Terms and Conditions
v1.3 – Last update 6/10/2020
General Terms and Conditions of spotit Inc.
shall mean any company owned or controlled by a Party, where control may be by management authority, equity interest or otherwise
shall mean a written agreement between Parties for the provision of Services by spotit, of which the General Terms and Conditions and a Statement of Work form an integral part.
shall mean any natural person or business entity with whom spotit and its employees deal in the course of its business, including representative(s), agent(s) and successor(s).
- Intellectual Property Rights:
shall mean any and all intellectual property rights as granted in any jurisdiction such as copyrights, patent rights, trade secret rights, trade name rights, trademark rights, inventions, software, source codes, programming, symbols, names, images, designs, research and technical documents and materials, other intellectual and industrial property rights, utility model rights, any rights of action in relation to Confidential Information, any rights of action in relation to trade names, trading styles and/or domain names.
- Party or Parties:
shall mean spotit and Customer, individually or collectively.
shall mean the full assortment of spotit services, including but not limited to security and networking services.
- Statement of Work:
shall mean a quote and project scope document drafted by spotit and approved in writing by Customer.
- Terms and Conditions:
shall mean these General Terms and Conditions of spotit.
shall mean spotit Inc. a Delaware corporation.
- These Terms and Conditions apply to all offers of spotit and shall govern the relationship between spotit and Customers, together with any Agreement and Statement of Work between spotit and Customer.
- No other terms and conditions shall be binding upon spotit unless accepted by it in writing. spotit expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind spotit.
- spotit reserves the right to amend these Terms and Conditions at any time. New or amended general terms and conditions shall be applicable upon thirty (30) days notice to Customer.
- In case of inconsistencies between the terms of an Agreement and those contained in these Terms and Conditions, those in the Agreement shall control. In the event a provision of the Statement of Work conflicts with the provisions of the General Terms and Conditions and/or the Agreement, the provisions of the Statement of Work shall prevail over the General Terms and Conditions.
- Involvement of third parties by spotit shall not affect the applicability of these General Terms and Conditions.
- Offers, Acceptance and Exclusions
- All offers of spotit are non-binding and may be revoked at any time, unless and until memorialized by an Agreement and/or Statement of Work. Any amendments made by spotit in writing shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of a spotit offer will be deemed a new offer by Customer, which spotit may accept or reject in its sole discretion. Offers will only be deemed accepted by spotit when memorialized by an Agreement and/or Statement of Work.
- All information and data contained in documentation, price lists or other material related to the Services, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included in the Agreement with spotit.
- All offers are based on the information and documentation provided by Customer, and spotit may rely on the accuracy thereof. Customer warrants the accuracy, completeness and reliability of the information and documentation, even if it originates with or is acquired from third parties.
- Prices and Taxes
- All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on spotit or Customer by any taxing authority (other than taxes imposed on spotit’s income), related to Customer’s order, unless Customer has provided spotit with an appropriate resale or exemption certificate for the delivery location, which is the location where the Services are performed. In case of changes in law such that a tax is levied that is or becomes irrecoverable, or in case spotit’s vendors increase their rates, with a consequent increase to the costs to spotit of delivering the Services, whereby and to such an extent spotit is entitled to increase its prices accordingly.
- Additionally, all prices are exclusive of, and Customer shall pay, all travel, transport, and shipment costs related to Customer’s order, unless agreed otherwise in writing by the Parties.
- The prices or rates quoted are in U.S. dollars, or in another currency if stated by spotit in writing. Customer shall bear any exchange rate risk, unless otherwise agreed in writing.
- Customer agrees to pay, without the right to set-off any amount, all invoiced amounts within fourteen (14) days of the invoice date, unless stated otherwise in the Agreement or on the invoice. However, all amounts will be due immediately, in case Customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Customer under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Customer of its properties and/or interest for the benefit of creditors.
- Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
- Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
- Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged error in the Services or on any other account whatsoever.
- If spotit believes that Customer’s financial position and/or payment performance justifies such action, spotit has the right to demand that Customer immediately furnish security in a form to be determined by spotit and/or make an advance payment. If Customer fails to furnish the desired security, spotit has the right without prejudice to its other rights, to immediately suspend the further execution of the Agreement, and that which Customer owes to spotit for whatever reason will become immediately due and payable.
- Customer shall be liable for amounts which spotit incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
- Lead Times, Implementation, Development and Risk of Loss
- Spotit shall deliver the Services in accordance with the Agreement. Delivery and/or development and/or implementation times and dates are merely estimates, as well as lead times or any other deadlines, and spotit cannot be held liable for any damages as a result of delay of the Services. Unless otherwise agreed in writing, failure to meet delivery times or delivery dates stated shall never be considered fatal, and if the time for delivery is exceeded, Customer shall not be entitled to cancel or terminate the Agreement, or to claim any damages.
- If any delivery period or lead time risks to be exceeded, spotit will inform the Customer as soon as reasonably possible and the Parties will enter into consultations in order to determine a new delivery period.
- Spotit will report to the Customer in accordance with the Statement of Work and/or the Agreement. If no reporting method is specified in writing in the Statement of Work and/or Agreement, reporting shall be done in the English language. If no reporting medium has been agreed upon by the Parties, spotit will determine the medium to be used, at its sole discretion.
- If, during the performance of the Agreement, spotit determines that it is necessary to change or supplement the Services, spotit will inform the Customer thereof, and the Parties will collaborate in good faith to amend the Statement of Work and/or the Agreement, if required. spotit will notify Customer if such amendments may affect the time at which the Services are to be completed. If the amendments of the Statement of Work and/or the Agreement have financial consequences or other material consequences to the Services, spotit will be entitled to charge the Customer for any additional costs and expenses involved. spotit will provide prior written notice to the Customer of any such additional costs and expenses.
- spotit may involve third parties to perform all or part of the Services and will use commercially reasonable efforts to conduct the Services with due care and skill.
- In case it is agreed upon that the Services will be conducted in phases, spotit is entitled to postpone the performance of the Services belonging to the next phase until Customer has approved the results of the preceding phase in writing.
- Customer hereby warrants that any information or material it furnishes to spotit in relation to the development or delivery of Services, is not subject to any third-party intellectual property rights.
- Unauthorized Use and Privacy
- Spotit at all times reserves the right to terminate with immediate effect and in its sole discretion the delivery of Services, if it deems Customer’s use to fail to comply with these Terms and Conditions, the Agreement, or a Statement of Work.
- Customer shall comply with prevailing laws and regulations related to the protection of privacy and processing of personal information. Customer shall indemnify and hold harmless spotit against any third-party claims related to any breach of such laws and regulations.
- Customer’s Cooperation
- Customer shall timely provide spotit with all details and information required by spotit for the development and/or delivery of Services. If stated in the Agreement or a Statement of Work, Customer shall also provide spotit with the required materials or data on information carriers, which shall comply with the specifications as set forth by spotit in writing.
- Customer understands that the development and/or the delivery of Services, including any agreed upon deliverables and hardware, shall be done by spotit based on details, information, specifications and requirements supplied by the Customer, including but not limited to those stated above, and spotit shall rely thereon.
- If Customer furnishes materials or data on information carriers to spotit in connection to the development and/or the delivery of Services, these shall meet specifications as spotit shall set forth in writing, and spotit shall be entitled to suspend performance of the Agreement, as well as charge additional costs in accordance with its customary rates, in the event that such materials or data are not made available in the time required or in the prescribed quality or manner.
- If Customer fails to make available to spotit data, documents, hardware, software, materials or personnel/agents that spotit deems useful, necessary or desirable for the purpose of performing the Services, or if Customer fails to make these available in good time or in accordance with the Agreement, or if Customer fails to meet its obligations under the Agreement or these Terms and Conditions in any other way, spotit shall be entitled to suspend the (further) execution of the Agreement in part or in full and shall also be entitled to charge and invoice Customer for any costs in accordance with its standard rates, without prejudice to spotit’ right to exercise any other rights (such as the right to claim damages or the right to terminate the Agreement or any Statement of Work). spotit shall in no event be liable for any damages caused to Customer or any other third party in this regard.
- Intellectual Property Ownership, Right of Use
- All intellectual property rights, e.g., patents, copyrights, trademarks, designs, models, know-how and all proprietary and/or commercial rights and trade secret rights, software, tools, documentations, etc., in relation to the Services, including modifications thereto, delivered and/or used by spotit, are owned by spotit or its licensor(s). No transfer or other grant of rights is given to Customer, unless explicitly stated in the Agreement or Statement of Work.
- All documents provided by spotit, such as (digital) reports, monitors, checklists, advice, templates, etc., are exclusively intended to be used by the Customer within the framework and for the purpose of the Agreement. The Customer is not permitted to disclose, publish and/or reproduce information obtained from spotit in any form whatsoever, including selling, processing, making available, distribution and integration in networks, whether or not after processing, unless such publication and/or publication and/or reproduction is permitted in writing by spotit and/or such publication and/or reproduction arises from the nature or the purpose of the Agreement.
- All documents supplied by spotit under the Agreement, such as documents, reports and optimized pages, shall remain the property of spotit. After expiry or termination of the Agreement, spotit may request the Customer to remove supplied documents, reports, optimized pages and advice from its website and/or to return these to spotit.
- spotit reserves the right to use the information and knowledge acquired for the performance of the Services for any and all purposes, provided that no confidential information of the Customer will be disclosed.
- Confidential Information
- “Confidential Information” means (i) the existence and terms of any agreement between the Parties and (ii) any non-public, confidential or proprietary information relating to a disclosing Party, whether or not technical in nature, including any that is designated by the disclosing Party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving Party; (ii) is rightfully obtained by the receiving Party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving Party at the time of disclosure by the disclosing Party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing Party; or (v) is developed independently and separately by either Party without use of the disclosing Party’s Confidential Information.
- Each Party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other Party and that it will observe the same due care with respect to such information as it would observe with respect to its own Confidential Information. The other Party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without disclosing Party’s prior written consent, which consent may be granted or withheld in such Party’s sole and absolute discretion.
- Each Party agrees that it will restrict the circle of employees or third parties it retains who have access to the other Party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in these Terms and Conditions.
- Immediately following the receipt of a written request to this effect by the disclosing Party the receiving Party will return any and all Confidential Information received from the disclosing Party or destroy such Confidential Information, if the disclosing Party so requests.
- Duration, Termination and Suspension of Performance
- Any Agreement will be for a period specified in the Agreement.
- If Parties agree in writing that the Agreement will be for a fixed period of time, the Customer cannot terminate the Agreement for convenience.
- If Customer believes that spotit has failed to perform under the Agreement, it must notify spotit in writing, and allow two (2) months for spotit to cure if it has failed to perform.
- As for Managed Services the Initial Term will automatically renew unless written notice is given six (6) months prior to the expiry of the Initial Term.
- Notwithstanding the above and without any obligation to return any service fee or prepaid expenses, spotit may terminate its relationship with Customer, or may terminate or suspend the Services at any time: (i) if Customer is in breach of, or if spotit reasonably expects that Customer will not fulfil its obligations of these Terms and Conditions, the Agreement, and/or a Statement of Work; (ii) if spotit reasonably suspects that Customer is using Services to breach the law or in a manner which infringes third party rights; (iii) if spotit reasonably suspects that Customer is using Services fraudulently, or that Services provided to Customer are being used by a third party fraudulently; (iv) for a force majeure event that continues for more than three (3) months upon notice; (v) if Customer fails to pay any amounts due to spotit; (vi) if required due to change in laws/regulation by a regulator or authority with a lawful mandate; (viii) the bankruptcy of the Customer has been applied for; (vii) an attachment is levied on assets of Customer; (viii) Customer is liquidated or discontinued; and/or (x) Customer is in violation of any applicable laws or regulations.
- Notwithstanding the termination or expiry of any Agreement or Statement of Work, the Customer shall have a continuing obligation to pay any fees or charges incurred prior to such termination or expiry.
- Changes and Additional Work
Customer accepts and agrees that any additional work or products requested by it outside of the original scope might increase delivery and lead times, and in the case that Customer wishes to make modifications to or have additional work done, Customer shall by separate agreement remunerate spotit for any work performed related to such modification, at such rates as spotit customarily charges, and without spotit being under any obligation to consent to perform such request for additional work or modifications.
- spotit shall in all cases carry out the Services on the basis of a commercially reasonable efforts obligation. In case an exact/specified result is required, such must be explicitly stated in the applicable Agreement or Statement of Work.
- EXCEPT TO THE EXTENT EXPLICITLY SET FORTH HEREIN, To the maximum extent permitted by applicable law, spotit, its licensors, third party suppliers, and affiliates hereby disclaim all warranties, conditions, claims or representations with respect to the services whether express, implied or statutory or otherwise, including, but not limited to implied warranties or conditions of merchantability, quality, non-infringement, compatibility or of fitness for a particular purpose. spotit further does not represent or warrant that the services OR PRODUCTS will always be timely, accurate, complete, OR error-free, nor does spotit warrant any quality of the services OR PRODUCTS. No advice or information, whether oral or written, obtained from spotit or elsewhere will create any warranty or condition not expressly stated in these terms and conditions.
- Liability and Limitation of Damages
- spotit disclaims any and all responsibility or liability in relation to the services anD PRODUCTS. Neither spotit nor its officers or affiliates may be held liable whether in contract, warranty, tort (including negligence), or any other form of liability for any claim, damage, or loss, (and Customer hereby waives any and all such claims or causes of action), arising from or relating to all such services AND/OR PRODUCTS.
- Customer is solely responsible and liable for all of its OWN- AND THIRD-PARTY ACTIVITIES related to the AGREEMENT AND/OR services, even if such activities occur without Customer’s permission. Neither spotit nor its officers or employees or affiliates may be held liable whether in contract, warranty, tort (including negligence), or any other form of liability for any claim, damage, or loss, (and Customer hereby waives any and all such claims or causes of action), arising or relating to all such acts and omissions.
- In no event shall spotit, its affiliates or its licensors be liable, however caused and whether arising under contract, warranty, tort (including negligence), product liability or any other form of liability, for any indirect, incidental, special, punitive or consequential damages, or any loss of income, business, sales, profits (whether actual or anticipated), loss of or corruption to data, or interruption of business.
- Notwithstanding anything else in this agreement to the contrary, spotit’ aggregate liability for all claims of any kind shall not exceed THE total paid by Customer TO SPOTIT DURING THE TWELVE (12) MONTHS PRECEDING THE VENT THAT GAVE RISE TO SUCH LIABILITY.
- The limitations on spotit’ liability above shall apply whether or not spotit, its employees, licensors or its affiliates have been advised of the possibility of such losses or damages arising.
- CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD SPOTIT, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE SERVICES BECAUSE OF BREACH OF THESE TERMS AND CONDITIONS, AN AGREEMENT OR A STATEMENT OF WORK, BY CUSTOMER, OR OUT OF ANY NEGLIGENT OR UNLAWFUL ACT OR OMISSION OF CUSTOMER.
- FURTHERMORE, THE CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD SPOTIT HARMLESS FOR ALL THIRD-PARTY CLAIMS THAT THE TEXTS, IMAGES OR OTHER DATA PROVIDED TO SPOTIT BY OR ON BEHALF OF THE CUSTOMER, INFRINGES UPON THIRD PARTY RIGHTS.
If any provision of these Terms and Conditions, the Agreement Statement of Work, or any other agreement between the Parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
- Force Majeure
spotit will not be liable for any delay in performing or failure to perform any of its obligations under these Terms and Conditions or the Agreement caused by events beyond its reasonable control. spotit will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. spotit is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
- Entire Agreement
The Agreement, Statement of Work and these Terms and Conditions contain the entire agreement between spotit and Customer regarding Customer’s purchase of Services, and supersedes and replaces any previous communications, representations or agreements, or Customer’s additional or inconsistent terms, whether oral or written.
- No Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or these Terms and Conditions or by law shall not constitute a waiver of that right, power or remedy. If spotit waives a breach of any provision of these Terms and Conditions, the Agreement or a Statement of Work, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
- No Third Party Beneficiaries
Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.
- No Partnership
Nothing contained in any agreement between the Parties shall be read or construed so as to constitute the relationship of principal and agent, joint venture or of partnership between the Parties. Neither of the Parties may pledge or purport to pledge the credit of the other Party or make or purport to make any representations, warranties, or undertakings for the other Party.
- Governing Law, Dispute Resolution
Unless stated otherwise in writing, any and all agreements between the Parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. All disputes and controversies arising out of or relating to these Terms and Conditions, or the relationship of the Parties shall be finally and bindingly resolved under the International Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. Additionally, in case of unpaid invoices, spotit may bring suit against Customer in the applicable state or federal courts of New York County, New York, and/or in the jurisdiction in which the Customer holds offices.
ANY CAUSE OF ACTION AGAINST SPOTIT, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.