Authorization to Access your Computer
You acknowledge that by your use of the Services you are authorizing Spotmau to access and control your computer for the purposes of computer diagnosis, service and repair.
In connection with delivering the services, Spotmau may download and use software, gather system data, take remote control of your computer and access or modify your computer settings. By accepting these terms, you hereby grant Spotmau the right to connect to your computer, download and use software on your computer to gather system data, repair your computer, take remote control of your computer and change the settings on your computer while performing the services. Other than as set forth in the warranty section below, you agree that Spotmau has no responsibility or liability under any circumstance at any time for any loss or harm that may arise from or may be related to the services.
Scope of Services
(a) General Services: You may initiate the Services via internet or other means made available by Spotmau. Spotmau will use commercially reasonable efforts to answer your personal technology question and resolve Your personal technology problem for a fee (plus applicable taxes) as set forth in the Site or quoted on the website. Upon your agreement, Spotmau may provide certain portions of the Services via remote control session, online chat or e-mail. We may set forth limits to the personal technology we support. In certain cases, however, problem diagnosis and support may not be completed because of a problem with your computer or its configuration that is beyond our control. Certain Services may have minimum system requirements.
(b) Software Demand Services: Software demand services may be offered to you by our Self Service. If you elect to receive software demand services, you are electing to purchase software downloads from our website.
You understand and agree that prior to contacting or allowing Spotmau to perform diagnostic repair or other services on your computer, and must cooperate with Spotmau and promptly respond to our requests for information and comply with our requests to take actions to resolve your personal technology problem. It is your responsibility to back-up the data, software, information or other files stored on your computer disks and/or drives. You acknowledge and agree that Spotmau and/or its third-party service provider shall not be responsible under any circumstance for any loss or corruption of data and/or software.
Monitoring of the Services
Registration, Passwords and Security
In order to use certain services, we may require that you register. During the registration process, you may be asked to designate, or we may designate for you, a user name and password. You are responsible for maintaining the confidentiality of any password or account information you receive from Spotmau, and are responsible for all activities that occur using that password or other account information. You must notify Spotmau immediately upon learning of any unauthorized disclosure or use of your password or other account information. Spotmau has no liability for any unauthorized use of the services under your account or on your computer.
Fees and Payment
The applicable fees for the services you order will be quoted on the site. The fee for the services will be charged directly on your credit card and you agree to pay the charges applicable to your selected services, as well as any applicable taxes.
Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with our sites and services in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and for accounts over 180 days past due, deducting the amount owed from your Spotmau account balance.)
We may choose to temporarily change the fees for our services for promotional events or new services. Changes to that Policy are effective after we provide you with at least fourteen days' notice by posting the changes on the Spotmau site, and such changes are effective when we post the temporary promotional event or new service on the sites.
The services may not always be available in your time zone or geographic location. The services may not always be available due to system maintenance or internet service disruptions.
Use of the Services
Your use of the services is only for personal and noncommercial purposes on your personal technology, and not for resale or transfer to others. You may not sell, lease or rent access to or use of the services. You may not allow manufacturers, suppliers or vendors of your personal support technology, or providers of services relating to such technology, to access or use the services.
You may not use, download or copy any information, data, text, photographs, graphics, video, or other materials provided with the services ("content") unless: (1) you use the content solely for personal, informational and non-commercial purposes; (2) Spotmau's trademarks and copyright symbol and statement set forth on each page of the site appears on each downloaded or copied page; and (3) no modifications are made to any content. The rights granted to you in connection with the services constitute a license and not a transfer of title. Spotmau reserves the right to revoke the authorization to view, download and print the content available on the site at any time, and any such use shall be discontinued immediately upon notice from Spotmau. Except as expressly provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any content from the services in whole or in part without the prior written permission of Spotmau. Any rights not expressly granted herein are reserved by Spotmau.
You shall not: (a) "mirror" any content on the site on any other server without Spotmau's prior express written permission, (b) use the service for any illegal purpose, (c) misuse, abuse or make any unauthorized use of any property, network, website, personnel or equipment of Spotmau or its customers or its suppliers, including but not limited interfering with or otherwise disrupting networks connected to the service, (d) engage in any activities or actions in connection with the services that infringe or misappropriate the intellectual property rights of others, including without limitation, copyright, patent, trademark, trade secret and confidential information, (e) engage in any activities that violate the personal privacy or publicity rights of others; (f) access, monitor or use data, traffic, computers, systems, facilities or networks provided with or accessible from the services, without proper authorization, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; (g) send unsolicited commercial messages, advertising, informational announcements or communications in any form ("spam") in connection with the services; or (h) interfere with the services or any system, service, network, or person accessible from the services, including without limitation deliberate attempts to overload a system by the multiple postings of messages.
Modifications to the Services
We reserve the right, for any reason, in our sole discretion and without notice to you, to modify, terminate, change, suspend or discontinue any and all aspects of the services, including content, software, features and/or hours of availability, and we will not be liable to you or to any third party for doing so.
While we use reasonable security measures to deliver the services, you understand and acknowledge that no data transmission over the internet can be guaranteed to be 100% secure and in any event we cannot guarantee that any personal information you submit to us will be free from unauthorized intrusion.
Currently, the services are only available for residents of the United States, UK, Australia and Canada. Spotmau may, from time to time, offer promotions to residents of other countries. You agree to comply with all applicable laws and regulations, including without limitation, the United States department of commerce. You represent and warrant that you are not on the United States' prohibited party list and not located in or a national resident of any country on the United States' prohibited country list.
Spotmau respects the proprietary rights of software and hardware manufacturers and will not install or support unlicensed materials. The services, and the software and content provided with the services, are protected by law including copyright, trademark, service mark, patent or other proprietary rights and laws. Spotmau is the copyright owner or licensee of the services, software, and content, unless otherwise indicated. If you make use of the services, software or content, other than as expressly provided herein, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material, patents or any other intellectual property by including them with the services.
Dealings with Third Parties
Your dealings with other entities promoted on or through the services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other entity. You agree that Spotmau shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities on the services. Likewise, any third parties that may refer you to the services have no responsibility or liability for the services provided by Spotmau.
Spotmau reserves the right to cease providing the services for any reason at any time and instead, as your sole and exclusive remedy, refund the fees paid for the applicable services for the time period, if any, after termination of the services. If you breach the terms no refund will be provided. Other than providing a refund when we terminate for our convenience, Spotmau will not be liable to you or any third-party for termination of the services for any reason. You acknowledge and agree that upon termination Spotmau may immediately deactivate or delete your user account and all related information and files in your user account and/or bar any further access to the services.
You agree to defend, indemnify and hold Spotmau, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees, in any way arising from or related to your use of the services or your violation of the terms.
Service Limitations of Liability
(A) LIMITATIONS TO SERVICE: SPOTMAU RESERVES THE RIGHT TO REFRAIN FROM PROVIDING ANY OR ALL REQUESTED SERVICES AND INSTEAD REFUND YOUR PAYMENT, WHOLLY OR IN PART, ON THE BASIS THAT YOUR TECHNICAL NEEDS OR OTHER MINIMUM SYSTEM REQUIREMENTS ARE UNUSUAL OR EXTENSIVE AND BEYOND THE SCOPE OF THIS SERVICE AGREEMENT AS REASONABLY DETERMINED BY SPOTMAU OR ITS THIRD-PARTY SERVICE PROVIDER.
(B) FORCE MAJEURE: IF SPOTMAU'S ABILITY TO RENDER SERVICES IS IMPAIRED BY YOU OR CIRCUMSTANCES BEYOND THE CONTROL OF SPOTMAU, SPOTMAU MAY CHOOSE NOT TO PROVIDE OR TO DISCONTINUE SERVICES.
(C) LIMITATION OF LIABILITY: TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT SPOTMAUS TOTAL LIABILITY FOR DAMAGES RELATED TO ITS SERVICES IS LIMITED TO THE TOTAL AMOUNT YOU PAY FOR THE ALL SERVICES, AND YOU RELEASE SPOTMAU FROM LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. SPOTMAU IS NOT LIABLE FOR LOSS, ALTERATION, OR CORRUPTION OF ANY DATA OR FOR YOUR INABILITY TO USE YOUR COMPUTER EQUIPMENT OR OTHER PRODUCT.
The Services may not be successful because the problem may be beyond our ability to resolve remotely. If we are not able to answer Your question or resolve Your personal technology problem and You have complied with all Your obligations in these Terms, we will not charge you a fee for the Services. If you experience a problem with the resolution we provided and you call us within five (5) days from the day you originally received the Services, we will use commercially reasonable efforts to try to resolve your problem at no additional charge. If those efforts are unsuccessful, we will refund the fees that You paid for the Services. As set forth below, there are no other warranties for the Services.
Disclaimer of Warranties
OU UNDERSTAND AND AGREE THAT EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OF THE SERVICES, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPOTMAU DOES NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING YOUR QUESTION OR COMPUTER PROBLEM. SPOTMAU MAKES NO WARRANTY THAT THE SERVICES WILL MEET USERS' EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES SHALL CREATE ANY WARRANTY. ANY CONTENT OR SOFTWARE THAT YOU ACCESS, DOWNLOAD OR USE WITH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH ACTIVITIES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
This Agreement is entered into as of the date of submission, hereinafter "Effective Date", by and between Spotmau, Inc (hereinafter referred to as "Spotmau") and Applicant party, being the party whose details appear on the application form, hereinafter "Reseller".
Whereas Spotmau is the developer of, and owns or licenses from third parties, all rights to the products, described in appendix 1, attached to this Agreement and forming an integral part hereof, hereinafter the "Products";
Whereas Spotmau desires to appoint a reseller to market, promote and sub-license the Products in the region that appears on the applicant party application form as Sales Region, hereinafter the "Territory";
Now therefore Spotmau grants to Reseller the non-exclusive right to market and sell the Products, including all accessories and manuals thereto, under the terms and conditions specified hereunder:
1. It is hereby declared that Reseller shall buy the Products as an independent contractor and shall sell the same on its own account and at its own risk. Reseller is not an agent of Spotmau and may not, in any respect, represent Spotmau or otherwise enter into any agreement or commitment on its behalf.
2. Reseller shall promote the Products and shall not act in a way which may prevent the sale of the Products.
3. Reseller may appoint third parties as intermediaries, agents or sub-resellers of the Products, provided that any such appointment must be notified in writing to Spotmau 30 days in advance. The Reseller shall be vicariously liable for the acts of third parties appointed by it under this clause and shall be obliged to cause the same third parties to abide by the provisions of this Agreement. In no case, shall Spotmau be held responsible for the actions of the Reseller or any third party appointed by it.
4. Reseller shall be bound to independently ensure that the Products conform with all the laws in force in the Territory, including but not limited to labeling requirements and safety regulations.
Supply of Products
5. Reseller prices may be amended from time to time by Spotmau by giving thirty (30) days prior written notice to Reseller.
6. Provided that the Partner is in compliance this Agreement, the Partner will be eligible to receive an array of benefits that Spotmau may generally offer to all partners, hereinafter "Benefits" from time to time during the term of this Agreement. A description of the Benefits offered to all partners is posted on Spotmau's partner website. Spotmau may, at any time in its sole discretion, amend or cancel any Benefits or the entire Benefits Program.
7. ALL BENEFITS ARE PROVIDED TO THE PARTNER "AS IS". SPOTMAU MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY BENEFITS, SPOTMAU PRODUCTS, OR SUPPORT PLANS, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Advertising and Merchandising
8. Spotmau may, at any time, request Reseller to send to it, within thirty (30) days from such request, for its prior written approval, the advertising and sales promotion programme and material developed by Reseller in relation to the Products.
Intellectual Property Rights
9. This Agreement shall not confer on Reseller any patent rights and other intellectual property rights, which rights shall remain vested in Spotmau. Spotmau is however, hereby granting to the Reseller, who accepts a limited license to market and distribute the Products. Reseller may not use the Products for its own business and/ or modify, translate, disassemble, decompile, reverse engineer, create derivative works of the Products or by any means attempt to discover and obtain the source code for the Products.
10. Reseller has no right to and shall not remove or change any trade mark, trade name, sign or other mark on any Product or its packing or make any alterations in the construction or design in the Products or any of them.
11. Spotmau assumes no liability or responsibility, whether express or implied, for the Product's infringement of present or future patents or intellectual property rights belonging to third parties.
12. Reseller shall immediately inform Spotmau of any infringement or suspected infringement of Spotmau's patents or other intellectual property rights and/or the End User Agreement supplied together with the Product. In the event that Spotmau decides, at its own discretion, to defend such right, the Reseller shall be obliged to assist Spotmau in such an action, provided that any costs shall be borne by Spotmau.
Limitation of Liability
13. IN NO EVENT WILL SPOTMAU BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, THE BENEFITS, SPOTMAU PRODUCTS, OR SUPPORT PLANS, EVEN IF SPOTMAU KNEWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, SUCH DAMAGES. SPOTMAU'S TOTAL LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, THE BENEFITS, SPOTMAU PRODUCTS, OR SUPPORT PLANS, WHETHER SUCH DAMAGES ARE BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE RESELLER SHOULD IN NOW WAY ALTER OR MODIFY THE WARRANTY DISCLAIMER AND LIABILITY LIMITATIONS CLAUSES IN THE END USER AGREEMENT.
14. Spotmau shall honor the warranties specified in the End User Agreement supplied with the Products. Any other warranties in relation to the Products, including those implied by law, are hereby excluded.
15. Spotmau shall endeavour to ship the Products ordered by Reseller within one month from the date on which Spotmau receives a written order from Reseller; provided that Spotmau shall not be held to be in breach of this clause if the Products are not shipped to Reseller within the stipulated time because of a shortage in the Product/s ordered or because of any other reason beyond the control of Spotmau.
16. Products to be delivered electronically shall be so delivered within two weeks from the date of order, unless delivery within such a period is impossible in virtue of a cause independent of Spotmau's will and control.
Term and Termination
17. This Agreement shall remain in force for a period of one year, starting on the Effective Date, and shall be automatically renewed for further periods of twelve (12) months each unless either party gives to the other one month's prior written notice that it does not intend to renew the same.
18. Either party may terminate this Agreement by giving to the other party thirty (30) days' written notice of its intention to terminate, without prejudice to the rights of any of the parties to any outstanding fees or monies due under this Agreement.
19. The parties undertake not to disclose to third parties any information obtained by them in pursuance of this Agreement, unless such party is obliged to do so by law or a competent authority or by the stock exchange rules or such disclosure is necessary so that that party can perform its obligations under this Agreement. Failure by any of the parties to respect this clause shall render it liable to minimum pre-liquidated damages of one thousand US dollars to the other party.
20. Assignment by Reseller of the whole of this Agreement shall be permitted subject to the written consent of Spotmau. Spotmau shall have the right to assign all or any of its rights and obligations under this Agreement to a successor company in conjunction with an asset transfer undertaken in a restructuring of Spotmau's business. Where the Reseller is a limited liability company any change in the current shareholding of the company affecting the holders of more than fifty per cent (50%) of the equity and/or voting power in the same, will be considered an assignment for the purposes of this Agreement.
Entire Agreement and Amendment
21. This Agreement constitutes the entire understanding between the parties in relation to the Products and may only be amended by an instrument in writing duly entered into by both parties.
22. Any notices or other communication between the parties with respect to this Agreement shall only be considered to have been validly made when they are written in English and shall be considered to have been received by the other party when;
Delivered by an e-mail, on the day that the sender receives a faxed copy signed by the receiver;
Delivered by fax;
Delivered by hand;
Delivered by registered mail.
23. If any provision of this Agreement is found unenforceable, such provision shall be changed and interpreted in a way to accomplish the objectives of such provision to the greatest extent possible and the remaining provisions shall continue to be in force and have full effect.
24. Reseller shall defend, indemnify and hold Spotmau harmless from any or all claims, losses, damages, debts, settlements, costs, expenses and liabilities arising from the marketing and/or the distribution of the Products.
Governing Law and Disputes
25. This Agreement shall be governed by and construed in accordance with Hong Kong law. Any disputes arising in relation to this Agreement shall be settled by arbitration in accordance with the rules of the Hong Kong Arbitration Centre.