Updated: June 2016
IMPORTANT-READ THIS TERMS OF SERVICE AGREEMENT (THESE “TERMS”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “ACCEPT” BUTTON OR OTHERWISE ACCEPTING THESE TERMS, CUSTOMER (“CUSTOMER”) AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THESE TERMS AND, IN SUCH EVENT, “CUSTOMER” AS USED IN THESE TERMS WILL REFER TO CUSTOMER AND ALL AUTHORIZED USERS (DEFINED BELOW), IF YOU DO NOT HAVE SUCH AUTHORITY MAY NOT USE THE SERVICES.
The Spotio system provides a means to track and manage sales territories and the sales process, as well as the ability to make available to Authorized Users certain content, including but not limited to documents, files, snippets, URLs and links to other websites and content, comments, and other posts (collectively, “Services”). “Authorized Users” means those persons who are employees, agents or are otherwise acting at the Company’s direction who are permitted to use the Services in accordance with these Terms.
2. LICENSE GRANT, RESTRICTIONS AND COPYRIGHT POLICY
Subject to these Terms, Spotio hereby grants Customer a limited, nonexclusive, non-transferable license to access and use the Services for its internal business purposes. Customer has no right to sublicense the license rights granted in this section. Customer will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services, except as expressly permitted herein. No licenses or rights are granted to Customer by implication or otherwise under any intellectual property rights owned or controlled by Spotio or its licensors, except for the licenses and rights expressly granted herein.
3. LICENSED CONTENT
Spotio does not claim ownership rights in any of Customer’s data, text, information about Customer or its work, materials, usernames, graphics, images, photographs, profiles, audio, video, items, and links (“Licensed Content”).
Customer hereby grants to Spotio a nonexclusive, worldwide, royalty-free, sublicensable (through multiple tiers) right to use, copy, modify and distribute Licensed Content, in any media now known or not currently known, to the extent necessary for Spotio to provide the Services. Customer agrees that Spotio may store, translate, or re-format the Licensed Content on the Services and display Licensed Content on the Services as required to provide the Services.
Licensed Content must be original work or Customer must have adequate rights to display and share the Licensed Content. Please note that Company will not sell or, except as necessary to provide the Services, otherwise distribute Customer Licensed Content.
4. USER AGREEMENT, REPRESENTATIONS AND RESTRICTIONS
In order to access the Services, Customer will be required to register for a Spotio account (an “Account”). Customer agrees to: (a) provide true, accurate, current and complete information about Customer and Authorized Users when registering for an Account, including any payment method (“Payment Method”); (b) maintain and promptly update the Account to keep it true, accurate, current and complete; (c) review the fees to be charged for use of the Services (the “Fees”); and (d) authorize Spotio or its third party service providers to charge Customer’s Payment Method for any and all Fees incurred by Customer for use of the Services. Customer is responsible for all reasonable costs incurred by Spotio in attempting to obtain payment of Fees, including any documented attorneys’ fees, collection agency fees, interest fees and court costs.
Customer represents and warrants to Spotio that Customer will: (a) maintain the security of its user identifications, passwords and other confidential information relating to the Account; (b) maintain the security, confidentiality and integrity of all messages and the content that Customer receives, transmits through or stores on the Services; (c) be responsible for all charges resulting from the use of the Account, including but not limited to, unauthorized use of the Account prior to Customer notifying Spotio in writing of such use and taking steps to prevent its further occurrence by changing Authorized Users’ passwords; (d) comply with these Terms; and (e) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding Customer’s use of the Services.
Customer further represents, warrants and covenants that: (i) Customer has the power, and authority to enter into and perform its obligations under these Terms; (ii) all information provided to Spotio by Customer, including Payment Method information, is truthful, accurate and complete; (iii) Customer is authorized to pay any Fees incurred from use of the Services; and (iv) Customer has provided and will provide accurate and complete registration information.
Customer is not permitted, directly or indirectly, to: (x) distribute, display (except as otherwise set forth herein), rent, lease, transfer or otherwise transfer rights to, or in any way exploit, the Services, in whole or in part; or (y) remove any proprietary notices or labels on the Services.
5. TERM AND TERMINATION
Either party, as applicable, will have the right, in addition, and without prejudice to any other rights or remedies, to terminate these Terms as follows:
By Customer upon 30 day’s written notice to Spotio if past terms on any signed Agreement;
By either party for any material breach of these Terms, other than failure to make payments, that is not cured within 10 days of receipt by the party in default of a notice specifying the breach and requiring its cure; or
By either party, immediately on written notice, if (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy, (b) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within 60 days, or (c) the other party is adjudged bankrupt.
Spotio has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Services. Upon termination for any reason, Customer will pay all Fees. When these Terms are terminated and Customer’s Account is canceled, Customer immediately loses access to its Account and all of Customer’s data is immediately deleted and no longer available. The following sections will survive termination of these Terms: 3-6, 8-14, 16, 17, 19 and 20.
6. PAYMENT, PRICING AND PROMOTIONS
In consideration for the license granted to Customer hereunder, Customer agrees to pay Spotio the Fees based on program selected at the time of purchase on the site (“Order”). All Fees are subscription based and are due and payable at the beginning of each subscription period designated on an Order. Any amount past due will be subject to a financing fee at a rate equal to the lower of 1.5% per month or the highest rate allowed by law. At least 30 days prior to the end of the then-current subscription period, the parties will negotiate in good faith the Fees for the renewal period; provided, that in no event will the Fees for the renewal period increase by more than 10% over the Fees from the then-current subscription period. Spotio may not otherwise change the Fees for a given subscription period.
All Fees are non-refundable. If Customer elects to terminate these Terms and its Account, it will not relieve Customer of its payment obligations hereunder. When Customer terminates these Terms and cancels its Account, Customer immediately lose access to its Account and all of Customer’s data is immediately deleted and no longer available.
Customer is responsible for all applicable federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Customer’s use of the Services and the payment of the Fees to Spotio, other than taxes assessed against Spotio’s income, property and employees. If Spotio is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Spotio from Customer pursuant to these Terms, Customer will promptly reimburse Spotio any such amounts. All transactions will be executed using a third party payment processor (“Payment Processor”), and may be subject to a service charge. Customer will be asked to provide customary billing information such as name, billing address and payment information. Customer hereby authorizes Spotio to debit, through a Payment Processor, Customer’s payment card or user account in the amount of the Fees.
7. THIRD PARTY INTERACTIONS
During use of the Services, Customer may enter into correspondence with, purchase goods and services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Customer and the applicable third-party. Spotio and its licensors will have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between Customer and any such third party. Spotio does not endorse any sites on the Internet that are linked through the Services or Customer’s Licensed Content, and in no event will Spotio or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. Certain third party providers of goods and services may require Customer’s agreement to additional or different terms and conditions prior to Customer’s use of or access to such goods or services, and Spotio disclaims any and all responsibility or liability arising from such agreements between Customer and the third party providers.
Spotio will indemnify, defend, and hold Customer, Customer’s subsidiaries, affiliates, officers, directors, Authorized Users, attorneys and agents harmless from and against any and all claims, actions, costs, damages, losses, liabilities, expenses (including reasonable and documented attorneys’ fees and costs) or demands alleging that the Services, or any intellectual property incorporated therein, infringe, violate or misappropriate any intellectual property rights of a third party.
Customer agrees that Customer will defend, indemnify and hold Spotio, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, users, employees, attorneys and agents harmless from and against any and all claims, actions, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with Customer’s violation or breach of these Terms or Customer’s violation of any rights of any third party.
With respect to any claims, actions, costs, damages, losses, liabilities, expenses or demands as to which the indemnifying party has acknowledged its obligation or is obligated to provide indemnification under these Terms, the indemnifying party will have the sole right to hire legal counsel (subject to the reasonable approval of the indemnified party) and control the defense of (and/or to settle or otherwise dispose of) the dispute on such terms as the indemnifying party in its judgment deems appropriate; provided, however, that no settlement or consent to any judgment, award or decree may be made that will (i) not unconditionally release the indemnified party of all liability, (ii) affect the rights of the indemnified party, (iii) require any payment by the indemnified party, or (iv) require the indemnified party to make an admission of fault, in each case, without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed.
9. WARRANT AND DISCLAIMER
SPOTIO HEREBY REPRESENTS AND WARRANTS TO CUSTOMER THAT (A) ANY SERVICES PROVIDED BY SPOTIO HEREUNDER WILL BE PERFORMED WITH REASONABLE SKILL AND CARE BY COMPETENT AND TRAINED PERSONNEL AND WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER, (B) IT IS THE OWNER OF THE SERVICES AND THE MATERIAL, DATA AND ANY OTHER INFORMATION NECESSARY TO ALLOW CUSTOMER TO USE THE SERVICES (THE “MATERIALS”) OR HAS THE RIGHT TO GRANT TO CUSTOMER THE LICENSE TO USE THE SERVICES AND THE MATERIALS IN THE MANNER AND FOR THE PURPOSES SET FORTH IN THESE TERMS WITHOUT VIOLATING ANY RIGHTS OF A THIRD PARTY, AND (C) CUSTOMER’S USE OF THE SERVICES IN COMPLIANCE WITH THESE TERMS WILL NOT INFRINGE, VIOLATE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF ANY THIRD PARTY.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPOTIO DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY LICENSED CONTENT, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR (F) THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SPOTIO. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF CUSTOMER’S USE OF THE SERVICES, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH CUSTOMER, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. INTERNET DELAYS
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SPOTIO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. LIMITATION OF LIABILITY
EXCEPT (A) IN THE EVENT FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, (B) TO THE EXTENT ARISING FROM A BREACH CONFIDENTIALITY OR (C) PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) NEITHER PARTY (OR, WITH RESPECT TO SPOTIO OR SPOTIO’S LICENSORS) WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). WHICH MAY ARISE FROM THE USE, OPERATION OR IMPLEMENTATION OF THE SERVICES; (II) SPOTIO AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY CUSTOMER AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN CUSTOMER AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SITE OR IS REFERRED BY THE SERVICES; AND (III) EACH PARTY AGREES THAT THE OTHER PARTY’S LIABILITY FOR DAMAGES IN CONNECTION WITH THESE TERMS WILL NOT EXCEED TWO TIMES THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SPOTIO FOR THE SERVICES PROVIDED UNDER THESE TERMS.
12. CONFIDENTIALITY AND DISCLOSURE
Other than as expressly set forth herein, Spotio agrees to hold in confidence any and all of Customer’s confidential and proprietary information, which will include, without limitation, the Licensed Content and all information provided by Customer to Spotio (the “Confidential Information”). Spotio agrees to (a) hold the Confidential Information in strict confidence and to take all necessary precautions to protect such Confidential Information, (b) not use the Confidential Information except as necessary to fulfill its obligations or exercise its express rights hereunder, and (c) not disclose the Confidential Information to any person (other than Spotio’s personnel having a need to know) without Customer’s prior written consent. Without granting any right or license, Customer agrees that the foregoing will not apply with respect to any information that Spotio can document (i) is or becomes (through no improper action or inaction by Spotio or any affiliate, agent, consultant or employee of Spotio) generally available to the public, or (ii) was in Spotio’s possession or known by it without restriction prior to receipt from Customer. Spotio may make disclosures of Customer’s Confidential Information as required by applicable law, regulation, legal process or governmental request, provided Spotio uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows Customer to participate in the proceeding, if applicable.
Except as set forth above, Spotio may not disclose the fact that Customer is a client of Spotio orally or in writing to third parties, or use Customer’s name or logo in any document for any purpose, including without limitation for marketing or publicity, without Customer’s prior written consent.
All notices to Customer will be given electronically to the email address provided by Customer and will be deemed fully given and received when delivered by electronic transmission to the electronic mail address or other proper electronic destination provided to Spotio. Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received (i) when delivered in writing personally; (ii) when sent by confirmed telex or facsimile, (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a commercial overnight carrier, with written verification of such receipt. All communications will be sent to the party’s address as set forth herein, or at such address as the parties may later specify in writing for such purposes.
14. ELECTRONIC COMMUNICATIONS
Customer agrees to receive notices and electronic communications from Spotio. These communications may include information about Customer’s Account or information related to the Services. Customer agrees that any notice, agreements, disclosures, or other communications that we provide to Customer electronically satisfy any legal requirements that such communications be in writing.
15. DISCLOSURE AND INJUNCTIVE RELIEF
Customer acknowledges and agrees that any violation by Customer of these Terms will constitute an unlawful and unfair business practice, and will cause irreparable harm to Spotio, for which monetary damages would be inadequate, and Customer consents to Spotio obtaining any injunctive or equitable relief that Spotio deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Spotio may have at law or in equity.
16. GOVERNING LAW AND JURISDICTION
These Terms and any dispute arising out of or related to these Terms or the Services will be governed in all respects by the laws of the State of Texas, without regard to conflict of law provisions. Customer agrees that any claim or dispute Customer may have against Spotio must be resolved exclusively by a state or federal court located in Travis County, Texas. Customer agrees to submit to the personal jurisdiction of the courts located within Travis County, Texas for the purpose of litigating all such claims or disputes.
Neither party may assign these Terms, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, each party may assign this Agreement in its entirety in connection with a merger, acquisition, sale of all or substantially all of that party’s assets or other business combination. Subject to the above restrictions on assignment, this Agreement will inure to the benefit of and bind the successors and assigns of the parties.
19. ENTIRE AGREEMENT
20. NO WAIVER
Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers, or other acts or omissions by Spotio will be deemed a modification of these Terms nor be legally binding, unless documented in physical writing, hand signed by Customer and a duly appointed officer of Spotio.
21. FORCE MAJEURE
Spotio will not be liable for any delay or failure to perform resulting from causes outside of its reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Spotio’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.