Last updated: 25 March 2019
This Agreement is made between the following parties:
(1) The Contributor, Subject, or User of the Platform (“You”, ”Your” etc); and
(2) The Developer, Dotspot Limited a company registered under the laws of England and Wales whose registered office is at 13 Princeton Court, 53-55 Felsham Road, Putney, London, United Kingdom SW15 1AZ (“Us”, “We”, “Our” etc).
2. BACKGROUND AND INTRODUCTION
1. We have developed an App for an interactive world map which will connect influencers, businesses and users of social media including but not limited to Instagram, in order to create a City guide of places of interest, things for people to go and see, things to do such as activities, food, experiences and so forth all of which are based upon the recommendations of influencers. Users can discover, save, organize, classify, book, navigate to, any given places in a City as users follow influencers to discover, save, organize those places of interest that social media influencers go to or recommend. Users are also able to save places that they themselves have posted about on their own Instagram accounts on their own. The App enables social media influencers and their followers to connect with each other according to geographical location.
2. This Agreement sets out the terms and conditions upon which We grant You the right to use the Platform.
3. You must read this Agreement carefully before accessing the Platform, because by accessing the Platform or otherwise indicating your consent to this Agreement, You agree to be bound by its terms.
4. If You do not agree to all of the terms of this Agreement, You must not access or use the Platform.
5. This Agreement is intended to be read together with our Privacy and Cookies Policy, which is available on our website at https://www.dotspot.tech.
3. DEFINITIONS AND INTERPRETATION
means the Dotspot application.
means a Subject who has entered into a separate agreement with Us.
Intellectual Property Rights
means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d)whether vested, contingent or future; and
(e) wherever existing.
means all incurred losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including legal fees on a solicitor/client basis) and disbursements and costs of investigation, litigation, settlement, judgment interest and penalties.
means the Dotspot website, service and App.
means any content, images, photographs, illustrations, icons, texts, video, audio, written materials, software or other content, materials or data used on the Platform other than User Data (as defined below).
means an Instagram influencer whose posts are embedded via the Platform.
means any user of the Platform except in the capacity of a Subject and/or Contributor.
means any content images, photographs, illustrations, icons, texts, video, audio, written materials, software or other content, materials or data uploaded or otherwise provided by You during the course of Your ordinary use of the Platform, or any such data that is made available to the public by You through any other application or service.
In this Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) references to subclauses and clauses are to subclauses and clauses of this Agreement;
(c) references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
(d) references to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation;
(e) clause headings do not affect the interpretation of this Agreement; and
(f) references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.
4. GRANT OF LICENCE
4.1. Subject to the terms and conditions of this Agreement, We hereby grant to You a limited, non-exclusive, non-transferable licence, without the right to grant sublicenses, to use the Platform.
4.2. We reserve the right to change the availability of any feature, function, or content relating to the Platform, at any time, without notice or liability.
4.3. You shall be responsible to Us for any and all acts or omissions committed by You during the use by You of the Platform.
4.4 If You download or stream the App onto any phone or other device not owned by You, You must have the owner’s permission to do so. You will be responsible for complying with these terms, whether or not You own the phone or other device.
4.5 You must be 16 or over to accept these terms and buy the App.
4.6 We are giving you personally the right to use the Platform as set out in this Agreement. You may not transfer the App to someone else, whether for money, for anything else or for free. If you sell any device on which the App is installed, you must remove the App from it.
5. USE OF THE PLATFORM
5.1. You shall not (nor enable any third party to) make any use of the Platform that is not expressly permitted under this Agreement.
5.2. Without prejudice to the generality of the above, unless expressly permitted hereunder, You shall not (nor enable any third party to) use the Platform:
5.2.1 To reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform;
5.2.2 to modify, adapt, translate, or reproduce the Platform;
5.2.3 to resell, distribute, or sub licence the Platform;
5.2.4 to remove or modify any proprietary marking or restrictive legends placed on the Platform;
5.2.5 to introduce into the Platform or any of its associated software or applications any virus, worm, “back door,” Trojan Horse, or similar harmful code;
5.2.6 in connection with a criminal offence under the applicable national laws or regulations or against public order or applicable ethical standards and codes;
5.2.7 in any way which causes or is intended to cause annoyance, inconvenience or needless anxiety;
5.2.8 for any unlawful purpose whatsoever, including fraud or terrorism;
5.2.9 in any way which is abusive, harmful, threatening or defamatory or any other way that may cause offence;
5.2.10 in any way which breaches or could potentially breach a legal duty to a third party (including a duty of confidentiality) or which infringes or could potentially infringe a person's right to privacy;
5.2.11 in any way which promotes discrimination or is likely to incite hatred;
5.2.12 in any way which may infringe the Intellectual Property Rights of third parties or which promotes any unlawful act;
5.3. If You breach this clause 5, We reserve the right, in our sole discretion, to deny You access to the Platform, or any part of the Platform without notice, and to remove any of Your User Data that does not adhere to this Agreement.
6. SUBMISSION OF DATA TO THE PLATFORM BY YOU
6.1. Submission of Data. You agree that any of your User Data appearing publicly on any service or platform may also be displayed through the Platform.
6.2. Licence Grants. Subject to the terms of this Agreement, You grant to Us:
6.2.1 a non-exclusive, worldwide, fully paid-up, royalty-free right and licence during the term of this Agreement to view, use, copy, distribute, transmit, combine, and modify the User Data, in whole or in part, through or in connection with the Platform;
6.2.2 a worldwide, fully paid-up, royalty-free right and licence to merge Your User Data with other data, and use such aggregated data for Our reporting, planning, development, and promotional purposes; and
6.2.3 a non-exclusive, worldwide, fully paid-up, royalty-free right and licence to use and copy the Your User Data, and any marks, in any and all media now known or hereafter devised in connection with the marketing, advertising, and promotion of the Platform, including, without limitation, listing You as a User of the Platform.
7.1 We and You both represent and warrant that we have the full right, power, and authority to enter into this Agreement, to discharge Our obligations hereunder, and to grant the licenses granted hereunder.
7.2 You represent and warrant that:
7.2.1 Your User Data and Our exercise of any licence granted hereunder, do not and will not, infringe the rights of any third party, including without limitation any intellectual property rights, rights of privacy, or any other rights of third parties not specifically identified in this Agreement; and
7.2.2 You will comply with all laws in the performance of Your obligations, exercise of Your rights, and use of the Platform under this Agreement.
7.3 Although We make reasonable efforts to update the information provided by the App, We make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.
7.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8. USER DATA AND OTHER CONTENT
8.1 The parties acknowledge that Your User Data may contain third party Intellectual Property Rights. You warrant, and shall ensure, that use by Us of any such User Data does not infringe the Intellectual Property Rights of such third parties. In the event that We become aware of any such infringement or alleged infringement, We reserve the right to terminate this Agreement without notice.
8.2 All Intellectual Property Rigthts in the Platform throughout the world belong to us (or our licensors) and the rights in the Platform are licensed (not sold) to you. You have no Intellectual Property Rights in, or to, the
8.3 Platform other than the right to use them in accordance with this Agreement.
The Platform may contain links to other independent websites which are not provided by Us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any). You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.
9. DATA PROTECTION AND PRIVACY
9.1 We comply with all applicable Data Protection Laws in respect of Our use and provision of the Platform;
9.2 We ensure that the collection, use and disclosure of any personal data as part of the use of the Platform complies with Data Protection Laws.
9.4 We shall ensure that We shall implement appropriate technical and organisational measures to protect Your
User Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Platform and having regard to the nature of the Platform which is to be protected.
9.5 The parties acknowledge that internet transmissions are never completely private or secure and that any message or information you send using the Platform may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
10. DISCLAIMER/LIMIT OF LIABILITY
10.1 Subject to clauses 10.2 and 10.3, our total aggregate liability under or in connection with this Agreement howsoever arising (whether in contract, in tort (including negligence), or arising by breach of statutory duty) shall not exceed:
10.1.1 In respect of a User, the greater of £500 and the total of all sums paid by the User to Dotspot in the 12 calendar months preceding the claim;
10.1.2 In respect of a Subject, the greater of £1,000 and the total of all sums paid by Dotspot to the Subject in the 12 calendar months preceding the claim.
10.2 Under no circumstances shall We be liable to You for any of the following types of loss or damage arising under or in relation to this Agreement whether arising for breach of contract (including under any indemnity), misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty, warranty, strict liability or any other legal theory howsoever arising:
10.2.1 any loss of profits, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data regardless of whether any of these types of loss or damage are direct, indirect or consequential; or
10.2.2 any indirect or consequential loss or damage whatsoever, even if that party was aware of the possibility that such loss or damage might be incurred by the other.
10.3 Notwithstanding the above, neither party excludes or limits any liability for:
10.3.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
10.3.2 fraud, fraudulent misrepresentation or fraudulent concealment; or
10.3.3 any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
10.3.4 any other liability to the extent the same cannot be excluded or limited by law.
You shall indemnify, defend, and hold Us harmless from and against any and all losses, liabilities, damages, fines, and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) incurred by Us in connection with any third-party claim, action, or proceeding (collectively, “Losses”) to the extent arising from, relating to, or alleging that You have breached any of Your representations or warranties hereunder.
12. CHANGES TO THESE TERMS
12.1. We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce.
12.2 We will give you at least 30 days’ notice of any change by notifying you of a change when you next start the App.
12.3 If you do not accept the notified changes you will not be permitted to continue to use the App.
13. UPDATES TO THE APP
13.1 From time to time we may automatically update the App and change any services provided via the App to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively we may ask you to update the App for these reasons.
13.2 If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App and any services provided via the App.
14.1 Either party may, without prejudice to its other rights and remedies, by notice in writing to the other party immediately terminate this Agreement at any time.
14.2 In the event of termination of this Agreement for any reason:
14.2.1 all licences granted to You under this Agreement shall terminate immediately;
14.2.2 all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
15.1 Any notice or other communication given to a party under or in connection with this Agreement (a Notice) shall be in writing (including email), addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
15.2 A Notice shall be deemed to have been received:
15.2.1 if delivered personally: when left at the address referred to in subclause 13.1;
15.2.2 by first-class post: two Business Days after posting;
15.2.3 by airmail: seven Business Days after posting;
15.2.4 by hand: on delivery;
15.2.5 by facsimile: on receipt of a successful transmission report from the correct number; and
15.2.6 by email: on receipt of a read return mail from the correct address within 24 hours from delivery if no notice of delivery failure is received.
15.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16. ENTIRE AGREEMENT
This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
17.1 Nothing in this Agreement shall (except as expressly provided) be deemed to constitute a partnership or create a relationship of principal and agent between the parties for any purpose.
17.2 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.
17.3 No party may assign, novate, transfer, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other's prior written consent or except as expressly permitted in this Agreement.
17.4 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.5 A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
17.6 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
17.7 Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.
17.8 Provisions which by their terms or intent are to survive termination of this Agreement will do so.
17.9 This Agreement shall be binding upon, and enure to the benefit of, each of the parties, their respective personal representatives and their respective successors in title.
18. GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter is governed by and shall be construed in accordance with the laws of England and Wales. Subject to any disputes which the parties agree to resolve using an alternative dispute resolution process permitted in accordance with this Agreement, the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any disputes and claims which may arise out of, or in connection with, this Agreement.