Terms & Conditions
By accessing the website (as defined below), you (“Customer”) agree to follow and be bound by the terms and conditions of this agreement with Zed Creative inc. (“Spotful”). If you do not wish to be bound by the terms and conditions of this agreement, you must not access the website. If you are entering into this agreement on behalf of a company or other legal entity (rather than in your personal capacity), you represent that you have the authority to bind such entity to the terms and conditions of this agreement and, in such event, “customer”, as used in this agreement, shall refer to such entity.
- “Affiliate” in relation to a Party means any entity which, either directly or indirectly “controls”, “is controlled by”, or “is under common control” with, the Party specified, and for the purposes of this definition, “control” of an entity means that the specified Party, directly or indirectly, has the power to direct or cause the direction of the management and policies of that entity through the ownership of voting securities, by contract or otherwise;
- “Aggregate Form” includes information constituting or descriptive of patterns, statistics, benchmarking analysis, or other descriptive or related data which do not disclose to third parties the identity of any particular Customer or the products or services that Customer offers;
- “Agreement” means this Software as a Service Agreement Terms and Conditions, including the fee schedule attached hereto (the “Services Order”), the latter of which is incorporated herein by reference;
- “Business Day” means Monday through Friday, excluding any days that are statutory holidays under the laws of the Province of Quebec or the laws of Canada applicable therein;
- “Confidential Information” means all know-how, trade or other secrets, and any other information or data, directly or indirectly, disclosed by one Party and/or its Affiliates (the “Disclosing Party”), to the other Party (the “Receiving Party”) under this Agreement, (whether verbal, written, or existing, stored, or communicated in any form or medium), including without limitation, technical information and data, equipment, documents, reports, training tools, analyses, recommendations, tests, financial data, correspondence, communications, pricing, products, design and function specifications, technologies, computer programs, software, systems, features, techniques, methodologies, processes, manuals, inventions (whether or not patentable), algorithms, configurations, business information, together with copies thereof, and all information and data derived therefrom, except to the extent such knowledge, information, or data: (i) is or becomes publicly available through no breach of this Agreement or wrongful act of the Receiving Party or their Personnel; (ii) is known to the Receiving Party without restriction prior to receiving such information from the Disclosing Party; (iii) is required to be disclosed as a matter of legal compulsion, provided, however, that the Receiving Party will provide prior written notice to Disclosing Party to allow it to take such actions to protect its interests; (iv) is lawfully disclosed to a Party by a third party without restriction; or (v) is independently developed by the Receiving Party without use of Confidential Information of the Disclosing Party;
- “Customer Data” means the information collected, received, transmitted, uploaded, stored, and/or processed by SPOTFUL from Customer in the course of providing the Services to Customer;
- “Customer Users” means Customer Personnel who are: (i) informed of the provisions of this Agreement prior to using the Services; and (ii) authorized by Customer to use the Services in accordance with the terms applicable to Customer Users (including with respect to the permitted number and identity of Customer Users) on any applicable fee schedule;
- “Effective Date” means the date of this Agreement;
- “Fees” means the fees payable by Customer for the Services and any other services provided by SPOTFUL to Customer in accordance with this Agreement;
- “Parties” means SPOTFUL and Customer, or any respective Affiliates, as the case may be, and “Party” means any one of them;
- “Personnel” includes directors, officers, employees, agents, consultants, representatives and other individuals employed, engaged or retained by Customer or SPOTFUL, as the case may be;
- “Platform” means the website HTTPS://CLICKTHESPOT.COM and related sites, or such other URL designated by SPOTFUL from time to time.
- “Services” means access to and use of the Platform and the software services available for use on that Platform; and
- “Term” has the meaning ascribed to it in section 5.
2.1 Subscription to and Provision of Services. Subject to this Agreement, Customer subscribes to the Services and SPOTFUL agrees to provide Customer with the Services.
2.2 Changes in Services. SPOTFUL reserves the right, in its sole discretion, to modify, discontinue, substitute, delete, or restrict any aspect or feature of the Services with notice to Customer.
2.3 Control of Services. SPOTFUL has complete control of the Services and will manage, direct, perform, coordinate and supervise the Services. Customer acknowledges and agrees that SPOTFUL may in its sole discretion subcontract the Services or any part thereof without the prior written consent of Customer.
2. Concealed or Unknown Conditions. In the performance of the Services, if SPOTFUL encounters unknown or unusual conditions or variations with Customer Data that differ materially from initial information provided to SPOTFUL, SPOTFUL shall notify Customer of such conditions. If such conditions cause an increase in SPOTFUL’s cost and effort to provide the Services, SPOTFUL may, on notice to customer, implement an equitable adjustment in the applicable Fees.
3. OWNERSHIP OF PROPERTY
3.1 Services. All Services and all trade-marks, patents, copyrights, trade secrets and other intellectual property and similar rights in or related thereto, are and will remain the exclusive property of SPOTFUL and/or its Affiliates (“SPOTFUL Property”). Customer shall have no right, title, ownership, intellectual property, and/or other interest of any kind in and to SPOTFUL Property, howsoever arising, including any intellectual property created or derived as a result of this Agreement.
3.2 Rights Granted. Upon Customer’s acceptance of this Agreement, Customer has the nonexclusive, non-assignable, royalty free, limited right to use the Services solely for Customer’s internal business operations and subject to the terms and conditions of this Agreement. Customer may allow Customer Users to use the Services for this purpose and Customer is responsible for Customer Users’ compliance with this Agreement. Customer acknowledges that SPOTFUL has no delivery obligation and will not ship copies of software products owned or distributed by SPOTFUL to which SPOTFUL grants Customer access as part of the Services. Customer agrees that it does not acquire under this Agreement any license to use software products owned or distributed by SPOTFUL specified in the fee schedules in excess of the scope and/or duration of the Services. Upon the end of this Agreement or the Services, Customer’s right to access or use the Services shall terminate.
3.3 Ownership of Customer Data. All Customer Data shall, as between Customer and SPOTFUL, remain the property of Customer. Customer hereby grants SPOTFUL and SPOTFUL Personnel during the Term of this Agreement, a personal, non-exclusive, non-transferable, royalty-free license to use Customer Data for the purpose of providing the Services to Customer. Notwithstanding the foregoing, during the Term and following the expiration or early termination of this Agreement, Customer grants SPOTFUL a perpetual, non-exclusive, non-transferable, royalty-free license: (i) to use Customer Data for internal research and/or benchmarking purposes; and (ii) to use, share, copy, transmit, distribute, and share Customer Data, in Aggregate Form only, with other persons or entities.
3.4 Reservation of Rights. All rights not expressly granted in writing within this Agreement shall be reserved to SPOTFUL or to Customer, as the case may be. In addition to any other rights afforded to SPOTFUL under this Agreement, SPOTFUL reserves the right to remove or disable access to any material that violates the restrictions in section 3.5 below. SPOTFUL shall have no liability to Customer in the event that SPOTFUL takes such action. Customer agrees to defend and indemnify SPOTFUL against any claim arising out of a violation of Customer’s obligations in section 3.5 below.
3.5 Restrictions. Customer agrees that except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer also agrees that it may not: (i) remove or modify any SPOTFUL markings or any notice of SPOTFUL’s proprietary rights; (ii) make the Services available in any manner to any third party for use in the third party’s business operations; (iii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to SPOTFUL; (iv) disclose results of any Services or program benchmark tests without SPOTFUL’s prior written consent; and (v) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services or related materials available, to any third party other than, as expressly permitted under this Agreement. Customer agrees not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may constitute an infringement of intellectual property or other proprietary rights, or otherwise violate any applicable laws, ordinances or regulations.
3.6 Service Tools. If SPOTFUL provides Customer with access to or use of any tools, scripts, software, and utilities, including, for greater certainty, any mobile applications in connection with the Services (collectively, the “Service Tools”), Customer’s right to use Service Tools is governed by the license terms specified by SPOTFUL; however, if SPOTFUL does not specify license terms for such Service Tools, Customer shall have a non-transferable, non-exclusive, limited right to use Service Tools solely to facilitate Customer’s use of the Services. Any Service Tools are provided by SPOTFUL on an “as is” basis and SPOTFUL does not provide technical support or offer any warranties with respect to any Service Tools and, to the extent permitted by applicable law, expressly disclaims any and all such warranties, whether arising under statute or otherwise, including, without limitation, all warranties of merchantability or fitness for a particular purpose. Customer’s right to use Service Tools will terminate upon the earlier of SPOTFUL’s notice to Customer, the end of the Term, or the date that the license to use Service Tools ends under the applicable license terms specified.
4. FEES & PAYMENT
4.1 Services Fees. The Fees payable for the Services shall be as set forth in the Services Order, and Customer agrees to pay SPOTFUL for Services in accordance with the terms therein subject to this Agreement. Customer shall pay SPOTFUL additional fees, calculated on a time and materials basis, at SPOTFUL’s then current rate, for any additional services performed by SPOTFUL at the request of Customer which are not otherwise listed in the Services Order.
4.2 Invoicing and Payment. Customer shall pay all invoices for Fees in full, without deduction or set-off, at the times specified in the Services Order or otherwise by SPOTFUL in writing, and if not specified, all invoices are due upon receipt.
4.3 Taxes. Fees are exclusive of all applicable taxes. If SPOTFUL is required to pay any federal, provincial or local retail sales, use, goods and services, excise, value-added, withholding, or similar taxes or like duties based on the Services provided under this Agreement, then the taxes shall be billed to and paid by Customer.
4.4 Late Payments. Any amounts that remain unpaid after thirty (30) days after they initially become due and payable shall be subject to a late payment charge at the rate of two and one-half percent (2 ½%) per month on the unpaid balance. SPOTFUL reserves the right in its sole discretion and without liability to suspend Services to Customer in accordance with section 5.4 below until all outstanding invoices under this Agreement, and all past due amounts under any other agreement of any nature between Customer and SPOTFUL, are paid.
4.5 Invoicing Disputes. Customer shall promptly review all invoices issued by SPOTFUL hereunder and shall notify SPOTFUL in writing of any invoice discrepancies within thirty (30) days of invoice date. If Customer fails to notify SPOTFUL within that time period, Customer will have waived any right to dispute such amounts, either directly or indirectly, or as set-off or defined in any action or effort to collect amounts due to SPOTFUL.
4.6 Rate Adjustment. SPOTFUL reserves the right, in its sole discretion, to increase the Fees at any time with thirty (30) days prior written notice to Customer. If Customer continues to access or use the Services after expiration of the thirty (30) day notice period, Customer is deemed to have agreed to the fee increase.
5. TERM & TERMINATION
5.1 Term. This Agreement shall be effective as of the Effective Date, and shall continue on a month-to-month basis thereafter (the “Term”) unless otherwise terminated as set forth in this Agreement.
5.2 Termination of Agreement. This Agreement may be terminated by either Party, at any time and without cause, by giving fifteen (15) days prior written notice to the other Party.
5.3 Agreement Breach. If either Party breaches a material term of this Agreement and fails to correct the breach within fifteen (15) days of written notification of the breach, then the breaching party is in default and the non-breaching party may terminate the Services under which the breach occurred. The non-breaching party may agree in its sole discretion to extend the fifteen (15) day period for so long as the breaching party continues reasonable efforts to cure the breach. Customer agrees that if it is in default under this Agreement, Customer may not use the Services.
5.4 Suspension of Services. SPOTFUL may immediately suspend Customer’s password, account, and access to or use of the Services (i) if Customer fails to pay SPOTFUL as required under this Agreement and does not cure within the first seven (7) days of the fifteen (15) day cure period, or (ii) if Customer violates any provision within sections 2 or 3 of this Agreement. SPOTFUL may terminate the Services if any of the foregoing is not cured within fifteen (15) days after SPOTFUL’s initial notice thereof. Any suspension of the Services by SPOTFUL under this section 5.4 shall not excuse Customer from its obligation to make payment(s) under this Agreement.
5.5 Insolvency/Bankruptcy. Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement, immediately upon written notice to the other Party, if the other Party is adjudged bankrupt, makes, attempts to make or gives notice of intention to make a proposal, arrangement or any general assignment for the benefit of creditors or seeks or threatens to seek to obtain the benefit of any insolvency, liquidation or arrangement laws, or if a receiver, receiver-manager, trustee, liquidator or similar person is appointed in respect of the whole or any part of its property, whether real or personal.
5.6 Obligations on Termination. Upon termination of this Agreement: (i) Customer shall immediately pay to SPOTFUL any and all amounts due and owing under this Agreement, as applicable, as of the effective date of the termination notice; (ii) Receiving Party shall promptly (at the Disclosing Party’s sole option) return to the Disclosing Party or destroy any and all the Disclosing Party’s Confidential Information in accordance with section 6.3 below; and (iii) SPOTFUL has no obligation to retain Customer Data, which may be irretrievably deleted after sixty (60) days.
6. CONFIDENTIAL INFORMATION
6.1 Non-Disclosure / Non-Use. Each Party acknowledges and agrees that all Confidential Information disclosed is: (i) confidential and proprietary to the Disclosing Party, and that as between the Parties, all ownership, license, intellectual property, and other rights to Confidential Information disclosed hereunder shall remain with the Disclosing Party, or (ii) personal information. During the Term of this Agreement and thereafter, the Receiving Party shall: (i) keep and maintain all Confidential Information of the Disclosing Party in the strictest confidence and in compliance with any applicable laws; (ii) disclose Confidential Information received hereunder only to such Personnel who have a direct need to know such Confidential Information and who are bound by written confidentiality obligations at least as restrictive as those contained herein; (iii) not use the Disclosing Party’s Confidential Information for the Receiving Party’s own benefit or that of any third party or for any purpose other than lawfully exercising its rights and/or performing its obligations under this Agreement; (iv) exercise the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information which is at least equivalent to that which the Receiving Party uses to protect its own Confidential Information; and (v) take all reasonable steps to protect the Disclosing Party’s Confidential Information from any unauthorized use, duplication, and/or disclosure.
6.2 Injunctive Relief. The Receiving Party acknowledges and agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause irreparable harm and might result in significant damages to the Disclosing Party or its Affiliates, which harm and/or damages might be difficult to ascertain, and in the event of such breach or threatened breach by the Receiving Party, the Disclosing Party, in addition to other remedies which may be available in law, equity or otherwise, has the right to equitable relief, including injunctive relief, against the Receiving Party, without the necessity of proving actual damages or showing irreparable harm.
6.3 Return of Confidential Information. Subject to any license granted to SPOTFUL to make and use copies of Customer Data under section 3.3 hereof, upon expiration or earlier termination of this Agreement, or upon the Disclosing Party’s earlier request, Receiving Party shall promptly return to the Disclosing Party (or, at the Disclosing Party’s written direction, destroy) all the Disclosing Party’s Confidential Information and all copies, partial copies, revisions or modifications thereof, in Receiving Party’s possession, in whatever medium. At the request of the Disclosing Party, an officer of Receiving Party shall certify in writing its compliance with the foregoing obligations.
6.4 Personal Information. Customer is responsible for compliance with all obligations imposed by the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”) and any other applicable privacy legislation as may be enacted from time to time and Customer shall indemnify, defend and hold SPOTFUL and its directors, officers, employees, franchisees, licensees, contractors and agents (the “SPOTFUL Indemnitees”) harmless from and against any third party claims against any of the SPOTFUL Indemnitees resulting from or arising in any way out of or in connection with the collection, disclosure and use of personal information (as defined in PIPEDA and any other applicable privacy legislation) related to the Customer or its business.
7. CUSTOMER RESPONSIBILITIES
In order to enable SPOTFUL to perform its obligations under this Agreement, Customer agrees as follows:
(i) Customer shall fully cooperate with SPOTFUL by making available Customer information, materials, resources and Personnel as reasonably required by SPOTFUL to perform the Services;
(ii) Customer shall keep user ID and password issued by SPOTFUL confidential and shall not disclose such user ID or password to any third party, except that Customer may disclose its user ID and/or password to its Personnel authorized to access and/or use the Services;
(iii) Customer will perform and complete any other obligations as specified within this Agreement or any acceptable use policy that SPOTFUL notifies Customer of or such other URL designated by SPOTFUL; and
(iv) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
8. DISCLAIMER & LIMITATION OF LIABILITY
8.1 Disclaimer. Customer expressly acknowledges and agrees that the Services and any other services provided by SPOTFUL are provided on an “as is” basis, and to the maximum extent permitted by applicable law, SPOTFUL disclaims any and all warranties of any kind, express or implied, including warranties of fitness for a particular purpose, merchantability, and non-infringement. SPOTFUL further disclaims and makes no representations or warranties that the Services will be accurate, complete, suitable for the purposes intended, uninterrupted or without error.
8.2 Limitation of Liability. SPOTFUL’s total cumulative and aggregate liability for damages arising from breaches of this Agreement is an award for direct, provable damages not to exceed the amount of fees paid to SPOTFUL under this Agreement during the six (6) month period immediately preceding the date of the event that is the subject matter of the claim. In no event shall SPOTFUL be liable for any indirect, incidental, punitive, exemplary or consequential damages, including but not limited to, loss of use, lost profits (past and future), lost revenue, loss of data, failure to realize expected savings, or lost opportunity arising in connection with this Agreement even if advised of the possibility thereof. Customer acknowledges and agrees that SPOTFUL is not liable for the disclosure of personal information as a result of Customer’s use of the Services.
8.3 Indemnification. Each Party shall indemnify, defend and hold harmless the other Party and its respective Personnel, their heirs, executors, personal and legal representatives, administrators, successors and assigns, from and against any and all claims for bodily injury (including death) and/or for damage to or destruction of property caused by the negligence, intentional misconduct, or other tortious act or omission of the other Party or its respective Personnel.
9.1 Disclosure of Terms and Conditions. Customer shall not disclose any of the terms of this Agreement to any third party without the prior written consent of SPOTFUL, except where required by applicable law.
9.2 Force Majeure. Any delay or failure in the performance of any duties or obligations of either Party (except for payment obligations) will not be considered a breach of this Agreement if such delay or failure is caused by an act of God, or other event, omission or condition not reasonably within the Party’s control, including without limitation, any mechanical, electronic, technical, or communications failure, shortage of material, war, riot, terrorist act, embargo, or government act (including any law or regulation).
9.3 Independent Contractors. The relationship between the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to create a joint venture, partnership, master-servant, or agency relationship between the Parties. Neither Party has any right, power or authority to create any obligation or responsibility, express or implied, on behalf of the other.
9.4 Waiver. No act or failure to act or delay in enforcement of any right by either Party constitutes a waiver of any right hereunder, and any such act, failure to act or delay does not constitute approval or acquiescence in any breach or continuing breach under this Agreement except as expressly agreed to in writing and no waiver of any breach of any provision of this Agreement constitutes a waiver of any preceding or succeeding breach of such provision or of any other provision of this Agreement.
9.5 Amendments. SPOTFUL hereby reserves the right to modify, supplement, or replace the terms of this Agreement upon SPOTFUL’s notice to Customer (which may be through posting on such URL designated by SPOTFUL). If Customer does not want to agree to changes to this Agreement, Customer may terminate this Agreement as provided for by section 5 hereof.
9.6 Rights and Remedies Not Exclusive. Rights and remedies available to SPOTFUL under this Agreement are in addition to, not in substitution for or a limitation upon, any duties, obligations, rights, or remedies otherwise imposed, created or available at law, in equity or otherwise.
9.7 Severability. Should any part, term or provision of this Agreement be held by a court of competent jurisdiction to be void, illegal, or otherwise unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision or portion thereof, is hereby declared to be separate, severable and distinct.
9.8 Further Assurances. The Parties will perform all acts and execute, acknowledge and deliver or will cause to be done, executed, acknowledged and delivered, all such further documents, assurances or things, and secure all necessary consents and approvals, as may be reasonably required for the more complete and perfect observance and performance by the Parties of their respective obligations under this Agreement.
9.9 Non-Solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, neither Party will, either by itself, by or through its Personnel or any other person, directly or indirectly, in any manner, hire, solicit or retain, or attempt to hire, solicit or retain or influence the possible hiring, soliciting or retention by a third party, of any Personnel employed by the other Party or its Affiliates.
9.10 Notices. Unless otherwise provided in this Agreement, any notice required to be given in writing shall be given by personal delivery, by registered mail (postage prepaid), by courier (courier prepaid), by fax, or other means of confirmed electronic communication to: SPOTFUL at an address SPOTFUL designates and gives in accordance with this provision; and CUSTOMER at an address Customer designates and gives in accordance with this provision.
9.11 Section Headings. The division of this Agreement into sections and paragraph headings is intended for convenience of reference only, and shall not affect the meaning or the interpretation of this Agreement. The terms: “this Agreement”, “hereof”, “herein”, “hereunder” and similar expressions refer to this Agreement and not to any particular section or subsection hereof.
9.12 Other Defined Terms. Other terms used in this Agreement are defined in the context in which they are used and shall have the meanings there indicated. Words, phrases and abbreviations used in this Agreement which have a recognized technical or trade meaning shall have such recognized meaning.
9.13 Assignment. Customer shall not transfer, convey or assign this Agreement and/or any rights, duties or obligations hereunder, without the prior written consent of SPOTFUL, and any such attempted assignment shall be null and void. The rights and obligations under this Agreement shall be binding upon, and enure to the benefit of the Parties and their respective successors and permitted assigns.
9.14 Survival. The following sections shall survive the expiration or termination of this Agreement in addition to any other provision which by law, by its nature or by reasonable implication should survive: Sections: 3.1, 3.3, 3.4, 4, 5.6, 6, 8, and 9.
9.15 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Nova Scotia, without regard to its conflict of laws rules, and the laws of Canada, as applicable. With respect to any action or proceeding arising out of this Agreement, the Parties agree and each of them hereby submit to the jurisdiction of the Supreme Court of Nova Scotia. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (Canada) and the International Sale of Goods Act (Nova Scotia).
9.16 Dispute Resolution. Subject to section 9.15 above, any dispute regarding the interpretation, compliance with or breach of this Agreement will be resolved as follows: (i) the Parties agree to negotiate in good faith commencing upon written notice from one Party to the other containing a summary of the dispute (the “Dispute Notice”), and all such negotiations shall be confidential and inadmissible in any subsequent proceeding without the written consent of the Parties; (ii) if the dispute is not resolved by negotiation as set out above within twenty (20) Business Days following the receipt of the Dispute Notice, the Parties may refer the dispute to a mediator acceptable to both Parties for non-binding mediation, and the costs of such mediation shall be shared equally by the Parties; (iii) if the dispute is not settled pursuant to the foregoing within forty (40) Business Days after receipt of the Dispute Notice, either Party may seek any legal and equitable remedies available to it under applicable laws.
9.17 Entire Agreement; Conflict. This Agreement and any other terms and/or conditions expressly incorporated by reference contain and constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any and all previous understandings, proposals, commitments or agreements, oral or written, relating to the subject matter hereof. In the event of any conflict or inconsistency between this Agreement and a fee schedule, this Agreement will prevail, unless the fee schedule expressly stipulates that such term or provision shall be overridden. If an ambiguity or question of intent arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favouring or disfavouring either Party by virtue of authorship of any of the provisions of this Agreement.