(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|
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
- Tablet Check-ins
- 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.
11.2. 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.
Welcome to our Customer Connections Program.We look forward to being in contact with you, and to seeing you often. Here are the terms that we need you to agree to in order to use this site and our customer connections program. If you do not agree to these terms please do not enter any information in this site and do not use this site.
Access to Services
You may access the services provided through this site “Services” only if you have agreed to these SpotOn User Terms of Service (“User Terms”) and the guidelines and rules that are applicable to our Customer Connections program and that are posted on this site from time to time. Use of the Services (whether you registered for them or a Merchants signs you up with SpotOn) constitutes acceptance of these User Terms. This site and the Customer Connections program are intended for use only by people who are at least 13 years of age. By accepting these User Terms you are representing that you are at least 13 years old. If you are between the ages of 13 and 18 and your parent or guardian has any questions about your use of this site or the Customer Connections program, please ask him or her to contact us at Support@SpotOn.com.
The Services are operated by the merchants listed on this site and other merchants that areparticipating in the Customer Connections program (each, a “Merchant”) through the services ofits technical provider, SpotOn Transact, LLC (“SpotOn”). These User Terms are a contract between you, each Merchant and SpotOn, and can be enforced by both the Merchants and SpotOn. The words“we” and “our” refer to each Merchant and SpotOn. Any Merchant or SpotOn may refuse tooffer the Services to anyone at any time, and may withdraw access to the Services from anyone at any time, in the sole discretion of either the Merchant or SpotOn.
Using this site, you may sign up to receive special coupons, messages and other information(“Notes”) that may include special promotions or offers (“Offers”), which the Merchant may send through social media platforms that may include Facebook, Twitter1, and other social media services that may be included in the Services from time to time (“Social Media Tools”). You will 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 Rewards program that allows customers to accrue points or credits, you may access your current point total and the terms of Merchant’s Rewards program through the Services.
There is 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 Rewards points you should register with each Merchant that interests you and SpotOn, which you may do on this site (www.SpotOn.com), by downloading SpotOn’s mobile application (the “SpotOn App”) and registering on it, or by visiting the Merchant’s location or its Facebook page, or other Social Media Tools through which the Services may be available. In addition, one or more Merchants may send SpotOn information about you, to register you for the Services. When you register, you may be required to “Like” the Merchant. 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), depending on the rules of SpotOn.
In addition to the Registration Information, you may be asked to enter optional personal information on the registration page, such as your first and/or last names, gender or other information (“Optional Information”). You do not need to provide Optional Information, but if you do you may be rewarded by a Merchant, as described on the page that requests the Optional Information.
After you register, you may be offered the opportunity to receive Notes and Offers via Facebook, Twitter or other Social Media Tools, and to earn additional benefits for authorizing SpotOn to automatically check you into Social Media Tools such as Twitter and Facebook. 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 on this site your Registration Information and any Optional Information you provide will be associated by the Merchant and SpotOn with your email address.
Content of this Site and Notes
You understand that this site and Notes 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 materials from a Merchant’s Facebook page, Notes, or the websites of a Merchant or SpotOn 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 on this site or 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 have come to this site through a link from a third party or you may link from this site to a third party’s site that is not controlled by a Merchant or SpotOn (all of the foregoing, “Third Party Sites”). YOU AGREE THAT NEITHER ANY MERCHANT NOR SPOTON IS LIABLE FOR THE PRODUCTS AND/OR SERVICES OFFERED THROUGH SOCIAL MEDIA TOOLS OR ANY OTHER THIRD-PARTY SITES. MERCHANT AND SPOTON ARE NOT RESPONSIBLE FOR AND DO NOT 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 THE MERCHANTS AND SPOTON FROM ANY DAMAGES THAT YOU INCUR, AND YOU AGREE NOT TO ASSERT ANY CLAIMS AGAINST ANY MERCHANT OR SPOTON 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
Disclaimer of Warranties
ALL PRODUCTS AND SERVICES, ALL NOTES AND ALL GOODS OR SERVICES OFFERED BY MERCHANTS (INCLUDING BUT NOT LIMITED TO THOSE PROVIDED WITH RESPECT TO THE 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. THE MERCHANTS AND SPOTON HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRIGEMENT.
Without limiting the foregoing, neither any Merchant nor SpotOn makes any representation or warranty that this site, the Social Media Tools, the Notes or Offers, any Rewards program of the Merchant or any third party (or any description thereof), any software used in the delivery of the Services (including without limitation the software developed by SpotOn) or the Technology Services are or will be accurate, complete, reliable, current or error-free, or that this site, any Social Media Tools or any such software 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 this site, the SpotOn website, any website of a Merchant, or otherwise obtain content from or through the use of the Services or from a Merchant or SpotOn (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 Rewards programs, and the technology used to formulate and deliver them, may contain errors, bugs, problems or other limitations, that you use such information and content at your own risk and should not rely upon it without verification.
Disclaimer of Liability
NEITHER ANY MERCHANT NOR SPOTON, NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, SHALL HAVE ANY LIABILITY WHATSOEVER FOR YOUR USE OF A MERCHANT’S CUSTOMER CONNECTIONS PROGRAM, THE SERVICES, THE SOCIAL MEDIA TOOLS, THE NOTES, OR THE REWARDS PROGRAMS OF A MERCHANT OR ANY OTHER PARTY.
Without limiting the foregoing,
(i) NEITHER ANY MERCHANT NOR SPOTON SHALL HAVE ANY LIABILITY, ON ANY LEGAL BASIS WHATSOEVER, TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO 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) You agree that SpotOn is not responsible for the Merchant Responsibilities described above under the heading “The Roles of Merchant and SpotOn,” and a Merchant is not responsible for SpotOn’s Responsibilities described in the same section. You agree that you will not make any allegation or take any action against either a Merchant or SpotOn based on the actual or alleged fulfillment or non-fulfillment by the other of its responsibilities. To the extent permitted under applicable law you hereby release SpotOn from any and all claims or liability related to or arising from Merchant’s Responsibilities, and you hereby release Merchant from any and all claims or liability related to or arising from SpotOn’s Responsibilities. 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 Merchants and SpotOn 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
Your Information. You understand that SpotOn and Merchants will collect information from you as part of Customer Connections program and that they may use such information for marketing purposes. One or more Merchants may provide Registration Information to SpotOn for you, which will allow you to participate in the Customer Connections program.
Your obligations. You agree not to violate or attempt to violate the security of this site or any site or system of a Merchant or SpotOn. 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 your account information may be accessed through your Facebook or other Social Media sign-in, and that neither a Merchant nor SpotOn has any control over Facebook or any other Social Media Tools, or their sign-in processes. Merchants and SpotOn 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
Each Merchant and SpotOn reserves the right to terminate your right to use the Services for any reason whatsoever, including but not limited to your violation of any of these User Terms or if your account has been inactive for more than one year. Upon termination of your right to use the Services, any Offers or Rewards programs may be terminated in accordance with the terms of such Offers or Rewards program. The disclaimers, limitations of liabilities, releases and waivers set forth in these User Terms shall survive any such termination.
Resolution of Disputes
If you have a complaint or a dispute with a Merchant or SpotOn, 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, on the one hand, or the Merchant or SpotOn, on the other hand (depending on who is involved in the dispute), may initiate such arbitration by notifying the other party and the alternative dispute resolution provider (“ADR Provider”) that you, the Merchant 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 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 your individual claim or the individual claim of the Merchant 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 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 User Terms will be admissible in arbitration, judicial and administrative proceedings based upon or related to these User 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, or against a Merchant with respect to the Services, 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 User Terms. Should you file a claim contrary to the provisions set forth above, the Merchant or SpotOn (depending on which of them your claim was against) may recover attorneys’ fees and costs up to $1,000, provided that they have 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 this site and by using the Services, you, each Merchant 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 this site and the Services. Neither any Merchant nor SpotOn makes any representation that the Services are appropriate or legal in, or will be available for use in, other locations. If you use the Services from outside the United States of America, you are entirely responsible for compliance with applicable local laws, including but not limited to 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 Rewards programs of Merchants are intended solely for use by individuals located in the United States.
Any Merchant and/or SpotOn may assign its rights and responsibilities hereunder without notice to you. If any of these User 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 User Terms will continue in effect. Each Merchant and SpotOn reserves the right to amend or modify these User Terms or impose new conditions at any time. Such amendments and modifications will be effective immediately upon giving you notice by any means including, but not limited to, posting on this site. These User Terms constitute the entire contract between you and, SpotOn and the Merchants with respect to the subject matter hereof and supersede all other communications, written or oral, with regard to any aspect of the Services.
The failure of a Merchant or SpotOn to enforce any right or provision in these User Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by the party to be bound by such waiver. Your use of this site and the Services, however, is subject to the additional disclaimers and caveats that may appear in various Notes or in the policies of a Merchant or SpotOn we may communicate to you from time to time.
SpotOn, Transact, LLC
300 California St, Fourth Floor
San Francisco, CA 94104
Merchant contact information may be found on this website, on the Merchant’s website and/or Facebook page, or by contacting SpotOn.
You agree that these User Terms are binding on you. Your agreement is effective when you 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 User Terms, whichever occurs first.
- What information SpotOn collects from you;
- How SpotOn and Clients use and may disclose information obtained through any of the SpotOn Access Portals or the Services;
- What choices you have about how SpotOn and Clients treat your information;
- How SpotOn and Clients protect your privacy;
- What SpotOn and Clients do about children visiting the SpotOn Application; and
- How comments you may make are handled; and
- How you can contact SpotOn and Clients.
INFORMATION SPOTON AND CLIENTS COLLECT FROM YOU
Active Information Collection
From Clients and Prospective Clients. SpotOn actively collects information from Clients and prospective Clients who visit our Website or who become a Client by accepting the Merchant Terms, both (i) by permitting them to communicate directly with SpotOn through the Website, via email, or otherwise and (ii) when they sign up (on the Website or otherwise) to become a SpotOn Client. Some of the information that a Client submits that is required for such Client to register to become a Client could identify the Client and its officers, such as business name and address, credit card or bank information (for billing purposes), type of business, telephone number, email address, zip code and names of responsible officers or employees. We refer to such information as “Identifiable Business Information.” In addition, Client may be asked to answer additional questions that are optional (“Optional Information”).
From Consumers and Other End Users. SpotOn actively collects information from our visitors both by asking specific questions, by allowing you to upload information through other tools (such as Facebook Connect), and by permitting you to communicate directly with us through the Website, via email or otherwise. If you sign up to use the Services, via any SpotOn Access Portal, or if a Client signs you up for its Customer Connections Program, some of the information that you submit (directly or via an upload), or that is submitted for you by a Client, is required to register you to use the Services. Some of such information could identify you personally, such as your first and/or last name, telephone number, email address, zip code and birthdate. Such information is called “Personally Identifiable Information.” In addition, you may answer additional questions on the registration form that are optional, or a Client may submit such information for you (“Optional Information”). Such optional questions may include demographic information and/or additional Personally Identifiable Information, such as your name (if not previously provided), gender, financial information or other information.
You will be informed which information on the registration form is optional. If you do not submit the required registration information or a Client does not submit it for you, you will not be able to use the Services. If you do not answer optional questions, you still can use the Services, but you will not be able to earn rewards that may be awarded to people who answer the optional questions and we may not be able to tailor the Services as closely to your interests.
SpotOn and Client may offer you, directly or through Facebook, Twitter, other social media sites, or other third parties, the opportunity to participate in activities related to the Services, such as responding to surveys, entering a contest or sweepstakes, playing games or providing information to our customer service representatives. If you choose to participate in such activities (when offered) SpotOn or Clients may collect additional Personally Identifiable Information or other information from you.
When you visit the Website, the SpotOn App, use the Services, or participate in activities that are part of the Services, SpotOn and Clients may collect information related to such activities. SpotOn does not intentionally collect Personally Identifiable Information about you other than (i) such information that you provide us as described above, either directly through a SpotOn Access Portal or through permissions you authorize with social media sites which are used in conjunction with the Services (e.g., Facebook, Twitter and other sites), or (ii) information submitted to SpotOn for you by one or more Clients. SpotOn may, however, keep track of your responses to Offers, visits to and purchases from Clients and associate that information with your registration information, including your Personally Identifiable Information (see “Program Information Collection,” below).
Passive Information Collection
As you navigate through the Website or the SpotOn App or use the Services, SpotOn may collect certain information passively (that is, information may be gathered without you actively providing the information) using various technologies and means, such as navigational data collection and geolocation data. Like most website operators, SpotOn, its advertisers and third party service providers may track IP addresses, use both session and persistent cookies, and assign Internet tags. SpotOn also automatically gathers information about the areas you visit on the Website and the SpotOn App and collects operational information about the technology you use, such as your browser, type of computer or mobile device, operating systems, Internet service provider and the domain names of the websites from which you linked to the Website or the SpotOn App and to which you go after viewing such sites. If you activate geolocation applications, SpotOn may have access to and store your geolocation information related to the Services.
In addition, when you visit the Website or the SpotOn App, SpotOn may store some information on your computer or mobile device. This information will be in the form of a cookie or similar file and will help us in many ways. For example, cookies allow us to tailor the Website, the SpotOn App and the Services or other offerings to you in a way that better matches your interests and preferences. Most Internet browsers enable you to erase cookies from your computer hard drive, block all cookies, or receive a warning before a cookie is stored. Please refer to your browser instructions or help screen to learn more about these functions. SpotOn and its Clients do not collect Personally Identifiable Information automatically, but we may tie information collected automatically to your previously submitted Personally Identifiable Information.
The Website and the SpotOn App may contain electronic images known as web beacons—also referred to as single-pixel gifs—that permit SpotOn and/or its Clients to count users who have visited the Website or the SpotOn App and for other related statistics—(e.g., recording the popularity of certain Website or SpotOn App content and verifying system and server integrity). Web beacons are not used by SpotOn or Clients to access your Personally Identifiable Information; they are used solely to compile aggregated statistics concerning the use of the Website and the SpotOn App. Web beacons collect only a limited set of information including a cookie number, the time and date of a page view, and a description of the page on which the web beacon resides.
The reason SpotOn collects passive information is that it helps us understand which areas of the Website and the SpotOn App are most popular, which areas may require improvement and what technologies are being used by our visitors. This information helps SpotOn to update and improve the Website and the SpotOn App and our Services. SpotOn also uses this information for security purposes, to detect and to block security breaches and to provide you with a safer online environment.
Program Information Collection
After you register with SpotOn (through a SpotOn Access Portal) or are registered by a Client, you may receive Offers from one or more Clients; may have such Offers sent to you automatically via email, mobile communications (e.g., SMS text messaging, mobile notifications), Facebook, Twitter or other social media; may be able to post those Offers on your own Facebook page to share with your friends; and/or may be able to use other tools offered by SpotOn. SpotOn may automatically keep track of all of those choices and associate them with the registration information you provided or that was provided for you by a Client, including your Personally Identifiable Information, plus any Optional Information you (or a Client on your behalf) may have provided. SpotOn may also keep track of, and associate with your Personally Identifiable Information and Optional Information, activities you engage in offline that relate to the Services, such as which Offers you respond to (for example, by purchasing the goods or services that are the subject of the Offer) and loyalty rewards you earn from offline purchases. All of the information described in this paragraph is called “Client Participation Data.” SpotOn may use Client Participation Data for a number of purposes, including keeping track of rewards points (if offered by the Client), categorizing you with respect to your response to Offers and rewards programs of each Client, and marketing goods or services of Clients, SpotOn or third parties to you, as described in Section 2. SpotOn will offer you the option not to receive such marketing messages.
If SpotOn permits certain Clients with which (or by which) you are registered to do so, such Clients may also keep track of Client Participation Data and use it as described above, including marketing goods or services of Clients, SpotOn or third parties to you, as described in Section 2. Any Client given permission to use Client Participation Data will agree to offer you an option not to receive such marketing messages.
In addition to the foregoing, SpotOn will have access to information regarding your registration with and participation in the Offers and loyalty programs offered by all Clients for which, or by which, you are registered (“Program Participation Data”). Program Participation Data may be used by SpotOn to keep track of loyalty points that you have accrued with each Client SpotOn works with, which may allow you to check all of those programs you are enrolled in on one page of the Website. SpotOn may also use Program Participation Data for purposes such as categorizing you with respect to various merchants or types of merchants, Offers and loyalty programs and for sending you marketing messages for goods or services of SpotOn or other merchants or service providers. Program Participation Data may enable SpotOn to market third party goods and services to you, as described in Section 2. SpotOn will offer you the option not to receive such marketing messages. To do so, you should go to the Website and elect not to receive marketing messages.
Third Party Information Collection
Currently, the SpotOn Technology is hosted on the Website and the SpotOn App, and also on Facebook’s platform. In the future, the SpotOn Technology could be hosted on other social media or other locations. Depending on the choices you make when you register, Offers may be sent to you through Facebook, Twitter or other social media, and additional social media applications may in the future be included with our services (e.g., geolocation information). Information related to you, your use of the SpotOn Technology and the goods and services provided by SpotOn and Clients may be available to Facebook, Twitter and other third parties such as the operators of various social media or other sites.
HOW SPOTON AND CLIENTS USE AND MAY DISCLOSE INFORMATION OBTAINED THROUGH THE SERVICES
Internal Use of Personally Identifiable Information.
You provide Personally Identifiable Information when you register for the Services through any SpotOn Access Portal (for example, on the registration page or through an upload you authorize), and a Client may send SpotOn such information for you. SpotOn may combine any such information with Client Participation Data and/or Program Participation Data, as described in Section 1 under the heading “Program Information Collection.”
SpotOn may provide Personally Identifiable Information and Optional Information you have provided to SpotOn (directly or through an upload), or that has been submitted to SpotOn by a Client on your behalf, to certain Clients with which (or by which) you are registered, and that have been permitted such information access by SpotOn. When and if permitted by SpotOn, such Clients may use that information to send you messages, independently of the Services, about their goods and services and about the goods and services of other merchants. If you do not wish to receive such messages you may opt out of receiving them by choosing the opt-out option provided in such messages. All Clients granted such permission by SpotOn will agree not to provide your Personally Identifiable Information or Optional Information to third parties except as described in the next section.
Limited Disclosure of Personally Identifiable Information to Third Parties.
SpotOn will not disclose Identifiable Business Information or Personally Identifiable Information provided by end users or Clients or that SpotOn collects in conjunction with the Services, to third parties (i.e., to parties other than Clients with which (or by which) an end user is registered) without consent, except as described below. Clients have also agreed to limit disclosure of end users’ Personally Identifiable Information to the following:
(C) if required by law or in response to any judicial order, inquiry of any administrative agency; in response to a subpoena or an inquiry from law enforcement or governmental authorities; or
(D) if SpotOn or a Client believes the release of such information is necessary to protect the rights of SpotOn or the Client (including enforcing the Merchant Terms or User Terms) or to address or prevent illegal or harmful activity.
Neither any Client nor SpotOn will have any liability for disclosure of your information resulting from actions by Facebook or other social media companies or platforms, or from errors in transmission or the unauthorized intervention of third parties.
Information that Does Not Identify Your Business or You Personally.
SpotOn may provide aggregate statistics or information about its customers, sales, trends, loyalty program usage, online traffic patterns, related information or other statistical de-identified or aggregated information to third parties, but these statistics or information will not include any Identifiable Business Information or Personally Identifiable Information (“Non-Identifying Information”). Non-Identifying Information collected about end users, Clients and prospective Clients is also used by SpotOn and/or third parties we contract with to troubleshoot, operate and improve the Website, the SpotOn App and other SpotOn Technology, to assist us with marketing or ad placement, to cooperate with law enforcement activities or legal orders, to protect our rights (including enforcing the Merchant Terms and User Terms) or to address or prevent illegal or harmful activity. In addition, SpotOn may use all information submitted by end users, Clients or prospective Clients or that SpotOn collects about any of the foregoing that is Non-Identifying Information in any way SpotOn deems useful, including publishing statistics such as those described above to promote SpotOn or its Services.
SpotOn may use information that end users provide or that SpotOn collects about end users from their use of the Services or related to the SpotOn Technology, including their response to Offers from Clients, their participation in the rewards programs of Clients (if any) and/or other information, to send end users marketing messages related to goods or services SpotOn believes will be of interest to them. Such goods or services may be offered by SpotOn, Clients, or other third parties. (See description in Section 1, under “Program Information Collection.”). Such marketing messages may be sent via email, mobile communications, Facebook, Twitter, other social media or otherwise, depending on how the end user has elected to receive Notes from various Clients. End users can opt out of receiving such marketing messages through the “Settings” tab in the SpotOn App and by choosing the opt-out option provided in email messages.
CHOICES END USERS HAVE ABOUT HOW SPOTON AND CLIENTS USE THEIR INFORMATION
SpotOn strives to provide Clients, and SpotOn and Clients strive to provide end users, with choices regarding the information Clients and end users provide. SpotOn has created mechanisms to provide Clients and end users with the following control over their information:
(i) You may view and modify the Identifiable Business Information or Personally Identifiable Information and/or Optional Information you submitted through the a SpotOn Access Portal, or that was submitted to SpotOn on your behalf by a Client, as follows: If you are a Client, you may modify the information you submitted when you signed up to become a Client as described in the Merchant Terms. If you are a consumer or other end user, you may modify the information you submitted when you registered, or when a Client registered you, by going to the Website. If an end user wants to stop receiving all messages through the Services, the end user will need to delete the SpotOn App from his or her mobile device, visit each social media company through which the user chose to have the Services provided (e.g., Facebook, Twitter, etc.) and delete SpotOn from each such social media company, and choose the opt-out option provided in messages sent via email. To stop receiving Notes from a particular Client (or from SpotOn itself), end users should opt out of such messages through the “Settings” tab in the SpotOn App and choose the opt-out option provided in emailed messages sent by such Client (or, in the case of SpotOn, by SpotOn). SpotOn keeps track of end users’ transactions with Clients, as well as communications about Clients that end users makes through the SpotOn Technology (e.g., posting Offers to a Facebook page, sending Offers to friends). End users cannot delete information associated with such transactions and communications.
(ii) Marketing messages from SpotOn and, when and if permitted, Clients or third parties, will contain an option for the end user to choose not to receive such messages in the future.
HOW YOUR INFORMATION IS PROTECTED
SpotOn works hard to protect the personal information of end users, using both technical and procedural methods to maintain the integrity and security of our databases. These include the use of SSL encryption, firewalls, administrative access level controls and employee training. End users should keep in mind, however, that no Internet transmission or data storage is ever completely secure or error-free. While SpotOn believes it uses commercially reasonable security procedures, it cannot guarantee the security of any information submitted by end users, Clients or prospective Clients, information gathered about end users or information stored by SpotOn.
The safety and security of information of Clients and end users also depends on the user. Clients and end users should never share their SpotOn passwords, or any other password (including their Facebook passwords), with anyone else, and should notify SpotOn, Facebook or other relevant provider promptly if you believe your password security has been breached. Remember to log off of the Website and/or App before you leave your computer or mobile device.
The Website, SpotOn App or other sites through which end users may use the Services may contain links to other sites and/or resources over which SpotOn and Clients have no control. SpotOn and Clients make no representations or warranties with respect to the content, ownership, or legality of any such linked sites. Links to third party sites are provided solely as a convenience to end users and should not be construed as an affiliation with or endorsement by SpotOn or Clients of such third parties or any content, items, or services on third-party sites. Access and use of such other sites, including the content, items, or services on those sites, solely at the risk of the user, and neither SpotOn nor any Client has any responsibility or liability resulting from users’ access or use of such other sites. These linked sites may collect personal information from users when entering their site. Any such collecting of information is not subject to the control of SpotOn or any Client. To ensure protection of privacy, users should always review the privacy policies of the sites they visit when linking from the Website, the SpotOn App or any other site associated with the Services.
End users acknowledge and agree that neither SpotOn nor any Client has any responsibility or liability for the availability of such external sites or resources, or for the content, advertising, products, or other materials available through such sites or resources.
WHAT SPOTON AND CLIENTS DO ABOUT CHILDREN VISITING THE SPOTON APPLICATION
The Website, the SpotOn App and the Services are not intended for children under the age of 13 and are not designed to attract anyone under the age of 13. Clients who use SpotOn’s Services may sell goods or services for children that are intended to be purchased by adults. SpotOn will not knowingly collect Personally Identifiable Information from site visitors under the age of 13, and Clients have agreed that they will not knowingly collect such information. SpotOn and Clients encourage parents to talk to their children, including children between the ages of 12 and 18, about their use of the Internet and the information they disclose online. If a child of any age has provided SpotOn with Personally Identifiable Information, and a parent or guardian of that child would like this information deleted from SpotOn’s records, such parent or guardian may contact SpotOn by going to the Website and clicking on the appropriate tab. SpotOn will then use reasonable efforts to delete the child"s information from our databases.
HOW PUBLIC COMMENTS ARE HANDLED
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San Francisco, CA 94104
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