1.1 These General Terms and Conditions (“Terms”) govern all legal relationships between SpotOpp and Customer to which SpotOpp has declared these Terms applicable, and specifically the license from SpotOpp, a private company located in Amstelveen with Chamber of Commerce number 75813807 (“SpotOpp”) to the customer (“Customer”) to use the SpotOpp software via the website or mobile application (“Services”).
1.2 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.
1.3 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 SpotOpp grants Customer a non-exclusive, non-transferrable and revocable license to use the Services. Customer may only use the Services for its own company and organization and is not allowed to assign, sublicense, transfer, pledge or otherwise dispose the Services to any third party. 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 SpotOpp with a link to create an account to use the Services of SpotOpp. Customer acknowledges and agrees that the link to create an account shall only be maintained by SpotOpp for a period of thirty (30) days from the date of delivery. 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. SpotOpp is entitled to close the account with immediate effect if SpotOpp suspects any abuse of Customers account or the use of the Services. Customer shall inform SpotOpp 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. SpotOpp is not responsible or liable for the outcome of the Customer Report based on the Business Data uploaded by Customer. SpotOpp does not provide a backup of the Business Data that is overwritten by Customer, apart from Business Data included in a Customer Report (e.g. snapshot of Business Data).
4.2 Upon written request of Customer the SpotOpp 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.
4.3 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 SpotOpp. Customer will not, directly or indirectly, copy, modify, reverse engineer or attempt to discover the source code in the Services, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by SpotOpp); use the Services for service bureau purposes or otherwise for the benefit of a third party. SpotOpp reserves the right to periodically update the Services.
5.2 SpotOpp shall have the right to collect and analyze data relating to the provision, use and performance of the Services and related technologies (including information concerning Customer Data and data derived therefrom), and will be free to use it to improve and enhance the Services and disclose such data in aggregate or other de-identified form in connection with its business.
Art. 6 Term and termination of the Service license
6.1 Service licenses may commence on any day of the month and are entered into for a duration of a month or a year, as per the preference of the Customer, and will be automatically renewed for the same duration. SpotOpp starts providing Services the day after receipt of payment for that Service license or on any specific later date requested by Customer.
6.2 Customer may terminate an individual Service license as per the last day of a calendar month, subject to one (1) month written notice to SpotOpp. Customer will pay in full for the Services up to and including the last day on which the Services are provided. SpotOpp will have the right to end the Service license in whole or in part with immediate effect without being bound to any compensation, if Customer decides to discontinue the Service.
6.3 SpotOpp may change the fee for renewals upon thirty (30) days prior notice to Customer (which may be sent by email), in which case Customer may terminate this Agreement as per the date the new fee becomes effective, by giving SpotOpp written notice of termination within seven (7) days of the fee revision notification.
6.4 If the Service license 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 Customer shall pay the Service license fees in full prior to provision of the service.
7.2 For a monthly Agreement Customer authorizes SpotOpp to charge Customer’s credit card or bank account for all fees payable during the Subscription Term. Customer also authorizes SpotOpp to use a third party to process payments, and consents to the disclosure of Customer’s payment information to such third party. Additional Services and an annual agreement can –if Customer prefers- be billed through an invoice, which must be paid in full by Customer within fourteen (14) days after the invoice date.
7.3 If payment is not received on the due date SpotOpp is entitled to suspend the Service until it has received full payment. Customer will not be entitled to any compensation for the inability to use the Services due to such suspension.
7.4 If payment is not received within thirty (30) days following the date of SpotOpp’s invoice, SpotOpp 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 SpotOpp or made available to the Customer in any way, shall remain exclusively with SpotOpp. Customer is prohibited to remove or alter 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 SpotOpp for all damages arising from or related to any violation of the intellectual property rights regarding the Services.
8.4 SpotOpp 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 SpotOpp 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 SpotOpp 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 SpotOpp undertakes to perform its obligations under this Agreement with the care that may be expected from a competent IT service provider. SpotOpp will not guarantee an uninterrupted use of the Services. SpotOpp 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 willful misconduct on SpotOpp’s side. In the event of an interruption, SpotOpp will exert itself to remedy this as soon as possible. SpotOpp will provide Technical Support to Customer on weekdays from 9:00 to 17.00 CET, excluding Dutch national holidays (“Support Hours”). Customer may initiate a helpdesk ticket by telephone or email. SpotOpp will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
10.3 SpotOpp 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 SpotOpp 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 SpotOpp harmless, including SpotOpp’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.