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This Spotica Online Subscription Agreement ("Agreement") is between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (the "User"), and Spotica Ltd, a New Zealand registered company with registered number 7386437 (the "Supplier").
If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this Agreement on that entity's behalf. If you specify an entity, or you use an email address provided by an entity you are affiliated with in connection with a Subscription purchase or renewal, that entity will be treated as the owner of the Subscription for purposes of this Agreement.
If you use an email address provided by an organization you are affiliated with to order the Online Service individually, you represent that you have authority to use that organization's domain to sign up for a Subscription in your capacity as a member of that organization.
This Agreement is effective from the date a confirmation of Subscription is accepted by The User or the date on which the Subscription is renewed and will continue until terminated in accordance with clause 10.1 (the "Term").
The Supplier hereby grants to all of the Authorized End Users of The User, a non-exclusive, non-sublicensable, non-assignable, royalty-free license to access and use the Spotica online service (the "Service") solely for The User's internal business operations to access or exchange data via the service solely for the purpose of User's internal consumption of the Service and not for general commercial use. The User shall not use the Service for the processing of any mission critical production data.
Support will be provided to The User during normal business hours as per the process published on the Supplier's Internet Website.
4.1 Data Privacy. The Supplier may collect, use and process The User's data only in accordance with the privacy policy as published on The Suppliers website.
4.2 User Data. The User is solely responsible for the content of all User Data. The User will secure and maintain all rights in User Data necessary for the Supplier to provide the Service without violating the rights of any third party or otherwise obligating The Supplier to The User or to any third party. The Supplier does not and will not assume any obligations with respect to User Data or to the User's use of the Product other than as expressly set forth in this Agreement or as required by applicable law.
4.3 Authentication Credentials. The User is responsible for maintaining the confidentiality of any non-public authentication credentials associated with its use of the Service.
By ordering or renewing a Subscription, The User agrees to the Subscription Fee Details for that Subscriptions as agreed with the Supplier, or its authorised reseller if applicable. Unless otherwise specified in those Subscription Fee Details, Service is offered on an "as available" basis.
The User shall pay a monthly subscription fee (the "Subscription Fee") to the Supplier, or its authorised reseller if applicable, according to the Subscription Fee Details for The User's Subscription.
7.1 Annual. Paid in Advance. The User pays for the service in advance for the following 12(twelve) months. Payment is on a periodic basis upfront. For Annual Subscriptions, your Subscription will renew automatically for additional 12 month terms until you terminate the Subscription. The User will be notified through email at least 30 days in advance of any changes to the Annual Subscription rates. New services may be added periodically to the Service. The User will be notified in advance of these new services and any fees that might be charged for using them. However, The User would only be charged if The User elect to use the new services. Any taxes which may result from receiving services at no charge are the sole responsibility of the recipient.
7.2 Pay-As-You-Go. Paid in advance. The User pays for the service in advance for the following month's usage. Payment is on a periodic basis upfront. For Pay-as-you-go, your Subscription will renew automatically for additional 1(one) month terms until you terminate the Subscription. The User will be notified through email at least 30 days in advance of any changes to the Pay-As-You-Go rates. New services may be added periodically to the Service. The User will be notified in advance of these new services and any fees that might be charged for using them. However, The User would only be charged if The User elect to use the new services. Any taxes which may result from receiving services at no charge are the sole responsibility of the recipient.
7.3 Promo Codes. The User might receive the Services for a defined term at a discounted rate (e.g. Beta testing). Promo Code Subscriptions renewals is not permitted.
7.4 Currency. The Service is available globally and will be billed in the currency as noted:
Prices are exclusive of any taxes unless otherwise specified on the invoice as tax inclusive. The User must pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and which is permitted to be collected from The User under applicable law. The User will be responsible for any applicable stamp taxes and for all other taxes that The User is legally obligated to pay including any taxes that arise on the distribution or provision of The Service to its Affiliates. The Supplier will be responsible for all taxes based on its net income, gross receipts taxes imposed in lieu of taxes on income or profits, or taxes on our property ownership.
If any taxes are required to be withheld on payments The User make, The User may deduct such taxes from the amount owed and pay them to the appropriate taxing authority; provided, however, that The User promptly secure and deliver an official receipt for those withholdings and other documents reasonably requested to claim a foreign tax credit or refund. The User must ensure that any taxes withheld are minimized to the extent possible under applicable law.
The user accepts that the Service, its structure, contents, services and the computer programs used in connection with it are protected by intellectual and industrial property rights owned by The Supplier or third parties.
9.1 Acceptable use. You may use The Service only in accordance with this agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in The Service, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of The Services. You may not rent, lease, lend, resell, transfer, or host the Service, or any portion thereof, to or for third parties except as expressly permitted in this agreement or The Service Terms.
9.2 The User will not, for any software associated with the Service, unless authorized in writing by The Supplier or by the owners of the respective rights, or unless it is legally permitted:
10.1 Subscription termination. The User may terminate a Subscription at any time during its Term; however, The User must pay and is liable for all amounts due and owing before the termination is effective.
10.2 Termination for Failure to Pay. The Supplier may terminate this Agreement with immediate effect if The User fails to pay the monthly Subscription Fee on due date.
11.1 Pay Outstanding Amounts. The User shall immediately pay all amounts due and payable as at the date of termination, and any amounts outstanding as a result of, termination.
11.2 Discontinuance of Use. The User shall cease all use of the Service upon the effective date of the termination.
11.3 Recovery of Data. The User will have 30 days from the date of termination to retrieve any of the User data hosted as part of the Service that The User wishes to keep.
12.1 Suspension. The Supplier may suspend The User's use of the Service if:
The Supplier will give written notice before it suspends, except where The Supplier reasonably believes the need exists to suspend immediately. If the User does not fully address the reasons for the suspension within 60 days after suspension, The Supplier may terminate The User's Subscription and delete The Users' User Data without any retention period.
The Supplier may also terminate The User's Subscription if The User's use of the Service is suspended more than twice in any 12-month period.
THE SUPPLIER PROVIDE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF THE SERVICES.
THE USER UNDERSTAND THAT USE OF THE SERVICES IS AT THE USER'S OWN RISK AND THAT THE SUPPLIER PROVIDE THE SERVICES ON AN 'AS IS' BASIS 'WITH ALL FAULTS' AND 'AS AVAILABLE' THE USER BEAR THE ENTIRE RISK OF USING THE SERVICE. THE SUPPLIER DOES NOT GUARANTEE ACCURACY OR TIMELINESS OF THE SERVICES.THE USER ACKOWLEDGE THAT COMPUTER AND TELECOMMUNICAITONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. THE SUPPLIER DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT CONTENT LOSS WON'T OCCUR.
THE SUPPLIER MAKES NO REPRESENTATIONS OR WARANTIES OF ANY KIND THAT THE USE OF THE SERVICE WILL MAKE THE USER IMMUNE FROM HARMFUL OR UNAUTHORIZED EXTRUSIONS, INTRUSIONS, OR ANY OTHER SECURITY EXPOSURES.
These disclaimers will apply except to the extent applicable law does not permit them.
For all Vulnerability Scanning and Penetration Testing activities, the User hereby explicitly authorizes the Supplier to conduct the agreed-upon security assessment and penetration testing activities as outlined in a separate Scope of Work agreement as provided through a Reseller/Partner.
The User acknowledges that the authorised testing activities may involve attempts to circumvent or defeat security mechanisms of the specified systems, networks, and applications. The User agrees that such activities, when conducted within the defined scope and in accordance with the agreed-upon methodologies, do not constitute unauthorised access or misuse of the Customer's systems.
The User agrees to indemnify, defend, and hold harmless the Supplier and its employees, contractors, and agents from any and all claims, demands, damages, liabilities, expenses, or causes of action that may arise from the authorised vulnerability scanning and penetration testing activities conducted under the specific scope of work. This indemnification applies to any legal actions, regulatory investigations, or other proceedings related to the authorised testing activities, provided that the Supplier has acted within the scope of the agreement and has not engaged in wilful misconduct.
The User further agrees not to pursue any criminal charges or civil legal action against the Supplier for activities conducted within the scope of work agreement. This protection extends to any unintended consequences or damages that may occur as a direct result of the authorised testing activities, provided they were carried out in good faith and in accordance with industry-standard practices. This clause shall survive the termination of this agreement.
Our vulnerability scanning and penetration testing services do not guarantee 100% security and are based on reasonable efforts to find security issues within the scope and allocated timeframe. We will not be liable to The User for any loss arising from:
15.1 Claims.
15.2 Limitations. The Supplier's obligations with regards to claims will not apply to a claim or award based on:
15.3 Remedies. If The Supplier reasonably believes that a claim might impact The User's use of The Service, The Supplier may terminate The User's rights to use The Service and then refund any advance payments for unused Subscription rights.
15.4 Obligations. Each party must notify the other promptly of a claim under this Section. The party seeking protection must:
The party providing the protection will:
The parties' respective rights to defence and payment of judgments, or settlement the other consents, to under this Section are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.
16.1 Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement. Neither party will be liable for loss of revenue or indirect, special, incidental, delict, tort (including negligence), consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable. The aggregate liability of each party for all claims under this Agreement is limited to direct damages only.
16.2 Maximum Liability. Neither party's liability under this Agreement will exceed the amount of the fees paid by The User under this Agreement during the 12 months preceding the date upon which the related claim arose. For Services provided free of charge, Spotica's liability is limited to direct damages up to $3,000.00 NSD.
16.3 Exceptions to limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to violation of the other's intellectual property rights.
17.1 Entire Agreement. This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes any previous communication or agreements that may exist.
17.2 Assignment. The User may not assign this Agreement or any of their rights or obligations under this Agreement without The Supplier's written consent.
17.3 Consent to Supplier fees. When The User places an order, the user may be given the opportunity to identify a Supplier of service associated with its Subscriptions. By identifying a Supplier of service, directly or by authorizing a third party to do so, the User consents to The Supplier paying fees to the Supplier of service. The fees are for pre-sales support and may also include post-sales support. The Suppliers' recommended list prices for the Service is the same whether or not The User identifies a Supplier of service. This provision does not apply in respect of resellers.
18.1 Method of Notice. The parties shall give all notices and communications between the parties in writing by:
18.2 Receipt of Notice. A notice given under this Agreement will be effective on:
This Agreement shall be governed, construed, and enforced in accordance with the laws of New Zealand without regard to its conflict of laws rules.
If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
The failure or neglect by a party to enforce any of its rights under this Agreement will not be deemed to be a waiver of that party's rights.
A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is:
Your privacy is important to us. This privacy statement explains the personal data Spotica processes, how Spotica processes it, and for what purposes.
References to Spotica services in this statement include Spotica services, websites and software.
Spotica collects data from you, through our interactions with you and through our services. The data we collect depends on the context of your interactions with Spotica and the choices you make, including your privacy settings and the features you use. We may also obtain data about you from third parties
Spotica requires some personal data to provide you with a service. If you choose not to provide data required to provide you with a feature, you cannot use the service or feature. Likewise, where we need to collect personal data by law or to enter into or carry out a contract with you, and you do not provide the data, we will not be able to enter into the contract; or if this relates to the current Spotica service you’re using, we may have to suspend or cancel it. We will notify you if this is the case at the time.
Spotica uses the data we collect to provide you to:
We also use the data to operate our Software as a Service (“SaaS”) business, which includes analyzing our performance, meeting our legal obligations, developing our workforce, and doing research.
In carrying out these purposes, we combine data we collect from different contexts or obtain from third parties to give you a more seamless, consistent, and personalized experience, to make informed business decisions, and for other legitimate purposes.
Our processing of personal data for these purposes includes both automated and manual (human) methods of processing. Our automated methods often are related to and supported by our manual methods. For example, our automated methods include the advisories delivered through our knowledge engine. The data is used to build, train, and improve the accuracy of these advisories.
We share your personal data with your consent or to complete any transaction or provide any service you have requested or authorized. We also share data with Spotica-controlled affiliates and subsidiaries; with vendors working on our behalf; when required by law or to respond to legal process; to protect our customers; to protect lives; to maintain the security of our services; and to protect the rights and property of Spotica and its customers.
You can also make choices about the collection and use of your data by Spotica. You can control your personal data that Spotica has obtained, and exercise your data protection rights, by contacting Spotica or using various tools we provide. In some cases, your ability to access or control your personal data will be limited, as required or permitted by applicable law. How you can access or control your personal data will also depend on where it is used. For example, you can:
Not all personal data processed by Spotica can be accessed or controlled via the tools above. If you want to access or control personal data processed by Spotica that is not available via the tools above or directly through the Spotica service you use, you can always contact Spotica at the address in the ‘Contact us’ section on our Website at http://www.spotica.io
Cookies are small text files placed on your device to store data that can be recalled by a web server in the domain that placed the cookie. We use cookies and similar technologies for storing and honouring your preferences and settings, enabling you to sign in, providing interest-based advertising, combating fraud, analysing how our services perform, and fulfilling other legitimate purposes. Our websites may include web beacons, cookies, or similar technologies from third-party service providers.
You have a variety of tools to control the data collected by cookies, web beacons, and similar technologies. For example, you can use controls in your internet browser to limit how the websites you visit are able to use cookies and to withdraw your consent by clearing or blocking cookies.
If you lose access to your work account (in event of change of employment, for example), you will lose access to the Spotica service and the content associated with it, including those you acquired on your own behalf, if you used your work account to sign in to the service.
When you use the Spotica service you’re subject to your organization's policies, if any. You should direct your privacy inquiries, including any requests to exercise your data protection rights, to your organization’s administrator. Spotica is not responsible for the privacy or security practices of our customers, which may differ from those set forth in this privacy statement.
When you use the Spotica service as provided by your organization, Spotica’s processing of your personal data in connection with the service is governed by a contract between Spotica and your organization. Spotica processes your personal data to provide the service to your organization and you, and for Spotica’s legitimate business operations related to providing the service.
If you have questions about Spotica’s legitimate business operations in connection with providing services to your organization, please contact Spotica via the ‘Contact us’ section on our Website at http://www.spotica.io/
With a Spotica account, you can sign in to Spotica services. Personal data associated with your Spotica account includes credentials, name and contact data, payment data, device and usage data, information about your activities. Signing in to your Spotica account enables personalization and allows you to make payments using payment instruments stored in your Spotica account, and enables other features.
Spotica is a cloud-based service, and updated regularly, providing you with the latest improvements and features. In order to provide this computing experience, we collect data about you, your device, and the way you use Spotica. Spotica gives you choices about the personal data we collect and how we use it. Note that if your service is managed by your organization, your organization may use centralized management tools to access and process your data and to control device settings (including privacy settings), device policies, software updates, data collection by us or the organization, or other aspects of your device. Additionally, your organization may use management tools to access and process your data from that device, including your interaction data, diagnostic data, and the contents of your communications and files.
General. When you as a customer tries, purchases, uses, or subscribes to the Spotica Service, or obtain support for or professional services with such services, Spotica receives data from you and collects and generates data to provide the service (including improving, securing, and updating the service), conduct our legitimate business operations, and communicate with you. For example:
The Spotica Knowledge engine uses de-identified data in a de-normalised way to identify, process, and act on; learning and adapting over time.