Smartkarma Pro Access Terms

Please keep a copy for your reference

These Smartkarma Access Terms form part of the Order Form between Smartkarma and the Client, and set forth the terms and conditions pursuant to which the Client purchases the Subscription for the Platform Services (“Services”) and will be allocated Log-ins for its Authorised Users to access and use the Site. If the Client registers for a Trial Period for the Services, these Access Terms will also govern that Trial Period.

1. PRELIMINARY:

1.1. Acceptance and Authority:  By signing and accepting the Order Form, the Client (through its duly authorised representative) indicates its agreement to these Access Terms and any further terms referenced and incorporated by them.

1.2. Definitions: Capitalised terms not otherwise defined in the Order Form or in the body of the Access Terms shall have the following meaning: 

  • “Affiliate”  shall mean any entity that, directly or indirectly,  controls, is controlled by, or is under common control with the Client, and an entity that otherwise qualifies under this definition may be included within the meaning of “Affiliate” by the Client even though it qualifies after the execution of the Order Form.
  • “Authorised User” refers to each individual employee or agent of the Client or of its Affiliates allocated with a Log-in, as otherwise notified to Smartkarma by Client in writing from time to time.
  • “Client” refers to the entity named on the Order Form, and its Affiliates, unless expressly agreed otherwise.
  • “Content” means anything a User posts or otherwise makes available on the Site, including materials, articles, research, editorials, information, news, listings, data, input, text, audio, video, pictures, graphics, software, blog extracts, webcasts, podcasts, broadcasts, messages, comments, profile pages, suggestions, and ideas.
  • “Effective Date” means the date nominated in the Order Form for the Subscription to commence.
  • “Fees” means the amount payable by the Client for the Subscription, set according to the selected Service Offering and number of Log-ins purchased.
  • “Insight Provider” refers to the third party content providers who write and publish Content on the Site.
  • “Log-in” refers to the individual username and password ‘set’ generated under the Subscription for use and access to the Site by an Authorised User. 
  • “Order Form” means the order form for the Subscription completed on behalf of the Client.
  • “Payment Frequency” refers to the frequency at which Client will pre-pay the Fees for the Subscription, as nominated on the Order Form or as otherwise notified from time to time.
  • “Site” means the Smartkarma platform and website (www.smartkarma.com).
  • “Subscription” means the subscription for the Site and Services. 
  • “Subscription Period” or “Term” means the length of the Subscription, and the default Subscription Period is 12 months.
  • “Trial Period” means an agreed short term period during which a Client may access and use the Services free of charge or on a discounted basis.
  • “User” or ”Users” refers to all third parties who use and access the Site, including Clients and Insight Providers.

2. SERVICES:

2.1. Term: The Term of the Subscription commences on the Effective Date and continues for the nominated Subscription Period (a minimum of 12 months or longer ) (“Initial Term”) after which it will be renewed automatically for successive Subscription Periods (each such period being a “Renewal Term”) unless Smartkarma is notified in writing at least 30 days prior to the end of the Initial Term or any Renewal Term that the Client does not intend to renew (refer clause 7.2), or unless the Agreement is otherwise terminated (refer clause 7.1), or unless the parties have otherwise agreed that auto-renewal shall not apply to the Term (such agreement to be noted under “Special Conditions” on the Order Form). 

2.2. Licence for Services: Smartkarma grants the Client and Authorised User(s) who hold a Log-in, a non-exclusive, non-transferable, worldwide licence ( “Licence”) to access and use the Site and Services in accordance with these Access Terms. All rights not expressly granted to the Client and Authorised User(s) under the Licence are reserved by Smartkarma. The Licence granted to the Client pursuant to these Access Terms only permits access to the Site and use of the Services for the maximum number of Log-ins associated with the Subscription purchased by the Client. Each Log-in must be allocated to a specific Authorised User and must not be shared but may be transferred (refer clause 2.3.b below).

2.3. Access: The following provisions shall apply to Client and Authorised User access to the Site and use of the Services:

  1. The Client is responsible for managing access to the Services and for each Authorised User’s observance of the Access Terms.
  2. The Log-in allocated to each Authorised User has an individual username and password, and these details must not be shared or used by any individual other than that Authorised User. Upon written request, the Log-in may be transferred to a new Authorised User. 
  3. Unauthorised Site access or Log-in misuse may result in immediate suspension or termination of the Authorised User account(s) pursuant to clause 7. The Client agrees to:
    • notify Smartkarma as soon as practicable of any unauthorised access or misuse, or any other known or suspected  breach of security; and 
    • use all reasonable efforts as soon as practicable to stop any known or suspected unauthorised copying or distribution of the Content.

2.4. Limitations and Prohibited Uses: Unless otherwise agreed with Smartkarma, the following limitations and prohibitions apply to access and use of the Content, Services and Site, and all references to the Client include references to Authorised User(s): 

  1. Content on the Site is for visibility and use only by the Authorised Users holding Log-ins. 
  2. Use of the Site and Content must comply with all applicable laws, rules and regulations and must not be unlawful, fraudulent or misleading.
  3. Use of the Site and Content must not conflict with any third party intellectual property rights (for example, Content must not be plagiarised or passed off as Client’s own and any Content extracts, excerpts or quotes must be properly attributed).
  4. Content may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or otherwise used to create any derivative works or to commercially exploit the Content. 
  5. Client may not use any network monitoring or discovery software to determine the architecture of the Site or the Services, or to extract information about usage or individual identities. 
  6. Client may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Site, Services, or Content. 
  7. Client may not create Internet “links” to the Site or Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device. 
  8. Client may use the Site and Services and download and use Content for its own internal business use and purposes, and for limited external use and purposes, provided all Smartkarma and third party copyright and other proprietary notices contained on the Content are retained, and any other unauthorised or external commercial use is expressly prohibited by this Agreement.
  9. Client and Authorised Users may not use the Site or Services to: 
    • send spam or otherwise unsolicited messages; 
    • send or store material containing software viruses or other harmful programs, or infringing, obscene or otherwise unlawful material;  
    • interfere with or disrupt the integrity or performance of the Site, Services, or Content; or 
    • attempt to gain unauthorized access to the Site, Services, or its related systems or networks.

2.5. Licence to Smartkarma: Regarding any Content the Client or its Authorised User(s) publish or display on the Site from time to time (for example, profile details and comments), the Client and Authorised User(s) grant to Smartkarma a non-exclusive, revocable, worldwide, royalty free licence to host and display such Content on the Site. Following termination and/or deactivation of the Client’s Subscription and/or Authorised User accounts, Smartkarma shall be permitted to continue to host and display such Content for necessary audit, archival and related purposes. For the avoidance of doubt, this limited licence under clause 2.5 does not extend to Smartkarma any rights to use the Client’s name, logo or other marks in promotional and marketing material, publicity releases or any public manner, except with Client’s express prior written permission.

3. FEES:

3.1. Fees: Fees for the Subscription are in US dollars and are set according to the selected Service Type and the maximum number of Log-ins associated with the Subscription. Fees are payable in advance according to the nominated Payment Frequency (i.e. annual or quarterly) and are subject to incremental adjustment if Client adds additional Log -in(s) during the Subscription Period in accordance with clause 3.3.  Smartkarma reserves the discretion to review and amend Fees upon any Renewal Term. In the event of termination under clause 7.1, Smartkarma is unable to provide a refund of any pre-paid Fees except in the circumstances expressly described therein.

3.2. Adjustment for Inflation: Unless expressly stated otherwise in the Special Conditions to this Order Form, upon each successful renewal, all fees specified herein shall be subject to an automatic annual increase of 5%, effective on the applicable renewal date. This escalation is cumulative, applies to all charges, and reflects adjustments for annual inflation. For the avoidance of doubt, this does not preclude the Parties from mutually agreeing to a higher increase.

3.3. Additional Log-ins: During the Subscription Period, Client may increase the number of Log-ins, and, unless another price is specified on the Order Form or is otherwise agreed, a prorated fee increase to the Fees shall apply, effective from the time of the additional Log-in(s).

3.4. Taxes: Unless otherwise indicated, the Fees set out on the Order Form are exclusive of any goods and services tax (“GST”) that may be imposed by applicable law in respect of the Services. For the avoidance of doubt, where applicable, Smartkarma shall invoice the Client for any GST payable in respect of the Services and Client shall bear liability to pay any properly invoiced GST payable on the Fees.

4. INTELLECTUAL PROPERTY:

The Client expressly acknowledges that: 

  1. Content contained within the Services and on the Site is owned or licensed by Smartkarma, the Insight Providers and/or other Users, and is protected by applicable copyrights, trademarks, service marks, and/or other intellectual property rights; 
  2. all copyright and other intellectual property rights in the form, layout, symbols, templates and other guidance used in the Site to present and publish the Content belong to Smartkarma, and the Client shall not acquire or claim any title to such rights under or by virtue of this Agreement; and 
  3. nothing contained on the Site should be construed as granting (by implication, estoppel, or otherwise) any licence or right to use any trademark or image displayed on the Site without the written permission of Smartkarma or relevant third party. 

5. TRIAL PERIOD:

At Smartkarma’s discretion, a free trial or evaluation period may be offered for the Services for a Trial Period. These Access Terms will apply fully to the Client throughout any Trial Period as though the Client was a full-paying Client. Any additional special terms that apply to the Trial will be set forth in an attached schedule.  At the end of any Trial Period, the Client may elect to continue the Services on a paid basis by confirming this commitment in writing to Smartkarma.

6. CONFIDENTIALITY, PRIVACY & DATA PROTECTION:

6.1. Obligations: Each party undertakes that it, together with its employees and any agents, will keep all Confidential Information (if any) confidential and will not disclose it in whole or in part to any third party, nor use Confidential Information for any purpose other than the performance of its obligations under these Access Terms nor make any public announcement regarding the terms or operation of these Access Terms except with the express written consent of the other. The provisions in clause 6 shall survive termination.

6.2. Meaning of “Confidential Information”: “Confidential Information” means all information concerning a party’s business not generally known to the public, whether or not marked as confidential. By way of illustration, Confidential Information may include (but is not limited to) these Access Terms, trade secrets, know-how, inventions, contractual disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, whether or not such information is marked as confidential. For the avoidance of doubt, Confidential Information shall not include information which:

  1. at or prior to the time of disclosure was known to the receiving party except to the extent that such information was obtained unlawfully or by a breach of confidentiality;
  2. at or after the time of disclosure becomes generally available to the public other than through any act or omission on the part of the receiving party;
  3. is independently developed by the receiving party; or
  4. is required to be disclosed by law, by a court order or by any competent governmental or regulatory authority.

6.3. Data Protection and Privacy: If providing access to the Site or use of the Services includes the processing of data that contains personal information that is subject to the General Data Protection Regulation (EU) 2016/679 or similar legislation in other jurisdictions, Smartkarma agrees to comply with those requirements in processing personal information. As regards Smartkarma’s use and collection of personal data generally, the Smartkarma Privacy Policy, available on the Site and updated from time to time, is hereby incorporated by reference into the Access Terms (refer further clause 12.1).

7. TERMINATION AND SUSPENSION:

7.1. Termination:Either party may immediately terminate the Subscription if: (i) the other Party is in material breach of the Access Terms and fails to cure that breach within 30 days after receipt of written notice, or such breach is incurable; (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings; or (iii) for regulatory reasons, the Subscription and Services may no longer be provided or received, as applicable. Termination shall not affect any accrued rights or liabilities of either party, and any rights intended to continue after termination. For the avoidance of doubt, following termination, Smartkarma is unable to refund any unused pre-paid Fees except where the Client’s termination is due to Smartkarma’s uncured or incurable material breach.

7.2. Fees upon Wrongful termination: In the event the Client wrongfully terminates the Subscription (including but not limited to the Client requesting for the Subscription to be brought to an end prior to the end of the Term), the Client shall remain liable for the full amount of Fees for the remainder of the Term. Smartkarma shall be entitled to retain any unused pre-paid Fees to discharge the Client’s liability (whether in part or in full) under this clause for wrongful termination, and recover any remaining outstanding amount from the Client as a debt due.

7.3. Other action for breach: In the event of breach by the Client or Authorised Users or use of the Services or Site which Smartkarma reasonably believes will cause it liability, Smartkarma may also take other action which includes any or all of:

  1. immediate, temporary or permanent suspension or withdrawal of the right to use the Services or the Site after it has been confirmed that the Access Terms have been breached;
  2. immediate, temporary or permanent deactivation of an Authorised User’s account and/or the removal of any Content published by the Client or Authorised User;
  3. issue a written warning to the Client and/or Authorised User; 
  4. pursue further legal action; and/or
  5. make disclosure of such information to law enforcement authorities as reasonably necessary or required.

8. REPRESENTATIONS AND WARRANTIES:

8.1. Mutual Warranties: Each party represents and warrants to the other party that:

  1. it has all right, title, and authority to enter into these Access Terms; and  
  2. its execution of and engagement under these Access Terms do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a party or by which it is bound.

8.2. Client Warranties: Each time the Client and its Authorised User(s) use the Site or the Services, the Client is deemed to represent and warrant to Smartkarma that: 

  1. it has all regulatory and legal authority to enter into and be bound by these Access Terms; and 
  2. use of the Site and the Services complies with all applicable laws, rules and regulations.

8.3. Smartkarma Warranties: Smartkarma represents and warrants to the Client that:

  1. it has the authority to grant the rights and licences contemplated by these Access Terms, without the need for any licenses, releases, consents, approvals or immunities not yet obtained; 
  2. to the best of its knowledge, the Content provided through the Site is and does not contain material, non-public information obtained in breach of a duty of trust or confidence or otherwise; and
  3. the collection, disclosure,  delivery, and use of the Content as contemplated by these Access Terms, does not and shall not infringe, misappropriate or violate any proprietary right of any third party, including any copyright, patent, trade secret, publicity, privacy, or other intellectual property right, and the Content is not and shall not be defamatory or obscene.

9. DISCLAIMERS: 

All Content accessible via the Subscription and the Services is expressly covered by the disclaimers set out below:

9.1. Content Disclaimers: Smartkarma does not review or exercise editorial control in respect of the Content. While the Content contained in the Services is derived from sources deemed reliable, Smartkarma assumes no liability for the Content including regarding accuracy or suitability for purpose and except for any warranties provided under clause 8.3 above, Smartkarma makes no other warranty or guarantee, express or implied. The Client further acknowledges that the following disclaimers apply to Content and the Services:

  1. Content on the Site is of a general nature only and is not, and shall not be construed as or relied upon as professional, targeted financial or investment advice. Independent advice should be obtained before reliance is placed upon Content;
  2. Smartkarma is not a broker, securities dealer or financial adviser and Content will not, in any circumstances, be construed as, or be considered to form part of, any offer for sale, subscription, solicitation or  invitation to buy or subscribe for any securities or financial products.
  3. remuneration payable to Insight Providers by Smartkarma shall in no way be construed as an endorsement or other positive evaluation of the Insight Provider or their published Content; and
  4. Smartkarma does not endorse or recommend, nor is an agent, reseller or distributor of, and has no control over, any third party products that may, from time to time, be promoted or discussed on the Site, or any third party links that may be displayed on the Site.

9.2. Provided “As Is”: The Site and Services are provided “as is” and “as available”.  Notwithstanding that Smartkarma makes commercially reasonable efforts to ensure uninterrupted services and a virus free environment, Smartkarma does not represent or warrant that the Site, Services or Content will be always uninterrupted and accessible, error-free or virus free.

10. LIMITATION OF LIABILITY:

10.1. Limitation: Smartkarma will not be liable for for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to:

  1. any errors in or omissions from the Site, Services or Content, including but not limited to technical inaccuracies and typographical errors; 
  2. the temporary or unavoidable unavailability of this Site or Services or any portion thereof; 
  3. Client’s use of this Site, Services or the Content in breach of these Access Terms; 
  4. Client’s use of any equipment or software in connection with the Site or the Content; or 
  5. any third party products directly or indirectly accessed through links contained on the Site or through the Services.

10.2. Cap on Liability: The parties agree that the liability of Smartkarma and the Client to each other for any and all cause(s) of action, regardless of form of action (including contract, tort, negligence or any other) directly arising out of or resulting from the performance or breach of the Access Terms will not exceed an amount equal to the Fees paid by the Client in the 12 months prior to the event that directly gave rise to the damages claimed.  

10.3. Indirect Loss: Notwithstanding the above, neither party shall be liable to the other party or to any third party for any special, indirect, incidental, punitive, consequential damages, or damages from lost profits, lost use or any other damages or any other kind whatsoever (including without limitation attorney’s fees) in any way due to, resulting from, or arising in connection with the Access Terms or the use of or inability to use the Services or Content, even if the party has been advised of the possibility of such damages.

10.4. Negligence and other exceptions: Notwithstanding the above, the limitations on liability in clauses 10.1, 10.2 and 10.3 will not apply to:

  1. claims for gross negligence, wilful misconduct, fraud or criminal acts or omissions; 
  2. breach of confidentiality; or 
  3. any third party claims subject to the indemnification provisions of this Access Agreement. 
  4. the Client’s liability for wrongful termination under clause 7.2

11. INDEMNIFICATION:

11.1. Mutual Indemnity: Each party agrees to indemnify, defend and hold harmless the other party, and that party’s officers, directors, employees, agents, licensors and suppliers (including, as regards Smartkarma, any third party Insight Providers) from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees (collectively, “Losses”), resulting from or in connection with: 

  1. any breach by it (or associated parties) of any obligation under Clause 6 Confidential Information; 
  2. any breach by it (or associated parties) of any warranty or representation under Clause 8 Representations and Warranties; 
  3. any breach by it (or associated parties) of any applicable law or regulation in relation to the performance of these Access Terms; and/or 
  4. any misuse, loss, damage, corruption, security breach or destruction of the Services by it (or associated parties).

11.2. Conditions of Indemnity: Indemnification under the above clause will be provided only on the conditions that: 

  1. the indemnifying party is given written notice within 14 days after the indemnified party receives notice of the subject action (“Action”); 
  2. the indemnifying party has sole control of the defense of the Action and related settlement negotiations, but any settlement that would impose monetary or injunctive obligation on the indemnified party will be subject to that party’s prior written approval and will unconditionally release the indemnified party of all liability; and 
  3. the indemnified party provides full cooperation in furtherance of such defense, as reasonably required by the indemnifying party at the indemnifying party’s expense.

12. MISCELLANEOUS:

12.1. Incorporated Terms: These Access Terms reference and incorporate the Smartkarma Privacy Policy as published and updated on the Site from time to time. If Special Conditions are listed on the Order Form, then these Access Terms also reference and incorporate the Special Conditions, and in the event of any inconsistency between the Special Conditions, and these Access Terms, unless otherwise indicated, the Special Conditions prevail.

12.2. Entire Agreement: In all other respects, the Order Form and Access Terms contain the entire agreement of the parties relating to the Services and supersedes all previous proposals, arrangements and agreements between the parties relating to the Services and the Site. Each party confirms that it has not relied on any statement or representation given by the other party except those expressly repeated herein.

12.3. Variation: These Access Terms shall not be varied except by agreement in writing signed by a duly authorised representative of each party.

12.4. Severance:  If any provision of these Access Terms is held to be void or unenforceable in whole or in part by any competent court or regulatory authority, and where such provision is not fundamental to the commercial purpose of the Access Terms, then the Access Terms shall continue in force in relation to the unaffected provisions and the remainder of the provision in question. The parties will then negotiate in good faith replacement terms for the affected provision in order to achieve as closely as possible the original intentions of the parties.

12.5. No Waiver: No failure or delay by either party in exercising any right, power or privilege under the Access Terms shall operate as a waiver thereof, nor shall any single or partial exercise by either party of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in the Access Terms are cumulative and not exclusive of any rights and remedies provided by law.

12.6. Assignment: The Client may not assign its rights and obligations under the Order Form or Access Terms in whole or in part to any third party (except to an affiliate) without the prior written consent of Smartkarma.

12.7. Governing Law and Jurisdiction: The Access Terms shall be governed by and construed in accordance with the law in force in Singapore and the parties hereby submit to the jurisdiction of the Singapore courts.