Terms of use

Effective as of 1 February 2026.

These Terms of Use form an integral part of the Agreement which governs the use of the Service provided by the Smartly.io entity specified in the Order Form (or in case no entity is specified, Smartly.io Solutions Oy) (“Smartly.io”) to customer defined in the Order Form or using the Service (the "Customer"). By signing an Order Form or by using the Service, Customer acknowledges and agrees that it is subject to these Terms of Use and that Customer accepts these Terms of Use.

1. Definitions

Unless expressly otherwise stated or evident in the context, the following capitalized terms shall have the following meaning.

1.1 General Definitions

1.1.1 “Ad Account” means a predefined advertising account (i) registered with Smartly.io and associated with the advertising account(s) on the Online Advertising Platform or (ii) to which the Service applies to as agreed between the Parties regardless of whether this advertising account is registered with Smartly.io.

1.1.2 “Advertising Spend” means all charges payable by Customer for all advertising conducted with respect to an Ad Account in the Online Advertising Platform and regardless of whether Customer conducted advertising campaigns using the Service or not.

1.1.3 “Affiliate” means an entity which is a subsidiary or parent of, or under common control with, the Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty (50) per cent or more of the voting shares in such entity, or that other entity is able to direct the Party’s affairs or is able to appoint a majority of the members of the board of directors or an equivalent body.

1.1.4 “Agreement” means these Terms of Use together with the Order Form(s) and any exhibits, annexes and appendices thereto which shall govern the provision of the Service by Smartly.io and the use of the Service by Customer. 

1.1.5 “Customer Content” means any advertising content, creative assets, and/or materials and other information provided by or on behalf of Customer to Smartly.io for the purpose of the Service, including without limitation any third party content licensed or acquired: (i) by Customer, or (ii) by Smartly.io on behalf of and with the authorization of Customer.

1.1.6 “Deliverable” means each deliverable which is: (i) specified in an Order Form as constituting a “Deliverable” under the Agreement, and (ii) specifically prepared and tailored by Smartly.io for Customer in connection with the Service. Deliverables do not include proposals, working files, sketches, outlines, rejected creatives and concepts, or parts of the foregoing. Customer’s access to the Service, Smartly.io Software, or any third-party content, can in no event constitute a Deliverable within the meaning of this Agreement.

1.1.7 “Online Advertising Platform” means any platform, website, channel or environment accessible via the internet where advertisements may be displayed or otherwise distributed by using the Service.

1.1.8 “Order Form” means each order form or other ordering document through which Customer orders the Service and which, by reference, incorporates these Terms of Use.

1.1.9 “Party” means Smartly.io or Customer separately. Customer and Smartly.io together are referred to as the “Parties”.

1.1.10 “Personal Data” means any information relating to an identified or identifiable natural person.

1.1.11 “Service” means the provision of the services based on Customer’s active Subscription(s).

1.1.12 “Smartly.io Software” means Smartly.io’s or its Affiliate’s proprietary advertising software, and any changes, updates, upgrades, modifications and enhancements made thereto, and any related proprietary modules, add-ons, tools, browser plugins, scripts, application programming interfaces, code and applications as well as any documentation, derivatives or similar materials relating to each or all of the foregoing.

1.1.13 "Subscription” means a time-based agreement between Smartly.io and Customer for Smartly.io’s provision of a specified service as described in an Order Form or a service that is otherwise specified to constitute a separate Subscription. 

1.1.14 “Terms of Use” means these terms and conditions applicable to the use of the Service. Smartly.io may, in its sole discretion, update and modify the Terms of Use from time to time. Modifications and updates take effect 30 days after Smartly.io’s written notice (e.g., in the platform, via the knowledge base, or by email). Customer’s continued use of the Service after the effective date constitutes acceptance of the modifications and updates.

1.2 AI Specific Definitions

1.2.1 “AI” means artificial intelligence features incorporated into the Service where Customer provides certain Inputs utilized by AI Models to generate and/or return Output.

1.2.2 “AI Licenses” mean licenses and applicable usage policies as made available by the Third Party AI Models copies of which are made available to Customer upon written request or via the Smartly.io platform.

1.2.3 “AI Models” mean the artificial intelligence models created by Smartly.io (“Smartly.io AI Models”) or by third parties which Smartly.io uses via API or otherwise (“Third Party AI Models”) to provide AI. Smartly.io may change AI Models from time to time.

1.2.4 “Input” means inputs submitted by the Customer to AI.

1.2.5 “Output” means the materials or information generated or returned, and/or actions carried out, by AI for Customer’s use based on the Inputs. For clarity, Output does not include (i) Smartly.io’s Confidential Information, (ii) any part of an AI Model (iii) log, administrative, usage, and similar internal data or anonymized/aggregated data created by Smartly.io.

2. General Service Terms

2.1 The Service consists of the Subscription(s) agreed between the Parties.

2.2 Customer remains responsible for how Customer uses the Service and for achieving the intended goals and results of Customer's advertising campaigns. Smartly.io’s Service operates between Customer and the Online Advertising Platform on which the advertising campaigns are being conducted, and it is the responsibility of Customer to ensure that the output and results of the Service meet Customer's expectations and requirements.

2.3 Smartly.io is entitled to produce the Service as it deems appropriate. The Service and the Online Advertising Platforms are constantly evolving and, as a result, the features made available on the Service may change. In the event of any substantial or major change to the Service, Smartly.io will inform Customer via the Service (e.g., in the platform, via the knowledge base or by email).

2.4 Smartly.io provides support as set forth in the Order Form. Customers requesting support must allow Smartly.io to access the applicable Ad Account(s) and provide any additional information as is reasonably necessary to provide the support. As reasonably necessary to address Customer’s support request, Smartly.io's personnel may view Customer’s Ad Accounts, settings, and campaigns and access the specific user view of Customer’s user. Upon Customer’s request or approval, Smartly.io’s personnel may also modify Customer’s advertising campaigns and other settings in Customer’s Ad Accounts, but Customer shall remain responsible for these advertising campaigns and the goals and results thereof, and Smartly.io shall have no liability for any such actions.

2.5 The Service does not include, and Smartly.io does not offer, any telecommunication or networking services or equipment, security services or systems, or hardware or other equipment. If Customer requires any of the foregoing, Customer must obtain such systems, services and equipment at its own expense from third party vendors.

2.6 Customer shall: (i) not use the Service for any unlawful purpose; (ii) comply with Smartly.io's reasonable directions and requests related to the Service in a timely manner; and (iii) provide Smartly.io in a timely manner with all accurate and complete Customer Content as necessary for the proper provision of Service to Customer.

2.7 Early Access

2.7.1 Smartly.io may from time to time in its sole discretion allow Customer to access and use features or services that are labeled as “alpha”, “beta”, “pre-release”, “early access” or similar label in the Service, Order Form, or other written communication by Smartly.io (“Early Access”). Early Access also includes any related documentation and support that Smartly.io may provide. Unless otherwise agreed between the Parties in writing, Customer can discontinue the use of Early Access at any time. Smartly.io is entitled to provide Early Access as it deems appropriate and may change or discontinue Early Access or part thereof at any time.

2.7.2 Unless otherwise agreed between the Parties in writing or unless otherwise indicated via the Service or by written communication by Smartly.io, Early Access is subject to the applicable Subscription’s pricing. If Early Access is provided free-of-charge, Smartly.io may introduce fees applicable to Early Access or update existing Early Access fees by giving Customer at least 30 days’ prior written notice. 

2.7.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT AND WITHOUT LIMITING ANY OTHER DISCLAIMERS OR LIMITATIONS THEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, (i) SMARTLY.IO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (EXPRESS OR IMPLIED) FOR EARLY ACCESS (INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FUNCTIONALITY, CORRECTNESS, SECURITY, OR FITNESS FOR A PARTICULAR PURPOSE) AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS FOR EARLY ACCESS, (ii) NO SERVICE LEVEL COMMITMENTS APPLY TO EARLY ACCESS AND (iii) SMARTLY.IO’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH EARLY ACCESS SHALL IN NO EVENT EXCEED $100.00 USD.

2.7.4 In case of conflict between this Section 2.7 and other sections of the Agreement, this Section 2.7 shall prevail with respect to Early Access unless otherwise expressly stated to the contrary in the Order Form with a reference to this Section 2.7. 

2.8 AI Additional Terms

2.8.1 Ownership. All Input and Output are deemed Customer Content. As between Smartly.io and Customer, and to the extent permitted by applicable laws, Smartly.io assigns to Customer all Smartly.io’s right, title, and interest, if any, in and to Output.

2.8.2 Training. Smartly.io does not use Customer Content to train Smartly.io AI Models and contractually restricts Third Party AI Models from using the Customer Content for training or improvement of their data models or services. Smartly.io may request Customer’s consent to use Customer Content to train AI Models in order to provide additional capabilities and/or services for the Customer. If the Customer does not provide such consent, Smartly.io will continue to provide AI without the additional capabilities and/or services that would require the Customer Content to be trained on. Notwithstanding the foregoing, Customer Content may be processed to configure or adapt a Model for Customer’s own use ("fine tuning"), provided such processing is isolated to Customer and is not used to train or improve models for other customers or for general use.

2.8.3 Output and Input. To the maximum extent permitted by law, Smartly.io has no liability for, and no obligations arising from, Third-Party AI Models, Input or Customer’s use of Output. Customer acknowledges and agrees that AI may generate the same or similar output to multiple customers, and Smartly.io disclaims any express or implied warranty as to the Output.

2.8.4 Additional GenAI terms. If Customer has subscribed to Smartly.io’s AI Studio, Customer shall not provide Input which violates AI Licenses and Customer shall also comply with the AI Licenses as if the user of the AI Platforms.

2.8.5 Precedence. In case of conflict between this Section 2.8 and other sections of the Agreement, this Section 2.8 shall prevail with respect to AI unless otherwise expressly stated to the contrary in the Order Form with a reference to this section 2.8. 

3. Registration

3.1 Unless otherwise agreed, Customer shall register on https://app.smartly.io/ before commencing the use of the Service. In connection with the registration, Customer shall authorize Smartly.io to access and use Customer’s Online Advertising Platform accounts, ad accounts, and all the information therein, as well as Online Advertising Platform accounts of Customer’s personnel using the Service to enable proper fulfillment of this Agreement. Customer shall register the Ad Accounts with the Service, and may subsequently add or remove such Ad Accounts at any time in its sole discretion. Customer represents and warrants that it has full rights and authority to give Smartly.io the rights above and to register the Ad Accounts with the Service. For clarity, if Customer uses the Service on behalf of a third party (e.g. its end customer), Customer represents and warrants to Smartly.io that the aforementioned authorization and registration obligations are complied with also with respect to such third party.

4. Rights of Use and Proprietary Rights

4.1 Customer agrees and acknowledges that the title and all intellectual property rights in and to the Service and any data, documentation, code, images and/or Smartly.io Software related thereto are owned by and remain vested in Smartly.io or a third party. Unless otherwise specifically agreed in a signed agreement between the Parties, no intellectual property rights of Smartly.io shall be transferred pursuant to these Terms of Use, any Order Form or Subscription. Subject to Customer’s compliance with all the terms of this Agreement, Smartly.io grants Customer a non-exclusive, non-transferable, limited right to access and use the Service, against due payment of the applicable fees, solely in connection with the Ad Accounts in the applicable Online Advertising Platform. To the extent the Service includes any Deliverables, Smartly.io grants Customer a non-exclusive, perpetual, worldwide, royalty free right to use (including without limitation the right to amend, use, make derivative works, assign and sublicense works) any Smartly.io-owned parts of the Deliverables.

4.2 Customer shall not, nor permit any third party to, do or attempt to do any of the following: i) copy, modify, duplicate, create or prepare derivative works from or based upon, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service or Smartly.io Software in any form or media or by any means; ii) access all or any part of the Service in order to build, plan or develop a product or service or feature which competes with the Service, Smartly.io Software or any other Smartly.io’s service or offering; iii) obtain unauthorised access to any part of the Service or Smartly.io Software, or to circumvent any volume, rate or other limits or technical restrictions included in the Service, Smartly.io Software or in a written agreement signed by the Parties; iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise make the Service or Smartly.io Software available to any unauthorised third party; v) reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from, the Service or Smartly.io Software (except and only to the extent any foregoing restriction is prohibited by applicable law) or otherwise discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service, Smartly.io Software or any software, documentation or data related to the foregoing; vi) disrupt, interfere with, or adversely affect the operation or security of the Service or Smartly.io Software; vii) use scripts or other automated means not provided by Smartly.io to access or use the Service or Smartly.io Software or viii) to use the Service or Smartly.io Software in violation of terms and policies of the Online Advertising Platforms or other third party solutions used by Customer. If Customer grants any subcontractor, supplier, end-customer, Affiliate, or other third party any access to the Service, such subcontractor, supplier, end-customer, Affiliate, and third party shall be considered equivalent to Customer for the purposes of this Agreement and Customer shall be fully responsible and liable for all acts and omissions of and any damage caused in connection with the use of the Service to such subcontractor, supplier, end-customer, Affiliate, and third party as well for ensuring their compliance with this Agreement and timely payment of all fees incurred by or in connection with said parties’ use of the Service.

4.3 Customer (or Customer’s third party licensor) retains all of its rights in all Customer Content. Unless otherwise specifically agreed in a signed agreement between the Parties, no intellectual property rights of Customer shall be transferred pursuant to these Terms of Use, any Order Form or Subscription. Customer hereby grants Smartly.io a non-exclusive, worldwide, and limited right to use such Customer Content for purposes of delivering and performing the Service under this Agreement. In case there are some third party restrictions relating to Customer Content, Customer shall be liable for complying with such restrictions and shall notify Smartly.io of said restrictions in writing when providing Smartly.io with Customer Content. In such a case, the Parties shall discuss and agree in good faith on how such third party restrictions are taken into account in the provision of the Service. This provision does not limit Smartly.io’s rights under Section 8.2 below or rights to Feedback (as defined below).

4.4 If Customer provides, at its sole discretion, Smartly.io with comments, suggestions or ideas relating to the Service (“Feedback”), Smartly.io may perpetually use Feedback without restrictions or obligations to Customer.

4.5 For the avoidance of doubt, if Customer uses or the Service integrates third-party solutions for which Customer has a direct contractual relationship with the providers of such third-party solutions (such as Online Advertising Platforms, mobile measurement providers and analytics providers) regardless of anything to the contrary stated herein, their use shall be exclusively governed by their provider's terms and conditions in their standard form, or as negotiated between Customer and such third party, applicable to such solutions. This Agreement does not modify or amend, and is not in lieu of, any terms, policies or rules of an Online Advertising Platform or any other third-party solution used by Customer.

5. Fees

5.1 Fees and invoicing are specified in the Order Form. If Customer has multiple Subscriptions with spend-based pricing, (i) Advertising Spend is incurred under each Subscription separately and the Advertising Spend is not aggregated between Subscriptions and (ii) the fee shall be calculated and invoiced after each calendar month based on Customer’s Advertising Spend. Unless expressly stated otherwise in an Order Form, at least a monthly minimum fee is charged for each full calendar month. If the first calendar month or last calendar month prior to termination is partial, the monthly minimum fee shall be prorated based on the number of days in the said calendar month. To the extent the pricing is based on impressions or Advertising Spend which Smartly.io Software is not able to automatically retrieve for billing purposes, Customer shall timely provide accurate monthly reports after the end of each calendar month consisting of, as applicable, all advertising impressions delivered and/or Advertising Spend incurred by or on behalf of Customer during the relevant reporting period that incorporate Customer Content or make use of the Service. 

5.2 Unless explicitly stated to the contrary in the Order Form, Smartly.io may change the pricing from time to time upon at least 30 days prior written notice. The change shall not affect the fees for invoicing periods commenced before the effective date of the change. If Customer has committed to a fixed term, the price change shall take effect at the next renewal. In case of a price change, Customer shall be entitled to terminate the affected Subscription to end on the effective date of the price change by notifying Smartly.io thereof in writing prior to said effective date.

5.3 Unless otherwise specified in an Order Form, fees for the Service are invoiced monthly in arrears via the payment method offered by Smartly.io at the time and chosen by Customer. Customer shall remit payment 30 days net from the date of the invoice. Interest on delayed payments accrues at 12% per annum or the maximum legal interest rate for late payment, whichever is less. Customer is liable to pay Smartly.io’s reasonable expenses and fees relating to collection of late payments. Customer shall provide Smartly.io with correct invoicing information (including without limitation any purchase order numbers) by the last business day before the end of the invoiced calendar month and must ensure that Customer’s invoicing information remains correct and up to date. If Customer in good faith believes that Smartly.io has charged Customer incorrectly, Customer shall contact Smartly.io in writing no later than 10 business days after the date of the first invoice in which the error appeared, in order to receive an adjustment or credit. If Customer fails to contact Smartly.io within the 10 business day period referenced above, the Customer shall be deemed to have accepted the invoice as is.

5.4 All fees, charges, and other amounts payable by the Customer are exclusive of any applicable taxes, duties, levies, or other governmental charges, including but not limited to value added tax, goods and services tax, sales tax, and sellers use tax (“Indirect Taxes”). Where Indirect Taxes are chargeable by Smartly.io from Customer, those shall be added to the invoice at the prevailing rate in accordance with applicable law and paid by the Customer upon receipt of a valid tax invoice. If the Customer is legally entitled to an exemption from any Indirect Taxes, the Customer is responsible for providing Smartly.io with legally-sufficient tax exemption certificates for each taxing jurisdiction, as well as any other documentation reasonably requested. Smartly.io will apply said tax exemption certificates to charges under the Customer’s account that are invoiced after the date Smartly.io receives the tax exemption certificates. Customer affirms any tax exemption certificates it provides are accurate, complete and valid. Customer shall reimburse Smartly.io for any taxes, liabilities or costs arising from Smartly.io's reliance on or acceptance of the exemption certificate in lieu of tax collection. All payments made by the Customer to the Smartly.io entity specified in the Order Form shall be made free and clear of any deduction or withholding for taxes. If any such deduction or withholding is required by law, the Customer will notify Smartly.io in writing and will pay any additional amounts necessary to ensure that the net amount that Smartly.io receives, after any deduction and withholding, equals the amount Smartly.io would have received if no deduction or withholding had been required. The Customer shall promptly provide evidence that the deducted and withheld amounts have been paid to the relevant taxing authority including any documentation issued by the relevant taxing authority in respect of the deducted or withheld amounts. Smartly.io will provide the Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments.

6. Warranties

6.1 Each Party represents and warrants that it: (i) is duly formed and validly existing in its jurisdiction of formation; (ii) has the right and authority to enter into this Agreement; and (iii) shall comply with laws and regulations applicable to such Party when carrying out its rights and obligations hereunder, including those related to sanctions, export controls, anti-bribery, anti-money laundering, and data privacy.

6.2 Smartly.io represents and warrants that it will provide the Service in a good and workmanlike manner consistent with the applicable industry practices and standards. Smartly.io makes commercially reasonable efforts to ensure that the Smartly.io Software will be available for use on a 24/7 basis excluding temporary maintenance, updating and repairs. Smartly.io does not warrant that the Service will be uninterrupted or error-free, but it will use commercially reasonable efforts to inform Customer of any usage interruptions, breaks or errors, remain available to support the Customer, and to correct any material deficiency in the Service as soon as reasonably possible. 

6.3 Smartly.io’s warranties do not cover and Smartly.io shall not be liable for errors, delays, deficiencies or non-compliance attributable to (a) changes to the Service made by Customer which have not been approved by Smartly.io in writing; (b) use of the Service contrary to these Terms of Use, or the written instructions given by Smartly.io; (c) use of the Service contrary to the Online Advertising Platform terms and policies; (d) Customer’s delays, omissions or instructions; (e) inaccurate, incomplete or insufficient information provided by Customer; (f) disturbances or interruptions in the Service due to data network; or (g) a service or product not supplied by Smartly.io or other similar reason outside of the Service or Smartly.io’s reasonable control.

6.4 Customer acknowledges that the use of the Service is dependent on the applicable Online Advertising Platforms in which Customer's advertising campaigns are carried out and that the actions of Customer and third-party solution providers may also affect the use of the Service. Customer is responsible for complying, and for ensuring that the Customer Content complies, with applicable laws and any agreements, terms, policies and guidelines of Online Advertising Platforms and third-party solutions Customer uses in connection with the Service, as well as for ensuring that it has adequate authority to grant Smartly.io the rights needed for the proper fulfillment of this Agreement. Smartly.io does not accept any liability for the operation and function of any Customer’s or third-party’s products, services, actions or omissions, including but not limited to, those of third-party solution providers, the Online Advertising Platforms or any third party that operates in or with the applicable Online Advertising Platform.

6.5 EXCEPT TO THE EXTENT PROHIBITED BY MANDATORY  APPLICABLE LAW AND EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS SECTION 6, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND SMARTLY.IO EXPRESSLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, CORRECTNESS AND FITNESS FOR A PARTICULAR PURPOSE.

7. IPR Indemnification and Limitation of Liability

7.1 Smartly.io will defend or settle any third party claim made against Customer, and if applicable, its Affiliates, and each such party’s officers, directors, and employees (individually and collectively “Customer Parties”) alleging that the Smartly.io Software or Smartly.io-owned part of the Deliverables infringe a third party intellectual property right. Smartly.io shall indemnify Customer for such claim by paying the costs and reasonable attorneys’ fees Customer Parties incur as a result of such claim, including damages awarded to such third party in a judgment awarded against Customer Parties or settlement approved by Smartly.io. If such a claim is made or, in Smartly.io's opinion, is likely to be made, then Smartly.io may, at its sole discretion modify the Service or, if not commercially reasonable for Smartly.io to modify the Service, terminate the Service and/or the Agreement with immediate effect. Smartly.io shall have no obligations under this Section 7.1 to the extent any infringement claim arises from or is related to: (a) Customer’s combination of the Service or Smartly.io Software with other software or services or Customer’s modification to any part of the Service; (b) Customer’s violation of Section 4.2; (c) Customer’s instructions; or (d) Customer Content. 

7.2 Customer shall defend or settle any claim made against Smartly.io, and if applicable, its licensors, and Affiliates, and each such party’s officers, directors, and employees (individually and collectively “Smartly.io Parties”), if such claim arises out of or is related to: (a) Customer’s breach of Section 4.2 of these Terms of Use; (b) Customer’s instructions; or (c) Customer Content. Customer shall indemnify Smartly.io Parties for such claim by paying the costs and reasonable attorneys’ fees incurred by the foregoing persons or parties as a result of such claim, including damages awarded to such third party in a judgment finally awarded against Smartly.io Parties or settlement approved by Customer.

7.3 The indemnified Party agrees (i) to promptly notify the indemnifying Party in writing of any such claim, (ii) to allow the indemnifying Party to have sole control over the defence, litigation and/or settlement of any such claim and (iii) to reasonably cooperate with the indemnifying Party in the investigation, defence and settlement thereof. The indemnifying Party shall not settle any claim on behalf of the indemnified Party without the indemnified Party’s prior written consent if the settlement requires any admission of fault by the indemnified Party. 

7.4 The foregoing remedies constitute the indemnified Party’s sole and exclusive remedies and the indemnifying Party’s entire liability with respect to third party infringement claims.

7.5 NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES RELATING TO SUCH EXCLUDED DAMAGES) IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT, OR FOR ANY LOSS OF DATA, LOST BUSINESS OPPORTUNITIES OR LOST PROFITS, EVEN IF SUCH PARTY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

7.6 EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING OUT OF OR IN CONNECTION WITH BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY MAY NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF FEES RECEIVED BY SMARTLY.IO FROM CUSTOMER FOR THE APPLICABLE SUBSCRIPTION DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

7.7 THE LIMITATIONS SET FORTH ABOVE IN SECTION 7.5 AND 7.6 SHALL NOT APPLY TO (i) A VIOLATION OF SECTION 4.2; OR (ii) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 7.1 AND 7.2.

8. Confidentiality

8.1 Each Party (“Receiving Party”) shall keep in confidence all material and information received from the other Party (“Disclosing Party”) that is marked as confidential or which should be understood by a reasonable business person to be confidential (“Confidential Information”), and may not disclose such Confidential Information to any third party without the prior written consent of the Disclosing Party, except that when necessary for the performance of the Service Smartly.io can disclose the Confidential Information of Customer to (i) its Affiliates provided the Affiliates have committed to confidentiality, and (ii) to an Online Advertising Platform or any other third-party provider used by Customer in connection with the Service. Each Party commits not to use Confidential Information of the Disclosing Party for any purpose other than for the proper fulfilment of the Agreement. The confidentiality and non-use obligations shall not, however, be applied to material and information which: (a) is now or thereafter becomes generally available or otherwise public; (b) the Receiving Party has received from a third party without any obligation of confidentiality; (c) was in the possession of the Receiving Party prior to receipt of the same from the Disclosing Party without any obligation of confidentiality related thereto or restriction as to use or disclosure, or (d) is independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party, in each case as established by documentary evidence. Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent required by applicable law, regulation, court order or lawful request of a governmental body.

8.2 Notwithstanding anything to the contrary, Smartly.io may collect, use, and analyse Customer’s advertising spend data, settings, trends, performance data, and other information (such as product usage, device metadata, and campaign/creative characteristics) as well as material derived from the foregoing. Smartly.io may also use this information to create anonymized and/or aggregated data. These activities will be only for the purposes of market research and analysis, quality control, product and service development/improvement and to provide support and maintenance services. However, Smartly.io may only disclose such information if it is in an anonymized form and not attributable to any individual or company.

8.3 Receiving Party shall promptly upon termination of the Agreement cease using the Disclosing Party’s Confidential Information and shall no longer have an obligation to store Disclosing Party’s Confidential Information. Disclosing Party has the right at any time to request the Receiving Party to delete the Disclosing Party’s Confidential Information, and the Receiving Party shall comply with such request without undue delay. Each Party shall, however, be entitled to retain archival copies as required by law or regulation and Smartly.io may continue the use of information as permitted under Section 8.2.

8.4 Notwithstanding any termination or expiration of this Agreement, the confidentiality obligations agreed in this Section 8 will remain in force with respect to any Confidential Information disclosed during the term of this Agreement for a period of 3 years from the disclosure of each respective piece of Confidential Information except that the foregoing time limit shall not apply to trade secrets for which the obligations agreed in this Section 8 shall continue as long as the information qualifies as trade secret under the governing law of this Agreement.

9. Term and Termination

9.1 Unless otherwise expressly stated to the contrary in an Order Form: (i) Customer commits to a fixed initial Subscription term of the length set forth in the Order Form for each Subscription (“Initial Term”); (ii) if the Initial Term is not specified in the Order Form, the Initial Term shall be 12 months; and (iii) after the expiry of the Initial Term each fixed Subscription term shall automatically renew for successive fixed periods of the same length as the Initial Term (each referred to as a “Renewal Term”) unless at least 90 days prior to the end of the Initial Term or then-current Renewal Term either Party gives the other Party a written notice expressly specifying the Subscription it intends to terminate effective at the end of the Initial Term or then-current Renewal Term. 

9.2 Smartly.io may terminate (i) the Agreement or (ii) an independent Subscription, effective at the end of the Initial Term or then-current Renewal Term for convenience upon 30 days prior written notice. 

9.3 Either Party may terminate (i) the Agreement or (ii) an independent Subscription with immediate effect, if the other Party is in material breach of its obligations hereunder and fails to remedy such breach within 30 days after written notice is given by the non-breaching Party. Notice of the material breach needs to be provided to the breaching Party within 90 days from the affected Party becoming aware of such breach. 

9.4 In case of termination of a Subscription (i) Customer shall cease the access to and use of the Service under that Subscription, (ii) Customer shall destroy copies of Smartly.io’s material in its possession (and upon Smartly.io’s request shall confirm in writing it has complied with said obligation), (iii) Customer shall disconnect the Ad Accounts connected for said Subscription and (iv) Smartly.io shall end charging of Customer for said Subscription. Once all Subscriptions have ended, the Agreement terminates. 

9.5 Upon termination for whatever reason, no paid fees will be returned by Smartly.io, and the Customer is obliged to pay the fees past due at the effective date of such termination. Notwithstanding the foregoing, where the Agreement is terminated by Smartly.io under Section 9.2 or by Customer under Section 9.3, Customer is entitled to request a pro-rata refund of any prepaid Subscription fees for the terminated Subscription covering the unused period following the effective date of termination.

9.6 In the event that a Subscription’s fees are not fully paid when due or the obligations set out in this Agreement are not otherwise followed by Customer, Smartly.io reserves the right to suspend Customer’s access to the affected Subscription with immediate effect.

10. Processing of Personal Data

In the event that (i) Smartly.io in connection with the Service processes Personal Data as a processor on behalf of Customer and (ii) the applicable data protection legislation requires Parties to put in place a data processing agreement (DPA) to govern such data processing by Smartly.io, the DPA available at smartly.io/data-processing-agreement shall apply and forms an integral part of the Agreement.

11. Applicable Law and Dispute Resolution

11.1 The applicable law and the dispute resolution process shall be determined based on the contracting Smartly.io entity as follows:

(a) Smartly.io Solutions Oy:

The Agreement will be governed by the laws of Finland excluding its provisions relating to the choice of law.

Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of the arbitration shall be Helsinki, Finland. The language of the arbitration shall be English. 

Existence of arbitral proceedings, the proceedings, any material presented or drafted in relation to the proceedings and the verdict shall be considered as Confidential Information under this Agreement.

(b) Smartly.io Solutions Inc.:

The Agreement will be governed by the laws of the State of New York as such laws apply to contracts between New York residents performed entirely within New York, without regard to conflict of law provisions.

Any action or proceeding arising from or relating to this Agreement may only be brought in the State and Federal courts located in New York City, New York and each Party irrevocably submits to such exclusive jurisdiction and venue. Each Party irrevocably waives its rights to trial by jury in any action or proceeding arising out of or relating to this Agreement or the transactions relating to its subject matter. 

11.2 Notwithstanding the foregoing, either Party retains the right to initiate legal proceedings in any court of competent jurisdiction for the sole purpose of collecting any unpaid Service fee amounts owed under this Agreement. Such legal proceedings for collection of late payments shall not be considered a waiver of the Parties' agreement to arbitrate other disputes under this section, as applicable.

12. General Provisions

12.1 Smartly.io is entitled to change the working methods, hardware, data communication links, software, user interface or other system components used in the Service. Smartly.io may also use subcontractors provided that Smartly.io shall remain liable towards Customer for any acts or omissions of its subcontractors as for its own.

12.2 Smartly.io is entitled to use Customer's name and logo as a reference for advertising purposes.

12.3 Notices and consents may be delivered by email to the email address on record with the sending Party unless otherwise expressly stated.

12.4 Neither Party may assign this Agreement without the other Party’s prior written consent. The Parties shall, however, be entitled to assign this Agreement in whole or in part without such consent to an Affiliate or in connection with a merger or acquisition process including but not limited to the transfer of business and/or any other corporate transaction or restructuring.

12.5 No provision or right under this Agreement shall be considered waived without an explicit written statement or agreement signed by the waiving Party in each specific case. A waiver of any term, provision or right under this Agreement shall not be construed as a waiver of any other term, provision or right hereunder.

12.6 Neither Party shall be liable to the other for any delay or failure to perform any of its obligations (except for Customer’s payment obligations) under this Agreement due to circumstances beyond its reasonable control, such as fire, flood, storm, volcanic eruption, war, embargo, strike, riot, terrorism, accident, breakdown of plant or machinery, malicious damage, order by government or authority or the intervention of any governmental authority or any other events or circumstances beyond the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing (a “Force Majeure”). In such an event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure. The delayed Party’s failure or delay in performance shall be excused for the duration of the Force Majeure. 

12.7 The Agreement constitutes the entire agreement with respect to its subject matter and replaces and supersedes any prior written and/or verbal communications. Any Customer terms and conditions, purchase orders, policies and other documents provided by Customer to Smartly.io shall not become part of this Agreement or be binding upon Smartly.io without a written agreement signed by an authorized representative of Smartly.io explicitly incorporating those terms into the Order Form. Nothing in this Agreement shall be deemed or implied to create a partnership, agency or joint venture of any kind between the Parties.

12.8 If any provision herein is held to be invalid or unenforceable to any extent, then such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent.

12.9 Notwithstanding any termination or expiry of this Agreement, those provisions which by their nature are intended to continue in effect, shall survive and remain binding upon the Parties. These provisions include, but are not limited to, the Sections concerning Fees, Confidentiality, Intellectual Property, Indemnification, Limitation of Liability, Governing Law, and Dispute Resolution.

12.10 Special Terms Youtube Ads and Google Ads Services

These terms and conditions shall apply when Customer subscribes to Google Ads and YouTube based Services.

Customer acknowledges and by subscribing for Google Ads and YouTube based Services agrees being bound by the YouTube's Terms of Service (https://www.youtube.com/t/terms). Customer acknowledges and agrees that Smartly.io gives no warranties of any kind and assumes no responsibilities or liabilities of any kind with regard to YouTube’s products or services, regardless of the foregoing reference to the YouTube's Terms of Service.