(SpotOn Application Contract), last updated 6/28/17
THE SERVICES OF SPOTON ARE PROVIDED SUBJECT TO THIS CONTRACT. THIS CONTRACT BECOMES BINDING WHEN CLIENT SIGNS UP FOR SPOTON’S SERVICES OR WHEN CLIENT USES SPOTON’S SERVICES AFTER RECEIVING A COPY OF THIS CONTRACT. THE TERM “CLIENT” REFERS TO YOU, IF YOU ARE ACTING ON YOUR OWN BEHALF, OR THE COMPANY YOU REPRESENT, INCLUDING ALL PHYSICAL LOCATIONS REGISTERED FOR THE SERVICES BY SUCH COMPANY, WHETHER SUCH LOCATIONS ARE OWNED BY THAT COMPANY OR ARE FRANCHISEES (EACH, A “LOCATION”).
SpotOn Transact, LLC ("SpotOn") offers the services described in Section 1 (the “Services”) to businesses. Client wishes to use the Services for Client’s business purposes, and SpotOn agrees to provide the Services to Client, pursuant to the terms of this contract.
1. Description of Services
The Services allow Client to send a variety of messages, special offers, coupons and other information (collectively, "Notes") to Client's customers through various social media platforms, which may include email, mobile communications (e.g., SMS text messaging, mobile notifications), Facebook,* Twitter* and possibly other social media platforms. SpotOn Services also allow Client to use the loyalty program offered by SpotOn and SpotOn’s Tablet (as defined in Section 2.4) to offer benefits to customers, such as awards or incentives based on points (“Spots”) awarded for visits, purchases, social media interaction or other incentivized behavior ( the “Loyalty Program”). Only those Clients that signed up for the loyalty features of SpotOn (“SpotOn Loyalty”) will enjoy the benefits of the Loyalty Program, and all Loyalty Program features and terms mentioned in this agreement will not be applicable to those Clients that have not sign up for SpotOn Loyalty. Furthermore, SpotOn alerts Client of reviews and review scores from various review sites (“Review Tracking”), and only those clients signed up for Review Tracking will enjoy these benefits. Lastly, SpotOn enables the processing of credit card transactions by the Client, yet all such Services related to credit processing are defined and governed by Merchant Transaction Processing Agreement as referenced above.
2. Responsibilities of SpotOn
2.1. Emails; Mobile Communications. Client will be able to send emails and mobile communications to consenting customers without charge.
2.2. Program Sites. SpotOn will connect its online tools (“HotSpot”) to Client’s existing Facebook and Twitter accounts and Client’s accounts on other social network platforms for which SpotOn offers Services and in which Client has elected to participate (collectively, “Program Sites”).
2.3. Online Tools and Analytics. SpotOn will provide Client with access to certain features of HotSpot that will provide Client the capabilities described below.
2.3.1. Tracking of Offers and Loyalty Programs. Using HotSpot, Client may track customer responses to offers and promotions (“Deal Redemptions”), track customer activity related to Client’s Loyalty Program, track the purchasing habits of Loyalty Program customers and perform other analytical functions.
2.3.2. Social Media Tracking. Through HotSpot Client can manage communications with customers, such as: (i) posting Notes, (ii) responding to messages through certain social media, (iii) distributing promotions and tracking Deal Redemptions, (iv) identifying certain categories of users (e.g., “fans,” “friends”), and (v) using other tools or solutions that may be included in the Services from time to time.
2.4. Addition of Customers Submitted by Client. Client may upload to SpotOn contact information for Client’s existing customers that Client wishes to include in SpotOn’s Services (“Client-Submitted Customers”). Such uploads shall be in a format, using a process and at a time or times agreed to by SpotOn. SpotOn will include the Client-Submitted Customers in the Services, as if such customers had signed up for the Services at Client’s site (via a tablet) or on a social media site.
2.5. Loan of Tablets and Routers. SpotOn will loan Client one or more tablet-type devices (each, a “Tablet”) and, if requested by Client, a router or other device to connect the Tablet(s) to the Internet (“Router”), subject to the provisions of Sections 3.7 and 4.3. For a fee, SpotOn will provide SpotOn Loyalty Clients with a supply of loyalty cards bearing SpotOn’s logo (“SpotOn Loyalty Card”). Customers of SpotOn Loyalty may sign up to participate in Client’s Loyalty Program on the Tablet, and thereafter may register their purchases from or visits to Client by using the SpotOn Loyalty Card or, if enabled by the customer on certain types of devices, via a smartphone.
3. Responsibilities of Client
3.1. Notes. Client will be responsible for creating and sending Notes to customers who have elected to receive such Notes, some of which may be special offers, coupons or promotions (“Deal Offers”). Client will fulfill Deal Offers accepted by customers, whether or not such customers have signed up to receive Notes or Deal Offers from Client.
3.2. Loyalty Programs. Client will be responsible for its Loyalty Program offered through SpotOn, including designing the program, describing it to SpotOn users, administering the program and fulfilling its terms.
3.3. Client-Submitted Customers. Client will be responsible for its Loyalty Program offered through SpotOn, including designing the program, describing it to SpotOn users, administering the program and fulfilling its terms.
3.3.2. Accuracy, Currency, Retention of Customer Data. Client will be responsible for the accuracy of the information client provides SpotOn relating to Client-Submitted Customers and for updating such information as may be necessary to keep it current. Client will not rely on the information it transmits to SpotOn as an archive or backup, and will be responsible for retaining copies of all information Client sends SpotOn for which Client may have a need or wish to use. SpotOn will, upon request by Client, endeavor to return information relating to Client-Submitted Customers previously submitted by Client, but SpotOn makes no representation or warranty about its ability to do so or the accuracy or completeness of any such information returned to Client. Client understands that SpotOn may merge information relating to Client-Submitted Customers (including but not limited to such information provided to SpotOn by Client) with other information maintained by SpotOn, and that SpotOn may use all such information as set forth in Section 12.5.
3.4. Connectivity; Use of HotSpot. Each Location registered to use the Services under this contract Client will be responsible for maintaining internet connectivity for access to HotSpot and for all information it enters into HotSpot. Client will be responsible for, or for arranging for, the training and supervision of employees and other authorized personnel in each Location in (i) the use of the Services and any loaned devices in accordance with SpotOn’s policies and instructions, and (ii) the use of the Tablet(s) and/or Router(s). Each Location will be responsible for checking HotSpot frequently and for the setup of information entered or provided by Client (including any of the foregoing entered by such Location).
3.5. Payment. Client will pay SpotOn, or will cause each Location to pay SpotOn, for the Services monthly, as further described in Section 4, pursuant to the automatic payment authorization agreed to by Client and/or each Location.
3.6. Promoting Services to Customers. Client will encourage its customers to sign up for and use SpotOn’s Services, using the SpotOn Loyalty Cards, SpotOn Mobile App, their Customers’ email address, and/or Customers’ phone numbers; and agree to have Client’s Notes sent to them via mobile notifications, email, Facebook, Twitter and other Program Sites. Client will also encourage its customers to use the SpotOn website and SpotOn App, and to use SpotOn on social media platforms and other Program Sites, and to participate in the services offered there by Client and SpotOn.
3.7. Tablets and Routers. Client understands that the Tablet(s) and/or Router provided by SpotOn are on loan to Client for the Term of this contract (unless Client has proof of purchase), that SpotOn will continue to be the owner of such loaned devices, and that Client has the obligation to return the loaned devices to SpotOn upon termination of this contract. Specifically, without limiting the foregoing, Client agrees as follows:
3.7.1. Title; Labeling. Client agrees that the title to and all ownership rights in the Tablet(s) and the Router are retained by SpotOn. Client will not remove, alter, efface, cover or otherwise alter any markings, stickers or other indicia applied to the Tablet(s) and/or Router by or on behalf of SpotOn.
3.7.2. Exclusive Use. Client will use the Tablet(s) and/or Router exclusively in conjunction with the Services, and for no other purpose. Client will use such devices in accordance with normal usage, and will not alter, or seek to alter, any such device. Client will be responsible for the security of such devices and for maintaining them in good and operable condition.
3.7.3. Return of Devices; Replacement Fee. Client will, within 15 days after termination of this contract for any reason, return the devices SpotOn has loaned to Client (i.e., the Tablet(s) and/or Router) in good and operable condition, subject only to ordinary wear and tear. In the event that Client does not return such devices to SpotOn within 15 days after termination of this contract, SpotOn may charge Client a replacement fee, as set forth below, which will be debited to Client according to the payment method authorized by Client, which may include a debit to Client’s credit card, as described in Section 4.6. Upon receipt by SpotOn of such replacement fee, title to the Tablet(s) and/or Router shall vest in Client, and Client’s obligations set forth in Sections 3.7.1 – 3.7.3 shall terminate.
The replacement fees as of the Effective Date of this contract are:
10 inch Tablet $500
7 inch Tablet $250
Tablet Stand $50
If Client asks SpotOn to loan one or more additional Tablets after execution of this contract, the replacement fee may differ from the foregoing, and will be disclosed to Client prior to delivery of the additional Tablets to Client.
3.8. Responsibility for Multiple Locations. If Client registers more than one Location for the use of the Services, whether such Locations are owned by Client or are franchisees or other licensees of Client, Client will be responsible either for fulfilling the responsibilities set forth in Sections 3, 4 and 7 or for arranging for each such Location to do so.
4.1. Subscription and Activity Fees. Client will pay SpotOn:
SpotOn’s monthly subscription fee. Client will be notified of the then-current subscription fee in conjunction with Client’s acceptance of this contract.
There is no additional charge for the Services, including the following, all of which are included in the monthly subscription fee:
Notes (including Deal Offers) sent via mobile notifications, email, Facebook, Twitter or other social media platforms
Redemptions of accrued Spots (i.e., redemptions pursuant to Client’s Loyalty Program)
4.2. Payment of Fees.
4.2.1. Subscription Fees. Monthly subscription fees for each Location are payable in advance, via the payment method authorized by Client. Each monthly debit for subscription fees will be made in advance, on or after the first day of the month. If the Effective Date of this contract or the registration of a Location for the Services is other than the first business day of any month, the applicable subscription fees for the first partial month shall be prorated and charged the following month, together with the regularly scheduled monthly fees for such following month. If SpotOn offers one or more months of service free as an introductory promotion, the subscription fee for the initial partial month shall be charged along with the subscription fee for the first month commencing after the promotional period.
4.2.2. Activity Fees. Activity fees for any transactions will be payable in arrears via the payment method authorized by Client. Each such debit will be made on or after the first business day of the month following the month in which the fees were incurred.
4.3. Fee and Price Changes. SpotOn may change it subscription fees and/or the fees it charges for any Services by providing Client notice of such change at least 30 days before the change becomes effective. If Client does not agree to any such change in fees, Client may terminate this contract (and Client’s use of the Services) by notifying SpotOn of termination prior to the effective date of the fee change. This contract and Client’s use of the Services shall thereupon be terminated as of the effective date of the fee change. Client’s failure to terminate this contract prior to the effective date of the fee change shall constitute Client’s acceptance of the change in fees.
4.4. Notices of Charges. The amount to be debited to Client’s account or charged to Client’s credit card for the Services shall be adjusted pursuant to any fee change accepted (or deemed accepted) by Client, starting on the effective date of the fee change. Client may view its amounts payable to SpotOn on HotSpot, and SpotOn will notify Client of charges to its account or debits to Client’s credit card.
4.5. Obligation of Client for Fees. Client agrees not to terminate its authorization for debits to Client’s account or charge card until all fees and charges payable under this contract have been paid in full. All fees and charges payable hereunder shall remain enforceable obligations of Client regardless of whether Client terminates its debit or charge card authorization prior to collection in full by SpotOn, an authorized credit card debit fails or is rejected, or Client challenges or seeks to reverse any charge authorized under this contract.
4.6. Credit Card Authorization. By providing its credit card of checking account information to SpotOn, Client agrees that SpotOn is authorized to charge Client's credit card or checking account for all fees payable under this contract, as described in Section 3.7.3 and Sections 4.1-4.6. Service may be interrupted on accounts that reach 10 days past due. Accounts that are not collectable by SpotOn may be turned over to an outside collection agency for collection.
5. Proprietary Rights
5.1. Client’s Proprietary Rights. SpotOn may use certain trademarks and copyrighted material of Client on the Program Sites and on SpotOn Apps or SpotOn websites. Client consents to all such usage by SpotOn. Client retains all rights in and to its trademarks and copyrights.
5.2. Trademark Disclaimers. Google+ is a registered trademark of Google, Inc. Yelp is a registered trademark of Yelp, Inc. Foursquare is a registered trademark of Foursquare Labs, Inc. OpenTable is a registered trademark of OpenTable, Inc. TripAdvisor is a registered trademark of TripAdvisor, LLC.
5.3. SpotOn’s Proprietary Rights. SpotOn has developed proprietary software and systems through which it delivers the Services, including but not limited to HotSpot and SpotOn’s internal tools (collectively, the "SpotOn Software"). SpotOn grants Client a license to access HotSpot via the internet during the Term of this contract, but only for the internal use of Client and subject to the other terms and conditions of this contract. SpotOn has developed trademarks and copyrighted material that it may use on the Tablet interface, the SpotOn Loyalty Cards, the Program Sites, HotSpot or otherwise use on behalf of Client or make available for use by Client. All trademarks and materials used by SpotOn in the Services (other than those owned by Client); the SpotOn Software; and all other software, technology and systems used by SpotOn are owned by SpotOn.
6. Representations, Warranties and Covenants of SpotOn
7. Representations, Warranties and Covenants of Client
Client represents, warrants and covenants to SpotOn as follows:
7.1. Non-infringement. Client has all rights to all materials delivered by Client for use (or approved by Client for use) in conjunction with the Services, including for use on Program Sites, SpotOn Apps, HotSpot or SpotOn websites, and to all materials used in the Notes, Deal Offers and Client’s Loyalty Program, without infringing the rights of SpotOn or any third party.
7.2. Compliance with Law and Policy. Client will use the Services only for Client’s business purposes, will comply with all applicable laws and regulations, and with the terms of its published policies and programs, with respect to any of its operations that relate to the Services.
7.5. Notes and Deal Offers. Client will be wholly responsible for the creation and dissemination of Notes and for the fulfillment of all accepted Deal Offers. All such Notes and Deal Offers, and fulfillment of all Deal Offers, shall be in compliance with (i) all applicable laws and regulations, (ii) the terms of this contract, and (iii) the terms of such Deal Offers.
7.6. Loyalty Programs. Client will be wholly responsible for the design and description of its Loyalty Program and for fulfillment in accordance with the terms of such Loyalty Program. Any such Loyalty Program and related fulfillment shall be in compliance with (i) all applicable laws and regulations, (ii) the terms of this contract, and (iii) the terms of such Loyalty Program.
7.7. Review Tracking. Client is only permitted to use the content as expressly authorized by SpotOn or the specific content provider (i.e. Yelp, Google+, etc…) . Except for a single copy made for personal use only, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this site in any form or by any means without prior written permission from us or the specific content provider, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on this site. Any unauthorized use of the materials appearing on this site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
7.8. Client Submitted Customers. Client will be wholly responsible for submitting information of Client-Submitted Customers to SpotOn, and will do so only as set forth in section 3.3.
7.9. No Infringing or Inappropriate Content. Client will not disseminate, whether on its premises, on any Program Site, via any Note or Deal Offer, in any Chat Facility (as defined in Section 12.9) or otherwise, any content that Client does not have the right to use, or any content that is unlawful, vulgar, profane, disparaging or, in the sole judgment of SpotOn, otherwise objectionable ("Inappropriate Content").
7.10. No Interference. Client will not upload, post, e-mail or otherwise transmit any material that contains a virus or other mechanism designed to interrupt, destroy or limit the functionality of the SpotOn Software, any of the Services, or any software or system of a third party. Client will not interfere with the provision or use of the Services by SpotOn, by any client of SpotOn or by any end user, nor will Client interfere with any other technology or services offered by SpotOn. Except as authorized by SpotOn, Client will not seek to download, obtain the code for or in any other way seek to access the SpotOn Software or any other software or technology of SpotOn.
7.12. Use of Tablet(s) and Router. Client will use the Tablet(s) and/or Router loaned by SpotOn in accordance with the terms of Sections 3.7 and 4.3.
7.13. Authority for Multiple Locations. If Client registers more than one Location to use the Services, whether or not such Location is owned by Client or is a franchisee or other Licensee of Client, Client has the authority to commit such Location to the terms of this contract.
8. Disclaimers; Limitations of Liability; Release and Waiver
8.1. Third Party Services. Client understands and agrees (i) that SpotOn offers Services through the internet and through third parties, including but not limited to internet service providers, gateways, Facebook, Twitter and possibly other social networking or other third party sites or services (collectively, “Third Party Services”), and (ii) that the Tablet(s) and/or Router loaned to Client by SpotOn are manufactured by a third party (“Third Party Devices”). Client agrees that SpotOn is not responsible for the performance of the internet, any Third Party Services or any Third Party Devices, for the reliability, security, availability, compliance with law or any other aspect of the internet, Third Party Services or Third Party Devices. CLIENT HEREBY RELEASES SPOTON FROM ANY DAMAGES CLIENT OR ITS CUSTOMERS MAY INCUR AS A RESULT OF USE OF THE INTERNET; HOTSPOT, SPOTON’S WEBSITE, TOOLS, TECHNOLOGY OR SERVICES; OR THIRD PARTY SERVICES OR THIRD PARTY DEVICES. CLIENT AGREES NOT TO ASSERT ANY CLAIMS AGAINST SPOT ON, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY, “ASSOCIATED PERSONS”) ARISING IN ANY WAY FROM USE OF THE INTERNET, THIRD PARTY SERVICES OR THIRD PARTY DEVICES. In connection with the foregoing release, Client hereby waives California Civil Code Section 1542, and any similar provision in any other jurisdiction. California Civil Code Section 1542 provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
8.2. No Assurance of Availability of Services. Client understands and agrees that the Services and Third Party Devices may be unavailable from time to time for maintenance or other reasons, and that SpotOn is not responsible for any error, omission or interruption in Services or in the performance of Third Party Devices; defect or delay in operation or transmission; communications failure; deletion, theft, destruction or unauthorized access to or alteration of any content that Client sends or attempts to send through use of the Services or Third Party Devices; or any technical malfunction or other difficulty Client may experience in the use of the Services or Third Party Devices.
8.3. Disclaimer of Representations and Warranties. The representations, warranties and covenants set forth in Section 6 are the only representations, warranties or covenants made by SpotOn. SPOTON HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE SERVICES AND THIRD PARTY DEVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE FOREGOING DISCLAIMER INCLUDES, WITHOUT LIMITATION, A DISCLAIMER OF ANY REPRESENTATION, WARRANTY OR COVENANT THAT THE SERVICES, THIRD PARTY DEVICES, HOTSPOT OR SPOTON’S WEBSITE WILL BE UNINTERRUPTED, RELIABLE, SECURE OR ERROR FREE; THAT HOTSPOT OR SUCH SERVICES, THIRD PARTY DEVICES OR WEBSITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT HOTSPOT, THE SERVICES OR THIRD PARTY DEVICES WILL MEET CLIENT’S EXPECTATIONS.
8.4. Limitation of Liability. Under no circumstances will SpotOn or any Associated Person (as defined in Section 8.1) be liable for damages of any kind, under any legal theory arising out of or in connection with Client’s use of, or inability to use, the Services, HotSpot or Third Party Devices, or from SpotOn’s suspension of or termination of the Services, or from Client’s participation in the Services, including any direct, indirect, incidental, special or consequential damages (including but not limited to damages for loss of profits, use, data or other intangibles), even if SpotOn or any Associated Person has been advised of or is aware of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of incidental, consequential or other types of damages, so some of the foregoing limitations may not apply to Client. Without limiting the terms of Section 8.3 and this Section 8.4 in any way, SpotOn’s liability for damages shall be limited to the return of the monthly subscription fees paid by Client for the month(s) in which the events giving rise to such damages occurred.
8.5. Basis of the Bargain. Client agrees that without the limitations of liability, exclusions of damages, releases and waivers contained in this contract it would not be feasible for SpotOn to offer the Services or the Third Party Devices at the rates offered by SpotOn, that such limitations of liability, exclusions of damages, releases and waivers are fundamental elements of the basis of the bargain between Client and SpotOn pursuant to which the Services and Third Party Devices are offered, and that the Services and Third Party Devices would not be made available to Client if Client did not agree to such limitations, exclusions, releases and waivers.
Client hereby agrees to indemnify SpotOn and its Associated Persons, and to hold them harmless from and against, any and all losses, damages, costs or expenses, including reasonable attorneys’ fees, arising out of any claim by a third party resulting from the operation of Client’s business (including but not limited to goods and services sold or provided by Client) or from an actual or alleged breach of or failure to comply with any of Client’s obligations, representations, warranties or covenants set forth in this contract, including but not limited to those in Section 7.
10. Rejection or Suspension of Client’s Participation; Consequences of Termination or Suspension
10.1. Rejection by SpotOn. SpotOn may refuse to enter into a contract to provide Services to Client for any reason, in SpotOn’s sole discretion, without providing any explanation for such refusal.
10.2. Suspension of Services. If SpotOn accepts this contract and thereby accepts Client as a client, in addition to its termination rights in Section 11, SpotOn may suspend Client’s access to the Services if Client violates any of the terms of this contract or any policy or procedure applicable to the use of the Services that may be published by SpotOn from time to time.
10.3. Consequences of Suspension or Termination. Upon suspension of Client’s right to use the Services or termination of this contract, SpotOn will remove Client’s access privileges to communications services offered by SpotOn and Client’s access to HotSpot, including but not limited to the tools that allow Client to track its Loyalty Program and outstanding Deal Offers, and will remove and/or delete all material relating to Client that was uploaded by SpotOn to the Program Sites. Client shall be responsible for the prompt return of, or purchase of, the Tablet(s) and/or Router loaned to Client by SpotOn, pursuant to Section 3.7.3. If Client terminates this contract for any reason other than pursuant to Section 11.2, Client shall owe and pay all monthly subscription months for all unpaid months remaining on the Term.
10.4. Right to Review Notes and Deal Offers. SpotOn reserves the right to review all Notes and Deal Offers, including but not limited to those posted through Facebook, Twitter or other Program Sites, but SpotOn has no obligation to review any Notes or Deal Offers. If SpotOn believes, in its sole judgment, that any Note or Deal Offer contains any Inappropriate Content (as defined in Section 7.8) or that any Deal Offer will not be fulfilled by Client in accordance with the terms of such Deal Offer, SpotOn may refuse to post the Note or Deal Offer or may prevent its posting or delivery. However, Client shall remain wholly responsible for its Notes and Deal Offers. Whether or not SpotOn reviews any Notes or Deal Offers or does or does not refuse to post any Notes or Deal Offers it may have reviewed, SpotOn assumes no responsibility for any Note or Deal Offer, and Client shall remain wholly responsible for the contents of its Notes and Deal Offers and for fulfillment of accepted Deal Offers.
11. Term and Termination (Month to Month)
11.1. Initial and Renewal Terms. This contract commences on the Effective Date, as described in Section 14.2.
11.1.2 IF A NOTICE OF TERMINATION IS DELIVERED ON OR PRIOR TO THE LAST DAY OF THE THEN-CURRENT TERM, THE TERM WILL END ON THE LAST DAY OF THE FOLLOWING MONTH, AND THIS CONTRACT SHALL AUTOMATICALLY BE EXTENDED TO SUCH DATE.
11.2. Early Termination by Client. This contract can be terminated by Client by delivery of written notice to SpotOn (i) pursuant to Section 4.3 or (ii) if SpotOn materially breaches this contract and does not correct such breach within thirty (30) business days after receipt of written notice of the breach from Client.
11.3. Early Termination by SpotOn. This contract may be terminated by SpotOn at any time in SpotOn’s sole discretion, without providing any explanation for such termination and without any liability or obligation to Client.
11.4. Effect of Termination. In the event of early termination of this contract by either party for any reason, SpotOn will take the actions described in Section 10.3 and Client shall be responsible for return of the Tablet(s) and/or Router, as described in Section 3.7.3.
11.5. Survival. Client’s payment obligations under the following sections of this contract shall survive termination of this contract for any reason: Sections 3.7.3, 3.8, 4 through 9, this Section 11.5 and Section 12. In addition, Client shall continue to honor all Deal Offers made and Loyalty Program benefits accumulated during the term of this contract.
12. General Provisions
12.1. Notices. All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party to any other party pursuant to this contract shall be in writing and shall be sent by courier service or mailed by registered or certified mail, return receipt requested, postage prepaid, or transmitted by facsimile or email, addressed to the other party as set forth in Section 15.
12.1.1. Changes. Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent, or additional persons or addresses for notice.
12.1.2. Delivery. Each notice, demand, request or communication sent in the manner described above shall be deemed received at the time shown on the delivery receipt if delivered by courier service; three days after being mailed if sent by registered or certified mail, return receipt requested; at the time shown on the sender’s confirmation of sending notice (if sent by facsimile); or at the time sent by email; provided that any notice of breach or termination, or any demand for indemnification, that is sent via facsimile or email must also be sent promptly by courier service or registered or certified mail, as described in Section 12.1.
12.2. Effectiveness of Email Communications. Any notice or contract called for by this contract to be in writing, other than notices of breach or termination, or demands for indemnification, shall be effective if sent by email from an address at the sending party’s domain to an individual designated by the other party for receipt of such notices, at the email address provided by the other party, and need not be sent by any other method.
12.3. Severability. If any term, provision, covenant or restriction of this contract is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this contract shall remain in full force and effect to the maximum extent permitted by law and shall in no way be affected, impaired or invalidated.
12.4. Relationship between the Parties. The parties agree that each of them is an independent contractor with respect to the other. Neither party is an express or implied agent of the other, has authority to assume or create any obligation, express or implied, on behalf of the other party, or has authority to represent the other party as agent, employee, or in any other capacity; and neither party will make any representation to the contrary.
12.5. Use of Customer Data by SpotOn. SpotOn reserves the right to gather and store data regarding Client Submitted Customers and Client’s customers who sign up for SpotOn’s Services, interact with Client’s Loyalty Program through the Tablet, the SpotOn App, Facebook or other Program Sites, or respond to Client’s Notes or Deal Offers (all of the foregoing, collectively, “Client’s Customers”). Such data may include the Client’s Customers’ use of Client’s Loyalty Program and responses to Deal Offers, including (i) the personal information submitted by Client or Client’s Customers (e.g., first and/or last names, telephone number, email address, zip code, birthdate, credit card and other financial information or other information (“Customer Personal Information”); optional information such as first and/or last names, gender and other information) and (ii) such customers’ responses to Notes and Deal Offers (whether from Client or another client of SpotOn), enrollment in Loyalty Programs (of Client and/or other SpotOn clients) and accrued Spots, purchases from Client and other SpotOn clients, and other habits of such customers. Client acknowledges that all such customer data is owned exclusively by SpotOn, other than the data of Client-Submitted Customers that was submitted to SpotOn by Client, which is jointly owned by Client and SpotOn. SpotOn may use any or all of such information to generate reports and analyses based on such data, including pattern recognition and benchmarking against data from other clients of SpotOn and their customers and other information available from third parties. Information about Client’s Customers may also be used by SpotOn for contacting, including marketing to, Client’s Customers or allowing others to do so. If SpotOn uses information about individuals that is gleaned solely from one or more other client’s participation in SpotOn’s services and from publicly available sources (including commercially available mailing lists), such individuals shall not be considered Client’s Customers for purposes of the preceding sentence, whether or not they are also customers of Client.
12.8. User IDs and Passwords. Client’s use of SpotOn’s Services, including HotSpot, will be controlled by user IDs and passwords, in accordance with SpotOn’s access policies in effect from time to time. Client understands and agrees that SpotOn will provide access to Client’s information, in accordance with access levels and controls offered by SpotOn, to anyone using an active user ID and password combination selected by Client and associated with the appropriate level of access, and that SpotOn will rely on all messages and may post all Notes (including Deal Offers) sent using active user IDs and passwords assigned to Client with the appropriate level of access. Client will be responsible for selecting secure passwords and for safeguarding all user IDs and passwords. Client will notify SpotOn in writing of any user IDs and/or passwords that may have been compromised or that Client wishes to terminate or change for any reason.
12.9. Use of Chat Facilities. SpotOn may provide, as part of the Services, discussion blogs, bulletin board services, chat rooms and/or other means of communication for use by SpotOn, Client, other customers of SpotOn and possibly by third parties such as operators of Program Sites (collectively, “Chat Facilities”), but SpotOn is under no obligation to provide any Chat Facilities. If SpotOn does provide Chat Facilities, Client acknowledges that such facilities are not for private communications, that all other persons with access to such Chat Facilities may read any of Client’s communications posted there, that SpotOn does not control or endorse the messages posted by users and that SpotOn disclaims any responsibility or liability for any messages posted on the Chat Facilities or any action taken as a result of such messages. Client agrees that its use of, and any reliance on, the Chat Facilities or any messages posted on them is at Client’s own risk. Any message posted to the Chat Facilities by Client will be treated by SpotOn as non-confidential. Client hereby consents to SpotOn’s posting of all such messages, with or without attribution to Client, to any and/or all Chat Facilities and for any other lawful purposes, such as advertising, promoting or enhancing the Services. Such consent shall be irrevocable and shall apply to all forms of media and transmission, whether now existing or created in the future. All submissions by Client to Chat Facilities will be subject to Client’s representations, warranties and covenants of noninfringement and no Inappropriate Content, as set forth in Section 7.8. SpotOn may refuse to post any message or may remove any message of Client or any third party at any time, at SpotOn’s sole determination, without any obligation or explanation.
12.10. Marketing. SpotOn reserves the right to use Client’s name in promotional, marketing and presentation materials for the purpose of marketing SpotOn’s Services and promoting SpotOn, and in communications with investors and prospective investors and with third parties with which SpotOn does, or seeks to do, business. Client agrees that the Tablet(s), SpotOn App, SpotOn websites, and all Program Sites may bear a logo, tagline and/or other message attesting to SpotOn’s role in offering the Services (e.g., “Powered by SpotOn”) may disclaim any responsibility of SpotOn for Merchant’s products, services or communications, and may contain other information regarding the respective responsibilities of Client and SpotOn.
12.11. No Waiver; Amendment. The failure of either party to exercise in any respect any right or remedy provided for herein shall not be deemed a continuing waiver or a waiver, partial or complete, of any future breach or any other right or remedy hereunder. This contract may be amended only in a writing that is accepted by the party to be bound thereby.
12.12. Force Majeure. Except for each party’s payment obligations, neither party shall be liable under, or in default of, this contract for failure to perform its obligations under this contract if such failure arises out of causes beyond such party’s reasonable control and without its fault or negligence. Such causes or conditions shall include, but shall not be limited to, acts of God, terrorism, acts of a government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, electrical power failures, telecommunications or internet outages, riots, or wars.
12.13. Entire Contract; Assignment. This contract constitutes the entire contract and supersedes all prior contracts and understandings, both written and oral, among the parties, with respect to the subject matter hereof. This contract is binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
13. Disputes with SpotOn
13.1. Contact SpotOn First. If a dispute arises between Client and SpotOn, SpotOn’s goal is to learn about and address Client’s concerns and, if SpotOn is unable to do so to Client’s satisfaction, to provide Client with a neutral and cost effective means of resolving the dispute quickly. Disputes between Client and SpotOn may be reported to SpotOn’s customer service at Support@SpotOn.com, or by calling SpotOn’s customer service representative at 877-814-4102 between 9 a.m.- 5 p.m. Pacific time weekdays (other than holidays).
13.2. Arbitration. If any dispute is not resolved by negotiation as described in Section 13.1, such dispute (excluding claims for injunctive or other equitable relief) shall be resolved through binding arbitration. Either Client or SpotOn may initiate such arbitration by notifying the other party and the alternative dispute resolution provider (“ADR Provider”) that Client or SpotOn wishes to initiate a binding arbitration proceeding. Such arbitration shall be handled by the American Arbitration Association or another established ADR Provider mutually agreed upon by the parties. The arbitrator shall apply Illinois law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. There shall be no authority for any claims to be arbitrated on a class or representative basis. Arbitration can decide only the individual claims of Client and/or SpotOn. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The party initiating arbitration can elect non-appearance-based or appearance-based arbitration. For non-appearance-based arbitration: a) the arbitration shall be conducted by telephone, online and/or be based solely on written submissions, the specific manner shall be chosen by the party initiating the arbitration; and b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. For appearance-based arbitration, the arbitration shall be held at a location in Chicago, Illinois determined by the ADR Provider, or at such other location as may be mutually agreed upon by Client and SpotOn. Any judgment on an arbitration award rendered by the arbitrator (whether non-appearance-based or appearance-based) may be entered in any court of competent jurisdiction.
13.3. Law and Forum for Disputes. This contract shall be governed in all respects, including validity, interpretation and effect, by the internal laws of the State of Illinois, without regard to any conflicts of laws rules. Exclusive jurisdiction over any dispute arising out of this contract or any action to enforce rights under this contract, including any claim for injunctive or other equitable relief or to enforce a binding arbitration award, shall be in the state or federal courts located in Chicago, Illinois. Client hereby irrevocably submits to the personal jurisdiction of the courts located within Chicago, Illinois for the purpose of litigating all such claims or disputes, including for enforcing an arbitration award, agrees to venue in such courts and will not allege forum non-conveniens or otherwise seek to bring or move any such action in or to any other location.
13.4. Improperly Filed Litigation. All claims Client brings against SpotOn must be resolved in accordance with Section 13 of this contract. All claims filed or brought by Client contrary to Section 13 shall be considered improperly filed and a breach of this contract. Should Client file a claim contrary to Section 13, SpotOn may recover attorneys’ fees and costs up to $1,000, provided that SpotOn has notified Client in writing of the improperly filed claim, and Client has failed to promptly withdraw the claim.
14. Acceptance and Effectiveness of this Contract
14.1. By Client. By signing up for SpotOn’s Services or by using SpotOn’s Services after receiving a copy of this SpotOn Application Contract, Client accepts and agrees to be bound by the terms of this contract. The individual accepting this contract (by signing up for SpotOn’s Services or by using those services after receipt of this contract) hereby represents and warrants that he or she has full power and authority to bind Client by such acceptance.
14.2. By SpotOn. Notwithstanding the acceptance of this contract by Client, this contract shall become and binding on SpotOn and effective only after SpotOn has notified Client that SpotOn has accepted Client as a client (“Effective Date”).
15. Addresses for Notice
Subject to Section 12.1, all notices to SpotOn shall be sent as follows:
15.1. If to SpotOn. Notices to SpotOn shall be sent to:
SpotOn Transact, LLC
300 California Street, Fourth Floor
San Francisco, CA 94104
15.2. If to Client. Notices to Client shall be sent to the physical address, email address or facsimile number (i) provided by Client when Client signs up for SpotOn’s Services or (ii) otherwise provided to SpotOn by Client.
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