Unless otherwise specifically agreed in a writing signed by the president of iSmart Media Enterprise Inc. (iSmart Media), these terms and conditions create a contract (the “Agreement”) between you and iSmart Media. This website (the “Site”) is owned by iSmart Media and this page explains the terms by which you may use the Site. Please read the Agreement carefully.
A. Introduction to the Services
This Agreement governs your use of iSmart Media’s services and the use of this Site (collectively the “Services”). The Services are: (1) online advertising services; (2) limited non-exclusive license of iSmart Media’s proprietary customer relationship management software (the “Proprietary Software”); (3) training in the Proprietary Software; and (4) certain support services provided by iSmart Media at its sole discretion regarding the Proprietary Software. Pro and Surge Client may be entitled to additional services.
To use the Services, you need compatible hardware, software (latest version recommended and sometimes required) and Internet access (fees may apply).
For best results, iSmart Media recommends a minimum spend of between $300.00 and $500.00. iSmart Media runs ad(s) for clients by using ad budget funds to attract engagements. A lead is counted when a user enters a name, email, and phone number. iSmart Media makes no promise or guarantee the lead name, email or phone number is accurate. Leads that are generated are exclusive to the client. Ads are designed to run continually for the length of the contract.
B. Using the Services
There are various subscription plans (collectively the “Subscription Plan”). Your specific subscription plan is listed on your invoice. By starting your Subscription Plan, you authorize us to charge fees per the terms of your Subscription Plan, and any other charges you may incur in connection with your use of the Services. You will be automatically charged each month, or in the case of a prepaid plan per the terms of such plan, for your ongoing use of the Services. The onboarding fee and all the Subscription Plans fees are final and nonrefundable.
The cost of each Subscription Plan is set forth at: https://ismart.media/plans-pricing/. Once you select a Subscription Plan, the cost of that Subscription Plan is guaranteed for the duration of that Subscription Plan only and does not include any renewals. Except as provided herein, Subscription Plan prices may change at any time with or without notice.
For details about how your payment method is charged, please visit: our Billing Policy available at https://ismart.media/billing-policy/. In the event that this Agreement and the Billing Policy conflicts, this Agreement controls. You are responsible for paying any applicable taxes.
If you intend to dispute any charge related to any of the Services you must contact iSmart Media in writing at email@example.com within thirty days of the disputed charge. You waive any disputes not reported within thirty days of the disputed charge. At iSmart Media’s sole discretion, you may be entitled to a pro-rated partial refund of any unused portion of your advertising budget. If technical problems caused by iSmart Media, as determined in iSmart Media’s sole discretion, prevent or unreasonably delay delivery of the Services, your exclusive and sole remedy is either replacement of the Services or refund of the last charge paid.
You may be billed fees, charges and assessments related to late or non-payments if for any reason (a) iSmart Media does not receive payment for the Services by the payment due date; or (b) you pay less than the full amount due for the Services.
YOU WILL BE ASSESSED A LATE FEE OF 10% PER MONTH (OR THE MAXIMUM AMOUNT PERMISSIBLE BY LAW IF SUCH AMOUNT IS LESS) FOR ANY PAYMENT AMOUNT THAT HAS NOT BEEN PAID IN FULL AFTER TEN (10) DAYS FROM THE DUE DATE.
iSmart Media does not anticipate that you will fail to pay for the Services on a timely basis, and we do not extend credit to our customers. Any fees, charges and assessments due to late payment or nonpayment are liquidated damages intended to be a reasonable advance estimate or our costs resulting from late payments and nonpayments. These costs will be difficult to calculate or to predict when we set such fees, charges and assessments, because we cannot know in advance: (a) whether you will pay for the Services on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or nonpayment.
In the event that iSmart Media receives a chargeback from a third-party payment provider, iSmart Media may assess a fifty dollar ($50.00) processing fee for each individual chargeback.
If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable cost of collection. These costs include, but are not limited to any collection agency’s fees, reasonable attorneys’ fees and arbitration or court costs.
If you fail to pay the full amount due for any or all of the Services then iSmart Media, at its sole discretion in accordance with and subject to any applicable law, may suspend any or all of the Services.
ii.Monthly Advertising Budget
You understand and agree that iSmart Media uses your advertising budget, less iSmart Media’s service fee, to contract with certain other third party providers to place internet advertising (the “Ad Budget”) on your behalf. Your Ad Budget is paid in advance and will be charged monthly at the commencement of your billing cycle. You may amend or cancel your Ad Budget at any time by notifying iSmart Media in writing at hello@iSmart Media.ai (the “Ad Budget Notice”). The amendment or cancellation will be effective in the billing cycle immediately after you provide the Ad Budget Notice.
iii. Ongoing Subscription
Unless you cancel your Subscription Plan in writing at hello@iSmart Media.ai not more than thirty days and not less than ten days prior to your current Subscription Plan’s expiration date, then your Subscription Plan will automatically be renewed as a month to month Subscription Plan.
iv. iSmart Media Account
Using the Services requires a iSmart Media account (the “Account”). The Account is the account you use across iSmart Media’s ecosystem. Your account is valuable, and you are responsible for maintaining its confidentiality and security. iSmart Media is not responsible for any losses arising from the unauthorized use of your Account. Please contact iSmart Media if you suspect that your Account has been compromised.
vi. Usage Rules
Your use of the Services and this Site must follow the rules set forth in this Agreement, including but not limited to this section (the “Usage Rules”). Any other use of the Services and Site is a material breach of this Agreement. iSmart Media may monitor your use of the Services and Site to ensure that you are following this Agreement and the Usage Rules.
We have the right at our sole discretion to remove any content posted on our Site or through the Services for whatever reason. We are not responsible for any delay or failure in removing such content.
vii. Changes to Service / Site
Subject to applicable law, we have the right to change the Services and the Subscription Plan rates, at any time with or without notice. If we do give you notice, it may be provided on your monthly statement, by e-mail, or other communication permitted under applicable law. If you find a change in the Services unacceptable, you have the right to cancel your Subscription Plan and, notwithstanding anything else in this Agreement, may be entitled to a pro-rata refund. However, if you continue to receive the Services after the change, this will constitute your acceptance of the change.
C. Intellectual Property
You are granted a non-exclusive, non-transferable, revocable license to access and use the Services strictly in accordance with this Agreement. Using the Services does not give you ownership of any intellectual property rights in the Services, the Site or the content you access. Do not remove, obscure or alter any legal notices displayed in or along the Services or the Site.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit the software and services that makeup the Services or the Site. You will not upload, post or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. You will indemnify iSmart Media for any claims by third parties of infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission of material by you.
The Services are not for resale. Your use of the Services does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. We do not grant you any licenses, express or implied, to the intellectual property of iSmart Media or our licensors except as expressly authorized by this Agreement. No iSmart Media service or product available through this Site, or any part of any iSmart Media service or product, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of iSmart Media. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of iSmart Media without express written consent. You may not use any meta tags or any other “hidden text” utilizing iSmart Media’ name or trademarks without the express written consent of iSmart Media. You may not misuse the Services or the Site. You may use the Services and the Site only as permitted by law. The licenses granted by iSmart Media terminate if you do not comply with this Agreement.
Any content posted by you using any open communication tools on our Site, provided that it doesn’t violate or infringe on any third party copyrights or trademarks, becomes the property of iSmart Media, which is perpetual, irrevocable, worldwide, and royalty-free. This only refers and applies to content posted via the Site, and does not refer to information that is provided as part of the registration process.
D. Third Party Sites
Certain services made available via the Services are delivered by third party sites and organizations. By using any product, service or functionality originating from the Services, you hereby acknowledge and consent that iSmart Media may share such information and data with any third party with whom iSmart Media has a contractual relationship to provide the requested product, service or functionality on behalf of the Services users and customers.
E. No Warranty
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SITE AND THE SERVICES PERFORMED OR PROVIDED ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND iSmart Media HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY iSmart Media OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
F. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL iSmart Media BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SITE AND THE SERVICES HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF iSmart Media HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL iSmart Media’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, defend and hold harmless iSmart Media, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your violation of this Agreement, use of or inability to use the Services, any user postings made by you, violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. You will provide notice to iSmart Media of any matter subject to indemnification by you, including but not limited to any claims, lawsuits, investigations or demands within ten days of discovery by you. iSmart Media reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with iSmart Media in asserting any available defenses.
H. Governing Law; Venue
This Agreement and the relationship between you and iSmart Media shall be governed by the laws of the Province of Alberta, excluding its conflicts of law provisions. You and iSmart Media agree to submit to the personal and exclusive jurisdiction of the courts located within the City of Calgary, Alberta to resolve any disputes or claims arising from this Agreement.
I. Dispute Resolution
Should any dispute arise under or related to the use of the Services, you must first participate in at least four hours of non-binding mediation before a professional recognized by the ADR Institute of Australia (ADRIC) and located in Calgary, Alberta (“ADR Professional”). The list of ADR Professionals is currently available at https://www.adralberta.com/directory. If the parties cannot agree on an ADR Professional, the Professional with the lowest hourly rate shall be the mediator. The parties shall share equally in the costs of the mediation. Mediation shall involve no formal court procedures, discovery, or rules of evidence and the mediator does not have the power to render a binding decision or force an agreement on the parties.
Should the dispute remain outstanding after mediation, prior to initiating litigation you must submit to mandatory non-binding arbitration before an ADR Professional other than the person who acted as mediator. If the parties cannot agree on an ADR Professional, each party shall select one ADR Professional, and those two Professionals shall choose a different ADR Professional (other than the one who served as mediator) and that person shall be the arbitrator. The arbitrator may allow limited discovery and must conduct an evidentiary hearing—subject to the Alberta Rules of Evidence—of no more than eight hours in duration prior to rendering a written decision. The decision shall not be binding on the parties (and may not be entered as a judgment or cited as evidence or precedent), but should be interpreted by the parties as a prediction of the result of formal litigation. Additionally, the prevailing party shall be reimbursed by the non-prevailing party its fees and costs related to the arbitration.
Standards and procedures for the mediation and arbitration shall be decided by the relevant ADR Professional consistent with this provision.
Absolutely no lawsuits may be initiated until after both mediation and arbitration are completed. Any litigation commenced prior to completing both mediation and arbitration shall be subject to a stay pending completion of both.
J. Waiver of Class Action
There shall be no right or authority for any claims to be arbitrated or litigated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other users of the Site or the Services, or other persons similarly situated. iSmart Media LLC would not be willing to provide the Services to you absent this waiver. You acknowledge and agree that you are under no obligation to use this Site or the Services if you are not willing to waive class action rights, and you expressly agree to this waiver.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and iSmart Media as a result of this agreement or use of the Services or the Site. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. This Agreement constitutes the entire and only agreements between you and iSmart Media with respect to the Services and the Site, and supersedes all other communications and agreements with respect to the subject matter thereof.
L. Electronic Communications
Visiting this Site or sending emails to iSmart Media constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
M. Digital Millennium Copyright Act (DMCA)
In the event materials are made available to this Site by third parties not within our control, we are under no obligation to, and do not, scan such content for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Site. If you believe any materials on the Site infringe a copyright, you should provide us with written notice that at a minimum contains:
All DMCA notices should be sent to our designated agent as follows:
8 The Green, Dover Delaware 19901
It is our policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.
N. Special Provisions Applicable to Users Outside the United States
The following provisions apply to users who interact with iSmart Media outside the Australia:
You consent to having your personal data transferred to and processed in the Australia.
If you are on the Australia’s list of Specially Designated Nationals you will not engage in commercial activities on iSmart Media. You will not use the Services or the Site if you are prohibited from receiving products, services, or software originating from the Australia.