These General Terms and Conditions (“Terms”) govern the license from SpotOpp, a sole trader located in Amstelveen with Chamber of Commerce number 71758801 (“Supplier”) to the customer (“Customer”) to use the SpotOpp software via the website or mobile application (“Services”).
These Terms supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties in respect of the Services and shall apply in preference to and supersede any and all terms and conditions of Customer.
If any provision of these Terms is or shall become invalid or unenforceable, in whole or in part, the other provisions of these Terms shall remain in full force and effect. The invalid or unenforceable provisions shall, where appropriate, be replaced in accordance with the meaning and purpose of these Terms.
The Customer shall be fully responsible for complying with any and all laws, regulations and guidelines governing the Services and for the payment of any levies, taxes and/or duties thereon.
Art. 2 Grant of License
2.1 Supplier grants Customer a non-exclusive, non-transferrable and revocable license to use the Services to upload Customers business data (“Business Data) and to receive the outcome in a clear visual report that can be used to support strategic business decisions of Customer (“Customer Report”).
2.2 Customer may only use the Services for its own company and organisation and is not allowed to assign, sublicense, transfer, pledge or otherwise dispose the Services to any third party.
2.3 The license may vary depending on various access permissions appointed by Customer.
Art. 3 Account and password
3.1 Customer receives an e-mail from Supplier with a link to create an account to use the Services of Supplier.
3.2 Customer acknowledges and agrees that the link to create an account shall only be maintained by Supplier for a period of thirty (30) days from the date of delivery.
3.4 Customer is solely responsible for the security and proper use of the account and password and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and not disclosed to any third party. Supplier is entitled to close the account with immediate effect is Supplier suspects any abuse of Customers account or the use of the Services.
3.5 Customer shall inform Supplier immediately if Customers becomes aware of any unauthorized use of the account and/or password.
Art. 4 Business Data
4.1 Customer is solely responsible and liable for the quality, accuracy and completeness of the Business Data that is uploaded in the Services. Supplier is not responsible or liable for the outcome of the Customer Report based on the Business Data uploaded by Customer.
4.2 Supplier does not provide a backup of the Business Data that is overwritten by Customer, apart from the Business Data included in a Customer Report (e.g. snapshot of the Business Data).
4.3 Upon written request of Customer the Supplier will delete as soon as reasonable possible all Business Data from the Services. In that event the Customer is no longer able to use the Services and is not entitled to a refund of the fee.
4.4 Customer shall be fully responsible for compliance with laws and regulations regarding data retention.
Art. 5 Services
5.1 The Services (together with any new releases, versions or updates of such Services, and/or any replacement Services) shall at all times remain the absolute property of Supplier. Customer shall not copy, modify, reverse engineer or attempt to discover the source code in the Services. Supplier reserves the right to periodically update the Services.
Art. 6 Term and termination
6.1 Customer is entitled to use the Services free of charge for a trial period of two (2) weeks.
6.2 The agreement between Supplier and Customer shall be entered into for a period of one (1) year and shall commence on the date included in the confirmation e-mail that Customer receives after payment of the fee to Supplier.
6.3 The term of the agreement shall be tacitly extended, each time for a period of one (1) year, unless the Customer or Supplier terminates the agreement in writing with due observance of a notice period of one (1) month prior to the end of the current term.
6.4 Both parties will have the right to dissolve the agreement with immediate effect with or without judicial intervention, without being bound to any compensation but without prejudice to the right to claim full compensation in the event that:
(i) the other party files a petition for bankruptcy or is declared bankrupt;
(ii) the other party applies for a suspension of payment or has been granted a suspension of payment; or
(iii) the other party is dissolved or ceases its business.
6.5 Supplier will have the right to end the agreement in whole or in part with immediate effect without being bound to any compensation, if Supplier decides to discontinue the Service.
6.6 If the agreement is terminated by Customer the Customer Report will be available for a period of one (1) month after termination of the agreement. After this period the Customer Report will be permanently deleted and cannot be retrieved.
Art. 7 Payment fee
7.1 In the event that the agreement is tacitly extended the fees shall be paid within thirty (30) days following the date of Suppliers invoice, by means of transfer into the bank account mentioned on the invoice. Payments shall be made by Customer in full.
7.2 If payment is not received within (30) days following the date of Suppliers invoice, Customer receives a notice of default with a grace period of another (14) days. If Customer fails to meet the payment obligation Supplier is allowed to terminate the agreement with immediate effect and without any obligation to pay for damages.
Art. 8 Intellectual property rights
8.1 The copyright and all other intellectual and industrial property rights in the Services, including software, databases, designs, training, analyses, datasheets, formula’s, algorithms, methods, documentation, reports, plans and other materials, including preparatory materials in this regard, developed or supplied, directly or indirectly, by Supplier or made available to the Customer in any way, shall remain exclusively with Supplier.
8.2 Customer shall be prohibited from removing or altering any proprietary notice concerning copyrights, trademarks, trade names or other intellectual and industrial property rights from the Services.
8.3 Customer shall be liable towards Supplier for all damages arising from or related to any violation of the intellectual property rights regarding the Services.
8.4 Supplier makes and gives no express or implied condition, warranty or representation that the Services (or part thereof) licensed hereunder, including the use thereof, will not infringe any intellectual property rights or copyrights of any third party, whether the Services (or part thereof) are taken alone or in conjunction or in combination with any other goods or when used in conjunction with any data or software program.
Art. 9 Warranties
9.1 Supplier warrants to Customer that it is authorized to grant the license on the conditions contained in these Terms.
9.2 Both parties shall comply with all laws and regulations applicable to the performance of its obligations under the agreement.
9.3 Except as expressly stated in these Terms, no representation, warranty or condition, express or implied, as to the fitness for purpose is given by Supplier in respect of the Services and all those representations, warranties and conditions are excluded save to the extent that such is prohibited by law.
Art. 10 Limitation of liability and indemnification
10.1 Except as expressly stated in these Terms, the Services are provided on an “as is” basis and all warranties and conditions, whether express or implied by relevant law and regulations are hereby excluded to the fullest permitted by law.
10.2 Supplier will not guarantee an uninterrupted use of the Services. Supplier will not be liable for damage, suffered by interruptions of the Services regardless of the cause of such interruption, unless there is gross negligence or wilful misconduct on Suppliers side. In the event of an interruption, Supplier will exert itself to remedy this as soon as possible.
10.3 Supplier shall under no circumstances whatsoever be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profits, loss of data or documents, work stoppage, production failure, business interruption, impairment of other goods or otherwise and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.
10.4 Notwithstanding anything herein contained to the contrary, the total liability of Supplier for any and all claims for direct damages arising out of or in connection with the use of the Services shall under no circumstances exceed the sum of Customer’s payments for the Services.
10.5 The Customer shall indemnify and hold the Supplier harmless, including Supplier’s employees, subcontractors and agents, in full against any and all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation loss of profit, economic loss, future revenue, reputation and goodwill) made against or incurred or suffered by any of them and arising out of or in connection with the use of the Services by Customers or resulting directly or indirectly from breach by Customer of these Terms, any other conditions, contract, any laws, regulations and guidelines applicable to the Services and the use thereof.
Art. 11 Applicable law and disputes
11.1 All rights and obligations arising out of or in connection with these Terms shall be governed, construed, interpreted and enforced according to the laws of The Netherlands.
11.2 The parties agree that any suits, actions or proceedings that may be instituted by any party shall be initiated exclusively before the competent court in The Netherlands.