Spotto Terms of Service

2.1

You must register an account on our website (at Spotto Portal) ("Website") to access the Service, by providing accurate, current billing and contact information.

2.2

You must not access the Service or register an account unless you are at least 18 years of age (or the legal adult age in your jurisdiction) and have the legal capacity to enter into this Agreement.

2.3

You are responsible for all activity of your Users under your account, including payment obligations and for safeguarding your credentials.

3.1

During your Subscription Term, subject to your compliance with this Agreement, Spotto grants you a non-exclusive, non-transferable, non-sublicensable license to use the Service and any reports or insights that you receive as an output from the Service ("Outputs") for your internal business operations ("Authorised Purpose").

3.2

Your subscription to the Service will commence on the date, and continue for the term, specified in your Order Form or as otherwise agreed by you when you register for an account ("Subscription Term"). At the end of your initial Subscription Term (or any renewal term) your subscription will automatically renew for the same period, unless you notify us in writing prior to the end of the relevant term that you do not wish to renew your subscription for a further term. We will notify you prior to renewal date. Any renewal will be on the same terms as this Agreement, subject to any Subscription Fee review undertaken pursuant to clause 4.3.

3.3

All rights not expressly granted in this Agreement are reserved by Spotto.

3.4 Free Trial

3.4.1

We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period that we have agreed to with you (in your Order Form or otherwise).

3.4.2

At the end of a trial period, we will disable your access to the Service (and will remove your Customer Data), unless you become a registered user of the Service on a paid basis. The Website, Service and Outputs are supplied on an "as is – where is" basis during any trial period, and as such any warranties given by us in these Terms of Service do not apply.

4.1

In exchange for your use of Service, you will pay us the fees that apply to the plan you have registered for (including any set-up or onboarding fees) in the currency and manner displayed on our pricing schedule at sign-up or otherwise agreed with you in an Order Form, as applicable ("Subscription Fees").

4.2

The Subscription Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If Spotto is required to pay or collect any goods and services or value-added tax on any fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you.

4.3

Subscription Fees and any other amounts payable by you under this Agreement will be securely processed by Stripe or Microsoft and are subject to the Stripe or Microsoft (as applicable) terms of service available on their website. Stripe or Microsoft (as applicable) will be solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. Stripe or Microsoft (as applicable) maintains administrative, technical, and physical procedures to protect information stored on its servers, as outlined within their own privacy policies.

4.4

Spotto may change subscription plans or pricing from time to time. We will provide at least thirty (30) days' written notice of any fee increases for existing customers before their next billing date. Further, if you upgrade or downgrade your subscription plan during your Subscription Term, your Subscription Fees may be adjusted on a pro-rata basis.

4.5

Your continued access to the Service is strictly subject to your payment of the Subscription Fees (and any other amount payable by you under this Agreement) to us as required in this clause 4. If you default on payment of any amount payable, we may:

4.5.1

suspend the provision of the Service while the amount remains outstanding;

4.5.2

charge interest on the outstanding amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and

4.5.3

charge you all costs incurred by us in connection with the recovery of the outstanding amounts.

5.1

Spotto will endeavour to make the Service available 24 × 7 × 365, excluding scheduled or emergency maintenance, or downtime beyond our control.

5.2

We may update, upgrade, suspend or modify the Service (or any part of it) from time to time, including to add or remove functionality, without liability to you. Continued use after changes constitutes acceptance of them.

5.3 Support:

We will provide customer support to you as described in the support policy applicable to your plan or your Order Form. Any additional support requested by you will, if we agree to provide such support, be subject to additional charges.

6.1

In your access to and use of our Service and any Outputs, you must:

6.1.1

only use the Service and Outputs for the Authorised Purpose;

6.1.2

keep all of your access information, including log-on credentials, secret and secure; and

6.1.3

comply with all applicable laws and regulations, user documentation, and instructions, guidelines, procedures and policies contained on our Website or otherwise notified by us from time to time.

6.2

You will not (and, if applicable, will ensure your Users do not):

6.2.1

access or use our Service or Outputs other than for the relevant Authorised Purpose. You must inform us immediately of any known or suspected unauthorized access or use;

6.2.2

use the Website or Service in a manner that may: (i) damage, disable, overburden or impair either the Website, Service or the networks connected to the Website; or (ii) degrade or disrupt performance of the Website or Service for other users. If your usage exceeds reasonable limits, we may (in our sole discretion), impose rate limits or suspend your access to our Service;

6.2.3

use the Website, Service or any Output for any inappropriate, fraudulent or discriminatory purposes, or in a way that may breach any law or cause harm to any person or our reputation;

6.2.4

make any representations, promises or guarantees to any person regarding the accuracy, completeness or reliability of the Service or any Outputs;

6.2.5

sell, resell, license or sublicense any Outputs (or any part of them);

6.2.6

modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Website, Service or Outputs (or any part of them) or otherwise attempt to: (i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Website or Service (including any mechanism used to restrict or control the functionality of our Service); or (ii) derive the source code or the underlying ideas, algorithms, structure or organization form of our Service (or any part of tit); or

6.2.7

distribute through (or upload into) the Website or Service any data, image or file that: (i) infringes on the copyright, patent, trade secret, trademark or other proprietary rights of any person; (ii) violates any law, statute, ordinance or regulation; (iii) is defamatory, inappropriate or obscene; or (iv) contains viruses, trojan horses, worms, time bombs, or similar harmful programming routines.

6.3

You are responsible for ensuring that each of your Users (if applicable) are aware of, and comply with, the terms of this Agreement. You will be responsible (and liable) for any failure of your Users to comply with the terms of this Agreement.

6.4

Some elements of our Service are provided by third party artificial intelligence service providers ("AI Service Providers"). By using our Service, you agree:

6.4.1

to comply with all AI Service Provider policies; and

6.4.2

that the Outputs (but not any Customer Data inputted into the Service or otherwise incorporated into the Outputs) may be used to train or improve the artificial intelligence engines and large language models used by us and the AI Service Providers.

7.1

All data or information (including Personal Information) that you input into the Service or otherwise make available to us in connection with the Service or this Agreement ("Customer Data") will be (and will remain) owned by you (or, as applicable, your Users). However, you grant to us a license to access, use and disclose your Customer Data for the purposes of providing our Service, exercising our rights and performing our obligations under this Agreement and any of our agreements with our third party service providers, improving the Website and Service and communicating with you about our Service, your Agreement and any other matters that may be of interest. We may also disclose your Customer Data in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency.

7.2

You grant to us a non-exclusive royalty free world-wide and irrevocable license permitting us to copy, anonymize, aggregate, process and display Customer Data to derive anonymous data (including statistical and usage data), and data about the Service and your use of it, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other users (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data.

7.3

You warrant and represent to us that:

7.3.1

you have the right to grant the rights in clauses 7.1 and 7.2 in respect of all Customer Data, and to input the Customer Data into the Service as anticipated by the Agreement and our Service; and

7.3.2

use of the Customer Data by us, you or any of your Users as anticipated by this Agreement and Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person).

7.4

You are solely responsible for maintaining a copy of all Customer Data and your Outputs. We do not make any guarantees around loss or corruption of any Customer Data or Outputs.

7.5

We reserve the right to remove or replace, any content or data (including any Customer Data) from the Website or Service that may expose us to potential liability.

8.1

We collect and process Personal Information:

8.1.1

relating to you and, if applicable, your Users when you (or your Users) access or use the Website and/or our Service; and

8.1.2

Personal Information that you input into the Website or Service.

8.2

Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users') Personal Information, as specified in (and anticipated by) this Agreement.

8.3

You must comply with applicable data protection laws in connection with your collection, use and disclosure of the Personal Information of any person in connection with this Agreement and the Service. You will not (and will ensure your Users do not) use the Website or the Service in a way that violates (or may be considered inconsistent with) the privacy of any person.

8.4

You represent and warrant that you have all necessary rights and consents from all individuals to ensure that we are able to lawfully process all Customer Data in the manner specified in (and anticipated by) this Agreement and our Service in accordance with applicable data protection laws (including for US, EU, NZ jurisdictions).

8.5

In the event you act as a data controller of Customer Data processed through the Service, you are responsible for that processing; Spotto acts solely as a data processor or service provider, as applicable.

10.1

The Service is not designed or authorised for use in any application or support of: (a) critical infrastructure where failure may lead to loss of life or property; (b) medical life-support systems; (c) military or defense systems; (d) nuclear facilities; (e) applications subject to export or trade-sanctions restrictions. You hereby acknowledge and agree that you will not use the Service for such purposes.

11.1

Subject only to your rights in your Customer Data (specified in clause 7), Spotto or its licensors retain all right, title and interest in and to the Website, Service, Outputs (including all underlying source code, software, systems, models, functionality, databases, documentation, algorithms, trade secrets and the underlying infrastructure (together the "Spotto Materials"). The Spotto Materials are protected by copyright and other interests and are proprietary and confidential to us and, as applicable, our third party service providers.

11.3

If you provide Feedback, you grant Spotto a perpetual, irrevocable, royalty-free, worldwide license to use and incorporate the Feedback in the Service or other offerings without compensation to you. All rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us.

12.1

You may cancel your subscription at any time via your account settings within the Spotto Portal (which will redirect to the payment gateway) or by contacting support. Cancellation under this clause 12.1 will take effect at the end of your current billing term.

12.2 Termination for Cause:

Either party may terminate this Agreement if the other party materially breaches any term of this Agreement and fails to cure the breach within 10 days of written notice (or immediately in the case of a breach that cannot be remedied, including a breach of sections 3 or any privacy, intellectual property or data protection provisions).

12.3 Termination by Spotto:

Spotto may, by notice in writing to you, terminate your Agreement immediately if:

12.3.1

we believe your use imposes risk or legal liability;

12.3.2

you (or any of your Users) breach or attempt to breach any of our security protocols or systems on the Website or Service;

12.3.3

you (or any of your Users) use or attempt to use our Service or any Outputs for any purpose other than the Authorised Purpose;

12.3.4

there is an appointment of any type of insolvency administrator in respect of your affairs;

12.3.5

required by law; or

12.3.6

we consider it necessary or desirable to do so to protect our interests or reputation or the interests or reputation of any other customer, licensor or supplier.

12.4

We may also suspend your access to the Service at any time:

12.4.1

for such time as is necessary to carry out maintenance determined by us to be necessary or desirable; or

12.4.2

to reduce or prevent interference with the Website or Service.

12.5

Upon the expiry or termination of this Agreement:

12.5.1

your license ends and you must immediately cease (and, if applicable, ensure your Users cease) to access the Service;

12.5.2

you may continue to use Outputs supplied to you prior to termination, provided such ongoing use is undertaken strictly in accordance with (and subject to) the terms of this Agreement;

12.5.3

you acknowledge and agree no fees paid in advance for the Service and which relate to the period following termination will be refunded to you, unless this Agreement is terminated by you under clause 11.1 or as otherwise specified in clause 11.1;

12.5.4

your Customer Data, other than Anonymous Data or Aggregate Data, shall be deleted from our systems within a reasonable period, unless we are required to retain such data on our systems for legal compliance reasons (you should export your Customer Data before end of your term);

12.5.5

any termination will be without prejudice to any prior breaches by us or by you (or, if applicable, any of your Users) of this Agreement; and

12.5.6

any provision of this Agreement intended to survive termination shall survive.

13.1

You represent and warrant that you have full power and authority to enter into this Agreement, that your use of the Service will comply with this Agreement and applicable law and that all information supplied by you (and, if applicable, your Users) via the Website and/or our Service (including all Customer Data) is accurate, complete and up to date. You acknowledge that our Service (and the accuracy and reliability of any Outputs from it) depend on the entry by you (and, if applicable, your Users) of accurate, complete and up to date Customer Data.

13.2

We will use our commercially reasonable efforts to ensure that the Service is accessible by you in accordance with this Agreement.

13.3

In the event of any breach of clause 13.2 or any other term, condition or warranty that we are unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Subscription Fees paid by you for such non-conforming Service.

13.4

The obligation of Spotto in clause 13.2 is in lieu of all other warranties relating to the Website, Service and Outputs. To the maximum extent permitted under applicable law, all other warranties, conditions and representations, whether express, implied, statutory or otherwise, and whether arising under this Agreement or otherwise, are excluded (including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose).

13.5

Despite any other term of this Agreement, you acknowledge and agree that:

13.5.1

you are solely responsible for evaluating the suitability of the Service and Outputs for your Authorised Purpose. We do not represent that the Service or Outputs will satisfy your requirements or any legislative or regulatory requirements that you may choose to use the Outputs in connection with;

13.5.2

as our Service uses artificial intelligence systems, given the nature of artificial intelligence and machine learning systems, we do not provide (and expressly exclude) any warranties in respect of the accuracy, reliability or completeness of any Outputs; and

13.5.3

although we use commercially available anti-virus software in the provision of our Service, we do not guarantee that the Website or Service will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines.

13.6

If you are acquiring Service for the purposes of a business, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 (or equivalent legislation in your jurisdiction if you are not based in New Zealand) do not apply.

13.7

The Website or Service may contain links to other websites or resources over which we do not have control ("External Platforms"). These links do not constitute an endorsement by us of those External Platforms. You acknowledge that we are providing these links to you as a convenience, and you further agree that we are not responsible for the content of any External Platforms. Your use of the External Platforms is entirely at your own risk and is subject to the terms and conditions of use and privacy policies located on the External Platforms.

14.1

To the maximum extent permitted by law, in no event will Spotto or its Third Party Suppliers or any of their affiliates, officers, directors, employees or licensors be liable to you for any: (a) indirect, incidental, special, punitive or consequential damages, or (b) loss of profits, revenue, data (including Customer Data) or goodwill, even if advised of the possibility of such damages.

14.2

To the maximum extent permitted by law, Spotto's aggregate liability for any claim arising under or related to this Agreement will not exceed the Subscription Fees you paid to Spotto in the twelve (12) months preceding the event giving rise to the claim (or NZ $1,000 if lesser, or as required by local law).

14.3

Some jurisdictions (including certain US states) may not allow exclusion or limitation of certain damages. In such jurisdictions, Spotto's liability will be limited to the maximum extent permitted by law.

14.4

Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any other person:

14.4.1

in respect of the accuracy, reliability, availability or completeness of any Outputs or your, your Users or any other person's use or reliance on any Outputs; or

14.4.2

[for the use or disclosure of your Customer Data by any AI Service Provider, which shall be governed by the relevant AI Service Provider policies].

15.1

You agree to indemnify, defend and hold harmless Spotto, its affiliates, officers, directors, employees and agents from and against any and all losses, liabilities, damages, costs or expenses (including reasonable legal fees) arising from: (a) your use of the Service; (b) your breach of this Agreement; (c) your violation of applicable law or third-party rights; or (d) any claim relating to Customer Data or your account.

16.1 Governing Law:

This Agreement and any non-contractual obligations arising out of or relating to it shall be governed by and construed in accordance with the laws of New Zealand.

16.2 Dispute Resolution and Venue:

A party may, at any time while there is a genuine dispute relating in any way to this Agreement (Dispute), give written notice (Dispute Notice) to the other party specifying the subject matter of the Dispute and requiring that an authorized senior representative of each party meet, within 14 days after delivery of the Dispute Notice, to attempt to resolve the Dispute. The representatives will make all reasonable attempts to resolve the dispute at the Dispute resolution meeting.

16.3

If the representatives fail to resolve the Dispute under clause 16.2 within 14 days of the Dispute Notice, or if either party fails or refuses to attend the Dispute resolution meeting, the parties will immediately be deemed to have submitted the Dispute to mediation in New Zealand. In the event of any submission to mediation:

16.3.1

the mediator will not be acting as an expert or as an arbitrator;

16.3.2

the mediator will determine the procedure and timetable for the mediation; and

16.3.3

the parties will share equally the cost of the mediation.

16.4

Neither party may issue legal proceedings (except for urgent injunctive relief) or submit the Dispute to arbitration unless it first complies with clauses 16.2 and 16.3.

17.1

Spotto may amend these Terms of Service and its Privacy Policy at any time by posting the updated version on our Website and, where required by law, providing notice (e.g., via email).

17.2

Unless otherwise stated, amendments will become effective at the beginning of the next billing cycle following notice. Your continued use of the Service after amendments take effect constitutes acceptance of the amended terms.

18.1 Notices:

Any notices to be provided by us to you under this Agreement shall be made by either posting such notice on the website, or, if applicable, by emailing you at the email address you supplied to us at the time of registration.

18.2 Force majeure:

Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement (other than any payment obligation) arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavors to continue to perform its obligations and mitigate the effects of the event.

18.3 Entire Agreement:

This Agreement (together with any Order Form, exhibit or schedule) constitutes the entire agreement between you and Spotto regarding the Service and supersedes all prior or contemporaneous communications.

18.4 Severability:

If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement will continue in full force and effect.

18.5 Assignment:

You may not assign or transfer your rights under this Agreement without Spotto's prior written consent. Spotto may assign or transfer its rights freely.

18.6 No Waiver:

A waiver by Spotto of any breach or default will not constitute a waiver of future breaches or defaults.

18.5 Relationship:

The parties are independent contractors; nothing in this Agreement creates a partnership, joint venture or agency relationship.

18.7 Interpretation:

Headings are for convenience only and will not affect interpretation.

18.8 Export Compliance:

You agree to comply with all applicable export and import control laws and regulations.

18.9

This Agreement constitutes the entire agreement between the parties with respect to the Website, Service and the Outputs.