End User License Agreement

This policy sets out Smartway2’s end user license agreement.

Smartway2 End User License Agreement

Last updated: 20 May 2020

This End User License Agreement (this “Agreement”) is a binding legal contract between the Smartway2 Entity (as specified in Section 16, below), its affiliates and licensors (collectively, “Smartway2”), and the individual or legal entity who accesses or uses the Services (as defined below) (collectively, “you,” “your,” or “Customer,” as applicable). You and Smartway2 are each a “Party,” and together, the “Parties.”

By accessing or using the Services, you represent that you have the authority to enter into this Agreement. If you do so on behalf of any other person or a legal entity, you represent and warrant that you have the authority to accept this Agreement on behalf of that person or legal entity. Your continued access to or use of the Services following modification to the Services or this Agreement constitutes your agreement to be bound by this Agreement, as modified.

IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.

1.          Definitions

For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:

(a)     “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement

(b)     “Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of Smartway2 and that does not reveal any of Your Data or any personally identifying information or Personal Data about you or any Users.

(c)      “Apps” means any mobile or desktop applications through which Smartway2 makes the Software Service available.

(d)     “Business Day” means a day other than: a Saturday, a Sunday, or a public holiday when banks are not open for business (in your local support hub, in the United States, England, or Australia, as applicable).

(e)     “Confidential Information” means (a) any software utilized by Smartway2 in the provision of the Services and its respective source code;(b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary, and; (c) Your Data.

(f)      “Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to “Personal Data” and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party.

(g)     “Distributor” means a reseller or distributor of the Services, authorized by Smartway2 to sell the Services to you.

(h)     “Documentation” means Smartway2’s user guides, documentation, and help and training materials, as may be updated by Smartway2 from time to time, and any other materials provided by Smartway2 as part of the Services.

(i)       “Equipment Support Service” means the technical support and failure replacement program offered by Smartway2 with respect to the Supported Equipment.

(j)       “Order Form” means a separate ordering document, purchase order, invoice or other documentation that (a) specifies Services and Supported Equipment to be purchased by you under this Agreement and the applicable fees, and other terms as agreed to between the Parties, and (b) has been accepted by Smartway2, either by acknowledgement of such acceptance or initiation of delivery of the Services.

(k)      “Professional Services” means any services other than the Software Service or Equipment Support Service (e.g., services related to the establishment of the Software Service or in-person training services, etc.) specified to be provided by Smartway2 under an Order Form.

(l)       “Services” means the Software Service, Equipment Support Service, Professional Services and the Apps as well as any use of the Documentation.

(m)    “Smartway2 Entity” means the entity with whom you are contracting in this Agreement, as further specified in Section 16.

(n)     “Software Service” means Smartway2’s online resource booking service.

(o)     “Supported Equipment” means the occupancy sensors, video displays and any other equipment offered by Smartway2 for use in connection with the Software Service.

(p)     “Subscription Term” means the time period for which you have subscribed for the Software Service, as specified in each applicable Order Form.

(q)     “Third Party Offerings” means any third-party mobile apps, websites, equipment or other products or services, that Smartway2 offers for use in connection with the Services or that are identified in Documentation as compatible for use with the Services.

(r)      “UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

(s)      “User” means an individual employee, contractor, or other agent authorized by you to access and use the Services.

(t)      “Your Data” means any data, information or material provided or submitted by you, your Users or Affiliates to Smartway2 in connection with your use of the Services.

2.          Services and Data; Unauthorized Access

2.1           Provision. Smartway2 will make the Services to which you have subscribed, as specified in each Order Form, available to you in accordance with the terms and conditions of this Agreement.

2.2           Orders and Fees. Your use of the Services is subject to payment of the relevant fees set out in the Order Form. (See Section 5 for additional details around fees and payments.) Unless otherwise provided in an Order Form, the Services are not provided without charge. Where applicable, your rights to access the Services may also be managed by the applicable Distributor. Smartway2 has no obligation to provide the Services to you generally except as strictly agreed between you and, as applicable Smartway2 or your Distributor.

2.3           Affiliates. If an Order Form indicates that any of your Affiliates will be receiving Services hereunder, they will be bound by the terms of this Agreement as if they were an original party to this Agreement.

2.4           Changes to Services. Smartway2 reserves the right to suspend any Services: (a) during planned downtime, (b) in connection with a Force Majeure event (as defined in Section 17.9), or (c) to prevent the use of malicious software in connection with your use of the Services. In addition, Smartway2 may change, suspend or discontinue any features, components or functions of the Services at any time, provided that such changes will not materially reduce or alter the warranties applicable to the Software Service specified in Section 11. If Smartway2 makes any material changes to the Software Service, it will notify you within the Software Service or by sending you an email. Notwithstanding the above, Smartway2 has no obligation to update or enhance any Services or to produce or release new versions of any Services.

2.5           Software Service Support. As part of the Software Service, you will have access to Smartway2’s standard support services applicable to the Software Service. You can initiate a support request by contacting Smartway2 by email at support@smartway2.com.

2.6           Equipment Support Services. Provided you have paid any fees required to receive the Equipment Support Services, you will have access to the Equipment Support Services. You can initiate a support request by contacting us via email at support@smartway2.com. You must obtain a Return Material Authorization (“RMA”) number from Smartway2 prior to returning any Supported Equipment for repair or replacement pursuant to the Equipment Support Services. Any equipment received without an RMA number may be returned to you, and you will be liable to Smartway2 for the cost of shipping associated with such return. For the avoidance of doubt, unless specified otherwise in an Order Form or Documentation, Equipment Support Services do not include onsite services provided at your facilities or support for any third-party equipment, software, or services.

2.7           Trial and Beta Services. Smartway2 may, in its sole discretion, offer trial services or beta services from time to time at no charge. Any trial or beta services are provided “AS IS” with no warranties of any kind. Smartway2 will have no liability for any harm or damages suffered by you or any third party in connection with any such trial or beta services.

3.          Supported Equipment

3.1           Delivery. All Supported Equipment to be delivered under this Agreement will be shipped ex works (as such term is described in Incoterms 2018 published by the International Chamber of Commerce) from Smartway2’s chief offices at 2 Queen Caroline Street  London W6 9DX, UK, or any other plant or warehouse designated by Smartway2, using a common carrier acceptable to Smartway2, to your principal place of business, or any other location designated by you and approved by Smartway2 (such approval not to be unreasonably withheld or delayed).

3.2           Conveyance of Title to Supported Equipment; Risk of Loss; Shipping Costs. Title to Supported Equipment, and all risk of loss or damage for any Supported Equipment will pass to you upon delivery of such Supported Equipment by Smartway2 or its agents to a common carrier for shipment to you. Unless specified otherwise in an Order Form, all freight, handling, insurance, duties (including customs duties), and shipping expenses will be borne by you.

4.          Your Responsibilities

4.1           Liability for Affiliates and Users. You are responsible for all activity occurring under your account. You will ensure that your Affiliates and Users comply with all of the provisions of this Agreement and any applicable laws, including those related to data privacy and transmission of Personal Data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use by Affiliates and Users, and any act or omission of an Affiliate or User that does not comply with this Agreement will be deemed a breach of this Agreement by you.

4.2           Responsible Use of the Services. In using the Services, you must:

(a)     bear sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of Personal Data;

(b)     prevent unauthorized access to, or use of, the Services, and notify Smartway2 promptly of any unauthorized access or use; and

(c)      accept sole responsibility for obtaining or otherwise procuring, maintaining and paying for any hardware, telecommunications, Internet and other services needed to access and use the Services.

4.3           User Names and Passwords. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Smartway2. You, and not Smartway2, are responsible for any use or misuse of user names or passwords associated with your Services account.

5.          Fees and Payment

5.1           Software Service. Fees for the Software Service are based on a minimum number of bookable resources (e.g., conference rooms, desks, offices, parking spaces, etc., collectively “Resources”), at the per-Resource rates specified in each Order Form. Unless specified otherwise in an Order Form, the minimum Subscription Term for the Software Service is 3 years. Beginning on the effective date of each Order Form (each an “Order Effective Date”) and on each anniversary of the Order Effective Date during the applicable Subscription Term thereafter, Smartway2 will invoice you in advance for the minimum annual fees applicable to your use of the Software Service for the forthcoming year.

5.2           Professional Services. Fees for Professional Services will be based on a fixed-fee or time-and-materials basis as specified in each Order Form or a Statement of Work (each an “SOW”) entered into pursuant to this Agreement. Smartway2 will also invoice any fixed-fee Software Service establishment fees on the Order Effective Date. Travel expenses, if applicable, are separate and will be billed based on actual expenses incurred. For time-and-materials Professional Services, Smartway2 will invoice monthly, in arrears, for time and related expenses.

5.3           Supported Equipment. Unless specified otherwise in an Order Form, fees for Supported Equipment will be invoiced when such Supported Equipment has been provided to you in accordance with this Agreement and fees for Equipment Support Services will be invoiced annually, in advance.

5.4           General. Unless otherwise provided in the Order Form, all invoices (except to the extent of any fees or other charges subject to good faith dispute) are due and payable within 30 days of the applicable invoice date. Invoices that are not disputed in good faith within 30 days of the invoice date are conclusively deemed accurate. All fees are expressed and payable in United States Dollars, unless specifically provided otherwise in an Order Form. You must provide Smartway2 with complete and accurate billing and contact information including a valid email address for receipt of invoices. Except as expressly specified in this Agreement or an Order Form, all Subscription Terms and payment obligations under any and all Order Forms are non-cancellable, and all payments made are non-refundable.

5.5           Overdue Charges. Any amounts not received by the applicable due date will accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Smartway2 within 30 days after the applicable due date will be deemed a material default under this Agreement, and Smartway2 may suspend the Services or terminate the Agreement in accordance with Section 10.2.

5.6           Taxes and VAT. Fees do not include taxes, including, as applicable, Value Added Tax, all of which will be payable by you in addition to the fees stated in the Order Form.

6.          Intellectual Property Rights

6.1           Smartway2 Intellectual Property. Smartway2 owns all right, title and interest in, or otherwise has an appropriate license to, the Services and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Smartway2 reserves all right, title and interest in and to the Services and Aggregated Data. Nothing in this Agreement will prohibit Smartway2 from utilizing Aggregated Data for any purpose permitted under Sections 7 and 8. Smartway2’s service marks, logos and product and service names, including, without limitation, Smartway2® (collectively, the “Smartway2 Marks”) are owned by Smartway2. You may not display or use any Smartway2 Marks in any manner without Smartway2’s express prior written permission or permit any person to replicate, copy or use the Smartway2 Marks unless expressly authorized by Smartway2 in advance in writing.

6.2           License Grant to You. Subject to the terms and conditions of this Agreement, Smartway2 hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services as specified in your applicable Order Form, during the Subscription Term only, and only for your own internal business purposes.

6.3           Limitations. You may not, and may not permit any User or other person to:

(a)     modify, copy or create any derivative works based on the Services;

(b)     submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights;

(c)      interfere with or disrupt the integrity or performance of the Services or the data contained therein;

(d)     attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement;

(e)     restrict or inhibit any other person or entity from using the Services;

(f)      frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service;

(g)     post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs;

(h)     remove any copyright, trademark or other proprietary rights notice from the Services;

(i)       systematically download and store Services content;

(j)       use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services;

(k)      decompile or discover the source code of the Software Service or Apps in any way except as strictly permitted by law, and in no event without first notifying and receiving express approval from Smartway2 in advance and in writing before any such attempt is made;

(l)       license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and Users as permitted herein;

(m)    access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services;

(n)     copy any features, functions, integrations, interfaces or graphics of the Services; or

(o)     otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

6.4           License Grant to Smartway2. You and your Users hereby grant to Smartway2 and its Affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or Users relating to the Services or Smartway2’s business.

6.5           Authority from Users. You hereby warrant and represent that you have all necessary consents, authorities, and approvals from your Users for the rights and licenses set out in this Section 6 to be fully effective in law.

7.          Data Ownership and Use

7.1           Your Data. As between you and Smartway2, you and your respective Users own all right, title and interest in Your Data. You and your Users hereby grant to Smartway2 a nonexclusive, worldwide, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data to the extent necessary to provide you with the Services. You represent and warrant to Smartway2 that you have all rights necessary to grant the licenses in this Section 7, and that your provision of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.

7.2           Data Protection. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Section 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

8.         Data Protection – for UK-EU Customers Only

If you are a company located in the UK or the European Economic Area (as defined in Section 16 below), then this Section 8 applies to you. Otherwise, it does not.

8.1           Data Processing. The parties acknowledge that:

(a)     if Smartway2 processes any Personal Data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and Smartway2 is the processor for the purposes of the Data Protection Legislation.

(b)     Schedule A sets out the scope, nature and purpose of processing by Smartway2, the duration of the processing and the types of Personal Data and categories of data subject.

(c)     the Personal Data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and Smartway2’s other obligations under this Agreement.

8.2           Consents. Without prejudice to the generality of Section 8.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Smartway2 for the duration and purposes of this agreement so that Smartway2 may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer’s behalf.

8.3           Data Processing. Without prejudice to the generality of Section 8.1, Smartway2 will, in relation to any Personal Data processed in connection with the performance by Smartway2 of its obligations under this Agreement:

(a)     process that Personal Data only on the documented written instructions of the Customer unless Smartway2 is required by the laws of any member of the European Union or by the laws of the European Union applicable to Smartway2 or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process Personal Data (“Applicable Laws”). Where Smartway2 is relying on Applicable Laws as the basis for processing Personal Data, Smartway2 must promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Smartway2 from so notifying the Customer;

(b)     assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(c)     notify the Customer without undue delay on becoming aware of a Personal Data breach;

(d)     at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and

(e)     maintain complete and accurate records and information to demonstrate its compliance with this Section 8 and immediately inform the Customer if, in the opinion of Smartway2, an instruction infringes the Data Protection Legislation.

8.4           Data Transfers. Without prejudice to the generality of Section 8.1, Smartway2 may not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

(a)     the Customer or Smartway2 has provided appropriate safeguards in relation to the transfer;

(b)     the data subject has enforceable rights and effective legal remedies;

(c)     Smartway2 complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(d)     Smartway2 complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

8.5           Data Protection. Each party must ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it).

8.6           Third Party Processors. The Customer does not consent to Smartway2 appointing any third-party processor of Personal Data under this agreement.

8.7           Additional Provisions relating to Data Processing. Either party may, at any time on not less than 30 days’ notice, revise this Section 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to this agreement)

9.          Confidential Information

9.1           Protection of Confidential Information. Each Party (as the “Receiving Party”) may only use the Confidential Information of the other Party (the “Disclosing Party”): (a) as reasonably necessary to perform Receiving Party’s obligations or exercise any its rights granted pursuant to this Agreement; (b) with the Disclosing Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Receiving Party must protect the Disclosing Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care.

9.2           Exclusions. Confidential Information will not include any information that:

(a)     is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;

(b)     was known to the Receiving Party prior to disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;

(c)      was independently developed by the Receiving Party without breach of any obligation owed to The Disclosing Party; or

(d)     was or is received from a third party without breach of any obligation owed to The Disclosing Party by the Receiving Party or that third party.

10.        Term, Termination, Suspension.

10.1        Term. The term of this Agreement will begin on the Order Effective Date and will remain in effect throughout the Subscription Term. Unless specified otherwise in an Order Form, upon expiration of a Subscription Term, the Subscription Term will be automatically renewed for additional 1-year periods, unless either Party provides the other Party with written notice of non-renewal, delivered within 30 days of the date of such expiration. Unless otherwise specified in an Order Form, fees for the Software Service applicable to any automatic renewal of the Subscription Term will be adjusted to Smartway2’s then-current prices at the time of such renewal.

10.2        Termination for Cause. Either Party may terminate this Agreement upon at least 30 days’ prior written notice to the other Party of a material breach by the other Party, if such breach remains uncured at the expiration of such notice period. In no event will any termination relieve you of your obligation to pay any fees payable to Smartway2 owed as of the effective date of termination.

10.3        Rights on Termination or Expiration. Upon termination or expiration of this Agreement:

(a)     you will have no right to continue use of the Services and must cease accessing or using the Services;

(b)     except as specified in the paragraph 10.3(c), Smartway2 will have no obligation to maintain your Services account or to retain or forward any of Your Data to you or any third party, except as required by applicable law; and

(c)      at your written direction, Smartway2 will delete or return Your Data and copies thereof to You on termination of this Agreement, unless required by applicable law to store Your Data.

11.        Warranties & Disclaimer.

11.1        Warranty of Functionality. Smartway2 warrants to you that during the Subscription Term:

(a)     the Software Service will perform in accordance with the specification described in the Documentation applicable to such Software Service, in all material respects; and

(b)     the functions and features of the Software Service will not be materially decreased.

11.2        Supported Equipment Warranty. Smartway2 warrants to you that during the first 90 days after shipment of the Supported Equipment to you, the Supported Equipment will perform in accordance with the specification described in the Documentation applicable to such Supported Equipment, in all material respects.

11.3        Remedies. Your sole and exclusive remedy for a breach of the warranties set out above in this Section 11 will be as follows:

(a)     with respect to a breach of the warranty applicable to the Software Service, Smartway2 will use commercially reasonable efforts to modify the applicable portions of the Software Service to achieve the functionality described above, and will re-deliver such services to you free of additional charge, and

(b)     with respect to Supported Equipment, Smartway2 will provide you with replacement Supported Equipment in accordance with its RMA policy (see Section 2.6, above).

(c)      If following reasonable efforts Smartway2 is unable to restore such functionality, Smartway2 may, upon written notice to you, terminate some or all of any affected Services. In the event that Smartway2 terminates any Services pursuant to this Section 11.3, Smartway2 will promptly provide you with a pro-rata refund of any pre-paid fees applicable to such Services. Smartway2 will have no obligation with respect to a warranty claim under this Section 11 unless notified by you in writing no later than 30 days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services and Supported Equipment have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any trial or beta services.

11.4        DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 11.1 AND 11.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTWAY2 MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES, SUPPORTED EQUIPMENT OR RELATED DOCUMENTATION. SMARTWAY2 DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 11.1 AND 11.2, THE SERVICES AND ANY SUPPORTED EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

12.        Indemnification.

12.1        Indemnification by Customer. You agree to indemnify, defend, and hold Smartway2 harmless from and against all third party claims alleged or asserted against Smartway2, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) resulting from any:

(a)     actual or alleged breach by you or your Affiliates or Users of the this Agreement, or any use of the Services beyond the scope of any authorization or approval given in writing by Smartway2 to you or to such Affiliate or User;

(b)     claim that any of Your Data is unlawful or actually does or threatens to infringe or misappropriate any intellectual property rights or other rights of any third party, provided however, that you will have no liability to the extent that such claim arises out of or results from any unauthorized access to or use, disclosure, or other processing of Your Data, by or on behalf of Smartway2, or through or enabled by Smartway2’s systems.

12.2        Indemnification by Smartway2. Except as set forth in Section 12.1, Smartway2 will defend at its expense any action brought against you to the extent that it is based on a claim that the Services, when used in accordance with the Documentation and the terms of this Agreement, infringe a patent, copyright or trade secret of any third party, and Smartway2 will pay any costs, damages and reasonable attorneys’ fees finally awarded against you in, or payable in settlement of, such action which are directly attributable to such claim, provided that you:

(a)     notify Smartway2 promptly in writing of the claim,

(b)     permit Smartway2 to assume sole control of the defense, compromise or settlement of the claim, and

(c)      provide to Smartway2 reasonable cooperation, information and assistance in connection therewith.

12.3        Remediation by Smartway2. If a final injunction is obtained against your use of the Services by reason of infringement, or if in Smartway2’s opinion the Services are likely to become the subject of a successful claim of such infringement, Smartway2 may, at its option and expense, (i) procure for you the right to continue using the Services, (ii) modify the Services so that they are non-infringing, or (iii) replace the Services with other software or services of substantially similar functionality. In the event none of the foregoing options are commercially practicable, as determined in Smartway2’s sole discretion, Smartway2 may terminate this Agreement and, if your Order Form is with Smartway2, provide you a pro-rated refund of any pre-paid fees for the remainder of your Subscription Term. Sections 12.2 and 12.3 state Smartway2’s sole and exclusive obligation, and your sole and exclusive remedy, with respect to any claim that the Services infringe the intellectual property rights of any third party.

13.        Limitations and Exclusions on Liability.

13.1        To the maximum extent permitted by law, in no event Smartway2’s aggregate liability, collectively, for all claims arising out of or related to this agreement or your use of the Services generally under any other contract or agreement, whether in contract, tort or otherwise, exceed the fees for the Software Service actually paid by you during the 12-month period immediately preceding the date of the incident giving rise to such liability.

13.2        In no event will Smartway2 have any liability for any indirect, special, incidental, consequential or punitive damages, however caused, or for any lost profits, loss of use, data or opportunities, cost of data reconstruction, cost or procurement of substitute goods or services, whether in contract, tort or otherwise, arising out of, or in any way connected with the Services or Supported Equipment, including but not limited to the use or inability to use the Services or Supported Equipment by you or anyone else, any interruption, inaccuracy, error or omission, even if Smartway2, its Affiliates, suppliers or agents have been previously advised of the possibility of such loss or damages. The foregoing exclusions or limitations may not apply to the extent prohibited by applicable law, so they may not apply to you.

14.        Third-Party Offerings

Although the Services may allow you to access or use Third Party Offerings, they are not part of the “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third-Party Offerings through the Services does not imply Smartway2’s endorsement of or affiliation with the provider. Smartway2 does not control Third-Party Offerings and will have no liability to you or your Affiliates or any other users in connection with any Third-Party Offerings. Smartway2 has no obligation to monitor or maintain Third-Party Offerings, and may disable or restrict access to any Third-Party Offerings at any time. By using or enabling any Third-Party Offering, you are expressly permitting Smartway2 to disclose Your Data or other information to the extent necessary to utilize the Third-Party Offering. Your use of third-party offerings is at your own risk and is subject to any additional terms, conditions and policies applicable to such third-party offerings (such as terms of service or privacy policies of the providers of such third-party offerings).

15.        Anti-Bribery and Anti-Corruption

15.1        Compliance. Smartway2 will:

(a)     comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010 and the US Foreign Corrupt Practices Act, 15 U.S.C. Section 78 et seq;

(b)     not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

(c)      promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by Smartway2 in connection with the performance of this agreement; and

(d)     immediately notify the Customer (in writing) if a foreign public official becomes an officer or employee of Smartway2 or acquires a direct or indirect interest in Smartway2 and Smartway2 warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of this agreement).

Breach of this Section 15 will be deemed a material breach.

15.2        Relevant Terms. Any person associated with Smartway2 who is performing services in connection with this Agreement will only do so on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on Smartway2 in this Section 15 (the “Relevant Terms”). Smartway2 will be responsible for the observance and performance by such persons of the Relevant Terms, and may be directly liable to the Customer for any breach by such persons of any of the Relevant Terms.

15.3        Definitions. For the purpose of this Section 15, the meaning of adequate procedures and foreign public official and whether a person is associated with another person will be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this Section 15, a person associated with Smartway2 includes but is not limited to any subcontractor of Smartway2.

16.        The Smartway2 Entity, Governing Law, and Venue

The Smartway2 Entity entering into this Agreement with you, the laws that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have exclusive jurisdiction over any such dispute or lawsuit, depend on where you are located, as determined by the Customer address provided in the Order Form (regardless of any technical or legal “domicile” determination). In case there is no such address provided, you will be considered located in the United States, for purposes of this Section 16.

The relevant parties and provisions are:

If you are located in: The Smartway2 Entity is: Governing Law is: Courts with Exclusive Jurisdiction are:
United States, Canada or any country located in North or South America Ubiquitti, Inc., a Delaware corporation d/b/a Smartway2 Commonwealth of Massachusetts State and federal courts located in Middlesex and Suffolk County, Massachusetts
UK, any member state of the European Union, and any country in the Middle East or Africa Smartway2, Ltd., a private limited company registered in England and Wales England and Wales London, England
Australia, New Zealand, Japan Smartway2 Australia PTY Ltd, a registered proprietary company registered in New South Wales, Australia New South Wales, Australia New South Wales, Australia

 

17.        Miscellaneous

17.1        Entire Agreement. This Agreement sets forth the complete understanding between you and Smartway2 with respect to the subject matter hereof and supersedes all prior understandings and communications relating thereto. No term or condition of a purchase order or other document you submit to Smartway2 which is different from, inconsistent with, or in addition to the terms and conditions set forth in this Agreement will be binding upon Smartway2. To the extent that this document may constitute an acceptance, this acceptance is expressly conditioned on your assent to the terms and conditions set forth herein. Notwithstanding the foregoing, if you have entered into a separate written agreement with Smartway2 for use of the Services, the terms of such other agreement will prevail over any conflicting terms or conditions in this Agreement.

17.2        Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the applicable jurisdiction set out in Section 16.

17.3        Jurisdiction. Each party irrevocably agrees that the courts sitting in the applicable jurisdiction set out in Section 16 will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation. Notwithstanding the foregoing, either Party may institute a claim for equitable relief in any court of competent jurisdiction to protect its Confidential Information or intellectual property rights.

17.4        Mandatory Informal Dispute Resolution. If you have any dispute with Smartway2 arising out of or relating to this Agreement, you agree to notify Smartway2 in writing with a brief, written description of the dispute and your contact information, and Smartway2 will have 30 days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such 30-day period under this informal process, either Party may pursue resolution of the dispute as otherwise provided in this Agreement.

17.5        Interpretation of this Agreement. Section, schedule, and paragraph headings will not affect the interpretation of this Agreement. A person includes an individual, corporate, or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company or business entity includes any company, corporation, limited liability company, or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular will include the plural and, in the plural will include the singular. A reference to writing or written includes faxes and confirmed email. References to sections and schedules are to the sections and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant Schedule to this agreement.

17.6        Waiver and Severability. No waiver of any provision of this Agreement by either Party will be effective unless in writing and signed by such Party. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

17.7        Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without Smartway2’s prior written consent. Any attempt to assign this Agreement in breach of this Section 17.7 will be void and of no effect. Any change of control of you will be deemed an assignment of this Agreement as well, regardless of whether the change of control involves an actual legal assignment of the Agreement.

17.8        Notices. Any notices provided by Smartway2 under this Agreement may be delivered to you within the Services or to the email addresses we have on file for your account. You hereby consent to receive notice from Smartway2 through the foregoing means, and such notices will be deemed effective when sent if on a Business Day, and if not sent on a Business Day then on the next Business Day. Except as otherwise specified in the Agreement, any notices to Smartway2 under this Agreement must be delivered via first class mail to its registered office address.

17.9        Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, epidemic or pandemic disease, acts of terror, strikes or other labor problems (other than those involving Smartway2’s or your Users, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

17.10      Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

17.11      Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and Smartway2. You will remain responsible for all usage of the Services in relation to this Agreement and all obligations under it.

17.12      Amendments. Smartway2 may amend or vary the terms of this Agreement upon immediate notice by notification to you from time to time and your continued use of the Services generally may be conditional upon your acceptance of those updated terms which may be required to be accepted by you directly the next time you run, load or otherwise access the Services.

18.        Contact Smartway2

Contact Smartway2 regarding the Services or this Agreement at:

Smartway2
225 Cedar Hill St, Suite 200
Marlborough, MA 01752 USA

Email: legal@smartway2.com

Phone:

  • United States: +1 (857) 284 8160
  • United Kingdom: +44 (0)1494 230 036
  • Australia: +61 (2) 9959 1002

 

 

Schedule A to Smartway2 EULA – Data Protection

1.          Smartway2 Technical and Organizational Measures

Smartway2 has implemented and will maintain the appropriate technical and organizational security measures in accordance with General Data Protection Regulation (GDPR) Data Security Principles, for the purpose of protecting Customer or Customer Client Personal Data (collectively, “Customer Personal Data”) against accidental loss, destruction, alteration, unauthorized disclosure or access, or unlawful destruction.

2.          Data Processing

2.1           Scope, nature and purpose of processing by Smartway2: Processing Personal Data in whatever form and of whatever nature supplied by the Customer to it, for the purpose of providing the Services.

2.2           Duration of the processing:  the duration of the Agreement and any Statements of Work made under it

2.3           Types of Personal Data:  dependent on the nature of the Customer’s business

2.4           Categories of data subject: dependent on the nature of the Customer’s business

3.          Smartway2 GDPR Data Security Principles

The technical and organizational measures provided in this Schedule apply to Smartway2 Deliverables or Services (collectively, “Contracted Services”) provided by Smartway2 to Customer, except where Customer or a Customer Client is responsible for security and privacy and otherwise specified in an agreement.

4.          Data Protection

(a)     Security measure for each Smartway2 Deliverable or Service are designed to protect Customer Personal Data and to maintain the availability of such Customer Personal Data pursuant to the Agreement, including applicable Attachments, Statements of Work or other transaction documents (collectively “Agreement Documents”). Customer is the sole controller for any Personal Data and appoints Smartway2 as a processor to process such Personal Data (as those terms are defined in EU General Data Protection Regulation). Smartway2 will treat all Customer Personal Data as confidential by not disclosing Customer Personal Data except to Smartway2 employees, contractors, and sub-processors, and only to the extent necessary to deliver the Service unless otherwise specified in Agreement Documents.

(b)     Smartway2 will securely sanitize physical media intended for reuse prior to such reuse, and will destroy physical media not intended for reuse, consistent with National Institute of Standards and Technology, United States Department of Commerce (NIST), guidelines for media sanitization.

5.          Security Policies

(a)     Smartway2 will maintain and follow IT security policies and practices that are integral to Smartway2’s business and mandatory for all Smartway2 employees, including temporary personnel.

(b)     Smartway2 will review its IT security policies at least annually and amend such policies as Smartway2 deems reasonable to maintain protection of Services and Customer Personal Data processed therein.

(c)      Smartway2 will maintain and follow its standard mandatory employment verification requirements for all new hires, including temporary employees, and extend such requirements to wholly owned Smartway2 subsidiaries. In accordance with Smartway2 internal process and procedures, these requirements will be periodically reviewed and include, but may not be limited to, criminal background checks, proof of identity validation, and additional checks as deemed necessary by Smartway2. Each Smartway2 company is responsible for implementing these requirements in its hiring process as applicable and permitted under local law.

(d)     Smartway2 employees will complete security and privacy education annually and certify each year that they will comply with Smartway2’s ethical business conduct, confidentiality, and security policies, as set out in Smartway2’s employee code of conduct. Additional policy and process training will be provided to persons granted administrative access to Service components that is specific to their role within Smartway2’s operation and support of the Service, and as required to maintain compliance and certifications stated in the relevant Agreement Documents.

6.          Security Incidents

(a)     Smartway2 will maintain and follow documented incident response policies consistent with NIST guidelines for computer security incident handling and will comply with data breach notification terms of the Agreement.

(b)     Smartway2 will investigate unauthorized access and unauthorized use of Customer Personal Data of which Smartway2 becomes aware (security incident), and, within the service scope, Smartway2 will define and execute an appropriate response plan. Customer may notify Smartway2 of a suspected vulnerability or incident by submitting a technical support case for Smartway2 evaluation.

(c)      Smartway2 will promptly (and in no event later than 24 hours) notify Customer of a security incident or Personal Data Breach that is known or reasonably suspected by Smartway2 to affect Customer. Smartway2 will provide Customer with reasonably requested information about such security incident and status of any Smartway2 remediation and restoration activities.

7.          Access, Intervention, Transfer and Separation Control

(a)     Smartway2 will maintain documented security architecture of networks managed by Smartway2 in its operation of the Service. Smartway2 will separately review such network architecture, including measures designed to prevent unauthorized network connections to systems, applications and network devices, for compliance with its secure segmentation, isolation, and defense in depth standards prior to implementation. Smartway2 may use wireless networking technology in its maintenance and support of the Service and associated components. Such wireless networks, if any, will be encrypted and require secure authentication and will not provide direct access to Service networks. Service networks do not use wireless networking technology.

(b)     Smartway2 will maintain measures for a Service that are designed to logically separate and prevent Customer Personal Data from being exposed to or accessed by unauthorized persons.

(c)      To the extend described in the relevant Agreement Documents, Smartway2 will encrypt Customer Personal Data not intended for public or unauthenticated viewing when transferring Customer Personal Data over public networks and enable use of a cryptographic protocol, such as HTTPS, SFTP, and FTPS, for secure transfer of Customer Personal Data to and from the Service over public networks.

(d)     Smartway2 will encrypt Customer Personal Data at rest when specified in Agreement Documents. If the Service includes management of cryptographic keys, Smartway2 will maintain documented procedures for secure key generation, issuance, distribution, storage, rotation, revocation, recovery, backup, destruction, access, and use.

(e)     If Smartway2 requires access to Customer Personal Data, Smartway2 will restrict and limit such access to least level required to provide and support the Service. Such access, including administrative access to any underlying components (privileged access), will be individual, role based, and subject to approval and regular validation by authorized Smartway2 personnel following the principles of segregation of duties. Smartway2 will maintain measures to identify and remove redundant and dormant accounts with privileged access and will promptly revoke such access upon the account owner’s separation or request of authorized Smartway2 personnel, such as the account owner’s manager.

(f)      Consistent with industry standard practices, and to the extent natively supported by each component managed by Smartway2 within the Service, Smartway2 will maintain technical measures enforcing timeout of inactive sessions, lockout requiring secure transfer and storage of such passwords and passphrases.

(g)     Smartway2 will monitor use of privileged access and maintain security information and event management measures designed to (i) identify unauthorized access and activity, (ii) facilitate a timely and appropriate response, and (iii) enable internal and independent third-party audits of compliance with documented Smartway2 policy.

(h)     Logs in which privileged access and activity are recorded will be retained in compliance with Smartway2’s records retention policy. Smartway2 will maintain measures designed to protect against unauthorized access, modification and accidental or deliberate destruction of such logs.

(i)       To the extent supported by native device or operating system functionality, Smartway2 will maintain computing protections for systems containing Customer Personal Data and all end-user systems that include, but may not be limited to, endpoint firewalls, full disk encryption, signature based antivirus and malware detection and removal that will (i) be regularly updated by central infrastructure, and (ii) logged to a central location, time based screen locks, and endpoint management solutions that enforce security configuration and patching requirements.

8.          Service Integrity and Availability Control

(a)     Smartway2 (i) performs penetration testing and vulnerability assessments, including automated system and application security scanning and manual ethical hacking, before production release and annually thereafter, (ii) enlists a qualified independent third-party to perform penetration testing at least annually, (iii) performs automated management and routine verification of underlying components’ compliance with security configuration requirements, and (iv) remediates identified vulnerabilities or noncompliance with its security configuration requirements based on associated risk, exploitability, and impact. Smartway2 will take reasonable steps to avoid Service disruption when performing its tests, assessments, scans, and execution of remediation activities.

(b)     Smartway2 will maintain policies and procedures designed to manage risks associated with the application of changes to its Services. Prior to implementation, changes to a Service, including its systems, networks and underlying components, will be documented in a registered change request that includes a description and reason for the change, implementation details and schedule, a risk statement addressing impact to the Service and its clients, expected outcome, rollback plan, and documented approval by authorized personnel.

(c)      Smartway2 will maintain an inventory of all information technology assets used in its operation of the Service. Smartway2 will continuously monitor the health and availability of the Service and underlying components.

(d)     Each Service will be separately assessed for business continuity and disaster recovery requirements pursuant to documented risk management guidelines. Each Smartway2 Service will have, to the extent warranted by such risk assessment, separately defined, documented, maintained and annually validated business continuity and disaster recovery plans consistent with industry standard practices. Recovery point and time objectives for the Service, if provided, will be established with consideration given to the Service’s architecture and intended use, and will be described in the relevant Agreement documents.

(e)     Smartway2 will (i) back up systems containing Customer Personal Data daily, (ii) ensure at least one backup destination is at a remote location, separate from production systems, (iii) encrypt backup data stored on portable backup media, and (iv) validate backup process integrity by regularly performing data restoration testing.

(f)      Smartway2 will maintain measures designed to assess, test, and apply security advisory patches to the Service and its associated systems, networks, applications, and underlying components within the Service scope. Upon determining that a security advisory patch is applicable and appropriate, Smartway2 will implement the patch pursuant to documented severity and risk assessment guidelines. Implementation of security advisory patches will be subject to Smartway2 change management policy.