EFFECTIVE AS OF December 16th, 2019.
SpotOn User Terms of Service
What SpotOn Does
SpotOn Transact, LLC (together with its affiliates, “SpotOn”) provides various technology (the “SpotOn Technology”) and services to merchants. Such merchant services allow participating merchants to provide services to you, which may include sending you special offers; offering loyalty programs; or allowing you to schedule appointments, make reservations, purchase goods or services from the merchant, and/or to pay the merchant through SpotOn’s payment processing services (these and other services provided by SpotOn to merchants are called “Merchant Services”).
SpotOn may also provide services directly to you, through a SpotOn website (a “SpotOn Website”) and/or one or more mobile apps (“SpotOn Mobile”), to allow you to interact through SpotOn with merchants that use SpotOn Technology. Such services may allow you to sign up through SpotOn to participate in a merchant’s loyalty program or to receive messages and special offers from a merchant; make appointments or reservations, or purchase goods and services from a merchant through SpotOn (these and other services that SpotOn provides directly to you and other persons are called “User Services,” and all users of User Services are called “Users.”).
We call each merchant that uses SpotOn Technology a “Merchant” and we call the Merchant Services and the User Services, together, the “Services.”
Terms that Apply to You
These are the Terms of Service (“Terms”) that govern your use of User Services, whether you use a SpotOn Website, SpotOn Mobile, or otherwise interact directly with SpotOn. These Terms are a legal agreement between you and SpotOn.
Access to User Services
SpotOn may refuse to offer the Services to anyone at any time, and may withdraw access to the Services from anyone at any time, in the sole discretion of SpotOn.
Using a SpotOn Website or SpotOn Mobile, or by registering for the User Services through a Merchant, you may sign up to receive special coupons, messages and other information (“Notes”) that may include special promotions or offers (“Offers”), which a Merchant may send through social media platforms that may include Facebook, Twitter, and other social media services that may be included in the Services from time to time (“Social Media Tools”). You may also be able to invite friends to view Notes or Offers that you think would be of interest to them, through certain Social Media Tools. If a Merchant operates a loyalty program through SpotOn Technology that allows customers to accrue points or credits, you may access your current point total and the terms of Merchant’s loyalty program through the User Services.
From time to time, Merchants may provide additional Services using the SpotOn Technology, including options to make payments for certain Merchant services or products, make reservations or appointments, make purchases, or other services.
There is currently no charge for the use of any of these Services, but you should be aware that rates and fees charged by third parties may apply.
How to Use the Services
In order to receive Notes and keep track of your loyalty program points you should register with each Merchant that interests you at the Merchant’s location or on its Facebook page or other Social Media Tool the Merchant may use, which will automatically register you with SpotOn, or you may register directly with SpotOn on the applicable SpotOn Website and/or via SpotOn Mobile. Merchants may also register you for the Services by sending your contact information to SpotOn, which Merchants have agreed to do only with your consent (See “The Roles of Merchants and SpotOn; Merchant Rules,” below). Where indicated on the registration page, you will need to provide (or one or more Merchants may provide on your behalf) certain information, which may include your telephone number, your email address, first and/or last names, zip code and birthdate (“Registration Information”). Some of the foregoing information may be optional (see following paragraph).
After you register, you may be offered the opportunity to receive Notes and Offers via Facebook, Twitter or other Social Media Tools, and to participate in various programs to earn additional benefits. A Merchant with which you have registered and SpotOn may offer other programs or opportunities to registered Users from time to time.
If you already authorized one or more Merchants to send you Notes through mobile communications (e.g., SMS text messaging or mobile notifications), you need not re-register for that service, but when you register with a new Merchant to receive Notes you are authorizing such Merchants to send you Notes through mobile communications. In either case, your Registration Information will be associated by the Merchant and SpotOn with your email address. When you authorize SpotOn or a Merchant to send you Notes, or authorize a Merchant to send you Notes, as described above, you are authorizing SpotOn and the selected Merchant(s) to use your mobile number to send Notes and/or other messages to you.
Content of this Site and Notes
You understand that the Notes, the SpotOn Website, SpotOn Mobile, and/or other messages that you may receive from time to time from a Merchant contain trademarks, logos, artwork, and text that was created by or for the Merchant or SpotOn, and that is protected by trademark and/or copyright law. You agree not to use any such materials in any way without the prior written permission of the Merchant or SpotOn, as the case may be. You may, however, post Notes (including Offers) through the tools provided for that purpose through the Social Media Tools, or forward Notes or Offers to friends.
Social Media Tools and Third Party Links
Neither the Merchants nor SpotOn control the Social Media Tools through which the Services may be provided. Further, you may see links to third-party sites that are not controlled by a Merchant or SpotOn (all of the foregoing, “Third-Party Sites”). YOU AGREE THAT NEITHER SPOTON NOR ANY MERCHANT IS LIABLE FOR THE PRODUCTS AND/OR SERVICES OFFERED THROUGH SOCIAL MEDIA TOOLS OR ANY OTHER THIRD-PARTY SITES. NEITHER SPOTON NOR ANY MERCHANT IS RESPONSIBLE FOR OR OFFER ANY WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, RELIABILITY OR ANY OTHER ASPECTS OF SOCIAL MEDIA TOOLS OR PRODUCTS OR SERVICES FROM THIRD PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE SPOTON AND THE MERCHANTS FROM ANY DAMAGES THAT YOU INCUR, AND YOU AGREE NOT TO ASSERT ANY CLAIMS AGAINST SPOTON OR ANY MERCHANT ARISING FROM YOUR USE OF SOCIAL MEDIA TOOLS OR PRODUCTS OR SERVICES FROM THIRD PARTIES. In connection with the foregoing release, you hereby waive California Civil Code Section 1542 and any similar provision in any other jurisdiction. California Civil Code Section 1542 states: “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.”
The Roles of Merchants and SpotOn; Merchant Rules
Responsibilities of Merchants
Each Merchant has provided certain warranties and representations to SpotOn regarding that Merchant’s relationship with you and how the Merchant will use your information, which are included in the Merchant Rules. For example, the Merchant Rules require each Merchant:
a) to use the Services only for Merchant’s business purposes and to comply with (i) both Merchant’s own published policies and those of SpotOn, and (ii) all applicable laws and regulations, including all laws and regulations relating to privacy and security (including all laws and regulations relating to personal health information, financial information or other sensitive information), the CAN-SPAM Act of 2003, 15 U.S.C. 103, et seq. (the “CAN-SPAM Act”), the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”) and all other laws and regulations relating to marketing to entities and/or individuals.
c) to be solely responsible for the creation and dissemination of all communications with its customers, prospective customers, and others with whom it communicates through the use of the Services and/or SpotOn Technology, including the content and frequency of all communications to Users. Each Merchant has acknowledged that SpotOn does not create, send, disseminate, initiate, make or take any of the steps necessary to send communications from the Merchant to Users, and that SpotOn shall not be directly liable for any communications sent to Users by the Merchant. Each Merchant has agreed to communicate with Users only in compliance with all applicable laws, rules, and regulations, including CAN-SPAM and the TCPA, and all other applicable laws.
d) to obtain any consents from Users that may be required by the TCPA, CAN-SPAM, or other laws before Merchant sends any communications to Users. Merchant has agreed that it (i) bears the sole responsibility for obtaining any legally required consents from Users prior to sending any communications to Users, (ii) has the sole responsibility for storing and maintaining records of any legally required consents, (iii) has the sole responsibility to maintain and implement a system that allows Users to opt-out of future communications from Merchant or to alter or revoke any consents related to communications from Merchant, (iv) will not send communications to Users beyond the frequency represented to such Users in any disclosures or terms provided by Merchant, and (v) will have sole legal liability for any act, omission or violation of any law or regulation by Merchant or its contractors that may occur in connection with Merchant’s use of the Services.
g) not to retain any third parties for any purpose unless the third parties agree to comply with the Merchant Rules and with all prevailing laws and regulations, including CAN-SPAM and the TCPA and any associated regulations, and with contractual terms regarding CAN-SPAM and TCPA compliance that are at least as stringent as the requirements set forth herein. Each Merchant has agreed that it shall bear all legal responsibility if a third party retained by Merchant engages in conduct that violates the laws or regulations of any jurisdiction, including CAN-SPAM and the TCPA. Each Merchant has agreed not to allow any third parties to use the SpotOn Technology to create, send disseminate, initiate, make or take any of the steps necessary to send any communications on Merchant’s behalf. Each Merchant has also agreed that if it purchases leads, phone numbers, or other contact information from a third party, Merchant shall bear all legal responsibility for ensuring that the third party obtained all consents required under the TCPA, CAN-SPAM or other applicable laws or regulations.
i) not to seek to discover or record the credit or debit card number or other payment details when Users use a credit or debit card or any other non-cash payment means through SpotOn Technology (including a SpotOn website or SpotOn Mobile). Each Merchant has agreed that when Users interact directly with that Merchant without the use of any SpotOn Technology (e.g. via telephone), the Merchant will record such payment details only with the express written consent of the User. Further, each Merchant has agreed to use a User’s payment information only consistent with the scope of such User’s authorization (e.g., to process payments) and not to disclose any payment information of Users to a third party without the User’s written consent, provided that a Merchant may disclose such payment information to (i) third parties necessary to effect a transaction, provided that such third parties have an obligation to use the payment information only for purposes of carrying out the transaction or for other activities that have been authorized by the applicable User, and (ii) when required under applicable law.
Disclaimer of Warranties
ALL PRODUCTS AND SERVICES OF SPOTON, ALL NOTES, AND ALL GOODS OR SERVICES OFFERED BY MERCHANTS (INCLUDING THOSE PROVIDED WITH RESPECT TO OFFERS), THIS SITE, THE SOCIAL MEDIA TOOLS AND/OR ANY REWARDS PROGRAM OFFERED BY MERCHANTS OR OTHERS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” The allocation of responsibilities between Merchants and SpotOn in the preceding Section do not constitute warranties, and are stated solely to facilitate your understanding of the respective roles of the parties. SPOTON HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRIGEMENT.
SPOTON HEREBY DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT ALL MERCHANTS WILL FULFILL THEIR RESPONSIBILITIES OR COMPLY WITH THE MERCHANT RULES.
Without limiting the foregoing, SpotOn does not make any representation or warranty that each SpotOn Website, SpotOn Mobile App, the Social Media Tools, the Notes or Offers, any loyalty program of the Merchant or any third party (or any description thereof), any software or other technology used in the delivery of the Services (including the SpotOn Technology), are or will be accurate, complete, reliable, current or error-free, or that this site, any Social Media Tools or any other software, technology or servers used in the delivery of the Services, are free of any viruses or other harmful components. As with other sites and content you access over the internet, you are advised to exercise caution and use industry-standard means to detect and disable viruses and other harmful materials.
You agree that when you view, download or forward any content on a SpotOn Website or SpotOn Mobile, any website of a Merchant, or otherwise obtain content from or through the use of the Services or from SpotOn or a Merchant (including Notes that may be sent to you through the Social Media Tools), you do so at your own risk, and that you will be wholly responsible for your use of the foregoing and any loss of data, damages to your computer system or mobile device, or any other harm that may result from the use of the Services. Further, you understand that the information and other content available on this site, in Notes or Offers, or with respect to loyalty programs, and the technology used to formulate and deliver them, may contain errors, bugs, problems or other limitations, and that you use such information and content at your own risk and should not rely upon it without verification.
Disclaimer of Liability
SPOTON, INCLUDING ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, SHALL HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF THE SERVICES, THE SOCIAL MEDIA TOOLS, THE NOTES OR THE LOYALTY PROGRAMS OF A MERCHANT OR ANY OTHER PARTY; OR FOR ANY DATA COLLECTED FROM YOU BY SPOTON OR A MERCHANT THROUGH THE USE OF THE SERVICES.
Without limiting the foregoing,
(i) SPOTON SHALL NOT HAVE ANY LIABILITY, ON ANY LEGAL BASIS WHATSOEVER, TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, EVEN IF THE MERCHANT AND/OR SPOTON WAS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, and
(ii) YOUR AGREE THAT SPOTON IS NOT RESPONSIBLE FOR THE MERCHANT RESPONSIBILITIES DESCRIBED ABOVE UNDER THE HEADING "THE ROLES OF MERCHANT AND SPOTON; MERCHANT RULES." YOU AGREE THAT YOU WILL NOT MAKE ANY ALLEGATION OR TAKE ANY ACTION AGAINST SPOTON BASED ON THE ACTUAL OR ALLEGED FULFILLMENT OR NON-FULFILLMENT BY A MERCHANT OF ITS RESPONSIBILITIES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU HEARBY RELEASE SPOTON FROM ANY AND ALL CLAIMS OR LIABILITY RELATED TO OR ARISING FROM ANY ACTION OR INACTION BY A MERCHANT (INCLUDING ANY FAILURE OF A MERCHANT TO COMPLY WITH THE MERCHANT RULES). In connection with the foregoing, you hereby waive California Civil Code Section 1542 and any similar provision in any other jurisdiction. California Civil Code Section 1542 states: “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.” Some jurisdictions do not allow certain limitations or exclusions of damages, so some of the foregoing disclaimers and limitations may not apply to you.
You agree that without the foregoing limitations of liability, exclusions of damages, releases and waivers it would not be feasible for SpotOn and Merchants to offer you the Services without charge, that such limitations of liability, exclusions of damages, releases and waivers are fundamental elements of the basis of the bargain between you, the Merchants, and SpotOn, pursuant to which the Services are offered to you, and that the Services would not be made available to you if you did not agree to such limitations, exclusions, releases and waivers.
Privacy and Security
You agree not to violate or attempt to violate the security of a SpotOn Website or SpotOn Mobile, or any site or system of a Merchant. Specifically, but without limiting the generality of the preceding sentence, you agree not to: (a) access data that is not intended for your use; (b) log on to a server or account that you are not authorized to access; (c) probe, scan or test the vulnerability of any system or network related in any way to the Services without proper authorization; (d) breach security or authentication measures; (e) interfere with service to any host, network, or other user, including without limitation, sending unsolicited e-mail, flooding, spamming, mailbombing, or crashing; (f) send promotions and/or advertising products and/or services (other than forwarding or posting Merchant Notes as provided in these User Terms); or (g) attempt to do any of the preceding.
Accessing Your Account Through Social Media.
You understand that you may access your account information through your Facebook or other Social Media sign-in, and that neither SpotOn nor a Merchant has any control over Facebook or any other Social Media Tools or their sign-in processes. SpotOn and Merchants are entitled to rely on the fact that any information submitted and any request for information sent to SpotOn or a Merchant under your Facebook or other Social Media Tool sign-in was sent by you. If you believe that the confidentiality of any third-party sign-in has been compromised or that someone has accessed your account without authorization, you should immediately contact the third party responsible for the sign-in or other access control.
Termination of Right to use the Services
Notwithstanding any agreements you may have with an applicable Merchant, SpotOn reserves the right to terminate your right to use any of the Services for any reason whatsoever, including your violation of any of these Terms or if your account has been inactive for more than one year. Upon termination of your right to use any of the Services access to the terminated Services, including any Offers or loyalty programs, may be terminated (in the case of Offers or loyalty programs, in accordance with the terms of such program). The disclaimers, limitations of liabilities, releases and waivers set forth in these Terms shall survive any such termination.
Resolution of Disputes
If you have a complaint or a dispute with SpotOn or a Merchant, our goal is to learn about and address your concerns promptly. If we are unable to do so to your satisfaction, we want you to have a neutral and cost effective means of resolving the issue quickly. Any complaint or dispute you may have with regard to a Merchant with respect to the Services or the products or services offered by the Merchant should be reported directly to the Merchant. Complaints or disputes that involve SpotOn may be reported to SpotOn via e-mail 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).
If we cannot resolve any complaint or dispute by negotiation, such dispute (excluding claims for injunctive or other equitable relief) shall be resolved through binding arbitration. Either you or SpotOn may initiate such arbitration by notifying the other party and the alternative dispute resolution provider (“ADR Provider”) that you 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 involved in the dispute. The arbitrator shall apply Illinois law consistent with the Federal Arbitration Act and applicable statutes of limitation, 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 your individual claim or the individual claim of 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 solely based 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 determined by the ADR Provider in Chicago, Illinois, or at such other location as may be mutually agreed upon by the parties involved in the dispute. Any judgment on an arbitration award rendered by the arbitrator (whether the arbitration was non-appearance-based or appearance-based) may be entered in any court of competent jurisdiction.
Any arbitration or action brought by you with respect to anything related to the Services must be brought, if at all, within one (1) year from the accrual of such cause of action. A printed version of these Terms will be admissible in arbitration, judicial and administrative proceedings based upon or related to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
All claims you have against SpotOn, must be resolved in accordance with the process described in the three preceding paragraphs. Any claim you bring or file contrary to those provisions shall be considered improperly filed and a breach of these Terms. Should you file a claim contrary to the provisions set forth above, SpotOn may recover attorneys’ fees and costs up to $1,000, provided that SpotOn has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
The Services are offered through technology owned and controlled by SpotOn from its offices within the State of Illinois, United States of America. Since the Services can be accessed from all 50 states, as well as from other countries around the world, and each of these places has laws that may differ from those of Illinois, by accessing a SpotOn Website or SpotOn Mobile, or by using the Services, you and SpotOn agree that the statutes and laws of the state of Illinois, without regard to the conflicts of laws principles thereof, will apply to all matters relating to use of a SpotOn Website, SpotOn Mobile and the Services. Neither SpotOn nor any Merchant makes any representation that the Services are appropriate or legal in countries other than the United States, or that they will be available for use outside of the United States. If you use the Services from outside the United States, you are entirely responsible for compliance with applicable local laws, including the export and import regulations of other countries relating to the content of any Notes and anything purchased in response to an Offer. Unless otherwise explicitly stated, the Services, all Notes and all loyalty programs of Merchants are intended solely for use by individuals located in the United States.
SpotOn may assign its rights and responsibilities hereunder without notice to you. If any of these Terms are held invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision most closely matching the intent of the original provision and the remainder of these Terms will continue in effect. These Terms constitute the entire contract between you and SpotOn with respect to the subject matter hereof and supersede all other communications, written or oral, with regard to any aspect of the Services.
As used in these Terms, “includes,: “including” and other forms of the word “include” mean “includes but is not limited to,” “including without limitation,” or the like.
The failure of SpotOn to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by SpotOn. Your use of a SpotOn Website, SpotOn Mobile, and the Services is subject to the additional disclaimers and caveats that may appear in various Notes or in the policies of SpotOn or a Merchant that we or a Merchant may communicate to you from time to time.
SpotOn’s contact information is:
Merchant contact information may be found on the Merchant’s website and/or Facebook page, or by contacting SpotOn.
You agree that these Terms are binding on you. Your agreement is effective upon your first use any of the Services (whether you registered for them or a Merchant registers you with SpotOn) or when you click on the box in which you agree to these Terms, whichever occurs first.