1.1 The following terms and conditions (“T&C”) shall always apply to the provision of services in the field of advertising by SmartPosting Inc., a California Corporation (“Postcraft”) to its publishing partners, i.e. a party owning or controlling advertising space or otherwise being entitled to display advertisements in online and mobile media as for example on any social platform(s), blog(s), or website(s) (each hereinafter a “Partner”). Such advertising space shall be referred to as “Partner Sites”.
1.2 The T&C, the Partner Guidelines (as defined below) and any other agreements between the parties shall be collectively referred to as the “Agreement”. Terms and conditions of Partner do not become part of the Agreement, unless and to the extent that Postcraft has explicitly accepted them in written form. “Partner Guidelines” means any specifications, instructions and other guidance Postcraft may release to Partner with regard to the use of the Advertising Platform (as defined below).
1.3 “Advertisement” or “Ads” shall mean advertising materials that may contain texts, graphics, images, sounds, videos, any other content or links to the aforementioned. Partner shall publish the Advertisements provided by an advertiser seeking to promote its mobile app(s) (the “Advertiser”). Advertiser will upload its Ads to, and Postcraft will make the Ads available through, Postcraft’s dedicated online platform (the “Advertising Platform”) or, as the case may be, Postcraft and Partner may individually agree upon the publishing of Advertisements through Partner’s account (the “Partner Account”).
1.4 By operating the Advertising Platform and rendering the services according to the Agreement, Postcraft acts a technical service provider between Advertisers and Partner. Partner acknowledges and agrees that Postcraft has no obligation to make available Advertisements in a specific quantity or quality.
1.5 Postcraft shall reward Partner as further described in Chapter 6.
1.6 Postcraft is entitled to use sub-contractors.
2.1 Parties interested in becoming a Partner can do so by registering an account with Postcraft on Postcraft’s website(s). This requires a “Registration Form” to be filled in, especially with an email address. All fields of the Registration Form which are marked as being “required” must be filled in. Alternatively, users can register using their facebook or Google accounts. Postcraft reserves the right to make changes to the registration process as it deems reasonable. Any statements and information submitted during the registration process must be complete and correct and kept up to date by Partner.
2.2 By completing the registration process, the potential Partner submits a binding offer to enter into a contract with Postcraft which shall be governed exclusively by the provisions of this Agreement and particularly these T&C (the “Partner Offer”).
2.3 The Agreement between the Partner and Postcraft is concluded when Postcraft explicitly accepts the Partner Offer, or when Postcraft commences to perform the Agreement, whichever is earlier.
2.4 Regularly, Postcraft will promptly confirm receipt of the Partner Offer by sending an e-mail to the e-mail address submitted as part of the registration process. This confirmation is not a binding acceptance of the Partner Offer. The confirmation can however be sent together with such declaration of acceptance.
2.5 Partner must not pass on its login data to any third party. Partner is fully responsible and liable for all activities under its Partner Account. As a natural person registering on behalf of its employer or any other entity you warrant and represent to have full legal authority to do so and to oblige its employer or such other entity to this Agreement. Partners that are natural persons must be at least 18 years of age.
3.1 The Partner must publish all Advertisements in accordance with the Agreement.
3.2 Partner warrants and represents (a) that it will publish the Advertisements in compliance with any and all applicable laws, also including any laws regarding data protection & unfair competition; (b) that it will not interfere or attempt to interfere with the proper working of the Advertising Platform and particularly the tracking means applied by Postcraft; (c) that it will not place the Advertisements in any illegal context or any other context which might be detrimental to Postcraft, the Advertisers or respectively their reputation; (d) that it has the right to publish the Advertisements on the Partner Sites (e) that it will not alter or modify the Advertisements without Postcraft’s prior written consent it being understood that Partners shall be free to integrate the Advertisements as they deem fit provided such integration is in accordance with this Agreement and (f) that it will not generate or allow others to generate Fraudulent Actions (as defined below).
3.3 Postcraft will take reasonable measures to prevent Fraudulent Actions. The Partner will support Postcraft in preventing Fraudulent Actions (as defined below). The following are considered “Fraudulent Actions”:
4.1 Postcraft reserves the right to partly or fully suspend its services and/ or Partner’s access to the Advertising Platform at any time, particularly, without limitation, if:
Postcraft takes reasonable measures to protect its systems including the Advertising Platform against viruses, spyware and other malicious code (together “Malicious Code’). However, Partner acknowledges and agrees that the intrusion of Malicious Code can never be completely prevented. Therefore, it is the Partner’s responsibility to protect all data stored in its systems against unauthorized access and data loss. Partner shall make its users waive, as far as legally permissible, all potential claims against Postcraft based on Malicious Code, and inform its users as to appropriate measures to protect their systems.
6.1 In consideration of Partner’s efforts under this Agreement, Postcraft rewards Partners with Postcraft points (hereinafter the “Points”) in accordance with the commercial terms agreed within the Advertising Platform, Postcraft’s applicable Partner Guidelines and as further described in section 6.6 of this Agreement below.
6.2 The number of Points that are rewarded to Partner is based on the number of “Conversions” delivered by Partner. “Conversion” means a predefined event such as for example that a user installs a promoted mobile application on its device within a certain period of time (“CPI”).“Conversion(s)” may be defined differently for each campaign. The definition will be made available to Partner together with the applicable reward per Conversion and possibly other campaign specifications such as for example daily caps and targeting criteria in the Advertising Platform (together the “Campaign Terms”). By starting to publish Advertisements, Partner agrees to the Campaign Terms. Partner is not entitled to any rewards for conversions which are not in compliance with the Campaign Terms.
6.3 The number of valid Conversions is determined by Postcraft based on Postcraft’s tracking. Postcraft will use its own tracking tools or tracking tools of third parties as for example TUNE at its discretion. Based on the tracking results, Postcraft will create a final report and make it available to Partner. Reports will be made available upon the completion of a campaign but at least on a monthly basis.
6.4 Postcraft’s reports are deemed accepted by Partner if Partner does not object them within ten days following the making available of a report. Furthermore, Partners have access to online statistics within the Advertising Platform. Partner acknowledges and agrees that such statistics are preliminary and that only the final reports made available by Postcraft shall serve as basis for the determination of Partner’s reward.
6.5 If there is a discrepancy of greater than ten per cent (10%) between Postcraft’s reports and the data of Partner, the parties will work together in good faith in order to verify the relevant data and agree on a final report. However, where the reasons for the discrepancy cannot be clarified within 14 days, Partner will be paid based on Postcraft’s report except to the extent that Partner proves Postcraft’s data to be wrong.
6.6 Points. Points are the virtual currency of Postcraft’s reward program. Partners can collect Points and once a certain number of Points are collected, Partners are entitled to request payout.
7.1 Postcraft does not allow Advertisers to transmit any Advertising through the Advertising Platform to the Partner that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, or to link their Advertisements to such illegal content. However, Partner acknowledges and agrees that Postcraft does not constantly control all Advertisements and the respective links. Therefore, Postcraft’s obligation is limited to removing illegal Advertisements from the Advertising Platform at request.
7.2 To the extent permitted by law, Partner waives any claims it may have against Postcraft under applicable law with regard to illegal Advertisements.
7.3 Potential claims that Partner may have against Postcraft shall first be limited to an obligation of Postcraft to assign Postcraft’s claims against the Advertiser to Partner to the extent Partner is concerned. However, Postcraft remains subsidiarily liable to the extent that cannot be excluded under applicable law.
8.1 Postcraft will use commercially reasonable efforts to make and keep the Advertising Platform available, however, Partner acknowledges and agrees that Postcraft provides the Advertising Platform on an “AS IS” and “AS AVAILABLE” basis. Generally, the Advertising Platform has a yearly availability of 96%.
8.2 Postcraft offers the Partner use of the Advertising Platform over the Internet subject to technical and commercial limitations as defined below. 8.3 Postcraft may modify the Advertising Platform without prior notice. Therefore, the Partner is granted a right of use of the then current version only. If and to the extent that Partner does not agree with using the modified version of the Advertising Platform, Partner must adjust its use accordingly or discontinue its use. 8.4 Postcraft reserves the right to cease operation of the Advertising Platform at any time, without giving reasons or prior notice. Any balance owed to the Partner will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement.
9.1 The Agreement is entered into for an unlimited period of time unless otherwise agreed upon between the parties in writing.
9.2 Each party has the right to terminate the Agreement at any time with immediate effect unless otherwise agreed in writing. Each party’s right to terminate the Agreement extraordinarily for cause remains unaffected.
9.3 All claims accrued until the effective date of the termination remain unaffected. That means, for example, that Partner will, of course, receive any amounts outstanding at the time of the termination.
9.4 Where Postcraft terminates the Agreement for cause, or where Partner otherwise is or is suspected to have breached the Agreement, Postcraft shall be entitled to withhold payments to the extent this is necessary to cover any damages incurred.
9.5 Postcraft may terminate the Agreement for cause in particular, but without limitation, if Partner is in material breach of this Agreement and, provided the breach is capable of being cured, does not cure such breach within a reasonable cure period.
9.6 If there is no option to terminate the Agreement within the Advertising Platform, the termination has to be declared in writing. A termination for cause shall always be declared in writing (E-mail sufficient).
9.7 As of the termination effective date, Partner shall cease its use of the Advertising Platform and any display or other use of the Advertisements. Partner will not be paid out for Conversions after the termination effective date.
9.8 Postcraft reserves the right to exclude Partners perpetually from their use of the Advertising Platform if Partners have committed a material breach of this Agreement.
10.1 Postcraft grants the Partner access to the Advertising Platform. The Partner cannot claim that a given state or functional range is maintained or achieved. The Partner acknowledges that the Advertising Platform, as any other software, can never be completely free of bugs. Therefore, the Advertising Platform can only be considered to be defective if its usability is affected severely and for a significant period of time.
10.2 Postcraft is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by Postcraft.
10.3 Postcraft does not assume any warranties except where agreed in writing by authorized representatives.
11.1 Partner hereby agrees to indemnify, defend and hold harmless Postcraft against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on any breach of the warranties Partner has given in this Agreement.
11.2 Postcraft’s rights under applicable law with regard to any breaches of Partner remain unaffected.
12.1 Except where Postcraft has given a warranty, and for breaches of Cardinal Obligations (as defined below), Postcraft is not responsible for damages unless they are caused intentionally or by gross negligence. “Cardinal Obligations” means all obligations (a) which are essential for achieving the purpose of the particular agreement and (b) on the fulfilment of which a contractual party is regularly able to rely.
12.2 Liability of Postcraft for breaches of Cardinal Obligations is limited to the damages which under regular circumstances would have been foreseeable.
12.3 The parties agree that under regular circumstances foreseeable damages will not exceed an amount of USD 1,000.00 per case.
12.4 The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of Postcraft and their members.
12.5 The aforementioned limitations of liability determined in Sect. 12.1 to 12.4 do not apply in cases of personal death or injury and to Postcraft’s compulsory liability under California law.
12.6 The foregoing limitation shall also apply to damages in form of useless expenses and lost profits.
12.7 Within the limits of applicable law, the parties are free to agree on further limitations of liability by way of individual agreement.
12.8 Damage claims are subject to a limitation period of one year.
13.2 Partner agrees that it will use any data (including any usage or statistical data and compilations thereof) and information provided by Postcraft only for the contractual purposes and in accordance with this Agreement.
14.1 Postcraft reserves the right to amend these T&C from time to time in order to cover changes to its services as for example the adding or removing of certain features or to adjust these T&C and its services to changes in applicable laws and regulations and to adjust the parties’ obligations accordingly. Postcraft will inform Partner in writing (email sufficient) at least two weeks in advance of (a) such changes, (b) of Partner’s right to object such changes and (c) of the fact that unless Partner objects, such updated T&C will become effective upon expiry of the two weeks’ period. The foregoing only applies to changes that are not material to the Agreement i.e. that they do not affect the parties’ rights and obligations in a way that the original understanding between the parties is more than just insignificantly affected.
14.2 If Partner objects to a proposed change of these T&C, the then agreed version of the T&C will remain in effect. However, either party will be entitled to terminate the Agreement with two weeks’ notice.
Unless otherwise provided in the Agreement, Postcraft will usually communicate with the Partner via e-mail. Partner shall make sure that it receives all emails sent by Postcraft to the address submitted as part of the registration process or as updated at a later date in accordance with this Agreement. Partner will in particular configure the spam filter accordingly and regularly check all incoming e-mail under its designated email address. If Partner’s contact information is incorrect at the time of notification, Postcraft will not be responsible for the problems caused from Partner’s inability of receiving notifications, and the notifications shall be deemed received. Postcraft may choose any other appropriate means of communication e.g. to post notifications in the service notice board for the duration of 7 or more days.
16.1 Postcraft grants Partner the limited, non-exclusive, revocable and non-transferable right to use the Advertising Platform solely for the purposes of this Agreement. All other rights are expressly reserved by Postcraft.
16.2 Partner agrees not to modify, alter, create or copy derivative works of the Advertising Platform and the underlying software.
17.1 The parties shall keep confidential all “Confidential Information” received from the other party or otherwise received under the Agreement.
17.2 Confidential Information shall include the Advertisements prior to publication, any data (including any usage data and compilations thereof), information or software relating to the Advertising Platform; and/or any other information designated in writing, or identified orally at the time of disclosure, by the disclosing party, as “confidential”.
17.3 After and during the term of the Agreement, neither party will use for any purpose or disclose to any third party, any Confidential Information of the other party. Any exception to this must be obtained in advance.
17.4 The foregoing restriction does not apply to information that has been developed independently by the receiving party without access to the other party’s Confidential Information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of this Chapter 17 by the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
17.5 Partner acknowledges that by completing the registration process, it grants Postcraft the right to name Partner as a reference for Postcraft’s services in marketing materials, on Postcraft’s websites and otherwise. Partner may revoke this right at any time, in writing, for any future use. In such case Postcraft will cease such use within a reasonable period of time. Furthermore, for the term of the Agreement, Postcraft shall be entitled to display Partner’s name and images of Partner’s websites within the Advertising Platform.
18.1 Partner covenants that during the term of this Agreement and for a period of one (1) year after its end, it will not solicit, attempt to solicit, induce or attempt to induce any of Postcraft’s Advertisers, i.e. the parties for which Postcraft has provided Advertisements to Partner in order to enter into agreements with such Advertisers about the performance of advertising services similar to Partner’s activities under this Agreement.
18.2 For each breach of section 18.1 above, Postcraft shall be entitled to liquidate damages from Partner. The amount of liquidated damages will be determined by multiplying the monthly average receivable by Partner from the concerned Advertiser by 12. In order to determine the monthly average, the month in which Postcraft first objected Partner’s action plus the eleven months preceding this month will be taken into account. If the breach has been going on for a shorter period, the monthly average will be calculated based on such shorter period. If Partner can prove that Postcraft’s actual damages were lower than the liquidated damages amount, then Partner shall only be obliged to pay to Postcraft such lower amount instead of the liquidated damages. If Postcraft can prove that its actual damages are higher than the liquidated damages amount, then Partner shall be obliged to pay such higher amount instead of the liquidated damages amount.
18.3 Sections 18.1 and 18.2 shall not apply where Partner can show that Partner has been working with the concerned Advertisers prior to the beginning of the relationship between Partner and Postcraft.
19.1 Postcraft holds the right to apply its Partner Guidelines in order to maintain its service and protect its members. Partners must be and remain aware of Postcraft’s Partner Guidelines and comply accordingly.
19.2 Postcraft reserves the right to make changes to the Partner Guidelines in accordance with this Agreement. If Partner does not agree with updated Partner Guidelines, Partner must cease usage of the Advertising Platform.
20.1 Postcraft’s omission to act with respect to a breach by Partner does not waive Postcraft’s right to act with respect to such breach or subsequent or similar breaches. No consent or waiver by Postcraft under the Agreement shall be deemed effective unless delivered in writing and signed by a duly appointed representative of Postcraft.
20.2 Neither party shall be entitled to assign its rights and obligations under this Agreement without prior written approval by the other party except that Postcraft may assign the rights and obligations under this Agreement upon notice to Partner.
20.3 Partner shall not be entitled to offset its payment claims against the payment claims of Postcraft unless such claims of Partner are uncontested or have been legally established in a final court decision or otherwise.
20.4 Chapter headings used in the T&C are for convenience only and shall not affect the interpretation of the T&C.
20.5 The rights and obligations of the Agreement cannot be transferred or entrusted to third party, or be used as security.
20.6 If any provision of the T&C shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from the T&C and shall not affect the validity and enforceability of the remaining provisions.
20.7 Except as otherwise agreed under this Agreement, any changes or amendments to the Agreement (partly or entirely) require an agreement between the parties in writing (letter, fax or e-mail).
20.8 Partner shall not be entitled to offset its payment claims against the payment claims of Postcraft unless such claims of Partner are uncontested or have been legally established in a final court decision or otherwise.
20.9 This Agreement shall be governed and construed by and under California law except for that body of laws relating to conflicts of laws. For merchants place of jurisdiction shall be Los Angeles, California, USA.
Los Angeles, California. October 1st 2016 Version 1.0