SERVICE. The Service is a communications and logistics platform which enables the connection between our Users for the purpose of consummating a spot trade. A detailed description of the Service is set forth on the Company’s website. Subject to the terms of this Agreement, the Company shall use reasonable efforts to provide the Service 7 days a week, 24 hours a day, subject to unavailability for maintenance, repairs, upgrades, events caused by User, and events beyond the Company’s control. The Service is strictly limited to:
- informing our Users who seek space in a given location of the apparent availability of such space;
- enabling our Users who occupy space to make such space available to other Users;
- enabling our Users to make arrangements with each other to consummate a spot trade transaction; and
- facilitating the payment-for-information and spot trade logistics in conjunction with Stripe, BetrSpot’s payment processor.
While we employ technology to monitor the availability of space and aim to meet all Users’ expectations, some aspects of the Service are beyond our control. Despite the convenience of our Service, the decision to consummate a spot trade and to utilize a particular location remains your sole responsibility and you assume that risk independently from the Company, and without liability to the Company. Likewise, the allocation of spaces within a venue, line or private area is solely at the behest of the legal owner or operator of such location. We therefore cannot be responsible for any consequences arising from the lack of available space. Moreover, the Company makes no representations about the suitability, reliability, timeliness or ultimate consummation of a spot trade requested by Users using the Services.
In particular, BetrSpot DOES NOT:
- provide a spot reservation service. Services related to departing from a space, trading, exchanging, swapping or releasing spaces are provided by others and they are in no way our agents or acting on our behalf;
- conduct any form of background check on our Users;
- accept any responsibility whatsoever regarding the safety of persons or property in the locations selected by our Users;
- guarantee the actual availability of a specific space in the location you selected;
- assume any responsibility whatsoever for the consequences of not being able to find a spot, or the physical trading of a particular space with another individual;
- guarantee that a spot will accommodate your person or group;
- hold space for you at any time, nor do we suffer penalties, fines, or liabilities incurred with unauthorized or late use of any property found or listed on our community; or
- guarantee that any spot trade in which you engage will be fully consummated or that such spot trade will not be precluded by your spot trade partner or venue owner.
SUPPORT AND MAINTENANCE. The Company shall provide a telephone number or email address for ordinary inquiries and remote problem support for the Service. In no event shall the Company be responsible for support, maintenance, repairs, or otherwise for any service provided by a third party, or for issues or problems beyond the Company’s direct control. The Company may, at its option, charge Users at the Company’s then-current rates for any support.
USER OBLIGATIONS. User agrees to use the Service (including content stored, viewed, accessed and transmitted using the Service) only in compliance with the terms of this Agreement and all applicable laws and regulations. As between the parties, User is solely responsible for (a) all use (whether or not authorized) of the Service; (b) all content that is stored, viewed, accessed or transmitted using the Service; and (c) all third party charges incurred for services accessed using the Service. User shall not upload, post, transmit or otherwise make available on or through use of the Service any material that violates or infringes in any way upon the rights of others, that is unlawful, threatening, abusive, harassing, libelous, invasive of privacy or publicity rights, or obscene, that constitutes hate speech, that is otherwise offensive or objectionable, or that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation. The Company may remove, or demand the removal of, content that in its judgment violates these standards or may cause liability for the Company. In addition, User is solely responsible for safeguarding any access codes or passwords associated with the Service and will immediately notify the Company within 24 hours with written communications if any such access code or password is lost or stolen.
TERM. This Agreement shall commence upon registration and agreement to these terms on the Company’s website (www.betrspot.com) and shall remain in effect until terminated by either party in accordance with Section 8 of this Agreement (the “Term”).
BETRSPOT FEES/PAYMENT PROCESSING FEES. There are no fees for downloading the Company’s consumer Android or iPhone mobile applications. The Company does charge a one-time logistics fee which the offering party or “spot requester” is required to pay following a successful spot trade. The one-time logistics fee for each spot trade shall be in an amount equal to 10% of the amount the “occupying party or “spot poster” has stipulated as a release or trade incentive and will be clearly communicated to the offering party for approval prior to the submission of the offering party’s offer. The occupying party or “spot poster” is required to pay the transaction’s payment processing fees that are charged by Stripe, the Company’s payment processor. For further information, please visit Stripe’s website located at www.stripe.com. Any and all disputes, requests for refunds or claims regardless of their merit, regarding the transfer of one or more spaces are solely between the party acting as the occupying party or “spot poster,” and the party acting as the offering party or the “spot requester.” The Company provides a community with a unique logistics and communication platform and does not serve as an intermediary payment provider. Accordingly, you hereby acknowledge and agree that neither the Company nor any of its officers, managers, directors, members, stockholders, employees, advisors or agents shall be liable or held responsible for any monies transferred electronically or physically out of your possession or alternatively, accepted in conjunction with the transfer or exchange of space between two parties. However, the Company shall have the right at will to implement additional Service Charges and will provide User with at least thirty (10) days’ notice of any such fees.
PROPRIETARY RIGHTS; CONFIDENTIALITY; SOFTWARE.
(a) Proprietary Rights. All materials, including but not limited to any software, data or information developed or provided by the Company, any access codes or passwords used to access the Service or otherwise provided by the Company, and any know-how, methodologies or processes, including but not limited to all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein or related thereto, used by the Company to provide or otherwise relating to the Service (collectively “BetrSpot Materials”) shall remain the sole and exclusive property of the Company or its suppliers. All rights in the BetrSpot Materials not expressly granted to User are reserved by the Company. User may use the BetrSpot Materials solely for User’s personal use of the Service in accordance with this Agreement. User may not disassemble, decompile, reverse engineer, tamper with, remove any markings or labels on, reproduce, modify or distribute, sell, lease or license, the BetrSpot Materials, in whole or in part, or use them for the benefit of any third party, or permit any third party to do the same.
(b) Confidentiality. User acknowledges that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agrees that User will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to User’s authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. User shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. User shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. User shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” shall mean any and all BetrSpot materials, other confidential and proprietary information, and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
(c) Software. The Company grants to User a limited, non-exclusive and non-transferable license to use the software provided as a component of the Service, in object code form only, solely for User’s personal use of the Service during the Term in accordance with this Agreement.
TERMINATION. The Company may terminate this Agreement and the Service at any time upon written notice to User. In the event that User fails to comply with applicable laws or regulations or this Agreement, the Company may suspend or discontinue the Service in whole or in part at will without advance notice to User. Upon the termination or expiration of this Agreement, the Company’s obligations hereunder shall cease.
INDEMNIFICATION. User agrees to defend, indemnify and hold harmless the Company and its affiliates, service providers, vendors and suppliers, and each of their respective officers, directors, managers, members, shareholders, employees, agents, attorneys, independent contractors, subsidiaries, and affiliates from and against any and all claims, losses, liabilities, damages and expenses, including without limitation attorneys’ and other professionals’ fees, arising out of or relating to: (a) the use of the Service by User; (b) the User’s inability to use the Service; (c) any breach by User of this Agreement; or (d) any injury or damage caused by User or its agents or representatives.
DISCLAIMER OF WARRANTY. USER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE AND THE INTERNET, AND ACCESSES AND USES THE SAME AT ITS OWN RISK. THE COMPANY EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE CONTENT VIEWED, ACCESSED, TRANSMITTED OR STORED THROUGH THE SERVICE OR THE INTERNET, FOR ACTIONS TAKEN ON THE INTERNET, OR FOR THIRD-PARTY SERVICES, AND THE COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY THEREFOR. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICE AND ANY OTHER MATERIALS USED IN CONNECTION WITH THE SERVICE ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY THE COMPANY, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET USER’S REQUIREMENTS, WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, OR WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT ANY MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. USER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS OVER, AND DATA AND CONTENT STORED THROUGH USE OF, THE SERVICE MAY NOT BE SECURE. USER FURTHER ACKNOWLEDGES AND AGREES THAT ANY MATERIAL OR DATA UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT USER’S OWN DISCRETION AND RISK. USER WILL BE SOLELY RESPONSIBLE FOR LOSS OF DATA OR ANY DAMAGE TO BETRSPOT’S COMPUTER SYSTEM OR THAT RESULTS FROM THE UPLOADING, DOWNLOADING OR OTHER TRANSMISSION OF SUCH MATERIALS OR DATA. IN ADDITION, USER ACKNOWLEDGES AND AGREES THAT THE COMPANY’S THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO USER UNDER THIS AGREEMENT, AND BETRSPOT DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY OR QUIET ENJOYMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY. USER ACKNOWLEDGES AND AGREES THAT THE COMPANY IS ONLY WILLING TO PROVIDE THE SERVICE IF USER AGREES TO CERTAIN LIMITATIONS OF THE COMPANY’S LIABILITY TO USER AND THIRD PARTIES. THEREFORE, USER AGREES NOT TO HOLD COMPANY AND/OR ITS AFFILIATES, SERVICE PROVIDERS, VENDORS AND SUPPLIERS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, INDEPENDENT CONTRACTORS, SUBSIDIARIES, AND AFFILIATES LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO USER’S OR ANY OTHER PARTY’S USE OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER, ANY DISPUTE WITH ANY USER, ANY DISPUTE WITH ANY VENUE OWNER OR OPERATOR OR ANY DISPUTE WITH ANY THIRD-PARTY PAYMENT PROCESSOR. UNDER NO CIRCUMSTANCES WILL THE COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH USER’S USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY USER TO COMPANY DURING THE TWO (2) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
RELEASE. The Service is only a platform for connecting Users. Because the Company is not involved in the actual contact between Users or in the consummation of a spot trade, in the event that you have a dispute with one or more Users, you release Company (and our officers, directors, managers, members, shareholders, agents, investors, attorneys, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Company expressly disclaims any liability that may arise between Users of its Service.
PRIVACY NOTIFICATIONS. Personally identifiable information of User will be collected during registration and exchanged with respective parties in and during the spot trading process. It will be used or disclosed but in accordance with applicable laws, as described in the Privacy Notice, which is incorporated herein by reference. User hereby consents to all actions, use and disclosure permitted under the Privacy Notice.
FORCE MAJEURE. The Company shall have no liability to User or User’s possessions hereunder due to circumstances beyond its control, including, but not limited to, acts of God, terrorism, flood, fiber cuts, acts or omissions of ISPs, suppliers or vendors, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, any unauthorized access to or destruction or modification of the Service, in whole or in part, any failure of heat, air conditioning, or power supply, or act or failure to act of User.
REGULATORY AND LEGAL CHANGES. In the event of any change in applicable law, regulation, decision, rule or order that increases the cost of the Service or otherwise affects the provision of the Service, User acknowledges and agrees that the Company may, without advance notice, pass through to User any such increased costs or modify or discontinue the Service.
ENTIRE AGREEMENT. This Agreement, including without limitation all documents attached hereto or otherwise incorporated herein by reference, sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous written or oral agreements or representations between the parties with respect hereto.
PROPER AGE OF USE. User must acknowledge that User is of at least 18 years old in order to use the Company’s applications and website. Any or all misrepresentations will be grounds for immediate account suspension and or account termination.
MISCELLANEOUS. This Agreement shall be governed and construed in accordance with the internal laws of the Commonwealth of Massachusetts excluding its conflicts of law principles. The Company and User both submit to personal jurisdiction in Massachusetts and agree that any claim or dispute relating to this Agreement, the Service shall be brought only in a court of the Company’s choosing. All claims under this Agreement must be initiated not later than two (2) months after the claim arose. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. User may not assign this Agreement without the prior written consent of the Company and any assignment in violation of this Section shall be null and void. The Company may assign its rights and obligations under this Agreement without the prior written approval of or notice to User. The parties to this Agreement are independent contractors agreeing not to be compensated for their testing services. User shall make no press release, public announcement or other public statements regarding this Agreement without The Company’s prior written consent. There are no third party beneficiaries to this Agreement. Any notice under this Agreement shall be given in writing. Except as otherwise permitted herein, notices shall be delivered to User and the Company at the respective addresses set forth on the Order Form or to such other address as is provided by one party to the other in writing, provided that notices to User may be sent by email to the email address of User set forth on the Company’s application Register Form or to such other email address as is provided by User to the Company in writing. The provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13, 17 and 18 shall survive the termination or expiration of this Agreement. Except as otherwise set forth in this Agreement, no modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.