Terms of Service
Last Modified: October 1, 2019
Last Modified: October 1, 2019
PLEASE READ THE SPOTLIO TERMS OF SERVICE AND ALL REFERENCED OR LINKED MATERIALS CAREFULLY BEFORE USING ANY SPOTLIO SUBSCRIPTION SERVICE, AND BEFORE PURCHASING CONSULTING SERVICES AND BEFORE ACCEPTING OUR OFFER AND BEFORE DISTRIBUTING SPOTLIO MOBILE APPS. BY USING THIS WEBSITE OR OUR SERVICES OR CONSULTING SERVICES OR OUR MOBILE APPS, YOU INDICATE YOUR ACCEPTANCE OF ANY UPDATES TO THESE TERMS AND CONDITIONS.
Our Product (“Product”) can provide various software as a service (“SaaS”) tools, API- and other software services (“Services”), Mobile Apps for Smartphones (“Apps”), Consulting and Business Services (“Consulting Services”), all as more thoroughly described on our website at www.spotlio.com (together with any related sub-domains, the “Website”). Our Product is continuously evolving and the form and nature of the Product and it’s elements may change from time to time without prior notice. These terms and conditions (these “Terms”) are a legal agreement (“Agreement”) between you together with the business entity, if any, that you represent, (“Customer” or “You” or “Your”) and SPOTLIO AG, with its office in St. Moritz (Switzerland) and its subsidiaries and affiliates (all described as “spotlio.com” or “SPOTLIO” or “we”, “us” or “our”), establishing the terms and conditions under which You will access and use our subscription-, SaaS- and Consulting Services and/or distribute Apps (i) which are publicly accessible or (ii) to which You have access pursuant to our purchase options, and/or subscription plans that You have selected (each a “Service” and collectively, “Services”), and/or (iii) an offer You have accepted.
BY ACCESSING OUR WEBSITE OR USING OUR SUBSCRIPTION AND/OR OUR CONSULTING SERVICES AND/OR DISTRIBUTING OUR APPS, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT, IF APPLICABLE, ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE WEBSITE AND/OR THE SERVICES FROM YOU ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT ACCESS AND/OR USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
We expect our Website, our Services, our Apps and Consulting Services will change significantly over time. Your right to use them is limited in scope, revocable, personal, non-transferable and non-exclusive. Provided that you comply at all times with the terms of this agreement, subject to the limitations set forth herein, SPOTLIO will provide you with access to the Apps, Website and Services. You are responsible for obtaining any equipment and Internet service necessary to access the Apps, Website and Services.
2. SERVICES; USER LICENSES
You will receive access to our Apps, Website and Services on either a free or fee basis, as You agree in the registration process or by accepting an offer or invoice or as you access via our Website, as described on our Website or in our offer.
3. SUBSCRIPTIONS, SERVICES AND OTHER FEES PAYMENT CONDITIONS
Subscription fees have to be paid in full prior to the beginning of the subscription period. Fees for revenue and activity based commissions are invoiced after the month ends and have to be paid in full within 30 days.
SPOTLIO may provide one-time and recurring Services to Customer pursuant to an accepted offer or an invoice. Fees for these Services are in addition to Customer’s subscription fees for the subscription services and are payable at the start of the engagement, or as otherwise set forth in the offer and it‘s financial terms. Unless otherwise agreed, all Consulting Services are performed remotely. For Consulting Services performed on-site, the Customer will reimburse SPOTLIO its reasonable cost for all expenses incurred in connection with the performance of any Consulting Services performed at a location other than SPOTLIO’s office, including but not limited to, travel time, travel, meals and lodging expenses. SPOTLIO will obtain Customer’s authorization prior to incurring any expense in excess of 200€. Setup and recurring Service fees are invoiced after SPOTLIO receives the order and have to be paid in full within 30 days.
Hours purchased as part of a consulting package are nonrefundable and expire as set forth in the Order Form, but in any case no later than one hundred and eighty (180) days from the date of purchase. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of receipt of the invoice.
4. CUSTOMER SUPPORT
Support level for Customer’s use of the Product is depending on the chosen Product. Phone support for the Product is available 8AM to 8PM Central European Time (UTC+1), Monday through Friday. SPOTLIO accepts webform support questions 24 hours per day x 7 days per week through the SPOTLIO support center. Webform responses are provided during phone support hours only. SPOTLIO attempts to respond to webform support questions within one business day; in practice, SPOTLIO’s responses are generally even faster. SPOTLIO does not promise or guarantee any specific response time.
5. AVAILABILITY OF SERVICES
SPOTLIO shall use commercially reasonable efforts to make the Services and Website available 24 hours a day, 7 days a week every week of the year except for planned or announced downtime for maintenance.
6. REMOTE ACCESS
Customer will have to provide SPOTLIO access to Customer’s computers via remote data communications and by visits to Customer’s sites as reasonably required for SPOTLIO to perform its Services. All supplies, information and computer resources, including software licenses for the benefit of Customer required to perform the Services shall be provided to SPOTLIO at Customer’s expense.
7. MODIFICATIONS AND THIRD PARTY PROVIDERS
SPOTLIO modifies the Product from time to time, including by adding or deleting features and functions, in an effort to improve its Customer’s experience. Nothing in this Agreement shall prohibit SPOTLIO from making such changes to the Product, provided that no such change to the Product shall materially reduce the functionality of the Product provided to Customer. SPOTLIO reserves the right to provide some or all elements of the Product through the use of Third Party Providers as listed in the SPOTLIO Data Processing Addendum.
8. NON-CONFORMITY NOTIFICATION
Customer shall have five (5) days from the completion of any Service to notify SPOTLIO of any non-conformity of the Services with the specifications set forth in the Website or applicable accepted offer. If Customer notifies SPOTLIO of a non-conformity during this five (5) day period, and upon review SPOTLIO confirms such a non-conformity exists, SPOTLIO will make commercially reasonable efforts to correct or remedy any such non-conformity. If, at the conclusion of this five (5) day period, Customer fails to notify SPOTLIO of a non-conformity, any Services are deemed to have been accepted by Customer.
Customer grants SPOTLIO the right to add Customer’s name and company logo to its customer list and Website. Except for the foregoing, neither party may use the other party’s name or logo without the other party’s prior written consent.
10. COPYRIGHT AND TRADEMARK INFORMATION
This Website, and the information which it contains, except Your information and the Apps, without the information they contain, are the property of SPOTLIO and its affiliates and licensors, and are protected from unauthorized copying and dissemination by Swiss copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “SPOTLIO” and our logo are registered trademarks of SPOTLIO AG, under the applicable laws of Switzerland, the EU, the United States and/or other countries. Other Product or Service names or logos appearing in this Website are either trademarks or registered trademarks of SPOTLIO AG and/or its affiliates. The absence of a Product or Service name or logo from this list does not constitute a waiver of our trademark or other intellectual property rights concerning that name or logo. All other Product names are trademarks or registered trademarks of their respective owners.
11. CUSTOMER DATA
SPOTLIO as a Data Controller and/or Data Processor will not use, or allow anyone else to use, Service Data to contact any individual or company except as directed by Customer. SPOTLIO will use Service Data including Personal Data only in order to deliver the Product to the Customer and only as permitted by applicable laws, this Agreement, the SPOTLIO Privacy Statement, and the SPOTLIO Data Processing Addendum. SPOTLIO will not use Service Data for any other purpose.
SPOTLIO may monitor use of Services and Apps by all of its Customers and use data related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services and Apps. Customer agrees that SPOTLIO may use and publish such information, provided that such information does not incorporate any Service Data and/or identify Data Subjects.
SPOTLIO will maintain commercially appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data including Personal Data of Data Subjects. Customer consents to the processing of Service Data outside of the European Economic Area.
Upon request by Customer made within thirty (30) days after the date of termination or expiration of this Agreement, SPOTLIO will provide Customer with temporary access to the Services to retrieve all Service Data, or SPOTLIO will provide Customer with copies of all Service Data in its possession or control at that time. After such thirty (30) day period, SPOTLIO shall have no obligation to maintain or provide any Service Data and may thereafter, unless legally prohibited, delete all Service Data in its systems or otherwise in its possession or control.
12. USE OF CONTENT
(a) The Apps, Website and Services and all portions thereof are the property of SPOTLIO AG and/or its affiliates or licensors, and are protected from unauthorized use and infringement by intellectual property laws. Service or Product names are trademarks or registered trademarks of their respective owners. Subject to the terms and conditions of this Agreement, SPOTLIO hereby grants to You a limited, non–transferable, non–exclusive, non–sublicensable, right and license to access and use the Content (as defined below) and Services as permitted in the following section.
(b) You may use the Apps, Website and Services, and view, copy, download, and print content obtained via the Apps and Services (“Content”), subject to the following conditions: (i) the Website, Services and Content may be used solely for Your legitimate personal purposes, no part of the Website, Services or Content may be reproduced, transmitted or otherwise distributed in any form, by any means, electronic or mechanical, including photocopying and recording for any other purpose; and (ii) patent, copyright, trademark, and other proprietary notices may not be removed from the Services or any Content or other materials obtained from the Services without our prior acceptance.
(c) You shall not: (i) modify, adapt or create derivative works based on the Website, Apps, Services or Content; (ii) “frame” or “mirror” any Content; or (iii) disassemble, reverse engineer, or decompile the Services or Content, or access the Apps, Website, Services or Content in order to build or provide a competitive product or service, build a product or service using similar ideas, features, functions or graphics, or copy any ideas, features, functions or graphics.
(d) If you violate any of these Terms and Conditions, your permission to use the Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.
13. YOUR CONTENT AND SUBMISSIONS
As a Data Controller You give consent that SPOTLIO acts as a Data Processor of your Customer Data including Personal Data of your users as Data Subjects if needed to deliver the Services.
You agree that You will not, and you will not authorize SPOTLIO to upload or transmit any communications or files, materials, data, text, audio, video, images, photos or other content of any type to this Website or the Services (collectively “Your Content”) that infringe or violate any rights of any party. By submitting Your informations, offers, ideas, concepts, inventions, or Your Content to this Website or our SaaS tools, you agree that such submission is non-confidential for all purposes.
If You make any submission to this Website or to our SaaS tools or if You submit Your content, business information, offer, idea, concept or invention to SPOTLIO by e-mail, You hereby grant and, where applicable, warrant that the owner of such content or intellectual property has expressly granted SPOTLIO and all Customers and Suppliers a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display Your Content in any manner.
14. CODE OF CONDUCT
You may not use the Services and Apps to:
We may or may not pre-screen data provided by users and/or through selected service providers, but we and our designees shall have the right (but not the obligation) to pre-screen, refuse, or move any data that is available via our Apps and Service. Without limiting the foregoing, we and our designees shall have the right to remove any data or Content related to the Services that violates these Terms or is otherwise objectionable.
This Agreement shall commence on the earlier of the date You accept these terms and conditions, by accepting an offer or an invoice or the date You first used the Website or Services. Notwithstanding the foregoing, SPOTLIO may stop temporarily or permanently providing the Website, Services or any features within the Website or Services to You or to users generally and may not be able to provide You with prior notice. We also retain the right to create limits on access and expiry of our Apps, Website and Services at our sole discretion at any time without prior notice.
16. LIMITED WARRANTY
We provide to You and Your customers information based on the data obtained from You, third parties and other sources. We do not verify any of the data used in connection with our Apps and Services. We rely on such data and our assessments can be incorrect or incomplete if the data is incorrect or incomplete. As such, we do not and cannot guarantee the accuracy or completeness of any data or assessments available through our Apps and Services. We will provide the Apps and Services in a professional and workmanlike manner; provided that You agree that we are not responsible for the quality or correctness of any of the assessments or other Content available through the Apps and Services, which assessments and Content are provided on an AS IS and AS AVAILABLE basis. It is Your responsibility to evaluate the accuracy, completeness or usefulness of our data and other Content, together with other information available to You. Both You and us represent and warrant that it has the legal power to enter into this Agreement.
EXCEPT AS SET FORTH IN THIS SECTION, WE PROVIDE NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON–INFRINGEMENT.
17. LIMITATION OF LIABILITY
IN NO EVENT SHALL SPOTLIO BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE WEBSITE, SERVICES OR ANY CONTENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL SPOTLIO AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED AMOUNTS PAID BY YOU TO SPOTLIO FOR THE APPS AND SERVICES (WITHOUT CONSULTING SERVICES) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. THIS LIMITATION IS CUMULATIVE AND NOT PER CLAIM.
You agree to indemnify, defend and hold harmless SPOTLIO, its affiliates, officers, directors, employees, consultants, agents and representatives from any and all third party claims, losses, liability, damages and/or costs (including reasonable attorneys’ fees and costs) arising from Your use and/or distribution of the Apps, Website, Services, Content and/or Your violation of this Agreement and/or Your infringement, or infringement by any other user of Your accounts, of any intellectual property or other right of any person or entity.
19. LINKS TO THIRD-PARTY WEBSITES
This Website may contain links to non-SPOTLIO web sites. These links are provided to You as a convenience, and SPOTLIO is not responsible for the content of any linked web site. Any non-SPOTLIO web site accessed from this Website is independent from SPOTLIO, and SPOTLIO has no control over the content of that web site. In addition, a link to any non-SPOTLIO web site does not imply that SPOTLIO endorses or accepts any responsibility for the content or use of such web site.
20. NO IMPLIED ENDORSEMENTS; OPEN POSITIONS ON CAREERS PAGES
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by SPOTLIO of that third party or of any product or service provided by a third party. We may list open employment positions on this Website. These postings are for informational purposes only and are subject to change without notice. You should not construe any information on this Website or made available through this Website as an offer for employment. Nor should You construe anything on this Website as a promotion or solicitation for employment not authorized by the laws and regulations of Your locale.
21. NOTICE AND TAKE DOWN PROCEDURES; COPYRIGHT AGENT
If you believe any materials accessible on or from this Website infringe Your copyright, You may request removal of those materials (or access thereto) from this Website by contacting SPOTLIO’s copyright agent (identified below) and providing the following information:
SPOTLIO’s agent for copyright issues can be reached through the SPOTLIO contact form or +41 445 051 877.
In an effort to protect the rights of copyright owners, SPOTLIO maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this Website who are repeat infringers.
22. SUBSCRIPTION RENEWAL AND TERMINATION
Your subscriptions will be automatically renewed monthly the 1st day of each month for the full month unless you decline renewal five (5) working days prior to the renewal date by sending a message through the SPOTLIO contact form, which will be followed by a confirmation of receipt from SPOTLIO. No refunds will be granted for unused portions of your payment period.
In addition to Your right to terminate, for convenience, either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains unresolved at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
23. SUSPENSION FOR PROHIBITED ACTS, PRESENT HARM AND NON-PAYMENT
SPOTLIO may suspend Customer’s or any User’s access to the Product for any of the following causes, and SPOTLIO shall provide prompt electronic or telephonic notice of such event: (i) any use of the Product by Customer that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) Customer’s use of the SPOTLIO e-mail send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
If any Customer website on, or in use of, the Services: (i) is being subjected to denial of service attacks or other disruptive activity, or (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Services or others, (iv) is consuming excessive bandwidth, or (v) is causing immediate, material and ongoing harm to SPOTLIO or others, then SPOTLIO may, with reasonably electronic or telephonic notice to Customer, suspend all or any access to the Services. In this extraordinary circumstance, SPOTLIO will use commercially reasonable efforts to limit the suspension to the affected portion of the Services and promptly resolve the issues causing the suspension of the Services.
SPOTLIO may suspend Customer’s access to all or any part of the Product for cause upon ten (10) days’ notice to Customer of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period. SPOTLIO will not suspend the Services while Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
24. EFFECT OF TERMINATION OR EXPIRATION
Immediately upon termination or expiration of this Agreement as provided herein, Customer shall cease all use of the Services and Apps and return or destroy all SPOTLIO content in its possession. If Customer terminates this Agreement for cause, SPOTLIO shall promptly refund any fees that Customer has previously paid covering use of the Services and Apps after the effective date of such termination. If SPOTLIO terminates this Agreement for cause, Customer shall promptly pay all unpaid fees due through to the end of the actual accepted offer. Fees are non-refundable except as specifically provided for in this Agreement.
25. FORCE MAJEURE
Neither party shall be responsible for failure or delay in performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
It is the express wish of the parties that this agreement and all related documents be drawn up in English.
In the event of a conflict between the Terms of this Agreement and an accepted offer, the terms of the accepted offer shall control, but only as to that offer.
This Agreement shall be governed and interpreted pursuant to the laws of Switzerland, without reference to its conflict of laws principles. You and SPOTLIO agree that any suit or proceeding arising out of or relating to this Agreement will be brought in the federal and/or state courts, as applicable, in Zurich (Switzerland), and each party irrevocably submits to the jurisdiction and venue of such courts. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
This Agreement does not create a customership, partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party is authorized to assume or create any obligation or responsibility on behalf of, or in the name of the other or to bind the other in any manner. Neither party may assign or transfer this Agreement without the other’s prior written consent, except in connection with a merger, acquisition, reorganization or the sale of all or substantial all of assets or stock of such party, which may occur without such consent. SPOTLIO retains ownership of all intellectual property rights to its Content, technology, software, documentation and tools used in connection with the Apps, Website, Services and/or Content.
Notices delivered under this Agreement must be given in writing and will be effective when received. The laws of Switzerland prohibit the export of certain software and data to particular persons, territories, and foreign states. Nothing from this Website may be exported, in any way, in violation of Swiss law. This Agreement, together with the Privacy Statement, any terms and conditions set forth on the Website and any written agreement between You and SPOTLIO, contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (other than the contracts contemplated above), and cannot be amended except by a writing signed by both parties or as SPOTLIO may amend its Privacy Statement or other web site terms and conditions from time to time.
The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. If any part of this Agreement is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
29. FOR ADDITIONAL INFORMATION
If you have any questions about the rights and restrictions above, please contact SPOTLIO.