Smart City OÜ, incorporated under the laws of Estonia, hereinafter referred to as «Us», «We», «Smart City» hereby offers You, a private entrepreneur or a legal entity hereinafter referred to as «You» or «Webmaster» to enter into an agreement on terms specified below. If you familiarized yourself with the terms and wither do not understand them, fully or in part, or do not accept them entirely, please do not accept the offer.
«Agreement» means the Advertisement Agreement entered into between Us and You pending Your acceptance of this Offer.
«Offer» means this document, an offer to enter into an Advertisement Agreement.
«Insertion order» (IO) – means the Our (or Our customer’s) assignment for advertising services with connected subject and time period (for promo campaign).
«System» means LeadGid.com digital system that records actions of the Parties, counts statistics of advertising services, Target Actions; that transmits Users' personal data, if any, to Us.
«Geotargeting» means the User's location when the Promo Materials, Promo Links are shown to the User and when the User is encouraged to take Target Actions.
«Promo Link» means the link determined by Us to Promo Materials, web page, mobile application and any other similar advertising items.
«Promo Materials» means materials of any type used under this Agreement, including, but not limited to, buttons, banners, text-links, pop-ups, pop-unders and text, possible mobile web link, and/or graphic file or file of such other format to be displayed for the purpose of digital marketing.
«Resource» means the information display channel available to the User: a web page, a mobile application, data for obtaining messages via communications networks, etc. in which the Web master arranges for placement of the Promo Materials, Promo Links and/or arranges for search for Users, taking by the Users of any actions related to advertising services, without posting of Promo Materials.
«Target Action (“Lead”)» means the action of the User as it determined in the IO.
«User» means an individual who examines the Promo Materials, Promo Links and is encouraged to take Target Actions.
«Party» – We or You.
«Price» means the Volume respectively multiplied by the unit price as specified by this Agreement.
«Your account» the database record contained in the System, which refers to the webmaster and contains data about the Web master and its actions in the System, including identification data for Authorization.
«Reporting period» – calendar month.
«Fraudulent activities» means by way of example only and without limitation, actual or attempted to: (a) use or encourage or facilitate others to use optimization services and/or software to fraudulently inflate impressions, clicks or other user actions or information regarding user actions; (b) generate or facilitate actions that are based on fraudulent or deceptive practices, including the or use of deceptive implementation methods, robots or other automated tools to generate unintended user actions or encourage or facilitate any illegitimate user actions; (c) mislead users to click on the Promo Materials; (d) in any way minimize or obstruct the display of any Promo Materials, or edit, modify, filter or change the order of the information contained in any Promo Materials; (e) edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by the Us or Our customers; or reverse engineer, decompile or disassemble any software components of the digital marketing services provided by Us or Our customers; (f) offer or provide any unauthorized incentives (financial or otherwise) to Users; (g) blind text links; or (h) use unsolicited email or inappropriate newsgroup postings to promote websites.
«Official Website» – Our official Internet website located at www.leadgid.com
2. SUBJECT OF THE AGREEMENT
2.1. You agree to provide Us with advertising services in accordance with the IO published in Our System and accessed via Your account (also referred to as “Service”).
2.2. Types of services under the Contract:
- 2.2.1. finding Users and motivating them to perform Targeted actions;
- 2.2.2. placement of Promo Materials on resources;
- 2.2.3. placement of Advertising links on resources;
- 2.2.4. other Advertising services defined in the IO.
2.3. The specific list of services that are provided under the Agreement is determined in the IO.
2.4. Entering into an Agreement is done by accepting this Offer via concurring actions done in sequence as described below:
- - familiarizing Yourself with the terms of the Offer and the Agreement;
- - accepting the Offer and entering into the Agreement by completing the registration of Your account in the System.
2.5. Each subsequent action confirms the previous one. The Agreement is deemed to be entered into from the moment of completing all mentioned actions. Entering into the Agreement means You are familiar with the terms of the Offer and agree with them entirely.
2.6. We reserve the right to revise and alter the Offer and the terms of the Agreement unilaterally by publishing the revised version on Our Official website. Changes made apply to the Agreement between the Parties and all approved IOs within 5 (five) Business days from the date of publishing an amended Offer. Pending Your disagreement with newly published Offer You are to inform Us in writing by submitting a written statement of withdrawal from the Agreement to Our address as specified below.
3.1. IO Details. During the term of this Agreement, the We may from time to time place new IOs in the System. As applicable, each IO will specify: (a) the Volume and pricing model; (b) the Unit Price; (c) the maximum amount of money to be spent; (d) the Commencement Date and End date of the campaign; and (e) the identification of the Parties. Other items that may be included are, but are not limited to, reporting requirements, any special Creative delivery scheduling and specifications concerning ownership of data collected. Revisions to confirmed IOs will be made by Us in the System and acknowledged by You by continuing to perform under changed conditions.
You as Webmaster shall not:
- while rendering the Services, store, transmit, distribute, disseminate, publish or post any content in such a way as to breach any applicable Law, Our policies or guidelines, or infringe the rights (in particular, the intellectual property rights) of, or restrict or inhibit the access to the System by, any other person;
- while accessing the System, You shall not deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items into the System, or third parties’ systems;
- share, display or disclose any Promo Materials that may be considered to contain the following content:
- - any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality;
- - any content that promotes firearms, bombs and other weapons or how-to guides for any of the above;
- - any content that contains false, misleading or deceptive representation (as determined by the Us at Our sole discretion);
- - any content that contains, promotes or links to indecent, obscene or highly explosive subject matter (as determined by Us at Our sole discretion);
- - any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent);
- - any adult-oriented content, including without limitation to, sexually suggestive content, images containing exposed skin and nudity, dating services, international bride services, and adult merchandise, unless permitted under applicable law and the Webmaster obtains prior written authorization from Us;
- - any content that contains or promotes illegal activities, including without limitation to hacking, phreaking or phishing; or
- - any content that has the potential to create liability for Us or cause Us to be found in violation of the requirements of other Internet service providers, or cause Us to lose in whole or in part the services of said Internet services providers;
- While rendering the Service and accessing the System You are not to process personal data of the Users with violations of applicable law, and You are not to violate any applicable laws and regulations on gambling activities of respective jurisdiction(s) where the advertising services are provided.
4. PRICE, PAYMENTS, TAXES AND COSTS
4.1. Reporting. The price will be solely based upon the Volume compiled by Our System. We will provide You a report on monthly basis, unless otherwise agreed in the IO detailing the Volume in relation to the campaigns. The aforesaid report will be broken out by day and be sent by the 5th of every following month. You agree to accept Our report as the official basis for measuring the Volume and acknowledge that You shall not be entitled to any further information on the Volume. You further acknowledge that in some cases, We will need to make adjustments to reported statistics due to specific contractual provisions (e.g., fraudulent activities), statistical errors, or third-party tracking provided by User.
4.2. Invoices. Unless We prepaid the Services, You are to issue the invoices on a monthly basis upon its receipt of the reports mentioned in Section 4.1 above, such invoices to be sent to Our billing address as set forth on the IO and will at a minimum contain the IO number, company name, campaign name and any number or other identifiable reference stated as required for invoicing on the IO. The invoices shall cover only those inventory that meet the criteria specified in this Agreement. You must send the invoices in time, otherwise We shall not bear any liability of late payment.
4.3. Payments. We oblige to pay the price in full to You, the Webmaster, within 5 days after having received the payment from our counterparty who placed the IO with Us. All amounts payable to the You under this Agreement will be paid in Euros. Note that We reserve the right not to commence payment if there are established violations of restrictions (see clause 3.3.) on Your part, made as the Service was being rendered.
4.4. Taxes, Costs. Any taxes imposed on a Party by any governmental authority in connection with the execution and performance of this Agreement shall be paid by that Party. If any withholding tax is imposed by any relevant tax authority with respect to any sums due to You hereunder, then such sum will be paid to You after deducting the amount of such withholding, and We shall pay such withholding tax to the relevant authorities and provide You with a copy of tax receipts thereof.
4.5. Wire Transfer Fees. Any commission fees regarding to the money transfer shall be born by You except for commission fees on Our side.
5. WARRANTIES, INDEMNITIES, AND LIMITATION OF LIABILITY
5.1. Warranties. Both Parties hereby represent that they are authorized to enter into this Agreement. Except as expressly set forth in this Agreement, neither Party makes and each Party specifically disclaims any representations or warranties, express or implied, including any warranty of merchantability, fitness for a particular purpose, title and non-infringement, and warranties implied from course of dealing or performance.
5.2. Your representations. You, the Webmaster, herby represent and warrant that You have and will foreseeably have full power and authority to fulfill all of Your obligations hereunder and in doing so it will not breach any existing contractual obligations with third parties and that You are authorized to bind any third parties necessary to create and fulfill the specified obligations. You also hereby represent that You are not a tax resident of Estonia.
5.3.1.You agree to hold Us harmless, defend and indemnify Us and Our associated entities, and their respective officers, directors, shareholders, employees, agents and other representatives, against any pending, threatened, resolved or settled third parties claims, liabilities, demands, judgments or causes of action, and costs and expenses related thereto (including reasonable attorneys’ fees and costs) (collectively "Claims"), arising out of: (a) Your breach of Your representations, warranties, liabilities or obligations under this Agreement; (b) Your or Your representatives’ breach of any applicable law or failure to advise Us of the requirements of any applicable law; or (c) any gross negligence or willful misconduct on Your part, or by Your associated entities or any of their respective directors, officers, employees, contractors, agents or other representatives.
5.3.2. We agree to hold You harmless, defend and indemnify You, the Webmaster, and Your associated entities and their respective officers, directors, shareholders, employees, agents and other representatives, against any claim arising out of: (a) Our any breach of this Agreement; or (b) any gross negligence or willful misconduct of on Our part or by Our associated entities or any of their respective directors, officers, employees, contractors, agents or other representatives.
5.3.3. In claiming any indemnification hereunder, the Indemnified Party shall promptly provide the Indemnifying Part with written notice of any Claim which the Indemnified Party believes falls within the scope of the foregoing Section 5.3.1 or 5.3.2. The Indemnified Party may, at its own expense, assist in the defense if it so chooses; provided that the Indemnifying Party shall control such defense and all negotiations relative to the settlement of such claim and further provided that any non-monetary settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent.
5.4. Limitation of Liability. Neither Party shall be liable to the other or any third party claimant for any indirect, special, punitive, consequential, or incidental damages, including, lost profits arising out of, or related to this Agreement, regardless of how or under which theory of liability it was caused, including but not limited to negligence, even if such party has been advised of the possibility of such damages. In any event Our total liability to You, or any third party claimant in respect of any losses arising under or in connection with this Agreement or related thereto, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate payment actually made by Us for the Services rendered over the six (6) months period to the claim. For the avoidance of doubt, nothing in this Agreement excludes or limits either Party’s liability for fraud, gross negligence, death or personal injury or any other matter to the extent such exclusion or limitation would be unlawful.
6. PERSONAL DATA OF USERS
6.1. This Section 6 applies solely if rendering of the Service requires You to process personal data of Users.
6.2. If required to process personal data of Users, You shall process it with obtaining of the prior consent of said Users for processing.
6.3. User consent is to be collected for any action or set of actions performed with personal data, including collection, recording, systematization, accumulation, storage, clarification (update, change), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data, transfer of personal data to the archives. The consent is to be also collected for transfers of personal data by Us to the providers of financial services.
6.4. The purpose of processing of personal data is: obtaining by users of various financial services from the providers of financial services, for which We will store and transfer of personal data of Users to the providers.
7. CANCELLATION, TERM AND TERMINATION
7.1. Term. The Agreement shall be effective as of the effective date and shall be effective for a term of 1 year as of the date of accepting this Offer, unless earlier terminated in accordance with its terms (the "Initial Term"). If neither Party to this Agreement provides a notice of nonrenewal or a notice of proposed extension of this Agreement not more than 30 days prior to the expiration of the initial term, this Agreement will automatically renew, on its existing terms, for one additional year term (the renewal term). The initial term and a renewal term of this Agreement (if any) are referred to collectively herein as the "Term".
7.2. Termination. Each Party acknowledges and agrees that this Agreement may be terminated by the mutual written agreement of the Parties. Each Party is entitled to terminate the Agreement unilaterally, having notified the other Party in writing not less than before 30 (thirty) days. Either Party may terminate this Agreement upon the material breach of this Agreement by the other Party hereto if the breaching Party fails to cure the breach within 30 days after receiving written notice of such breach from the non-breaching party.
7.3. Cancellation of the IO. Without Cause. Unless designated on the IO as non-cancelable, either Party may cancel the execution on the IO, with a 48-hour written notice.
7.4. Cancellation of the IO. For Cause. In addition to or in lieu of any other remedy to which We may be entitled under this Agreement or under applicable Law, We may, at Our option, without liability or penalty, suspend the fulfillment of or cancel any Insertion Order:
- if You breach Your obligations by violating Our policies three times (and such policies were provided to You) and receive timely notice of each such breach (no matter whether You remedy the breache or not); or
- if this Agreement is terminated due to Your breach in accordance with Section 6.2. above or if We have provided You with a notice of breach of this Agreement in accordance with Section 6.2. above.
8.1. The Parties hereby agree that in receiving Confidential Information pursuant to this Agreement, the receiving Party shall
- use the Confidential Information only to fulfil its obligations pursuant to this Agreement;
- treat all Confidential Information of the disclosing party as secret and confidential and shall not copy or disclose any such Confidential Information to any third party;
- not, without the written consent of the disclosing Party, disclose the Confidential Information or any part of it to any person except to the receiving Party’s directors, employees, parent company, subsidiaries or agreed subcontractors, who need access to such Confidential Information for use in connection with the Services and who are bound by appropriate confidentiality and non-use obligations; and
- comply promptly with any written request from the disclosing party to destroy or return any of the disclosing party’s Confidential Information (and all copies, summaries and extracts of such Confidential Information) then in the receiving Party’s power or possession.
10. FORCE MAJEURE
10.1. Neither Party will be liable for a delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by the event of force majeure which means an earthquake, typhoons, floods, pandemics, epidemics, or other acts of God, fire, explosion, action of governmental or military authority, upheaval, riot, war or any other major emergency that is unforeseeable and unavoidable. If an Event of Force Majeure constitutes for a period of five (5) business days, either party has the right to cancel the relevant IO without penalty. However, such cancellation will not alter a Party’s liability for payments and performance due as at the time that the event of force majeure commenced.
11.1. Notices. All notices, modifications, instructions, demands, consents, approvals and other communications to be given or delivered under or by reason of the provisions of this Agreement by either Party shall be in writing and shall be deemed to have been given: (a) when personally delivered; (b) when delivered by an internationally recognized courier service; (c) when sent by email to the contact person specified in the IO. A Party may change its’ notice address and contact person by giving written notice to the other Party. All notices and other communications required or otherwise provided under this Agreement shall be made in English.
11.2. Waiver. No waiver of any of the provisions of this Agreement shall be valid unless in writing signed by the Party against which the waiver is sought to be enforced. No waiver by either party of any breach of or failure of performance shall be deemed a waiver as to any subsequent breach or failure of performance, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure of a Party to enforce any provision or to exercise any right or remedy shall not constitute a waiver of such Party’s rights or the other Party’s obligations.
11.3. Assignment. Neither Party may directly or indirectly assign or otherwise transfer its rights or obligations under this Agreement in whole or in part without the express written consent of the other Party. Any assignment or transfer or attempt to assign or transfer of this Agreement or the rights granted herein without the written consent of the other Party shall be void.
11.4. Compliance. You are obliged to provide the Services in accordance with applicable law of the jurisdiction where Services are rendered, in particular You are not to act explicitly or implicitly in breach of any laws and/or regulations governing gambling activity.
11.5. Governing Law. This Agreement and any dispute, controversy or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Estonia.
11.6. Dispute Resolution. Any dispute arising or in connection with this Agreement will be resolved through friendly consultation between the Parties. If no consent is reached on a disputable issue, the Party which considers that its rights are violated shall send to the other Party written claim, on which the latter is obliged to respond within 10 (ten) days from the claim receipt date. If the Parties fail to resolve the dispute via written claim, any dispute, controversy or claim which may arise out of or in connection with this Agreement, or the execution, breach, termination or invalidity thereof, shall be settled Arbitration Institute of the Estonia Chamber of Commerce in accordance with its arbitration rules. The arbitral tribunal shall be composed of a sole arbitrator. The seat of arbitration shall be Tallinn. The language to be used in the arbitral proceedings shall be English except if the Parties are agreed to use Estonian. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
11.7. Governing Language. This Agreement is executed in English. If necessary, it may be translated into other languages. However, if there’s any conflict, ambiguity or discrepancy between the English version and a version in any other language, the English version shall prevail.
11.8. Entire Agreement. This Agreement (together with the applicable IO) constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement replaces and fully supersedes any prior verbal or written understandings, communications, or negotiations between the parties.
11.9 This Agreement and all documents relating to it are executed in English. All documents relating to the Agreement are executed delivered electronically, unless otherwise expressly required be applicable laws or the Agreement.
11.10. If the electronic document is to signed by both Parties the Parties may exchange identical text files signed by respective Parties’ authorized persons.
11.11. Electronic documents are considered delivered:
11.11.1. regarding e-mails – on the date of the message being sent out provided that no notification of delivery error is received from telecommunication operator within 24 hours of that date;
11.11.2. regarding messages sent via messengers and sms – the hour of sending the message provided that no notification of delivery error is received from telecommunication operator within 24 hours of that date;
11.11.3. regarding messages sent via the System (including via the Your account) – at the moment of delivery confirmation.
11.12. Time of Estonia is applied to electronic communications between the Parties.
11.13. You may at your discretion enter into separate written agreements with Us regarding subject-matter set by this Offer. In this case all matters and terms not covered explicitly by this Offer and the implied Agreement will be regulated by said written agreements. In case of any discrepancy between the Offer and the implied Agreement and the written agreement on the subject-matter stated above, the terms of the written agreement will prevail. If Parties already have a written agreement on stated subject-matter in place prior to You accepting this Offer, the written agreement prevails.