IoT Projects Marketplace Partner Agreement
Last updated April 2017
Thank you for your interest in publishing in the IoT Projects Marketplace. This IoT Projects Marketplace Partner Agreement (“Agreement”) describes the relationship between you and Smart Digital Machine S.L., ESB87438560 (“SDM,” “we” or “us”) and governs your publication of any Partner Content (as defined below) within IoT Projects Marketplace.
By clicking to accept and/or by submitting a Partner Content to SDM for publication in the Marketplace, you represent and warrant to us that you have the authority to accept this Agreement, and you agree to be bound by its terms.
SECTION 1 Definitions
“Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party. “Own” means more than 50% ownership or the right to direct the management of the entity.
“Deal conditions” means a set of fees and commercial conditions that is charged Partners by Manufacturers for reselling, integrating or distributing of Device.
“Device” means any hardware, software, data, media, or service published in the Marketplace, and includes, without limitation, the Device categories.
“Device Contents” means all data, hardware, software, and services included within, installable by, or otherwise associated with a Device. Device Contents include, without limitation, all operating system, hardware and application software associated with a Device, not including any SDM products or services, irrespective of whether you are the owner or not.
“Device Fees” means a set of fees that is charged End-Customers, as applicable, for End-customer’s use of a Device.
“End-Customer” means any user who views a Device published in the Marketplace and requests a proposal made available by a Partner.
“Indirect Channel” means a sales channel in which Manufacturers authorizes Partners to resell, distribute, integrate or otherwise the Marketplace Devices. Terms applicable to availability of a Devices in Indirect Channels are set forth in Exhibit A.
“Marketplace Service Fee” means that a Partner does not pay any fee for registering and participating to the Marketplace.
“Marketplace” means a limited repository of links to Devices published by various third-party manufacturers available through the IoT Projects Marketplace through which Devices are published subject to this Agreement. End-Customers and Partners may access the Marketplace via a web-based management portal, or other mechanisms made available by SDM.
“Partner” means any user who resells, distributes, integrates, prepares a proposal for an End-customer with a Device published through the Marketplace.
“Partner Account” means a partner account for the Marketplace, which includes a user name and password.
“Partner Contents” means all data and services associated with a Partner, not including any SDM products or services.
“Partner Services” means all data and services associated with a Partner, not including any SDM products or services.
“Service Content” is the Service offered by the partner to the End-customer and includes the Device in the proposal prepared by the Partner.
“User Data” means all data, including all text, sound, video, or image files that are provided to you by, or on behalf of, End-Customers and Manufacturers through a request for proposal with Devices.
“User Information” means any information that you collect through the Marketplace or that we provide to you, in our discretion, about End-Customers and Manufacturers who have accessed your Partner Content, including contact information or, with respect to Devices, purchase history or usage information.
All other capitalized terms that are not defined in this Section 1 shall have the meanings assigned in the text of this Agreement.
SECTION 2 Partner Account.
To publish your Partner Content, we may require you to create a Partner Account through the Marketplace. We may verify information you submit when you set up your Partner Account. We may use the contact information you provide in connection with your Partner Account to send you newsletters and information regarding events, contests, promotions, and the like. Your Partner Account is only for your use, and you are responsible for all activity that takes place within your Partner Account. If you fail to keep your Partner Account in good standing (if any, associated with the Partner Account, providing incorrect or outdated information, engaging in dishonest or fraudulent activity, or repeatedly submitting Partner Contents that violate this Agreement, abuse the Marketplace service, or interfere with any other party’s use of the Marketplace) we may revoke your Partner Account, remove your Partner Content from the Marketplace, and pursue any other remedies available to us.
SECTION 3 Submission, Approval, and Publication of Partner Contents.
(a) Submission Process. You must submit a request for Partner Content that you wish to publish in the Marketplace. We may approve or reject any proposed Partner Content in our sole discretion, and may condition our approval on your making modifications to the Partner Content. You are responsible for ensuring that the information associated with your Partner Content is accurate and does not violate third parties’ intellectual property rights, including third-party rights in trademarks or icons. Following our approval of a Partner Content, we may publish the Partner Content in the Marketplace, subject to the terms and conditions of this Agreement. You may not publish any Partner Content in the Marketplace unless we approve it in accordance with this Section 3(a). We may, at our sole discretion, make minor changes to the Partner Content to correct for error(s) or for other similar reasons.
(c) Presentation of Partner Content. We reserve the right to determine the manner in which all Partner Contents, whether published by you or others, are presented and promoted in the Marketplace. We may display your Partner Content, as well as other information designed to inform End-Customers and Manufacturers, and how End-Customers can obtain proposal for Devices from Partners.
(d) Terms for Partner Marks. During the term of this Agreement you hereby grant us a non-exclusive, royalty-free, personal license to display your trademarks and logos (“Partner Marks”), as provided to us through the Marketplace or otherwise, in connection with the marketing and promotion of your Partner Content or the Marketplace. You are the owner and/or authorized licensor of the Partner Marks. As between the parties, all goodwill associated with the Partner Marks shall inure to your benefit. We may reformat or resize Partner Marks as necessary and without altering the overall appearance of the Partner Marks. You may notify us at any time if you believe that we are misusing your Partner Marks, and we will correct such use within a reasonable time.
SECTION 4 Licensing of Partner Services and Support.
(a) Licensing of Partner Services. You are responsible for licensing or otherwise granting rights to your Services, including all Service Contents associated therewith, to End-Customers. Such licenses and grants will be between you and End-customers and will not create any obligations or responsibilities of any kind for SDM. With respect to the web-based management portal experience for the Marketplace, the acceptance for a proposal shall be conditioned upon a “click to agree” acceptance. You acknowledge that SDM grants no rights or license to your Partner Service through the operation of the Marketplace or through enabling you to publish your Partner Content through the Marketplace.
(b) Support. You are responsible for supporting your Partner Services. You will ensure that any support options described in your Service Content remain available to End-Customers for as long as the relevant Device is available in the Marketplace. For each Partner Service that you mention in a proposal of the Marketplace, you must make support available to End-Customers, either as included within the fees associated with the Partner Service. You must provide commercially reasonable support to End-Customers for inquiries related to deployment of your Partner Services.
SECTION 5 Privacy.
(a) Use of User Information and User Data. You may use User Data only to support proposal requests made available in the Marketplace. You may use User Information to contact End-Customers and Manufacturers to the extent permitted in Section 5(c), to prevent fraud, to provide support, or to perform statistical analysis. You may not use User Data or User Information for any other purposes unless you obtain permission from End-customers and Manufacturers for such other purposes.
(b) Privacy Statement. SDM’s privacy policies apply solely to the use of IoT Projects Marketplace services and will not apply to End-customers and Manufacturers’ use of any third-party Service.
(c) Communications with End-customers and Manufacturers. You may use End-customer and Manufacturer Information to contact End-customers or Manufacturers for Transactional Purposes only. You may not contact any End-customers or Manufacturers for Promotional Purposes unless the End-customers or Manufacturers have provided affirmative, opt-in consent to receive such communications from you or unless as otherwise instructed by SDM. Notwithstanding any other provision in this Agreement, if an End-customer has received a proposal for a Device from you through the Marketplace, you may not use User Information to attempt to directly prepare proposals for the same product or service to End-customer outside of the Marketplace. “Transactional Purposes” encompasses communications directly related to the proposal request of Devices and includes communications about support for your Service, service downtime, billing, and notification or delivery of invoices. “Promotional Purposes” encompasses communications related to offering or advertising products or services, feedback requests, links to training or other resources, and any other communications that are not solely for Transactional Purposes. Your communications with End-customers and Manufacturers must comply with all applicable laws.
SECTION 6 User Fees, Payments, and Taxes.
(a) Appointment of SDM. SDM’s role is to provide the technology and services to enable the Marketplace. You acknowledge that Manufacturer, not SDM, are the seller, provider of Devices to Partners that are the resellers, distributors, integrators or any other licensor as applicable of Device to End-customers under conditions of third-party agreements between you and the End-customer and between you and the Manufacturer. Third-party agreement templates can be provided by SDM under no liability of SDM in the commercial transaction between you, the End-customer and/or the Manufacturer.
(b) Device Fees. When a Device is published in the Marketplace, Device Fees (if any) will be designated to be charged the End-customers for use of a Device. The Marketplace may designate Device Fees for different Devices, geographies, currencies, or other aspects of a Device.
(c) Deal conditions. When an End-customer submits a request for proposal for a Device, Deal conditions (if any) will be disclosed and will be designated to be charged the Partner for reselling, distributing and integrating the Device in the proposal of your Partner Service to End-customer.
(d) Billing. You will charge or invoice the End-customers, as applicable in accordance with the Device Fees and the Deal conditions (or its reasonable currency equivalent). You will ensure that all fees and charges payable for use of the Device are not billed and collected through the Marketplace, and you will offer or establish some alternative means of payment.
(e) Marketplace Service Fee and Proposal acceptance. There are no amounts payable to SDM You only recognize explicitly your obligation of answering to a request for proposal made by an End-customer which has been previously qualified by SDM.
SECTION 7 Removal and Termination of Partner Contents.
(a) Removal. Removal of a Partner Content will result in the Partner Content no longer being visible in the Marketplace or available for new End-customers or Manufacturers. If you discover that your Partner Content is objectionable or illegal, you must work with SDM immediately to repair the Partner Content or remove or replace the applicable content. You must use commercially reasonable efforts to obtain for yourself and us any liability limitations or “safe harbor” clauses under applicable law.
(i) Removal by Partner. You may request removal of a Partner Content from the Marketplace by sending a request pursuant to Section 12(b). We will remove your Partner Content from the Marketplace within 5 days of your request.
(ii) Removal by SDM. We reserve the right to remove or suspend the availability of any Partner Content from the Marketplace or immediately suspend for any reason or no reason. Reasons may include, without limitation,
(A) your breach of the terms of this Agreement,
(B) inconsistency in your Partner Content;
(C) an assertion or claim that your Partner Content infringes the intellectual property rights of a third party;
(D) complaints about the content or quality of your Partner Content; or
(E) failure to provide adequate support to End-customers or Manufacturers or to SDM in accordance with this Agreement.
SECTION 8 Confidentiality and Data Protection.
(a) Confidentiality. We will each comply with the terms of any nondisclosure agreement currently in force between us. If no such agreement exists, the recipient of Confidential Information under this Agreement will hold such information in confidence, and will not use or disclose any of the information to a third party, except contractors who are performing on the receiving party’s behalf and only subject to confidentiality terms at least as protective as this section. “Confidential Information” means all information that a party designates as confidential or a reasonable person knows or reasonably should understand to be confidential. Confidential Information does not include information that is or becomes known to the receiving party without a breach of this agreement or any other confidentiality obligation owed to a disclosing party. This section does not prohibit either party from responding to lawful requests from law enforcement authorities.
(b) Data Protection. Each party will comply with all applicable data protection and privacy legislation in connection with its performance hereunder.
SECTION 9 Warranties.
You represent, warrant, and undertake to SDM that:
(a) You have obtained any and all consents, approvals, and licenses (including written consents of third parties where applicable) required for you to make your Partner Content available in the Marketplace;
(b) Our exercise of the rights granted by you under this Agreement will not obligate us or our Affiliates to pay any third party any amounts;
(c) Information that you provide to us under or in connection with this Agreement is true, accurate, current, and complete; and
(d) In carrying out your obligations set forth in this Agreement, you are in compliance with all applicable laws, including privacy laws and export compliance requirements.
SECTION 10 Disclaimer, Limitation of Liability, and Defense of Claims.
(a) DISCLAIMER OF WARRANTY. AS TO PARTNERS, WE PROVIDE THE MARKETPLACE "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF PUBLISHING YOUR PARTNER CONTENT THROUGH THE MARKETPLACE FOR USE BY END-CUSTOMERS AND MANUFACTURERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT RELATING TO THE MARKETPLACE. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES THAT ACCESS TO, OR USE OF THE MARKETPLACE WILL BE UNINTERRUPTED OR ERROR FREE.
(b) LIMITATION OF LIABILITY. EACH PARTY AGREES NOT TO SEEK, AND EACH PARTY EXPRESSLY WAIVES, ANY RIGHT TO RECOVER ANY OTHER LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.
(c) Duty to Defend. You agree to defend, indemnify, and hold harmless us and our Affiliates, as applicable, from and against (including by paying any associated costs, losses, damages, expenses, and attorneys’ fees) any and all third-party claims:
(i) alleging that your Partner Content infringes any proprietary or personal right of a third party;
(ii) arising from any dispute between you and an End-customer or Manufacturer relating to proposal preparation and presentation;
(iv) based on your failure to collect, remit, or report any sales, use, goods and services, value added, or other similar tax that you are obligated to collect, remit, or report, including any associated penalties and interest.
We will (A) notify you promptly in writing of the claim, provided that our failure to notify you will not relieve you of any liability except to the extent that such failure materially prejudices your legal rights; and (B) at your reasonable request, provide you with reasonable assistance in defending the claim. You agree to reimburse us or our Affiliates, as applicable, for any reasonable out-of-pocket expenses incurred in providing such assistance. You may not make any settlement or compromise of a claim, or admit or stipulate any fault or liability on the part of us or our Affiliates with respect to any claim covered by this section without our express, prior written consent.
SECTION 11 Term and Termination
(a) General. This Agreement will remain in effect until terminated. Either party may terminate this Agreement at any time, for any reason or no reason, upon 5 days’ written notice.
(b) Effect of Termination. Within 5 days of either party’s notice of termination, we will remove all of your Partner Content from the Marketplace. We reserve the right to remove your Partner Content on an expedited basis if we terminate this Agreement for material breach. Sections of this Agreement that, by their terms, require performance or establish rights or protections after the termination or expiration of this Agreement will survive.
SECTION 12 Miscellaneous.
(a) Notices. All notices that you provide to us under this Agreement must be sent to the following email alias: email@example.com. We may disclose your contact information as necessary for us to administer this Agreement through our Affiliates and other parties that help us administer this Agreement.
(b) Reservation of Rights. Except as expressly provided, nothing in this Agreement transfers, conveys, or grants any right, title, or interest in any materials exchanged by the parties. Each party reserves all rights not expressly granted.
(c) No Exclusivity. Each party acknowledges and agrees that the rights granted to and obligations due to the other party in this Agreement are intended to be non-exclusive and therefore that nothing in this Agreement will be deemed or construed to prohibit either party from engaging in or participating itself or with one or more third parties in business arrangements similar to or competitive with those described herein.
(d) Contracting Party, Jurisdiction and Governing Law.
This Agreement will be governed by the laws of the State of Spain, excluding its conflicts of laws; and you irrevocably agree that all claims brought relating to this Agreement will be brought exclusively in the courts in Spain, in which case the parties consent to exclusive jurisdiction and venue in the Spanish State courts.
(e) Costs. Each party is solely responsible for all costs and expenses incurred by it in connection with its performance of this Agreement.
(f) Responding to Claims. If we receive a claim from a third party requesting that your Partner Content be changed or removed, we may refer that claim to you. You must comply with the notice as soon as reasonably practicable. If you discover that your Partner Content violates the terms of this Agreement, you must immediately notify us and work with us to cure the violation.
(g) Waiver. Either party’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.
(h) Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
(i) Assignment. Neither party may assign this Agreement (or any rights or duties under it) without the other party’s prior written consent, provided that either party may assign this Agreement without the other party’s consent (i) to an Affiliate or (ii) in connection with a merger, acquisition, or sale of all or substantially all of its assets. Either party who assigns this Agreement as permitted in this Section 12(h) shall provide the other party with prompt notice of such assignment. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
(j) English Language. The parties intend for this Agreement to be written and interpreted in English. Any notices required or provided under this Agreement will be in English. In the event of any conflict between the English version of this Agreement or any notices and a translation of the same, the English version will prevail.
(k) Force Majeure. Neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event, natural disasters, war, civil disturbance, action by governmental entity, strike, or other causes beyond the reasonable control of the party. The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use reasonable efforts to resume performance. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event ends. Lack of funds will not constitute an event of force majeure.
(l) Relationship of Parties. Neither this Agreement, nor any terms and conditions contained herein, create a partnership, joint venture, employment relationship, or franchise relationship.
(m) Updates. We may update this Agreement from time to time including, if required, the Marketplace Service fees. If we update this Agreement and/or the Marketplace Service fees, we will indicate the last date on which the Agreement was modified at the top of the Agreement and provide you with 5 days’ notice prior to the effective date of the updated version of the Agreement and the Marketplace Service fees. By continuing to make Partner Content available in the Marketplace after such notice period, you agree to be bound by the terms and conditions contained in the updated Agreement and the updated Marketplace Service fees.
(n) Entire Agreement. This Agreement (including its Exhibits) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications.
EXHIBIT A Availability of Devices in Indirect Channels
(a) Manufacturers and End-customers. If End-customers in Indirect Channels requests a proposal for a Device, the sale of Device will be to the applicable Partner and not directly to the End-Customer. The Manufacturer will bill the Partner, as its agent or commissionaire, for the End-customers’ use of the Device according to the Device Fees and the Deal conditions which the Manufacturer has established for the proposal. Partners will be responsible for setting the prices at which they resell, distribute, integrate the Device to the End-customers in their Partner Service and for collecting such amounts from the End-customers. The prices at which Partners resell, distribute, integrate the Devices will not affect the Device Fees and Deal conditions that are charged to Partners for the End-customers’ use of Devices.
(b) Consent to prepare proposal for Resell. By publishing a Partner Content in the Marketplace, you consent to preparing proposals with Devices resold by you to End-customers in any associated Indirect Channels at resale prices established by you in your Partner Service. If you do not wish to prepare proposals for Devices to be resold by you in a particular country, you may make your Partner Content unavailable in such country. Removal of a Partner Content in any country will apply to both Indirect Channel sales and sales directly to End-customers.