation, enforcement action, or to the extent the Advertiser has authorized such disclosure.
You may not use any Advertising Data obtained, received, or derived from us or from the Service for any purpose other than required for your use of the Service, unless otherwise agreed in writing with us.
You may not link any Advertising Data to specific User identifiers, device identifiers, browser information, or other identifying information to build User profiles.
Feedback.
You may from time to time provide us with suggestions or comments for enhancements or improvements, new features or functionality, or other feedback with respect to the Service and our platforms (Feedback). We have full discretion to determine whether to proceed with the development of any requested enhancements or suggestions. You hereby grant us a worldwide, perpetual, irrevocable, transferable, sublicensable, and royalty free license to use, modify, duplicate, transfer, incorporate into the Service, and to otherwise realize upon, without the duty to account to you for such use, the Feedback.
Confidentiality
Confidential Information means all data, information, or materials (whether in tangible or intangible form) belonging to the disclosing party or its affiliates (Discloser) and disclosed to the receiving party or its affiliates (Recipient) in connection with use of the Service. Such Confidential Information (i) will be marked in writing as confidential, proprietary, or a similar manner; (ii) will be identified as proprietary or confidential at the time of disclosure if disclosed orally, visually, or by demonstration; or (iii) will be deemed confidential if Recipient knows or reasonably should know that such information is considered confidential, proprietary, or a trade secret of Discloser. Without limiting the foregoing, the following are deemed to be Confidential Information of Discloser: (1) information that Recipient knows or reasonably should know is a trade secret pursuant to Applicable Law; (2) any notes, summaries, memoranda, drawings, manuals, records, excerpts, derivatives, interpretations, and all other documents or materials created by or on behalf of Recipient that contain, describe, or refer to information that is Confidential Information of Discloser; (3) any know-how, idea, invention, process, technique, algorithm, software (whether in source code or object code form), hardware, equipment, sample, material, device, design, schematic, drawing, formula, data, plan, analysis, strategy, and forecast; and (4) technical, engineering, manufacturing, product, marketing, servicing, financial, personnel, and other information and materials.
Protection of Confidential Information. Recipient agrees that it will: (i) in protecting Discloser's Confidential Information, use at least the same degree of care as it uses to protect its own confidential information, but in no event less than reasonable care; (ii) protect the confidentiality and avoid the unauthorized use, disclosure, publication, and dissemination of such Confidential Information; (iii) not disclose such Confidential Information to any third party, other than to its Affiliates having a reasonable need to know such Confidential Information. Recipient may disclose the Confidential Information to its directors, officers, employees, agents, legal counsel, consultants, advisors, accountants, and auditors (Representatives) with a reasonable need to know such Confidential Information. Such Representatives must be bound by a (a) written contract containing terms and conditions that prohibit disclosure to third parties and unauthorized use and are otherwise generally no less restrictive as the terms and conditions of this clause; or (b) fiduciary or professional ethical obligation of confidentiality.
Exceptions. Recipient's obligations above do not apply (or cease to apply) to any Confidential Information that: (i) was in the public domain at the time it was initially disclosed; (ii) was known by Recipient (or its Affiliates) prior to receiving the Confidential Information from Disclosure; (iii) becomes rightfully known to Recipient from a third-party source not known (after reasonable inquiry) by Recipient to be under an obligation to Discloser to maintain confidentiality; (iv) becomes publicly available without breach of this confidentiality obligation, including through a patent disclosure; (v) is independently developed by without access to the Confidential Information; or (vi) is expressly approved for release in writing by Discloser. The obligations of confidentiality and use survive the Term for a period of five (5) years; provided, however, confidentiality obligations applicable to Confidential Information that constitutes trade secrets last for as long as such Confidential Information qualifies as a trade secret under Applicable Law. Each party will be responsible for any breach of this confidentiality obligation by its Affiliates and Representatives.
Notice of Breach. Recipient will notify Discloser in writing promptly upon discovery of any breach of its confidentiality obligations by itself, its Representatives, or its affiliates. Thereafter, Recipient (and as applicable, its affiliates and Representatives) will reasonably assist and cooperate with Discloser to regain possession of Confidential Information and prevent its further unauthorized disclosure and/or use.
Exceptions. It is not a breach of these confidentiality obligations for Recipient to disclose Confidential Information it receives hereunder when, and to the extent that, such disclosure is: (i) required by law; (ii) required pursuant to any governmental, judicial, or administrative order by a body of competent jurisdiction; or (iii) required by securities and exchange rules or regulations; provided, however, that Recipient: (1) to the extent practicable and to the extent allowed by law, gives Discloser prompt prior notice of such requirement so that Discloser may seek such protective orders or other confidentiality protection as Discloser (in Discloser's discretion and at its expense) may elect; and (2) reasonably cooperates with Discloser in protecting the confidential or proprietary nature of such disclosed Confidential Information. Recipient will reasonably cooperate with efforts by the Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. If such disclosure is not enjoined by such a protective order, the Recipient will only disclose that portion of the Confidential Information that it is advised by its legal counsel is necessary to comply with such legal requirement.
Intellectual Property.
Acknowledgement. It is acknowledged and agreed that the Background IP contains proprietary information and material that is owned by us or our licensors and is protected by applicable intellectual property and other laws, including trade secret and copyright, and that you will not use such proprietary information or materials in any way whatsoever except for the use of the Service in compliance with these Terms.
Ownership. The Service, including Background IP and Advertising Data (but excluding Advertiser Content) are solely and exclusively owned by us or our licensors.
Trademarks. "SmartNews" "and associated logos, service marks, graphics, and logos used by us on or in connection with the Service are our trademarks (the SmartNews Marks). Other trademarks, trade names, service marks, and logos, whether or not registered (Marks) are the sole and exclusive property of the respective owning person, who, as between us and them, owns all right, title, and interest therein.
Use of Advertiser Marks. We may use Advertiser's name and/or logo within, as applicable: (i) in our product literature, press release(s), social media, and other marketing materials; (ii) to quote your statements in one or more press releases; and/or (iii) make such other use of Advertiser's Marks as may be agreed. All such use inures solely to Advertiser's benefit. Advertiser can modify any Advertiser Marks at any time, and upon notice of such modifications we will only use the updated Advertiser Marks. We will comply with Advertiser's trademark use guidelines as such are communicated to us by Advertiser. At Advertiser's request, we will take action to cease further use of Advertiser Marks to the extent requested by Advertiser.
Termination.
Termination. We may, at our sole discretion, without notice or liability to you or any third party: (i) terminate any or all Accounts associated with that Advertiser; and/or (ii) preclude or limit your access to the Service or any part thereof if:
You commit a material breach of your obligations under these Terms and fail to remedy the same within ten (10) days of the date of written notice identifying the breach and requesting that it be cured; or
You have failed to make any payment when due, and do not pay within ten (10) days after receiving notice from us requesting that payment be made; or
If you are a User and Advertiser removes you as an authorized User;
If you have not used the Service for three (3) consecutive months or longer, way may contact you, and if within the subsequent month we are unable to confirm your intention to continue use of the Service; or
You, or any of your directors, employees, agents, or contractors, is found guilty of fraud, corruption, or misconduct, is convicted of a criminal offense, or engages in conduct that may, in our reasonable judgment, bring us, the Service, or our platforms into disrepute; or
You become insolvent or there is a material adverse change in your financial condition or ability to operate.
Please note that once an Account has been terminated, it is possible that any data or settings associated with that Account may not be able to be recovered if the Account is later reactivated.
Termination of the Service. We reserve the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice, and we will have no liability to the extent we exercise such rights, other than if we discontinue the Service to refund any prepaid amounts.
Effect of Termination. Upon termination, you continue to owe and remain liable for payment of any and all use of the Service up until the effective date of termination.
Survival. In addition to any clauses that by their terms contemplate survival, this clause, together with the clauses titled "Advertiser Content," "Feedback," "Disclaimers and Acknowledgements," "Confidentiality," "Intellectual Property," "Enforcement," "Disclaimer of Warranties," "Indemnification," "Limitation of Liability," and "General Provisions" will survive any termination or expiration of these Terms, and the clause titled "Advertiser Content" will survive for so long as we retain possession of any Advertiser Content.
Enforcement. We reserve the right to take those steps we believe are reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms, including to our duty to cooperate with any legal process relating to use of the Service, and/or a third-party claim that your use of the Service is unlawful and/or infringes such third party's rights. You agree that we have the right, without liability to you, to disclose any Registration Information, Service usage records, or other information collected by the Service to law enforcement authorities, government officials, and/or a third party, as we believe we are required to do or is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms.
GENERAL DISCLAIMERS AND ACKNOWLEDGEMENTS. YOU ACKNOWLEDGE THAT THE SERVICE IS SUBJECT TO LIMITATIONS, INCLUDING THE FOLLOWING:
THE SERVICE IS NOT TO BE USED FOR ANY MEDICAL, SAFETY, EMERGENCY, OR ANY OTHER USES WHERE RELIABILITY AND ACCURACY ARE CRITICAL, NOR IS THE SERVICE TO BE USED FOR ANY USE NOT INTENDED BY US.
WE MAY OFFER PROGRAMS UNDER WHICH YOU MAY USE "BETA" SERVICES, FEATURES, OR DOCUMENTATION (collectively, BETA SERVICES) FOR TESTING AND/OR EVALUATION PURPOSES. ANY USE OF THE BETA SERVICES IN CONJUNCTION WITH ACTUAL DATA AND/OR IN A PRODUCTIVE SETTING IS AT YOUR SOLE RISK. BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS, OR HARMFUL COMPONENTS (although we do use reasonable efforts to prevent harmful components). BOTH WE AND YOU MAY TERMINATE YOUR ACCESS TO BETA SERVICES AT ANY TIME.
DISCLAIMER OF WARRANTIES.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE AND OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES, RESELLERS, CHANNEL PARTNERS, LICENSORS, DATA PROCESSORS/SERVICE PROVIDERS, AND SUPPLIERS (COLLECTIVELY, AND TOGETHER WITH THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS, THE SMARTNEWS PARTIES) DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, AND YOU ACKNOWLEDGE THAT FROM TIME TO TIME WE MAY REMOVE OR LIMIT THE SERVICE (OR PORTIONS THEREOF) FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE (OR PORTIONS THEREOF), AT ANY TIME.
WE DO NOT GUARANTEE OR WARRANTY THAT THE SERVICE WILL DELIVER ANY INTENDED BENEFITS OR GENERATE ANY ANTICIPATED RESULTS OR THAT THE USE OF THE SERVICE IS LEGAL, APPROPRIATE, OR AVAILABLE FOR USE IN ALL LOCATIONS OR IN ALL CIRCUMSTANCES. ALTHOUGH THE ADVERTISING SLOTS ARE FOR THE U.S., IT IS POSSIBLE THAT VIEWERS LOCATED OUTSIDE OF THE U.S. WILL BE ABLE TO VIEW ADVERTISEMENTS. WE DO NOT GUARANTEE OR WARRANT THAT ADVERTISEMENTS WILL ONLY BE SEEN BY VIEWERS LOCATED WITHIN THE U.S.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SMARTNEWS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND THE OUTPUT, AND YOUR USE THEREOF, INCLUDING ANY IMPLIED WARRANTIES OF CONTENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS, NON-INFRINGEMENT, RELIABILITY, AVAILABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
ALTHOUGH WE TAKE REASONABLE EFFORTS TO PROVIDE A SECURE SERVICE, THE SMARTNEWS PARTIES DO NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM BUGS, DEFECTS, ERRORS OR OMISSIONS, LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION OR THAT ANY SUBSCRIBER CONTENT PROVIDED TO US OR INPUT INTO THE SERVICE WILL NOT BE LOST OR CORRUPTED.
NO PERSONNEL OR REPRESENTATIVES OF OURS ARE AUTHORIZED TO MAKE ANY WARRANTY ABOUT THE SERVICE, ORAL OR WRITTEN STATEMENTS BY ANY OF OUR PERSONNEL OR REPRESENTATIVES, INCLUDING VIA EMAIL, DO NOT CONSTITUTE A WARRANTY, DO NOT BIND OR OBLIGATE US, SHALL NOT BE RELIED ON BY YOU, AND ARE NOT PART OF THESE SAAS TERMS. THE ENTIRE AGREEMENT BETWEEN YOU AND US WITH RESPECT TO WARRANTY IS EMBODIED IN THIS WRITING. YOU ACKNOWLEDGE YOU HAVE NOT RELIED ON ANY WARRANTY OR REPRESENTATION BY ANY PERSON OR ENTITY EXCEPT FOR THE WARRANTIES OR REPRESENTATIONS SPECIFICALLY STATED HEREIN.
NOTE: SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY. UNLESS PROHIBITED BY LAW IN A PARTICULAR INSTANCE, YOU AGREE THAT:
THE SMARTNEWS PARTIES DISCLAIM ANY LIABILITY FOR, AND YOU AGREE TO RELEASE THE SMARTNEWS PARTIES FROM ANY CLAIMS OR DAMAGE ARISING FROM: (i) ANY VIOLATION OF APPLICABLE LAW BY YOU BY VIRTUE OF YOUR USE OR MISUSE OF THE SERVICE; (ii) ANY ERRORS, OMISSIONS, MISTAKES, OR INACCURACIES IN THE SERVICE; (iii) ANY FAILURE TO RUN, DISPLAY, OR RETAIN ANY ADVERTISER CONTENT; (iv) THE TIMELINESS, MIS-DELIVERY, OR NON-DELIVERY OF ANY ADVERTISER CONTENT; (v) ANY PRIVACY CLAIMS OR OTHER FORMS OF CIVIL LIABILITY ARISING OUT OF OR IN ANY WAY RELATING TO USE OF THE SERVICE OR ANY ADVERTISER CONTENT; (vi) ANY BUDS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; AND/OR (vii) ANY LOSS, INJURY, OR DAMAGE OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATING TO ANY ADVERTISER CONTENT, OR ANY OPERATION, NONOPERATION, OR FAILURE OF THE SERVICE.
THE SMARTNEWS PARTIES ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING ATTORNEYS' FEES AND EXPENSES, AND DAMAGES FOR LOSS OF PROFITS, GOODWILL, INCOME, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ANY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). YOU AGREE NOT TO MAKE, AND YOU HEREBY WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES AGAINST US EXCEPT FOR DIRECT, COMPENSATORY DAMAGES AS LIMITED BY THESE TERMS. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF A THIRD-PARTY CLAIM AGAINST YOU. DIRECT, COMPENSATORY DAMAGES SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY ADVERTISER DURING THE 12 MONTH PERIOD PRECEDING THE CLAIM ARISING.
THE ESSENTIAL PURPOSE OF THESE TERMS IS TO LIMIT OUR POTENTIAL LIABILITY. THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF RECEIVED VALUABLE CONSIDERATION FOR THESE IN THE FORM OF OUR ABILITY TO OPERATE AT LOWER COST, OFFER LOWER PRICING, AND/OR WILLINGNESS TO CONTRACT, WHETHER GENERALLY OR SPECIFICALLY.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THESE TERMS WILL (i) LIMIT OR EXCLUDE THE LIABILITY OF A PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE; (ii) LIMIT OR EXCLUDE THE LIABILITY OF A PARTY FOR FRAUD OR FRAUDULENT MISREPRESENTATION BY THAT PARTY; (iii) LIMIT ANY LIABILITY OF A PARTY IN ANY WAY THAT IS NOT PERMITTED UNDER APPLICABLE LAW; OR (iv) EXCLUDE ANY LIABILITY OF A PARTY THAT MAY NOT BE EXCLUDED UNDER APPLICABLE LAW.
IF YOU ARE IN CALIFORNIA, YOU HEREBY WAIVE THE APPLICATION OF CALIFORNIA CIVIL CODE 1542, WHICH PROVIDES: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
Indemnity.
Indemnification by SmartNews. We will, at our sole expense, indemnify, defend, and hold harmless Advertiser from and against any and all third-party claims, suits, actions, or proceedings (each, a Claim), including any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys' fees, costs, penalties, interest, and disbursements) (Losses), resulting from, arising in connection with, or relating to an allegation that the Service infringes any intellectual property rights of any third party. Our defense obligations do not extend to Claims, nor do our indemnification obligations extend to Losses, to the extent resulting from, arising in connection with, or relating to: (1) any negligent or willful misconduct by you; (ii) any combination of the Service (or any portion thereof) in combination with any equipment, software, data, or any other materials not provided by us; (iii) any modification to the Service by you or any third party; (iv) the use of the Service by any you or any third party in a manner contrary to these Terms where the infringement would not have occurred but for such use; (v) the continued use of the Services after we have provided you with substantially equivalent non-infringing software or services; or (vi) any Advertiser Content.
Indemnification by Advertiser. Advertiser will, at its sole expense, indemnify, defend, and hold harmless the SmartNews Parties, from any and all Claims, including any related Losses, resulting from, arising in connection with, or relating to (i) any breach of your warranties or obligations set forth in these Terms, including without limitation those set forth in Sections 10 and 11; (ii) any misuse or unauthorized use of Advertising Data; or (iii) any use of the Service in violation of these Terms or Applicable Law.
Cross Indemnification. Each party will, at its sole expense, indemnify, defend, and hold harmless the other party, and its directors, officers, employees, and agents, from and against any and all Claims, including any related Losses, resulting from, arising in connection with, or relating to the indemnifying party's: (i) grossly negligent or willful misconduct; (ii) violation of applicable Law; or (iii) breach of confidentiality obligations.
Infringement Claims. Should the Service become, or in our opinion are likely to become, the subject of a claim of infringement, we may, at our option, (i) obtain the right for Advertiser to continue using the Service, (ii) replace or modify the Service so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (ii) if neither of the foregoing options is commercially reasonable, terminate the access and use of the relevant portions of the Service. Upon such termination, you will cease accessing the Service, or portions thereof as applicable. SECTIONS 21(a) AND 22(d) STATE OUR ENTIRE LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SERVICE.
Procedure. The indemnifying party's indemnification obligations under this Section 21 are condition upon the indemnified party giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim; provided, however, that the failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party's obligations under this Section 21 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims or increase the Losses. The indemnifying party will have the sole right to defend such Claim at its expense (including granting the indemnifying party the right to select and use counsel of its own choosing) and to control the defense and settlement thereof for so long as the indemnifying party is conducting such defense with reasonable diligence. The indemnified party agrees to reasonably cooperate with the indemnifying party, and at the indemnified party's request and expense, assist in the defense or settlement of the Claim. The indemnifying party will not, without the indemnified party's prior written consent (which consent will not be unreasonably withheld, conditioned, or delayed), pay, settle, or compromise a Claim unless it: (i) includes an unconditional written release of the indemnified party from all liability in respect of such Claim; (ii) does not subject the indemnified party to any equitable remedy or to any monetary liability in respect of such Claim; (ii) does not subject the indemnified party to any equitable remedy or to any monetary liability that will not be promptly paid by the indemnifying party or any consent order, decree, or injunctive relief or other equitable remedy, and (iii) does not include a finding, statement, or admission of fault, culpability, or failure to act by the indemnified party.
NOTICE OF INFRINGEMENT. We respect intellectual property rights. If you believe in good faith that your work has been reproduced or is accessible on the services in a way that constitutes copyright infringement, please provide our designated agent with the following information in writing to our copyright agent under the Digital Millennium Copyright Act (the DMCA):
An electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
Identification of the copyrighted work or a representative list of the works claimed to have been infringed;
Identification of the allegedly infringing material and information reasonably sufficient to permit us to locate the material;
Your name, address, telephone number, and email address, so that we may contact you if necessary;
A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
You may notify our designated copyright agent either by mail and/or email in accordance with our Copyright Policy. Only copyright complaints should be sent to the copyright agent. All other feedback or comments should be addressed to info@smartnews.com. You acknowledge that if you fail to comply with all the requirements of this section, your DMCA notice may not be valid and we may not take action on it as a result.
General Provisions.
Changes. We reserve the right, at any time and from time to time, to update, revise, supplement, and otherwise modify these Terms and to impose new or additional rules, policies, terms, or conditions on the use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively, Additional Terms) will be effective immediately when posted on the Service. Continued use of the Service by Users following such time will be deemed to constitute acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into and made a part of these Terms by this reference. If you do not agree to these Terms, including the Additional Terms, stop all access to and use of the Service.
Inappropriate Conduct. We are committed to a culture of respectful communication, diversity, and inclusion. In communicating with us or our service providers, and otherwise in using the Service, you agree not to engage in any of the following conduct; directly or through a third party: (i) engaging in threatening behavior or threatening or using violence; (ii) unreasonable demands exceeding legal accountability; (iii) spreading rumors, or using fraud or force to damage our or another person's reputation or obstruct or interfere with our or their business; or (iv) other conduct comparable to the foregoing. Without limiting the foregoing, any harassment or discrimination based on a person's race, religious creed (or lack thereof), color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military or veteran status, or any category protected by applicable law, will not be tolerated and is a basis for immediate termination of your Account. Any such termination does not preclude us from seeking compensation for damages caused. Any instances of inappropriate conduct, harassment, or discrimination on or in connection with the use of the Service should be reported to us.
Compliance with Law. In connection with the operation and use of the Service, the parties will comply with Applicable Laws, including those relating to privacy, data protection, anti-corruption and anti-bribery (including the US Foreign Corrupt Practices Act), and export control. Advertiser will not permit any user to access or use the Service in a country or region that is sanctioned or embargoed by the U.S. or otherwise in violation of Applicable law.
Entire Agreement. These Terms constitute the sole and entire agreement between you and us relating to the Service and supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent any term or condition in any other document, including any RFP, RFQ, or purchase order, is inconsistent with or in addition to these Terms, such terms or conditions are expressly rejected and our acceptance is expressly made in reliance on assent to these Terms. You may assent by written acknowledgement, performance (full or partial), or by payment, any of which will conclusively be deemed to constitute assent. If you object to these Terms, such objection must be made in writing and received by us before using the Service. Failure to so object will be conclusively deemed to be acceptance of these Terms. Our failure to object to any term or condition in any oral or written communication from you will not constitute an acceptance thereof or a waiver of any term or condition hereof; rather, our failure to so object will be deemed a rejection of your objection, and for such an objection to be accepted by us and change these Terms, we must agree in writing to your specific objection.
Notices. Any notice or other communication required or permitted under these Terms and intended to have legal effect must be given in writing at the addresses below:
If to Advertiser, to: the email address listed in its Registration Information
If to User, to: the email address listed in your Registration Information or by a posting on the Service
If to us, to: SmartNews International, Inc., Attn: U.S. General Counsel, 291 Alma Street, Palo Alto, CA 94301 and also sent by email to: legal@SmartNews.com
A notice will be deemed to have been received at the relevant time set out below (or where such time is not within the recipient's business hours next begin after the relevant time set out below): (i) where the notice is delivered personally, at the time of delivery: (ii) where the notice is sent by recorded signed-for-post, 48 hours after posting; (iii) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission); and (iv) when posted on the Service, at such time as you next access the Service.
U.S. GOVERNMENT RESTRICTED AND LIMITED RIGHTS. The Service is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. All data is provided with LIMITED RIGHTS and such data may be reproduced and used by the U.S. Government with the express limitation that they will not, without written permission, be used for purposes of manufacture nor disclosed outside the U.S. Government. Manufacturer is SmartNews International, Inc.
Governing Law; Venue. You agree that for purposes of these Terms we are solely based in California USA and any operations elsewhere do not give rise to personal jurisdiction over us, either specific or general, in any other jurisdictions. To the fullest extent permitted by law, these Terms and any Disputes arising out of or relating to them, and the Service, and, to the extent permitted by law, all related matters including non-contractual matters, and the enforcement thereof, will be governed by the laws of the State of California, without regard to its conflict of law principles. In relation to such matters, each party irrevocably accepts the non-exclusive jurisdiction of state or federal courts of competent jurisdiction located in San Francisco, California and waives any right to object to the venue on any ground. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these Terms.
Dispute Resolution; BINDING ARBITRATION; CLASS ACTION WAIVER.
Dispute means any dispute, claim, cause of action, or controversy of whatever nature between the parties arising from or relating to these Terms or the Service, including any action or claim based on contract, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or statute, or concerning the scope, interpretation, effect, termination, validity, enforceability, performance, and/or breach of these Terms, and includes the validity, enforceability, or scope of this clause (with the exception of the enforceability of the Class Action Waiver clause below). This term is to be given the broadest possible meaning that will be enforced.
It is agreed that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of this Section 23(h), which is intended to be interpreted broadly and governs any and all Disputes between you and us, including any that arise after termination.
If a Dispute arises, either you or we will notify the other in writing with a brief, written description of the Dispute and contact information. Except for intellectual property claims, the parties agree to use their best efforts to settle such Dispute directly through consultation and such good faith negotiations are a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees in arbitration.
If the parties are unable to resolve the Dispute within thirty (30) days of the written notification referred to above, then the Dispute (except as provided in subsection (vii) below) will be resolved by final and binding arbitration. American Arbitration Association rules will apply. The parties will seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there will be three arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in San Francisco unless all three arbitrators mutually agree on an alternative city. The language to be used in the arbitration will be English.
The arbitrator(s) will, within fifteen (15) calendar days after the conclusion of the arbitration hearing, issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator(s) will be authorized to award compensatory damages, but will not be authorized (1) to award non-economic damages, such as for emotional distress, pain and suffering, or loss of consortium, (2) to award punitive damages, or (3) to reform, modify, or materially change these Terms or any other agreements contemplated hereunder; provided however, that the damage limitations described in subsections (1) and (3) of this provision will not apply if such damages are statutorily imposed. The arbitrator(s) also will be authorized to grant any temporary, preliminary, or permanent equitable remedy or relief they deem just and equitable and within the scope of these Terms, including an injunction or order for specific performance.
The parties agree that the arbitration, including the evidence, the argument and the outcome, is confidential between the parties. The parties can inform legal counsel and, if necessary, financial advisors and insurers, about the arbitration if they are advised of the confidentiality obligations. The parties can tell others only as required by law (including any applicable stock exchange or similar securities disclosure rules). The arbitrator(s) must also agree to this confidentiality protection. Nothing in these Terms prevents either party from filing the arbitration award with a court to enforce or appeal such award (but only if the arbitration award is not paid within 90 days of its issuance), though both parties agree that the evidence, arguments of the parties, and the arbitrator's findings related to such award will be treated as confidential information subject to a court-approved protective order.
IF FOR ANY REASON THESE ARBITRATION REQUIREMENTS DO NOT APPLY, YOU AND WE EACH HEREBY WAIVE ANY TRIAL BY JURY AND AGREE THAT THE CLAIM SHALL BE DECIDED EXCLUSIVELY BY A COURT OF COMPETENT JURISDICTION LOCATED IN SAN FRANCISCO, CALIFORNIA.
NOTHING HEREIN SHALL PRECLUDE EITHER PARTY FROM SEEKING IMMEDIATE INJUNCTIVE RELIEF BEFORE AN APPROPRIATE COURT WITH RESPECT TO A VIOLATION OF INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS, AN ONGOING OR RECURRING BREACH OF THE TERMS, OR ENFORCEMENT OR RECOGNITION OF ANY AWARD OR ORDER IN ANY APPROPRIATE JURISDICTION.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND WE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
YOU AND WE AGREE THAT ACTION RELATED TO A DISPUTE MUST COMMENCE WITHIN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO THE DISPUTE OCCURS, OTHERWISE SUCH ACTION IS PERMANENTLY BARRED.
No Third-Party Beneficiaries. These Terms do not create a contractual relationship between you and any third party, including any of the SmartNews Parties other than us, and you are not a third-party beneficiary of any agreement between us and any third party.
Assignment. We and you agree that our rights and obligations under these Terms may not be assigned, delegated, or otherwise transferred to a third party. Notwithstanding the foregoing, either us or Advertiser may transfer or assign its respective rights and delegate its respective obligations under these Terms to (i) an affiliate, subject to prior notice to the other party and provided that such affiliate has agreed to be bound by the terms and conditions of these Terms, or (ii) a successor to all or substantially all of its business or assets relating to these Terms whether by sale, merger operation of law, or otherwise, without the prior written consent of the other party but with prior notice, provided that such assignee or transferee has agreed to be bound by the terms and conditions of these Terms. Notwithstanding the foregoing, if the successor (or an affiliate of such successor) is a direct competitor of the other party, then the other party may terminate these Terms within 30 days of receipt of such notice.
Miscellaneous. The rights, powers and remedies provided to a party in these Terms are in addition to, and do not exclude or limit, any right, power, or remedy provided by law or equity or any agreement. If any part of these Terms is held invalid or unenforceable by a court of competent jurisdiction, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. Any provision of these Terms that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction only to the extent of the prohibition or unenforceability and does not invalidate the remaining provisions of these Terms nor does it affect the validity or enforceability of that provision in any other jurisdiction. No failure to exercise or delay in exercising any right, power, or remedy under these Terms operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power, or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing. A party will not be responsible for failures to fulfill any obligations due to causes beyond its reasonable control, including due to fire, lightning strike, flood, earthquake, or other natural disaster, sabotage, nuclear contamination, terrorism, pandemic, war, insurrection, zombie apocalypse, utility failure, telecommunications, failure, service provider failure, third party strike or work stoppage, civil riot, or extraterrestrial invasion (Force Majeure Events). The parties are independent contractors and nothing in these Terms creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship.
Rules of Interpretation. For purposes of these Terms: (i) references to a "party" or "parties" means, respectively, a party to, or the parties to, these Terms as the context dictates; (ii) these Terms will be fairly interpreted in accordance with its terms without any strict construction in favor of or against any party, and ambiguities will not be interpreted against the party that drafted the relevant language; (iii) the words "including," "for example," "e.g.," and variations thereof, will be read and understood to be exemplary and non-exhaustive, and followed by the words "without limitation"; (iv) section or other headings in these Terms are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation these Terms; (v) any documents attached hereto or linked herein are hereby incorporated in these Terms, as the same are amended, supplemented, and modified from time-to-time; (vi) any reference herein to "laws" includes, unless a contrary intention is expressed, all national, federal, provincial, state, and local statutes, laws, ordinances, rules, orders, decrees, codes, and regulations, regulatory guidelines, and judicial or administrative holdings or binding interpretations as in effect from time-to-time; (vii) unless otherwise stated, references to sections or subsections are references to sections or subsections of these Terms; (viii) all currency amounts are in U.S. dollars unless otherwise indicated; (ix) grammatical changes will be made to words where the context requires or permits, including changes from plural to the singular and vice-versa and any reference to one gender also includes other genders, and, where applicable, a legal entity; (x) references to a "person" or "entity" includes an individual, body corporate (in whatever form wherever incorporated), unincorporated association, trust, or partnership (whether or not having separate legal personality), government, state, territory, or province, or agency of a state, territory, or province, or two or more of the foregoing and the term "it" may refer to a person or an entity as the context dictates; (xi) references to a writing will be deemed to include any modes of reproducing words in a legible and non-transitory form, including electronic form; (xii) references to "business day" will be construed as a reference to any day except Saturday and Sunday, local, federal, provincial, state, or national statutory holidays recognized in San Francisco, California, and any other days on which a party closes its business for all or substantially all of its staff in recognition of holidays and "business hours" means a party's established hours of operations on a business day (if it has no established hours, its business hours will be deemed to be 9 am to 5 pm local time); (xiii) any translation of these Terms into another language is done for local requirements only and this English language version will govern in all cases; (xiv) all other documents provided under or in connection with these Terms will be in English, or accompanied by a certified English translation and, in such cases the English translation will prevail unless the document is a constitutional, statutory, or other official document; (xv) references to "intellectual property rights" is to be construed in the broadest manner possible and includes all intellectual property rights of any nature in any relevant jurisdiction; and (xvi) references to the "United States" or the "U.S." mean, unless otherwise set forth in the Service, the United States of America, including its territories and possessions.
Third-Party Software or Content. The Service may contain or utilize third party software or content that requires notices and/or additional terms and conditions. Such third-party software or content notices and/or additional terms and conditions may be requested from us and are made a part of and incorporated by reference into these Terms. By accepting these Terms, you are also accepting the additional terms and conditions, if any, set forth therein.
Last updated: July 11, 2025 (c) 2025 SmartNews International, Inc. All rights reserved.
