LAST UPDATED: 2013/10/17
These Terms of Service ("Terms of Service") govern the use of the services (collectively "Services" and each one individually, a "Service") offered or made available to internet Users by SMOWTION CO., CORP. or any of its affiliates or controlled companies (collectively "Smowtion").
Smowtion may modify the Terms of Service from time to time. Revisions to the Terms of Service shall be notified by at http://www.smowtion.com/users/terms.
The Publisher Client accepts that it will be considered to have been given notice of any modifications to the Terms of Service once Smowtion have posted them at http://www.smowtion.com/users/terms periodically. Smowtion, at its sole discretion, may also send emails informing the revisions or modifications of the Terms of Service.
Smowtion is an advertising network which has the objective of relating with "advertisers", which are the national or foreign companies interested in advertising their products or services through internet (the "Advertisers"), by themselves or through another advertising network, and with the "publishers", which are the owners of web sites interested in issuing or publishing the advertisement of the Advertisers (the "Publishers"), rendering Smowtion a service of intermediation between Advertisers and Publishers. For the purposes of this Terms of Service, those Advertisers which use the Services shall be considered as "Advertiser Clients", and together with the "Publisher Clients" as "Clients".
As a consequence, through the Services, the Advertiser Clients, by themselves or by another advertising network, could request to advertise their products or services in web sites from the Publisher Clients, making an offer for such advertising. Once made the offer by the Advertiser Client, the one with the best offer shall have the possibility to publish its advertisements by the Publisher Clients who have chosen them.
For the purposes of this Terms of Service, the advertisements published by the Advertiser Clients in the web sites from the Publisher Clients, shall be designated as "Advertisements".
Smowtion also provides data analysis and audience segmentation services based on information provided by the Publishers and Advertisers regarding the interactions from their users, including those on their web site or online advertisements. For that purpose, Smowtion creates usage/behavior/interest-based categories called "segments". These segments are unique groups of users that are created using "Client Side" technology that enables the Advertiser Clients to selectively serve targeted advertisements based on these segments. Smowtion also provides targeting advertising services using non- personal information that is gathered across multiple, unaffiliated web sites, over which Smowtion creates segments that are used to then serve targeted advertisements in Smowtion's network and other networks.
The Services offered by Smowtion through its web site are of restricted access, and so only those authorized and registered Publishers as Publisher Clients at https://passport.smowtion.com/users/signup shall access to the Services.
Requisites: The Publisher Client shall be 18 (eighteen) years old or older if it is an individual and not be under any legal or factual impediment to hire, since the use of the Services shall be only available for persons with legal capacity to hire. The breach of this Section shall turn null and void any act performed by the Publisher Client with no right to any claim, and shall empower Smowtion to initiate the corresponding legal actions against him or against who results responsible (fathers, tutors, person in charge, guardian).
Account Activation: In order to obtain the authorization and registration as Publisher Client, the Publisher shall provide a valid email address for the application process, requesting the authorization and registration of the Services (the "Registration Request"), and providing the following information: Email Address; Password; Complete Name (if the Publisher Client is and individual); Registered Name (in case the Publisher Client is a company) and Complete Name of the Responsible in charge of the Publisher Client Web Site; Telephone; Address; Zip Code; City; Region; Country; Payment Method; Valid Tax ID Number corresponding for the country of the Publisher Client and Billing Address (if appropriate). Smowtion reserves the right to request the proper documentation that proves the information provided at the Registration Request.
By making the Registration Request, the Publisher Client agrees to:
In case the Publisher Client provides any information that is untrue, inaccurate, not current or incomplete, or Smowtion has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Smowtion shall have the right to suspend or terminate Publisher Client's ability to use the Services and refuse any and all current or future use of the Services by such Publisher Client (or any portion thereof).
In case the Registration Request is accepted by Smowtion, in its sole discretion, such acceptance and the registration of its account (the "Account)" shall be informed to the Publisher Client, by email, to the same address from where the Registration Request was sent. Also, by the same way, and in the term of 5 (five) working days from the acceptance of the Registration Request, the Publisher Client shall be informed of the code by means of which Publisher Client shall issue the Advertisements in its web site/s.
Liability: The Publisher Client, once registered as Publisher Client, is entirely responsible for maintaining the confidentiality of the password of its Account. Consequently, the Publisher Client shall be responsible for the access to the Services and the operations made under its User Name and Password, and shall be obliged to compensate and indemnify Smowtion and/or the other Clients or third parties, for any costs, expense, damages or (including attorney's fees) that Smowtion and/or the other Clients or third parties might have to pay or suffer as a consequence, direct or indirect, of any access to the Services and/or operations performed under the User Name and Password from Publisher Client.
The Publisher Client agrees to notify Smowtion immediately of any unauthorized use or theft of its Account or any other breach of security, and to provide properly documented evidence as reasonably requested by Smowtion. Also, Smowtion will not be liable for any loss that the Publisher Client may incur as a result of a third party using the Account, either with or without the Publisher Client's knowledge. However, the Publisher Client will be liable for any losses incurred by Smowtion or third party, due to the use of Account by a third party.
Account: Once registered and logged in its Account, the Publisher Client shall be entitled to publish the Advertisements offered by the Advertiser Clients through Smowtion, provided, however, the fulfillment of what's established below:
Smowtion reserves the right to modify the presentation or configuration of the Services at any time and without previous notice, as well as the required conditions to use the Services.
Especially, the Publisher Client agrees to avoid performing any of the following actions:
It is forbidden: To use the Services, directly or indirectly, to violate any applicable law, whatever its nature, either provincial, state, national or international; send or transmit sexual or obscene material; use the Services to publish Advertisements from the Advertiser Clients in web pages with sexual, obscene, or pornographic material, or in violation of any applicable law, national or international, the moral, good customs or public order; transmit, distribute, or store any type of information, data, or materials, which violates the provincial, state, national or international, laws or regulations; send or transmit information which content is, direct or indirectly, and without the following being considered a limitation, transgressor, profane, abusive, defamatory and/or fraudulent, or which revels private or personal affairs which affects any person, or which violates the rights of somebody else; access the Services using a false, wrong or inexistent name, either as an individual or a company; send or transmit any material which the Publisher Client has no right to transmit according to the laws (either Copyright, register trademark, commercial secret, patents, or other property rights of third parties but not only limited to that) or according to contractual or fiduciary relations (such as non disclosure agreements); modify, eliminate, transform, damage or alter in any way the published Advertisements or which it's bound to publish in its web sites as a consequence of the use of the Services.
It is forbidden: To try to violate the systems of authentication, identity verification and security of the Services, networks or accounts from the Publisher Clients, Advertisement Clients and/or administrators or responsible of the Services; that includes, but not limited to, to try to access data no destined to the Publisher Client, attempt to access to the Services or account without the express authorization to do it, o attempt to test the security of the networks from Smowtion, using any kind of tool such as SATAN, DoS or other similar or which are used for the same or similar purposes; attempt interruptions in the internet communications, such as altering the routing information, deliberately overcharge one or more Services, perform cyber attacks to other computers over the internet or other type or informatics communication network, among others; modify the code provided by Smowtion, by means of which it would issue the required Advertisements in its web site, in other web site or in a different context from the one which originated the delivery of it in order to violate the Terms of Service.
It is forbidden: To use any program, command or group of commands, or send messages of any type, destined to interfere with the session established by a Client or its authorized users at any internet point; perform any type of monitoring which implies the interception of information not destined to the Publisher Client; send or transmit files with virus or other destroying characteristics which could adversely affect the functioning of someone else's computer and/or could affect the correct functioning of the same and/or the Services; use any computer program ( software), scripts, or other mean, which fakes, artificially or not, the interaction of other Publisher Clients and/or the general public in web sites and/or led them to deceit, either raising the number (quantity) of impression and/or clicks over the Advertisements (for example, Click Fraud) and/or any other fraudulent result, and with the purpose to raise or secure patrimonial or commercial advantages in favor of the Publisher Clients or third parties not authorized by Smowtion, or foreseen in this Terms of Service. To that end, Smowtion may use different services, either owned by Smowtion or provided by third parties (for example, but not limited to, rightmedia.com), which may allow to analyze or evaluate the traffic and behavior of the web sites belonging, or in any way related, to the Publisher Clients and used by it to publish the Advertisements. In case Smowtion realizes the Publisher Client has incurred in any of the practices detailed in this Section, Smowtion shall apply with any summon what's established in Sections 3.1.3 and 5.6 reserving the right to initiate the corresponding legal actions.
It is forbidden: To perform actions which limit, deny or prevent any individual, group, entity or organization the use of the Services, and of internet, in general; the use of any method or system, computer or not, by the Publisher Client and/or its authorized users (if applicable) and/or third parties in favor of Publisher Client it for the purpose of using the Services, which are not expressly authorized by Smowtion in this Terms of Service and/or by other express mean; the performing of such actions shall cause the sanctions and/or proceeding established in the Terms of Service, despite the legal actions which Smowtion and/or its representatives and assignees may bring to that effect.
The Publisher Client, without express authorization from Smowtion, shall avoid modifying, transforming, adapting, touching up, damaging, eliminating and/or in any way altering the Advertisements from the Advertiser Clients, that Publisher Client has accepted to publish in its web site/s. Also, the Publisher Client shall avoid to disclosure, reproduce, share, modify, transform, adapt, touch up, damage, eliminate and/or in any way alter the code with Smowtion provides the Publisher Client to the end of performing the publishing of the Advertisements in its web site/s.
No Publisher Client and/or its authorized user shall act at the same time as Advertiser Clients in its own web sites, or closely related sites, through the Services. Such behavior, or other behavior with similar results, shall grant Smowtion the right to the sanctions and measures established in the Terms of Service, with no need to any type of notice or summon to the Publisher Client and/or its authorized users.
Assignment of the Advertisements: During the term established by Smowtion, the interested Advertiser Clients shall make offers, by themselves or through the other advertisement networks, for each advertising space offered by the Publisher Clients. The offer shall be closed once the term is finished, being assigned the advertising space to the highest bidder. The offers shall only be considered as valid, once being processed by the computer system from Smowtion. Once assigned the advertising space to the Publisher Client, Smowtion shall send an email to the Publisher Client informing such event and attaching the corresponding code by means of which it shall issue the Advertisement required by the Advertiser Client, in the web site from such Publisher Client. Once the Publisher Client inserts the code in its web site, and finished the term determined by Smowtion for the Advertisement/s to be visible in the web site from the Publisher Client, revenues would be generated to it depending on the level of interaction which exists with the real users or visitors of the web site from the Publisher Client. The generation of revenues would depend on the amount of impressions (that is, the amount of persons which visualize the Advertisement), clicks, geographic location of the visitors, sizes and formats of the advertisements spaces, and commercial action obtained in the web site from the Publisher Client over the inserted code.
Control and Responsibility over the Advertisements: Smowtion has no direct control over the Advertisements required by the Advertiser Clients, not over its content, which could be rejected by Smowtion or by express request from the Publisher Client, in case it violates the Terms of Service. Smowtion is waived from any liability derived from the trouble, damages or inconveniences which may generate in third parties, or in the Publisher Client, the Advertisements offered by the Advertiser Client and chosen by the Publisher Client for its publishing in its own web site.
Revenues: Once a month Smowtion shall verify the particular accounts from the Publisher Clients, and in the event that the cumulated revenues in its account is higher to the amount of U$S 100 (the "Minimum Amount"), Smowtion shall make a transfer of such cumulated revenues to the Publisher Client, in the way indicated by it in its Registration Request. In case the cumulated revenues don't reach the Minimum Amount, or in the event that the Publisher Client hasn't completed the necessary Registration Data for that purpose, such revenues shall cumulate to the revenues generated after, until the Registration Data are completed with the necessary information and the revenues has reached the Minimum Amount. The minor amounts to the Minimum Amount shall not be reimbursed until the same are higher than the Minimum Amount in later monthly periods. The Publisher Client is responsible of maintaining updated the contact information, tax information, and any other information necessary to transform revenues into payments.
Estimated revenues and other commercial information:All the information published in the web site from Smowtion referred to the estimated revenues that the Publisher Clients may or might obtain through the Services, such as but not limited to, eCPM (effective Cost Per Milles), CPC (Cost Per Clicks) and/or CPA (Cost Per Action), is just for information and in no way represents a promise of income or obligation assumed or to be assumed by Smowtion, or its representatives, or its affiliated, controlled, controlling, or subsidiary, companies. The Publisher Client and/or its authorized users relinquish any legal action against Smowtion, its representatives, or its affiliated, controlled, controlling, or subsidiary, companies, for any loss of expectation, lack of income or collection that the use of the Service may cause.
Dashboard and Reports: Smowtion shall publish in the DASHBOARD Section of the Account of each Publisher Client, simple and advanced reports and other details of the operations performed and the activities that the users and visitors of the web sites from the Publisher Clients develop in relation with the published Advertisements, and of the revenues that the same has generated. The publishing of the data in the sections DASHBOARD is just for information, and doesn't bound Smowtion in any way and could be subject to revision, modification and/or temporary or permanent cancellation at any moment by Smowtion, without being generated by such event any right for and administrative or legal claim from a Publisher Client or its authorized users.
Payment Ways and Methods (Prepaid Card Smowtion MasterCard Â®Payoneer, PayPal, Payoneer Global Bank Transfer Service and/or Check): Smowtion shall make the payments to the Publisher Clients according to the Terms of Service and the result of the activities derived from the Services. The ways and methods for payments to Publisher Clients shall be the ones established by Smowtion in its sole discretion, which could be modified, eliminated or combined by Smowtion without previous notice or summon to Publisher Clients or third parties. Any discrepancy, error, omission and/or inconvenient related to the system, way and/or payment entity, and not attributable to Smowtion, shall be the exclusive responsibility of the Publisher Clients and/or the payment entity, as appropriate. Smowtion shall not, and under no circumstance, make any payment by other mean which is/are not the one/s expressly authorized by Smowtion. In case of existence of an inconvenience with the payment methods authorized by Smowtion, the Publisher Client and its authorized users shall inform Smowtion of such events to the following email: email@example.com, without being bound Smowtion to and effective solution regarding that.
Taxes: Both Advertiser Client and Publisher Client are the only responsible to comply with the valid tax regulations applicable to both of them, being Smowtion totally released from any liability connected with the tax aspect.
Use under exclusive responsibility: The Publisher Client acknowledges and voluntarily accepts that the use of the Services and the publishing of Advertisements shall take place, in any case, under its sole and exclusive responsibility.
The Services: Smowtion hires its Access to Internet and the one from its servers with a third party, provider of such service. The Publisher Client and/or its authorized users acknowledge and accept that the Services could not always be available due to technical problems or fails in the internet, from the provider, or by any other reason beyond Smowtion. As a consequence, Smowtion doesn't guarantee the availability or continuity of the functioning of the Services; as it doesn't guarantee the usefulness of the Services for the performing of any activity in particular, not its infallibility, and, in particular, but not limited to, that the Publisher Clients could really use the Services, or the total of them, or access to the total of the sections of the web site from Smowtion. Smowtion excludes any liability for any special, incidental, indirect, punitive or consequential damages arising from the interruption, suspension, finalization, lack of availability or continuity of the functioning of the Services, for the frustration in the usefulness, revenues or income that the Publisher Client and/or its authorized users could have attributed to the Services, for the failures of the Services, and in particular, but not limited to, for failures in the access to the Services. Smowtion is not responsible for any damage or loss in the equipment/s of the Publisher Client and/or its authorized users and/or third parties, arising from failures in the system, server or the internet. The web site from Smowtion is in a "Beta" phase, which means it's still being developed, so Smowtion reserves the right to make all the modifications it estimates as necessary in order to be able to improve the quality and facilities of the Services, without implying a commitment to be really complied. Also, and because the Services are still in development, Smowtion does not guarantee in any way the transfers referred to in Section 5.3.; which on the other hand could only be made in case Smowtion received the revenues from the Advertiser Clients or third party advertising networks, as appropriate. Smowtion shall use the information required to the Publisher Client for the purpose of securing a better service for them, without meaning that a commitment to be really complied. The Publisher Clients acknowledge and understand that learning about the functioning and effectiveness of the Services, and as a consequence optimize them, requires time an constant work, so the waive to make any claim arising from such circumstances.
Liability for third parties advertisements and services: Smowtion, with the sole objective of providing to Publisher Clients the intermediation with the Advertiser Clients, makes available to the Publisher Clients technical devices which allow them to publish in their web sites advertisements which content is far beyond from Smowtion. The Publisher Client acknowledges and accepts that internet contains materials of all kind, edited and not edited, some if which could contain explicit sex scenes or could be offensive for the Publisher Client or its family. Smowtion doesn't previously control, approves, watches or made of his own the products, services, contents, information, data, files and any kind of material existent in the advertisements from the Advertiser Clients or the web sites to where they refer or redirect to. As a consequence, the access from Publisher Client and/or the users of its web sites and/or third parties, to those advertisements, shall be at the sole risk of Publisher Client and/or its authorized users. The Publisher Client, tough, shall maximize the prudence in the evaluation and publishing of the advertisements. Smowtion assumes no responsibility for the damages of any kind which might be caused by:
The Publisher Clients shall indemnify, defend and hold Smowtion and its direct and indirect parents, subsidiaries, affiliates and sister corporations, and their respective officers, directors, employees and agents, harmless from and against all claims arising from the content, expressions and use of the Advertisements. The conflicts between the Advertiser Clients and Publisher Clients arising from the content and expressions of the Advertisements shall be their exclusive responsibility as appropriate, fully releasing Smowtion of any claim.
The terms of the Terms of Service shall also be applicable to the users of the web sites from the Publisher Clients so long it's applicable, and as a consequence the Publisher Clients shall be bound to notify such circumstance to the users of their web sites.
"Smowtion" is trademark from SMOWTION CO., CORP. The contents from the Services, jointly but not limited to, its programs, data bases, networks and files, are property of Smowtion. Its improper use as well as its use without an express authorization shall be object of the corresponding legal action. The use of the Services cannot be, under any circumstance, interpreted as an authorization and/or license granting of the intellectual rights from Smowtion and/or a third party. All the text, images, designs, compilation and any type of material appearing in the web site from Smowtion are registered and property of Smowtion. All rights reserved. The reproduction, duplication, distribution or storage, or any act of disposition or use of any material in www.smowtion.com is strictly prohibited.
Smowtion operates and controls the Services from its offices in Miami, Florida, United States of America. Smowtion makes no representation that the Services are appropriate or available in other locations. The Services provided by Smowtion are not intended for use by any person or entity in any jurisdiction or country where such use would be contrary to law or regulation or which would subject Smowtion to any registration requirement within such jurisdiction or country. Accordingly, those Publishers or persons who choose to access the Services from other locations different from the United States, do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Publisher Client agrees to abide by applicable software and other contents export control laws and regulations and not to transfer, by electronic transmission or otherwise, any content, software or other materials subject to restrictions under such laws and regulations to any destination prohibited by such laws and regulations, without first obtaining, and then complying with, any requisite government authorization. The Publisher Client shall be responsible and indemnify Smowtion for any violation of the laws and regulations which may prohibit or limit any way of export or exchange of software or other contents, through the Services.
This Terms of Service shall not be construed to constitute a partnership agreement, mandate, agency, or which may generate any type of relation between Smowtion and the Publisher Client and/or its authorized users; without having Smowtion any obligation to take care of the payment of the issued advertisements.
If any portion of these Terms of Service is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms of Service, which shall continue to be in full force and effect. These Terms of Service cannot be changed or modified by the Publisher Client and/or its authorized users and/or third parties, except by means of a written document signed by the Publisher Client and/or its authorized user and the legal representative from Smowtion. The failure of Smowtion to require or enforce strict performance by the Publisher Client and/or its authorized users and/or a third party, of any provision of these Terms of Service or to exercise any right under them shall not be construed as a waiver or relinquishment of Smowtion's right to assert or rely upon any such provision or right in that or any other instance. The section headings, the order and location of the Sections used herein are for convenience only and shall not be given any legal import.
All notices or other communication which shall be made under these Terms of Service shall be in writing: (i) to Publisher Client: by email to the email account from the Publisher Client declared in the Registration Request, or by first class mail, postage prepaid, overnight courier, or similar, to the Publisher Client's address declared in the Registration Request, if available; both which shall be considered as valid even when arising any factual inconvenient not attributable to Smowtion, which may turn impossible informing the Publisher Client about the content of such notice; or (ii) to Smowtion: by email to the email account firstname.lastname@example.org, or by first class mail, postage prepaid, overnight courier, or similar, to 10305 NW 41st st., suite 219 Doral, FL, USA 33178), Tel. +(786) 522.7881.
Any difference over the validity, existence, interpretation, fulfillment, breach or execution of these Terms of Service, as well as any aspect of the Services, shall be resolved only before the Courts from the City of Miami, Florida, United States of America, and the Publisher Client waives to file and incompetence defense based on a lack of personal jurisdiction or forum non coveniens.
The Publisher Client acknowledges and accepts that the rights granted and obligations made hereunder to Smowtion are of a unique and irreplaceable nature, the loss of which shall irreparably harm Smowtion and which cannot be replaced by monetary damages alone so that Smowtion shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by the Publisher Client of these Terms of Service. The Publisher Client irrevocably waives all rights to seek injunctive or other equitable relief and agree to limit the Publisher Client's claims to claims for monetary damages (if any).
In case the Publisher Client encounters something the Publisher Client finds objectionable and in violation of this Terms of Service, such as violation of copyrighted work, the Publisher Client may report it to email@example.com.
©2013 Smowtion Co, Corp.
LAST UPDATED: 2013/10/17