- DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control
with the subject entity (control, for purposes of this definition, meaning (a) direct or indirect ownership or
control of more than 50% of the voting interests of the subject entity or (b) control of management or
operational decisions by contract).
“Customer Data” means all information processed or stored on computers or other electronic media by
End Client or on End Client’s behalf, or provided to SpotMe for such processing or storage, as well as any
information derived from such information. Customer Data includes, without limitation: (a) information on
paper or other nonelectronic media provided to SpotMe for computer processing or storage, or information
formerly on electronic media; (b) information provided to SpotMe by End Client’s customers or other users
or by other third parties; and (c) personally identifiable information from such customers, users or other
third parties.
“End Client” means an entity purchasing Services for its own use and not for resale, redistribution,
remarketing, or any other use.
“Organization” means a deployment of SpotMe with a defined set of Backstage users. An Organization is
the virtual space provided to End Client and includes all End Client’s data, and is separate from all other
Organizations.
“Professional Services” means human-based services, including but not limited to implementation of
services, introduction and standard training, availability of a program manager/director, an event
producer/project manager, and an event coordinator/data analyst.
“Reseller” means the company identified on page 1 of the Agreement that purchases Subscription
Services with the intention of selling individual Workspaces to third parties. To qualify as a Reseller, the
latter shall: (i) have signed this Agreement; (ii) have entered into an agreement with SpotMe for sale of the
Subscription Service; (iii) have complied with the Restrictions on Reseller as described in Section 3 below.
“Service Partner” means a company that provides Professional Services related to the SpotMe Platform
to End Clients. In order for the company to qualify as a Service Partner, it shall have at least one employee
or contractor who has, as of the Effective Date and subject to the provisions of Section 2.3 below, completed
SpotMe’s training program.
“SpotMe” means the company SpotMe Holding SA with registered office at Avenue du Théâtre 1, 4th floor,
1005 Lausanne, Switzerland and including its subsidiaries SpotMe SA with registered office at Avenue du
Théâtre 1, 4th floor, 1005 Lausanne, Switzerland, SpotMe Inc. with registered office at 935 W Chestnut St
#515, Chicago, IL 60642, USA, SpotMe Pte. Ltd. with registered office at 16 Raffles Quay #33-03, Hong
Leong Building, Singapore 048581, Singapore, or SpotMe EOOD, Ulica 17 Henrik Ibsen, 6th floor, 1407
Sofia, Bulgaria.
“SpotMe Platform” means the entire SpotMe solution.
“Subscription Service” means SpotMe’s software-as-a-service offering ordered by End Client under a
standalone contract, an order form, or another signed ordering document between SpotMe and End Client.
“Workspace” means a virtual space provided to End Client that includes all the Client’s data related to a
specific event. A Workspace belongs to an Organization and is separate from all other Workspaces.
- TRAINING AND SUPPORT
- SpotMe will make available to Reseller, without charge, various webinars, sales materials and other
resources necessary to promote the services offered by SpotMe (collectively, “Reseller Toolset”). SpotMe
may change or discontinue any or all parts of the Reseller Toolset at any time without notice.
- Reseller acknowledges that support and maintenance services related to the use of the Subscription
Service may be provided directly to End Client and its users.
- Reseller and/or Service Partner acknowledge that in order to maintain their Reseller or Service Partner
status, at least one Reseller/Service Partner employee or contractor shall have completed SpotMe’s training
program within the last 12 months. Reseller/Service Partner shall provide evidence for completed trainings
not later than January 15 of each contract year. Failure to provide such evidence may result in termination
of this Agreement, pursuant to Section 6.4 below or suspension of Backstage access.
- RESTRICTIONS ON RESELLER
- Reseller acknowledges that and agrees to:
- disclose the name of End Client to which the Subscription Service will be sold;
- only resell Subscription Services that have a fixed number of Workspaces;
- in the event App Publishing is included in the Subscription Service plan, it shall be exclusively used
for a branded application under Reseller’s name. App Publishing service cannot be resold to End Client. Reseller understands that App Publishing requires the sale of Subscription Services from
SpotMe to End Client.
- Failure to meet the restrictions set out in Section 3.1 above may result in termination of this Agreement,
pursuant to Section 6.4 below.
- PROPRIETARY RIGHTS
- SpotMe’s Proprietary Rights. No license to any software is granted by this Agreement. SpotMe’s
Subscription Service is protected by intellectual property laws, belongs to and is the property of SpotMe or
its licensors (if any). SpotMe retains all ownership rights in the Subscription Service. Reseller agrees not to
copy, rent, lease, sell, distribute, or create derivative works based on the SpotMe content, or the SpotMe’s
Subscription Service in whole or in part, by any means, except as expressly authorized in writing by SpotMe.
- End Client’s Proprietary Rights. As between Reseller and End Client, End Client retains the right to
access and use SpotMe’s Backstage portal, regardless of whether Reseller placed the order with SpotMe
for End Client or made or makes payments for End Client. End Client will own and retain all rights to its
data. If SpotMe deems it to be necessary based on the relationship status between Reseller and the End
Client or the particular situation, SpotMe may communicate directly with End Client and/or may port
ownership of the Backstage portal to End Client,
- Service Partner’s Proprietary Rights. When Reseller also acts as a Service Partner, the latter grants
SpotMe a worldwide, limited-term license to use at its own discretion Service Partner's corporate brand
name and logo to identify Service Partner as a certified partner on SpotMe’s website or in marketing or
publicity materials. Subject to the limited license granted herein, SpotMe acquires no right, title or interest
from Service Partner to any of Service Partner’s corporate brand name and other related information.
- CONFIDENTIALITY
- During the term of this Agreement, each party may have access to confidential information of the other
Party that the disclosing party identifies as being confidential or that the receiving party reasonably should
know is confidential (“Confidential Information”). Confidential Information of SpotMe includes, without
limitation, (i) the source code for any software comprising the Services, (ii) any accompanying
documentation, (iii) information proprietary to SpotMe or to any person or entity contracted by SpotMe,
which provides services, materials, products, or supplies in connection with the Services (a “Supplier”), (iv)
this Agreement and the terms, conditions and pricing contained in this Agreement, and (v) all of SpotMe’s
technology involved in providing the Services. Except as required by law, neither party shall in any way use
or disclose any Confidential Information of the other party except as specifically contemplated by this
Agreement or with the prior written consent of the other party.
- During the term of this Agreement, each party may have access to confidential information of the other
Party that the disclosing party identifies as being confidential or that the receiving party reasonably should
know is confidential (“Confidential Information”). Confidential Information of SpotMe includes, without
limitation, (i) the source code for any software comprising the Services, (ii) any accompanying
documentation, (iii) information proprietary to SpotMe or to any person or entity contracted by SpotMe,
which provides services, materials, products, or supplies in connection with the Services (a “Supplier”), (iv)
this Agreement and the terms, conditions and pricing contained in this Agreement, and (v) all of SpotMe’s
technology involved in providing the Services. Except as required by law, neither party shall in any way use
or disclose any Confidential Information of the other party except as specifically contemplated by this
Agreement or with the prior written consent of the other party.
- Each party understands that the Confidential Information constitutes valuable business assets of the
discloser, and the unauthorized disclosure of Confidential Information may irreparably harm the discloser.
In the event of breach or threatened breach of obligations pertaining to Confidential Information by the recipient, the discloser shall be entitled to seek injunctive relief and any other remedy available at law or
equity.
- TERM AND TERMINATION
- Term. This Agreement will apply for as long as Reseller participates in the Program and fulfill all the
participation requirements under the Program, until terminated.
- Termination Without Cause. Both Reseller and SpotMe may terminate this Agreement on thirty (30) days
written notice to the other party.
- Termination for Agreement Changes. If SpotMe updates or replaces the terms of this Agreement,
Reseller may terminate this Agreement on ten (10) days written notice to SpotMe.
- Termination for Cause. SpotMe may terminate this Agreement and/or suspend Reseller’s or End Client’s
access to the Subscription Service:
- upon thirty (30) days’ notice to Reseller of a material breach if such breach remains uncured at the
expiration of such period;
- automatically, within thirty (30) days of Reseller failing to meet the applicable requirements;
- immediately, if either party becomes the subject of a petition in bankruptcy or any other proceeding
relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
- immediately, if End Client violates SpotMe’s Terms of Agreement or applicable local, state, federal,
or foreign laws or regulations;
- immediately, if Reseller breaches confidentiality obligations under this Agreement or infringes or
misappropriates SpotMe’s intellectual property rights;
- immediately, if Reseller breaches the terms applicable to Reseller’s subscription with SpotMe; or
- immediately, if SpotMe determines that Reseller is acting, or has acted, in a way that has or may
negatively reflect on or affect SpotMe, its prospects, or its customers.
- Effects of Expiration/Termination. Expiration or termination of this Agreement for any reason other than
termination pursuant to Section 6.4 above does not terminate Reseller’s Subscription Service or any
Subscription Service Reseller may have purchased on End Client’s behalf. Reseller’s purchase and use of
the Subscription Services is governed by the agreement for sale of the Subscription Service.
- Upon termination or expiration, Reseller will immediately discontinue all use of SpotMe’s trademark and will
remove all SpotMe badges and references from its website(s) and other collateral.
- REPRESENTATIONS AND WARRANTIES
Reseller represents and warrants that: (i) it has all sufficient rights and permissions to provide the prospect
data to SpotMe for SpotMe’s use in sales and marketing efforts or as otherwise set forth in this Agreement,
(ii) the performance of Reseller’s obligations under this Agreement will not conflict with any of Reseller’s
existing agreements or arrangements; (iii) Reseller owns or has sufficient rights to use and to grant to
SpotMe the right to use Reseller’s trademarks, service marks and logos; and (iv) Reseller and End Client
comply with the Sanctions provisions set out in Section 12.6 below.
- INDEMNIFICATION
Reseller will indemnify, defend and hold SpotMe harmless, at its own expense, against any third-party
claim, suit, action, or proceeding (each, an "Action") brought against SpotMe (and its officers, directors,
employees, Resellers, service providers, licensors, and affiliates) by a third party not affiliated with SpotMe
to the extent that such Action is based upon or arises out of (a) Reseller’s noncompliance with or breach of
this Agreement, , or (b) SpotMe’s use of Reseller’s trademarks, service marks and logos. SpotMe will: notify Reseller in writing within thirty (30) days of becoming aware of any such claim; give Reseller sole control
of the defense or settlement of such a claim; and provide Reseller (at Reseller’s expense) with any and all
information and assistance reasonably requested by Reseller to handle the defense or settlement of the
claim. Reseller shall not accept any settlement that (i) imposes an obligation on SpotMe; (ii) requires
SpotMe to make an admission; or (iii) imposes liability not covered by these indemnifications or places
restrictions on SpotMe without SpotMe’s prior written consent.
- DISCLAIMERS; LIMITATIONS OF LIABILITY
- Disclaimer of Warranties. SPOTME AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR
WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR
ACCURACY OF THE SPOTME SERVICES, THE PROGRAM, OR FOR ANY PURPOSE. TO THE
EXTENT PERMITTED BY LAW, THE SPOTME SERVICES AND THE PROGRAMARE PROVIDED "AS
IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. SPOTME DISCLAIMS ALL WARRANTIES
AND CONDITIONS OF ANY KIND WITH REGARD TO THE SPOTME SERVICES AND THE
PROGRAMINCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- No Indirect Damages. EXCEPT FOR RESELLER’S LIABILITY ARISING FROM ITS OBLIGATIONS
UNDER THE “CONFIDENTIALITY” SECTION, AND RESELLER’S LIABILITY FOR VIOLATION OF
SPOTME INTELLECTUAL PROPERTY RIGHTS, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, SPOTME
IS DETERMINED TO HAVE ANY LIABILITY TO RESELLER OR ANY THIRD PARTY, THE PARTIES
AGREE THAT SPOTME’S AGGREGATE LIABILITY WILL BE LIMITED THE TOTAL AMOUNT OF
SUBSCRIPTION SERVICES FEES PAID BY RESELLER TO SPOTME IN THE 12 MONTHS PRECEDING
THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL
APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF
LIABILITY.
- NON-EXCLUSIVITY
- This Agreement does not create an exclusive agreement between Reseller and SpotMe. Both Reseller and
SpotMe will have the right to recommend similar products and services of third parties and to work with
other parties in connection with the sale and use of similar services and products of third parties.
- Nothing in this Agreement prevents or limits SpotMe from entering into an agreement for sale of the
Subscription Service with End Clients contracted by Reseller.
- Partner’s participation in the Program is not limited to a single role (a Reseller or a Service Partner),
however, the eligibility requirements for each level of participation set out in Section 1 above must be met
and maintained separately.
- NON-SOLICITATION
Reseller agrees not to intentionally solicit for employment any of SpotMe’s employees or contractors during
the term of this Agreement and for a period of twelve (12) months following the termination or expiration of
this Agreement. Both Reseller and SpotMe acknowledge that (i) any public job posting, or public solicitation
not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either SpotMe employees or
contractors.
- GENERAL
- Amendment; No Waiver. SpotMe may update and change any part or all of this Agreement, including by
replacing it in its entirety. If SpotMe updates or changes this Agreement, the updated Agreement will be
posted at www.spotme.com/partnerprogram and SpotMe will let you know by email. The updated
Agreement will become effective and binding on the next business day after it is posted. When SpotMe
changes this Agreement, the “Last Modified” date above will be updated to reflect the date of the most
recent version. If Reseller does not agree to the update, change or replacement, Reseller can choose to
terminate pursuant to Section 6.3 above. No delay in exercising any right or remedy or failure to object will
be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a
waiver of any right or remedy on any future occasion.
- Applicable Law. This Agreement shall be governed by the laws of Switzerland, without regard to the
conflict of laws provisions thereof. In the event either of the parties initiates an action in connection with this
Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action
shall be in the courts of the canton of Vaud, Switzerland.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of
war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused
by the obligated party; government restrictions; or other event outside the reasonable control of the
obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Independent Contractor. The Parties agree that Reseller is an independent contractor of SpotMe and that
this Agreement in no way creates any employee/employer relationship or any partnership, agency, or other
joint venture or enterprise, between the Parties and neither Party has the right or authority to bind the other
Party to any obligation.
- Compliance with Applicable Laws. Reseller shall comply and shall ensure that any third parties
performing sales or referral activities on Reseller’s behalf comply, with all applicable foreign and domestic
laws (including without limitation export laws, privacy regulations and laws applicable to sending of
unsolicited email), governmental regulations, ordinances, and judicial administrative orders. Reseller shall
not engage in any deceptive, misleading, illegal, or unethical marketing activities, or activities that otherwise
may be detrimental to SpotMe, its customers, or to the public.
- Sanctions. None of the Reseller, the End Client, nor, to the knowledge of Reseller, any directors, director
nominees, officers, or employees of Reseller, or any affiliate or other person acting on behalf of Reseller,
is currently the subject or the target of any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security
Council, the European Union, Her Majesty’s Treasury of the United Kingdom, or other relevant sanctions
authority (collectively, “Sanctions”); nor is Reseller or End Client located, organized or resident in a country
or territory that is the subject or target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North
Korea, and Syria; and Reseller or End Client will not directly or indirectly resell or use the Services or
otherwise make available such Services to any subsidiary, or any joint venture partner or other person or
entity, for the purpose of financing the activities of or business with any person, or in any country or territory,
that is the subject or target of Sanctions or in any other manner that will result in a violation by any person
(including any person participating in the transaction whether as underwriter, advisor, investor or otherwise)
of applicable Sanctions. Since its inception, Reseller or End Client has not knowingly engaged in and is not
now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or
transaction is or was the subject or the target of Sanctions or with any sanctioned country.
- Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law,
then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision
that most closely matches the intent of the original provision and the remainder of this Agreement will
continue in effect.
- Notices. Any notice to SpotMe under this Agreement should be addressed to:
Avenue du Théâtre 1, 4th floor, 1005 Lausanne, Switzerland
E-mail: legal@spotme.com
Attention: Group Legal Counsel
All notices related to the Agreement will be in writing and will be effective upon (a) personal delivery, (b)
the third business day after mailing, or (c), on the day of sending by email. All notices to Reseller will be
addressed to the relevant billing contact designated by Reseller.
- Entire Agreement. This Agreement is the entire agreement between the parties. SpotMe’s obligations are
not contingent on the delivery of any future functionality or features of the SpotMe Platform or dependent
on any oral or written public comments made by SpotMe regarding future functionality or features of the
SpotMe Platform.
- Assignment. Reseller will not assign or transfer this Agreement, including any assignment or transfer by
reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation
of law, without SpotMe’s prior written consent. SpotMe may assign this Agreement to any Affiliate or in the
event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation
of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer
upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
- No Licenses. SpotMe grants to Reseller only the rights and licenses expressly stated in this Agreement,
and Reseller receives no other rights or licenses with respect to SpotMe, SpotMe’s products, trademarks,
or any other property or right of SpotMe.
- Sales by SpotMe. This Agreement shall in no way limit SpotMe’s right to sell its Services, directly or
indirectly, to any current or prospective customers.
- Authority. Each party represents and warrants to the other that it has full power and authority to enter into
this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
- Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Proprietary
Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of
Liability’, ‘Non-Solicitation’ and ‘General’.
The undersigned have executed this Agreement as of the Effective Date first written above:
RESELLER
By: __________________________
Name: _______________________
Title: _________________________
SPOTME
By: __________________________
Name: _______________________
Title: _________________________