TABLE OF CONTENTS
1. INTRODUCTION AND DEFINITIONS
1.1. Agreement Formation. This General Partner Agreement (“General Agreement“) is entered into between Smackdab Inc., a Florida corporation with its principal place of business at 372 Live Oak Ln, Marco Island, FL 34145 (“Smackdab,” “we,” “us,” or “our“), and the individual or entity accepting this General Agreement (“Partner,” “you,” or “your“). This General Agreement establishes the general terms and conditions that govern your participation in the Smackdab Partner Program (“Program“).
1.2. Acceptance and Electronic Signatures.
1.2.1. Acceptance Methods. You agree to be bound by this General Agreement by: (a) clicking a button indicating acceptance; (b) executing an Order Form that references this General Agreement; (c) submitting a Partner application; or (d) receiving or being eligible to receive any Program benefits. If you are entering into this General Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this General Agreement.
1.2.2. Electronic Signature Compliance. This General Agreement may be executed by electronic signature, which shall have the same legal effect as a handwritten signature. The parties acknowledge and agree that:
(a) Electronic signatures shall be governed by the Electronic Signatures in Global and National Commerce Act (E-SIGN Act), 15 U.S.C. § 7001 et seq., the Uniform Electronic Transactions Act (UETA), and other applicable electronic signature laws;
(b) Electronic signatures are intended to authenticate this General Agreement and have the same force and effect as handwritten signatures;
(c) Electronic records of this General Agreement are equivalent to physical documents;
(d) Clicking “I Accept,” “I Agree,” or similar buttons or checkboxes constitutes a valid electronic signature;
(e) The electronic record of this General Agreement shall be considered the definitive version, prevailing over any printed version unless the printed version is signed by both parties after the date of the electronic execution;
(f) Communications relating to this General Agreement may be transmitted and stored electronically, and such electronic records shall be valid and legally enforceable;
(g) Neither party will challenge the authenticity or validity of this General Agreement based solely on the use of electronic signatures or electronic records; and
(h) For international Partners, this electronic signature provision shall be interpreted in accordance with applicable local electronic signature laws, including but not limited to eIDAS Regulation in the European Union, where such laws apply.
1.3. Relationship to Other Agreements. This General Agreement supplements Smackdab’s Terms of Service available at https://smackdab.ai/legal/terms-of-service, which is incorporated by reference. In the event of a conflict between this General Agreement and the Terms of Service, this General Agreement shall prevail with respect to the subject matter herein. Additionally, depending on your Partner type, this General Agreement will be supplemented by one of the following type-specific agreements:
1.3.1. Solution & Affiliate Partner Agreement (for Partners who market, refer, sell, or implement the Services) (“S&A Agreement“)
1.3.2. Technology Partner Agreement (for Partners who develop integrations with the Services) (“Technology Agreement“)
In the event of a conflict between this General Agreement and any type-specific agreement, the type-specific agreement shall prevail with respect to the subject matter therein.
1.4. Definitions. Terms used in this General Agreement are defined in the Smackdab Inc. Master Definitions Document (“Master Definitions Document“) located at https://smackdab.ai/legal/master-definitions-document, which is incorporated by reference into this General Agreement. In the event of any conflict between a definition in the Master Definitions Document and a definition in this General Agreement, the definition in the Master Definitions Document shall prevail. For convenience, certain key terms are defined throughout this document, but these definitions do not supersede the Master Definitions Document.
⚠️ ATTORNEY REVIEW NOTE: Review this updated reference to the Master Definitions Document to ensure it properly creates a legally binding incorporation by reference under Florida law. Consider whether additional language is needed to clarify which document controls in case of conflicts between definitions.
2. AGREEMENT STRUCTURE AND APPLICABILITY
2.1. Modular Agreement Structure. Smackdab’s Partner Program is governed by a modular agreement structure consisting of:
2.1.1. This General Agreement (applicable to all Partners);
2.1.2. A type-specific agreement (either the S&A Agreement or the Technology Agreement); and
2.1.3. Any Order Forms, statements of work, or other exhibits specifically referenced in and incorporated into these agreements.
2.2. Determining the Applicable Type-Specific Agreement. The applicable type-specific agreement is determined as follows:
2.2.1. Partners who primarily market, refer, resell, or implement the Services will be governed by the S&A Agreement.
2.2.2. Partners who primarily develop, maintain, and offer integrations with the Services will be governed by the Technology Agreement.
2.2.3. Partners engaging in both types of activities must comply with both type-specific agreements, and in the event of a conflict between them, Smackdab shall determine, in its reasonable discretion, which agreement prevails for the specific activity in question.
2.3. Execution Requirements. Partner must explicitly accept or execute the applicable type-specific agreement in addition to this General Agreement. Acceptance or execution may be electronic, including through a checkbox in the Partner Portal, or by physically signing a hard copy of the agreement.
2.4. No Partnership Without Type-Specific Agreement. This General Agreement alone does not establish a partnership relationship with Smackdab or authorize Partner to market, sell, refer, implement, or integrate with the Services. Such authorization requires acceptance of the applicable type-specific agreement.
2.5. Order of Precedence and Cross-References.
2.5.1. Order of Precedence. In the event of any conflict or inconsistency among the documents comprising the agreement between the parties, the order of precedence shall be:
(a) The applicable Order Form or statement of work (solely with respect to the specific engagement described therein);
(b) The applicable type-specific agreement;
(c) This General Agreement;
(d) The Terms of Service;
(e) The Master Definitions Document; and
(f) Any other documents incorporated by reference.
⚠️ ATTORNEY REVIEW NOTE: Please review the addition of the Master Definitions Document in the order of precedence to ensure it is appropriately positioned. Consider whether it should have higher precedence for definitional matters.
2.5.2. Identification and Resolution of Conflicts. A conflict exists when a provision in one document contradicts a provision in another document, such that compliance with both provisions is impossible or would lead to an absurd or commercially unreasonable result. In case of conflict:
(a) The parties shall attempt to interpret the conflicting provisions in a manner that gives effect to both, where reasonably possible;
(b) If such interpretation is not reasonably possible, the provision in the document with higher precedence shall control; and
(c) Specific terms shall prevail over general terms addressing the same subject matter.
2.5.3. Cross-Reference to Type-Specific Agreements. The following sections of this General Agreement are supplemented by corresponding sections in the applicable type-specific agreements:
(a) For S&A Agreement: (i) Section 4 (Intellectual Property) is supplemented by Section 7 (Intellectual Property – Specific Provisions) of the S&A Agreement; (ii) Section 5 (Term and Termination) is supplemented by Section 10 (Term and Termination – Specific Provisions) of the S&A Agreement; (iii) Section 6 (Representations and Warranties) is supplemented by additional representations and warranties in Section 3 (Partner Obligations) of the S&A Agreement; and (iv) Section 8 (Indemnification) is supplemented by additional indemnification obligations in the S&A Agreement.
(b) For Technology Agreement: (i) Section 4 (Intellectual Property) is supplemented by Section 10 (Intellectual Property – Specific Provisions) of the Technology Agreement; (ii) Section 5 (Term and Termination) is supplemented by Section 13 (Term and Termination – Specific Provisions) of the Technology Agreement; (iii) Section 10 (Data Protection and Privacy) is supplemented by Section 14 (Privacy and Accessibility Compliance) of the Technology Agreement; (iv) Section 11.18 (Competing Products and Services) is supplemented by Section 15 (Non-Competition and Non-Solicitation) of the Technology Agreement; and (v) Section 9 (Dispute Resolution) is supplemented by Section 16 (Dispute Resolution and Governing Law) of the Technology Agreement.
2.6. Partner Type Transition Process.
2.6.1. Transition to Additional Partner Type. Partner may apply to operate under an additional Partner type (e.g., a Solution Partner applying to become a Technology Partner as well) by:
(a) Submitting a written request through the Partner Portal;
(b) Meeting the qualification requirements for the additional Partner type;
(c) Executing the applicable type-specific agreement; and
(d) Completing any required training or certification for the additional Partner type.
2.6.2. Transition Between Partner Types. Partner may request to transition from one Partner type to another (e.g., from Technology Partner to Solution Partner) by:
(a) Submitting a written request through the Partner Portal;
(b) Meeting the qualification requirements for the new Partner type;
(c) Executing the applicable type-specific agreement for the new Partner type;
(d) Submitting a transition plan addressing ongoing obligations to existing Clients; and
(e) Receiving written approval from Smackdab.
2.6.3. Effect of Partner Type Transition on Existing Obligations.
(a) Transition to an additional Partner type does not release Partner from any obligations under the existing type-specific agreement.
(b) Transition from one Partner type to another: (i) Does not release Partner from accrued obligations to existing Clients; (ii) Does not affect Commissions already earned under the prior type-specific agreement; (iii) Terminates Partner’s right to earn new Commissions under the prior type-specific agreement after the effective date of the transition; and (iv) Requires Partner to cease activities specific to the prior Partner type unless specifically authorized by Smackdab.
⚠️ ATTORNEY REVIEW NOTE: Review Section 2.6 to ensure it properly addresses the partner type transition process, including any potential conflicts that might arise when a partner transitions between types. Consider whether additional provisions are needed regarding the handling of existing clients or outstanding commissions during transitions.
3. CONFIDENTIALITY
3.1. Definition of Confidential Information. “Confidential Information” means any non-public information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) under this General Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, but is not limited to:
3.1.1. Business plans, strategies, forecasts, and analyses;
3.1.2. Financial information and pricing structures;
3.1.3. Technical information, product plans, product roadmaps, and product designs;
3.1.4. Client lists, prospects, Client information, and sales data;
3.1.5. Software, technology, algorithms, source code, and other intellectual property;
3.1.6. Marketing plans, research, and strategies;
3.1.7. The existence and terms of this General Agreement; and
3.1.8. Any Personal Data processed in connection with this General Agreement.
3.2. Exclusions. Confidential Information does not include information that:
3.2.1. Is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
3.2.2. Was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
3.2.3. Is received from a third party without breach of any obligation owed to the Disclosing Party; or
3.2.4. Was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
3.3. Obligations. The Receiving Party shall:
3.3.1. Use the same degree of care it uses to protect its own confidential information of similar nature and importance, but in no event less than reasonable care;
3.3.2. Not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this General Agreement;
3.3.3. Limit access to the Disclosing Party’s Confidential Information to those of its employees, contractors, and agents who need such access for purposes consistent with this General Agreement and who have signed confidentiality agreements containing protections no less protective than those herein;
3.3.4. Be responsible for any breach of this Section by its employees, contractors, and agents; and
3.3.5. Notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure of Confidential Information, and cooperate with the Disclosing Party to help regain control of the Confidential Information and prevent further unauthorized use or disclosure.
3.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law or legal process, provided that the Receiving Party:
3.4.1. Gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted);
3.4.2. Provides reasonable assistance to the Disclosing Party if the Disclosing Party wishes to contest the disclosure; and
3.4.3. Discloses only that portion of Confidential Information that is legally required to be disclosed and uses reasonable efforts to obtain confidential treatment for the disclosed information.
3.5. Remedies. Both parties acknowledge that monetary damages may be insufficient to remedy any breach of this Section and that the Disclosing Party shall be entitled to seek injunctive or other equitable relief to prevent or remedy any breach or threatened breach of this Section, without the necessity of posting a bond.
3.6. Return or Destruction of Confidential Information. Upon termination or expiration of this General Agreement, or upon the Disclosing Party’s written request, the Receiving Party shall promptly:
3.6.1. Return or destroy all tangible materials containing Confidential Information;
3.6.2. Permanently erase all electronic copies of Confidential Information from its systems; and
3.6.3. Certify in writing that it has complied with the requirements of this Section 3.6.
Notwithstanding the foregoing, the Receiving Party may retain Confidential Information: (a) as required by applicable law or regulation; (b) as part of its secure backup systems, which will remain subject to the confidentiality obligations herein until automatically purged in the normal course of business; and (c) as necessary to document compliance with this General Agreement.
3.7. Duration. The obligations in this Section shall continue for five (5) years after the termination or expiration of this General Agreement, except for trade secrets and Personal Data, which shall be held in confidence for as long as they remain trade secrets or are subject to data protection laws, respectively.
⚠️ ATTORNEY REVIEW NOTE: Consider whether the five-year confidentiality period is appropriate for Smackdab’s business needs. Some agreements use shorter periods (2-3 years) while others maintain confidentiality obligations indefinitely. Also consider whether any specific categories of information require additional protection.
4. INTELLECTUAL PROPERTY – GENERAL PROVISIONS
4.1. Ownership by Smackdab. Smackdab owns and retains all right, title, and interest in and to:
4.1.1. The Services, including all software, technology, algorithms, methods, and processes therein;
4.1.2. Smackdab’s trademarks, logos, and brand elements;
4.1.3. The Marketing Materials and Partner Portal;
4.1.4. All enhancements, modifications, and Derivative Works of any of the foregoing, regardless of who creates such Derivative Works;
4.1.5. All Intellectual Property Rights in any of the foregoing; and
4.1.6. All Feedback (as defined in Section 4.5) provided by Partner.
4.2. Ownership by Partner. Partner owns and retains all right, title, and interest in and to:
4.2.1. Partner’s trademarks, logos, and brand elements;
4.2.2. Partner’s pre-existing materials, technologies, methodologies, and intellectual property; and
4.2.3. Partner-created materials, except to the extent they constitute Derivative Works of Smackdab’s intellectual property.
4.3. Limited License to Partner. Subject to the terms and conditions of this General Agreement and the applicable type-specific agreement, Smackdab grants to Partner a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to:
4.3.1. Access and use the Partner Portal solely for purposes of participating in the Program;
4.3.2. Use Smackdab’s trademarks solely for purposes expressly authorized in the applicable type-specific agreement and in accordance with Smackdab’s trademark guidelines; and
4.3.3. Use the Marketing Materials solely for purposes expressly authorized in the applicable type-specific agreement.
4.4. Limited License to Smackdab. Partner grants to Smackdab a non-exclusive, worldwide, royalty-free license during the Term to:
4.4.1. Use Partner’s name, logo, and trademarks to identify Partner as a participant in the Program;
4.4.2. List Partner’s name and information in Smackdab’s partner directory and marketplace; and
4.4.3. Use, reproduce, and distribute any Partner-provided content that is specifically intended for marketing or promotional purposes.
4.5. Feedback. If Partner provides Smackdab with feedback, suggestions, or ideas about the Services or the Program (“Feedback”), Partner grants Smackdab a perpetual, irrevocable, worldwide, royalty-free, fully-paid, non-exclusive, sublicensable license to use, reproduce, modify, create derivative works from, distribute, publicly perform, and publicly display such Feedback for any purpose without compensation or attribution.
⚠️ ATTORNEY REVIEW NOTE: Review the Feedback license in Section 4.5 to ensure it is enforceable and doesn’t inadvertently capture valuable intellectual property that Partners might develop. Consider adding language clarifying what constitutes “Feedback” versus Partner’s independently developed intellectual property.
4.6. Reservation of Rights. Except for the limited licenses expressly granted in this General Agreement, neither party grants any rights or licenses to the other. All rights not expressly granted herein are reserved.
4.7. Additional Intellectual Property Terms. Additional provisions regarding intellectual property specific to each Partner type are set forth in the applicable type-specific agreement.
5. TERM AND TERMINATION – GENERAL PROVISIONS
5.1. Term. This General Agreement commences on the date Partner accepts this General Agreement (“Effective Date”) and continues until terminated as provided herein (“Term”).
5.2. Termination for Convenience.
5.2.1. Either party may terminate this General Agreement for convenience upon sixty (60) days’ written notice to the other party.
5.2.2. Additional provisions regarding termination for convenience, including any specific consequences, are set forth in the applicable type-specific agreement.
5.3. Termination for Cause.
5.3.1. Either party may terminate this General Agreement for cause upon written notice if the other party:
(a) Materially breaches this General Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach;
(b) Materially breaches this General Agreement in a manner that cannot be cured;
(c) Becomes insolvent, makes a general assignment for the benefit of creditors, or becomes subject to any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(d) Engages in fraudulent, deceptive, or illegal conduct in connection with this General Agreement.
5.3.2. Smackdab may immediately suspend Partner’s participation in the Program if Smackdab reasonably believes that Partner has violated this General Agreement or applicable law, pending investigation. Such suspension may include disabling Partner’s access to the Partner Portal or removing Partner’s listings from Smackdab’s website.
5.3.3. Additional provisions regarding termination for cause, including specific breaches that constitute grounds for termination, are set forth in the applicable type-specific agreement.
5.3.4. Termination Procedure. Termination notices must:
(a) Be in writing and delivered in accordance with Section 11.2;
(b) Clearly state the intention to terminate this General Agreement;
(c) Specify the grounds for termination, including specific sections of this General Agreement that have been breached, if applicable;
(d) For terminations under Section 5.3.1(a), detail the specific breach and required remediation; and
(e) Include relevant supporting information or documentation.
⚠️ ATTORNEY REVIEW NOTE: Review the termination procedure in Section 5.3.4 to ensure it creates a legally sufficient process for termination notices. Consider adding requirements for delivery confirmation and specific timelines for response to termination notices.
5.3.5. Opportunity to Cure. For breaches capable of cure:
(a) The non-breaching party shall provide reasonably detailed information about the nature of the breach to allow the breaching party to identify and cure the breach.
(b) The breaching party shall: (i) Acknowledge receipt of the breach notice within five (5) business days; (ii) Provide a plan to cure the breach within ten (10) business days of receiving the notice; and (iii) Implement the cure within the thirty (30) day cure period.
(c) The non-breaching party shall review the proposed cure plan and provide feedback within five (5) business days.
(d) If the breach is cured within the cure period, the right to terminate based on that specific breach will no longer apply.
5.4. Effect of Termination.
5.4.1. Upon termination of this General Agreement:
(a) All licenses granted under this General Agreement shall immediately terminate;
(b) Partner shall immediately cease all use of Smackdab’s intellectual property;
(c) Partner shall immediately cease representing itself as a Smackdab Partner;
(d) Each party shall return or destroy all Confidential Information of the other party in its possession as required by Section 3.6;
(e) Partner’s access to the Partner Portal will be terminated; and
(f) Termination shall not relieve either party of any liability that accrued prior to such termination.
5.4.2. Additional provisions regarding the effect of termination, including any Partner-type specific obligations, are set forth in the applicable type-specific agreement.
5.5. Survival. The following provisions will survive termination or expiration of this General Agreement: Sections 1 (Definitions), 3 (Confidentiality), 4.1 (Ownership by Smackdab), 4.2 (Ownership by Partner), 4.5 (Feedback), 4.6 (Reservation of Rights), 5.4 (Effect of Termination), 5.5 (Survival), 6 (Representations and Warranties), 7 (Limitation of Liability), 8 (Indemnification), 9 (Dispute Resolution), 10 (Data Protection and Privacy), and 11 (General Provisions), along with any other provisions that by their nature should survive termination.
6. REPRESENTATIONS AND WARRANTIES
6.1. Mutual Representations and Warranties. Each party represents and warrants that:
6.1.1. It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation;
6.1.2. It has the full right, power, and authority to enter into and perform its obligations under this General Agreement;
6.1.3. The execution of this General Agreement by its representative has been duly authorized;
6.1.4. This General Agreement constitutes a legal, valid, and binding obligation, enforceable against it in accordance with its terms; and
6.1.5. Its performance under this General Agreement will not violate any applicable law or breach any other agreement to which it is a party.
6.2. Partner Representations and Warranties. Partner represents and warrants that:
6.2.1. All information provided by Partner to Smackdab, including in the Partner application and Partner Portal, is true, accurate, and complete;
6.2.2. Partner has all necessary rights, licenses, and permissions to enter into this General Agreement and perform its obligations hereunder;
6.2.3. Partner will comply with all applicable laws, regulations, and industry standards in performing its obligations under this General Agreement, including but not limited to data privacy laws, anti-corruption laws, consumer protection laws, and export control laws;
6.2.4. Partner will not make any false or misleading statements regarding Smackdab or the Services;
6.2.5. Partner will not infringe or misappropriate any intellectual property or other rights of any third party in performing its obligations under this General Agreement;
6.2.6. Partner maintains appropriate information security measures to protect any Smackdab Confidential Information and any Client Data to which it has access, in accordance with industry standards and applicable laws;
6.2.7. Partner has and will maintain all necessary licenses, certifications, and permits required to perform its obligations under this General Agreement; and
6.2.8. Partner will comply with all applicable export control and sanctions laws in its performance under this General Agreement.
6.3. Smackdab Representations and Warranties. Smackdab represents and warrants that:
6.3.1. The Services will be provided in accordance with the terms of the applicable service agreement between Smackdab and the Client and the SLA;
6.3.2. Smackdab has all necessary rights, licenses, and permissions to enter into this General Agreement and grant the licenses herein; and
6.3.3. Smackdab will comply with all applicable laws, regulations, and industry standards in performing its obligations under this General Agreement.
6.4. Additional Representations and Warranties. Additional representations and warranties specific to each Partner type are set forth in the applicable type-specific agreement.
6.5. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS GENERAL AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SMACKDAB MAKES NO WARRANTY THAT THE SERVICES WILL MEET PARTNER’S OR ANY CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. THE SERVICES AND PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
⚠️ ATTORNEY REVIEW NOTE: Review the disclaimer in Section 6.5 to ensure it meets the requirements for conspicuous disclaimers under the Uniform Commercial Code and Florida law. Consider whether additional specificity is needed regarding warranty disclaimers for particular aspects of the Services.
7. LIMITATION OF LIABILITY
7.1. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. Limitation of Liability. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS GENERAL AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF: (A) $10,000; OR (B) THE AMOUNTS PAID OR PAYABLE BY SMACKDAB TO PARTNER UNDER THIS GENERAL AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
7.3. Excluded Claims. “Excluded Claims” means:
7.3.1. Either party’s indemnification obligations under Section 8;
7.3.2. Either party’s breach of its confidentiality obligations under Section 3;
7.3.3. Either party’s breach of its data protection obligations under Section 10;
7.3.4. Partner’s infringement or misappropriation of Smackdab’s intellectual property rights;
7.3.5. Smackdab’s infringement or misappropriation of Partner’s intellectual property rights;
7.3.6. Partner’s breach of any restrictions specific to Partner’s type as set forth in the applicable type-specific agreement;
7.3.7. Either party’s fraud, gross negligence, or willful misconduct; or
7.3.8. Any other liability that cannot be limited by applicable law.
7.4. Essential Purpose. The parties agree that the limitations of liability in this Section are essential elements of the basis of the bargain between the parties and that in their absence, the economic terms of this General Agreement would be substantially different.
7.5. Allocation of Risk. The limitations of liability in this Section reflect the allocation of risk between the parties. The limitations will apply notwithstanding any failure of essential purpose of any limited remedy provided herein.
⚠️ ATTORNEY REVIEW NOTE: Review the limitation of liability provisions to ensure they appropriately balance protection for both parties. Consider whether $10,000 is an appropriate minimum liability cap. Also consider whether the excluded claims are appropriate and sufficiently comprehensive. Ensure the limitation of liability language is enforceable under applicable law.
8. INDEMNIFICATION
8.1. Indemnification by Partner. Partner shall defend, indemnify, and hold harmless Smackdab, its Affiliates, and their respective officers, directors, employees, and agents (each a “Smackdab Indemnitee”) from and against any third-party claims, demands, actions, or proceedings (“Claims”), and all resulting damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”), to the extent arising out of or related to:
8.1.1. Partner’s breach of any representation, warranty, covenant, or obligation under this General Agreement;
8.1.2. Partner’s negligence or willful misconduct;
8.1.3. Partner’s violation of any applicable law in connection with its performance under this General Agreement;
8.1.4. Allegations that Partner’s trademarks, materials, or other content (excluding Smackdab’s intellectual property used as authorized) infringe or misappropriate any intellectual property or other rights of any third party; or
8.1.5. Partner’s relationship with any Client, prospect, or other third party.
8.2. Indemnification by Smackdab. Smackdab shall defend, indemnify, and hold harmless Partner, its Affiliates, and their respective officers, directors, employees, and agents (each a “Partner Indemnitee”) from and against any Claims and resulting Losses to the extent arising out of or related to:
8.2.1. Smackdab’s breach of any representation, warranty, covenant, or obligation under this General Agreement;
8.2.2. Smackdab’s negligence or willful misconduct;
8.2.3. Smackdab’s violation of any applicable law in connection with its performance under this General Agreement; or
8.2.4. Allegations that the Services, when used as authorized under this General Agreement, infringe any U.S. copyright, U.S. patent, or U.S. trademark of a third party.
8.3. Exclusions. Smackdab’s indemnification obligations in Section 8.2.4 shall not apply to Claims arising out of:
8.3.1. Unauthorized use or modification of the Services;
8.3.2. Combination of the Services with products, services, or content not provided by Smackdab if the alleged infringement would not have occurred but for such combination;
8.3.3. Partner’s continued use of the Services after being notified of alleged infringement or after being provided with modifications that would have avoided the alleged infringement;
8.3.4. Partner’s breach of this General Agreement; or
8.3.5. Smackdab’s compliance with Partner’s specifications or instructions.
8.4. Additional Indemnification Obligations. Additional indemnification obligations specific to each Partner type are set forth in the applicable type-specific agreement.
8.5. Procedure. The indemnified party shall: (a) promptly notify the indemnifying party in writing of any Claim; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim in a manner that admits fault or imposes any obligation on the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld); and (c) provide reasonable assistance to the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of the Claim. The indemnified party may participate in the defense with counsel of its own choosing at its own expense.
8.6. IP Infringement Mitigation Process.
8.6.1. Mitigation Options. If the Services become, or in Smackdab’s opinion are likely to become, the subject of a Claim under Section 8.2.4, Smackdab may, at its option and expense:
(a) Obtain the right for Partner to continue using the Services as permitted under this General Agreement;
(b) Modify or replace the Services to make them non-infringing while maintaining substantially equivalent functionality; or
(c) If options (a) and (b) are not commercially reasonable, terminate this General Agreement.
8.6.2. Mitigation Process and Timelines. In the event of an actual or potential IP Claim, Smackdab shall:
(a) Initial Assessment (Within 10 Business Days): (i) Notify Partner of the actual or potential IP Claim; (ii) Provide Partner with an initial assessment of the Claim; (iii) Outline the preliminary mitigation strategy; and (iv) Designate a primary contact for managing the mitigation process.
(b) Mitigation Plan (Within 30 Days of Initial Assessment): (i) Develop and communicate a detailed mitigation plan to Partner; (ii) Identify which of the options in Section 8.6.1 Smackdab intends to pursue; (iii) Provide an estimated timeline for implementation; and (iv) Identify any actions required from Partner.
(c) Implementation and Updates: (i) Implement the chosen mitigation strategy according to the communicated timeline; (ii) Provide Partner with bi-weekly status updates during implementation; (iii) Notify Partner promptly of any material changes to the mitigation plan; and (iv) Document all mitigation actions taken.
(d) Transition Support (If Termination Required): (i) Provide Partner with at least sixty (60) days’ advance notice before effective termination date; (ii) Develop a transition plan to minimize disruption to Partner’s operations; (iii) Assist Partner with data export and migration to alternative solutions; and (iv) Refund any prepaid, unused fees for the terminated Services on a pro-rata basis.
8.6.3. Partner Cooperation. Partner shall reasonably cooperate with Smackdab in the mitigation process, including:
(a) Promptly implementing any required changes or updates; (b) Providing information necessary for Smackdab to implement the mitigation strategy; (c) Following Smackdab’s reasonable instructions related to the mitigation; and (d) Maintaining confidentiality regarding the IP Claim and mitigation process.
8.7. Sole Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
⚠️ ATTORNEY REVIEW NOTE: Review the indemnification provisions to ensure they appropriately balance risk allocation between the parties. Consider whether additional specific indemnification obligations should be added to address particular risks associated with different partner types (these would be included in the type-specific agreements).
9. DISPUTE RESOLUTION
9.1. Dispute Resolution Process.
9.1.1. Informal Dispute Resolution. Before initiating any legal action (except for injunctive relief as provided in Section 9.5), the parties shall attempt to resolve any dispute, controversy, or claim arising out of or relating to this General Agreement (“Dispute”) through good faith negotiations. Either party may initiate negotiations by providing written notice to the other party, setting forth the subject of the Dispute. The parties shall cooperate in good faith to resolve the Dispute within thirty (30) days after such notice is received.
9.1.2. Escalation Procedure. If the Dispute is not resolved through informal negotiations within the thirty (30) day period, the Dispute shall be escalated according to the following procedure:
(a) Level One – Account Representatives: The designated account representatives from each party shall meet (in person or virtually) within ten (10) business days to attempt to resolve the Dispute.
(b) Level Two – Senior Management: If the Dispute is not resolved at Level One within ten (10) business days, the Dispute shall be escalated to senior management representatives from each party with authority to settle the Dispute. These representatives shall meet (in person or virtually) within ten (10) business days of escalation to Level Two.
(c) Level Three – Executive Leadership: If the Dispute is not resolved at Level Two within ten (10) business days, the Dispute shall be escalated to executive leadership of each party (C-level, President, or comparable position) with authority to settle the Dispute. These executives shall meet (in person or virtually) within fifteen (15) business days of escalation to Level Three.
9.1.3. Documentation of Escalation Process. The parties shall document each step of the escalation process, including:
(a) Dates, attendees, and summary of each meeting; (b) Key points of disagreement and proposed resolutions; (c) Action items and responsible parties; and (d) Progress made toward resolution.
9.1.4. Mediation. If the Dispute is not resolved at Level Three within fifteen (15) business days, before proceeding to arbitration, the parties shall engage in mediation administered by JAMS in accordance with its mediation procedures. The mediation shall:
(a) Be conducted by a neutral mediator selected from the JAMS panel; (b) Take place in Collier County, Florida, or another mutually agreed location; (c) Be completed within forty-five (45) days of initiating the mediation process; and (d) Have costs shared equally between the parties, unless they agree otherwise.
9.1.5. Integration Development and Technical Disputes. For disputes specifically related to integration development, technical specifications, API functionality, or other technical matters:
(a) Technical Expert Review: Before initiating the formal escalation procedure in Section 9.1.2, the parties shall: (i) Jointly select a neutral technical expert with relevant expertise; (ii) Submit technical documentation and position statements to the technical expert; (iii) Participate in a technical review session facilitated by the expert; and (iv) Receive a non-binding recommendation from the expert within fifteen (15) business days of selection.
(b) Expedited Technical Resolution Process: For urgent technical disputes that materially impact the Services or integrations: (i) The parties shall designate technical representatives with decision-making authority; (ii) These representatives shall meet within two (2) business days of dispute notification; (iii) If not resolved within five (5) business days, the dispute shall be immediately escalated to Level Two as described in Section 9.1.2(b); and (iv) All technical dispute proceedings shall be documented in writing, with copies provided to both parties.
(c) Technical Documentation Requirements: The party raising a technical dispute shall provide: (i) Detailed technical description of the issue; (ii) Reproduction steps or test cases demonstrating the issue; (iii) Relevant logs, error messages, or other diagnostic information; and (iv) Proposed technical resolution with implementation details.
(d) Technical Dispute Categories: Technical disputes shall be categorized as: (i) Critical: Immediately impacting production Services or integrations; (ii) High: Affecting development or testing capabilities; (iii) Medium: Affecting documentation or non-essential functionality; or (iv) Low: Relating to future development or improvement suggestions.
The categorization shall determine the applicable timelines for resolution.
9.2. Binding Arbitration. If the parties cannot resolve a Dispute through informal negotiations, either party may initiate binding arbitration as the sole means to resolve the Dispute. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures then in effect. The arbitration shall be conducted in Collier County, Florida, unless the parties agree otherwise.
9.3. Arbitration Procedures.
9.3.1. The arbitration shall be conducted by one arbitrator with significant experience in resolving commercial disputes, who shall be selected in accordance with the JAMS rules.
9.3.2. The arbitration proceedings shall be conducted in English. The arbitrator shall issue a written decision explaining the essential findings and conclusions on which the award is based.
9.3.3. The arbitrator shall have the authority to award any remedies available under applicable law, except that the arbitrator shall not have the authority to award punitive or exemplary damages.
9.3.4. Each party shall bear its own costs and fees associated with the arbitration, including attorneys’ fees. The administrative fees and the arbitrator’s fees and expenses shall be shared equally between the parties, unless the arbitrator determines that a different allocation is appropriate based on the circumstances of the case.
9.3.5. The arbitration proceedings, including any information disclosed during discovery, shall be confidential and may not be disclosed to any third party, except as required by law or for enforcement of the arbitration award.
9.4. Class Action Waiver. ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. NO CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTIONS ARE PERMITTED UNDER THIS ARBITRATION AGREEMENT.
9.5. Injunctive Relief. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to prevent or stop the infringement of intellectual property rights, the unauthorized use of confidential information, or any other harm that cannot be adequately compensated through monetary damages, without the necessity of posting a bond.
9.6. Governing Law. This General Agreement shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this General Agreement.
9.7. International Partners and Cross-Border Considerations.
9.7.1. General Provisions for International Partners. For Partners located outside the United States, the parties acknowledge that the arbitration and governing law provisions may be affected by local laws. If any provision of this Section 9 is found to be unenforceable in a particular jurisdiction, the remaining provisions shall remain in effect to the maximum extent permitted by applicable law, and the unenforceable provision shall be replaced with a valid provision that most closely approximates the intent and economic effect of the unenforceable provision.
9.7.2. International Arbitration Provisions. For disputes involving international Partners (those located outside the United States), the following modifications to the arbitration provisions shall apply:
(a) The arbitration shall be conducted under the JAMS International Arbitration Rules then in effect.
(b) The parties may agree to conduct the arbitration in a location outside the United States that is more convenient for both parties, subject to the arbitrator’s approval.
(c) The arbitrator shall be well-versed in international commercial law and cross-border dispute resolution.
(d) The arbitration proceedings may be conducted in English or, upon mutual agreement of the parties, in another language.
9.7.3. International Law Implications. For international Partners, the parties acknowledge that:
(a) Local mandatory consumer protection laws may apply, notwithstanding the choice of Florida law as governing law;
(b) Data protection and privacy laws in the Partner’s jurisdiction may impose additional requirements beyond those in Section 10;
(c) Local labor laws may affect certain provisions of this General Agreement, particularly those relating to non-competition and non-solicitation; and
(d) Export control restrictions may vary by jurisdiction and may impact the parties’ respective obligations.
9.7.4. Compliance with Local Laws. Partner acknowledges that, notwithstanding the choice of Florida law as governing law, Partner must comply with all applicable local laws in the jurisdictions where it operates or promotes the Services. Smackdab makes no representation that the Services are appropriate or available for use in locations outside the United States. Partners accessing or using the Services from jurisdictions where the Services or certain features of the Services are illegal or prohibited do so at their own risk and are responsible for compliance with local laws.
9.8. Enforceability. If for any reason the arbitration and class action waiver provisions in this Section 9 are deemed unenforceable or a claim proceeds in court rather than in arbitration, the parties knowingly and irrevocably waive any right to trial by jury in any action, proceeding, or counterclaim arising out of or related to this General Agreement.
⚠️ ATTORNEY REVIEW NOTE: Review the dispute resolution provisions to ensure they are enforceable in Smackdab’s key markets. Consider whether Florida is the optimal venue for dispute resolution, particularly for international partners. The international partners provision should be reviewed to ensure it provides adequate flexibility while maintaining the core dispute resolution framework.
10. DATA PROTECTION AND PRIVACY
10.1. Compliance with Data Protection Laws. Each party shall comply with applicable Data Protection Laws in connection with its performance under this General Agreement, including but not limited to:
10.1.1. The General Data Protection Regulation (EU) 2016/679 (“GDPR”) and UK GDPR;
10.1.2. The California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA/CPRA”);
10.1.3. State privacy laws including the Virginia Consumer Data Protection Act (“VCDPA”), Colorado Privacy Act (“CPA”), Connecticut Data Privacy Act (“CTDPA”), Utah Consumer Privacy Act (“UCPA”), and any other state or international data protection laws that may become applicable during the Term;
10.1.4. Industry-specific privacy regulations applicable to the parties’ activities, including but not limited to the Health Insurance Portability and Accountability Act (“HIPAA”) where applicable; and
10.1.5. Cross-border data transfer requirements, including requirements related to international data transfers under the GDPR, UK GDPR, and similar provisions in other jurisdictions.
10.2. Data Processing Roles.
10.2.1. When Partner processes Personal Data on behalf of Smackdab, Partner acts as a Processor (under GDPR) or Service Provider (under CCPA) and shall process such Personal Data only on documented instructions from Smackdab.
10.2.2. When Smackdab processes Personal Data on behalf of Partner, Smackdab acts as a Processor (under GDPR) or Service Provider (under CCPA) and shall process such Personal Data only on documented instructions from Partner.
10.2.3. Each party acts as an independent Controller or Business with respect to Personal Data it collects directly from individuals.
10.2.4. Joint Controller Scenarios. In situations where the parties jointly determine the purposes and means of processing Personal Data, they shall be considered Joint Controllers under the GDPR or similar concepts under other applicable Data Protection Laws, and shall:
(a) Enter into a joint controller agreement in accordance with Article 26 of the GDPR or equivalent provisions under applicable law;
(b) Clearly allocate respective responsibilities for fulfilling data protection obligations, particularly regarding the exercise of data subject rights and the provision of privacy notices; and
(c) Make the essence of these arrangements available to data subjects.
10.2.5. Integration Data Processing. For Personal Data processed in connection with integrations between the Services and third-party applications, the following provisions apply:
(a) Data Flow Documentation Requirements: Partner shall document all Personal Data flows through integrations, including: (i) Categories of Personal Data processed (ii) Purpose of processing for each data category (iii) Storage locations and retention periods (iv) Security measures implemented at each processing stage
(b) Processor/Sub-processor Relationships: For integrations processing Client Data: (i) Partner shall act as a Sub-processor to Smackdab for Client Personal Data (ii) Partner shall implement appropriate technical and organizational measures as required by Section 10.3 (iii) Partner shall not engage further Sub-processors without Smackdab’s written authorization (iv) Partner shall ensure that contractual protections flow down to any authorized Sub-processors
(c) Integration-Specific Data Protection: For integrations accessing or processing data: (i) Data minimization principles shall be implemented at the design phase (ii) Appropriate authentication and authorization controls shall be implemented (iii) Data transfers between systems shall be secured using industry-standard encryption (iv) Audit logs shall be maintained for all data access and processing activities
(d) Permissions and Consent Management: Partner shall: (i) Implement granular permission controls for data access (ii) Maintain records of user consent for data sharing between integrated systems (iii) Provide mechanisms for users to revoke consent or modify permissions (iv) Design integrations to respect consent withdrawals and permission changes in real-time
10.3. Partner Data Protection Obligations. In addition to any obligations in the applicable type-specific agreement, Partner shall:
10.3.1. Implement and maintain appropriate technical and organizational measures to protect Personal Data from unauthorized access, disclosure, alteration, or destruction, including at minimum: (a) Encryption of Personal Data in transit and at rest; (b) Access controls and authentication measures; (c) Regular security assessments and vulnerability testing; (d) Physical and environmental security controls for facilities where Personal Data is processed; and (e) Business continuity and disaster recovery procedures.
10.3.2. Promptly notify Smackdab of any actual or suspected personal data breach involving Personal Data processed in connection with this General Agreement: (a) Without undue delay and, where feasible, within 72 hours of discovery (or such longer period as may be permitted by applicable law); (b) With a detailed description of the breach, categories of data affected, and potential impact; (c) With information about remediation measures taken; and (d) With ongoing updates as additional information becomes available.
10.3.3. Assist Smackdab in responding to requests from individuals exercising their rights under applicable Data Protection Laws, including rights of: (a) Access to and information about processed Personal Data; (b) Rectification of inaccurate Personal Data; (c) Erasure of Personal Data (“right to be forgotten”); (d) Restriction of processing; (e) Data portability; (f) Objection to processing; and (g) Not being subject to automated decision-making, including profiling.
10.3.3.1. Data Subject Request Procedures. Partner shall maintain procedures to promptly identify, review, and respond to data subject requests under applicable Data Protection Laws, including:
(a) Response Timeframes: (i) Initial acknowledgment of receipt: Within 5 business days (ii) Substantive response: Within the timeframe required by applicable law (45 days under CCPA/CPRA, 30 days under GDPR, or such other period as required by applicable law) (iii) Extension when necessary: Up to an additional 45 days for CCPA/CPRA requests or 60 days for GDPR requests where permitted by law, provided the data subject is informed of the extension and the reasons therefor within the initial response period
(b) Documentation Requirements: (i) All requests must be documented in a secure request tracking system (ii) Documentation must include the nature of the request, verification of the requestor’s identity, actions taken, and response provided (iii) Documentation shall be retained for at least 24 months or longer if required by applicable law
(c) Verification Procedures: (i) Partner shall implement reasonable procedures to verify the identity of individuals making requests (ii) Verification methods shall be proportionate to the sensitivity of the information requested (iii) Partner shall not require individuals to create accounts to submit requests (iv) Partner shall accept requests through multiple channels including email and web forms
(d) Response Format: (i) Responses shall be provided in a concise, transparent, intelligible, and easily accessible form (ii) Responses shall use clear and plain language (iii) Responses shall be provided in writing or electronically, or verbally if requested by the data subject (iv) Information provided in response to access requests shall be in a structured, commonly used, and machine-readable format when required by applicable law
(e) Coordination with Smackdab: (i) Partner shall notify Smackdab within 2 business days of receiving any data subject request that relates to Personal Data processed on behalf of Smackdab or Clients (ii) Partner shall coordinate with Smackdab on the response to such requests (iii) Partner shall implement Smackdab’s instructions regarding such requests (iv) Partner shall maintain a record of all coordination activities
10.3.4. Not transfer Personal Data across national borders without implementing appropriate safeguards as required by applicable Data Protection Laws, which may include: (a) Standard Contractual Clauses approved by the European Commission or UK authorities; (b) Binding Corporate Rules; (c) Approved certification mechanisms; or (d) Other approved transfer mechanisms.
10.3.5. Ensure that its personnel authorized to process Personal Data: (a) Are subject to written confidentiality obligations that survive termination of employment; (b) Receive appropriate training on data protection requirements; and (c) Process Personal Data in accordance with documented instructions.
10.3.6. Delete or return all Personal Data to Smackdab at the termination of this General Agreement, unless retention is required by law, and provide written certification of such deletion upon request.
10.3.7. Make available to Smackdab all information necessary to demonstrate compliance with this Section 10, including: (a) Maintaining records of all processing activities as required by applicable law; (b) Cooperating with audits conducted by Smackdab or an authorized third party; and (c) Completing reasonable questionnaires regarding data protection practices.
10.3.8. Conduct data protection impact assessments for high-risk processing activities and consult with relevant supervisory authorities when required by applicable law.
10.3.9. Ensure any Sub-processor engaged by Partner complies with the data protection terms of this General Agreement, with Partner remaining fully liable for the Sub-processor’s compliance.
10.4. Cross-Border Data Transfers.
10.4.1. General Principles. For cross-border transfers of Personal Data from jurisdictions with restrictions on such transfers (including the EEA, UK, and Switzerland), the parties shall implement appropriate safeguards in accordance with applicable Data Protection Laws. This section will be particularly relevant upon Smackdab’s planned international expansion in 2026.
10.4.2. Transfer Mechanisms. Depending on the jurisdictions involved and applicable law, the parties may rely on one or more of the following mechanisms:
(a) Standard Contractual Clauses (SCCs): (i) The parties shall implement the most current version of the SCCs approved by the relevant authority (e.g., European Commission, UK Information Commissioner’s Office); (ii) The parties shall complete all appendices and annexes to the SCCs with accurate and complete information about the data transfer; (iii) The parties shall conduct and document a transfer impact assessment prior to implementing SCCs, addressing the legal regime of the destination country and any supplementary measures implemented; and (iv) The parties shall review and update SCCs as required by changes in applicable law.
(b) Binding Corporate Rules (BCRs): If either party has approved BCRs, such party may rely on its BCRs for intra-group transfers, provided that the BCRs cover the categories of Personal Data being transferred.
(c) Adequacy Decisions: Where available, the parties may rely on adequacy decisions issued by relevant authorities (e.g., European Commission) recognizing that a particular jurisdiction provides adequate protection for Personal Data.
(d) Derogations: In limited circumstances, the parties may rely on derogations (e.g., explicit consent, necessity for contract performance) as permitted by applicable law, but shall prioritize the implementation of systematic transfer mechanisms when possible.
(e) Regional Transfer Mechanisms: The parties shall implement region-specific transfer mechanisms as required, including but not limited to: (i) UK International Data Transfer Agreements (IDTAs) for UK data transfers; (ii) Swiss-specific addenda for Swiss data transfers; and (iii) Other regional mechanisms that may emerge following Smackdab’s 2026 international expansion.
10.4.3. Supplementary Measures. In addition to the formal transfer mechanisms, the parties shall implement appropriate supplementary measures where necessary to ensure that transferred Personal Data receives an essentially equivalent level of protection, which may include:
(a) Technical Measures: (i) End-to-end encryption with keys managed exclusively in the data exporter’s jurisdiction; (ii) Pseudonymization or tokenization techniques that render data unintelligible without additional information kept separately in the data exporter’s jurisdiction; (iii) Multi-factor authentication and strict access controls; and (iv) Technical measures specific to the Smackdab platform as outlined in the Technology Partner Agreement, including API-specific security controls.
(b) Contractual Measures: (i) Additional contractual safeguards beyond those in the SCCs; (ii) Transparency obligations regarding government access requests; (iii) Commitments to challenge government access requests where legally possible; and (iv) Regular compliance certifications and audits.
(c) Organizational Measures: (i) Documented and tested procedures for handling government access requests; (ii) Data minimization practices to limit exposure of sensitive data; (iii) Staff training on cross-border data protection requirements; and (iv) Clear allocation of responsibilities for data protection compliance.
10.4.4. Territory-Specific Requirements. Following Smackdab’s 2026 international expansion, Partners operating in specific territories will be required to comply with additional territory-specific data transfer requirements as detailed in territory-specific addenda that will be provided by Smackdab.
10.4.5. Suspension of Transfers. If either party determines that it cannot comply with its obligations regarding cross-border data transfers due to changes in law or other circumstances, it shall promptly notify the other party, and the parties shall cooperate to implement alternative transfer mechanisms or, if no such mechanisms are available, suspend the affected transfers.
10.4.6. Client Data Localization Requirements. Partner acknowledges that some Clients may be subject to data localization requirements that restrict cross-border transfers of their data. In such cases, Partner shall:
(a) Adhere to any data localization requirements specified in the Client’s agreement with Smackdab; (b) Process Client Data only in authorized jurisdictions; (c) Implement technical controls to ensure compliance with localization requirements; and (d) Maintain auditable records of data processing locations.
10.5. Data Processing Addendum. If required by applicable Data Protection Laws, the parties shall execute Smackdab’s standard Data Processing Addendum (“DPA”), which shall be incorporated by reference into this General Agreement. In the event of any conflict between this General Agreement and the DPA, the DPA shall prevail with respect to data protection matters.
10.6. Privacy Policy. Partner acknowledges that it has reviewed Smackdab’s Privacy Policy at https://smackdab.ai/legal/privacy-policy and agrees to comply with its terms to the extent applicable to Partner’s activities under this General Agreement.
10.7. Smackdab’s Privacy Practices. Partner shall not make any representations or provide any warranties regarding Smackdab’s privacy practices beyond those in Smackdab’s published Privacy Policy and other official documentation.
10.8. Marketing and Communications. Partner shall obtain all necessary consents and provide all required notices before sending marketing communications to any individual in connection with this General Agreement. Partner shall comply with all applicable laws regarding electronic communications, including but not limited to the CAN-SPAM Act, the Telephone Consumer Protection Act, and similar laws in other jurisdictions.
10.9. Sub-Processing.
10.9.1. Partner may not engage Sub-processors to process Personal Data on behalf of Smackdab without Smackdab’s prior written authorization. Such authorization may be:
(a) Specific: Relating to a specific Sub-processor for specific processing activities; or (b) General: Granting Partner general authorization to engage Sub-processors, subject to notification requirements.
10.9.2. For general authorizations, Partner shall inform Smackdab of any intended changes concerning the addition or replacement of Sub-processors, providing Smackdab with the opportunity to object to such changes.
10.9.3. Partner shall ensure that its contract with each Sub-processor imposes data protection obligations no less protective than those in this General Agreement, including:
(a) Sufficient guarantees to implement appropriate technical and organizational measures; (b) Obligations regarding data subject rights; (c) Sub-processing restrictions; (d) Assistance obligations; and (e) Audit rights.
10.9.4. Partner shall maintain an up-to-date list of its Sub-processors processing Personal Data under this General Agreement, including their identities, locations, and processing activities, and shall make this list available to Smackdab upon request.
10.10. Data Minimization and Retention.
10.10.1. Each party shall adhere to data minimization principles, collecting, using, and retaining only the Personal Data necessary for the purposes specified in this General Agreement.
10.10.2. Each party shall establish and maintain a documented data retention schedule that:
(a) Specifies retention periods for different categories of Personal Data; (b) Takes into account legal requirements, contractual obligations, and business needs; and (c) Includes procedures for secure deletion or anonymization of Personal Data when retention is no longer necessary.
10.10.3. Partner shall not retain Personal Data processed in connection with this General Agreement longer than necessary for the purposes for which it was collected, unless:
(a) Retention is required by applicable law; (b) Retention is necessary for the establishment, exercise, or defense of legal claims; or (c) Retention has been specifically authorized by Smackdab or the relevant Data Subjects.
10.10.4. US State-Specific Data Protection Requirements.
Partner acknowledges that US state privacy laws may impose differing obligations depending on the residency of the data subject. Without limiting Partner’s obligations under applicable law, Partner shall:
(a) For Virginia residents, implement a process to conduct and document data protection assessments for certain high-risk processing activities as required by the VCDPA;
(b) For Colorado residents, provide a universal opt-out mechanism for the sale of personal data or targeted advertising when such mechanism is technically feasible and required by the CPA;
(c) For California residents, implement mechanisms to honor Global Privacy Control (GPC) signals as an opt-out of sale/sharing of personal information when required by CCPA/CPRA;
(d) For Connecticut residents, obtain consent for processing sensitive data as required by the CTDPA; and
(e) For all applicable state laws, maintain appropriate documentation of compliance with state-specific requirements.
⚠️ ATTORNEY REVIEW NOTE: This data protection section has been substantially expanded to address international data transfer mechanisms, sub-processing, and data minimization/retention requirements. These enhancements are particularly important given Smackdab’s planned international expansion in 2026. This section should be reviewed by privacy counsel to ensure it addresses all applicable data protection requirements. Consider whether additional provisions are needed to address emerging privacy laws or specific requirements for certain types of data processed by Smackdab. Also consider whether the DPA should be mandatory for all Partners rather than conditional.
11. GENERAL PROVISIONS
11.1. Relationship of the Parties.
11.1.1. Independent Contractors. The parties are independent contractors. This General Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the authority to bind the other or to incur any obligation on behalf of the other. Each party is solely responsible for its own employees, including their acts, omissions, and compensation.
11.1.2. Insurance Requirements. Throughout the Term of this General Agreement, Partner shall maintain, at its own expense, insurance coverage as follows:
(a) Commercial General Liability Insurance with limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate, including coverage for bodily injury, property damage, products and completed operations, personal and advertising injury, and contractual liability.
(b) Professional Liability Insurance (also known as Errors and Omissions Insurance) with limits of at least $1,000,000 per claim and $2,000,000 in the aggregate.
(c) Cyber Liability Insurance with limits of at least $1,000,000 per occurrence, covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion, and network security.
(d) Workers’ Compensation Insurance as required by applicable law and Employer’s Liability Insurance with limits of at least $1,000,000 per accident for bodily injury or disease.
(e) Business Automobile Liability Insurance for owned, non-owned, and hired vehicles with combined single limit of at least $1,000,000 per occurrence if Partner uses vehicles in performing services under this General Agreement.
Partner shall provide certificates of insurance upon Smackdab’s request and shall name Smackdab as an additional insured on the Commercial General Liability policy. Partner’s insurance shall be primary and non-contributory to any insurance maintained by Smackdab. Partner shall provide Smackdab with thirty (30) days’ prior written notice of any material change in coverage or cancellation of policies. Partner’s insurance obligations under this Section are separate from Partner’s indemnification obligations under Section 8.
⚠️ ATTORNEY REVIEW NOTE: Review insurance requirements to ensure coverage levels are appropriate for the services provided and potential risk exposure. Consider whether these requirements might be overly burdensome for smaller partners or whether tiered insurance requirements based on partner type/size would be more appropriate. Verify that the additional insured requirement is limited to the Commercial General Liability policy only.
11.1.3. Audit Rights. During the Term and for one (1) year thereafter, Smackdab shall have the right, at its expense, to audit Partner’s compliance with this General Agreement, including but not limited to:
(a) Partner’s use and security of the Services; (b) Partner’s marketing and promotional activities related to the Services; (c) Partner’s use of Smackdab’s intellectual property; (d) Partner’s compliance with data protection obligations; and (e) Partner’s compliance with any other material terms of this General Agreement.
Such audits shall be conducted during normal business hours upon reasonable advance written notice (at least fifteen (15) business days), no more than once per calendar year, by Smackdab or an independent third-party auditor selected by Smackdab and subject to reasonable confidentiality obligations. Partner shall cooperate with the audit and provide any information reasonably requested by Smackdab or its auditor. If the audit reveals material non-compliance with this General Agreement, Partner shall reimburse Smackdab for the reasonable costs of the audit and promptly remedy the non-compliance.
11.2. Notices. All notices under this General Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing by certified or registered mail, return receipt requested, postage prepaid; or (c) the first business day after sending by email (provided that email shall not be sufficient for notices of termination or indemnification claims).
Notices to Smackdab shall be addressed to:
Smackdab Inc.
372 Live Oak Ln
Marco Island, FL 34145
Attention: Legal Department
Email: [email protected]
Notices to Partner shall be addressed to the contact information provided by Partner in the Partner Portal or Partner application.
11.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this General Agreement.
11.4. Assignment and Change of Control. Neither party may assign or transfer this General Agreement, in whole or in part, without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this General Agreement without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt to assign this General Agreement other than as permitted herein shall be null and void. This General Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
11.5. Amendments and Modifications. Smackdab may update or modify this General Agreement from time to time by posting an updated version on the Partner Portal or providing it to Partner through other reasonable means. Such updates will become effective thirty (30) days after such posting or notification, unless otherwise specified. Partner’s continued participation in the Program after the effective date of any update constitutes acceptance of the updated General Agreement. If Partner does not agree to any update, Partner must terminate this General Agreement and cease all participation in the Program before the effective date of the update.
⚠️ ATTORNEY REVIEW NOTE: Review the unilateral amendment provision in Section 11.5 for enforceability under Florida law and potentially in other states where Partners may be located. Consider whether additional safeguards are needed for material changes to key terms, such as commission structures or payment terms, which might require affirmative consent rather than continued participation.
11.6. Waiver. No failure or delay by either party in exercising any right under this General Agreement will constitute a waiver of that right. No waiver under this General Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
11.7. Severability. If any provision of this General Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 General Agreement shall remain in effect.
11.8. Force Majeure.
11.8.1. General Principles. Neither party shall be liable for any failure or delay in performance under this General Agreement (except for payment obligations) due to causes beyond its reasonable control that could not have been avoided by the exercise of due care, including but not limited to:
(a) Acts of God, natural disasters, earthquakes, floods, severe storms, or other natural events;
(b) Wars, terrorist acts, civil unrest, embargoes, or actions by governmental authorities;
(c) Nationwide or regional telecommunications failures or power outages beyond a party’s reasonable control;
(d) Industry-wide supply shortages;
(e) Epidemics, pandemics, or other public health emergencies, including related governmental orders, travel restrictions, or quarantines; and
(f) Major cybersecurity attacks affecting critical infrastructure, provided the party has implemented and maintained industry-standard cybersecurity measures.
11.8.2. Response Obligations. A party experiencing a force majeure event shall:
(a) Provide prompt written notice to the other party, which shall be no later than: (i) 48 hours after discovery for cybersecurity incidents (ii) 72 hours after discovery for natural disasters and infrastructure failures (iii) 5 business days after discovery for other force majeure events;
(b) Use commercially reasonable efforts to minimize the impact of the event;
(c) Provide regular updates regarding the status of the event and efforts to resume performance at intervals appropriate to the type of event, but no less frequently than weekly;
(d) Resume performance promptly once the event is resolved; and
(e) Implement and maintain reasonable business continuity and disaster recovery plans to minimize the impact of future force majeure events.
11.8.3. Pandemic-Specific Provisions. In the event of a pandemic or epidemic:
(a) The parties shall comply with applicable governmental health and safety guidelines and mandates issued by federal, state, and local authorities;
(b) The parties shall cooperate to implement alternative methods of performing obligations that minimize interpersonal contact, including but not limited to: (i) Remote work arrangements for personnel (ii) Virtual meetings and communications in lieu of in-person interactions (iii) Electronic document execution and delivery (iv) Contactless delivery or implementation methods where applicable;
(c) Each party shall notify the other of any pandemic-related impact on workforce or operations that may affect performance under this General Agreement, including: (i) Staff reductions or unavailability exceeding 20% of relevant personnel (ii) Facility closures or access restrictions (iii) Supply chain disruptions affecting critical resources (iv) Government-mandated operational restrictions;
(d) The parties shall reasonably accommodate temporary changes in delivery methods, timelines, or performance standards necessitated by the pandemic circumstances;
(e) The parties shall develop and implement pandemic-specific business continuity plans that include: (i) Staff cross-training to mitigate single points of failure (ii) Documentation of critical processes for knowledge transfer (iii) Alternate vendor and resource identification (iv) Regular review and updates based on evolving pandemic conditions; and
(f) Either party may request temporary modifications to service levels or delivery timelines specifically affected by pandemic conditions, which shall not be unreasonably withheld by the other party.
11.8.4. Cybersecurity Incident Provisions. For cybersecurity incidents, including but not limited to data breaches, ransomware attacks, denial of service attacks, and other security compromises:
(a) The affected party shall: (i) Activate its incident response plan immediately upon discovery (ii) Notify the other party within 24 hours of discovery, including preliminary assessment of the nature, scope, and potential impact of the incident (iii) Engage qualified cybersecurity specialists if the incident exceeds internal response capabilities (iv) Isolate affected systems to prevent spread while maintaining essential services where possible (v) Preserve forensic evidence for investigation purposes (vi) Implement appropriate containment, eradication, and recovery measures;
(b) The affected party shall share relevant non-confidential information about the incident to help the other party protect itself, including: (i) Indicators of compromise (IOCs) (ii) Attack vectors utilized (iii) Mitigation measures recommended (iv) System vulnerabilities exploited, once patched;
(c) For ransomware attacks specifically: (i) The affected party shall not pay any ransom without first consulting with law enforcement authorities (ii) The affected party shall maintain offline backups to facilitate recovery without ransom payment (iii) The affected party shall implement appropriate isolation procedures to prevent lateral movement (iv) The parties shall coordinate regarding any Client Data potentially affected by the ransomware;
(d) The parties shall coordinate customer communications related to any service impact, with the goal of providing clear, accurate, and timely information while complying with applicable breach notification laws;
(e) The affected party shall conduct a post-incident review and share lessons learned to prevent similar future incidents, to the extent sharing such information would not compromise security, including: (i) Root cause analysis (ii) Effectiveness of response measures (iii) Gaps or deficiencies in security controls (iv) Recommendations for preventing similar incidents; and
(f) The affected party shall document remediation actions taken to address security vulnerabilities and prevent recurrence.
11.8.5. Duration and Termination Rights.
(a) If a force majeure event prevents a party’s performance for more than the following periods, the other party may terminate this General Agreement upon written notice without liability, except for payment obligations accrued prior to the force majeure event: (i) Cybersecurity incidents: Thirty (30) consecutive days (ii) Pandemics or epidemics: Ninety (90) consecutive days (iii) Natural disasters: Sixty (60) consecutive days (iv) Other force majeure events: Forty-five (45) consecutive days
(b) In lieu of termination, the parties may agree to a modified performance arrangement that accommodates the constraints imposed by the force majeure event while maintaining the essential purposes of this General Agreement.
(c) If termination occurs due to a force majeure event: (i) The parties shall cooperate to ensure an orderly wind-down of activities (ii) Any unused prepaid fees shall be refunded on a pro-rata basis (iii) The parties shall coordinate regarding protection and return of Confidential Information and Client Data (iv) The terminating party shall provide reasonable transition assistance as needed
(d) The mere existence of a force majeure event does not automatically excuse performance of obligations that can still be performed despite the event.
⚠️ ATTORNEY REVIEW NOTE: The enhanced force majeure clause now includes detailed provisions for cybersecurity incidents (including ransomware) and expanded pandemic provisions with specific obligations. The termination rights have been differentiated by event type with varying timeframes. Review these timeframes for appropriateness to the business relationship and verify that the specific obligations (particularly for cybersecurity incidents) align with industry standards and cyber insurance requirements. Also verify that the notification timeframes in 11.8.2(a) are reasonable and achievable.
11.9. Entire Agreement. This General Agreement, together with the applicable type-specific agreement and any Order Forms, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this General Agreement shall be effective unless in writing and signed by both parties.
11.10. Counterparts. This General Agreement may be executed in counterparts, which taken together shall form one legal instrument.
11.11. Compliance with Laws.
11.11.1. General Compliance. Each party shall comply with all laws and regulations applicable to its performance under this General Agreement, including but not limited to:
(a) Data protection and privacy laws;
(b) Anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act;
(c) Export control laws;
(d) Anti-money laundering laws; and
(e) Consumer protection laws.
11.11.2. Anti-Corruption Compliance. Neither party shall, directly or indirectly, make, offer, promise, or authorize any payment or gift of anything of value to any government official or other person or entity in connection with this General Agreement in violation of applicable anti-corruption laws.
11.11.3. Export Compliance. Each party shall comply with all applicable export control laws and regulations, including the U.S. Export Administration Regulations and economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control. Partner shall not export, re-export, or transfer the Services to any country, person, or entity subject to U.S. export restrictions.
11.11.4. Compliance with International Regulations. For international operations, Partner shall comply with:
(a) Industry-specific regulations applicable in each jurisdiction where it operates;
(b) Electronic contracting laws in applicable jurisdictions, which may impose specific requirements for electronic signatures, contract formation, or record retention;
(c) Marketing and advertising regulations, which may restrict certain types of marketing activities or impose specific disclosure requirements;
(d) Local licensing or registration requirements; and
(e) Employment and labor laws that may impact the classification of personnel or partners.
11.12. Interpretation. The headings in this General Agreement are for convenience only and shall not affect its interpretation. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation.” This General Agreement shall be construed as if both parties jointly wrote it. If an ambiguity or question of intent arises, this General Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of authorship.
11.13. Equitable Relief. Each party acknowledges that a breach of Sections 3 (Confidentiality), 4 (Intellectual Property), or 10 (Data Protection and Privacy) may cause the other party irreparable harm for which monetary damages would be inadequate. Accordingly, the non-breaching party may seek injunctive or other equitable relief for such breaches without posting a bond.
11.14. Independent Contractors. The parties are independent contractors. This General Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the authority to bind the other or to incur any obligation on behalf of the other.
11.15. No Publicity. Neither party may use the other party’s name, logo, or trademarks in any press release, marketing materials, or public announcement without the other party’s prior written consent, which shall not be unreasonably withheld.
11.16. Time Limitation. No action, regardless of form, arising out of this General Agreement may be brought by either party more than two (2) years after the cause of action arose, except for actions for non-payment or breach of intellectual property rights.
⚠️ ATTORNEY REVIEW NOTE: Review Section 11.16 regarding the two-year contractual limitation period to ensure it is enforceable in Florida and other relevant jurisdictions. Certain claims may have statutory limitation periods that cannot be contractually shortened. Consider explicitly exempting claims that cannot legally be subject to shortened limitation periods.
11.17. Government Contracts. If Partner is a U.S. Government entity or accessing or using the Services on behalf of a U.S. Government entity, the Services shall be deemed “commercial computer software” and “commercial computer software documentation” pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, duplication, modification, or disclosure of the Services by the U.S. Government shall be governed solely by the terms of this General Agreement and is prohibited except to the extent expressly permitted by this General Agreement.
11.18. Competing Products and Services.
11.18.1. Competing Activities by Partner. Nothing in this General Agreement shall prevent Partner from developing, marketing, promoting, offering, or selling products or services that are or may be competitive with the Services, except to the extent specifically restricted in the applicable type-specific agreement.
11.18.2. Competing Activities by Smackdab. Nothing in this General Agreement shall prevent Smackdab from developing, marketing, promoting, offering, or selling products or services that are or may be competitive with Partner’s products or services, including by engaging with other partners who offer competing products or services.
11.18.3. Information Use Restrictions. Neither party shall use the other party’s Confidential Information to develop, enhance, or modify competing products or services.
11.19. Construction. In the event of a conflict between the body of this General Agreement and any exhibit, schedule, or addendum hereto, the terms of such exhibit, schedule, or addendum shall control with respect to its subject matter, unless expressly stated otherwise in such document.
11.20. Survival. Any provision of this General Agreement that contemplates performance or observance subsequent to termination or expiration of this General Agreement shall survive termination or expiration and continue in full force and effect.
11.21. Electronic Records and Signatures. Each party agrees to the execution of this General Agreement by electronic means and agrees that such execution shall be legally binding and enforceable. Each party further agrees that the electronic signatures, whether digital or encrypted, included in this General Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. “Electronic signature” means any electronic symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign such record.
11.22. Regulatory Compliance.
11.22.1. International Regulatory Frameworks. For Partners operating in or targeting customers in multiple jurisdictions, the following regulatory frameworks may apply in addition to those mentioned elsewhere in this General Agreement:
(a) Digital Services and Markets Regulations: Including but not limited to the EU Digital Services Act, EU Digital Markets Act, and similar legislation in other jurisdictions that impose requirements regarding platform operations, content moderation, and fair competition;
(b) Financial Services Regulations: When the Services are used in connection with financial services, regulations such as the EU Payment Services Directive 2 (PSD2), financial licensing requirements, and anti-money laundering regulations may apply;
(c) Telecommunications Regulations: When the Services include communication features, telecommunications regulations may apply, including requirements for emergency services access, interception capabilities, or registration as a telecommunications provider; and
(d) Industry-Specific Regulations: When the Services are marketed to or used by regulated industries, sector-specific regulations may apply, including healthcare (HIPAA, HITECH), education (FERPA), or other regulated sectors.
11.22.2. CRM/ERP Specific Regulatory Requirements. Given Smackdab’s focus on CRM/ERP solutions, Partner shall comply with the following additional regulatory requirements when applicable:
(a) Financial Reporting Standards: (i) When the Services are used for financial reporting or accounting functions, Partner shall ensure compliance with applicable accounting standards (e.g., GAAP, IFRS); (ii) Partner shall not misrepresent the Services’ capabilities regarding financial reporting compliance; and (iii) Partner shall advise Clients on appropriate configurations to maintain compliance with financial reporting requirements.
(b) Supply Chain and Procurement Regulations: (i) When the Services are used to manage supply chains or procurement processes, Partner shall advise Clients on compliance with applicable supply chain regulations; (ii) Partner shall help implement appropriate controls for regulated procurement processes; and (iii) Partner shall comply with applicable trade compliance regulations when configuring international supply chain functionality.
(c) Customer Data Management Regulations: (i) Partner shall implement appropriate safeguards for industry-specific customer data protection requirements; (ii) Partner shall configure the Services to facilitate Client compliance with sector-specific customer data regulations; and (iii) Partner shall advise Clients on appropriate consent management, data retention, and data disposal practices for their industry.
(d) Enterprise Risk Management Standards: (i) Partner shall be familiar with relevant enterprise risk management frameworks (e.g., COSO, ISO 31000); (ii) Partner shall implement appropriate controls when configuring risk management functionality; and (iii) Partner shall advise Clients on appropriate configurations to support their risk management obligations.
11.22.3. Partner Type-Specific Regulatory Obligations.
(a) Solution Partners shall: (i) Maintain knowledge of industry-specific regulatory requirements relevant to implementation services; (ii) Obtain and maintain any required certifications for regulated industry implementations; and (iii) Document and maintain records of compliance activities performed during implementations.
(b) Technology Partners shall: (i) Ensure integrations comply with applicable regulatory requirements; (ii) Implement appropriate data protection measures for regulated data handled by integrations; (iii) Maintain separation between regulated and non-regulated data processing when required; and (iv) Follow industry-specific security standards when developing integrations for regulated industries.
(c) Affiliate Partners shall: (i) Comply with marketing and advertising regulations specific to regulated industries; (ii) Not make regulatory compliance claims about the Services beyond those authorized by Smackdab; and (iii) Disclose any material relationships as required by applicable regulations.
11.22.4. Regulatory Compliance Cooperation. The parties shall cooperate to ensure regulatory compliance as follows:
(a) Upon reasonable request, each party shall provide the other with information necessary to demonstrate compliance with applicable regulations;
(b) The parties shall promptly notify each other of any regulatory inquiries, investigations, or proceedings related to the Services;
(c) If a regulatory change materially affects either party’s ability to perform under this General Agreement, the parties shall negotiate in good faith to amend this General Agreement to address the regulatory requirements; and
(d) Each party shall maintain records sufficient to demonstrate regulatory compliance as required by applicable law.
11.22.5. 2026 International Expansion Regulatory Preparation. In preparation for Smackdab’s planned international expansion in 2026, Partner shall:
(a) Monitor regulatory developments in regions where Smackdab plans to expand;
(b) Participate in Smackdab-provided training regarding international regulatory requirements;
(c) Develop region-specific compliance capabilities as needed for Partner’s intended areas of operation; and
(d) Implement any additional compliance measures required by Smackdab for specific international regions.
⚠️ ATTORNEY REVIEW NOTE: Section 11.22 imposes significant regulatory compliance obligations on Partners, some of which may be beyond the capabilities of smaller Partners. Consider whether these obligations should be tiered based on Partner type and size. Additionally, review the obligations related to future international expansion to ensure they are not overly burdensome or vague. Consider providing more specific guidance on what will be required for international expansion compliance.
11.23. Order of Precedence Within This Agreement. In the event of any conflict or inconsistency within this General Agreement, the order of precedence shall be: (a) the body of this General Agreement; (b) any exhibits, schedules, or attachments to this General Agreement; and (c) any documents incorporated by reference.
11.24. Language. This General Agreement is in the English language only, which shall be controlling in all respects. Any translation of this General Agreement into any other language shall not be an official version of this General Agreement and shall have no legal effect.
11.25. Taxes.
11.25.1. General Tax Obligations. Partner is responsible for all taxes applicable to its receipt of payments under this General Agreement. If Smackdab is required by law to collect or withhold any taxes from payments to Partner, the amount payable to Partner will be reduced by the amount of such taxes, and Smackdab will provide Partner with documentation regarding such withholding within thirty (30) days of such withholding.
11.25.2. International Tax Considerations. For Partners operating outside the United States or with Clients outside the United States:
(a) Partner shall be responsible for complying with all applicable tax laws and regulations in each jurisdiction where it operates, including but not limited to value-added tax (VAT), goods and services tax (GST), sales tax, withholding tax requirements, and permanent establishment rules;
(b) Partner shall provide Smackdab with any tax documentation required for proper tax treatment of payments, including but not limited to W-8 forms for non-U.S. Partners, VAT registration numbers, tax residency certificates, and treaty benefit claim forms;
(c) Partner shall promptly notify Smackdab of any changes to its tax status, registration, or applicable tax rates within thirty (30) days of such change;
(d) Partner shall indemnify and hold harmless Smackdab from any claims, liabilities, penalties, or costs arising from Partner’s failure to comply with applicable tax laws;
(e) For Partners in countries with which the United States has an income tax treaty, Partner may claim applicable treaty benefits by providing: (i) A valid, properly completed IRS Form W-8BEN or W-8BEN-E claiming treaty benefits (ii) Supporting documentation demonstrating eligibility for treaty benefits if requested by Smackdab (iii) Annual renewal of treaty benefit documentation (iv) Prompt notification of any change in circumstances affecting treaty eligibility;
(f) For Partners operating in multiple jurisdictions, Partner shall maintain accurate records of where services are performed and where value is created to support proper tax allocation; and
(g) In preparation for Smackdab’s 2026 international expansion: (i) Partner shall develop capabilities to address country-specific tax compliance requirements in anticipated expansion territories (ii) Partner shall implement systems to track cross-border transactions and associated tax implications (iii) Partner shall prepare for potential changes in tax residency rules and permanent establishment standards (iv) Partner shall participate in tax compliance training provided by Smackdab for target expansion territories.
11.25.3. Tax Documentation. Partner shall provide and maintain accurate tax information in the Partner Portal, including:
(a) Valid tax identification numbers for all applicable jurisdictions;
(b) Complete tax forms required by law (e.g., W-9, W-8BEN, W-8BEN-E), which must be: (i) Renewed every three (3) years or upon expiration, whichever is earlier (ii) Updated within thirty (30) days of any change in circumstances affecting the accuracy of the form (iii) Properly certified and authenticated as required by applicable tax authorities;
(c) VAT/GST registration information where applicable, including: (i) Valid registration numbers and certificates (ii) Documentation of threshold calculation for registration requirements (iii) Evidence of compliance with local VAT/GST filing and payment obligations (iv) Proof of fiscal representation where required by local law;
(d) Any tax exemption certificates or documentation; and
(e) For Partners with annual Commission payments exceeding $50,000 USD, an annual tax compliance certification attesting to proper tax treatment of all Commission payments.
11.25.4. Digital Services Tax and Similar Levies.
(a) For jurisdictions that impose Digital Services Taxes (DST) or similar taxes specifically targeting digital services, including but not limited to France, Italy, Spain, the United Kingdom, India, and other countries that have enacted or may enact such taxes:
(i) The parties shall cooperate to determine the appropriate party responsible for collecting, reporting, and remitting such taxes based on: – The specific requirements of each jurisdiction’s DST regime – The nature of the services provided – The location of end-users and Clients – The thresholds that trigger DST liability;
(ii) Partner shall assist in identifying transactions subject to DST by: – Tracking Client locations and usage metrics – Documenting digital interface usage – Categorizing revenue streams according to DST criteria – Maintaining supporting documentation for DST calculations;
(iii) If Smackdab is deemed the responsible party under applicable law, Smackdab may adjust the Commission rates or payment structures to account for such taxes, subject to the following: – Smackdab shall provide Partner with at least sixty (60) days’ advance written notice of any Commission adjustment – The adjustment shall be proportionate to the actual tax burden imposed – Smackdab shall provide detailed calculation methodology for the adjustment – Partner may dispute the adjustment calculation through the dispute resolution process;
(iv) If Partner is deemed the responsible party under applicable law, Partner shall: – Register with relevant tax authorities as required – Collect and remit DST as required – Maintain auditable records of DST compliance – Provide Smackdab with evidence of compliance upon request;
(v) The parties shall cooperate to achieve tax-efficient structuring where legally permissible; and
(vi) The parties shall review DST compliance quarterly as tax regulations in this area continue to evolve.
(b) Indirect Tax Implications of Digital Services. In addition to specific DSTs, the parties acknowledge that digital services may be subject to traditional indirect taxes (VAT/GST) in various jurisdictions with unique place of supply rules:
(i) The parties shall determine the place of supply for each transaction according to applicable law;
(ii) Partner shall collect and maintain evidence of Client location as required to determine proper tax treatment;
(iii) For Business-to-Business (B2B) transactions that may be subject to reverse charge mechanisms, Partner shall: – Obtain and verify valid VAT/GST registration numbers from business Clients – Document applicability of reverse charge mechanisms – Issue invoices with appropriate reverse charge notation where applicable;
(iv) For Business-to-Consumer (B2C) transactions, the parties shall determine the appropriate party for VAT/GST registration and compliance in each jurisdiction; and
(v) The parties shall cooperate to address marketplace facilitator laws that may impose collection responsibilities on digital platforms.
(c) Tax Information Exchange and Country-by-Country Reporting. The parties acknowledge that international tax information reporting requirements, including the OECD’s Base Erosion and Profit Shifting (BEPS) initiatives, may affect documentation requirements:
(i) Each party shall comply with applicable country-by-country reporting requirements;
(ii) Each party shall maintain transfer pricing documentation as required by applicable law;
(iii) Each party shall cooperate in responding to tax information exchange requests from relevant authorities; and
(iv) Each party shall implement processes to address emerging tax transparency requirements.
⚠️ ATTORNEY REVIEW NOTE: The enhanced tax provisions now address international tax considerations in much greater detail, particularly regarding Digital Services Taxes and preparation for the 2026 international expansion. Review these provisions to ensure they remain flexible enough to adapt to the rapidly evolving international tax landscape while providing sufficient structure to guide Partner compliance. Verify that the 60-day notice period for commission adjustments related to tax changes is reasonable and commercially viable. Consider having international tax specialists review the provisions for jurisdictions targeted in the 2026 expansion plan.
11.26. Currency and Payment Methods.
11.26.1. Standard Currency. Unless otherwise specified in writing, all payments under this General Agreement shall be made in United States Dollars (USD).
11.26.2. Payment Methods. Smackdab may offer multiple payment methods for Partners receiving Commissions, which may include direct deposit, wire transfer, PayPal, or other electronic payment methods. Available payment methods may vary by region and Partner tier.
11.26.3. Payment Information Accuracy. Partner is responsible for providing accurate payment information and for any fees charged by Partner’s financial institution for receiving payments. Partner shall promptly update any changes to payment information in the Partner Portal.
11.26.4. International Payment Provisions. For international Partners, the following provisions apply:
(a) Currency Conversion: If Partner requests payment in a currency other than USD, Smackdab may, in its discretion, make such payments using the exchange rate published by a major financial institution on the date of payment;
(b) Banking Fees: Partner is responsible for any currency conversion fees, bank charges, or transfer fees associated with receiving payments;
(c) Compliance Requirements: Partner is responsible for complying with any local banking regulations, tax reporting requirements, or currency control restrictions applicable to receiving international payments; and
(d) Payment Timing for International Transfers: International payments may require additional processing time beyond the standard payment schedule outlined in the applicable type-specific agreement. Smackdab will make reasonable efforts to minimize such delays.
11.26.5. Payment Schedule Modifications. Smackdab reserves the right to modify payment schedules, minimum payment thresholds, or payment methods upon thirty (30) days’ written notice to Partner. Such modifications will not affect accrued but unpaid Commissions.
11.26.6. 2026 International Payment Expansion. In connection with Smackdab’s planned international expansion in 2026, Smackdab may implement additional payment methods, currencies, and regional payment processors to better serve international Partners. Partner will be notified of such changes in accordance with Section 11.5.
12. CONTACT INFORMATION
For questions or concerns regarding this Agreement or the Smackdab Partner Program, please contact:
Smackdab Inc.
372 Live Oak Ln
Marco Island, FL 34145
United States
General Inquiries:
Email: [email protected]
Phone: +1 (555) 123-4567
Partner Program Support:
Email: [email protected]
Phone: +1 (555) 234-5678
Technical Support:
Email: [email protected]
Phone: +1 (555) 345-6789
Legal Department:
Email: [email protected]
Phone: +1 (555) 456-7890
Data Privacy Inquiries:
Email: [email protected]
Phone: +1 (555) 567-8901
International Operations (Beginning 2026):
Email: [email protected]
Phone: TBD
13. DEFINITIONS
In addition to the definitions set forth in Section 1.4 of this General Agreement, the following definitions apply:
13.1. “Data Protection Laws” means all applicable laws, regulations, and binding regulatory guidance relating to data protection, privacy, and the Processing of Personal Data, including without limitation: (a) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and any national implementing laws, regulations, and secondary legislation; (b) the UK GDPR and the Data Protection Act 2018; (c) the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA/CPRA”); (d) the Virginia Consumer Data Protection Act (“VCDPA”); (e) the Colorado Privacy Act (“CPA”); (f) the Connecticut Data Privacy Act (“CTDPA”); (g) the Utah Consumer Privacy Act (“UCPA”); and (h) any other state, federal, or international laws relating to data protection that may be applicable during the Term.
13.2. “Intellectual Property Rights” means all intellectual property rights worldwide, including without limitation, patents, patent applications, copyrights, trademarks, service marks, trade names, domain name rights, know-how, trade secrets, moral rights, and all other proprietary rights, whether registered or unregistered.
13.3. “Partner Portal” means the web-based portal through which Partner can access Program resources, track Commissions (if applicable), and manage their participation in the Program.
13.4. “Personal Data” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws, including but not limited to the GDPR, CCPA/CPRA, and similar laws. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
13.5. “Processor”, “Controller”, “Data Subject”, and “Processing” (and its derivatives) shall have the meanings assigned to them in applicable Data Protection Laws, including but not limited to the GDPR and CCPA/CPRA. In some jurisdictions and under some Data Protection Laws, these terms may be referred to as “Business,” “Service Provider,” “Consumer,” and similar terms.
13.6. “Program” means the Smackdab Partner Program as described in this General Agreement and the applicable type-specific agreement.
13.7. “Program Policies” means the policies, guidelines, and requirements applicable to the Program as published by Smackdab from time to time on the Partner Portal or otherwise made available to Partner.
13.8. “Services” means Smackdab’s subscription-based software applications, platforms, and products, including but not limited to the core CRM/ERP platform and any modules, add-ons, and features made generally available by Smackdab to its clients, as described in the Terms of Service and more fully in Appendix 3 (Services Description) of the S&A Agreement.
13.9. “Technology Partner” means a Partner who develops and maintains integrations between their own applications or services and the Services, making such integrations available to Clients.
13.10. “Solution Partner” means a Partner who is authorized to market, promote, and implement the Services and provide implementation, consulting, and support services to Clients.
13.11. “Affiliate Partner” means a Partner who is authorized to market and promote the Services and refer potential Clients to Smackdab.
13.12. “Sub-processor” means any Processor engaged by a Processor (including any third-party service provider or contractor) to process Personal Data on behalf of a Controller.
13.13. “Territory” means the geographic region(s) in which Partner is authorized to engage in activities under this General Agreement, which shall be the United States of America unless otherwise specified in the applicable type-specific agreement. Following Smackdab’s planned international expansion in 2026, the Territory may be expanded to include additional countries as specifically authorized by Smackdab in writing.
13.14. “Term” means the period beginning on the Effective Date and continuing until termination of this General Agreement in accordance with Section 5.
13.15. “Qualified Sale” means a sale of Services that qualifies for Commission payments as defined in the applicable type-specific agreement.
13.16. “Client” means a customer who purchases the Services directly from Smackdab or through a Partner.
13.17. “Client Data” means any data, information, or material that: (a) a Client inputs into or submits through the Services; (b) is generated, collected, processed, transmitted, stored, or maintained by or on behalf of a Client through the use of the Services; (c) is derived from analysis or processing of data described in (a) or (b); or (d) contains Personal Data of Client’s employees, customers, or other individuals that is processed in connection with Client’s use of the Services.
13.18. “Integration” means software applications, tools, or components developed by Technology Partners that connect, extend, or enhance the Services, as further defined in the Technology Agreement.
13.19. “Marketplace” means Smackdab’s online directory or platform where approved Integrations are listed, marketed, and made available to Clients.
⚠️ ATTORNEY REVIEW NOTE: Review all definitions for consistency with those in the General Agreement Part 1 (Section 1.4) and with the other related agreements. Pay particular attention to definitions related to data protection (13.1, 13.4, 13.5, 13.12, 13.17) to ensure they align with current legal standards and are consistent across documents. Consider whether any definitions should be updated to address upcoming changes in privacy laws.
14. LEGAL ENFORCEMENT AND COMPLIANCE
14.1. Periodic Legal Review.
14.1.1. Smackdab and Partner each acknowledge the importance of periodic review of this General Agreement and the applicable type-specific agreement to ensure ongoing compliance with applicable laws, regulations, and industry standards.
14.1.2. Smackdab will review and, if necessary, update this General Agreement at least annually to address:
(a) Changes in applicable laws and regulations;
(b) Developments in relevant case law;
(c) Updates to industry best practices; and
(d) Feedback from Partners and Clients.
14.1.3. Partners are encouraged to review this General Agreement periodically and to provide feedback on provisions that may present compliance challenges in their jurisdiction or industry.
14.2. Compliance Attestation.
14.2.1. Upon request, but not more than once per calendar year, Partner shall provide Smackdab with a written attestation of compliance with the terms of this General Agreement and the applicable type-specific agreement.
14.2.2. Such attestation shall be signed by an authorized representative of Partner and shall affirm Partner’s compliance with key provisions, including but not limited to:
(a) Data protection and privacy requirements;
(b) Information security requirements;
(c) Intellectual property provisions;
(d) Marketing and advertising restrictions; and
(e) Anti-corruption and export compliance obligations.
14.3. Regulatory Cooperation.
14.3.1. The parties shall cooperate in good faith to address inquiries, audits, or investigations by regulatory authorities related to activities under this General Agreement.
14.3.2. Each party shall promptly notify the other of any regulatory inquiry, investigation, or proceeding related to:
(a) The Services;
(b) The relationship between the parties; or
(c) The activities of either party under this General Agreement that may impact the other party.
14.3.3. Neither party shall make representations or submissions to regulatory authorities on behalf of the other party without the other party’s prior written consent, except as required by law.
14.4. Recordkeeping Requirements.
14.4.1. Each party shall maintain complete and accurate records relating to its activities under this General Agreement as required by applicable law and as necessary to demonstrate compliance with this General Agreement.
14.4.2. Such records shall be retained for at least three (3) years after the termination of this General Agreement, or longer if required by applicable law.
14.4.3. Types of records to be maintained include, but are not limited to:
(a) Client agreements and transactions;
(b) Marketing approvals and materials;
(c) Data protection documentation and consent records;
(d) Security assessments and incident reports;
(e) Partner communications and support interactions; and
(f) Compliance documentation and certifications.
14.5. Ethical Business Practices.
14.5.1. Each party shall conduct its business in an ethical manner and shall adhere to high standards of integrity, honesty, and fairness in all dealings related to this General Agreement.
14.5.2. Neither party shall engage in deceptive, misleading, or unethical practices, including but not limited to:
(a) Making false or misleading statements about the Services or the other party;
(b) Making unauthorized promises or commitments on behalf of the other party;
(c) Engaging in bribery, kickbacks, or improper payments;
(d) Using high-pressure or deceptive sales tactics; or
(e) Discriminating against any individual or group in violation of applicable law.
14.5.3. Each party shall maintain appropriate policies and procedures to ensure ethical business conduct, including:
(a) A code of conduct or ethics policy;
(b) Conflicts of interest management procedures;
(c) Anti-corruption compliance procedures; and
(d) Whistleblower protection mechanisms.
14.6. Legal Enforceability Warranty.
14.6.1. Each party represents and warrants that:
(a) It has obtained all necessary corporate approvals and authorizations to enter into this General Agreement;
(b) The individual accepting this General Agreement on its behalf has the authority to bind the party;
(c) Its entry into and performance under this General Agreement does not violate any other agreement to which it is a party or any applicable law; and
(d) This General Agreement constitutes a legal, valid, and binding obligation, enforceable against it in accordance with its terms.
14.6.2. Partner acknowledges that it has had the opportunity to review this General Agreement with legal counsel of its choosing and is not relying on any representations or warranties from Smackdab regarding the legal effect or enforceability of this General Agreement.
14.7. Legal Notices and Disclosures.
14.7.1. All legal notices required under this General Agreement shall be provided in accordance with Section 11.2.
14.7.2. Partner shall ensure that all required legal disclosures are provided to Clients and other third parties, including but not limited to:
(a) Partner relationship disclosures;
(b) Commission or referral fee disclosures;
(c) Data collection and processing notices;
(d) Warranty disclaimers; and
(e) Limitation of liability provisions.
14.7.3. Smackdab may provide Partner with template disclosures for common situations, but Partner remains responsible for ensuring that all disclosures comply with applicable laws in the jurisdictions where Partner operates.
⚠️ ATTORNEY REVIEW NOTE: Section 14 creates significant compliance obligations that may be challenging for smaller Partners. Consider whether a more tiered approach to compliance obligations based on Partner size/type might be appropriate. The legal enforceability warranty in Section 14.6 should be reviewed to ensure it doesn’t inadvertently create warranties that could be problematic if a Partner lacks sophisticated legal counsel or corporate governance structures.
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