THIS AGREEMENT is made on the date when the Purchaser appends signature on the Service Agreement (the “Signing Date”). The Purchaser agrees to comply with all the General Terms and Conditions set forth below when appending its signature on the Service Agreement, and all of which in addition to the Service Agreement, the Cover Letter and other documents whereupon the Purchaser signs and agrees to comply with.
THIS AGREEMENT IS MADE BY AND BETWEEN TINK LABS LIMITED (“Tink Labs”) and all its direct or indirect Subsidiaries and Affiliates; and the Purchaser, collectively referred as the “Parties”
WHEREAS Tink Labs wishes to grant a license for mobile phones or other mobile devices (“handy Devices”) and software to the Purchaser. Tink Labs shall grant and the Purchaser shall accept the rights for the use of the services being the provision of handy Devices and related mobile phone rental services to the Purchaser within the Territory (collectively the “Services”). NOW, THEREFORE, the Parties hereby agree as follows:
1. APPOINTMENT OF PURCHASER
Tink Labs hereby appoints the Purchaser as its non-exclusive user and promoter of the Services and the Purchaser hereby agrees to act in that capacity. Most importantly, the Purchaser agrees to install the handy Devices for all of its rooms within 7 (seven) days of the Launch Set-Up Meeting. Launch Set-Up Meeting is the initial training provided from Tink Labs where the operation of handy Devices and the CMS is explained. The “Go-Live Date” is defined as 7 (seven) days after the Launch Set-Up Meeting or when the devices are actually set up in the rooms whichever comes first. “The ‘Go-Live Date’ will be the official start date of the handy services for the hotel as per the agreement.” In the event of any issue that could delay the Go Live Date, a revised Go Live Date shall be communicated and confirmed by Tink Labs to the Purchaser by written notice, including email.
2. DUTIES AND RESPONSIBILITIES OF THE PURCHASER
The Purchaser will at all times during the term of this Agreement:
2.1 place handy Devices into all of the Purchaser’s hotel rooms ready for usage by hotel guests and provide safekeeping of the handy Devices provided by Tink Labs for on-site quick swapping and replacement (the “handy Spare Devices”);
2.2 pay Tink Labs the fees for the term of this Agreement set forth in the Service Agreement if applicable;
2.3 agree that although Tink Labs provides handy Devices, handy software and services to the Purchaser’s hotel free of charge during the free trial period (if applicable), the hotel shall purchase SIM cards or Telecom services via the certified distributor or Tink Labs at the price listed in the Service Agreement after the free trial period;
2.4 provide reasonable manpower for distributing and promoting handy Devices (including, without limitation, mentioning handy on the Purchaser’s hotel website, reservation emails and other promotional materials, and displaying a promotional tent card in each of the Purchaser’s hotel rooms), and performing factory reset after guest checkout;
2.5 agree to include text and graphics references to the handy Device and its core features on the hotel website landing page and in the reservation confirmation email sent to guests when booking a room. Marketing materials, supplied by Tink Labs, shall also be placed in the lobby/reception/lounge areas of the hotel;
2.6 agree that no expense (apart from replacement cost) for the use of the handy Device shall be directly passed onto any hotel guest if the guest has damaged or lost the handyDevice. However, this will be at the hotel’s sole discretion;
2.7 shall collect and store a copy of guests official identification document (Passport, National ID Card) as required by law; and
2.8 agree to ensure that all handy Devices are always fully charged for each new guest to use prior to checking into the hotel and come readily with free internet access, free local and international calls as preset in the handy Device.
3. DUTIES AND RESPONSIBILITIES OF TINK LABS
Tink Labs will at all times during the term of this Agreement:
3.1 provide the Purchaser handy Devices with applicable software and content and deliver handy Devices to the Purchaser’s property on a date to be agreed in writing between the Parties;
3.2 offer handy Devices to all rooms to ensure that if a guest is staying in the room, they will get the full free use of handy Devices;
3.3 provide a handy Content Management System (“CMS”);
3.4 provide necessary training to the Purchaser and all its relevant hotel staff, for the use and operation of the Services, handy Devices and CMS at no additional cost subject to the clauses in the Service Agreement; and
3.5 shall comply with any applicable data privacy laws in relation to the collection and use of all personal information relating to hotel guests.
4.1 Subject to Clause 4.2 below, Tink Labs shall determine in its sole discretion the identity of any advertiser or merchant advertising, promoting or offering goods or services on handy Devices as well as the content, form and design of any such advertisement, promotion or offer.
4.2 Tink Labs agrees not to advertise on the handy Devices any pornographic or obscene materials.
4.3 Tink Labs agrees not to advertise on the handy Devices any Guesthouse or other hotel accommodation without the Purchaser’s consent.
5. PLACEMENT OF OTHER MOBILE COMMUNICATION DEVICE
5.1 The Purchaser may place in its hotel room mobile PABX or any form of telephone system which cannot be used outside the Purchaser’s hotel premises (“Permitted Devices”).
5.2 During the term of this Agreement, and for a period of 12 (twelve) months after the termination of this Agreement, the Purchaser shall not directly, or indirectly, on their own account or as a consultant, partner, owner, officer, director, or stockholder of any other firm, partnership, or corporation, in any way, engage with a business which provides a similar product or service as handy Devices to hotels.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Tink Labs shall grant the Purchaser during the term of this Agreement a non-transferable, non-assignable, non-exclusive and revocable license to use the trade name, trade mark, logo, service mark, apps, software, systems, updates and content (collectively the “Licensed Materials”) of Tink Labs for the sole purpose of distribution, promotion and sale of the Services.
6.2 The Purchaser acknowledges that any and all copyright, patent, trademark, service mark and any other intellectual property rights (collectively the “Intellectual Property Rights”) in connection with the Licensed Materials and the Services remain as the sole property of Tink Labs at all times during the term of this Agreement and after its expiry or termination.
6.3 The Purchaser warrants and undertakes not to reverse engineer, in whole or in part, any Licensed Materials or other proprietary materials.
7.1 Neither Party shall, during the term of this Agreement or after its expiry or termination, disclose to any other person any information or documentation given by the other Party which is of confidential nature or use such information for any purpose other than performance of its obligations under this Agreement, without the other Party’s written consent.
7.2 Clause 7.1 does not apply to information or documentation which is required to be disclosed by law or any competent authority, is in the public domain, or is obtained from a third party without breaching any duty of confidentiality.
8. PERSONAL DATA PROTECTION
8.1 Tink Labs shall collect, process and utilize the personal data of the hotel guests of the Purchaser only within the purpose of this Agreement.
8.2 In accordance with the relevant law in personal data protection, in order to protect the personal data of the hotel guests of the Purchaser, both Parties shall take adequate and reasonable measures to protect their personal data and shall not disclose or transfer their information to any third party other than for the purpose of this Agreement.
9.1 Upon termination of this Agreement, the Purchaser shall within 14 (fourteen) days return to Tink Labs all handy Devices and handy Spare Devices supplied, and all other materials provided by Tink Labs relating to the Services, and within 30 (thirty) days pay any outstanding amount accrued and due to Tink Labs
9.2 Tink Labs may assign, charge or transfer its interests in this Agreement or any right arising under it at any time without the consent of the Purchaser. Tink Labs will notify the Purchaser of any such assignment, charge or transfer. The Purchaser may, with prior written approval of Tink Labs, assign their rights under this Agreement to another party.
9.3 This Agreement constitutes the entire agreement and neither Party has entered into this Agreement in reliance upon any representation, warranty or undertaking of the other Party which is not set out or referred to in this Agreement.
9.4 The failure of either Party to enforce its rights under this Agreement shall not be construed as a waiver of such rights.
9.5 If any provision of this Agreement is held to be illegal or unenforceable, the validity and enforceability of the remainder of this Agreement shall not be affected.
9.6 Neither Party shall be deemed to be in breach of this Agreement if the breach is due to any circumstance beyond its reasonable control, including but not limited to Acts of God, war, civil commotion, industrial dispute or by any event of force majeure.
9.7 The governing law of the contract shall be the substantive laws of England
9.8 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which are deemed to be incorporated into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English.
9.9 No rule of construction or interpretation of this Agreement shall apply to the disadvantage of a Party for the reason that the Party was responsible for the preparation of this Agreement or any part of it.
9.10 Neither Party is responsible for any failure to perform its obligations under this contract, if it is prevented from or delayed in performing those obligations by any event of force majeure, except for payment obligations.
9.11 Tink Labs will not be held responsible for telecommunications network downtime that may, from time to time, affect performance of the devices.
9.12 This Agreement may be executed in one or more counterparts, and counterparts may be exchanged by electronic transmission (including by email), each of which will be deemed as original, but all of which together constitute one and the same instrument.
9.13 Any amendment made on this Agreement shall be agreed and signed by both parties with a separate written addendum.
9.14 Tink Labs reserves the right to seek remedy and indemnity for any damage or loss arisen from any breach of the contractual obligations stated in this Agreement by the Purchaser.
9.15 Any notice shall be deemed validly served (a) if delivered by hand, at the time of delivery, (b) if posted by prepaid ordinary letter, after 5 (five) days of posting, (c) if sent by facsimile, upon receipt of transmission report, (d) if sent by email, i or (e) if sent by courier, after 5 (five) days of delivering the package to the courier.
9.16 Any conflict arisen in interpreting and construing the terms and conditions set forth in documents including General Terms and Conditions, the Service Agreement, the Cover Letter and other documents whereupon the Purchaser signs and agrees to comply with, this General Terms and Conditions shall prevail.
10.1 If there is any fees the Purchaser has to pay to Tink Labs such as monthly payments, Tink Labs will bill in advance with a 30-(thirty)-day grace period. For any upfront cost, like ordering of custom cases, the Purchaser will be billed in advance for the first 50 (fifty) percent as deposit before any service is rendered or item is delivered. The remaining fifty (50) percent will be billed after service is rendered or items are delivered. All payments will be paid by bank transfer.
10.2 All monthly billing will be billed once any free trial period has expired.
10.3 For all overdue payments, a monthly interest charge of 1.5% on the outstanding balance, calculated on a monthly basis, will be imposed and the details will be reflected on the invoice.
11.1 Should the Purchaser terminate this agreement during the paid subscription period, the Purchaser shall pay the monthly fee up to the end of the Paid Subscription period.
11.2 At the end of the Paid Subscription Period, this Sales Quotation will continue to run on a perpetual basis, unless and until the Purchaser provides a 30 (thirty) days written termination notice.
The Parties hereto, acting through their duly-authorized representatives, have executed this Agreement (together with the General Terms and Conditions herein, the Service Agreement, the Cover Letter and other documents whereupon the Purchaser signs and agrees to comply with) as of the Signing Date.