PARTNER TERMS AND CONDITIONS

 

Last published on: 27 April 2023

 

These Partner Terms and Conditions (these “Terms”) govern your participation in the Smarten Spaces Partner Program (the “Partner Program”) and are an agreement between the Smarten Spaces Contracting Party (also referred to as “Smarten Spaces,” “we,” “us,” or “our”) and you or the entity you represent (“Partner”, “Reseller”, “Consulting Partner”, “ISV” (as the case may be) or “you” or “your”). You agree to be bound by the terms of this Agreement, which consists of the General Partner Terms and the relevant Specific Partner Terms identified below as being applicable, depending on the type of Partner(s) you enrol as, when you tick the check box(es) during the Partner Program sign-up process.

 

These Terms take effect when you click the “Submit” button. By accepting these Terms, you represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into these Terms for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

 

These Terms, and where applicable, the Schedules, Partner Order Form, a Statement of Work (if applicable) and/or any other supplemental document (collectively “Supplemental Material”) and the incorporated terms therein shall form the entire agreement and complete understanding between Smarten Spaces and Partner on the subject matter (“Agreement”).

 

Country-specific provisions may apply in relation to your participation in the Smarten Spaces Partner Program, which may supplement, replace or vary the Terms.

 

Smarten Spaces may amend these Terms from time to time and you (defined below) agree to be bound by the revised Terms as and when they are amended. It is your sole responsibility to read the Terms regularly. By continuing to use the Services, you indicate that the Partner agrees to be bound by the Terms. You are encouraged to revisit the Terms regularly.

 

1. Smarten Spaces Partner Program

 

1.1 Joining the Smarten Spaces Partner Program. To join the Partner Program, you must submit the application through the Smarten Spaces website at URL: https://smartenspaces.com/partner-program/(“Partner Site”)and agree to the Smarten Spaces Partner Agreement by submitting the form at the Partner Site, and upon acceptance by Smarten Spaces into the Smarten Spaces Partner Program. Acceptance into the Program does not authorize you to resell or sublicense Smarten Spaces products and/or services.

1.2 Partner Program Administration. If you are accepted into the Program, you will be granted access to the Smarten Spaces Partner Portal (“Partner Portal”) where you can manage your participation in the Partner Program. We may use the information you provide to us through the Partner Portal (“Information”) to send you information about Smarten Spaces, the Partner Program, or other information that we think might be of interest to you. We handle your Information, and any other personal information we receive from your use of the Website or Partner Portal or otherwise collect during your participation in the Partner Program, in accordance with the Smarten Spaces Privacy Policy. Except to the extent Smarten Spaces is at fault, you are responsible for all activities that occur under the Partner Portal.

1.3 Partner Fees. Depending on the type of Partner you enrol into the Partner Program as, we shall bill Fees as described further below in these Terms. You acknowledge and agree that all fees paid to Smarten Spaces are non-refundable. You will pay Smarten Spaces the fees, including applicable taxes or similar fees, in accordance with the Smarten Spaces Partner Agreement.

1.4 Partner Conduct. You will at all times (a) conduct your activities in the Program in a professional and competent manner and, when applicable, (b) comply with all applicable laws, rules, and regulations, and orders of any governmental authority, and (c) not engage in any harmful, false, or deceptive acts or practices.

 

RESELLER PARTNER TERMS

 

The following terms and conditions shall apply where the Partner enrols to be a Reseller Partner.

 

1. Definitions

1.1 “End User Terms” shall mean the End User Terms of Use available at: http://smartenspaces.com/end-user-terms-of-use/ which may be amended by Smarten Spaces from time to time;
1.2 “Lead Information” means particulars concerning prospective End-Customers, including business contact information, the products and/or services that prospective End-Customers are interested in, whether collected by Partner or Smarten Spaces as a result of either Party’s marketing efforts;
1.3 “Partner Price” means the prices set by Partner and charged to the End-Customer for Smarten Spaces Products;
1.4 “Partner Price End-Customer” shall mean an End-Customer sourced by the Partner and where the Purchase Price was negotiated and concluded by the Partner;
1.5 “POF” means, where applicable, the order form executed between the Parties and which is set out as a template in Schedule A;
1.6 “Order” shall mean a paid order that was placed by an End-Customer for Smarten Spaces Products ;
1.7 “Purchase Price” is the price of the Smarten Spaces Solution purchased by an End-Customer;
1.8 “Transfer Price” means the price(s) charged by Smarten Spaces to the Partner for the Smarten Spaces Solution. The Transfer Price is subject to change by Smarten Spaces as may be notified to Partner from time to time.

 

2. Appointment and License

2.1 Smarten Spaces herby appoints Reseller Partner as an authorized representative of Smarten Spaces (“Authorised Representative”) to:
(i) market and promote Smarten Spaces Products; and
(ii) based on the executed POF: (i) resell; or (ii) distribute; or (iii) service End-Customers which have been referred to by Smarten Spaces to Reseller Partner; (v) and/or otherwise obtain orders from End-Customers for the purchase of Smarten Spaces Products;
in the Territory as discussed and agreed upon in writing between the Parties, upon terms and conditions set out in this Agreement (“Reseller Partner Activities”).
2.2 Reseller Partner accepts the appointment as an Authorized Representative to conduct the Reseller Partner Activities on a non-exclusive basis. Smarten Spaces retains the right, in its sole discretion, to offer Smarten Spaces Products directly through Smarten Spaces or through any other third party partners that Smarten Spaces may engage from time to time.
2.3 Subject to compliance with the provisions of this clause, Smarten Spaces grants to the Reseller Partner a limited, conditional, revocable, non-exclusive, non-transferrable, non-sub-licensable license only to market, promote, sell and provide in the Territory and in the manner provided under this Agreement (“License”), which is to be hosted on the Smarten Spaces interface. The License granted under this agreement shall be valid for the Term of this Agreement.
2.4 Reseller Partner shall conduct Reseller Partner Activities in its own name, at its own expense and using its own efforts unless otherwise agreed to in writing by Smarten Spaces. Save for the Reseller Partner’s affiliate companies, Reseller Partner shall not use any other agents or partners to conduct the Reseller Partner Activities or otherwise for the performance of the Reseller Partner’s obligations under this Agreement.
2.5 Reseller Partner is by no means authorized to negotiate or conclude contracts on behalf of Smarten Spaces nor to otherwise represent or oblige Smarten Spaces in any legal dealings or transactions.
2.6 Reseller Partner shall not make any commitment, representation or warranty with respect to Smarten Spaces Products except as expressly provided under this Agreement, the Smarten Spaces Terms of Use, Smarten Spaces Privacy Policy, or otherwise expressly authorized in writing by Smarten Spaces.

 

3. Partner Order Form and Policies

3.1 To confirm an End-Customer, Reseller Partner shall submit a Partner Order Form (“POF”) or such other order process as instructed by Smarten Spaces from time to time.
3.2 A POF confirming an order placed by an End-Customer on the Partner (“Order”), shall be executed between Smarten Spaces and Reseller Partner and shall be subject and deemed to be incorporated into this Agreement. In the event of an inconsistency between the POF and this Agreement, this Agreement shall prevail.
3.3 Reseller Partner shall ensure validity of POF it submits, and the accuracy and completeness of all information contained in such POF. Reseller Partner understands and acknowledges that inaccurate information may result in delays in processing POF.
3.4 Reseller Partner shall incorporate the Smarten Spaces Terms of Use, Smarten Spaces Privacy Policy and the End User Terms in its contracts with End-Customers and shall ensure that End-Customers are aware that End Users’ use of the Smarten Spaces Products shall be subject to the End User Terms.
3.5 Smarten Spaces shall bear no responsibility or liability for any POF or any Orders in relation to the Smarten Spaces Products provided by Reseller Partner or in relation to the End-Customer other than as set out under this Agreement.

 

4. Fees and Payment

4.1 Reseller Partner may charge the Partner Price to a Partner Price End-Customer.
4.2 Reseller Partner shall pay Smarten Spaces the Transfer Price for all Orders as set out in Schedule B.
4.3 All matters relating to the Partner Price, Purchase Price or any other payments due from the End-Customers shall at all times remain between the Partner and the End-Customers and Smarten Spaces shall bear no liability in relation to the same.
4.4 No commission shall be payable by Smarten Spaces to Reseller Partner under this Agreement.
4.5 The Reseller Partner shall be solely responsible for all payments due to Smarten Spaces in relation to an Order.
4.6 Smarten Spaces reserves the right to change the Transfer Price at any time (“Price Changes”), in its sole discretion with 7 days prior notice to the Reseller Partner. Price Changes shall only apply to a POF entered into after the date of the Price Changes and shall not affect POF executed prior to such date.
4.7 The Reseller Partner agrees that all payments for Orders which fall due shall be payable by the Reseller Partner to Smarten Spaces on behalf of the End-Customers, regardless of whether Reseller Partner has received payments from an End-Customers.
4.8 In the event an End-Customer requests for a volume discount on the Purchase Price for an Order (“Volume Discount”), Reseller Partner shall communicate the details of such request in writing to Smarten Spaces, along with business justifications for Smarten Spaces to provide the Volume Discount. Reseller Partner understands that Smarten Spaces shall in no way be obligated to entertain any request for a Volume Discount. If Smarten Spaces, in its discretion, agrees to grant a Volume Discount, Smarten Spaces shall have the right, in its sole discretion, to determine the Transfer Price, Purchase Price and any other applicable amounts on a case by case basis.
4.9 Reseller Partner shall pay all invoices issued by Smarten Spaces within thirty (30) days of the date of the invoice. Invoices may be subject to applicable tax, including Goods and Services Tax or Value-added Tax which shall be applied to your final invoice if applicable.
4.10 Where applicable, Reseller Partner shall be responsible for any payment of withholding tax hereunder and all payments to Smarten Spaces shall be made full and free of any deduction of such withholding tax.
4.11 If Reseller Partner fails to pay any Fees or any amounts due to Smarten Spaces, Reseller Partner shall pay Smarten Spaces an interest on the unpaid amount at the rate of six per cent (6%) per annum (“Late Payment Interest”). Smarten Spaces shall be entitled to immediate termination of this Agreement in the event of continued non-payment for a period exceeding ninety (90) days from the time such payments are due to the Smarten Spaces under this Agreement, including any Late Payment Interest hereunder.

 

CONSULTING PARTNER TERMS

The following terms and conditions shall apply where the Partner enrols as a Consulting Partner.

 

1. Scope and Obligations

1.1 Smarten Spaces and Partner shall promote and make Referrals of the other party’s solution to potential end-customers which shall include but shall not be limited to the following obligations:
(i) Generate a list of potential end-customers and partners (real estate, developers, enterprises, etc) including identifying open RFPs and shortlisting potential end-customers, subject to the approval of Smarten Spaces and Consulting Partner;
(ii) Ascertain the appropriate decision maker in each of the target end-customers identified and map the leadership structure of the buyers/decision-makers;
(iii) Reach out to decision-makers of end-customers through appropriate channels and establish a connection to generate a first meeting with end-customers to determine the critical business needs of end-customers which the other party’s solution can address and cater to;
(iv) Provide POCs and demos to potential end-customers and partners if required;
(v) To participate actively in discussions, negotiations and contract closures with potential end-customers and partners;
(vi) Provide feedback to the other party from End-Customers and potential end-customers on the Smarten Spaces Solution and identify market requirements and functionalities;
(vii) Should either party bring a partner and/or channel to the other party, the respective party agrees to structure and define margins on a case by case basis.
1.2 Smarten Spaces or Consulting Partner may choose to meet or conference and negotiate independently with a potential end-customer after an introduction by the other Party with respect to a potential end-customer relationship.
1.3 Each Party shall have sole discretion on its decision whether to enter into or not enter into an arrangement with a potential End-Customer and the terms applicable to such potential relationship.

 

2. Fees and Payments

2.1 This clause shall only apply to Consulting Partner (with referral fees) and shall not apply to Consulting Partner (without referral fees).
2.2 Each Party shall pay the other Party a commission fee for successful referrals as follows in the amount of 10% of the End-Customer realised revenue, conditional upon the respective party’s receipt of the fees from the End-Customer.
2.3 In the event an End-Customer terminates prior to expiry of the contract, against which a refund is paid to customer, proportional commission will have to refunded back to Smarten Spaces.
2.4 Upon the expiry of an End-Customer Contract, the End-Customer may opt to renew the End-Customer Contract for an extended term, or enter into a new contract (“Renewal Contract”).
2.5 Each Party shall raise an invoice 3 months from date of signing of an agreement with End-Customer.
2.6 Consulting Partner shall pay all invoices issued by Smarten Spaces within thirty (30) days of the date of the invoice. Invoices may be subject to applicable tax, including Goods and Services Tax or Value-added Tax which shall be applied to the final invoice if applicable.
2.7 Where applicable, Consulting Partner shall be responsible for any payment of withholding tax hereunder and all payments to Smarten Spaces shall be made full and free of any deduction of such withholding tax.
2.8 If Consulting Partner fails to pay any Commission Fees or any amounts due to Smarten Spaces, Consulting Partner shall pay Smarten Spaces an interest on the unpaid amount at the rate of six per cent (6%) per annum (“Late Payment Interest”). Smarten Spaces shall be entitled to immediate termination of this Agreement in the event of continued non-payment for a period exceeding ninety (90) days from the time such payments are due to Smarten Spaces under this Agreement, including any Late Payment Interest hereunder.

 

ISV TERMS

The following terms and conditions shall apply where the Partner is appointed as an ISV as indicated on the Cover Page.

A. The Parties are desirous of integrating the ISV Solution with the Smarten Spaces Solution either through the ISV’s API or through direct integration. ISV Solution and Smarten Spaces Solution, together form an integrated solution of Smarten Spaces (hereinafter referred to as the “Smarten Integrated Solution”).
B. Smarten Spaces also provides an online marketplace for a number of ISVs, via which ISVs can promote their individual solution and product offerings to potential customers (“Smarten Marketplace”).

 

1. Definitions

1.1. “Application Program Interfaces (API)” means the application program interfaces to enable integration of third party solutions (which interfaces together or separately, as applicable in the context) with the Smarten Spaces Solution;
1.2. “Smarten Integrated Solution” shall mean the integration solution which was developed through the integration of ISV Solution with the Smarten Spaces Solution either through the ISV’s API or through direct integration.
1.3. “ISV Solution” shall mean the ISV’s software and/or hardware solution and may include other products and/or services offered by the ISV;

 

2. Integration

2.1 Each Party hereby grants to the other Party a worldwide, non-exclusive, royalty-free, sub-licensable license during the Term for the purpose of End-Customers to: (a) allow End-Customers to access and use the Smarten Integrated Solution, and (b) access the Smarten Integrated Solution via the API for the purpose of providing services for the Smarten Integrated Solution to End-Customers. ISV will provide the ISV APIs and host and maintain the Smarten Integrated Solution.
2.2 The parties will cooperate, mutually agree on, and jointly implement the integration of the Smarten Integrated Solution. The obligations of each party will include, without limitation, making available the necessary APIs, providing any required technical documentation, and appointing an individual with the requisite expertise to serve as the technical development contact.
2.3 Testing of the Smarten Integrated Solution shall be conducted by Smarten Spaces and Smarten Spaces may request for further information and resources from the ISV for the effective implementation and proper performance of the Smarten Integrated Solution. ISV and Smarten Spaces agree to work together to determine what changes or improvements need to be made prior to implementation of the Smarten Integrated Solution through the Smarten Spaces Solution.
2.4 Parties shall use their best efforts to ensure the uninterrupted availability of their API and the Smarten Integrated Solution. Each Partner shall inform the other Party immediately if either Party discovers any non-availability or other operational failures of the other Party’s API. Each Party may make changes to the their own API and shall inform the other Party within a reasonable period. Where such changes have a material effect on the functioning of the Smarten Integrated Solution, each Party shall inform the other Party hereof reasonably in advance and shall cooperate with the other Party to the furthest extent possible in order to minimize any down time or unavailability of the Smarten Integrated Solution.
2.5 If ISV Solution consists of, provides, or incorporates hardware or any hardware integration or implementation services to (“Hardware Services”), ISV shall be solely responsible for such Hardware Services to End Customers and all ongoing maintenance and support services in relation to the same. Smarten Spaces expressly excludes all liability in relation to the Hardware Services.
2.6 Where ISV sells or solicits orders for the Smarten Integrated Solution, ISV shall ensure to incorporate the Smarten Spaces End User Terms of Use (http://smartenspaces.com/end-user-terms-of-use/) (“End-User Terms”) in its contracts with End-Customers and shall ensure that End-Customers are aware that End-Customer’s end-users’ use of the Smarten Integrated Solution shall be subject to the End-User Terms.
2.7 ISV will be responsible for handling and performing support and maintenance obligations towards an End-Customer in accordance with the Smarten Spaces Support and Maintenance Services Policy as set out in Schedule D.

 

3. Smarten Spaces Partner Program and Marketplace

3.1 ISV agrees to provide Smarten Spaces with all of the listing information as agreed on with Smarten Spaces including but not limited to a company profile description and a list of solution and product offerings (“Listing Information”) to be made available for display on the Smarten Spaces Marketplace at URL: https://smartenspaces.com/marketplace/ (“Marketplace”). Should the ISV wish to change any of the Listing Information, it shall inform Smarten Spaces in writing of any such suggested changes.
3.2 ISV shall only be listed on the Smarten Marketplace after the receipt of all information requested by Smarten Spaces, including ISV’s logo and approved images.

 

4. Marketing Materials and Intellectual Property

4.1 ISV agrees that its name, a brief slogan and one or more images of the ISV, including any logos or insignia, may be published on the Partner Portal.
4.2 Unless otherwise agreed to between the Parties, ISV agrees that Smarten Spaces may, but shall not be obligated, to promote the ISV on the Smarten Spaces Website, and any other social media or relevant offline and online marketing materials and channels and licenses Smarten Spaces to use its intellectual property, including its logo, in doing so.
4.3 Smarten Spaces shall have the right to temporarily suspend or permanently remove the ISV from the Partner Program and/or Partner Portal, without any liability, if
(i) ISV has failed to pay Smarten Spaces any invoices that have become due; OR
(ii) in its reasonable opinion, the ISV is in breach of any terms of this Agreement or may be negatively affecting Smarten Spaces’ business and/or reputation.
4.4 For the avoidance of doubt, any suspension shall not result in the termination of this Agreement, the provisions of which shall remain fully applicable.

 

5. Marketing Activities

5.1 ISV agrees to list the Smarten Integrated Solution. The Smarten Integrated Solution will include branding as generally displayed for other ISVs on the Partner Portal. During the Term, ISV hereby grants to Smarten Spaces a limited, non-exclusive, royalty-free license to use the ISV’s Marks in order to (i) display the Smarten Integrated Solution on the Partner Portal; and (ii) promote the Smarten Integrated Solution in connection with the Partner Portal.
5.2 ISV agrees that Smarten Spaces may from time to time identify ISV as Smarten Spaces’ ISV in or on its website, sales and marketing materials, or press releases.
5.3 The parties may engage in additional joint marketing activities to promote the Smarten Integrated Solution offering on the Partner Portal. Except as mutually agreed in writing, each party will pay its own costs and expenses for its marketing activities.

 

6. Intellectual Property Rights

6.1 The ISV agrees and acknowledges that nothing in this Agreement grants ISV any rights, title or interest in the Smarten Integrated Solution, the Smarten Spaces Solution, other than as expressly provided under this Agreement. Smarten Spaces shall be the sole owner of the Smarten Integrated Solution, Smarten Spaces Solution (and all the intellectual property rights contained therein) along with any changes, modifications or improvements made to the same from time to time
6.2 Neither Party shall infringe, misappropriate, dilute or otherwise violate the Intellectual Property Rights of the other Party or any third Party.
6.3 Each Party shall immediately inform the other Party in the event that any claim or dispute arises in relation to the Intellectual Property Rights relating to Smarten Integrated Solution and the Smarten Spaces Solution.
6.4 All Intellectual Property Rights in Smarten Integrated Solution, the Smarten Spaces Solution, the Smarten Spaces proprietary mobile application and the Smarten Spaces dashboard and software shall vest with Smarten Spaces.
6.5 ISV shall retain all rights, title and interest in the ISV Solution and ISV API.

 

7. Representation and Warranties

7.1 Both Parties represent and warrant that:
(i) it has the right, power, and ability to enter into and perform under this Agreement;
(ii) it has all necessary rights to grant the rights and licenses granted under this Agreement; and
(iii) it will obtain and maintain all licenses, permits and other permissions necessary for the purposes of the Smarten Integrated Solution.
7.2 ISV represents and warrants that:
(i) The ISV Solution and ISV API will not infringe any patents, copyrights, trademarks, trade dress, trade secrets, or any other intellectual property or proprietary rights and there are no suits or proceedings pending or threatened which allege any infringement of any such proprietary rights; and
(ii) it shall grant Smarten Spaces a limited, non-exclusive, revocable, royalty-free, right and sub-licensable license to use the ISV Solution and/or ISV’s API for the purposes of developing, creating, modifying, improving upon the Smarten Integrated Solution for the purposes required under this Agreement.

7.3 Smarten Spaces represents and warrants that:
(i) The Smarten Spaces Solution and Smarten Spaces API will not infringe any patents, copyrights, trademarks, trade dress, trade secrets, or any other intellectual property or proprietary rights and there are no suits or proceedings pending or threatened which allege any infringement of any such proprietary rights; and
(ii) it shall grant ISV a limited, non-exclusive, revocable, royalty-free, right and sub-licensable license to use the Smarten Spaces Solution and/or Smarten Spaces API including for the purposes of developing, creating, modifying, improving upon the Smarten Integrated Solution for the purposes required under this Agreement.
7.4 Upon expiration or termination of this Agreement:
(i) both parties shall immediately discontinue all representations or statements from which it might reasonably be inferred that any relationship exists between the Smarten Spaces and the ISV;
(ii) both parties agree not to act in any way to damage the reputation of the other party’s products or services;
(iii) both Parties shall return or destroy, as requested by the other Party, all Confidential Information of the other Party; and
(iv) Smarten Spaces shall remove ISV’s API and/or any of their product offerings from the Smarten Integrated Solution.
7.5 Termination of this Agreement shall not affect any Smarten Integrated Solution that has already been sold to an End Customer or any SOW or agreement entered into with an End Customer prior to the termination of this Agreement, and parties’ obligations shall continue for the duration of all such contracts with End Customers.

 

GENERAL PARTNER TERMS

The following terms and conditions shall apply generally to all Partners (whether the Partner is appointed as a Reseller Partner, Consulting Partner, or ISV).

 

1. Definitions

1.1 “Confidential Information” means the terms of this Agreement and any and all information, data, drawings, documents, software or other proprietary material, information relating to the financials or business information, information in relation to Intellectual Property Rights, experience and know-how, dealings, transactions or affairs of or relating to such Party disclosed or shared by such Party with the other Party in relation to this Agreement, whether in tangible or intangible form, whether or not such information is designated or marked as “confidential” or such information which is by its nature confidential. Confidential Information shall not include any information that: (i) is or becomes a part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure by the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party without access to the Confidential Information;
1.2 “Partner Resources” means the marketing resources, pricing and sales information as well as other technical information as provided to the Partner by Smarten Spaces;
1.3 “Personal Information” means any information that relates to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to that natural person;
1.4 “Smarten Spaces Authorized Partner Logo” means the logo of Smarten Spaces including its literal and graphical elements which Smarten Spaces is authorized to use and sub-license, and authorizes the Partner to use for the purposes set out under this Agreement;
1.5 “Smarten Spaces Marks” means and includes, (i) the name ‘Smarten Spaces’, Smarten Spaces logo displayed in Schedule C, (ii) Smarten Spaces trademarks and (iv) any materials stamped with or containing the words ‘Smarten Spaces’ or other marks associated with the Smarten Spaces brand;
1.6 “Smarten Spaces Privacy Policy” means the Smarten Spaces Privacy Policy available at http://smartenspaces.com/privacy-policy/ which governs the collection, use, storage, and disclosure of Personal Information, and which may be amended by Smarten Spaces from time to time;
1.7 “Smarten Spaces Products” means any or all of the following: (i) Smarten Spaces Solution; and (ii) any other products and/or services) which may be updated by Smarten Spaces from time to time;
1.8 “Smarten Spaces Solution” shall mean the smart building management software solution developed and owned by Smarten Spaces Pte Ltd and/or its affiliates, and all improvements, enhancements, modifications and alterations which may be applied from time to time; ;
1.9 “Smarten Spaces Terms of Use” means the Smarten Spaces Terms of Use which are applicable to the End-Customer, available at http://smartenspaces.com/terms-of-use/, which may amended by Smarten Spaces from time to time;
1.10 “End-Customer” shall mean a third party entity or organization that enters into an Agreement with Partner for the purchase of Smarten Spaces Products, pursuant to the acceptance of a POF by Smarten Spaces under the terms of this Agreement;
1.11 “End-Customer Information” means, with respect to each End-Customer, the contact information, products licensed, products under evaluation, and any other information concerning the End-Customer, its employees, its customers and its business operations, that Partner has access to in connection with activities performed by Partner under this Agreement;
1.12 “Territory” means the geographic areas agreed to in writing between the Parties to this Agreement in which the Partner is appointed to carry out Partner Activities (defined below);

 

2. Hardware and Technical Support (Level 1 Support)

2.1 It shall be Partner’s responsibility to provide first level technical support services (“Level 1 Support”) to End-Customers and agrees to be the sole point of contact for End-Customers requiring Level 1 Support. Where deemed necessary by Smarten Spaces, Partner may be required to undergo training to provide Level 1 Support to End-Customers.
2.2 If Partner has provided hardware integration or implementation services to End-Customers (“Hardware Services”), Partner shall be solely responsible for providing such Hardware Services to End-Customers and any ongoing maintenance and support services in relation to the same.
2.3 The scope of support and maintenance services that Smarten Spaces shall provide for End-Customers shall be limited to fixing identified issues in the Smarten Spaces Solution beyond the scope of Level 1 Support and as outlined in Schedule D ‘Support and Maintenance Services’. Partner shall be responsible for reporting support issues of Partner and End-Customers to Smarten Spaces.
2.4 Where Partner has set up an End-Customer’s account for the Smarten Spaces Solution on the behalf of End-Customer, and in doing so obtains administrative access to End-Customers’ account for that purpose or for any other specific purpose as authorized by End-Customer, Partner shall ensure that it shall not continue to have such access beyond the period for which such access is reasonably necessary unless Partner has obtained End-Customer’s explicit consent for such continued access.

 

3. Privacy and Security of Lead Information and End-Customer Information

3.1 Partner acknowledges that Lead Information and End-Customer Information, whether shared by Smarten Spaces to Partner or collected or accessed by Partner, shall constitute Confidential Information and shall be bound by confidentiality obligations as set out under this Agreement, unless such information is proven to be obtained from the public domain.
3.2 Partner agrees to:
3.2.1 use Lead Information and End-Customer Information solely for the purposes permitted under this Agreement;
3.2.2 obtain, or confirm that Smarten Spaces has obtained, the prior explicit consent of prospective End-Customers in writing for the purpose of engaging prospective End-Customers in marketing outreach through marketing campaigns, marketing newsletters, and all such other marketing channels and materials;
3.2.3 comply with all laws and regulations applicable to marketing activities, whether conducted by Smarten Spaces or Partner; and
3.2.4 not disclose Lead Information and End-Customer Information except as compelled by law or as expressly permitted in writing by Smarten Spaces;
3.3 In so far as Lead Information and End-Customer Information contains Personal Information, the Partner agrees to:
3.3.1 maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Information in accordance with industry standards and applicable legal and regulatory requirements;
3.3.2 take all commercially reasonable and appropriate legal, organizational, and technical measures to secure Personal Information against (a) accidental or unlawful destruction (b) accidental loss, alteration or processing (c) unauthorized disclosure or access
3.3.3 ensure that the Personal Information is not copied or transferred outside the Smarten Spaces CRM account to comply with the standards prescribed under all data privacy laws within or outside the Territory as applicable, with respect to protection of personal data.
3.3.4 For the purposes of this Agreement, and with respect to Personal Information of End-Customer, Smarten Spaces shall act as the data processor and shall be accountable for compliance with all applicable privacy regulations and standards as may be applicable from time to time.
3.4 Partner further agrees to sign any documents or additional agreement(s) pertaining to data privacy and security of Personal Information as may be required from time to time.
3.5 In case of any breach or suspected data breach affecting Personal Information under Partner’s possession or control, other than as a result of security breach in any tool provided by Smarten Spaces, Partner will immediately notify Smarten Spaces, provide Smarten Spaces with all relevant information concerning the breach or suspected breach, and take all reasonable steps to remediate the breach and prevent recurrence. Additionally, Partner shall implement remedial measures (including notice, credit monitoring services, fraud insurance and the establishment of a call center to respond to lead and End-Customer inquiries) at Partner’s cost and expense.

 

4. Intellectual Property Rights

4.1 The Partner agrees and acknowledges that nothing in this Agreement grants Partner any rights, title or interest in the Smarten Spaces Products other than as expressly provided under this Agreement and Smarten Spaces shall be the sole owner of the Smarten Spaces Products (and all the intellectual property rights contained therein) along with any changes, modifications or improvements made to the Smarten Spaces Products from time to time.
4.2 Neither Party shall infringe, misappropriate, dilute or otherwise violate the Intellectual Property Rights of the other Party or any third Party.
4.3 Each Party shall immediately inform the other Party in the event that any claim or dispute arises in relation to the Intellectual Property Rights relating to Smarten Spaces Products.
4.4 Parties acknowledge that all Intellectual Property Rights in Smarten Spaces Products, including the Smarten Spaces App, the Smarten Spaces platform and software shall vest with Smarten Spaces. Upon the acceptance by the End-Customerof the Smarten Spaces Products, Smarten Spaces shall provide to the End-Customer, valid till the term of the agreement with the End-Customer, a non-exclusive, non-sublicensable and non-transferable, right to use the Smarten Space Products.

 

5. License to use Smarten Spaces Marks

5.1 Smarten Spaces hereby grants Partner a non-exclusive, non-transferable license, without the right to sub- license, to use or display the Smarten Spaces Marks including other Partner logos and badges, subsequently provided to Partner, on Partner website, press releases and other publicity materials; provided that any use of the Smarten Spaces Marks must be approved in writing by Smarten Spaces in advance and be used solely for the purposes of this Agreement.
5.2 Partner hereby grants Smarten Spaces with prior written consent from the Partner, a non-exclusive, non-transferable license, without the right to sub- license, to use or display Partner name or trademarks in any publicity materials of Smarten Spaces with due written intimation. Smarten Spaces may also include Partner name in any list of partners maintained by Smarten Spaces on its websites or in any other form. Except as provided in this Agreement, neither party shall use or display the other party’s trademarks.

 

6. Marketing Efforts

6.1 Each Party confirm that it has the right to grant and hereby grants to other party a non-exclusive licence to use, reproduce and publicly display their name, logo and trademark(s) for the purposes of fulfilling its obligations under this Agreement and advertising, marketing, promoting and publicizing Smarten Spaces under, including in marketing materials or in any other channel of communication via the Internet or other medium.
6.2 Each Party represents and warrants to the other Party that it owns, or where applicable, has procured the express written approval of/license from the relevant third party for the other Party to use such name/logo/trademark(s) and the other Party’s use of the same will not infringe upon the proprietary or ownership rights or privacy of any third party.
6.3 Notwithstanding any of the foregoing, any and all advertising and marketing materials and communications of each Party in relation to this Agreement (including but not limited to design and layout) shall be subject to prior vetting and approval by the other Party.

 

7. Confidentiality

Each Party agrees: (i) to hold the other party’s Confidential Information in strict confidence, using at least the same degree of care with which it protects its own proprietary information (in no event using less than reasonable care); (ii) not to use such Confidential Information for any purpose outside the scope of this Agreement; and (iii) not to disclose such Confidential Information to third parties not authorized by the disclosing party to receive such Confidential Information. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent that the Confidential Information is required to be disclosed by the receiving party as a matter of law. The confidentiality obligations shall survive for a period of three (3) years after any termination or expiration of this Agreement.

 

8. Partner Code of Conduct

8.1 Partner shall at all times represent Smarten Spaces professionally and ethically in all activities conducted in, or outside the Territory, and in particular in the Partner’s interactions and dealings with prospective End-Customer.
8.2 In the course of the Partner’s negotiations, interactions and dealings with End-Customer, Partner shall use its best efforts to settle any disputes with End-Customer howsoever arising.
8.3 Partner shall not at any time engage in any form of conduct, or make any statements or representations, whether in writing or orally, that disparage or otherwise impair the name, reputation, goodwill or commercial interest of Smarten Spaces.
8.4 Any breach or non-compliance of the Partner with any of the above provisions, and where such breach is capable of remedy, subsequent failure to remedy the breach within 30 days or continued non-compliance from the date the Partner is notified by Smarten Spaces, will entitle Smarten Spaces to terminate this Agreement with immediate effect.
8.5 During the Term and upon expiry or termination of this Agreement, Partner agrees: (a) not to act in any way or make any statements, to damage, disparage, defame, sully or compromise the goodwill, brand and the reputation of Smarten Spaces and/or its Affiliates, including Smarten Spaces and/or its Affiliates’ products and services or (b) commit any other action that could likely injure, hinder or interfere with the business, business relationships or goodwill of Smarten Spaces and/or its Affiliates;

 

 

9. Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SMARTEN SPACES EXPRESSLY DISCLAIMS ALL WARRANTIES NOT STATED HERE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT MIGHT ARISE FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH REGARD TO SMARTEN SPACES PRODUCTS.

 

10. Indemnity

10.1 Smarten Spaces agrees that it will, at its own expense, indemnify, defend and hold harmless the Partner against any and all (a) third party claims alleging that Smarten Spaces Products infringes any valid patent, copyright or other intellectual property rights, (b) any statutory or other liabilities including but not limited to payment of taxes, statutory dues and statutory liabilities (c) losses, damages costs, incurred on account of breach of terms of this Agreement or under any statement of work by Smarten Spaces. Partner agrees to give Smarten Spaces (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (subject, in the case of settlement, to Partner’s consent, which consent shall not be unreasonably withheld or delayed), and reasonable support and cooperation with regard to the defense.
10.2 Partner agrees that it will, at its own expense, indemnify, defend and hold harmless Smarten Spaces from and against all claims, actions and proceedings arising out of or resulting from (i) any breach of third party intellectual property rights by Partner, (ii) any warranty made by Partner to End-Customer, or (iii) breach of any of the terms of this Agreement, provided always that Smarten Spaces provides Partner (a) prompt written notice of the claim, (b) except in the case of sub-clause(iii) above, sole control over the defense or settlement (subject, in the case of settlement, to Smarten Spaces consent, which consent shall not be unreasonably withheld or delayed), and (c) except in the case of sub-clause(iii) above, reasonable support and cooperation with regard to the defense of such claim.

 

11. Limitation of Liability.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY TO THE OTHER FOR ANY CLAIM OR ACTION ARISING OUT OF THIS AGREEMENT EXCEED THE AGGREGATE OF ALL AMOUNTS RECEIVED BY PARTNER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING INITIATION OF SUCH CLAIM OR ACTION.

 

12. Terms and Termination of Agreement

12.1 Term
This Agreement shall commence from the Effective Date and shall continue for a period of three (3) years (“Term”) unless terminated earlier in accordance with this agreement.
12.2 Termination
12.2.1 Either party may terminate by giving a sixty (60)-day notice (“Termination Notice Period”) without affecting the provision of any services to End-Customers, including any new Orders placed during the Term, which shall include the Termination Notice Period.
12.2.2 Notwithstanding anything contained in this Agreement, either Party may terminate this Agreement immediately by giving written notice of termination to the other Party if the other Party:
(i) commits a material breach of this Agreement that has not been resolved within 30 days of a notice of breach being provided by the non-breaching party to the party in breach;
(ii) is dissolved;
(iii) ceases to conduct all (or substantially all) of its business;
(iv) is or becomes unable to pay its debts as they fall due;
(v) is or becomes insolvent or is declared insolvent; or
(vi) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(vii) an administrator, administrative receiver, liquidator, receiver, trustee, manager or someone similar is appointed over any of the assets of the other Party; or
(viii) an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other Party under this Agreement).
12.3 Upon expiration or termination of this Agreement, both Parties shall immediately discontinue all representations or statements from which it might reasonably be inferred that any relationship exists between the Smarten Spaces and the Partner; and
12.4 Upon expiration or termination of this Agreement, Partner agrees to:
(i) Partner shall cease to promote, solicit or procure Orders for Smarten Spaces Products;
(ii) Partner shall return or destroy, as instructed by Smarten Spaces, all Confidential Information of Smarten Spaces;
(iii) continue to perform all obligations under this Agreement for all contracts entered into with End-Customers prior to such expiration or termination, including but not limited to L1 Support (“Existing End-Customers”);
(iv) continue to fulfil all payments for Fees and sums owed to Smarten Spaces for all contracts with Existing End-Customers or otherwise owed to the Smarten Spaces under this Agreement.
12.5 Pursuant to Clause 12.4(i), Smarten Spaces shall in no way be obligated to provide any Smarten Spaces Products procured by Partner upon expiration or termination of this Agreement. Smarten Spaces shall not be liable in any way for Partner’s failure to comply with Clause 12.4(i).
12.6 Partner may retain and continue to user manuals, Confidential Information or any other information, only to the extent necessary for Existing End-Customers for the term of those contracts entered into between Partner and Existing End-Customers. Upon expiration or termination of such contracts with Existing End-Customers, the provisions of this Clause shall apply.

 

 

13. General.

13.1 Relationship of Parties. The relationship between the parties is non-exclusive. The parties may enter into similar agreement with third parties. Each of the parties is an independent contractor and neither party shall be considered the agent of the other party for any purpose whatsoever. Neither party has authorization to enter into any contract or to assume any obligation for the other party. Nothing in this Agreement shall be construed as establishing a partnership or joint venture between the parties. Each party shall be responsible for its own acts and omissions and the acts and omissions of its agents, employees and subcontractors.
13.2 Compliance with Applicable Laws. Partner and Smarten Spaces shall ensure that their business and performance of their obligations under this Agreement are and will be in compliance with all applicable laws, including privacy and data security laws, rules and regulations. Smarten Spaces shall ensure that they abide by all applicable data privacy laws in force in the Territory. Partner agrees to provide all reasonable co-operation, assistance and information as Smarten Spaces may reasonably request to enable it to comply with its obligations under any applicable law.
13.3 Governing Law and Jurisdiction. The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the state of New York, United States of America. Subject to the provisions of this Clause, the Parties agree to submit to the exclusive jurisdiction of the courts in New York. In the event of any dispute, controversy or difference between the Parties arising out of or relating to this Agreement (Dispute), any Party shall be entitled to refer the Dispute to arbitration by a notice to the other Party, to be finally resolved in the manner set out in this Clause and the rights and obligations of the Parties shall remain in full force and effect pending the award in such arbitration proceeding. Such Dispute shall be resolved by a sole arbitrator mutually appointed by the Parties. The seat of arbitration shall be New York and the language of arbitration shall be English. The arbitration award of the arbitrators shall be final and binding on the Parties and shall be enforceable in accordance with its terms.
13.4 Equitable Remedies. The Parties agree that violation of the provisions under this Agreement may cause immediate and irreparable harm to the other Party for which money damages may not constitute an adequate remedy at law. Therefore, the Parties shall have the right to seek, any other relief including without limitation an injunction to restrain the said breach or threatened breach, without posting any bond or other security.
13.5 Notices. All notices required or permitted hereunder shall be deemed sufficient if given in writing by e-mail or if mailed by registered or certified mail with return receipt requested or delivered by hand or facsimile to the party to whom such notice is required or permitted to be given. Any such notice shall be considered given when received, and if sent by mail, when received or on the third business day after being mailed, whichever is earlier. All notices shall be sent to the correspondence / contact information you have provided to us at sign-up.
13.6 Force Majeure. Neither party shall be liable or deemed to be in breach of the obligations under this Agreement for any interruption, delay or failure resulting from an event, or a series of related events, that is outside the reasonable control of the Party affected (including internet or any public telecommunications network outages, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, acts of God, strikes, lock-outs, labour disturbances, foreign or governmental order, any changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars or any other similar cause).
13.7 Amendments, Waiver. Any term of this Agreement may be amended or waived only with the written consent of both the parties.
13.8 Assignment. Both Parties shall not assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations to a third party without the other Party’s prior written consent. Any assignment in derogation of this provision will be void.
13.9 Entire Agreement. This Agreement, including the attached Schedules, constitutes the entire agreement between the parties and supersede all prior agreements (oral or written), negotiations and communications between them with respect to the subject matter of this Agreement.
13.10 No Third Party Beneficiaries. Nothing in this Agreement is intended to confer any benefit, right or remedy upon any person other than the parties to this Agreement.

 

 

Schedule A
[THIS PARTNER ORDER FORM IS ONLY PROVIDED AS A TEMPLATE]

Schedule B
Reseller Arrangement – Fees and Payment

1. Fees
Partner Price End-Customer: For all Orders placed by Partner, Partner shall be entitled to a fifteen percent (15%) discount on the prices as published by Smarten Spaces from time to time
2. Collection of Payments
All matters relating to collection of any payments from the End-Customer shall remain between Partner and the End-Customer, and Smarten Spaces shall bear no liability in relation to the same.

3. Customisations
Partner further acknowledges that any add-on services (e.g. non-standard features or stack solutions for the software, custom integrations with third party applications, software and/or hardware, and/or mobile app), and services or solutions outside the POF as requested by the End-Customer shall be only be considered on a case by case basis and nothing shall oblige Smarten Spaces to provide such customisations unless explicitly agreed to in writing and/or subject to a separate agreement between the Parties.

Schedule C
Smarten Spaces Logo

 

 

Schedule D
Support and Maintenance Services

 

Any issue with Services supplied by Smarten Spaces will be addressed as set out below and in the Smarten Spaces Support and Maintenance Policy provided to the Partner.
1. Raise the issue with the Services providing adequate details by sending an e-mail to support@smartenspaces.com. The Smarten Spaces Helpdesk support will be open from the business hours of 9AM – 6PM SST on weekdays excluding public holidays.
2. The support and maintenance services provided by Smarten Spaces shall apply solely to the Smarten Spaces Solution (“Support and Maintenance Services”).
3. Smarten Spaces shall not be responsible or liable for any hardware issues experienced by Partner and/or End-Customers or any other issues encountered with any other third party services and solutions (“Third Party Issues”).

 

 

S.No	Timing	Maintenance Hours	Nature of Support Services
1.	During Smarten Spaces’ official business hours	Mondays to Friday 9AM-6 PM SST	Smarten Spaces shall use reasonable efforts by email or through the support portal to resolve  issues with Smarten Spaces Solution.
2.	After Smarten Spaces’ official business hours	Email can be sent to Support@smartenspaces.com. The email will be addressed the following business day