Effective as of December 27, 2021.

Last update: December 16, 2024.

Merchant Terms and Conditions for Services Provided by SpotOn Transact, LLC

For our User Terms of Service click here

The services provided by SpotOn Transact, LLC (together with its affiliates, referred to as “SpotOn”) are provided subject to these Merchant Terms and Conditions (“Standard Terms”) set forth below. The Standard Terms along with the associated Fee Summary and Terms document, if applicable, (“Fee Summary”), merchant application (“Merchant Application”), and other documents and terms applicable to the services provided by SpotOn or published on SpotOn’s website (“Website”) at https://www.spoton.com/legal/ (“Service Terms”), and any applicable exhibits, schedule, addenda, amendments or other documents and materials attached to the foregoing, together constitute a binding contract (“Contract”) between SpotOn and the individual or business identified on the Merchant Application (“Client,” “you,” or “your”) and govern your use of the Services (defined below).

THESE TERMS INCLUDE A DISPUTE RESOLUTION AND ARBITRATION AGREEMENT TERMS, WHICH ARE SET FORTH BELOW, AND A WAIVER OF PURSUING CLAIMS BY CLASS ACTION.

THESE TERMS ARE A LEGAL AGREEMENT BETWEEN YOU AND SPOTON. PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING ANY OF SPOTON’S SERVICES. BY USING SPOTON’S SERVICES YOU AGREE TO BE BOUND BY THESE TERMS.

1. Description of Services

SpotOn offers merchants a variety of services and tools for merchants (including restaurants) and service providers, including tools for electronic marketing, appointment management, loyalty programs, review tracking, payment processing, payroll management, ordering applications, self-service customer check-in services, website services, and integrated point of sale (“POS”) systems (collectively, “Services”). SpotOn may also provide services to customers of Client, referred to as “Users” (e.g., subscribing to or checking balances in loyalty programs, using online ordering or reservation services through a SpotOn website or mobile app). All services offered by SpotOn, currently or in the future, whether offered to Client or to Users who are customers of Client, are referred to as the “Services,” and are subject to this Contract. Certain Services are described briefly below, and all Services are described on the Website and/or in other marketing or explanatory materials, the Merchant Application, Fee Summary or other materials provided by SpotOn (collectively, the “Service Descriptions”). Specific Services provided under this Contract may be subject to additional Service Terms or other terms and conditions. In addition, some Services may constitute or incorporate Third Party Services or Third Party Technology (defined below in Section 7.1) subject to terms and conditions provided by third parties, in accordance with Section 7.1. Among other services, the Services may include the following:

1.1 Marketing and Payment Services

The “Marketing and Payment Services,” which include options for a loyalty program, review tracking, and payment processing, allow Client to send a variety of messages, special offers, coupons, appointment reminders, and other information (collectively, “Notes”) to Users (as defined in Section 6.4) through various social media platforms, which may include email, mobile communications (e.g., SMS text messaging or other mobile notifications), Facebook, Twitter, and possibly other social media platforms. All of such communication platforms, together with any websites owned or controlled by Client, are referred to as “Program Sites.” Any third-party sites to which Client adds content via a SpotOn proprietary dashboard (“Dashboard”) or via any other Service or tool made available by SpotOn, are also included in the definition of Program Sites. “Marketing and Payment Services” may include Hardware (as defined in Section 1.5), software, and services that allow Client to register Users and process requests and payments for Users. Client understands and agrees that as between Client and SpotOn, Client is solely responsible for its obligations to comply with any applicable law, including without limitation the CAN-SPAM Act of 2003, 15 U.S.C. § 103, et seq. (“CAN-SPAM”), the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”) and all other laws and regulations relating to marketing to entities or individuals, in connection with its use of the Marketing and Payment Services as well as in connection with all other communications to Users.

1.2. SpotOn Website Services

“SpotOn Website Services” allow Client to create, update, publish, and operate its own website (“Client Site”). Client is responsible to ensure that the Client Site is compliant with all state, federal and location laws, including any consumer protection and website accessibility laws. The Client Site may have its own visitors, customers and users (each a “Client Site User”) for which Client is solely responsible. Client is solely responsible for providing the goods and services offered or promoted through the Client Site and for all aspects of the transaction between Client and any Client Site Users, including but not limited to purchases, returns, refunds, fraudulent transactions, legally required disclosures, and regulatory/legal compliance in any jurisdiction where Client offers products or services for sale. Client is and must be the only seller for all items sold through the Client Site. For the avoidance of doubt, SpotOn is not the seller or merchant with respect to any good or service sold through the Client Site. Client is solely responsible for obtaining and its use of data from Client Site Users through the Client Site. Client must have a legally compliant privacy policy posted on the Client Site. SpotOn is not liable for and does not provide Client with any legal advice regarding the Client Site or the Client Site Users. If Client purchases a domain name through the SpotOn Website Services, Client agrees that the domain registration may automatically renew each year from as long as the Client Site remains active. Upon termination of the SpotOn Website Services or this Contract, Client acknowledges and agrees that it is Client’s sole responsibility to deactivate the autorenewal function with the domain provider. SpotOn may, in its sole discretion (but has no obligation to), refuse or remove any content or material posted to the Client Site that SpotOn may deem to be false, abusive, misleading, inappropriate, infringing, or otherwise create risk or harm to Client Site Users or SpotOn. If SpotOn makes any design templates available to Client for which Client wishes to use for the Client Site, Client is granted a limited, non-transferable, revokable license to use it for one Client Site only for the duration of time that Client receives the SpotOn Website Services. SpotOn may modify such templates to reflect technical changes and updates from time to time.

1.3. Outsourced Services

SpotOn also offers or facilitates certain Third Party Services, such as for payroll, through third parties (“Outsourced Services”), which will subject to third party terms in accordance with Section 7.1. Such Outsourced Services are made available only as a convenience to Client, and Client’s purchase, access or use of any such Outsourced Services is solely between Client and the applicable third party services provider. Use of any Outsourced Services is at Client’s own risk and discretion. It is Client’s sole responsibility to review the terms of service of each third party provider that are applicable to the Outsourced Services. SpotOn is not responsible for any of the Outsourced Services.

1.4. Hardware; Hardware Fees

Client may purchase, lease, or rent devices, equipment, hardware, or other materials (collectively, “Hardware”) provided by SpotOn for use with certain Services, as described in the applicable Service Descriptions. Purchase, lease or rental Fees for Hardware provided by SpotOn will be payable as set forth in the applicable Service Descriptions, Fee Summary, or as otherwise agreed to in writing by the parties. If such Hardware is leased or rented from SpotOn, Client understands that SpotOn will continue to be the owner of such Hardware, and that Client has the obligation to return the Hardware to SpotOn within 15 business days of the termination of this Contract. Client will not remove, alter, efface, cover, or otherwise modify any markings, stickers, or other indicia applied to any Hardware loaned or rented by SpotOn. Client will use such Hardware exclusively in conjunction with the applicable Service(s) and for no other purpose. Client will use such Hardware in accordance with normal usage, and will not alter, or seek to alter, any such Hardware. Client will be responsible for the security of such Hardware and for maintaining such Hardware in good and operable condition, subject to ordinary wear and tear. In the event Client does not return rented, loaned or not fully purchased Hardware within 15 days of the termination of this Contract, SpotOn may charge Client a replacement fee, the amount of which shall be as set forth in the applicable Fee Summary, or, if not otherwise specified, an amount equal to the fair market value of such device as determined by SpotOn. The replacement fee will be debited to Client according to the payment method authorized by Client. Upon receipt of such payment, title to such Hardware will vest in Client. Clients using Hardware that terminate this Contract within one year of its Effective Date may be charged the difference between the list price for the Hardware purchased from SpotOn and the discounted price paid by the Client as reflected in the Fee Summary or Merchant Application, as applicable, and that price adjustment may be debited to Client according to the payment method authorized by Client.

1.5. User Services

In addition to the merchant-related services described above, SpotOn also provides services directly to Client’s customers and Users, through the Website or one or more mobile apps, to allow User to interact through SpotOn with Client, for example, to access Client’s loyalty program, receive messages and special offers from Client, make appointments or reservations, or purchase goods and services from Client (collectively, “User Services”). Client understands that Users who access or use the User Services will be required to accept the User Terms applicable to such User Services, which are accessible on the Website athttps://www.spoton.com/legal/user-terms/ (“User Terms”). To the extent that Client accesses or uses any User Services, such User Services will be included in the Services and Client will be subject to the User Terms.

1.6. Payment Processing Services

If the Services elected to be received by Client include transaction processing and related payment acceptance services (“Processing Services”), such Processing Services are subject to additional terms and conditions required by SpotOn or SpotOn’s third party payment processor, as applicable (“Processing Terms”). Client’s Processing Terms will either be an agreement directly with the third party payment processor, financial institution, or other service provider (collectively, “Processor”), or a separate agreement directly with SpotOn for Processing Services. The applicable Processing Terms will be identified on the Merchant Application or as otherwise indicated to Client by SpotOn and a copy of such Processing Terms are available on the Website.

The terms of the applicable Processing Terms are hereby incorporated into and made part of this Contract. In the event of any inconsistency between the terms of the Merchant Application or the Processing Terms and these Standard Terms with respect to the Processing Services, the Merchant Application and Processing Terms shall control unless otherwise expressly stated. The Processing Terms may be updated or modified by SpotOn or Processor as provided in the Processing Terms.

2. Merchant Application

In order to access SpotOn’s Services, Client shall execute and return to SpotOn a Merchant Application using the form provided by SpotOn, which lists the particular Services that Client desires to use. Client may also request additional services verbally to SpotOn as may be confirmed via an invoice issued by SpotOn to Client reflecting the provision of such additional services.

Client represents and warrants that all information supplied to SpotOn in connection with its Merchant Application, in any other request for services, or in response to any inquiry by SpotOn, whether provided by Client or a third party is complete and accurate in all material respects. On an ongoing basis, Client must provide SpotOn with the current address of each of its offices, all “doing business as” (DBA) names used by Client, and a complete description of goods sold, and services provided. Client agrees to provide additional information to SpotOn upon SpotOn’s request. Client authorizes SpotOn to conduct checks of background, credit, or banking information, as necessary, of Client (including its beneficial owners, such as any person that owns or controls 25% or more of the company’s equity or voting rights, or that exercises managerial control over the company), and agrees that all information obtained under this Contract may be shared with Processor or any other third party necessary in connection with Client’s provision of the Services. Client represents and warrants that it has obtained, and will provide to SpotOn upon request, written instructions and authorization from each such individual for SpotOn to obtain (and for a consumer reporting agency to provide) such information including consumer reports of such individual to SpotOn, and for SpotOn to share such individual’s information as described here. Client will cooperate with and provide SpotOn with any information or documentation needed for the SpotOn to obtain such information from consumer reporting agencies, and will comply with all applicable requirements under all applicable state and federal laws and regulations.

The terms of the Merchant Application are hereby incorporated into and made part of this Contract. In the event of any inconsistency between the terms of a Merchant Application or these Standard Terms, the Merchant Application shall control unless otherwise expressly stated.

3. Fees

The fees for each Service and Hardware (“Fees”) are described in the applicable Fee Summary (if applicable), the Merchant Application, or as otherwise agreed to by the parties. Fees may be offset from amounts otherwise due to Client or charged to or debited from Client’s designated payment method for all one-time and recurring Fees due under this Contract. Client must provide SpotOn with depository account or credit card information and any additional credit card or ACH authorization required by SpotOn. Client may provide such payment information on its Merchant Application or through the administrative portal on the Website. By providing its credit card or depository account information to SpotOn, Client agrees that SpotOn is authorized to charge Client’s credit card and debit Client’s depository account for all Fees payable under this Contract in accordance with the terms of the Contract. Such authorization will remain in full force and effect, including after termination of this Contract, until all amounts owed to SpotOn have been paid, or until Client expressly withdraws or cancels such authorization with written notice to SpotOn. Client acknowledges and agrees that it will abide by the rules and guidelines of the National Automated Clearinghouse Association (Nacha) and that any ACH deposits provided hereunder will be governed by the same. Client must object to any error reflected in any invoice issued or payment of Fees made within thirty (30) days of the invoice date or Fees payment date, respectively. If Client fails to object to such error within such thirty (30) day period, any claims for such purported error shall be deemed waived.

The following terms apply to all Services, and are in addition to the terms included in the applicable Merchant Application.

3.1 Subscriptions

All Services are provided on a subscription basis, in some cases after a free trial period, all as described in the applicable Service Descriptions, Merchant Application, or as otherwise agreed to by the parties. Any Services provided pursuant to a free trial will be subject to additional terms related to such free trial period. Subscriptions will be on a monthly basis or otherwise as agreed by the parties. All subscription Fees will be paid in advance of the subscription period, or as otherwise agreed to in writing by the parties, via the payment method authorized by Client.

3.2. Activity Fees

In additional to the Fees for the Services, activity fees for any transactions (e.g., SMS text messaging or other payment processing fees) will be payable in arrears via the payment method authorized by Client.

3.3. Fee Changes

SpotOn may change any Fees that it charges for any Services or Hardware provided by SpotOn by giving Client notice of such change (“Fee Change”) at least 30 days before the change becomes effective. Unless otherwise stated, if Client does not agree to any such Fee Change, Client may terminate this Contract (and Client’s use of the Services and SpotOn Technology) by notifying SpotOn of termination prior to the effective date of the Fee Change. In such event, this Contract and Client’s use of the Services shall thereupon be terminated as of the effective date of the Fee Change. Client’s failure to terminate this Contract prior to the effective date of the Fee Change and continued use of the Services on or after such effective date shall constitute Client’s acceptance of the Fee Change.

3.4. Notices of Charges

The amount to be debited to Client’s account or charged to Client’s credit card for the Services shall be adjusted pursuant to any Fee Change accepted (or deemed accepted) by Client, starting on the effective date of the Fee Change. Client may view its amounts payable and past charges by SpotOn on the Dashboard.

3.5. Obligation of Client for Fees

SpotOn may immediately terminate this Contract in the event Client revokes its authorization to debit or charge Client’s depository account or credit card while any Fees or other amounts are still due or owing under this Contract. Fees and charges payable hereunder shall remain enforceable obligations of Client regardless of whether: (i) Client terminates its debit or charge card authorization prior to collection in full by SpotOn, (ii) an authorized payment fails or is rejected, or (iii) Client challenges or seeks to reverse any charge authorized under this Contract.

3.6. Privacy and User Terms

Client (including each Client location) will comply with the Consumer Privacy Policy and User Terms, both of which are located on the Website and are incorporated herein by reference, and with all other policies established by SpotOn. Specifically, but without limiting the foregoing, Client will not use any data relating to Users or take any other action that the Consumer Privacy Policy or User Terms state may be done only with the permission of SpotOn until and unless Client has received written permission from SpotOn to do so, and Client will comply with any terms required by SpotOn in conjunction with granting such permission. Client will not use any data relating to Users or take any other action that is inconsistent with the User Terms, the Consumer Privacy Policy, any other SpotOn policy, or any applicable Service Description. In addition, Client understands that it is solely responsible for posting and disseminating to Users its own terms of use and a privacy policy on its websites or apps. Client hereby represents and warrants that its terms of use and privacy policy are consistent with this Contract and the Consumer Privacy Policy, and do not violate any applicable law, including CAN-SPAM and the TCPA.

3.7. Overdue Payments

Client understands and agrees that Services may be interrupted on accounts that reach 10 days past due. Accounts that are not collectable by SpotOn may be turned over to an outside collection agency for collection.

3.8. Taxes.

Client is responsible for paying all taxes applicable to or resulting from the Services and transactions contemplated by this Contract. If SpotOn is required to collect or pay taxes on any Services or Hardware provided to Client by SpotOn that were not billed to Client, SpotOn may charge Client for such taxes via the credit card or checking account authorized by Client for other charges. Client is also responsible for calculating and paying all taxes associated with its sale or delivery of products or services to its customers.

3.9. Tax Reporting Requirements

Client acknowledges that if Client has elected to receive Processing Services, SpotOn or its Processor may have tax reporting responsibilities in connection with the transactions processed using the Processing Services, such as filing an Internal Revenue Service (“IRS”) report on Form 1099-K, which reports Client’s gross transaction amounts each calendar year, and other state taxing authority (“State Taxing Authority”) requirements. Client therefore agrees that (a) SpotOn or the Processor (as determined between SpotOn and the Processor in their sole discretion) may report the total amount of transactions received by Client in connection with the Processing Services each calendar year, as required by the IRS and applicable State Taxing Authorities; (b) SpotOn and the Processor may use and disclose Client’s taxpayer information and other personal or transaction data necessary to fulfil tax reporting responsibilities herein (the “Tax Reporting Information”); (c) Client will cooperate with SpotOn or the Processor in providing accurate and complete Tax Reporting Information, including any other information that may be required by the taxing authorities to fulfil tax reporting described herein; and (d) Client represents and warrants that SpotOn and the Processor may rely on the information submitted by Client.

Client agrees that SpotOn, the Processor, and any related financial institution or other service provider will not be liable for any penalty or other damages stemming from any Form 1099-K that is issued incorrectly if it comports with the information provided by Client, nor will they have any obligation to investigate, validate or verify the Tax Reporting Information, or any other information submitted by Client for reporting purposes. For clarity, Client understands, acknowledges, and agrees that SpotOn will submit the Tax Reporting Information and other such information submitted by Client exactly as provided by Client and received by SpotOn. Furthermore, notwithstanding the foregoing, either SpotOn or the Processor may investigate or validate the Tax Reporting Information along with other information that may be submitted for tax reporting purposes.

3.10. Consent to Electronic (Paperless) Delivery of Tax Documents

In connection with Section 3.9 above, Client elects to receive electronic delivery of the referenced tax-related documents from SpotOn or Processor (“E-Delivery”) through the Services, where Client can go to a website and download the applicable statement(s). As a prerequisite to E-Delivery, IRS guidelines require that Client must first review applicable E-Delivery disclosures, which can be found at https://www.spoton.com/legal/tax-e-delivery-consent/. Unless otherwise indicated by Client, Client’s submission of the Merchant Application constitutes Client’s affirmative consent to receive its tax documents via E-Delivery (“E-Delivery Consent”). The E-Delivery Consent is effective upon Client’s submission of the Merchant Application and will remain in effect until withdrawn by Client. Notwithstanding the foregoing, SpotOn may elect to provide tax-related documents to Client in paper form. If Client does not specifically consent to the electronic delivery of tax-related documents, Client must notify SpotOn and Client will receive paper copies of all required tax-related documents, including Form 1099-K. SpotOn will notify Client once the applicable tax form(s) become available via the email address SpotOn has on file.

4. Proprietary Rights

4.1. Client’s Proprietary Rights

Client grants to SpotOn a non-exclusive, royalty-free right and license to use Client’s trademarks, data, and other materials it provides to SpotOn (collectively, “Client Materials”) for the purposes of providing the Services. Such license includes, but is not limited to, displaying Client’s name, logo, and other trademarks on the Client Site and on User Services (including websites and mobile apps, as applicable) used by Client’s Users. Client retains all rights in and to its trademarks and copyrights. Client has sole responsibility for all Client Materials, and Client represents and warrants that it is the rightful owner or licensee of such Client Materials and that the Client Materials and SpotOn’s use of the Client Materials in accordance with this Contract will not violate any right of privacy, personal or proprietary right, or other common law or statutory right of any third party.

4.2. SpotOn’s Proprietary Rights

SpotOn has developed or acquired proprietary software and systems through which it delivers the Services, including the Dashboard and SpotOn’s internal tools (collectively, the “SpotOn Software”). SpotOn grants Client a license to access, via the internet, the SpotOn Software applicable to the Services selected by Client during the Term of this Contract, but only for the internal use of Client and subject to the other terms and conditions of this Contract. SpotOn has developed trademarks, copyrighted material, and other intellectual property that it may use in conjunction with the Services, including on displays utilized by the Client and/or Users in conjunction with the Services, on websites, and apps related to the Services, and/or with Hardware; or that SpotOn may otherwise use on behalf of Client or in conjunction with making the Services available for use by Client or Users. All (i) SpotOn Software, (ii) any Dashboard, (iii) any SpotOn website or mobile app, and (iv) all other software, dashboards, databases, tools, websites, mobile apps, portals, technology and systems used or offered by SpotOn in conjunction with the Services are collectively referred to as “SpotOn Technology.” All SpotOn Technology and all trademarks and other materials used by SpotOn in the Services (other than those owned by Client or third parties), are owned by SpotOn or its licensors.

4.3. Third Party Proprietary Rights

The Services may involve interaction with proprietary and/or branded websites, apps, or other technology of third parties, each of which retains all rights in and to its trademarks, tradenames, copyrights, and SpotOn Technology (collectively, “Proprietary Materials”). Such third parties may include, for example, Facebook, Twitter, Google, Yelp, Foursquare, OpenTable, TripAdvisor, and other third parties now or in the future. Client has no right to use any Proprietary Materials of any third parties.

4.4 Feedback

Any information provided by Client to SpotOn, including questions, comments, suggestions, ideas, feedback, or other material (collectively, “Feedback”) is not confidential. Client hereby grants SpotOn a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit, incorporate into SpotOn Technology, or otherwise use such Feedback as SpotOn deems appropriate for any and all commercial and/or non-commercial purposes, in SpotOn’s sole discretion.

4.5 Use of Data by SpotOn

In addition to the permitted uses and sharing of Client’s information as set forth in the SpotOn Privacy Policy located on the Website, Client agrees that SpotOn may disclose Client data transmitted through the Services as well as data provided by or related to a User (“User Data”) in the following circumstances and for the following reasons: (a) to SpotOn’s Processors and other third party service providers whom SpotOn uses to supply or administer the Services, and otherwise as necessary for SpotOn to provide the Services and to fulfill its obligations under this Contract; (b) to comply with government agencies, court order, credit card network operating rules, and other regulatory requirements; (c) if Client provides written consent for such usage or sharing; (d) to prevent, investigate, or report possible illegal or fraudulent activity, as reasonably determined by SpotOn; or (v) as otherwise permitted by applicable law. SpotOn reserves the right to access, retain, aggregate, process and share with third parties (including Third Party Providers) all data available to SpotOn as a result of its performance of the Services, including all usage and performance data, and all other data available to SpotOn. Client acknowledges that SpotOn has the exclusive right to use and share such data, that SpotOn has no responsibility to share such data with Client, and that if Client has access to any such data Client has no right to use it for any purpose except as permitted in Section 6.12. SpotOn may use any or all of such information to generate reports and analyses based on such data, including pattern recognition and benchmarking against data from other clients of SpotOn and their Users and other information available from third parties, provided that, to the extent any such data includes any personally identifying data, such data shall be used by SpotOn only in de-identified and aggregated form. All such anonymous, de-identified, aggregated, or statistical data shall be the exclusive property of SpotOn and shall be SpotOn’s confidential information. Information about Users may also be used by SpotOn for contacting, including marketing to, Users or allowing others to do so.

4.6 User IDs and Passwords

Client’s use of SpotOn’s Services, including use of any SpotOn Technology, will be controlled by user IDs and passwords, in accordance with SpotOn’s access policies in effect from time to time. Client understands and agrees that SpotOn will provide access to Client’s information, in accordance with access levels and controls offered by SpotOn, to anyone using an active user ID and password combination selected by Client and associated with the appropriate level of access, and that SpotOn will rely on all messages and may post all communications and materials sent using active user IDs and passwords assigned to Client with the appropriate level of access. Client is responsible for selecting secure passwords and for safeguarding all user IDs and passwords. Client will promptly notify SpotOn in writing of any user IDs and/or passwords that may have been compromised or that Client wishes to terminate or change for any reason. Client must take steps to prevent unauthorized use of SpotOn’s Services and terminate such use, including use by individuals outside of Client’s organization or by any user under the age of 13. If Client’s users violate the Contract or use the Services in a manner we reasonably believe will cause us harm or liability, we may ask you to suspend or terminate that user’s account. If you do not promptly suspend or terminate the user, we may do so.

5. Confidentiality

5.1 Confidential Information

In performance of this Contract each party may be exposed to confidential or proprietary information of the other party (“Confidential Information”), whether written, oral, or visual, and whether or not expressly marked confidential. However, Confidential Information will not include information that (a) is or becomes publicly available through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure. Client acknowledges and agrees that SpotOn’s Confidential Information includes all technical, design, and benchmark information relating to the Services and all software code relating to the Services. Each party agrees that it will not disclose the other’s Confidential Information to third parties without prior written consent, and that it will protect the other’s Confidential Information from unauthorized use with the same degree of care that it uses to protect its own non-public and confidential information, but in no event less than a reasonable amount of care. Each party agrees that the other’s Confidential Information may be used only to directly further the purposes of this Contract, and will be disclosed only to employees and contractors with a need to know the Confidential Information for the purposes of this Contract. Each party will take all reasonable steps to protect the disclosing party’s Confidential Information from unauthorized copying or use by its employees and others, and to immediately notify the disclosing party if it becomes aware of such unauthorized copying or use. Each party will remain responsible for the handling of Confidential Information by its employees, contractors, and representatives, and any other person to whom such party discloses such Confidential Information. Nothing in this Contract will prevent the receiving party from disclosing Confidential Information to the extent it is required to be disclosed by law or valid order of a court or other governmental authority, provided, however, that the receiving party shall first give written notice to the disclosing party (to the extent legally permitted) and shall cooperate with any efforts by the disclosing party to challenge or limit the compelled disclosure, at the disclosing party’s request and expense. Each party as the receiving party agrees that any breach or threatened breach of the confidentiality obligations of this Contract is likely to result in irreparable injury to the disclosing party which may not be able to be remedied by money damages. Accordingly, in the event of a breach or threatened breach of such confidentiality obligations, the disclosing party shall be entitled to injunctive or other equitable relief, in addition to any other remedies that may be available to it at law, in equity, or under this Contract.

6. Representations, Warranties and Covenants

Client represents, warrants and covenants to SpotOn as follows:

6.1. Noninfringement

Client has all rights to all materials delivered by Client for use (or approved by Client for use) in conjunction with the Services, including for use on Program Sites, SpotOn apps, the Dashboard, and/or SpotOn websites, and to all materials used by Client, or provided by Client for SpotOn to use, in conjunction with the Services (including without limitation Client Materials), without infringing the rights of SpotOn or any third party.

6.2. Compliance with Law and Policy

Client will use the Services only for Client’s business purposes and will comply with all applicable laws and regulations, the terms of the published policies and programs of both SpotOn and Client. The foregoing includes all laws and regulations relating to privacy and security (including all laws and regulations relating to personal health information, financial information or other sensitive information), CAN-SPAM, the TCPA, and all other laws and regulations relating to marketing to entities or individuals.

6.3. User Interactions

Client shall be solely responsible for the creation and dissemination of all communications with its customers, prospective customers, and others with whom it communicates through the use of the Services and/or SpotOn Technology (collectively, “Users”). SpotOn does not create, send, disseminate, initiate, make, or take any of the steps necessary to send any communications to Users. SpotOn shall not be directly liable for any communications sent to Users. Client will communicate with Users only in compliance with all applicable laws, rules, and regulations, including CAN-SPAM and the TCPA, and all other applicable laws.

1. 6.3.1.

   The TCPA, CAN-SPAM, and other laws may require Client to obtain consents from Users before Client sends any communications to Users. Client shall (i) bear the sole responsibility for obtaining any legally required consents from Users prior to sending any communications to Users, (ii) have the sole responsibility for storing and maintaining records of any legally required consents or revocations of consent, (iii) maintain and implement a system that allows Users to opt-out of future communications from Client or to alter or revoke any consents related to communications from Client, and (iv) not send communications to Users beyond the frequency represented to such Users in any disclosures or terms provided by Client.

2. 6.3.2.

   In addition to, and not in limitation of the foregoing, Client shall (i) comply with all laws and regulations, including CAN-SPAM and the TCPA, that require consent for communications to Users, (ii) be solely responsible for compliance with all applicable laws, regulations, and rules, including CAN-SPAM and the TCPA, and including all terms of this Contract, and (iii) have sole legal liability for any act, omission or violation of any of the foregoing by Client or any representative or contractor of Client that may occur in connection with Client’s use of the Services and/or SpotOn Technology.

3. 6.3.3.

   Client agrees (i) that Client shall have sole responsibility for making and sending all messages to Users, and for the content and frequency of all such messages, and (ii) that SpotOn merely provides Client with the related Services and/or SpotOn Technology. Client is solely responsible for receiving consent from Users to submit to SpotOn any information relating to the User as required in order to include such User in the applicable Services, and Client represents, warrants and covenants that providing such information about the User does not and will not violate any obligation Client has to such User, including pursuant to the Consumer Privacy Policy or the User Terms, Client’s privacy policy, CAN-SPAM, the TCPA, or any other applicable law, regulation, or policy. Client is solely responsible for designing, describing, administering, and fulfilling the terms set forth in any descriptions of its products or services, or any promotions, deals, or programs offered by Client to Users, as communicated by Client using any of the Services. SpotOn is not responsible for any complaints or actions by Users resulting from Client’s failure to fulfill its obligations as described in the foregoing sentence.

6.4. User Communications

In addition to compliance with Section 6.3, Client will ensure that all interactions with Users are in compliance with (i) the terms of this Contract, and (ii) the terms of any offers, commitments, or representations Client has made to Users. In addition, Client represents, warrants and covenants that no communication with Users or published material made available to Users through the use of the Services (including Notes and Client websites) will contain: (a) any sexually explicit materials; (b) any viruses, Trojan horses, worms, or other harmful code; (c) disclosure of any personally identifiable information (without first obtaining the prior express written consent from the data subject); (d) any content commonly associated with unsolicited commercial messages (e.g., spam); (e) any libelous, scandalous, defamatory, disparaging, vulgar, profane, threatening, hateful, or harassing message, (f) any incitement to illegal activity, harassment, or violence; (g) any images, audio, video, or other content created by a third party, without obtaining the prior written consent from the content owner; or (h) any other types of content that may be considered objectionable, illicit or illegal (all of the foregoing, collectively, “Offensive Content”).

6.5. No Agency Relationship

No agency relationship between SpotOn and Client is created by this Contract or by Client’s use of the Services and/or SpotOn Technology. Neither Client nor SpotOn shall be an agent of the other party for any purpose. Specifically, and without limiting the foregoing, Client does not have (i) express actual authority to act on behalf of SpotOn, (ii) implied actual authority to act on behalf of SpotOn, or (iii) apparent authority to act on behalf of SpotOn, and Client has no authority to create sub-agency relationships with any other individuals or entities. Client agrees that SpotOn shall not be liable for Client’s conduct under the doctrine of respondeat superior or any similar common law doctrine or statutory provision. Client’s officers, directors, employees, staff, or agents are not de facto SpotOn employees. SpotOn does not ratify any conduct that violates the laws or regulations of any jurisdiction or this Contract.

6.6. Relationships with Third Parties

Client shall not retain any third parties for any purpose unless the third parties agree to comply with the terms of this Contract and with all prevailing laws and regulations, including CAN-SPAM and the TCPA and any associated regulations, and contractual terms regarding CAN-SPAM and TCPA compliance that are at least as stringent as the requirements set forth this Contract. Client shall bear all legal responsibility if a third party it retains for any purpose engages in conduct that violates the laws or regulations of any jurisdiction. Client shall not allow any third parties to use the SpotOn Software or SpotOn Technology to create, send, disseminate, initiate, make or take any of the steps necessary to send any communications on its behalf. If Client purchases leads, phone numbers, or other contact information from a third party, Client shall bear all legal responsibility for ensuring that the third party obtained all consents required under the TCPA, CAN-SPAM, and other applicable laws or regulations.

6.7. Use of Program Site

Client will not (i) use any Program Site in a manner that is contrary to the terms governing such Program Site, including the privacy policy of such Program Site, or (ii) take any action that might interfere with or compromise SpotOn’s relationship with any Program Site. Client will not make any representations or warranties on its website, on any third-party website, in any Program Site or other social media, in Client’s marketing materials or otherwise, regarding the Services that might harm SpotOn’s reputation or its relationship with any third parties, including any Program Site.

6.8. No Infringing or Inappropriate Content

Client will not disseminate, whether on its premises, on any Program Site, via any communication to Users (including via Notes), in the Chat Facilities (as defined in Section 12.6), through Client’s website published through the SpotOn Website Services or otherwise, any content that Client does not have the right to use (“Infringing Content”), or any content that in the sole judgment of SpotOn may be Offensive Content (Infringing Content and Offensive Content, collectively, “Inappropriate Content”). Client represents and warrants that it owns all rights to User Data and has all necessary rights and permissions to use, share, display, transfer and license such User Data in the manner set forth in the Contract.

6.9. No Interference

Client will not upload, post, e-mail or otherwise transmit any material that contains a virus or other mechanism designed to interrupt, destroy or limit the functionality of any SpotOn Technology, any of the Services, or any software or system of a third party. Client will not interfere with the provision or use of the Services by SpotOn, by any other client of SpotOn, or by any User, nor will Client interfere with any other SpotOn Technology or Services offered by SpotOn. Except as authorized by SpotOn, Client will not seek to download, obtain the code for or in any other way seek to access the SpotOn Software or any other SpotOn Technology.

6.10. Use of Data by Client

Client will use User Data obtained through the use of the Services solely to market Client’s goods and services to Users through the Services during the Term. Unless otherwise agreed to by the parties, Client will not download or make copies (whether in hard copy or electronic) of User Data collected by SpotOn or by Client through SpotOn Technology or the Services except to the extent such downloading and/or use (i) is during the Term of this Contract, (ii) is solely for Client’s internal business purposes, and (iii) is in accordance with SpotOn’s Consumer Privacy Policies and User Terms, and in accordance with applicable laws and regulations. Client will use User Data only as permitted herein. Client will not provide any information obtained through the use of the Services, including any information that would personally identify, or facilitate personal contact with, any User (e.g., first and/or last names, email, telephone number, zip code, birthdate, gender, credit card or other financial information, or other identifying information) to any third party other than (a) to an acquirer in the event of a sale or merger of Client’s business, provided that the acquirer agrees to maintain and use such data regarding Users in accordance with this Contract, including the Privacy Policies and User Terms, (b) as necessary to fulfill an order for a User, (c) to service providers of Client who need to know such information to provide services to Client consistent with this Contract and are obligated to keep such information confidential, (d) if required by law or subpoena, in response to an inquiry from law enforcement authorities or regulators, or (e) if Client believes the release of such information is necessary to address or prevent illegal or harmful activity. Client will not obtain or seek to obtain access to any nonpublic information of SpotOn, any other SpotOn client or other third party, or User information maintained on behalf of another SpotOn client.

6.11. Multiple Locations; Franchisees

Client must list on the Merchant Application (a) all locations at which Client wishes to use the Services (each a “Location”); and (b) all other entities that will access the Services on behalf of Client or under Client’s account, including any affiliates of Client or, if Client is a franchisor, any of Client’s franchisees. For the purpose of this Contract, where Locations are operated by an affiliate or franchisee, use of the Services by those affiliates and franchisee identified on the applicable Merchant Application shall be deemed Client’s internal business use. If Client registers more than one Location to use the Services, whether or not such Location is owned by Client, or is a franchisee or other licensee of Client, Client represents and warrants that it has the authority to commit such Location to the terms of this Contract and if required by SpotOn, will cause such Location to enter into a joinder to this Contract. Client will be responsible for either fulfilling the responsibilities or for arranging such Location to fulfill the responsibilities set forth in this Contract, including the payment of Fees (as described in Section 3). Client acknowledges and agrees that it will be fully liable for all acts and omissions of its affiliates, franchisees, and other representatives as Client’s own acts and omissions, and Client will indemnify and hold SpotOn harmless from and against any claims or losses caused by Client’s affiliates, franchisees, and representatives.

6.12. Accuracy, Currency, and Retention of Data

Client is responsible for the accuracy of the information Client (including each Location) provides SpotOn relating to Users and for updating such information as may be necessary to keep it current. Client will not rely on the information it transmits to SpotOn as an archive or backup, and will be responsible for retaining copies of all information Client sends SpotOn for which Client may have a need or wish to use. SpotOn makes no representations or warranties about its ability to return information relating to Users or the accuracy or completeness of any such information if provided to Client, upon Client’s reasonable request and SpotOn’s subsequent agreement to provide such data.

6.13. Client Taxes and Other Payment Obligations

Client will be responsible for recording, calculating, paying, and reporting (i) all federal, state and local taxes and fees due for Client’s services and products provided to Users, (ii) all compensation and any other payments due to Client’s employees and other personnel and providers, including hours worked or other services or materials provided, overtime, tips and any other payment obligations, (iii) all taxes and fees related to payroll or other payments paid or payable to employees or other third parties, and (iv) all taxes and fees resulting from Client’s use of the Services (except for taxes on SpotOn’s income), whether levied initially on Client or on SpotOn. To the extent SpotOn or SpotOn Technology provides information to Client with respect to any such calculation, tax, or other payment or reporting obligation, such information is provided merely as a convenience to Client, shall not be relied upon by Client, and does not relieve Client of its obligations described above.

6.14. Payment Processing

When Users use a credit or debit card or any other non-cash payment means through SpotOn Technology (including a SpotOn POS system, SpotOn Website Services, or a SpotOn website or mobile app), Client will not seek to discover or record the credit or debit card number or other payment details. When Users interact directly with Client without the use of any SpotOn Technology, Client will record such payment details only with the express written consent of the User. Client will use a User’s payment information only consistent with the scope of such User’s authorization (e.g., to process payments) and will not disclose any payment information of Users to a third party without the User’s written consent. Notwithstanding the foregoing, Client may disclose such payment information to (i) third parties necessary to effect a transaction, provided that such third parties have an obligation to use the payment information only for purposes of carrying out the transaction or for other activities that have been authorized by the applicable User, and (ii) when required under applicable law.

Client acknowledges and agrees the Client shall at all times be responsible for the security of User cardholder data the Client possesses, stores, processes, or transmits on behalf of User. Further, since SpotOn utilizes Third Party Providers for processing and transmitting payments, and storing User cardholder data, SpotOn does not transmit or store the User cardholder data at any time during the process. Client acknowledges and agrees, and shall inform and obtain User acknowledgement and agreement: (a) Third Party Providers shall at all times be solely responsible for the security of User cardholder data that Third Party Providers possess, store, process, or transmit on behalf of Client and User, (b) Client and User must direct claims relating to the security of User cardholder data directly to Third Party Providers, and (c) SpotOn does not warrant, indemnify, or accepts liability for such claims.

6.15. Representations, Warranties, and Covenants of SpotOn

SpotOn represents and warrants to Client that SpotOn will provide the Services in material compliance with (i) applicable laws and regulations and (ii) consistent with SpotOn’s Services Descriptions.

6.16. Consent to Receive Automated Communications

Client understands and agrees that by submitting its Merchant Application, it has provided express written consent, including ESIGN signature, for SpotOn, or parties acting on SpotOn’s behalf, to contact Client at all telephone numbers provided by Client to SpotOn, including through the use of automated technology and/or SMS/MMS messages, for all purposes (including providing technical support to Client, and also including marketing such as advising Client of new SpotOn services).

7. Disclaimers; Limitations of Liability; Release and Waiver

7.1. Third Party Services

Client understands and agrees that (i) certain Services offered by SpotOn are delivered by third parties (“Third Party Providers”) or through the technology of third parties (“Third Party Technology”), (ii) SpotOn offers Services through the internet and through Third Party Providers and other third parties, including internet service providers, gateways, domain name registrars, Program Sites, and other social networking or third party sites or services (collectively, “Third Party Services”), and (iii) the Hardware provided hereunder that was sold, leased, rented, or loaned to Client by SpotOn that is manufactured by a third party (“Third Party Devices”). Client agrees that SpotOn is not responsible for the performance of the internet, any Third Party Providers, Third Party Technology, Third Party Services or Third Party Devices, or for the reliability, security, availability, compliance with law or any other aspect of the internet, or any Third Party Providers, Third Party Technology, Third Party Services or Third Party Devices. CLIENT HEREBY RELEASES SPOTON FROM ANY DAMAGES CLIENT OR USERS MAY INCUR AS A RESULT OF USE OF (A) THE INTERNET; (B) ANY SPOTON TECHNOLOGY, (C) ANY SERVICES PROVIDED BY SPOTON; OR (D) ANY THIRD PARTY PROVIDERS, THIRD PARTY TECHNOLOGY, THIRD PARTY SERVICES, OR THIRD PARTY DEVICES. CLIENT AGREES NOT TO ASSERT ANY CLAIMS AGAINST SPOTON, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (COLLECTIVELY, “ASSOCIATED PERSONS”) ARISING IN ANY WAY FROM USE OF THE INTERNET, ANY TECHNOLOGY, OR ANY THIRD PARTY PROVIDERS, THIRD PARTY TECHNOLOGY, THIRD PARTY SERVICES, OR THIRD PARTY DEVICES. In connection with the foregoing release, Client hereby waives California Civil Code Section 1542, and any similar provision in any other jurisdiction. California Civil Code Section 1542 provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” In some instances, SpotOn may receive a revenue share or other compensation from Third Party Providers in connection with Client’s use of the Third Party Services.

7.2. No Assurance of Availability of Services

Client understands and agrees that the Services, Third Party Services, Third Party Technology and Third Party Devices may be unavailable from time to time for maintenance or other reasons, and that SpotOn is not responsible for any error, omission or interruption in the Services or in the performance of the Third Party Services, Third Party Technology or Third Party Devices, including any defect or delay in operation or transmission; communications failure; deletion, theft, destruction, or unauthorized access to or alteration of any content, (i) that SpotOn sends through the Services, (ii) that Client collects, processes, stores, or sends through use of the Services, Third Party Services, Third Party Technology or Third Party Devices, or (iii) that Client attempts to so collect, process, store, or send; or for any technical malfunction or other difficulty Client may experience in the use of the Services, Third Party Services, Third Party Technology or Third Party Devices.

7.3. Disclaimer of Representations and Warranties

The representations, warranties, and covenants set forth in Section 6.15 are the only representations, warranties or covenants made by SpotOn. SPOTON HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE SERVICES, THIRD PARTY SERVICES, THIRD PARTY TECHNOLOGY, AND THIRD PARTY DEVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE FOREGOING DISCLAIMER INCLUDES (i) A DISCLAIMER OF ANY REPRESENTATION, WARRANTY OR COVENANT THAT THE SERVICES, SPOTON TECHNOLOGY, THIRD PARTY SERVICES, THIRD PARTY TECHNOLOGY, AND/OR THIRD PARTY DEVICES, WHETHER MADE AVAILABLE OR RECOMMENDED BY SPOTON WILL BE UNINTERRUPTED, RELIABLE, SECURE OR ERROR FREE; (ii) A DISCLAIMER THAT THE SERVICES, SPOTON TECHNOLOGY, ANY THIRD PARTY PROVIDERS, THIRD PARTY SERVICES, THIRD PARTY TECHNOLOGY, OR THIRD PARTY DEVICES ARE FREE OF VIRUSES OR HARMFUL COMPONENTS; AND (iii) A DISCLAIMER THAT THE SERVICES, ANY SPOTON TECHNOLOGY, ANY THIRD PARTY PROVIDERS, THIRD PARTY TECHNOLOGY, THIRD PARTY SERVICES, OR THIRD PARTY DEVICES WILL MEET CLIENT’S EXPECTATIONS. SPOTON MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING WHETHER OR NOT THE SERVICES CONSTITUTE AN AUTOMATIC TELEPHONE DIALING SYSTEM, AS SUCH TERM IS USED IN THE TCPA. SpotOn is not responsible for the provision and functioning of any connectivity, software, systems and/or other infrastructure necessary to work with the Services, the SpotOn Technology, any SpotOn Dashboard, any other technology and/or the Hardware provided by SpotOn.

7.4. Limitation of Liability

UNDER NO CIRCUMSTANCES WILL SPOTON OR ANY ASSOCIATED PERSON (AS DEFINED IN SECTION 7.1) BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY ARISING OUT OF OR IN CONNECTION WITH CLIENT’S USE OF, OR INABILITY TO USE, THE SERVICES, THE SPOTON TECHNOLOGY, THIRD PARTY SERVICES, THIRD PARTY TECHNOLOGY, OR THIRD PARTY DEVICES, FROM SPOTON’S SUSPENSION OF OR TERMINATION OF THE SERVICES, OR FROM CLIENT’S PARTICIPATION IN THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES), EVEN IF SPOTON OR ANY ASSOCIATED PERSON HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation or exclusion of incidental, consequential or other types of damages, so some of the foregoing limitations may not apply to Client. Without limiting the terms of Section 7.3 and this Section 7.4 in any way, and except as otherwise specified in any applicable Service Descriptions, SpotOn’s liability for damages shall be limited to the return of the monthly subscription fees paid by Client for the month(s) in which the events giving rise to such damages occurred.

7.5. Basis of the Bargain

Client agrees that without the limitations of liability, exclusions of damages, releases, and waivers contained in this Contract it would not be feasible for SpotOn to offer the Services, the SpotOn Technology, the Hardware, the Third Party Providers, Third Party Technology, Third Party Services, or the Third Party Devices at the rates offered by SpotOn, that such limitations of liability, exclusions of damages, releases, and waivers are fundamental elements of the basis of the bargain between Client and SpotOn pursuant to which all of the foregoing is being offered. Client also agrees that the foregoing would not be made available to Client if Client did not agree to such limitations, exclusions, releases, and waivers.

8. Indemnification

Client hereby agrees to defend and indemnify SpotOn and its Associated Persons, and to hold them harmless from and against, any and all losses, damages, costs, or expenses, including reasonable attorneys’ fees, arising out of any claim resulting from (i) the operation of Client’s business (including goods and services sold or provided by Client), (ii) any violation of any applicable federal or state statute, rule or regulation governing the protection of consumers, including CAN-SPAM, the TCPA, and any rules or regulations promulgated under these or other applicable statutes, (iii) any website or mobile app owned or operated by Client, (iv) any communications from Client, including Notes, (v) any claim that Client, any Client Materials, or Client’s use of the Services infringes or misappropriates the patent, copyright, trademark or other intellectual property rights of a third party; (vi) any information provided in connection with 1099K and tax reporting activities, including without limitation any inaccuracies in such information, and (vii) any actual or alleged breach of or failure to comply with any of Client’s obligations, representations, warranties, or covenants (a) set forth in this Contract, including those in Section 6, or (b) with respect to particular Services, set forth in the Service Descriptions applicable to such Services.

9. Rejection or Suspension of Client’s Participation

9.1. Rejection by SpotOn

SpotOn may refuse to enter into a contract to provide any Services, or particular Services, to Client for any reason, in SpotOn’s sole discretion, without providing any explanation for such refusal.

9.2. Suspension of Services

If SpotOn accepts this Contract and thereby accepts you as a Client, in addition to its termination rights in Section 10, SpotOn, in its sole discretion, may suspend Client’s access to all or any of the Services if Client breaches any of the terms of this Contract or violates any policy or procedure applicable to the use of the Services that may be published by SpotOn from time to time, or if SpotOn suspects that such a breach or violation has occurred or will occur.

9.3. Right to Review Communications to Users

SpotOn reserves the right to review any communications to Users by Client through the use of Services, including any email, text, or other messages sent directly to Users, including Notes, any messages posted on any Program Site, and any material included on any website maintained through the Services. If SpotOn believes, in its sole judgment, that any such communication, message or material contains any Inappropriate Content (as defined in Section 6.8) or was made in violation of this Contract or the applicable Service Descriptions, SpotOn may refuse to post such communication, message, or material, or may prevent its posting or delivery. Notwithstanding the foregoing, SpotOn has no obligation to review any communications, messages, or materials provided or sent by Client, and Client shall remain wholly responsible for all of its communications, messages, and materials. Whether or not SpotOn reviews any such communications, messages, or materials, or does or does not refuse to post any of the foregoing it may have reviewed, SpotOn assumes no responsibility for any communication, message, or material provided by or sent by Client.

10. Term and Termination

10.1. Initial and Renewal Terms

This Contract commences on the Effective Date, as described in Section 13.2 and shall remain in effect so long as Client has contracted for or is receiving or using any Services (“Term”).

10.2. Early Termination by SpotOn

This Contract and any Service Descriptions to which the parties have agreed may be terminated by SpotOn at any time by SpotOn in SpotOn’s sole discretion, without any liability or obligation to Client. Particular Services may also be terminated by SpotOn or the Client as set forth in the applicable Service Descriptions and/or this Contract and any other services offered by third parties through or in conjunction with SpotOn are subject to the terms therein whether viewed and or agreed to by Client through a website, app or otherwise. In the event of a termination without cause by SpotOn as described in this Section 10.2, SpotOn will return any pre-paid subscription fees less any discounts provided by SpotOn.

10.3. Termination by Client

Unless otherwise agreed by Client through the Services or through third party websites and/or applications for services offered through or in conjunction with SpotOn, this Contract may be terminated by Client (i) pursuant to Section 3.4 or (ii) upon delivery of thirty (30) days’ written notice to SpotOn if SpotOn materially breaches this Contract and does not correct such breach within thirty (30) days after receipt of written notice of the breach from Client.

10.4. Consequences of Suspension or Termination; Survival

Upon suspension of Client’s right to use some or all of the Services or expiration or termination of this Contract, SpotOn will remove Client’s access privileges to the suspended or terminated Services and Client’s access to SpotOn Technology applicable to the suspended or terminated Services, and may remove and/or delete (i) all material relating to Client’s use of the suspended or terminated Services uploaded by SpotOn to Program Sites and (ii) all material relating to Client in Services offered directly to Users by SpotOn. Termination of this Contract will not terminate any accrued payment obligations, and all unpaid amounts due by Client will be immediately due and payable. Without limiting the foregoing, if Client terminates this Contract or any Services for which Client has subscribed for any reason other than for cause for SpotOn’s breach or as expressly permitted under this Contract, Client shall owe and pay all Fees due for monthly subscription months for all unpaid months remaining during the Term. Client shall be responsible for the prompt return of, or purchase of, any Hardware loaned, rented, or leased to Client by SpotOn for use with such Services, and the payment of all other Hardware-related Fees as described in Section 1.4. The provisions of Section 1.4 shall not terminate until Client has returned all rented, leased or loaned Hardware to SpotOn and has paid all Fees and charges due under this Contract, including any replacement fees due to SpotOn and, if applicable, the difference between the list price of the Hardware sold to Client and the discounted price paid for such Hardware, as set forth in the Fee Summary. Additionally, the provisions of Sections 3.4, 3.5, 3.7, 3.8, 3.9, 3.10, 4.4, 4.5, 5, 6.5, 6.6, 6.7, 6.9, 6.12, 6.13, 6.14, 7.1, 7.3, 7.4, 7.5, 8, 9.3, 10.4, all sections in Section 11, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 12.9, 12.11, 12.12, 12.13 and all sections in Section 14, Client’s payment obligations, and any other provisions that by their nature or terms should survive, shall survive termination of this Contract for any reason.

11. Arbitration Agreement

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

11.1. Contact SpotOn First

If a dispute arises between Client and SpotOn, SpotOn’s goal is to learn about and address Client’s concerns and, if SpotOn is unable to do so to Client’s satisfaction, to provide Client with a neutral and cost effective means of resolving the dispute quickly. Disputes between Client and SpotOn may be reported to SpotOn’s customer service at Support@SpotOn.com or by calling SpotOn’s customer service representative at 877-814-4102 between 9 a.m. – 5 p.m. Pacific time weekdays (other than holidays). The communication must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. If any dispute is not resolved by such good faith negotiations, the dispute shall be resolved through binding arbitration unless you have otherwise opted out of the Arbitration Agreement (as defined below). The term “dispute” means any dispute, action, claim, or other controversy between you and SpotOn, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under applicable law. For any dispute initiated by SpotOn, SpotOn will send its description of the dispute to the email address associated with your SpotOn account.

11.2. Dispute Resolution and Arbitration Agreement

If any dispute is not resolved by negotiation as described in Section 11.1 within 30 days (or other such time period agreed to by the parties in writing) of notification of such dispute to the other party, such dispute shall be resolved through binding arbitration unless you opt out of this Arbitration Agreement (as defined below) using the process explained below. You understand and agree that you are waiving your right to sue or go to court to assert or defend your rights. Client and SpotOn agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of the Contract, or that in any way relate to the provision or use of the Services, Client’s relationship with SpotOn, or any other dispute with SpotOn, shall be resolved exclusively through binding arbitration in accordance with this Section 11 (“Arbitration Agreement”). The Federal Arbitration Act shall exclusively govern the interpretation and enforcement of the Arbitration Agreement. Except as set forth in Section 11.4 below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

11.3. Right to Opt Out of This Arbitration Agreement

You may opt out of this Arbitration Agreement within the first 30 days after the earliest of the first time you sign up for any program or Service provided by SpotOn. You may also opt out of this Arbitration Agreement within 30 days after we notify you regarding a material change to this Arbitration Agreement. You may opt out by sending an email to arbitration@SpotOn.com or by sending a letter to 100 California St, 9th Floor, San Francisco, CA 94111, Attn: Legal Counsel. You should include your printed name, mailing address, and the words “Reject Arbitration.”

11.4. Waiver of Right to Jury Trial; Waiver of Right to Bring Class Action and Representative Claims

All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, including public injunctive relief. The parties understand that, absent this Arbitration Agreement, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation. CLIENT AND SPOTON HEREBY ACKNOWLEDGE AND AGREE THAT THEY EACH WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THE CONTRACT, ANY SERVICES, ANY TRANSACTIONS IN CONNECTION WITH THE SERVICES, OR ANY RELATIONSHIPS CONTEMPLATED UNDER THE CONTRACT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, CLIENT AND SPOTON ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (1) ARBITRATION WILL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS, JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY; (2) THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE THE INDIVIDUAL PARTY’S CLAIM.

If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

If a court decides that the limitations of this particular paragraph regarding class action waiver are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.

11.5. How Arbitration Works

Either Client or SpotOn may initiate such arbitration by notifying the other party and the alternative dispute resolution provider (“ADR Provider”) that Client or SpotOn wishes to initiate a binding arbitration proceeding. Such ADR Provider shall be JAMS unless otherwise mutually agreed by the parties. The arbitrator shall apply Delaware law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitration shall be held at a location in Chicago, Illinois determined by the ADR Provider, or at such other location as may be mutually agreed upon by Client and SpotOn. In connection with any arbitration proceeding hereunder, the rules of discovery, procedure and evidence of the applicable governing state law will apply and supersede the JAMS Arbitration Rules and Procedures unless the parties mutually agree otherwise. The arbitration will be before a single, arbitrator appointed by mutual agreement of the parties, unless the parties agree otherwise. During the arbitration proceeding, the claimant shall pay the initial case management fee upon filing and the parties shall each pay their respective share of the JAMS fees and expenses as they are periodically billed by JAMS. The prevailing party, as determined by the arbitrator, shall be entitled to recover all of its portion of the paid fees as well as reimbursement of its reasonable attorneys fees from the non-prevailing party. Any judgment on an arbitration award rendered by the arbitrator (whether non-appearance-based or appearance-based) may be entered in any court of competent jurisdiction.

11.6. Law and Forum for Disputes

This Contract shall be governed in all respects, including validity, interpretation, and effect, by the internal laws of the State of Delaware, without regard to any conflicts of laws rules. Exclusive jurisdiction over any claim for injunctive or other equitable relief arising out of or related to the Contract or to enforce a binding arbitration award, shall be in the state or federal courts located in Chicago, Illinois. Client hereby irrevocably submits to the personal jurisdiction of the courts located within Chicago, Illinois for the purpose of litigating all such claims or disputes, including for enforcing an arbitration award, agrees to venue in such courts and will not allege forum non-conveniens or otherwise seek to bring or move any such action in or to any other location.

11.7. Improperly Filed Litigation

All claims Client brings against SpotOn must be resolved in accordance with this Section 11 of this Contract. All claims filed or brought by Client contrary to this Section 11 shall be considered improperly filed and a breach of this Contract. Should Client file a claim contrary to Section 11, SpotOn may recover attorneys’ fees and costs up to $1,000, provided that SpotOn has notified Client in writing of the improperly filed claim and Client has failed to promptly withdraw the claim.

11.8. Arbitration Amendment

SpotOn will provide Client with thirty (30) days’ prior notice of any material changes to this Arbitration Agreement (“Arbitration Amendment”). Client’s continued use of the Services thirty (30) days after receiving such notice will constitute Client’s acceptance of, and agreement to, the Arbitration Amendment. If you do not agree to such Arbitration Amendment, you may opt out of the Arbitration Amendment in accordance with Section 11.3 or otherwise terminate the Standard Terms in accordance with Section 10 of the Standard Terms.

12. General Provisions

12.1. Add-On Services

From time to time, SpotOn may offer add-on services to clients, in some cases by routing clients to a separate website owned and operated by SpotOn. Client understands that its use of these add-on services may be subject to additional terms, in addition to this Contract and the Service Descriptions applicable to the particular Services for which Client has subscribed.

12.2. Notices

All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party to any other party pursuant to this Contract shall be in writing and shall be sent by courier service or mailed by registered or certified mail, return receipt requested, postage prepaid, or transmitted by facsimile or email, addressed to the other party as set forth in Section 14. Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent, or additional persons or addresses for notice Each notice, demand, request or communication sent in the manner described above shall be deemed received at the time shown on the delivery receipt if delivered by courier service; three days after being mailed if sent by registered or certified mail, return receipt requested; at the time shown on the sender’s confirmation of sending notice (if sent by facsimile); or at the time sent by email; provided that any notice of breach or termination, or any demand for indemnification, that is sent via facsimile or email must also be sent promptly by courier service or registered or certified mail, as described in this Section 12.2.

12.3. Effectiveness of Email Communications

Any notice or communication called for by this Contract to be in writing, other than notices of breach or termination, or demands for indemnification, shall be effective if sent by email from an address at the sending party’s domain to an individual designated by the other party for receipt of such notices, at the email address provided by the other party, and need not be sent by any other method. Client must regularly monitor the email address provided to SpotOn and the email address provided must be capable of both sending and receiving messages.

12.4. Severability

If any term, provision, covenant or restriction of this Contract is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Contract shall remain in full force and effect to the maximum extent permitted by law and shall in no way be affected, impaired, or invalidated.

12.5. Relationship between the Parties

The parties agree that each of them is an independent contractor with respect to the other. Neither party is an express or implied agent of the other, has authority to assume or create any obligation, express or implied, on behalf of the other party, or has authority to represent the other party as an agent, employee, or in any other capacity; and neither party will make any representation to the contrary.

12.6. Use of Chat Facilities

SpotOn may provide, as part of the Services, discussion blogs, bulletin board services, chat rooms, and/or other means of communication for use by SpotOn, Client, other customers of SpotOn, and possibly by third parties such as operators of Program Sites (collectively, “Chat Facilities”), but SpotOn is under no obligation to provide any Chat Facilities. If SpotOn does provide Chat Facilities, Client acknowledges that such facilities are not for private communications, that all other persons with access to such Chat Facilities may read any of Client’s communications posted there, that SpotOn does not control or endorse the messages posted by users of the Chat Facilities, and that SpotOn disclaims any responsibility or liability for any messages posted on the Chat Facilities or any action taken as a result of such messages. Client agrees that its use of, and any reliance on, the Chat Facilities or any messages posted on them is at Client’s own risk. Any message posted to the Chat Facilities by Client will be treated by SpotOn as non-confidential. Client hereby consents to SpotOn’s posting of all such messages, with or without attribution to Client, to any and/or all Chat Facilities and for any other lawful purposes, such as advertising, promoting or enhancing the Services. Such consent shall be irrevocable and shall apply to all forms of media and transmission, whether now existing or created in the future. All submissions by Client to Chat Facilities will be subject to Client’s representations, warranties and covenants of noninfringement and no Inappropriate Content, as set forth in Section 6.8. SpotOn may refuse to post any message or may remove any message of Client or any third party at any time, at SpotOn’s sole determination, without any obligation or explanation.

12.7. Notification of Copyright Infringement Under the Digital Millennium Copyright Act (DMCA)

12.8. Marketing

SpotOn reserves the right to use Client’s name in promotional, marketing, and presentation materials for the purpose of marketing SpotOn’s Services and promoting SpotOn, and in communications with investors and prospective investors and with third parties with which SpotOn does, or seeks to do, business. Client agrees that Hardware provided by SpotOn, SpotOn’s websites, and all Program Sites (i) may bear a logo, tagline and/or other message attesting to SpotOn’s role in offering the Services (e.g., “Powered by SpotOn”), (ii) may disclaim any responsibility of SpotOn for Client’s products, services, or communications, and (iii) may contain other information regarding the respective responsibilities of Client and SpotOn.

12.9. No Waiver; Amendment

The failure of either party to exercise in any respect any right or remedy provided for herein or in any Service Descriptions shall not be deemed a continuing waiver or a waiver, partial or complete, of any future breach or any other right or remedy hereunder or thereunder. Any amendment proposed by Client to this Contract or any Service Descriptions will not be effective unless accepted in a writing signed by SpotOn. SpotOn reserves the right, in its sole discretion, to modify or replace any part of these Standard Terms or any Contract Documents at any time, and such modified terms will be effective upon the stated effective date of such change. SpotOn will notify Client of such changes by posting them on the Website and possibly by other means (such as email). Client’s continued use and access of the Services following the effective date of such change to these Standard Terms or other Contract Documents constitutes Client’s acceptance of those changes.

12.10. Force Majeure

Except for each party’s payment obligations, neither party shall be liable under, or in default of, this Contract for failure to perform its obligations under this Contract if such failure arises out of causes beyond such party’s reasonable control and without its fault or negligence. Such causes or conditions shall include, but shall not be limited to, acts of God, terrorism, acts of a government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, electrical power failures, telecommunications or internet outages, riots, or wars.

12.11. Assignment

Client may not assign this Contract to another party without the prior written consent of SpotOn; however, SpotOn may assign this contract without Client’s consent. This Contract shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Contract by Client without the prior written consent of SpotOn may be deemed void by SpotOn.

12.12. Entire Contract

The Contract constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior contracts, agreements, discussions, representations, and understandings, both written and oral, between the parties with respect to the Services, all of which are expressly superseded by the Contract and shall have no force or effect.

12.13. Usage

The words “includes,” “including,” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

13. Acceptance and Effectiveness of this Contract

13.1. By Client

By submitting the Merchant Application or by using SpotOn’s Services after receiving or having access to a copy of this Contract, Client accepts and agrees to be bound by the terms of this Contract. The individual accepting this Contract (by signing up for SpotOn’s Services through the Merchant Application or by using those services after receipt of this Contract) hereby represents and warrants that such person has full power and authority to bind Client by such acceptance.

13.2. By SpotOn

Notwithstanding the acceptance of this Contract by Client, SpotOn has no obligation to deliver Services to Client until the latter of the date that SpotOn (i) has accepted Client and has notified Client of such acceptance or (ii) has otherwise notified Client of the date on which such Services will commence (“Effective Date”).

14. Addresses for Notice

Subject to Section 12.2, all notices to SpotOn shall be sent as follows:

14.1. If to SpotOn

Notices to SpotOn shall be sent to:

SpotOn Transact, LLC

100 California St, 9th Floor

San Francisco, CA 94111

24/7 Phone: 877-814-4102

Facsimile: 415-358-4162

Email: Support@SpotOn.com

14.2. If to Client

Notices to Client shall be sent to the physical address, email address or facsimile number (i) provided by Client on the in the Merchant Application when Client signs up for SpotOn’s Services or (ii) otherwise provided in writing to SpotOn by Client.

Last Updated on December 16, 2024