SMN Terms & Conditions
These terms and conditions to the SMN Order Form entered into by and between Yieldmo, Inc. and Company, are hereinafter referred to as the “T&Cs”. These T&Cs, together with the Order Form and any insertion orders executed by the parties pursuant to and referencing the Order Form, are referred to as the “Agreement”. In the event of any conflict between the terms of these T&Cs and the terms of an Order Form, the terms of the Order Form shall prevail.
1. Definitions.
In addition to the terms defined within the body of the Order Form, the following definitions shall apply to this Agreement:
(a) “Ad” means an online advertisement and the Content contained therein.
(b) “Advertising Inventory” means advertising opportunities that are made available for purchase on Media.
(c) “Advertiser” means an individual or entity whose products or services are advertised in an Ad, or such individual or entity’s agency or representative. The Advertiser for a given advertising campaign may be a Brand Partner of Company or a third party sourced by Company.
(d) “Affiliate” means an entity that, directly or indirectly, is Controlled by, or is under common Control with, a party. For the purposes of this definition, “Control” means: (i) direct or indirect control of at least 50% of the voting rights required to elect a majority of its directors; (ii) the power directly or indirectly to (a) elect a majority of its directors or (b) cause the direction of its management, whether through share ownership, contract or otherwise; or (iii) the direct or indirect ownership or control of all or substantially all of its assets reasonably required for the performance of this Agreement.
(e) “Authorized User” means employees, officers, consultants, or agents of Company who are designated to use or given access to the Services by Yieldmo or Company.
(f) “Tag” means code provided by Yieldmo to Company in order to display, measure or analyze Ads on Media.
(g) “Content” means any and all creative materials contained in an Ad or Media, including, without limitation, images, videos, links, advertising materials, logos, graphics, text, data, music and audio, and any content to which the uploaded material is linked.
(h) “Documentation” means all specifications, user manuals, and other technical documentation relating to the Services.
(i) “Intellectual Property Rights” means any and all now known or hereafter existing: (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark or service mark rights; (iii) trade secret rights; (iv) patents, patent rights, and industrial property rights; (v) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (vi) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
(j) “Media” means any website, mobile website, mobile application, connected TV device, channel, platform or other media that is owned or operated by Company, or on which Company (or Yieldmo on Company’s behalf) is otherwise authorized to sell, optimize, manage, display, measure or analyze Ads. If the Media is owned and operated by a third party, such third party is referred to as a “Publisher”.
(k) “Prohibited Content” means content or material that violates any applicable laws or regulations or any rights of any third parties, infringes upon or misappropriates any copyright, patent, trademark, trade dress, trade secret, music, image or other proprietary or property right or any data protection law, or that is unlawful, fraudulent, threatening, defamatory, obscene, pornographic, profane, deceptive, libelous, hate-promoting, violence-promoting or that encourages illegal gambling or other illegal behavior, or that constitutes or promotes discrimination on the basis of race, gender, religion, or sexual orientation, or that promotes or constitutes false advertising, unfair competition, invasion of privacy or publicity rights, or that contains any viruses, worms, Trojan horses, malware, spyware or other contaminants.
(l) “Proprietary Elements” means the Services, the Documentation, the Tags, and any and all of Yieldmo’s proprietary technologies, user interfaces, software, advertising formats, know-how, products, processes, algorithms, designs, and other tangible or intangible material or information utilized by Yieldmo or made available to Company by Yieldmo in providing the Services, together with all Intellectual Property Rights therein.
(m) “Reports” means the data, reports, analyses and statistics that are generated from the Services and made available to Company by Yieldmo under this Agreement, whether provided via manual or automated means.
(n) “User” means visitors and/or users of the Media who are exposed to or interact with Ads.
(o) “Trademarks” means the logos, service marks and trademarks of a party.
2. Services.
(a) Program Scope. For the avoidance of doubt, the term “Program” refers to the integrated SMN developed under this Agreement in its entirety, and does not apply to isolated, standalone, or piecemeal products, activations, sponsorship assets, services, pilots, or engagements that fall outside such SMN framework.
(b) Go-to-Market and Remits. The parties shall operate two parallel go-to-market lanes that work in concert, as further described in Exhibit A:
(c) Services Description. The Services include technology provisioning by Yieldmo (including Ymax.ai and SportsMax), campaign scoping, activation, optimization, creative services, audience extension, reporting, and revenue operations support, with each party playing a distinct role as further described in Exhibit A to the Order Form.
3. Publicity.
(a) General Publicity Rights. Subject to each party’s prior written approval in every instance (email sufficing), with such approval not to be unreasonably withheld, conditioned, or delayed, each party grants one another non-exclusive permission to reference each party’s participation in the Program and to use each party’s name, logos, Trademarks and imagery in connection with external-facing material developed to publicize the Program, in all forms of media and materials.
(b) Joint Planning and Coordination of Publicity. All public communications concerning jointly planned events, press releases, case studies, and other marketing materials in connection with such events, shall be jointly planned, coordinated, and subject to mutual written approval by the parties. Any related costs shall be mutually discussed and pre-approved by both parties.
4. Proprietary Elements Access; Restrictions; Ownership.
(a) Access. Company may use those of the Proprietary Elements to which Yieldmo provides the Company with access, solely in accordance with this Agreement and the Documentation, to the extent necessary for the Company’s receipt and use of the Services.
(b) Restrictions. Company will not: (i) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of any Proprietary Elements or portions thereof; (ii) copy, modify, publicly display, or create derivative works from the Proprietary Elements or portions thereof, or use same to develop a competitive product; (iii) sell, lease, or make the Proprietary Elements or portions thereof available to any third party; (iv) tamper with or use any workaround to interfere with or harm the proper working or security measures of the Proprietary Elements; (v) use the Proprietary Elements in a manner that violates any rights of other users or third parties, or in conjunction with any Ad or Media with respect to which it is not legally authorized to do so, or in connection with any Prohibited Content, or otherwise in any manner not expressly permitted by this Agreement; or (vi) use the Proprietary Elements to transmit destructive items such as viruses, worms or Trojan horses, or to perform data mining.
(c) Third-Party Components. From time to time, certain third-party components, sites, services, data, content or functionality may be made available in conjunction with the Services (“Third-Party Components”). Third-Party Components may be subject to their own, separate license agreements and/or terms of use with the applicable third parties. Yieldmo disclaims all liability in connection with Third-Party Components. Yieldmo does not guarantee compatibility or interoperability with any Third-Party Components, and any integration with Third-Party Components is provided “as-is” and “as available.”
(d) Ownership. Yieldmo is and shall remain the exclusive owner of all rights, title and interest in and to the Proprietary Elements, including all Intellectual Property Rights associated therewith and any enhancements thereto. If Company provides any feedback about the Proprietary Elements to Yieldmo, Yieldmo may freely use same without a duty of confidentiality nor any obligation of compensation to Company. Company is and shall remain the owner of all Intellectual Property Rights that it holds in Company’ Content and Marks.
(e) Authorized Users. Where Yieldmo provides access credentials for Company to access any Proprietary Elements, the Company will keep its credentials secure and shall be solely responsible for all activity occurring under such credentials. Company shall implement and maintain reasonable control procedures and security measures to ensure that all Authorized Users’ credentials are kept confidential and to prevent unauthorized users from accessing same. Company will promptly notify Yieldmo if the Company becomes aware of any unauthorized access to or use of its credentials. Yieldmo may temporarily suspend access to the Proprietary Elements in respect of any Authorized User where it believes that such access poses a threat to the Proprietary Elements or is not in compliance with this Agreement until the issue is resolved to Yieldmo’s reasonable satisfaction. Company shall be responsible for ensuring that all Authorized Users comply with Company’s obligations under this Agreement.
5. Payment.
(a) Payment Procedure. As described in the Order Form.
(b) Taxes. All amounts payable hereunder exclude all applicable sales, use and other taxes. Other than taxes based on Yieldmo’s net income, the applicable Advertiser or the Company (as the case may be) will be responsible for payment of all taxes related to this Agreement and any related penalties and interest arising from the non-payment thereof.
(c) Late Payments. Company will be responsible for the reasonable collection costs, including without limitation attorneys’ fees and collection agency fees, that Yieldmo incurs in its efforts to collect overdue amounts. Yieldmo will be entitled to withhold performance and discontinue providing the Services until all amounts due are paid in full.
6. Term; Termination; Effect of Termination.
(a) Term. The “Initial Term” and any “Renewal Term” are as defined in the body of the Order Form.
(b) Termination. This Agreement may be earlier terminated by either party: (i) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach; or (ii) immediately upon written notice, if the other party becomes bankrupt, insolvent, fails to pay its debts as they become due, or otherwise ceases to conduct business in the ordinary course.
(c) Effect of Termination. Upon any expiration or termination of this Agreement: (i) the Company shall cease using the Proprietary Elements; (ii) each party shall cease using the Marks and other intellectual property of the other party; (iii) Company shall remit to Yieldmo any amounts owed for campaigns completed or in-flight prior to termination within forty-five (45) days of termination; (iv) the terms of this Agreement that are by their nature intended to survive shall survive termination or expiration, including without limitation Sections 1, 4(b), 4(c), 4(d), 5 (to the extent of outstanding payment obligations), 6(c), 7, 8, 9(b), 10, 11 and 12.
7. Confidentiality.
(a) Each party (“Recipient”), may receive or have access to information about the other party (“Discloser”). “Confidential Information” means information about Discloser’s technology, systems, clients, business activities, financial information and trade secrets, and all other information that is or should reasonably be understood to be confidential or proprietary to Discloser. Yieldmo’s pricing and information about the operation of the Services and Proprietary Elements are Yieldmo’s Confidential Information, and the terms of this Agreement are the Confidential Information of both parties. Recipient agrees: (i) not to disclose Confidential Information to any third parties except as expressly permitted by this Agreement, (ii) to protect Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event using less than a reasonable standard of care; and (iii) to limit access to Confidential Information to its authorized employees, agents, contractors and advisors who need to know such information in connection with the performance of this Agreement and who are bound by confidentiality obligations no less restrictive than those contained herein, and Recipient will remain liable and responsible for such persons’ and entities’ compliance with this Section. Confidential Information will not include information that: (a) is or becomes publicly available through no act or omission of Recipient; (b) is disclosed to Recipient by a third party having no obligation of confidentiality with respect thereto; (c) is disclosed with Discloser’s written consent; (d) is independently developed by Recipient without use of or reference to Confidential Information; or (e) is required to be disclosed by Recipient by applicable law or legal process, provided that unless Recipient is legally restricted, it will notify Discloser prior to such disclosure and will reasonably cooperate with Discloser, at Discloser’s request and expense, to seek a protective order.
8. Privacy.
(a) Each party agrees that it will: (i) adhere to all “Rules”, defined as all applicable privacy, electronic communications and data protection laws, rules, regulations, and regulatory guidelines, as well as the Self-Regulatory Principles and Codes of Conduct of the Digital Advertising Alliance (DAA), as each may be amended from time to time; and (ii) conspicuously post and abide by a privacy policy linked from its website’s home page that discloses its practices regarding the collection, use and sharing of data and that complies with all applicable Rules.
(b) The Company agrees it will not use any user-related data provided or made available by Yieldmo under this Agreement to identify or re-identify an individual, either alone or in combination with other data, or merge such data with any information that directly identifies an individual such as name or address, or enable or permit any third party to do any of the foregoing.
(c) Each party will comply with the Data Protection Addendum located at https://yieldmo.com/SMN-DPA/ (the “DPA”). Yieldmo may modify the DPA from time to time by providing thirty (30) days prior written notice to the Company. If the Company objects to any such modification during such period, the parties shall make commercially reasonable efforts to agree upon a resolution within such period of time. If the Company continues to use the Services beyond such thirty (30) day period, the Company shall be deemed to have accepted the modifications.
9. Representations and Warranties; Indemnification.
(a) Representations and Warranties. Each party represents and warrants that: (i) it has full power and authority to enter into this Agreement, to grant the rights granted herein and to perform its obligations herein, and (ii) it will comply with all applicable laws and regulations in its performance of this Agreement. The Company represents and warrants that: (iii) it has and will maintain during the Term all necessary rights and clearances to allow Yieldmo to use Company’s Marks and facilitate display of the Ads on the Media as contemplated by this Agreement; (iv) it will not use any Proprietary Elements in connection with any Content, Ads or Media that contain or promote Prohibited Content.
(b) Indemnification. Each party shall indemnify, defend and hold the other party and its officers, directors, agents and employees harmless from and against any and all third-party claims, actions, losses, liabilities, damages, costs and expenses, including without limitation reasonable attorneys’ fees (collectively, “Claims”), arising out of or relating to a breach by the indemnifying party of its representations, warranties and/or obligations in this Agreement. Yieldmo will defend, indemnify and hold Company and its officers, directors, agents and employees harmless from any and all Claims, resulting from infringement of any third-party United States Intellectual Property Right arising out of the Company’ permitted use of the Proprietary Elements. The foregoing indemnification obligations are conditioned upon the indemnified party promptly notifying the indemnifying party in writing of a Claim, reasonably cooperating with the indemnifying party at the indemnifying party’s expense in the defense of such Claim, and giving the indemnifying party the right to control the defense and settlement of such Claim, except that the indemnifying party will not enter into any settlement that affects the indemnified party’s rights or interests without the indemnified party’s prior written approval, not to be unreasonably withheld or delayed.
10. Disclaimer; Limitation of Liability.
(a) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY DISCLAIMS, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPRIETARY ELEMENTS ARE MADE AVAILABLE “AS IS” AND WITHOUT ANY OTHER WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. YIELDMO DOES NOT REPRESENT THAT THE PROPRIETARY ELEMENTS OR THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. THIS DISCLAIMER SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Limitation of Liability. YIELDMO WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUES OR LOSS OF DATA, WHETHER UNDER TORT, CONTRACT OR OTHER THEORY OF RECOVERY, EVEN IF IT WAS OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL YIELDMO’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE TO COMPANY BY YIELDMO UNDER THE APPLICABLE ORDER FORM DURING THE 12 MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
11. Choice of Law and Jurisdiction. This Agreement is governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. The parties agree to the personal and exclusive jurisdiction and venue of the courts located within New York County, New York for all matters arising under or related to this Agreement.
12. Miscellaneous. There are no third-party beneficiaries to this Agreement. The captions in this Agreement are solely for convenience and shall not affect interpretation. This Agreement does not provide either party with the authority to bind the other party, and each party shall be and act as an independent contractor and not a partner, joint venturer, agent, employee or employer of the other. No waiver shall be constituted due to a party’s failure to exercise or enforce any of the provisions herein. If any part of this Agreement is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the remaining provisions. Neither party will be liable for delays or failures in performance, excluding payment obligations, resulting from causes beyond its reasonable control, including but not limited to, acts of God, labor disputes or disturbances, acts of war, governmental regulations or communication or utility failures. Neither party shall assign this Agreement without the other party’s prior written consent, which may not be unreasonably withheld or delayed, provided however, either party may, without the other’s consent, assign this Agreement to an Affiliate or in connection with a merger, reorganization, sale, or other transfer of all or substantially all of an assigning party’s assets or equity. Any assignment made in violation of this Agreement will be void. Notices shall be sent by overnight mail or email to the addresses set forth below. This Agreement may be executed in counterparts, each of which taken together constitute one and the same agreement. A signature delivered by digital or electronic format or file shall have the same force and effect as an original signature. This Agreement may not be modified other than by a writing signed by both parties. This Agreement shall be interpreted as if jointly drafted by both parties.
Version date: August 8, 2026