General Terms and Conditions

These general terms and conditions apply to all assignments accepted or carried out by Spotler or one or more of its affiliated companies (hereinafter collectively and individually also referred to as ‘Spotler’), including any follow-up, modified or supplementary assignments.

The Spotler entity that is party to the Agreement shall be the entity identified as the contracting party in the Quotation; this may be Spotler Nederland B.V. or an affiliated Spotler entity. These general terms and conditions form an integral part of all agreements entered into by or on behalf of any Spotler entity. The applicability of purchase or other general terms and conditions of Spotler’s customer is expressly rejected, unless explicitly accepted by Spotler.

The terms beginning with a capital letter in these general terms and conditions and the Agreement have the meaning as defined in Chapter V (Definitions).

Spotler provides, based on software-as-a-service, a range of applications and modules (‘the Platform’) that solve a broad spectrum of challenges in B2B, e-commerce, and customer service.

I         GENERAL PROVISIONS

1.            Quotation and Agreement

1.1.      All negotiations, price quotations and offers are revocable and without obligation. Requesting a quote or other invitation to make an offer does not bind Spotler.

1.2.      Information stated in images, promotional materials, websites and the suchlike is not binding for Spotler unless expressly stated otherwise or specified in the offer for the Customer. All prices stated on the Website and in quotations, offers, and other materials are subject to typographical and calculation errors, so Spotler is not bound by (price) information containing typographical and calculation errors.

1.3.      The General Terms and Conditions are part of the Agreement and apply to all negotiations, price quotations, offers, and other agreements related to the Platform and/or the Services, unless parties have expressly agreed otherwise. Spotler is entitled to compensation for legal costs if the Customer engages in extensive negotiations regarding the General Terms and Conditions and/or a separate Data Processing Agreement.

1.4.      Spotler is entitled to modify the General Terms and Conditions. Spotler will notify the Customer at least two (2) months before the intended effective date, specifying the nature of the modification. Notification may be given via the Platform, or in writing (including by email) to a contact person known to Spotler or to any other representative of the Customer. Notification given in accordance with this clause constitutes valid notice to the Customer. The Customer may object to the proposed modification by written notice to Spotler within twenty-one (21) days of the notification, stating the grounds for its objection. If the Customer does not object within this period, the Customer is deemed to have consented to the modification. Following a timely objection, Spotler may, at its discretion: (i) withdraw or amend the proposed modification; (ii) continue to apply the version of these General Terms and Conditions in force prior to the modification in its relationship with the Customer; or (iii) maintain the modification in relation to the Customer. Spotler will inform the Customer of its decision no later than ten (10) days before the intended effective date. If Spotler does not respond within this period, Spotler is deemed to have chosen option (ii). Only if Spotler maintains the modification in relation to the Customer pursuant to (iii) may the Customer terminate the Agreement to which the modified General Terms and Conditions apply, with effect from the effective date of the modification, by written notice received by Spotler before that date. Absent such timely termination, the modification takes effect as of the effective date. Termination under this clause does not affect any other Agreement between the parties. The right of termination set out above does not apply where the modification: (a) is required by applicable law or regulation; (b) is necessary to address security vulnerabilities or threats; (c) is exclusively to the benefit of the Customer; or (d) concerns updates to third-party terms that Spotler is required to pass on. By way of exception to the notice period set out above, Spotler may implement modifications falling within categories (a), (b) or (c) with immediate effect, or on such shorter notice as Spotler reasonably determines.

1.5.      The Customer shall timely provide Spotler with all information reasonably required for the performance of the Agreement, whether requested by Spotler or not.

1.6.      An agreement is only concluded after either (i) the Customer has accepted a written offer from Spotler in writing, (ii) the parties have signed a written contract, or (iii) Spotler carries out a written assignment from the Customer, or (iv) the Customer has completed the registration process on the relevant Website.

1.7.      Additional assignments or orders must always be placed with Spotler in writing. In all cases, Spotler is only bound after it has confirmed an assignment, order or agreement in writing (including by email). Verbal commitments only bind Spotler after it has confirmed these in writing.

2.           Information Requirements

2.1.      To determine the intended use of the Platform, the Customer has sufficiently informed Spotler of:

a.           the objectives and requirements based on which the Customer wishes to enter into the Agreement;

b.           the Customer’s organisation, insofar as relevant for the Agreement.

2.2.      The Customer has provided Spotler with sufficient and accurate information concerning clause 2.1. The Customer shall provide Spotler with additional information upon request, to the extent deemed relevant for the performance of the Agreement. In case of any ambiguity, Spotler will make inquiries with the Customer.

2.3.      Customer confirms it has selected the Platform based on its own assessment and has not relied on any representations outside the Agreement and these General Terms and Conditions.

2.4.      In the case of a tender as meant in a public procurement act, the information obligation in this Article 2 is limited by the content, nature and scope of the information provided in the tender documents.

2.5.      Parties shall keep each other informed of developments and changes that may be relevant to the performance of the Agreement.

3.           Rates, prices and payment

3.1.      All rates and prices applied by Spotler are exclusive of VAT and any other governmental levies, which are for the Customer’s account.

3.2.      Up to the moment of the Agreement’s execution, Spotler is entitled to adjust rates and prices in response to price changes in hardware, labour wages, exchange rates, insurance premiums, fiscal charges, social insurance premiums, import duties and other governmental levies.

3.3.      If the Customer uses purchase orders as a basis for payment, the Customer shall ensure that a purchase order number is provided to Spotler on time.

3.4.      Spotler may adjust its rates and prices once per calendar year in line with inflation, with effect from a date determined by Spotler. Spotler will notify the Customer of the adjustment before it takes effect. Unless agreed otherwise in the Agreement, the index will be: (i) for Customers established in the Netherlands: the “Dienstenprijsindex” (DPI, 2021=100), or its logical successor – as published by Statistics Netherlands (CBS); and (ii) for other Customers: the Services Producer Price Index (SPPI) published by Eurostat or an equivalent national index. Spotler may determine which index figure to apply, including the annual average, a provisional figure, or a twelve-month rolling average where no definitive annual average is available yet. If the index used ceases to be published, is rebased, or is no longer representative, Spotler may apply a substitute index. An adjustment made in accordance with this clause does not entitle the Customer to terminate the Agreement.

3.5.      If Spotler (a) provides a logical successor for the Platform, (b) adds substantial application possibilities to the Platform, or (c) has had to implement or develop more than regular ‘security & compliance’ measures or related activities, Spotler may increase the applicable rates and prices. If such an increase exceeds fifteen percent (15%), the Customer may terminate the Agreement in writing with effect from the date the increase takes effect, by written notice received by Spotler before that date. Spotler will inform the Customer of any increase under this Article at least one (1) month before it takes effect.

3.6.      Spotler is authorised to engage third parties in the performance of the Agreement, the costs of which shall be charged to the Customer. Spotler will consult with the Customer regarding the costs thereof prior to engaging the third party.

3.7.      The compensation for the Platform is due upon Delivery or on a date specified in the Agreement. Compensation for Services will be regularly invoiced or charged after performance.

3.8.      The Customer shall pay amounts due to Spotler under the Agreement within thirty (30) days of the invoice date.

3.9.      Spotler will send the invoice electronically so that they may be received and processed electronically, in accordance with any specifications provided by the Customer. The Customer agrees to this method of invoicing.                

3.10.   The Customer waives any right to suspend or set off any payment.

3.11.   If the Customer fails to pay an invoice when due, the Customer will be in default without further notice being required. Spotler is entitled to statutory (commercial) interest and the reimbursement of all reasonable costs of collection and enforcement, including extrajudicial costs, in accordance with applicable law. This includes, where applicable, the fixed compensation for recovery costs provided for under national law implementing Directive 2011/7/EU.

3.12.   All further legal costs incurred by Spotler, including attorney fees, due to the Customer’s failure to meet payment obligations, shall be borne by the Customer.

3.13.   If the Customer fails to pay any amounts owed, Spotler shall be entitled to suspend the performance of the Agreement until such time as Spotler has received said payment, without being liable for any damages resulting therefrom.

3.14.   The amounts owed by the Customer are immediately payable if the Customer applies for (provisional) suspension of payments or bankruptcy, is declared bankrupt, if all assets of the Customer are seized, and if the Customer’s business is discontinued, dissolved and/or liquidated.

4.           Delay in the Performance of the Agreement

4.1.      In the event of an anticipated delay in the provision of the Platform, Spotler shall inform the Customer of this delay, stating the cause and consequences thereof. Spotler shall also propose measures to the Customer to prevent (further) delay. The Customer shall not be entitled to any compensation (for damages) for such delay.

4.2.      Agreed terms are only considered fixed and fatal if explicitly agreed in writing.

5.           Intellectual Property Rights

5.1.      All intellectual property rights relating to the Platform, Spotler’s Websites, any provided documentation or results of the Services shall vest in Spotler or its suppliers, unless explicitly agreed otherwise in writing. Any right of use granted to the Customer shall be non-exclusive, non-transferable, non-pledgeable, non-sublicensable and non-resaleable.

5.2.      Spotler shall indemnify the Customer against any claim based on an alleged infringement of intellectual property in connection with the Platform, provided that the Customer:

a.           promptly notifies Spotler in writing of such claim; and

b.           leaves the matter entirely to Spotler and provides all cooperation required thereof; and

c.           makes no statements, commitments or acknowledgements of rights or facts without Spotler’s prior written consent.

5.3.      The indemnification mentioned in the previous clause does not apply to software originating from Spotler’s suppliers.

5.4.      If Spotler establishes that the claim or assertion is justified, Spotler shall – at its discretion – either ensure that the Customer obtains the right to continue using the Platform, or modify the Platform so that it no longer infringes, or replace it.

5.5.      In the event of an alleged infringement of a third party’s intellectual property right, Spotler shall, at its own expense, take all measures that may contribute to preventing stagnation of the Customer’s business operations and to limiting costs and/or damages to be incurred by the Customer as a result thereof.

5.6.      The indemnity regulated by this article does not apply if the claim or assertion results from using the Platform in combination with other products and/or services not originating from or via Spotler.

5.7.      Under no circumstances shall Spotler bear any further liability concerning an infringement of an intellectual property right than that described in this article.

6.           Reference in Publications and/or Advertising

6.1.      Spotler may mention the Customer’s name as a reference in publications (including press releases) or marketing and advertising materials, unless the Customer explicitly objects thereto.

7.           Confidentiality

7.1.      Parties shall not disclose to third parties or make public in any way information that comes to their knowledge during (the performance of) the Agreement and of which they know or reasonably should suspect its confidential nature, unless disclosure is required by law or court order. For the purposes of this provision, a court order includes any decision by a body competent to settle the dispute pursuant to Article 18, if the parties have agreed to an alternative form of dispute resolution.

7.2.      Parties shall obligate their Personnel and the contractors (including self-employed persons, freelancers) engaged by them in connection with the Agreement over whom they have authority, to comply with the confidentiality obligation as set out in the previous paragraph.

7.3.      Parties shall not make any public statements or announcements nor any communications to third parties regarding the (performance of the) Agreement and matters related thereto without the prior consent of the other party, except for the mention of the Customer’s name in Spotler’s advertising materials (as referred to in Article 6). Such consent shall not be required if the disclosure of information is based on a legal obligation, in which case the party obligated to disclose shall notify the other party well in advance of the disclosure, to allow the latter to take appropriate measures.

7.4.      Spotler will, upon first request, make available to the Customer all data in its possession within the context of the performance of the Agreement, including any copies made thereof.

8.           Personal Data and Data Protection

8.1.      This Article 8 constitutes the data processing agreement (‘DPA’) between the parties within the meaning of Article 28(3) General Data Protection Regulation (‘GDPR’), unless the parties have entered into or subsequently enter into a separate data processing agreement, which shall then apply instead.

8.2.      Insofar as Spotler acts as a processor, processing personal data on behalf of the Customer, within the meaning of the GDPR and in the context of the performance of the Agreement, Spotler shall ensure the implementation of appropriate technical and organisational measures so that the processing meets the requirements of the GDPR and ensures the protection of the rights of the data subject.

8.3.      Spotler will not use, or cause to be used, any personal data made available by or via the Customer in any manner other than for the performance of the Agreement, unless otherwise required by law.

8.4.      Spotler will only process personal data made available based on written instructions from the Customer as data controller. The Agreement, including the measures described in Article 36.4, shall be deemed by the parties to constitute such instruction.

8.5.      Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the varying likelihood and severity of the risks to rights and freedoms, Spotler shall implement appropriate technical and organisational measures to secure and maintain security of the personal data processed in and through the Platform on behalf of the Customer.

8.6.      The responsibility for the data processed using the Platform or Services of Spotler lies entirely with the Customer. The Customer warrants to Spotler that the content, use and/or processing of the data is not unlawful and does not infringe any rights of any third party. The Customer shall indemnify and hold harmless Spotler against any legal claims by third parties, on whatever grounds, in connection with such data or the performance of the Agreement.

8.7.      Spotler shall be entitled to engage third parties and/or subprocessors in connection with the performance of the Agreement and thereby – where applicable – for the processing of personal data. Spotler is responsible for the subprocessors it engages and will impose on them similar terms and responsibilities proportionate to the services to be performed by the subprocessor as those applicable to Spotler under this Article 8.

8.8.      By entering into the Agreement, the Customer consents to the subprocessors engaged by Spotler. The Customer hereby also grants general consent for the further engagement or replacement of subprocessors in categories specified in the Agreement. Spotler shall inform the Customer of any intended engagement of new subprocessors. If the Customer has reasonable objections to a new subprocessor, it shall notify Spotler immediately. Spotler shall consider the Customer’s objection, but cannot guarantee that the new subprocessor will not be engaged.

8.9.      Spotler will assist in fulfilling the Customer’s obligations when data subjects exercise their privacy rights (such as the right of access, rectification, erasure and data portability). Spotler will not charge more than reasonable costs for this.

8.10.   Spotler will assist in complying with the obligations regarding the notification of data breaches. Spotler will report data breaches to the Customer without undue delay and cooperate with investigations and analysis.

8.11.   The Customer shall ensure adequate compliance with applicable legal retention periods regarding data used or entered. Spotler is not subject to any legal retention obligation for data entered by or on behalf of the Customer.

8.12.   The Customer shall determine what happens to the personal data after termination of the Agreement, unless Spotler is under a legal obligation to retain such data.

8.13.   Regarding Spotler’s potential liability concerning the processing of personal data, the provisions of Article 10 of these General Terms and Conditions shall also apply.

8.14.   The Customer shall always remain entitled to the data entered by it in the Platform, even if such data has been entered into the Platform by Spotler on behalf of the Customer. Such data also includes the reports that the Customer generates or retrieves from the Platform.

8.15.   The data entered by the Customer through the Platform shall be stored in a database managed by third party/parties engaged by Spotler. The Customer has consented to such hosting party/parties.

9.           Audit

9.1.      Spotler will provide all cooperation to competent supervisory authorities (including financial market regulators and data protection authorities) in any investigation. Spotler shall therefore comply with any duly issued instructions from these authorities relating to the Services to be provided and the Platform made available by Spotler under the Agreement, provide all requested information and grant access to relevant data and documents. All this to the extent reasonably possible and subject to confidentiality obligations under law or towards third parties. Spotler may charge the Customer for any costs incurred as a result thereof.

9.2.      During the term of the Agreement, the Customer may have an audit conducted once per year to assess how Spotler performs its obligations under the Agreement. The Customer shall only conduct or have such an audit conducted if it has reasonable grounds to doubt the information provided by Spotler and the parties have been unable to resolve such doubt through mutual consultation. The Customer shall ensure that the auditors sign a confidentiality agreement in advance. The Customer shall have the audit conducted exclusively by an independent registered accountant or EDP auditor. An audit, as referred to in this clause, shall be announced by the Customer at least one month in advance. Spotler shall reasonably cooperate with the audit. The Customer shall ensure that Spotler’s business operations are not disrupted unless such disruption cannot be avoided. The Customer shall bear the costs of the audit, including any costs incurred by Spotler as a result of the audit.

9.3.      If the conclusions of the audits referred to in this article establish that Spotler has seriously failed to perform its obligations under the Agreement, then any costs incurred by Spotler as a result of the audit shall be borne by Spotler. All other costs related to the audit shall be borne by the Customer.

10.         Liability

10.1.   The total liability of Spotler due to an attributable failure to perform the Agreement or on any legal ground whatsoever, explicitly including any failure to comply with a warranty obligation agreed with the Customer, shall be limited to compensation for direct damage up to a maximum of the amount the Customer has paid to Spotler in the twelve (12) months preceding the incident causing the damage for the (Platform) product or specific Service that caused the damage (excluding VAT). A series of related incidents shall be considered as a single incident.

10.2.   In no event shall the total liability of Spotler for direct damage, on any legal grounds, exceed € 100.000 for all events occurring within any period of twelve (12) months.

10.3.   The total liability of Spotler for damage due to death, physical injury or material damage to property shall never exceed € 200.000 for all events occurring within any period of twelve (12) months, save to the extent such limitation is not permitted under applicable law.

10.4.   Any liability of Spotler for indirect damages is excluded. Indirect damages shall at least include: consequential damages, loss of profit, lost savings, reduced goodwill, damages due to business interruption, damages resulting from claims by the Customer’s customers, damages relating to the use of third-party items or software prescribed by the Customer to Spotler and damages relating to the engagement of suppliers prescribed by the Customer to Spotler as well as damages relating to mutilation, destruction or loss of data or documents.

10.5.   The exclusions and limitations referred to in this Article 10 shall cease to apply if and to the extent that the damage results from the intent or wilful recklessness of Spotler’s management.

10.6.   Unless performance by Spotler is permanently impossible, liability of Spotler due to an attributable failure to perform the Agreement shall only arise if the Customer has given Spotler written notice of default, allowing a reasonable period for remedying the failure, and Spotler fails to comply with this period. The notice of default must contain a description of the failure that is as complete and detailed as possible to allow Spotler to respond adequately.

10.7.   Any claim for damages against Spotler shall expire twelve (12) months after the claim has arisen if such claim has not been brought before a court by the Customer within that period.

10.8.   All obligations, including those under tax, health insurance and social security legislation relating to Personnel of Spotler, shall be borne by Spotler. Spotler shall indemnify the Customer against any liability in connection therewith.

10.9.   The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these General Terms and Conditions, shall also apply for the benefit of all natural persons and legal entities engaged by Spotler in the performance of the Agreement.

11.         Insurance

11.1.   Spotler has obtained and shall maintain insurance coverage appropriate and customary for its business operations, including professional liability and cyber liability insurance, in accordance with standard industry practice.

11.2.   Upon the Customer’s request, Spotler shall provide evidence of such insurance coverage to the Customer, unless prevented from doing so by legal obligations.

12.         Personnel

12.1.   For services performed at the Customer’s location, Spotler will instruct its Personnel to observe the security procedures and house rules specified by the Customer.

12.2.   Where work is performed at the Customer’s location, the Customer shall provide an adequate and safe workplace.

12.3.   During the performance of the Agreement and for one year after its termination, the parties shall not, without the other party’s consent, employ each other’s Personnel nor conduct negotiations with such Personnel regarding employment.

13.         Replacement of Personnel of Spotler

13.1.   Spotler may replace Personnel working at the Customer’s location without the Customer’s consent.

13.2.   The Customer may request the replacement of Personnel working at the Customer’s location if the Customer, on reasonable grounds related to the individual concerned, no longer considers their deployment desirable.

13.3.   In the case of Personnel replacement, Spotler will not charge the Customer any associated costs unless Spotler demonstrates that the replacement request lacked reasonable grounds.

13.4.   In case of Personnel replacement, Spotler will provide replacement Personnel at the same rate with at least equivalent expertise, education and experience to the initially deployed Personnel, or meeting the qualifications agreed upon between parties.

14.         Force Majeure

14.1.   A failure to perform the Agreement that cannot be attributed to a party and for which that party cannot be held liable based on law, legal act or generally accepted standards, constitutes force majeure.

14.2.   Force majeure includes, but is not limited to: lack of Personnel, strikes, military action, governmental actions, extreme weather conditions, power failures at Spotler’s premises, pandemics, epidemics, failures or disruptions in telecommunications and internet connections facilitated by third parties, and delay or breach of performance by Spotler’s suppliers.

14.3.   If the performance of the Agreement is not possible due to force majeure and the resulting delay is foreseeable to be more than one month, either party may terminate the Agreement after mutual consultation without owing any compensation to the other party. The Fee for Services already provided by Spotler and for making the Platform available shall remain due and payable by the Customer in such case.

15.         Duration, Termination and Dissolution

15.1.   An Agreement for a fixed term cannot be terminated in the interim, unless otherwise agreed in the Agreement. Unless otherwise specified in the Agreement, and unless either party has given written notice of termination at least one (1) month before the end date of the fixed-term Agreement, the Agreement shall be automatically renewed for successive periods of one (1) year.

15.2.   If the Agreement has been concluded for an indefinite period, either party may terminate the Agreement in writing with due observance of a notice period of six (6) months.

15.3.   Either party may, without prior notice of default or judicial intervention, terminate the Agreement with immediate effect by means of a registered letter, if the other party applies for (provisional) suspension of payments, files for bankruptcy or is declared bankrupt, or if the (business of the) other party is discontinued, dissolved and/or liquidated.

15.4.   Upon termination or expiry of the Agreement, any Fees already invoiced or paid shall be non-refundable. Fixed recurring Fees agreed for the applicable subscription term remain fully payable and shall not be credited or refunded in whole or in part as a result of early termination by the Customer.

Any Services, third-party services, cloud services, licences, commitments or other obligations entered into by Spotler in connection with the performance of the Agreement shall remain payable by the Customer to the extent such costs or commitments cannot reasonably be cancelled or mitigated.

16.         Continuing Rights and Obligations

16.1.   Termination of the Agreement does not affect any rights or obligations which by their nature are intended to continue after termination, including those relating to payment, intellectual property rights, confidentiality, data protection, liability, indemnities, consequences of termination, data portability, and applicable law and disputes.

16.2.   Termination of the Agreement does not affect any rights or claims that have accrued to either party up to the date of termination.

17.         Bribery and Conflicts of Interest

17.1.   Parties shall not offer each other or third parties any gift, reward, compensation or (other) benefit of any nature that could be interpreted as an illegal practice. Neither shall they request, accept or receive from each other or third parties, for themselves or any other party, any gift, reward, compensation or (other) benefit of any nature that could be interpreted as an illegal practice.

18.         Applicable Law and Disputes

18.1.   The Agreement, the quotations, and any non-contractual obligations arising out of or in connection with them shall be governed by the laws applicable to the Spotler contracting entity as follows:

a. for Spotler entities incorporated in the Netherlands: the laws of the Netherlands;

b. for Spotler entities incorporated in the United Kingdom: the laws of England and Wales;

c. for Spotler entities incorporated in Sweden: the laws of Sweden;

d. for Spotler entities incorporated in Spain: the laws of Spain;

e. for Spotler entities incorporated in Croatia: the laws of Croatia; and

f.  for Spotler entities incorporated in Germany: the laws of Germany.

18.2.   Any disputes relating to the quotations, the Agreement, or any non-contractual obligations arising out of or in connection with them that cannot be resolved through mutual consultation shall be submitted exclusively to the competent court determined by reference to the Spotler contracting entity as follows:

a. for Spotler entities incorporated in the Netherlands: the district court of The Hague, the Netherlands;

b. for Spotler entities incorporated in the United Kingdom: the competent courts of London, United Kingdom;

c. for Spotler entities incorporated in Sweden: the competent courts of Stockholm, Sweden;

d. for Spotler entities incorporated in Spain: the competent courts of Barcelona, Spain;

e. for Spotler entities incorporated in Croatia: the competent courts of Zagreb, Croatia; and

f.  for Spotler entities incorporated in Germany: the competent courts of Berlin, Germany.

18.3.   If the Spotler contracting entity is not incorporated in any of the jurisdictions referred to in Articles 18.1 and 18.2, the Agreement, the quotations, and any non-contractual obligations arising out of or in connection with them shall be governed by the laws of the Netherlands, and any disputes shall be submitted exclusively to the district court of The Hague, the Netherlands.

II        SERVICES

19.         Applicability

19.1.   The provisions regarding Services in this Part II shall apply in addition to the general provisions set out in Part I if Spotler provides services such as implementation, support, courses and training, project guidance, consultancy, secondment and the like. In case of any ambiguity or conflict between the provisions of Part II (Services) and Part I (General Provisions), the provisions of Part II (Services) shall prevail.

20.         Performance

20.1.   Spotler shall endeavour to perform the Services to the best of its knowledge and ability and with due care. All Services provided by Spotler shall be performed on a best-efforts basis, unless and to the extent that Spotler has explicitly agreed upon a specific result with Customer and such result has been described with sufficient specificity in the Agreement.

21.         Training and Consultancy

21.1.   Spotler is authorised to replace staff members involved in training provided or proposed by Spotler with other (external) persons with similar qualifications.

21.2.   If Customer uses training or consultancy services from Spotler under the Agreement, Spotler shall, in consultation with Customer, schedule the training or consultancy and confirm the request for these services to Customer; taking into account Customer’s desired planning where possible. However, Spotler cannot guarantee Customer’s desired planning.

21.3.   Both Customer and Spotler may cancel the training or consultancy free of charge up to three Business Days before the start date. In case of such cancellation, parties shall mutually determine a new start date for the training or consultancy. Spotler has the right to charge the full costs for the training or consultancy if Customer cancels within three Business Days before the start date.

21.4.   Spotler shall endeavour to provide the training or consultancy to the best of its ability within the agreed timeframes. All timeframes mentioned by Spotler in this context have been determined to the best of its knowledge based on the information available to Spotler when entering into the training or consultancy agreement. The mere exceeding of a mentioned timeframe does not constitute default by Spotler.

21.5.   Training and consultancy shall be provided on Business Days during regular office hours.

21.6.   Customer shall indemnify Spotler and its Personnel against claims from third parties who suffer damage in connection with the performance of the training or consultancy that results from Customer’s acts or omissions or from unsafe situations in its organisation.

22.         Services

22.1.   If it has been agreed that Services will be performed in phases, Spotler is entitled to postpone the commencement of services belonging to a subsequent phase until Customer has approved the results of the preceding phase in writing.

22.2.   If Spotler performs work or provides Services outside the agreed scope at Customer’s request or with Customer’s prior consent, such work or Services shall be charged at Spotler’s then-applicable rates. Spotler is not obliged to perform such work and may require a separate written agreement (including on scope, timeline and fees).

23.         Service Levels

23.1.   Any agreements concerning service levels shall be explicitly agreed upon in writing only. Spotler shall endeavour to the best of its ability to achieve and maintain service levels, but offers no guarantees in this regard. Service levels are therefore always best-efforts obligations, unless the parties have explicitly agreed otherwise in the Agreement. Spotler shall not be liable to pay any compensation or damages to the Customer if service levels are not achieved and/or maintained.

23.2.   Where agreements on a service level have been made, the availability of the Platform, systems and related services shall always be measured in such a way that downtime announced in advance by Spotler due to preventive, corrective or adaptive maintenance or other forms of planned services, as well as circumstances beyond Spotler’s control, shall be excluded from consideration. The availability measured by Spotler, and the measurements, logs and reporting recorded by the Platform, shall constitute evidence of the matters recorded, unless the Customer demonstrates otherwise on the basis of reasonable evidence.

III.     THE PLATFORM

24.         Applicability

24.1.   The provisions in this Part III shall apply in addition to the general provisions set out in Parts I and II, since Spotler makes the Platform available to the Customer on a software-as-a-service basis. In case of any ambiguity or conflict between the provisions of Part III (the Platform) and Part I (General Provisions) and Part II (Services), the provisions of Part III shall prevail.

25.         Interoperability

25.1.   Spotler shall provide the Platform for the Customer’s use and shall be responsible for the Platform’s setup if agreed. Spotler is not responsible for the interoperability between the Platform and (parts of) the Application Landscape.

25.2.   Customer is responsible for timely engaging the suppliers of parts of the Application Landscape that are important or necessary for interoperability with the Platform. Unless agreed otherwise, the Customer shall be responsible for coordinating the activities of all parties involved.

25.3.   At Customer’s request, Spotler shall participate in consultations with other parties and/or suppliers designated by Customer if it appears at any time that the Platform does not function properly in conjunction with other parts of the Application Landscape.

25.4.   The consultation referred to in Article 25.3 aims to identify the cause of the insufficient integrated functioning and, where possible, find a solution therefor. The Customer shall bear the costs associated with the consultation and development of a solution at Spotler’s then-applicable rates.

26.         Complaint and Commencement of SaaS Service

26.1.   Customer is obliged to inspect the Platform for Defects upon Delivery. Any resulting complaints must be submitted to Spotler in writing with supporting documentation within fourteen (14) days after Delivery, otherwise the Customer will forfeit its rights.

26.2.   If Spotler has not received any complaint about a Defect or Defects within the period specified in the previous clause, Customer shall be deemed to have accepted the Platform in the state it was in at Delivery (“as is”), thus with all visible and invisible faults and defects, unless parties have agreed upon a specific acceptance test.

26.3.   Regardless of whether a complaint has been made under Article 26.1, the SaaS service shall commence upon Delivery of the Platform through the provision of access credentials to the Platform. Any delay on Customer’s part in using or inspecting the Platform shall not affect the start date and the payment obligation from the moment of Delivery.

26.4.   Spotler will make the Platform available substantially in accordance with the documentation as provided by Spotler for the agreed use. Customer shall report Defects in accordance with the complaint procedure.

26.5.   In the event of justified complaints, Spotler shall be obliged – at Spotler’s discretion – to either repair the Defects within a reasonable time, or replace parts of the Platform within a reasonable time, or refund the Fee received for the Platform.

26.6.   For Defects that only affect part of the performance of the Agreement, there shall be no right to refuse the other parts of the agreed performance.

26.7.   If Customer’s complaint relates to Services performed by Spotler, the complaint must be submitted, under penalty of forfeiture of rights, within thirty (30) days after the alleged deficiency or within thirty (30) days after the moment when such deficiency should reasonably have been discovered.

27.         SaaS Solution

27.1.   Spotler may make changes to the Platform. If such changes result in a change in the Customer’s applicable procedures, Spotler shall inform the Customer as timely as possible, but the Customer shall bear the costs thereof. In that case, the Customer may terminate the Agreement in writing effective on the date the change takes effect, unless such change relates to changes in relevant legislation or other regulations issued by competent authorities or unless Spotler bears the costs of the change.

27.2.   Spotler may continue providing the Platform using a new or modified version of the software. Spotler is not obliged to maintain, modify or add specific features or functionalities of the Platform specifically for the Customer.

27.3.   Spotler does not warrant that the Platform will be error-free and function without interruptions.

28.         Responsibilities and Restrictions

28.1.   The Customer is responsible for the use of the Platform by its (External) Users and the manner in which the results of the Platform are deployed. This includes, where applicable, the Customer’s use of the Platform in connection with third-party channels, networks, platforms and/or integrations.

28.2.   The Customer shall ensure the functioning of its Internet connection required for the use of the Platform and shall be responsible for taking necessary measures to protect its equipment, software, telecommunications and internet connections, automated systems and access credentials against viruses, cybercrime, unauthorized access and unlawful use by third parties, as well as for maintaining adequate system management and access management.

28.3.   Spotler is not responsible for verifying the accuracy and completeness of the data entered into the Platform, nor for the data generated using the Platform. Spotler is also not responsible for the data provided for the design and development of the Customer-specific part of the Platform. The Customer shall verify such data itself. Even if Spotler assists or supports the Customer – whether or not as part of the Services – in entering data into the Platform or generating data from the Platform, the Customer remains responsible therefor. This includes data, content and materials provided by or relating to Users (including profile information, images, messages, surveys, ticketing information and event content).

28.4.   Unless agreed otherwise in writing, Spotler is not obliged to transfer data from the Customer’s existing systems, website, or intranet or to establish a connection therewith. This also applies to establishing or maintaining connections with third-party channels, platforms and/or APIs.

28.5.   Spotler is never obliged to provide Customer with a physical carrier containing the code and data of the Platform.

28.6.   Spotler may, without prior notice, (temporarily) block access to the Platform, suspend it or restrict its use if this is necessary for the security and protection of the Platform and associated data(storage), as well as for maintenance or for making adjustments or improvements to the Platform, or to comply with binding requirements, restrictions or technical measures imposed by third-party channels or platforms used in connection with the Platform. This may include restrictions necessary to protect deliverability, prevent suspected abuse (including suspected spam traps), or protect platform reputation. This does not entitle Customer to any compensation from Spotler. Spotler shall try to limit the blocking to a minimum and inform Customer about the blocking in advance if possible.

28.7.   To prevent or limit potential liability towards third parties, to comply with binding legal requirements or third-party platform requirements, or to protect the security of the Platform and associated data(storage), Spotler is entitled to take reasonable measures regarding acts or omissions that are at the Customer’s risk. The Customer is obliged to remove or amend information, content or materials (including event pages, attendee content, ticketing content and communications) immediately upon Spotler’s first written request. If the Customer fails to do so, Spotler shall be entitled, at its discretion, to remove such information/content or make access thereto impossible. This does not entitle the Customer to any compensation.

28.8.   The Customer shall comply with all applicable laws and regulations when using the Platform and when executing its own services that use or are linked to the Platform, including (without limitation) rules on advertising, consumer protection and unfair commercial practices, as enforced by competent authorities in the jurisdictions where the Customer operates.

28.9.   The Customer and its (External) Users shall comply with the Rules of Use (Article 36) and shall not use the Platform for unlawful activities, including (without limitation) unsolicited communications (spam), infringement of third-party rights, misleading content or prohibited products/services.

28.10. Where the Platform (or part thereof) enables the Customer to connect to, publish on, retrieve data from, or otherwise interact with third-party channels, networks or platforms (including, without limitation, social media channels, app stores and payment service providers) (“Third-Party Channels”), the specific Third-Party Channels, functionalities (such as publishing, inbox/webcare, monitoring/listening, analytics, moderation and automation) and integrations that are included form part of the Platform only to the extent expressly agreed in the Agreement.

28.11. The Customer is solely responsible for:

a) obtaining, maintaining and securing the required accounts, permissions, authorisations, tokens and administrator rights for each Third-Party Channel and for ensuring that Spotler can access such Third-Party Channels to the extent required to perform the Agreement;

b) ensuring that the Customer’s and its Users’ use of the Platform in connection with Third-Party Channels complies with all applicable laws and regulations and all applicable terms, policies and technical requirements of the relevant Third-Party Channels (including advertising, content, messaging, developer/API and data use policies); and

c) the content published, messages sent, and communications handled via the Platform, including moderation decisions, response times and any customer service outcomes, unless explicitly agreed otherwise in writing.

28.12. The Customer acknowledges that Third-Party Channels are provided by independent third parties and may change, restrict or discontinue access, policies, APIs, functionalities and/or data availability at any time. Spotler is not liable for any unavailability, limitation, degradation, errors or changes caused by or attributable to Third-Party Channels, their policies or their technical interfaces, including where the Platform depends on access to a Third-Party Channel via an API.

28.13. To prevent or limit potential liability towards third parties, to comply with binding requirements of a Third-Party Channel, or to protect the security of the Platform and associated data(storage), Spotler is entitled to take reasonable measures, including temporarily suspending, limiting or disabling the relevant Third-Party Channel connection, functionality or integration. Where reasonably possible, Spotler will inform the Customer in advance.

28.14. To the extent the Platform provides monitoring/listening or similar functionalities, the Customer warrants that it has a lawful basis and all required notices, consents or permissions (if any) to collect, use and process the relevant data and that such collection and use is permitted under applicable law and applicable Third-Party Channel policies.

28.15. If and to the extent Third-Party Channels impose rate limits, usage caps, technical restrictions or other limitations, such limitations may affect the performance or availability of the relevant functionalities. The Customer acknowledges that Spotler cannot guarantee performance beyond such third-party limitations.

28.16. The Customer is responsible for creating, managing and disabling accounts for its (External) Users, and for maintaining the confidentiality and security of credentials. All actions performed through Customer-managed accounts are deemed authorised by the Customer. The Customer shall promptly notify Spotler of any suspected compromise, misuse or loss of credentials.

28.17. The Customer is solely responsible for all content, data and materials uploaded, submitted or made available through the Platform by the Customer or its (External) Users (including speakers and exhibitors). Spotler does not control such content and is not responsible for it.

29.         Messaging Services via the Platform

29.1.   When using Messaging Services, the Customer is responsible for complying with all applicable laws, regulations, industry codes and self-regulatory rules in each jurisdiction in which the Customer sends messages or in which recipients are located, including those relating to consent, opt-out mechanisms, sender identification and permitted sending times.

29.2.   The Customer is further responsible for complying with the applicable terms, policies and technical requirements of the relevant telecom operators, aggregators and messaging platform providers, including the WhatsApp Business Messaging Policy, each as amended from time to time. Where the Customer contracts directly with a messaging platform provider for a channel (such as WhatsApp via Meta), that channel constitutes a Third-Party Channel and not a Messaging Service. Spotler is not a party to the Customer’s agreement with that provider and that provider does not act as a subprocessor of Spotler in respect of that channel.

29.3.   Spotler may suspend or block the sending of messages if Spotler has reasonable grounds to suspect a breach of Articles 29.1 or 29.2, or if required to do so by a telecom operator, aggregator or messaging platform provider. Spotler will inform the Customer of any such suspension without undue delay.

29.4.   In connection with (telecom) market conditions or security, Spotler may impose additional restrictions on Messaging Services. Spotler will inform the Customer of such restrictions in the Quotation, via the Platform, or in writing.

29.5.   When using Messaging Services, the Customer must take into account that not all distribution channels are encrypted.

29.6.   Although Spotler will use reasonable efforts to ensure that its services function properly, Spotler cannot guarantee that messages will be delivered by telecom operators or messaging platform providers.

29.7.   Spotler may increase the rates and prices for Messaging Services if Spotler’s costs of purchasing these services exceed the agreed rates and prices. Any such increase will not exceed the increase in Spotler’s purchase costs. Spotler will inform the Customer of the increase before it takes effect. This Article applies in addition to, and takes precedence over, the annual indexation set out in Article 3.4.

30.        Event Management

30.1.   Spotler offers tools to manage event communication via a mobile website with integrated modules for invitations, registration and surveys (‘the EM Application’). For the avoidance of doubt, the event management features included within Brand ID and/or MailPro do not qualify as the EM Application under these terms and shall not be subject to the provisions of Articles 30 and 31.

30.2.   The Customer is solely and fully responsible for any agreements it enters into with third parties and for connecting these to the EM Application. Spotler is not liable for such agreements (e.g., connecting the EM Application to third-party registration or invitation software).

30.3.   Spotler facilitates an event website via the EM Application but is not involved in its operation. Spotler has a purely facilitating role, also with regard to connections with external services, payment providers and accounting systems offered by third parties or other business relations. The Customer is therefore solely responsible for agreements with any third parties and indemnifies Spotler against all claims from such third parties. This also applies if the Customer has instructed Spotler to design the event website(s) or to assist with their design, and when the Customer provides data and materials to Spotler that must be used on the event website(s).

30.4.   It is entirely up to the Customer and User to determine what information is placed on the event website. Spotler has no knowledge of the content of this information. Spotler accepts no liability for the data exchanged, stored, or processed using the Platform or the event website. The Customer indemnifies Spotler against claims from third parties based on the assertion that the information processed by the Customer or User through the Platform and/or the event websites is unlawful.

30.5.   If a Service for the EM Application is purchased on a one-time basis, it is offered for the duration specified on the relevant (EM Application) Website and/or in the relevant quotation. An event website cannot be published more than two (2) months before the start date of an event. For the EM Application, there is a maximum of seven days before the event. After the end date of an event, the event website will remain hosted for four more weeks.

30.6.   Unless agreed otherwise, an agreement for the EM Application based on a subscription is entered into for an initial term of twelve (12) months, commencing on the first day after the date the agreement for the EM Application is concluded. After the initial term, the subscription agreement shall be automatically renewed for consecutive terms of twelve (12) months, unless the Customer terminates the agreement for the EM Application in writing before the end of the current term with due observance of a notice period of at least one (1) month.

30.7.   Unless agreed otherwise in the Quotation, access to an event environment is limited to the event duration and the post-event access period as specified in the Quotation (or, if not specified, a reasonable period required for post-event reporting).

30.8.   Where the Quotation specifies attendee/User limits or package limits, the Customer shall ensure that actual usage remains within such limits. If usage exceeds the agreed limits, Spotler may charge the applicable overage fees (if agreed) and/or require the Customer to upgrade the applicable package.

30.9.   The Customer shall provide required event content, configurations and information in time. Spotler is not liable for delays or degraded performance resulting from late or incomplete input by the Customer.

30.10. Delivery of the EM Application for an event occurs when the event environment is made available for use (‘go-live’). Unless the Customer reports a material non-conformity in writing within seven (7) days after go-live, the EM Application for that event shall be deemed accepted.

30.11. Post-event access and data availability. The event environment and related event data will remain available for the post-event access period specified in the Quotation (or, if not specified, the standard period communicated by Spotler). The Customer is responsible for exporting or otherwise securing its data within that period. After expiry of the post-event access period, Spotler may deactivate the event environment and data may no longer be available, without prejudice to the data portability provisions set forth in Article 37.

31.        Ticketing Service

31.1.   If the Customer uses the EM Application to promote an event for which it offers (paid) tickets, Spotler is not a party to and does not assume any obligations under the (purchase) agreement between the Customer and the ticket purchaser. The Customer acts as merchant of record and is solely responsible for the sale, terms, consumer law compliance, cancellations, refunds and chargebacks.

31.2.   When offering tickets, the Customer is responsible for compliance with applicable legislation. More specifically: if the Customer allows consumers to purchase tickets, the Customer must ensure that it fully complies with consumer legislation and tax legislation applicable to the Customer or the persons (or entities) purchasing the tickets.

31.3.   Spotler does not provide payment services. When offering tickets for payment via the EM Application, the payment is processed by an external payment provider. Spotler is not responsible for errors or delays in payment.

31.4.   When offering tickets via the EM Application, the Customer is responsible for collecting (applying) and remitting the correct amount of VAT and other levies imposed by the government or legislation applicable to the Customer or the persons (or entities) purchasing the tickets.

31.5.   Spotler will not process refunds towards ticket purchasers unless explicitly agreed in writing. Any refund handling provided by Spotler (if any) shall be performed as a service on behalf of the Customer and does not shift responsibility for the refund decision to Spotler.

31.6.   When a ticket or tickets for an event is/are purchased via the EM Application and the person (or legal entity) purchasing the ticket(s) requests a refund of the amount paid, the Customer will reimburse Spotler for any refunds and all related costs. Spotler will send the Customer an invoice for such reimbursement. This includes costs charged by payment service providers and chargeback-related costs.

31.7.   All disputes with ticket purchasers shall be handled by the Customer. The Customer shall indemnify Spotler for claims from ticket purchasers or authorities arising from ticket sales, refunds, consumer law or tax compliance.

32.        Digital Asset Management

32.1.   If and to the extent the Agreement includes DAM / Brand ID functionality, the Customer acknowledges that the configuration, permission structure (including roles, folders/collections, approval flows and sharing settings) and the selection of which Assets are made available to which Users/External Users are determined and managed by the Customer.

32.2.   The Customer is solely responsible for:

a) the Assets and Metadata uploaded, stored, processed, shared or otherwise made available through the Brand ID Portal;

b) ensuring that it has all necessary rights, licences, consents and permissions (including copyright, trademark rights, database rights, portrait/privacy rights, moral rights waivers where required, and permissions from photographers, agencies, performers, models and other rightsholders) to use, store, process, distribute and make available the Assets via the Platform;

c) ensuring that any usage restrictions, rights information and required attributions are correctly reflected in Metadata and are complied with by its Users and External Users; and

d) compliance with applicable laws and regulations in relation to the Assets (including advertising rules, consumer law, privacy/data protection and IP laws).

32.3.   Where the Customer enables access for External Users and/or enables Share Links, the Customer:

a) remains fully responsible for the consequences of such access and sharing (including accidental public availability);

b) is responsible for verifying the identity and authorisation of External Users;

c) shall ensure that External Users comply with the Agreement and any instructions provided by the Customer; and

d) acknowledges that disabling access or Share Links may not revoke copies already downloaded or captured by recipients.

32.4.   Without prejudice to the general restrictions in the Agreement, the Customer and its Users/External Users shall not:

a) upload or share Assets that are unlawful, infringing, defamatory, misleading, harmful, or that violate third-party rights;

b) upload malware, scripts or other harmful code, or use the Brand ID Portal to distribute malicious content;

c) attempt to circumvent permissions, security or access controls, or attempt to access Assets or environments that are not intended for the Customer;

d) use automated means (including scraping) to download, extract or harvest Assets or Metadata other than through intended functionalities, without Spotler’s prior written consent;

e) use the Platform as a general-purpose file hosting service unrelated to the intended use of the Platform (e.g., bulk storage/backup unrelated to DAM/brand purposes), or in a way that causes disproportionate load.

32.5.   Spotler is entitled to take reasonable measures (including restricting access, disabling Share Links, removing or blocking specific Assets, or suspending relevant functionalities) if:

a) this is necessary to comply with applicable law, a binding request/order from a competent authority, or a substantiated notice of infringement from a third party;

b) this is necessary to protect the security and integrity of the Platform and associated data(storage); and/or

c) the Customer’s use creates (in Spotler’s reasonable opinion) a material risk of liability, harm or disruption.

Where reasonably possible, Spotler will inform the Customer in advance or without undue delay afterwards.

32.6.   The use of DAM/Brand ID Portal is subject to the Storage Limit and any other package limits as agreed in the Agreement/Quotation. If the Customer exceeds applicable limits, Spotler may (after notifying the Customer where reasonably possible):

a) require the Customer to upgrade to a higher package; and/or

b) charge overage fees in accordance with the Agreement/Quotation; and/or

c) apply reasonable technical measures to prevent further exceedance (including throttling uploads or temporarily restricting additional storage use).

32.7.   To the extent Spotler performs backups for the DAM/Brand ID Portal, Spotler shall do so in accordance with the Agreement and/or the standard backup/retention approach. The Customer remains responsible for maintaining its own copies and for exporting Assets and Metadata that are business-critical.

32.8.   Any availability targets, maintenance windows, incident response targets or service credits for DAM/Brand ID Portal apply only if explicitly agreed in writing in the Agreement and/or an SLA/product addendum. In the absence of such explicit written agreement, availability and support are provided on a best-efforts basis and planned maintenance may cause temporary unavailability.

32.9.   Upon termination or expiry of the Agreement, the Customer is responsible for timely exporting or otherwise securing its Assets and Metadata. At the Customer’s request, Spotler may provide reasonable transition assistance (including export support) against compensation and under terms to be agreed.

32.10. Upon termination or expiry, Spotler may disable access to the DAM/ Brand ID Portal and/or disable Share Links and External User access. The Customer acknowledges that after such disabling, Assets may no longer be available through the Platform, without prejudice to any agreed export/transition period.

33.         Marketing Automation / Journey Orchestration / Messaging Functionality

33.1.   If and to the extent the Agreement includes functionality/modules of the Platform for marketing automation, journey orchestration and/or messaging (including campaign flows, segmentation, audience management, content delivery and related analytics), the Customer acknowledges and agrees that:

a) the Customer determines and manages the configuration, targeting/segmentation choices, audience selection criteria, messaging content, timing/scheduling and automation logic used for that functionality/modules;

b) the Customer is responsible for the accuracy, completeness and lawfulness of data, lists, segments and audiences used for that functionality/modules;

c) the Customer is responsible for compliance with applicable laws and regulations (including privacy/data protection and marketing communication rules) in relation to messages sent and audiences targeted using that functionality/modules; and

d) Spotler is not responsible for deliverability outcomes or third-party filtering/acceptance decisions to the extent attributable to Third-Party Channels, Customer content, Customer lists/audiences, Customer configuration choices, or the Customer’s compliance (or non-compliance) with applicable rules.

33.2.   The use of that functionality/modules is subject to Maximum Users, Contact Limit, Monthly Send Limit and any other package or usage limits as specified in the Agreement.

33.3.   The Customer shall ensure that access credentials and user accounts for use of that functionality/modules are only issued and used within Maximum Users.

33.4.   Where the Agreement includes prepaid bundles/credits (e.g. email credits), such bundles/credits are valid for the period stated in the Agreement (default: 12 months from purchase) and unused credits may expire and be removed thereafter.

33.5.   Where usage exceeds the agreed limits (including Overage), Spotler may, after notifying the Customer where reasonably possible:

a) charge the applicable Overage Fee in accordance with the Agreement; and/or

b) require the Customer to upgrade the applicable package/module; and/or

c) apply reasonable technical measures to prevent further exceedance (including throttling, temporarily restricting additional sends, temporarily restricting additional data ingestion, or temporarily restricting creation of additional records/contacts), provided that Spotler shall act proportionately.

33.6.   Unless proven otherwise by the Customer with reasonable evidence, measurements recorded by the Platform (including relevant logs and reporting) constitute leading evidence for determining compliance with Maximum Users, Contact Limit, Monthly Send Limit and any Overage.

33.7.   Where that functionality/modules relies on Customer data feeds, source system access, scheduled deliveries and/or agreed data formats, the Customer shall:

a) provide data access/delivery in the agreed manner;

b) not materially change formats, schemas, filenames, delivery locations, frequencies or volumes without prior written agreement; and

c) ensure that all data provided is complete, accurate and lawful and provided in compliance with applicable law.

33.8.   Where the Customer uses messaging through that functionality/modules (including email, SMS, WhatsApp or similar channels), the Customer shall comply with applicable marketing communication and privacy laws (including consent/opt-in rules and opt-out processing) and applicable requirements of Third-Party Channels.

33.9.   Spotler may restrict sending, throttle traffic, or temporarily suspend messaging through that functionality/modules where reasonably necessary to protect deliverability, comply with law, prevent suspected abuse (including suspected spam traps), or protect platform reputation; Spotler shall act proportionately and, where reasonably possible, inform the Customer.

33.10. Certain functionality/modules may interoperate with or rely on Third-Party Channels and/or other third party components (including delivery providers, analytics, diagnostics, content creation, audience uploads, fulfilment or other integrations) as described in the Agreement and/or any SLA/service document referenced therein.

33.11. Any availability targets, maintenance windows, incident response targets, service credits or support response commitments for that functionality/modules apply only if explicitly agreed in writing in the Agreement and/or an SLA/service document referenced therein. In the absence of such explicit written agreement, availability and support are provided on a best-efforts basis and planned maintenance may cause temporary unavailability.

34.         API

34.1.   By using an API provided by Spotler for interaction with (parts of) the Platform, the Customer fully accepts that the API token provides access to the Customer’s application(s) and all (personal) data processed in these application(s).

34.2.   The Customer may share the API token with third parties. By doing so, the Customer fully accepts the implications of sharing access to the API token and is responsible for concluding a data processing agreement with the third party concerned.

34.3.   The Customer represents and warrants not to use Spotler’s API nor to allow its use for sending unsolicited communications. The Customer also guarantees that the API token will not be misused and no misuse will be allowed in a manner that could harm Spotler or violate applicable legislation.

34.4.   Spotler may impose limits on certain functionalities or restrict the Customer’s access to parts or the entire API if the security of the Platform so requires. 

34.5.   As a condition for using the API, the Customer expressly accepts that Spotler cannot under any circumstances be held liable for any damage, loss of data or other consequences arising from or related to the use of the API, including any use by third parties with whom the Customer has shared the API token. This Article is subject to Article 10, including Article 10.5.

35.         Support Documentation

35.1.   Spotler shall provide Customer with sufficient and comprehensible support documentation. This documentation shall be prepared in Dutch or English and can be found on the Platform.

36.         Rules of Use

36.1.   Spotler expects the Customer and Users to handle the Platform and Services carefully. It is also highly desirable that (personal) data is handled carefully and with restraint.

36.2.   The Customer is responsible for compliance of its (External) Users with the Agreement and these rules of use. The User is not permitted to use the Platform in violation of legal provisions or the Agreement, nor with the rights of third parties. Customer indemnifies Spotler against claims and damages resulting from breach of this warranty. Spotler is furthermore entitled, in the event of a breach hereof, to immediately suspend or even terminate the use of the Platform after the Customer has been given a reasonable period to remedy the breach and the Customer has not complied with this. Spotler shall not be liable for any refund or compensation to the Customer in case of suspension or termination.

36.3.   The User is obliged to exercise due care when using the Platform and to use it exclusively for its intended purposes. The User is not permitted to store or process documents, images, video films and/or data files that have nothing to do with the intended use of the Platform using the Platform.

For the avoidance of doubt, where the Agreement includes DAM/Brand ID Portal, storing and processing Assets (including images, videos and other media) is considered intended use, subject to the Storage Limit and the restrictions in the Agreement.

36.4.   Spotler reserves the right to check the content of processed documents and data files for irregularities through random samples and will immediately remove unauthorised files from the Platform. Controlling random samples is also done to remove email addresses that are no longer in use or may lead to damage or disruptions.

36.5.   The User shall always exercise necessary attention and caution regarding potentially harmful or unlawful Data. The User is responsible for the content and accuracy of the Data they provide or input, even if these originate from third parties. The Customer indemnifies Spotler against claims from third parties based on the input of harmful and/or unlawful Data.

36.6.   Each User is obliged to keep the usernames and passwords assigned to them or created by them secret for access to the Platform. Spotler is not liable for misuse or loss of usernames and passwords by the User.

36.7.   Spotler may assume that Users who log in with the username and password are actually the initially intended authorised users. As soon as the User knows or has reason to suspect that usernames and passwords have fallen into the hands of unauthorised persons, Spotler must be informed of this immediately in writing and by telephone.

36.8.   Customer shall ensure that only the agreed number and only authorised users use the Platform. If Spotler identifies irregularities or unauthorised use in this regard, Spotler has the right to charge the then-applicable rates plus a 50% surcharge to the Customer and to terminate the right of use and the Agreement in whole or in part. For the avoidance of doubt, where the Agreement specifies Maximum Users, the “agreed number” includes the Maximum Users.

36.9.   Spotler is expressly entitled to temporarily or permanently block the registration and/or access of the User to the Platform in case of (suspected) violation of the provisions in this article or case of non-acceptance of the terms of use included in this chapter by the User.

36.10. The Customer is responsible for compliance with local laws and regulations, such as those relating to privacy and data protection, distance selling (and consumer rights), unfair and/or unreasonable commercial practices, that apply in the country to which the Customer directs its activities. Spotler shall never be liable for any damage, fines, sanctions (or other forms of enforcement) suffered by the Customer or User or imposed upon them through the use of the Platform or the Services (including an event website created via the EM Application or an event itself).

36.11. The Customer and Users are not permitted to perform (or allow third parties to perform) penetration testing, vulnerability scanning, reverse engineering, decompilation or other security testing on the Platform without Spotler’s prior written consent. This does not limit the Customer’s audit rights under the Agreement, provided that such audit does not include active testing of operational systems unless expressly agreed.

36.12. The Customer and Users shall not collect, harvest, scrape or otherwise attempt to extract data from the Platform (including attendee lists) other than through the intended functionalities, nor use automated means to access or extract data, without Spotler’s prior written consent.

37.         Data Portability

37.1.   Customer must ensure the storage and retention of the data entered into the Platform itself unless this is impossible with a particular platform.

For the avoidance of doubt, where the Agreement includes DAM/Brand ID Portal, “data” for the purpose of data portability includes Assets, Metadata and any available renditions/derivatives generated within the Platform, to the extent technically feasible.

37.2.   If the provision of Services to Customer under the Agreement includes making backups of Customer’s data, Spotler shall make such backups taking into account the periods agreed in writing. Spotler shall retain the backups for an agreed period and in the absence of agreements in this regard, for the period customary at Spotler. Spotler shall store the backups with due care.

37.3.   If the Agreement ends for any reason whatsoever, Customer must ensure the timely storage and retention of the data present in the Platform or its transfer to another party engaged by Customer.

37.4.   At the Customer’s request, Spotler shall assist with data portability, which the Customer desires, against compensation and under terms to be agreed upon.

IV      OTHER PROVISIONS

38.        Spotler may transfer or outsource its rights or obligations under the Agreement or the General Terms and Conditions to an affiliated company or another third party engaged by it for this purpose, without the Customer’s consent being required.

39.        Any notice or other communication regarding the Agreement or the General Terms and Conditions must be addressed in writing to Customer’s or Spotler’s address, respectively, as stated in the Agreement.

40.        In these General Terms and Conditions, ‘in writing’ shall also include communication by email or direct communication from Spotler via the Platform. A ‘written agreement’ shall also include an agreement recorded in electronic form.

41.        If any provision of the Agreement or the General Terms and Conditions is wholly or partially void, voidable or contrary to law, it shall be deemed to stand alone and not be applicable. Customer and Spotler shall, in such case, consult with each other to replace the provision in question with a provision of similar purport. The remaining provisions shall remain in full force and effect.

42.        Spotler’s delay or failure to enforce any right that Spotler has under the Agreement or the General Terms and Conditions against Customer shall never constitute a waiver of that right. If Spotler waives any right it has under the Agreement or the General Terms and Conditions, this does not mean that Spotler also waives or must waive that right or other rights in a subsequent case.

43.        The General Terms and Conditions are made available to the Customer before or at the time of entering into the Agreement and can be consulted at the Website. Spotler will provide a copy of the General Terms and Conditions free of charge upon the Customer’s request.

V       DEFINITIONS

The terms that begin with a capital letter in these general terms and conditions and the Agreement shall have the meaning assigned to them as defined in this chapter V.