These Access Terms set out the terms and conditions pursuant to which the Authorised User, on the Client’s behalf, will be granted access to and use of the Site and Services under the Subscription or InstaPass.
1.1. Acceptance and Authority: By proceeding to purchase the Subscription or InstaPass, the Authorised User, on the Client’s behalf, indicates its agreement to these Access Terms and any further terms referenced and incorporated by them. If the Authorised User does not have authority to bind the Client, or does not agree with these Access Terms, Authorised User must not accept the Access Terms and may not use the Site or the Services.
1.2. Definitions: Capitalised terms not otherwise defined in the body of these Access Terms shall have the following meaning:
- “Authorised User” refers to the individual purchasing the Subscription or InstaPass on behalf of the Client and/or who is being nominated by the Client to use the Subscription or InstaPass.
- “Content” means anything a User posts or otherwise makes available on the Site, including profile information, materials, articles, editorials, information, news, listings, data, input, text, audio, video, pictures, graphics, software, blog extracts, webcasts, podcasts, broadcasts, messages, comments, suggestions, and ideas.
- “Fees” means the fees payable for the Subscription or InstaPass.
- “Insight Provider” refers to the third party content providers who write and publish Content on the Site.
- “Log-in” refers to the username and password ‘set’ generated under the Subscription or InstaPass and allocated to the Authorised User for their sole use.
- “Services” refers to the research services provided through the Site.
- “Subscription” refers to the Per User subscription being purchased online to access the Site and the Services.
- “Site” means the Smartkarma online platform accessed at www.smartkarma.com.
“User” or ”Users” refers to all third parties who use and access the Site, including Clients (and their Authorised Users) and Insight Providers.
2. Term & Access:
- A Subscription commences on the date of purchase and shall continue for the selected Subscription period (i.e. month, quarter, year or other such period of time, as applicable). Auto-renewal shall apply to each Subscription purchased online as the default setting, and the method of payment provided at the time of the Subscription shall be billed upon each renewal unless Smartkarma is notified prior to the end of the current Subscription period, that the Client/Authorised User does not intend to renew.
- InstaPass is valid for 5 days from date of purchase, and commences upon Authorised User's first log in to the Site and expires automatically after 3 hours. For avoidance of doubt, InstaPass becomes invalid if Authorised User does not log in to the Site within 5 days from purchase.
2.2. Licence for Services: Smartkarma grants the Authorised User a non-exclusive, non-transferable, worldwide licence (“Licence”) to access and use the Site and Services in accordance with these Access Terms under the Subscription or InstaPass. All rights not expressly granted to the Authorised User under the Licence are reserved by Smartkarma. Further, the Licence granted to the Authorised User pursuant to these Access Terms is personal to the Authorised User and will only permit access to the Site and use of the Services by that individual.
2.3. Access: In respect of Authorised User’s access to the Site and use of the Services under the Subscription or InstaPass, the following provisions apply:
- 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; and
- Unauthorised Site access or Log-in misuse may result in immediate suspension or termination of the Authorised User account pursuant to Clause 6. Client/Authorised Users agree to:
- notify Smartkarma immediately of any unauthorised access or misuse or any other known or suspected breach of security; and
- use all reasonable efforts to immediately stop any known or suspected unauthorised copying or distribution of the Content.
2.4. Limitations and Prohibited Uses: Unless otherwise stipulated by Smartkarma, the following limitations and prohibitions apply to access and use of the Content, Services and Site:
- Content is for visibility and use only by the nominated Authorised User;
- Use of the Site and Content must comply with all applicable laws, rules and regulations and must not be unlawful, fraudulent or misleading;
- Use of Site and Content must not conflict with any third party intellectual property rights;
- 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;
- Client/Authorised User 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;
- Client/Authorised User may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Site, Services, or Content;
- Client/Authorised User 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;
- Authorised User may use the Site and Services and download Content for its internal business 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; and
- Client/Authorised User may not use the Site or Services to:
- i. 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.
- i. send spam or otherwise unsolicited messages;
2.5. Licence to Smartkarma: Regarding any Content the Authorised User publishes on the Site (i.e. comments, User profile), the Authorised User grants to Smartkarma a non-exclusive, revocable, worldwide, royalty free licence (and any equivalents in any part of the world) to use, publicly display, transmit and distribute such Content on the Site. Following termination and/or deactivation of the Authorised User account, Smartkarma may, where relevant, continue to use, retain and display such Content for audit, archival and related purposes.
3. Fees & Payment:
- Fees for a Subscription are set according to the nominated Subscription period (i.e. quarter, year or such other period of time as applicable) and are in US dollars.
- Fees for InstaPass are a one-time charge in US dollars.
- Payment of Subscription Fees is due at the time of purchase and unless indicated otherwise, shall be payable and charged on an auto-renewal basis. Under auto-renewal, the method of payment provided at the time of the Subscription shall be billed upon each renewal unless Smartkarma is notified prior to the end of the current Subscription period, that the Client/Authorised User does not intend to renew.
- Payment of InstaPass Fees is due at the time of purchase and for avoidance of doubt, incurs a one-time payment with no auto-renewal.
4. Intellectual Property:
4.1. Acknowledgement: Client/Authorised User expressly acknowledges that:
- Content accessed under the Subscription or InstaPass, and contained within the Services and/or on the Site, may be owned or licensed by Smartkarma, Insight Providers and other Users, and is protected by applicable copyrights, trademarks, service marks, and/or other intellectual property rights;
- 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/Authorised User shall not acquire or claim any title to such rights under or by virtue of this Agreement; and
- 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. Confidential Information:
5.1. 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. This provision shall survive termination.
5.2. 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:
- 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;
- 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;
- is independently developed by the receiving party; or
- is required to be disclosed by law, by a court order or by any competent governmental or regulatory authority.
6.1. Termination - Subscription: Either party may 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; (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.
6.2. Other action for breach: In respect of both Subscriptions and InstaPass, in the event of breach by the Authorised User 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:
- immediate, temporary or permanent withdrawal of the right to use the Services or the Site after it has been confirmed that the Access Terms have been breached;
- immediate, temporary or permanent deactivation of an Authorised User’s account and/or the removal of any Content published by the Authorised User;
- issue a warning to the Authorised User;
- initiate legal proceedings for reimbursement of costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
- pursue further legal action; and/or
- make disclosure of such information to law enforcement authorities as reasonably necessary or required.
7. Representations and Warranties:
7.1. Mutual Warranties: Each party represents and warrants to the other party that it has all right, title, and authority to enter into these Access Terms, and that 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.
7.2. Client Warranties: Each time the Authorised User uses the Site or the Services, the Client and Authorised User is deemed to represent and warrant to Smartkarma that it has all regulatory and legal authority to enter into and be bound by these Access Terms and that its use of the Site and the Services complies with all applicable laws, rules and regulations.
8.1. Content Disclaimers: Smartkarma does not review or exercise editorial control in respect of the Content. Smartkarma assumes no liability for the Content, including regarding accuracy or suitability for purpose. Smartkarma offers no warranty or guarantee that the Client/Authorised User will have access to all Content on the Site, on the grounds that Insight Providers may be limited, for regulatory reasons or otherwise, from providing access in certain jurisdictions or investor categories. The Client/Authorised User further acknowledges that the following disclaimers apply to Content and the Services:
- 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;
- 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;
- 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
- 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.
8.2. Provided “As Is”: Notwithstanding commercially reasonable efforts to ensure a virus free environment, Smartkarma does not represent or warrant that the Site, Services or Content will be error-free, or free of viruses or other harmful components. The Site, Services and the Content are provided on an “as is” and “as available” basis.
9. Limitation of Liability:
9.1. 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:
- any errors in or omissions from the Site or Content, including but not limited to technical inaccuracies and typographical errors;
- the temporary and unavoidable unavailability of the Site or any portion thereof;
- Client/Authorised User’s use of this Site or the Content;
- Client/Authorised User’s use of any equipment or software in connection with the Site or the Content; or
- any third party products directly or indirectly accessed through links contained on the Site or through the Services.
9.2. Cap on Liability: As regards Subscriptions, the parties agree that the liability 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/Authorised User in the 12 months prior to the event that directly gave rise to the damages claimed.
9.3. 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.
9.4. Negligence and other exceptions: Notwithstanding the above, the limitation on liability will not apply to:
- claims for gross negligence, willful misconduct, fraud or criminal acts or omissions;
- breach of confidentiality; or
- any third party claims subject to the indemnification provisions of these Access Terms.
10.1. 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:
- any breach by it (or associated parties) of these Access Terms;
- any breach by it (or associated parties) of any applicable law or regulation in relation to the performance of these Access Terms; and/or
- any misuse, loss, damage, corruption, security breach or destruction of the Services or Site by it (or associated parties).
10.2. Conditions of Indemnity: Indemnification under the above clause will be provided only on the conditions that:
- the indemnifying party is given written notice within 14 days after the indemnified party receives notice of the subject action (“Action”);
- 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
- the indemnified party provides full cooperation in furtherance of such defense, as reasonably required by the indemnifying party at the indemnifying party’s expense.
11.2. Entire Agreement: In all other respects, the Access Terms contain the entire agreement of the parties relating to the Subscription or InstaPass and supersedes all previous proposals, arrangements and agreements between the parties relating to the Subscription and InstaPass, Services or Site. Each party confirms that it has not relied on any statement or representation given by the other party except those expressly repeated herein.
11.3. 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.
11.4. No Waiver: No failure or delay by Smartkarma 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 Smartkarma 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.11.5. Assignment: The Client/Authorised User may not assign its rights and obligations under the Access Terms in whole or in part to any third party without the prior written consent of Smartkarma.
11.5. Assignment: The Client/Authorised User may not assign its rights and obligations under the Access Terms in whole or in part to any third party without the prior written consent of Smartkarma.
11.6. 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.