PLEASE READ THIS DOCUMENT CAREFULLY
These terms of service (“Terms”) are entered between Spotzer Agency (“we”, “us” or“our”) AND you (“Reseller”, or “your”). By submitting an Order Form (as defined below), you acknowledge that you have read, understood and agree to be bound by these Terms.
YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF OR ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY. IF THE LATTER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE ALL REFERENCES TO “YOU” OR“YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF AT ANY TIME YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND YOU MAY NOT USE OUR SERVICES.
You may not access the Services for purposes of benchmarking their availability,performance or functionality against similar providers or for any other competitive purposes.
“Brief” refers to a standardized document submitted by Reseller which shall include all Client Data and information required to fulfil an Order for Services.
“Confidential Information” means all non-public,confidential or proprietary information that one party or its representative makes available (“Disclosing Party”) to the other party (“Receiving Party”) in connection with the Agreement. Confidential Information includes, without limitation, the terms of the Agreement (including any Order Form), technical data, programs, code, trade secrets, marketing strategies, software,documentation, business information as well as information related to the past,present and future plans, ideas, business strategies, customers and suppliers of each party and its affiliates, as the case may be. Information already known to the Receiving Party prior to the receipt from the Disclosing Party, or public knowledge is not considered Confidential Information.
“Customer” means the individual or legal entity user that obtains Services from you, as Reseller.
“Customer Data” means electronic data and information, including logos, pictures,slogans, art and other materials provided to us by Reseller in connection with providing the Services or uploaded/added by you or the Customer directly into/at the Service and including, to the extent applicable,personal data.
“Documentation” means works of authorship that we make generally available to you to use with the Services such as instructions for use of the Services.
“Free Services” means any product, service or feature which does not form a part of our Services but which we may choose (in our sole discretion and on a case-by-case basis) to make available to you on your request. Free Services are explicitly excluded from Services.
“Intellectual Property” means the following: all algorithms, application programming interfaces (APIs), concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation,drawings, flow charts, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks(including trademark, service mark, trade name of a party, brand names, product names, logos, and slogans), methods, models, architectures, procedures,processes, protocols, software code (in any form including source code and executable or object code), uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, specifications,subroutines, techniques, works of authorship, and other forms of technology.
“Intellectual Property Rights” means all present and future rights of the following types, that may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e)other proprietary rights in Intellectual Property of every kind and nature; and(f) rights in or relating to registrations, renewals, extensions, combinations,divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) above.
“Order” or “Order Form” means the online ordering document and Brief submitted by you to us which contains your information including: your contact information, purchased products and services, applicable Subscription Period and fees paid and/or payable.
“Reseller”means you, a legal entity which obtains Services from Spotzer Agency for reselling to Customers.
“Services” means the products and services that are available to be ordered by you under an Order Form and Brief and specifically excludes any Free Services.
“Subscription Period” refers to the period for which a Customer has signed up for support or maintenance of a certain Service.
“User” means any individual or a legal entity accepting these Terms or who is authorized by you to use the Services. Users may include you,your employees, consultants, contractors or Customers and Customers’ employees and agents.
2. SERVICES AND OUR RESPONSIBILITY
2.1. Provision of Services. Subject to the Agreement (including any applicable Order Form), we will do the following:(a) deliver to you within the agreed time the purchased Services in accordance with details provided in the Order Form including any inbound and outbound support, where applicable (b) use commercially reasonable efforts to ensure that hosting services are available 24 hours a day, 7 days a week except for:(i) scheduled or emergency maintenance; (ii) force majeure events, including an act of God, act of government, flood, fire, earthquake, war, terrorism, service provider failure, or denial of service attacks; or (iii) your acts or omissions.
2.2. Available Services. Detailed information on available Services can be found on our website: https://www.spotzer.com/agency.
2.3. Subscription Period(s). The initial subscription period (“Initial Subscription Period”) for the applicable Services shall be for a term of twelve (12) months. Thereafter, the Subscription Period shall auto-renew for additional twelve (12) month terms (each, a “Renewal Subscription Period”) provided however that a subscription may be terminated at any time upon not less than 30 days written notice to us prior to the expiration of the Initial Subscription Period or any Renewal Subscription Period.
2.4. Modification. From time to time, we may modify any aspect of our Services to improve your user experience.We will not make any material changes to our Services without providing notice to you.
2.5. Free Services. Upon your request, we may in our sole discretion make Free Services available to you subject to Section 7.3 below. Free Services are made availablet o you “as is”, at your sole risk and without any warranty whatsoever from us.
3. USE OF SERVICES
3.1. Acceptable Use. You will,and will ensure that Customers, comply with these Terms, which set out the terms and conditions of your access to and use of our Services.
3.2. Usage Restrictions. You will comply with all applicable laws, rules, regulations and ordinances with respect to the performance of any of the obligations under the Agreement. In addition:
(a) You will not, and you will ensure that no Customer or User shall do the following: (a) modify, copy or create derivative works based on Services or any part thereof, (b) reverse engineer, disassemble, or decompile any of our Services or any part of them to try to determine the source code; (c) use or launch any automated system, including but not limited to,“robots”, “crawlers”, “spiders”, or “offline readers”; (d) use the Services in any manner that damages, disables, overburdens, or impairs the hosting platform or interferes with any other party's access and/or use of our services; (e)attempt to gain unauthorized access to underlying systems supporting the Services;or (f) access the Services other than agreed pursuant to the Agreement.
(b) You are specifically restricted from, and responsible to ensure that Customers do not engage in, any of the following: (a) accessing and/or using our website or any of our Services in any way that is or may be damaging to or adversely affect our ability to provide the Services; (b) using our website in any way that impacts user access to our website or Services; (c)using our website or Services contrary to the Agreement or any applicable laws and regulations, or in any way which may cause harm to our website, or to any person or business entity; (d) engaging in any data mining, data harvesting,data extracting or any other similar activity in relation to the Services;
3.3. Your Responsibility. You will be responsible for the following: (a) User’s compliance with the Agreement(including all applicable third party end user agreements), Documentation and Order Form(s); (b) for the accuracy, quality and legality of Customer Data and your use of Customer Data with our Services; and (c) using commercially reasonable efforts to prevent unauthorized access to and use of Services and notifying us promptly of any unauthorized access. Any user ID and password you may have for the Services are confidential and you must maintain its confidentiality as well in accordance with Section 7.1 hereof.
3.4. Useof Customer Data.You shall be responsible for securing the following:
(a) A worldwide, royalty-free and sub-licensable license (“Customer Data License”) to use in connection with producing and delivering the Services, Customer Data and any images or recordings of Customer facilities, properties or products or its employees, agents or clients as shall be provided to us in the course of creating or delivering the Services and to list, represent, register or establish accounts or keywords on Customer’s behalf with third party media or other parties or services.
(b) Consent(“Customer Consent”) to use Customer Data to the extent required for contact via telephone, email or SMS in relation to delivery of the Services. Where Customer Data contains any information or personal data belonging to any third party,including employees, agents or representatives, you warrant and represent that you have obtained all requisite consents to provide us with this information.
(c) A representation and warranty (“Representation and Warranty”) that (i) Customer has full rights to use, broadcast and distribute Customer Data and documentary substantiation for all the claims made therein, (ii) Customer Data is truthful and not misrepresentative or misleading and does not plagiarize, libel, defame or harm any third party, (iii) Customers’ use of the Services will not invade the rights of privacy of any third party or otherwise infringe upon or violate the rights or property interests of any third party, and (iv) Customer will not use the Services except as permitted by the Agreement, including these Terms.
(d) An indemnity whereby you agree to indemnify and hold harmless Spotzer Agency and its affiliates and their respective officers,agents, partners, directors, shareholders, suppliers and employees from and against any loss, damages, liabilities, claims, demands, suits, expenses,including reasonable attorneys' fees, which any such party may incur arising out of or relating to: (i) your failure to obtain the Customer Data License,Customer Consent, and Representation and Warranty, (ii) use of Customer Data or any modification, display and use by you or Customer of a Service, (iii) claims that Customer’s products or services are defective, injurious or harmful or violate the rights of any third parties and (iv) claims predicated on a breach by you or Customer of the terms and conditions of your license to use the Services (or any part thereof) including any third party services.
3.5. Third Party Sites and Products.We or third parties may make available certain products and services to you as part of the Services. We may make available information about you and your use of the Services to these third-party providers in order to provide you with an enhanced user experience and/or any other customization of the Services requested by you. Third party products and services included as part of Services are not under our control. We do not endorse, warrant, or guarantee the continued availability of any third-party products or services. You agree and accept, and will ensure that Customers accept, any end user agreement required for the acquisition of third-party products or services, and any exchange of data by you or Customer with an applicable third party is solely between you and the applicable third party as governed by any applicable third party end user agreement.
4. FEES AND PAYMENT
(a) Fees for Services. You agree to promptly pay on demand all amounts due and payable for each Service, as specified in the applicable Order Form.
(b) Upfront Fee. This one-time setup fee (“Upfront Fee”) shall be payable immediately upon submission to us of the fully completed Order Form. The Upfront Fee is non-refundable.
(c) Subscription Fees. Unless otherwise provided in the applicable Order Form, (i) the subscription fee is payable monthly in advance and will remain fixed during the term of the applicable Subscription Period; and (ii) the subscription fee is non-cancellable during the term of the Subscription Period and is non-refundable.
4.2. Invoicing and Payment. All amounts invoiced are due and payable immediately, unless otherwise provided in the Order Form. You are responsible for providing complete and accurate billing and contact information to us and for notifying us of any changes to such information.
4.3. Payment Method. You will pay all fees via credit card, Stripe or by such other payment type specified in the applicable Order Form. If you are making payments via credit card, you authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
4.4. Overdue Charges; Late or Non-Payment. If you do not pay the invoice by the due date, then without limiting our rights or remedies under the Agreement (a) those overdue charges may accrue interest at a rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) we may suspend or terminate the current Subscription Period and the provisioning of all aspects of the Services, and/or (c) we may alter your payment terms on future purchases.
4.5. Payment Dispute. You will notify us immediately if there is any issue with your invoice. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6. Fee Increase. Generally,our Fees for Services will not be increased during the term of a Subscription Period. However, it is possible that Fees may be increased in certain circumstances and should this occur, we will notify you of the increased Feesby providing you with not less than thirty (30) days prior notice (via email).
4.7. Taxes. You are responsible for paying all taxes, levies or similar governmental assessment including, for example, sales, value-added or withholding taxes, associated with your purchases hereunder. Our fees do not include taxes, which we will charge as applicable and you will pay that amount.
5. TERM AND TERMINATION
5.1. Term and Renewal. The Agreement is effective and commences on the date you first submit to us the applicable Order Form. Upon submission of the Order Form, the Services will attract and be subject to a 12-month Subscription Period which, on expiry, will automatically renew for additional one (1) year terms, unless you give us notice of non-renewal at least 30 days before the end of the relevant Subscription Period. If you have purchased further Services during an on-going Subscription Period,the fees for these Services will be on a monthly basis (or annually as the case may be), unless otherwise indicated in your Order Form.
5.2. No Early Termination; No Refunds. The Subscription Period will end on the expiration date and the subscription cannot be cancelled early. All fees are non-refundable. If you terminate the Agreement or any Services during the Subscription Period, you will continue to be liable for and you agree to pay any outstanding fees due and payable for the remainder of the Subscription Period.
5.3. Termination/Suspension. We may suspend and/or terminate any User’s access to any or all Services without notice for any violation to the Agreement, delinquency in our system or in the use of our Services, or for non-payment of any amount due within 10 days after its due date.
5.4. Effects of Termination. Upon expiration or termination of the Agreement for any reason: (a) your right to use or access the Services shall cease and we shall have no further obligation to make the Services available to you; (b) all rights and licences granted to you shall cease; and (c) any amounts owed to us under the Agreement shall be immediately due and payable.
5.5. Return of Property. Upon expiry or termination of the Agreement, you may request within 30 days to export or download Customer Data. After this 30-day period, we hold no obligation to maintain or provide any of Customer Data and will delete or destroy all Customer Data in our systems or otherwise in our possession, unless legally prohibited by applicable laws from doing so.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Proprietary Rights. Save as provided in section 6.3 below, all our Services are protected by intellectual property laws, and all Intellectual Property Rights therein belong to and remain our property or, where applicable, that of our licensors and any third-party providers, and we retain all ownership rights to them.
Customer’s rights to the Services shall be granted subject to the following limitations: To the extent any Service contains copy, stock images, templates or any other pre-existing content or material provided from our library (“Our Data”),then you or Customer as the case may be, shall receive only a non-exclusive,non-transferable, worldwide, sub-licensable license to use Our Data for the term of the Agreement. Ownership of Our Data shall remain at all times with us. You agree not to copy, rent, lease, sell, distribute,create derivative works of or use Our Data in any manner contrary to the Agreement. You have the right to access and use the Services subject to the terms of the Agreement.
6.3. Your Rights; Customer Data.
You, or Customer as the case may be, shall own and retain all rights to Customer Data. You grant to us and any applicable third parties a limited right to use Customer Data solely to the extent necessary to provide the Services pursuant to the Agreement. Other than the licenses and consents, representations and warranties granted for use of Customer Data during the term of the Agreement, we acquire no other right, title or interest from you, your Customers or your licensors under the Agreement.
6.4. Right to Use Feedback.
You grant us an irrevocable right and license to use and incorporate into our Services any comments, suggestion, enhancement,recommendation, testimonials, correction or other feedback provided by you or Users, without any payment or attribution. To the extent that we develop any updates, new versions or new releases of any of the Services, these will be owned exclusively by Spotzer Agency.
6.5. Publicity and Promotions.
You grant to Spotzer Agency an irrevocable,non-transferable, non-exclusive, non-sublicensable, royalty-free license to use and display, portions of the Services provided to you or Customer, which may from time to time include trade name(s), trademark(s), service mark(s), and logos (collectively, “Marks”) in promotional materials for Spotzer Agency’s business and services.
7. LEGAL TERMS
During the term of this Agreement and following its expiration, all Confidential Information related to or obtained from either party shall be held in confidence by the Receiving Party to the same extent and in at least the same manner as its own confidential information. The Receiving Party will not use Confidential Information for any purpose outside the scope of the Agreement. The Receiving Party will limit access to Confidential Information to its employees, contractors, advisors and agents, who need access for purposes consistent with this Agreement. The Receiving Party will not disclose Confidential Information to any third party without a prior written consent of the Disclosing Party. Upon notice to the Disclosing Party, the Receiving Party may disclose Confidential Information to the extent compelled by law, to do so.
7.2. INDEMNIFICATION. You will defend, indemnify and hold us harmless against any third party claim for losses or damages, demands, liabilities, obligations, penalties, fines (each, an “Action”) brought by a third party under any theory of legal liability arising out of or related to any of the following: (a) your non-compliance with or breach of the Agreement, (b) actual or alleged use of the Services in violation of the Agreement or law, by you,Customers, Users or by any related person under the Agreement regardless of whether such person has been authorized to use the Services, (c) your or Customer’s use of any third party services, or (d) any dispute between persons who claim to have authority to act for you in connection with the control of your account with us. We will notify you so you have the right to immediately take control of the defense and investigation of any Action and promptly provide you, at your expense, with any and all information and assistance reasonably requested by you to handle the matter. You shall not settle any Action on behalf of us or impose any obligations on us without our prior written consent.
7.3. DISCLAIMER; LIMITATION OF LIABILITY.
(a) DISCLAIMER. We and our affiliates and agents make no representations or warranties regarding the integrity, accuracy, completeness,success, profitability, reliability, availability or expected opportunities associated with our Services or data made available from the Services. Application Programming Interfaces (“APIs”) may not be available at all times. We provide Services, as well as any applicable Free Services, “AS IS” and “AS AVAILABLE”,without warranty of any kind, and disclaim all express or implied warranties,including without limitation warranties of merchantability, fitness for a particular purpose, performance, accuracy, reliability and non-infringement.This disclaimer of warranty constitutes an essential part of the Agreement.
(b) NO INDIRECT DAMAGES.The parties agree that the allocations of risk made in this Agreement are reasonable. To the extent permitted by law, in no event shall either party be liable for any indirect, incidental, special or consequential damages, business information, good will, loss of profits or revenue, or other pecuniary loss,arising under or in connection with the Agreement.
(c) LIMITATION OF LIABILITY.In no event shall our aggregate liability under the Agreement exceed, the lesser of: USD$1,000 or the total amount paid by you for the Subscription Period immediately preceding the event that gave rise to the liability. The foregoing limitation will apply regardless of whether such liability is based on breach of contract or tort (including negligence), strict liability, breach of a fundamental term or otherwise, but will not limit your liability or obligations under the Agreement regarding payment of fees, indemnification or for violation of our intellectual property rights. TO THE EXTENT THAT YOU OR A CUSTOMER IS A RECIPIENT OF FREE SERVICES, THIS LIMITATION SHALL NOT APPLY TO YOU, AND IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED DOLLARS.
(d) FREE SERVICES. To the extent that you benefit from the use of our Free Services, we shall not have any liability to you whatsoever with regard to the selection, implementation or use of such Free Services.
(e) THIRD PARTY PRODUCTS AND SERVICES.We disclaim all liability with respect to third party products that you use pursuant to the Agreement in relation to the Services. In no event shall Spotzer Agency be responsible for any breaches in security or loss of data caused as a result of the incorporation and/or use in any Services of third party services including any Free Services.
7.4. NO-EXCLUSIVITY AND INDEPENDENT CONTRACTOR.The Agreement does not create any agency, partnership, joint venture,employment or franchisor or franchisee relationship. Furthermore, no labor relationship between Spotzer Agency and you or your employees is created hereby. Neither party has the right or authority to,and will not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
8.1. Amendment; Entire Agreement; Precedence. The Agreement, including all appendices and Order Form(s), Briefs and these Terms,is the final, complete and exclusive agreement between us and you with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings. To the extent of any conflict or inconsistency in the documents constituting the Agreement, these Terms shall control. We may update and change these Terms at any time and such change will be posted here at: http://www.spotzer.com/agency/tos. For any material change to the Agreement, we will send prior notice via email or SMS notification. The updated Agreement will have an indication of its effective and binding date,for example, Terms of Service will have “Last Modified” or “Effective As of” or such similar language. We encourage you to check the Agreement on a regular basis. Please notify us in writing if you do not agree with any changes within thirty (30) days.
8.2. No Waiver. Delay in exercising any right or remedy will not be a waiver of such right or remedy. No course of dealings between you and us shall be construed as a waiver of any subsequent breach or modification hereof. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
8.3. Severability. If, in any jurisdiction, any part of the Agreement is unenforceable, such provision is ineffective without invalidating the remaining provisions of the Agreement and such unenforceable provision will be deemed to be superseded by a valid,enforceable provision that most closely matches the intent of original provision.
8.4. Interpretation. Where the word “including” or “includes” is used in the Agreement, it means “including(or includes) without limitation”.
8.5. Assignment. Your rights and obligations under the Agreement may not be assigned, delegated, or otherwise transferred by you, in whole or in part, by operation of law or otherwise. Any attempted assignment,delegation, or transfer in violation of the foregoing will be null and void.
8.6. Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
8.7. Governing Law; Venue. The Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Colorado. Any and all actions, suits, or judicial proceedings upon any claim arising from or relating to this Agreement shall be instituted and maintained in the State of Colorado. Each party waives the right to change of venue, or to file any action, suit or judicial proceeding in federal court. Notwithstanding this provision, if it is judicially determined that either party may file an action, suit or judicial proceeding in federal court, such action, suit or judicial proceeding shall be in the Federal District Court for the District of Colorado.