These Terms govern any previously executed and active Order Forms or such other documents which have been signed by the Customer. These Terms, the Order Form or any applicable document (“Order Document(s)”) and incorporated terms shall form the entire agreement and complete understanding between Smarten Spaces and Customer on the subject matter (“Agreement”).
Country-specific provisions may apply to you in relation to the Services which may supplement, replace or vary the Terms.
1.1 For the purposes of these Terms, the term “Services” shall mean (a) the Jumpree or Smarten Spaces smart building management software and dashboard (“Software”), (b) the related services (which includes processing, maintenance, and software updates) that are provided by us to you as further described below (“Add-on Support”) and (c) the Jumpree or Smarten Spaces mobile application (“App”) that may be accessed by your Users upon your invitation.
1.2 The terms “we”, ”us” or ”our” shall mean Smarten Spaces Pte. Ltd, and its subsidiaries and affiliates. The terms “you” or ”your” shall mean or refer to a customer who has registered and subscribed to use the Services (“Customer”). The term “User” shall mean any person who has been invited, offered and/or granted access by you, or through their connection to you, to use the Services. You are solely responsible for procuring and ensuring the compliance of all Users with these Terms.
2. ORDER AND SUBSCRIPTION
2.1 By signing and submitting the Order Document(s), Customer agrees to subscribe for the Services indicated in the Order Document(s) in accordance with the Terms.
2.2 We may amend these Terms from time to time and you 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 are indicating that you have agreed to be bound by the Terms. You are encouraged to revisit the Terms regularly.
3. DESCRIPTION OF SERVICES
3.1 We will provide the Services to you as agreed in the Order Document(s).
3.2 The Services we offer include but are not limited to:
3.2.1 Visitor Management Solution (VMS)
The VMS will be enhanced with the provision of a health declaration form for visitors entering the premises owned and maintained by Us and managed under the Software. A Non-Disclosure agreement and Health Declaration Form can also be provided to visitors through the VMS for them to sign before entering the Customer’s premises.
3.2.2 Service Requests
Users can use the ‘Service Requests’ function on the App to raise a real-time request for amenities and services, such as hand sanitizer, face masks and other essentials.
The FAQs will allow you to address some commonly asked questions from your Users.
3.2.4 Community Posts
(i) Users can post information, news, latest updates and questions through the Community channel. We strive to create dialogue with Users and encourage you to share only content from official news websites on the Community channel (“Community Posts”).
(ii) Smarten Spaces may use efforts to check that Community Posts comply with acceptable use standards, but we are not obligated in any way to monitor any Community Posts. It is your responsibility to monitor and track your Community Posts. We expressly exclude our liability for any loss or damage arising from the use of the Community Posts. You are solely responsible for any activity on Community Posts. If in our opinion you or your User makes use of the Community in breach of these standards and guidelines, we reserve the right to remove, or to disable access to, any Community Posts, and to terminate, suspend or change the conditions of your and/or their access to the Community Posts without prior warning. We also reserve the right to bring legal proceedings against you or any User for a breach of the use of the Community Posts, or take such other action as we reasonably deem appropriate. We may stop, or suspend the access and availability of Community Posts at any time.
(i) Where available, Users may dial in to the Hotline for questions and concerns. This feature enables Users to request for support within the Customer’s premises only. PLEASE NOTE THAT the Hotline is not a replacement for local medical, safety and security authorities. Users of their own volition shall choose to contact the Company’s security services or the local authorities and shall be solely responsible in doing so.
(ii)In no event shall Smarten Spaces and its subsidiaries, its officers and employees be liable for any liability, loss, injury or risk (including, without limitation, incidental and consequential damages, personal injury/wrongful death, lost profits or damages) which is incurred or suffered as a direct or indirect result of the use of any of the material, advice, guidance or Services.
3.2.6 Bulletin Board
The Bulletin Board feature will allow the Customer to issue company notices and circulars, post company news and announcements and provide the latest information to Users about the Company. It allows you to share useful information and material with your Users, and foster a greater sense of community and engagement.
4. LICENSE / RIGHT TO USE THE SERVICES
4.2 White-Label Branding
4.2.1 Customer may opt for Services on a White-Label basis, subject to additional fees (“White-Label Solution”).
4.2.2 Where requested by the Customer, White-Label Solution shall be branded under the name of Customer (unless otherwise specified by the Customer) and shall only be accessible to the Users through express invitation, offer or permission of the Customer. The name, trademark, trade name, trade dress, designs and logos of Smarten Spaces and/or its affiliates and subsidiaries (the “Marks”) shall not appear on the App of the Customer, without the consent of Smarten Spaces. No license, express or implied, is granted to Customer for any of the Marks under these Terms.
5. PAYMENT AND FEES
5.1 Customer shall pay the fee for the Services as indicated in the Order Document(s) (“Fees”), in accordance with these Terms, the payment terms, commercial terms and any such supplemental terms and conditions as indicated therein. Except as otherwise stated, purchases are non-cancellable and non-refundable during the Lock-In Period.
5.2 Customer shall pay all applicable taxes including GST, VAT or such other taxes required by applicable law.
5.3 Invoices issued by Smarten Spaces shall be payable by the Customer within thirty (30) days from the date of the applicable invoice.
6. CUSTOMER ACCOUNT
6.1 To access and use the Services, we will set up an account (“Account”) for you, by providing login details for that Account on an agreed date. It is your responsibility to provide accurate and complete information and keep the Account information updated.
6.2 The Customer shall be solely responsible for the activity that occurs on your Account. You must keep your login details, including all passwords and credentials confidential. You must use all reasonable endeavours to ensure that no unauthorised person accesses the Services or uses your Account. You must immediately inform us if there are indications or if you reasonably suspect that any third party is using your Account. We will not be liable for Your losses caused by an authorised use of your Account and You shall be solely liable for losses due to such unauthorised used.
7. DELIVERY AND ACCEPTANCE OF THE SERVICES
7.1 Subject to the Broad Dependencies which may apply, Smarten Spaces shall deliver the Services to the Customer in accordance with the specifications and timelines indicated in the Order Document(s).
7.2 The Customer acknowledges that the Services shall be deemed to be delivered by Smarten Spaces and accepted by the Customer once the necessary system login credentials) are provided to the Customer or the App is available in the Apple App Store or Google Playstore, whichever is earlier (“Go-Live Date”).
8. CUSTOMER AND USER INFORMATION
8.1 You agree, and will procure that your Users agree, to provide us with a non-exclusive licence to collect, use, store , copy and otherwise use any information provided by you and the Users, in order for us to provide the Services to you and the Users.
8.2 In providing us with any information, you represent and warrant that you will procure a warranty from your Users, that the information, and its use by us in accordance with the terms of this Agreement, will not:
(i) breach any laws, statutes, regulations or legally-binding codes; or
(ii) infringe any person’s intellectual property rights or other legal rights; or
(iii) give rise to any cause of action against us or you or any third party.
8.3 You agree that information provided by you may be disclosed by us to our officers, employees, agents, insurers and professional advisers. You acknowledge and agree that metadata is not personal data, and that any and all metadata that is generated from the use of the Services by you and the Users may be used by us to provide the Services to you and for any other purposes that we may determine. Such purposes may include, but will not be limited to, making the Services functional and usable, improving the performance of the Services, making additions or modifications to existing Services, improving Customer and User experience, identifying and correcting errors and bugs in the Services, and verifying your compliance with the terms of this agreement.
9. BROAD DEPENDENCIES
9.1 Some parts of the Services may require the integration and/or integration of hardware devices and/or third party services (collectively “Third Party Hardware and Services”). The Customer agrees to: (i) grant Smarten Spaces access to any such premises of the Customer to identify, diagnose and determine the requirement of Third Party Services, and/or (ii) shall provide Smarten Spaces with access to such Third Party Hardware and Services to the extent necessary for the Services to be provided. In the event Smarten Spaces requires the Customer to procure or upgrade any Third Party Hardware Services to ensure the proper performance of functionality of the Services, the Customer shall purchase such additional or upgraded Third Party Hardware and Services as required.
9.2 The Customer acknowledges that our ability to provide the Services in accordance with the specifications and timelines as agreed to between the Parties may be dependent on Third Party Hardware and Services and Smarten Spaces shall not be responsible for any impact on the functionality, any delay in the implementation of the Services, arising from the Customer’s failure to purchase and provide Third Party Hardware and Services or arising from the inefficiency and failure of any Third Party Hardware and Services. The Customer shall also provide adequate access to Smarten Spaces (and such of its employees, agents, contractors, sub-contractors and third party service providers) to any such premises that Smarten Spaces may reasonably require for the purposes of conducting tests to ensure the proper implementation of the Services.
9.3 Customers who purchase a White-Label Solution understand and agree that they are required to have an Apple App Store and/or Google PlayStore Developer account (collectively, “App Accounts”) and Customers shall be solely responsible for any fees associated with such App Accounts (“App Accounts Charges”). Smarten Spaces shall in no way be responsible or liable for any App Account Charges.
10. PROVISION OF DOCUMENTS AND TEMPLATES
10.1 As part of the Services, Smarten Spaces may provide the Customer with documents, including legal templates, declaration forms and such other documents which the Customer may access and use as part of the Services (“Documents”).
10.2 The Customer understands that Documents are for general use only and does not in any way constitute a definitive or complete statement of law nor does it purport to constitute legal advice.
10.3 In no way does Smarten Spaces guarantee that: (1) the Documents shall cover all possible situations; or (2) fit all circumstances for the Customer’s use or purposes; or (3) will be legally sound or free from liabilities.
10.4 Where Documents have been developed and/or provided to the Customer, whether with the input the Customer has provided to Smarten Spaces, or whether the Customer has amended, customised or replaced the Documents for use through the Software and/or App, Customer shall be solely responsible for seeking its own legal advice before using the same.
10.5 Smarten Spaces shall not be liable for Documents provided, posted, generated, uploaded, transmitted, published or made available on the Software and/or App for the use of the Customer.
11. ADD-ON SUPPORT
11.1 As part of the Services, Smarten spaces shall provide support and maintenance services (“Add-on Support”).
11.2 The Add-On Support shall only apply to the extent that such issues arise from the Software, App and the part of Services provided by Smarten Spaces. For the avoidance of doubt, Smarten Spaces shall not be responsible or liable for any hardware issues experienced by the Customer or any issues with the Customer’s third party services and solutions (“Third Party Issues”). Customer understands and agrees that such Third Party Issues shall be governed by the Customer’s separate agreement with the relevant third parties.
11.3 For Add-On Support, the Customer may reach out to Smarten Spaces by sending an email to: firstname.lastname@example.org.
12. ACCEPTABLE USE OF SERVICES
12.1 You agree that you will use the Services for lawful purposes only and comply with all applicable laws and regulations. You agree that you will not do anything that may impair the performance or any functionality of the Services or the servers on which the Services are hosted.
12.2 You agree to provide authentic and true information in all instances where any information is requested of you. If at any time, the information provided by you is found to be false or inaccurate (wholly or partly), we reserve the right to suspend or terminate your access to the Services in the future without any prior intimation whatsoever.
12.3 When you or the Users access the Services, you agree not to, and you agree to procure that the Users do not: (i) scrape or attempt to scrape or extract any data, including information provided by third parties or other Users of the Services, (ii) use the Services for any monitoring, benchmarking or throttling or any other purposes that may impair the performance or functionality of the Services, (iii) access or attempt to access any content available on the Services by any means other than through the interface provided by us.
12.4 You agree not to sub-license your right, or allow any authorised person, to access and use the Services. You must not, and you will procure that the Users will not, frame or otherwise re-publish or re-distribute the Services unless specifically allowed by us. You must not, and you will procure that the Users will not, alter or adapt or edit the Software. Neither you, not the Users have the right to access the object code or source code of the Software, the App or any software used to provide the Add-on Support, at any time.
12.5 You agree that while using the Services, you will not, and you will procure that the Users will not, post, upload, publish, transmit or share any material or information that: (a) belongs to another person and to which you do not have any right to; (b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (c) harms minors in any way; (d) infringes any patent, trademark, copyright or other proprietary rights; (e) violates any law for the time being in force; (f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; (g) impersonates another person; (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation. In the event, we receive any court order or notification from a government agency that any information posted by you or any User amounts to a breach of this provision, we will take such steps necessary as required under law to remove or disable access to such information and may suspend or terminate your access at our sole discretion.
13. CUSTOMER / USER CONTENT
13.1 The Customer shall ensure that any content posted, uploaded, published, transmitted, shared, generated or uploaded by the Customer and/or Users (“Content”) on the App or through the Services is not illegal or unlawful, does not infringe any person’s legal rights, and is not capable of giving rise to legal action against any person.
13.2 In the event Smarten Spaces receives any court order or notification from a Government Authority that any Content posted by the Customer or a User on the App or through the Services amounts to a breach of applicable law or this provision, Smarten Spaces will take such steps necessary as required under law to remove or disable access to such Content and may suspend or terminate such User’s access to the Service without notice to the Customer.
13.3 Smarten Spaces shall not be liable or responsible if any Content uploaded by Users on the App or through the Services violates the Customer’s internal policies, the confidentiality of any Customer data or information or causes any disrepute to the Customer. Without prejudice to the foregoing, Smarten Spaces shall, upon request by the Customer, take such steps necessary to remove such Content from the App.
13.4 Customer shall indemnify, defend and hold harmless Smarten Spaces against any claim, demand, suit or proceeding made or brought against Smarten Spaces by Users or any third party alleging that any content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates Applicable Law (“Claims”) and will indemnify us from any damages, attorney fees and costs awarded against us as a result of such Claims.
14. INTELLECTUAL PROPERTY
14.1 “Intellectual Property Rights” means all copyright, registered or unregistered designs, unregistered design rights, trade marks (whether or not registered), rights protecting goodwill and reputation, service marks, rights or protections equivalent or similar to copyright, topography rights, patents, petty patents, utility models, database rights, geographical indications, domain names, layout design rights, software source codes, trade or business names, rights protecting trade secrets and confidential information, rights protecting reputation designations and rights under any international convention for the protection of any of the foregoing, anywhere in the world, all other similar or corresponding proprietary rights and all applications for the same and all benefits, privileges, rights to sue, recover damages and obtain relief from any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
14.2 The Services may contain Intellectual Property owned by us or other third parties. We do not confer upon you, or the Users, any rights to the Intellectual Property belonging to us or any third party. You agree not to, and you will procure and ensure that the Users will not, copy, modify, publish, transmit, distribute, perform, display, or sell any such intellectual property. Any use of the Services, Intellectual Property or its contents without our permission is prohibited.
14.3 The following trade names and the trademarks in relation to those trade names indicated on the App and/or in the Services are Smarten Spaces’ trade names/ trademarks and strictly may not be used in connection with any product or service that is not offered by Smarten Spaces in any manner that is likely to cause confusion among Users or that disparages or discredits Smarten Spaces:
· Smarten Spaces
· Jumpree WorkSafe
14.4 Customer shall not infringe, misappropriate, dilute or otherwise violate the Intellectual Property Rights of Smarten Spaces or any third party.
14.5 Customer shall immediately inform Smarten Spaces in the event that any claim or dispute arises in relation to the Intellectual Property Rights relating to the Services.
14.6 Neither Customer nor Smarten Spaces shall use, publish, or cause to be published, any advertisement, or make any representations, oral or written, using the trademarks, logo, name or image (registered or unregistered) of the other Party, without the prior written permission of such other Party.
14.7 The Parties acknowledge that all rights, title and interest, including any and all Intellectual Property Rights, in the Software, App, and the Services, including any improvements, components, modules, features or parts thereof, shall belong to and vest with Smarten Spaces.
15. PERSONAL DATA PROTECTION
15.2 Our role will be limited to obtaining and processing any personal data of a User on your behalf in pursuance of our contractual obligations. You agree that as the data controller, you will be responsible for the data provided by a User when using the App or any other Services. By disclosing any personal data of Users to us under or in connection with contractual obligations, you warrant that you have a legal right and/or obtained necessary consent to disclose all such data, and that the processing of such personal data by us will not breach any applicable data protection or data privacy laws.
15.3 To the extent that we process personal data provided by the Users, you agree that all actions taken by us are pursuant to contractual obligations, and instructions from you in relation to the processing of that personal data.
15.4 If we receive any notice or claim that any personal data, or activities hereunder with respect to any personal data, may infringe or violate rights of a User or any other third party, we may suspend activity hereunder with respect to that personal data.
15.5 You agree that you will fully indemnify us from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any notice, claim or harm arising from the processing of any personal data provided by a User.
15.6 We have in place appropriate security measures that shall comply with applicable law for the protection of personal data.
16.1 Each Party shall keep confidential all Confidential Information of the other Party, not use the other Party’s Confidential Information for any purposes other than as required under this Agreement, and shall ensure that its personnel, employees, sub-contractors and representatives do not disclose to any person any Confidential Information of the other Party at any time or make or authorise any public or private announcement or communication concerning this Agreement.
16.2 The restrictions on disclosure of Confidential Information or announcements by either Party shall not apply to the following:
16.2.1disclosure of information which is already generally available and in the public domain other than through unauthorised disclosure by the other Party or its personnel, employees, sub-contractors and representatives;
16.2.2 disclosure of information or announcements to the extent required by any Applicable Laws or by the requirements of a recognized stock exchange or any other Government Authority or making filings or other submissions under Applicable Laws, provided that (A) the disclosure or announcement is only to the extent required; and (B) such Party will deliver to the other Party prompt prior notification of such requirement(s) so that the other Party may seek an appropriate protective order for protection of its Confidential Information.
17.1 We endeavour to ensure that the Services are accessible to you from everywhere on a 24/7 basis. However, we may, from time to time and without prior notice of downtime, suspend access to the Services or to some parts thereof for maintenance or other reasons. We may also, at our sole discretion, either temporarily or permanently disable access to the Services for specific Users. You agree that you have no expectation of or right to permanent and uninterrupted access to the Services.
17.2 Smarten Spaces expressly disclaims all warranties and conditions of any kind, whether express or implied, in relation to the Services, including but not limited to implied to warranties and conditions relating to provision of Services free from disruption or interruption.
18. THIRD PARTY DISCLAIMERS
18.1 We do not guarantee or make any representations regarding the content of any third-party sites. If you access a link of any third-party website, you hereby acknowledge that you do so entirely at your own risk and expense.
18.2 We shall not be responsible for any dispute between you and any other third party arising out of the use of the Services. We shall not be held liable for any negligent conduct or behaviour of any third party in relation to the use of the Services.
You agree to indemnify Us for all claims, proceedings, penalties, damages, losses, actions, costs and expenses arising out of or in relation to you and your Users’ (i) misuse of the Services (ii) breach of these Terms and/or the terms and conditions of any Order Document(s), (iii) violation of any law, rules or regulations or the rights of a third party, or (iv) any fraudulent act on your part or the part of your Users; (iv) breach of any representation or warranty by you or the User (v) any breach of any of its covenants or obligations contained in this Agreement by you or the User, (vi) any bodily injury (and death) and damage to property caused by you or the User, and (vii) provision of inaccurate or incomplete data or information to us.
20. LIMITATION OF LIABILITY
20.1 We will not be responsible for the accuracy, completeness, reliability, fitness, availability or relevance of any information provided by you for the use of the Services.
20.2 You hereby acknowledge and agree that we will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, reputation, goodwill, business opportunities, data or other intangible losses or be liable for any loss or damages of any kind whatsoever arising out of the use of, or inability to use the Services, however arising whether by tort or by contract, including without limitation, damages for loss or corruption of data or programs and service interruptions, even if the we know or have been advised of the possibility of such damages.
20.3 We also disclaim any and all liability for the acts, omissions and conduct of any third parties in connection with or related to the use of the Services. We will not be responsible or liable for any damages or losses resulting from any correspondence or business dealings with third-party service providers or advertisers or resulting from the presence of such advertisers on the Services.
20.4 Smarten Spaces shall not be liable for any content posted, generated, uploaded, transmitted, published or shared on the App or through the Community Posts by the Customer or User.
20.5 Smarten Spaces may from time to time and with prior notice of downtime, suspend access to the App and Services or to some parts thereof for maintenance or other reasons in its sole discretion without any liability.
20.6 Smarten Spaces may, by prior notice to the Customer, either temporarily or permanently disable access to the Services for specific Users. In such event, the Customer agrees that Smarten Spaces shall not be subject to any liability.
20.7 The aggregate liability of Smarten Spaces to the Customer under this Agreement shall not exceed the Fees paid by the Customer to Smarten Spaces under the Order Form in the 6 (six) months immediately preceding the claim giving rise to the liability.
21.1 WE MAINTAIN AND PROVIDE THE SERVICES ON AN “AS IS” BASIS AND OFFER NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT THE SERVICES ARE NEVER WHOLLY FREE FROM DEFECTS, ERRORS AND BUGS, AND WE GIVE NO WARRANTY OR REPRESENTATION THAT THEY WILL BE WHOLLY FREE FROM SUCH DEFECTS, ERRORS AND BUGS. WE DO NOT WARRANT THAT THE SERVICES OR WILL BE COMPATIBLE WITH ANY APPLICATION, OR SOFTWARE NOT SPECIFICALLY IDENTIFIED AS COMPATIBLE BY THE OUR TEAM.
21.2 YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT YOU WILL NOT HOLD US RESPONSIBLE FOR ANY CONTENT THAT MAY BE DEEMED OFFENSIVE, INDECENT, OR OBJECTIONABLE TO YOU. IN PARTICULAR, WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF ANY KIND ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES.
21.3 WE WILL NOT AND DO NOT PURPORT TO PROVIDE ANY PROFESSIONAL, MEDICAL OR AUTHORITATIVE ADVICE, NOR DO WE PURPORT TO PROVIDE ANY LEGAL, FINANCIAL OR ACCOUNTANCY ADVICE IN RELATION TO THE SERVICES AND WE DO NOT WARRANT THAT THE SERVICES WILL NOT GIVE RISE TO ANY CIVIL OR CRIMINAL LEGAL LIABILITY ON THE PART OF CUSTOMERS OR ANY OTHER PERSON.
22.1 You will have the right to use the Services, and the Users will have the right to use the Services, for the Contract Term indicated in the Order Document(s) unless earlier terminated in accordance with the terms of this Agreement.
22.2.1 The Customer shall not terminate the Services for a period of twelve (12) monthsfrom the Effective Date (“Lock-In Period”).
22.2.2 At the expiry of the Lock-In Period, either Party can terminate the Services by giving no less than sixty (60) days notice in writing.
22.2.3 Smarten Spaces may terminate this Agreement by providing a written notice to the Customer if the Customer fails to pay the Fees, whether in whole or in part, or any such amounts due and owing to Smarten Spaces under this Agreement within thirty (30) days of Smarten Spaces notifying the Customer of the same.
22.3 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; or
(ii) is dissolved; or
(iii) ceases to conduct all (or substantially all) of its business; or
(iv) is or becomes unable to pay its debts as they fall due; or
(v) is or becomes insolvent or is declared insolvent.
22.4 Termination of the Agreement howsoever arising shall be without prejudice to (i) any accrued rights and remedies of either Party in relation to any negligence, omission or default of the other Party prior to such termination; and (ii) any rights or obligations of the Parties which are intended to survive termination, including the Customer’s obligation to pay the Fees.
23. CONSEQUENCES OF TERMINATION
In the event of termination of these Terms and Agreement or the expiry of your right to use the Services, your Account will be disabled, and you may not be granted access to your Account or any files or other content contained in the Account although residual copies of information may remain in our system or possession in accordance with applicable law. Any rights of use granted to you for using the Services shall expire immediately and you shall immediately cease to use and/or access the Services. Upon termination, you acknowledge and agree that your Users would no longer be able to access or use the Services, and you will procure and ensure that they shall cease to use the Services.
24. FORCE MAJEURE
24.1 If Smarten Spaces is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event: (i) Smarten Spaces obligations under this Agreement are suspended while the Force Majeure Event continues and to the extent that it is prevented, hindered or delayed; (ii) as soon as reasonably possible after the start of the Force Majeure Smarten Spaces shall notify the other party in writing of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement; (iii) Smarten Spaces shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement; and (iv) as soon as reasonably possible after the end of the Force Majeure Event, Smarten Spaces shall notify the other party in writing that the Force Majeure Event has ended and resume performance of its obligations under this Agreement. 24.2 If the Force Majeure Event continues for more than three (3) months starting on the day the Force Majeure Event starts, the Customer may terminate this Agreement by giving not less than 30 days’ written notice to Smarten Spaces. 24.3 “Force Majeure Event” means 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, computer virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
25. GOVERNING LAW & DISPUTE RESOLUTION
25.1 These Terms shall be governed by the laws of Singapore. Disputes or proceedings arising in Singapore shall be subject to the jurisdiction of the courts in Singapore or India respectively.
25.2 Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules“) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of three (3) arbitrator(s). The language of the arbitration shall be in the English language.
Any notice, demand, consent or other communication (“Notice”) given or made under this Agreement:
(a) except as otherwise specified in this Agreement, shall be in writing and signed by an authorised representative of each respective Party as indicated in the Order Document(s); and
(b) shall be delivered to the intended recipient by prepaid post or by hand or email, to the address or email as indicated in the Order Document(s) or the address or email last notified by the intended recipient to the sender.
27.1 Entire Agreement
The Agreement constitutes the entire Agreement between the Parties with respect to its subject matter and supersedes any and all prior agreements, either oral or in writing, between the Parties with respect to the subject matter hereof.
27.2 No Implied Terms
Each Party acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by the other Party, or anyone acting on behalf of the other Party, which are not embodied herein and that pertain to the matters covered by this Agreement.
The invalidity, illegality or unenforceability in whole or in part of any of the provisions of this Agreement shall not affect the validity, legality and enforceability of the remaining part or provisions of this AgreemenT.
All provisions in this Agreement including but not limited to representations, warranties, covenants, indemnity, limitation of liability, content, intellectual property rights, broad dependencies, confidentiality and such other provisions contained herein that by their nature survive or are required to supplement the abovementioned provisions for making them effective, shall survive the expiry or termination of this Agreement.
27.5 No Waiver
No failure to exercise or any delay in exercising any right, power or remedy by a Party under this Agreement shall operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made expressly in writing.
No amendment or variation of this Agreement is valid or binding on a Party unless made in writing and executed by both Parties.
27.7.1 The Customer shall not assign or transfer the whole or any part of the Agreement or any benefit, interest, obligation or liability in or under the Agreement without the prior written consent of the other Party.
27.7.2 Smarten Spaces shall have the right to assign or transfer the whole or any part of the Agreement or any benefit, interest, obligation or liability in or under the Agreement without the prior written consent of the Customer.
The relationship between the Parties is that of independent contractors and nothing in this Agreement shall construe the Parties as partners, joint venture or co-owners, or constitute either Party as the agent, employee or representative of the other.
The language of this Agreement is English and all oral and written communication related to the Agreement, including all deliverables, reports and other documents required to be submitted in accordance with this Agreement, shall be in English.
This Agreement may be executed in counterparts, whether signed originally or reproduced by facsimile, each of which shall be deemed to be an original, and all of which shall constitute one and the same instrument.
27.11 Specific Performance
The Parties agree that damages may not be an adequate remedy for the Parties under this Agreement, and the Parties shall be entitled to an injunction, restraining order, right for recovery, specific performance or such other equitable relief to restrain the other Party from committing any violation or enforce the performance of the covenants, warranties or obligations contained in this Agreement.
27.12 Additional Services
From time to time, the Customer may request for additional services, subject to the agreement of Smarten Spaces, at such additional fees and charges as mutually agreed between the Parties.
28. Country-Specific Provisions
28.1 Country-specific provisions means the provisions for that specific jurisdiction where the Customer require the Services to be provided by Smarten Spaces. Country-specific provisions may supplement, replace or vary the other provisions in this Agreement.
28.2.1 These Country-Specific Provisions apply to the Services we provide in India for Customers in India.
28.2.2 LinkDigi Spaces Private Limited is a wholly-owned subsidiary of Smarten Spaces. If you are a Customer in India, the Services are provided to you by LinkDigi Spaces Private Limited (“LinkDigi”).
28.2.3 Smarten Spaces has provided LinkDigi with a license, including a right to sub-license, the Software and for LinkDigi, to provide the Services exclusively in India.
28.2.4 All references to “Smarten Spaces” or “We” or “Us” or “Our” in the clauses above shall be replaced and/or refer to “LinkDigi”.
28.2.5 Clause 13.4 shall be removed in its entirety and replaced as follows:
“Customer shall indemnify, defend and hold harmless LinkDigi and Smarten Spaces against any claim, demand, suit or proceeding made or brought against LinkDigi by Users alleging that any Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates Applicable Law (“Claims”) and will indemnify us from any damages, attorney fees and costs awarded against us as a result of such Claims.”
28.2.6 Clause 17.2 shall be removed in its entirety and replaced as follows:
“LinkDigi and Smarten Spaces expressly disclaims all warranties and conditions of any kind, whether express or implied, in relation to the Services, including but not limited to implied to warranties and conditions relating to provision of Services free from disruption or interruption”.
28.2.7 Clause 19 shall be removed in its entirety and replaced as follows:
“You agree to indemnify LinkDigi and Smarten Spaces, for all claims, proceedings, penalties, damages, losses, actions, costs and expenses arising out of or in relation to you and your Users’ (i) misuse of the Services (ii) breach of these Terms and/or the terms and conditions of any Order Document(s), (iii) violation of any law, rules or regulations or the rights of a third party, or (iv) any fraudulent act on your part or the part of your Users; (iv) breach of any representation or warranty by you or the User (v) any breach of any of its covenants or obligations contained in this Agreement by you or the User, (vi) any bodily injury (and death) and damage to property caused by you or the User, and (vii) provision of inaccurate or incomplete data or information to us.”
28.2.8 All references to “We” in Clause 18 shall be replaced with “LinkDigi and Smarten Spaces”.
28.2.9 All references to “Us” in Clause 19 shall be replaced with “LinkDigi and Smarten Spaces”.
28.2.10 All references to “We” and to “Smarten Spaces” in Clause 20 shall be replaced with “LinkDigi and Smarten Spaces”
28.2.11 All references to “We” and “Us” shall be replaced with “LinkDigi and Smarten Spaces”.
28.2.12 Clause 25 shall be removed in its entirety and replaced as follows:
“25.1 The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of India. Subject to the provisions of this Clause, the Parties agree to submit the exclusive jurisdiction of the courts in Bengaluru.
25.2 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 Bengaluru and the language of arbitration shall be English. The substantive law of arbitration will be the Arbitration and Conciliation Act, 1996. The arbitration award of the arbitrators shall be final and binding on the Parties and shall be enforceable in accordance with its terms.