Terms

TERMS OF USE

Last updated 4/21/23

We appreciate you using our site, our products, and our services (collectively "Services"). The Services are provided by DillonMarcus, Ltd. ("DillonMarcus", "us", "we" or "our") headquartered at 22 Crofton Commons, Cherry Hill, NJ 08034. By using our Services, you are agreeing to these terms. Please read them carefully. Please follow any policies made available to you within the Services.

1. GENERAL INFORMATION

DILLONMARCUS & SPOT-IT PRODUCTS

These Terms & Conditions (“Terms”) contain the terms and conditions under which DillonMarcus is supplying content, products or services to you both the www.DillonMarcus.com ("Site") and the www.whynotspot-it.com (“Site”), through our applications (“Apps”) or by any other delivery methods (the Site, the Apps and the content, products, and services are collectively the “Product” or “Products” and may be updated from time-to-time at Spot-It’s sole discretion. Please read these terms and conditions carefully before ordering any Products from the Site or from third-party App stores (e.g. the Apple App Store, the Android Play Store, Amazon, etc.). The terms “Spot-It,” “us” or “we” refers to DillonMarcus. The term “Device” refers to any device you use to access the Products, such as computers, smart phones and tablets. The term “you” refers to the user of the Products. When you order (“Order”) any Products, or otherwise use or access the Products, you agree to be bound by these Terms and all applicable laws and regulations. You may also be asked to click “I accept” at the appropriate place prior to accessing the Products. If you do not click “I accept”, you may not be able to complete your purchase or gain access. By using the Products, you indicate that you accept these Terms and agree to abide by them. If you do not agree to these Terms, you must not use the Products.

IF YOU ARE NOT WILLING OR ABLE TO BE BOUND BY ALL OF THESE TERMS, THEN DO NOT ACCESS, BROWSE OR USE THE PRODUCTS. IF YOU DO NOT ABIDE BY THE TERMS, YOU AGREE THAT WE MAY IMMEDIATELY DEACTIVATE OR DELETE YOUR USER ACCOUNT AND ALL RELATED INFORMATION AND RESTRICT ANY FURTHER ACCESS TO THE PRODUCTS WITH OR WITHOUT NOTICE.

Our contact email address is [email protected]. All correspondence to Spot-It, including any questions you may have about the Products, or these Terms should be sent to this contact email address.

We are committed to protecting your privacy and security. For more information, you should review our Privacy Policy, which is incorporated into these Terms by this reference.

1.2 ARBITRATION NOTICE AND CLASS ACTION WAIVER

PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THE ARBITRATION CLAUSE, YOU AND SPOT-IT AGREE THAT DISPUTES RELATING TO THESE TERMS OR YOUR USE OF THE PRODUCTS WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1.3 BASIS OF LICENSE

These Terms and the Order set out the whole agreement for delivery and use of the Products.
We may from time to time, in our sole discretion, modify or supplement these Terms, or as we make new content or Products available you may be required to agree to additional terms and conditions to continue to access or participate in the Products. Any additional terms will be incorporated into these Terms as soon as they are posted on our Site. Under certain circumstances, we may also notify you of changes or updates to our Terms via pop-up or push notifications within the Products or by email. If any updated terms are inconsistent with these Terms, the additional terms will control. By continuing to access the Products once the updated terms take effect, you agree to be bound by them.
AS PART OF YOUR USE OF THE PRODUCTS, YOU AGREE TO THE PROCESSING AND STORAGE OF YOUR PERSONAL INFORMATION IN THE UNITED STATES, INCLUDING FOR THE PURPOSES OF PROCESSING PAYMENTS AND TRACKING INDIVIDUAL USE OF THE PRODUCTS. BY USING THE PRODUCTS, YOU ACKNOWLEDGE AND AGREE THAT THE UNITED STATES MAY NOT HAVE THE SAME LEVEL OF PROTECTIONS FOR YOUR PERSONAL INFORMATION THAT EXISTS IN YOUR COUNTRY OF RESIDENCE, AND YOU NONETHELESS CONSENT TO THE PROCESSING AND STORAGE OF YOUR PERSONAL INFORMATION IN THE UNITED STATES. WE WILL TAKE MEASURES AS REQUIRED TO COMPLY WITH APPLICABLE LAW REGARDING THE TRANSFER, STORAGE AND USE OF CERTAIN PERSONAL INFORMATION.

2.0 MEMBERSHIPS AND SUBSCRIPTIONS

2.1 BECOMING A MEMBER

(a) You must sign up as a registered user to use the Products (“Member”). To become a Member, you need to submit your first name, last name and email address to us in the relevant section of the sign-up process and create a password. You are responsible for maintaining the confidentiality of your account, the security of your password and for restricting access to your Device. You may not register for more than one Member account at a time.

(b) You may be asked to provide other personalized information (“User Information”) while using the Products. Our information collection and use policies for your User Information are contained in our Privacy Policy. You are solely responsible for the accuracy and content of your User Information, and you agree to keep it up to date. You must notify us immediately if you suspect any unauthorized use of your user account, or any suspected breach of security including loss, theft or unauthorized disclosure of your User Information.

(c) By registering for the Products, you are representing that: (i) you are at least 18 years of age and are legally capable of entering into binding contracts; (ii) all registration information you submit is truthful and accurate; (iii) you will maintain the accuracy of your User Information; and (iv) your use of the Products does not violate any applicable law.

2.2 MEMBERSHIP

By agreeing to become a Member, you may receive occasional emails, such as for special offers, marketing, or surveys with respect to the Product. You can easily unsubscribe from Spot-It commercial emails by following the opt-out instructions in these emails. Spot-It membership accounts and subscriptions are personal to you and are not transferable. You may not sell, transfer, or exchange membership accounts or subscriptions.

2.3 SUBSCRIPTIONS

(a) You are responsible for all charges and fees associated with connecting your Devices to the internet and for charges incurred while using the Products, which may include internet access fees (including telephone and/or internet service provider fees and taxes), or mobile data and data roaming charges, when applicable.

(b) Please note that if you purchase a subscription through the Apple iTunes Store or our iPhone application, the sale is final, and we will not provide a refund. Your purchase will be subject to Apple’s applicable payment policy, which also may not provide for refunds. If you purchase a subscription through the Google Play store, the sale is final, and we will not provide a refund. Your purchase will be subject to Google’s applicable payment policy, which also may not provide for refunds.

(c) You may access the Products via a subscription option paid in monthly installments. For each month that your monthly subscription is active, you acknowledge and agree that Spot-It is authorized to charge the same credit card that was used for the initial subscription fee (the “Payment Method”). The monthly renewal subscription fees will continue to be billed to the Payment Method you provided until canceled. You must cancel your subscription before it renews to avoid having the next month’s subscription fee billed to the Payment Method you provided. We cannot offer refunds for any partial-month subscription period.

(d) You agree to promptly notify Spot-It of any changes to your Payment Method while any subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, for all Products that you have purchased.

(e) While you are using the Products, Spot-It’s third-party payment service provider may receive updated credit card information from your credit card issuer to prevent your subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. Should you desire to do so, please contact your credit card issuer.

(h) Our obligation to provide the Products begins after we receive and acknowledge your Order, and once we’ve confirmed your purchase to you by email. Please provide the relevant Order number in any subsequent correspondence with us. Prices include local taxes and any applicable VAT unless otherwise stated. You agree that we are not responsible for banking charges incurred due to payments on your account. If we are unable to receive payments from the Payment Method you provided, you agree to pay all amounts due upon demand by us. You agree that you are not permitted to resell any Products for commercial purposes.

2.4 DEVICE REQUIREMENTS

To enjoy the Products on your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the Site and on the third-party app marketplaces where the Products are accessed. Please check and confirm that your Device is compatible with the system requirements prior to making a purchase of any Products.

2.5 CORPORATE AND OTHER CONSUMER COMMUNITIES

You may be introduced to the Products via a partnership with a member community (corporations, universities, hospitals, etc.) (“Community” or “Communities”) who purchases or introduces the Products to their employees and members. In some cases, these Communities may supplement these Terms with their own terms and conditions, which may include additional terms around subscription redemption, usage or payment, and these Community terms and conditions will also apply to your use of the Products. In the event of any conflict with any Community terms and these Terms, the Community terms will prevail.

2.6 CHANGING FEES AND CHARGES

We reserve the right to change our subscription plans or adjust pricing for our Products in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms, any price changes or changes to your subscription plan will take effect following notice to you.

3. CANCELLATION OF SERVICES

3.1 CANCELLATION BY YOU

You may cancel a monthly subscription at any time. Cancellation is effective at the end of the applicable month. Please make any such cancellation by emailing: [email protected]

(b) Please note that if you purchase a subscription through the Apple iTunes Store or our iPhone application, you may cancel your subscription by canceling automatic renewal of paid in-app subscriptions by selecting Manage App Subscriptions in your iTunes Account settings and selecting the subscription you want to modify. If you purchase a subscription through the Google Play store you may cancel automatic renewals in account settings under Subscriptions in the Google Play app, or according to the current process outlined by Google Play.

3.2 CANCELLATION BY US

We may suspend or terminate your use of the Products if you engage in any fraud or commit a breach of any obligation under these Terms, including the unauthorized copying or downloading of our audio or video content from the Products. Such termination or suspension may be immediate and without notice.

3.3 PROMOTION AND DISCOUNT CODES
Any promotion code or offer that we provide may not be used in conjunction with any other promotion code or offer, past or present. Introductory offers are only available to new users of the Products, except where expressly stated otherwise. Previous users or trial users of the Products do not qualify as new users. No promotion code or discount will apply to corporate or other Community subscriptions. Unless otherwise set forth in the terms of any promotion, all pricing promotions or discounts will apply to the initial period of the subscription, and any renewals will be charged at the non-discounted rate for the type of subscription purchased.

4. PROHIBITED USE OF THE PRODUCTS

4.1 MALICIOUS CODE

You agree not to upload, post, email or otherwise send or transmit or introduce any material that contains software viruses, or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Products or the Products themselves. You agree not to interfere with the servers or networks underlying or connected to the Products or to violate any of the procedures, policies or regulations of networks connected to the Products. You may not access the Products in any unauthorized manner.

4.2 ILLEGAL USE

You agree not to impersonate any other person while using the Products, or to use the Products for any illegal, immoral or harmful purpose.

4.3. REFERRAL TO LAW ENFORCEMENT

We may report any breaches of this section that would constitute a criminal offense under applicable law to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Products will cease immediately.

4.4 OTHER IMPROPER USE

You agree not to use the Products for any purposes related to scientific research, analysis or evaluation of the Products without the express written consent of Spot-It.

5. OWNERSHIP

5.1 COPYRIGHT

(a) All materials (including software and content whether downloaded or not) contained in the Products are owned by Spot-It (or our affiliates and/or third-party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the materials are valuable property and that other than the specific and limited license for your use of the Products, you are not acquiring any ownership rights in these materials. The materials may not be used except as provided for in these Terms without our prior written permission.

(b) You acknowledge that certain materials included in the Products are the property of third-party licensors and these licensors also have the right to directly enforce the Terms against you.

€ Materials or content from the Products that is not explicitly offered as downloadable may not be downloaded or copied from the Products.

(d) The Products are not intended for your commercial use. You may not use any part of the content in the Products for commercial purposes without first obtaining a written license from us. Material from the Products may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Any unauthorized use or violation of these Terms immediately and automatically terminates your right to use the Products and may subject you to legal liability. Appropriate legal action may be taken for any illegal or unauthorized use of the Products.

€ You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Products. Spot-it will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.

5.2 TRADEMARKS

Spot-It, the Spot-It logo and all other Spot-It product or service marks are trademarks of DillonMarcus. All intellectual property, other trademarks, logos, images, and names displayed or referred to in the Products are the property of their respective owners. Nothing in these Terms grants you any license or right to any of the service marks or trademarks associated with the Products.

6. AVAILABILITY OF PRODUCTS

6.1 AVAILABILITY

Although we aim to offer you the best service possible, we make no promise that the Products will meet your requirements and we cannot guarantee that the Products will be fault-free. If a fault occurs in the Products, please report it to us at [email protected]. We may need to temporarily suspend access to the Products while we address the fault, or to allow for repairs, maintenance or the introduction of new facilities or Products. We will not be liable to you if the Products are unavailable for a commercially reasonable period of time to allow for corrections, updates or repairs.

7. USER MATERIAL

7.1 SUBMISSION OF USER MATERIAL

The Products may let you submit material to us: for example, you may be able post comments or images in certain functions or features of the Product. In these Terms, we use the term “User Material” to refer to any publicly available material of any kind that you submit to us, including text, files, images, photos, video, sounds and musical or literary works. User Material does not include the account information, Product purchase, or Product use information which you provide in registering for and using Products.

7.2 RIGHTS

This section 7 sets out the rights and obligations that each of us have in connection with User Material. If you review or submit User Material, you are agreeing to do so in accordance with these Terms. If you do not want to abide by these Terms, then you should not submit any User Material

7.3 NO REVIEW OF USER MATERIAL

We do not systematically review User Material submitted by you or other users. We are not responsible for the content of User Material provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about User Material, including as to its legality or accuracy.

7.4 RIGHT TO EDIT OR REMOVE

We reserve the right, in our sole discretion, to refuse to post or to remove or edit any of your User Material, or to restrict, suspend, or terminate your access to all or any part of the Products, particularly where User Material breaches this section 7, and we may do this with or without giving you any prior notice.

7.5 LINKS

We may link User Material or parts of User Material to other material, including material submitted by other users or created by Spot-It or other third parties. We may use User Material for our internal business purposes, for example, to examine trends or categories or to promote, market or advertise Spot-It. You acknowledge that we may indirectly commercially benefit from use of your User Material.

7.6 REQUIREMENTS

Each time you submit User Material to us, you represent and warrant to us as follows:

(a) You own your User Material or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trademark), privacy or publicity rights, rights of confidentiality or rights under contract.

(b) Your User Material is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give rise to civil liability, violate any law, or is otherwise deemed inappropriate.

(d) Your User Material does not identify any individual (including by way or name, address or a still picture or video) under the age of 18 and if User Material identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your User Material; and in submitting your User Material you are not impersonating any other person.

(e) You will not collect email addresses of users for the purpose of sending unsolicited email.

(f) You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another user or person.

(g) You will not engage in any automated use of the system, such as using scripts to alter our content.

(h) You will not, without authorization, access, tamper with, or use non-public areas of the Products, Spot-It’s computer systems, or the technical delivery systems of Spot-It’s providers.

(i) Except as necessary to maintain your own computer security by use of commercial-off-the-shelf anti-virus or anti-malware products, you will not attempt to probe, scan, or test the vulnerability of the Products or any other Spot-It system or network or breach any security or authentication measures.

7.7 THIRD PARTY CLAIMS

We are entitled to identify you to third parties who claim that their rights have been infringed by User Material you have submitted.

7.8 OTHER CLAIMS

User Material is not considered to be confidential. You agree not to submit any content as User Material in which you have any expectation of privacy. We do not claim any ownership rights in User Material. However, by submitting User Material you hereby grant Spot-It an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the User Material you post on the Products, or any portion thereof, and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such User Material, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. Spot-It may include your User Material in Spot-It’s Distribution Content that is made available to others through the Products. Be aware that Spot-It has no control over User Material once it leaves the Products, and it is possible that others may duplicate material found on the Products, including, but not limited to, on other sites on the Internet. You represent and warrant that you own or otherwise control the rights to your User Material. You agree to indemnify Spot-It and its affiliates for all claims arising from or in connection with any claims to any rights in your User Material or any damages arising from your User Material.

7.9 SUBMISSIONS

Any inquiries, feedback, suggestions, ideas, other information which is not part of your use of the Products or User Material that you provide to us (collectively, “Submissions”) will be treated as non-proprietary and non-confidential. By transmitting, uploading, posting, emailing, or otherwise submitting Submissions, you grant to Spot-It an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the Submissions, or any portion thereof and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to grant and authorize sub-licenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. You also acknowledge that your Submissions will not be returned to you and that Spot-It has no obligation to acknowledge receipt of or respond to any Submissions. If you make a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You agree to indemnify Spot-It and its affiliates for all claims arising from or in connection with any claims to any rights in any Submission or any damages arising from any Submission.

8. LINKS TO WEBSITES/HOME PAGE

8.1 OTHER SITES

We may provide links to other websites or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We are not responsible in any way for:(a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, or (d) your or anyone’s use of or reliance on these other websites or services.

8.2 HOME PAGE

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The Products must not be framed on any other website, nor may you create a link to any part of the Products unless you have written permission to do so from Spot-It. We reserve the right to withdraw linking permission with written notice. The website from which you are linking must comply in all respects with the content standards set out in our acceptable use policy. If you wish to make any use of material on or in the Products other than that set out above, please address your request to [email protected].

9. PRODUCTS DISCLAIMER

The information contained in the Products is for general information purposes only. While we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Products or the information contained on the Products for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

10. MEDICAL DISCLAIMER

10.1 NOT MEDICAL ADVICE

Spot-It is a provider of online and mobile content for workplace wellness. We are not a health care or medical device provider, nor should our Products be considered medical advice. Only your physician or other health care provider can do that.

10.2 NO CLAIMS

Any health information and links on the Products, whether provided by Spot-It or by contract from outside providers, is provided simply for your convenience. Spot-It makes no claims, representations or guarantees that the Products provide a physical or therapeutic benefit.

10.3 NO REPRESENTATIONS OR WARRANTIES

Any advice or other materials in the Products are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on your individual condition and circumstances. The advice and other materials we make available are intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any consequences of your having read or been told about such advice or other materials as you assume full responsibility for your decisions and actions. To the fullest extent permitted by law, we make no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published as part of the Products.

11. END USER LICENSE

11.1 Subject to the terms of this license agreement (“License Agreement”), as set out in this section 11, and these other Terms, and your payment of applicable subscription fees, Spot-It grants you a limited, non-exclusive, revocable license to stream, download and make personal non-commercial use of the Products.

11.2 The Products contain or embody copyrighted material, proprietary material or other intellectual property of Spot-It or its licensors. All right, title and ownership in the Products remain with Spot-It or its licensors, as applicable. The rights to download and use the Products are licensed to you and are not being sold to you, and you have no rights in them other than to use them in accordance with this License Agreement and our other Terms.

11.3 You agree that you will not and you will not permit any third party to:

(a) Copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, de-compile, or disassemble the Products in any way, or create derivative works of the Products;

(b) Use the Products or any part of them to create any tool or software product that can be used to create software applications of any nature whatsoever;

(d) Tamper with the Products or circumvent any technology used by Spot-It or its licensors to protect any content accessible through the Products;

(e) Circumvent any territorial restrictions applied to the Products; or

(f) Use the Products in a way that violates this License Agreement or the other Terms.

11.4 You may not make the Products available to the public. The Products made available (in whole or in part) are owned by Spot-It or its licensors and your use of them must be in accordance with these Terms.

12. DIGITAL MILLENIUM COPYRIGHT ACT (“DMCA”) NOTICE

12.1 REQUIREMENTS

We are committed to complying with copyright and related laws, and we require all users of the Products to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Products in any manner that constitutes an infringement of third-party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.

12.2 PROCESS

If you feel that a posted message is infringing, we encourage you to contact us immediately at [email protected] with subject line “DMCA Notice”. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue.

12.3 INFORMATION TO PROVIDE

If you believe that your work has been copied and posted on the Products in a way that constitutes copyright infringement, please provide us with the following information:

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;

(d) Your address, telephone number, and email address;

(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and

(f) A statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

13. GENERAL TERMS AND CONDITIONS

13.1 ASSIGNMENT BY US

Spot-It may transfer its rights and obligations under these Terms to any company or person at any time if the transfer does not materially affect your rights. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.

13.2 INDEMNITY BY YOU

You agree to defend, indemnify and hold Spot-It and its directors, officers, licensors, members, investors, managers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from (i) your negligent, reckless, or willful misuse of the Products, (ii) your Submissions through the Products, (iii) any third-party claims of bodily injury, death, or damage to real or tangible personal property caused by your negligent or more culpable acts or omissions related to your use of the Products; or (iv) your violation of the law or of these Terms. Spot-It reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Spot-It’s defense of such claim.

13.3 WARRANTIES AND LIMITATIONS

(a) This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.

(b) We warrant to you that any Product purchased from us will, on delivery, conform in all material respects with its description and be of reasonably satisfactory quality.

(c) We warrant that we will use reasonable skill and care in making the Products available to you during your subscription.

(d) Notwithstanding anything to the contrary, you assume full responsibility for your own use of the Products. In no event shall Spot-It be liable to you, your heirs, or assigns or to any third party for any loss, death, damage, or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Products or other activities you undertake in connection with your use of the Products, unless caused by Spot-It’s gross negligence, recklessness, or willful misconduct.

(e) The Products and their content are otherwise provided on an “as is” basis and we make no representations or warranties of any kind with respect to them, including as to the accuracy, completeness or currency of the Products or their content. We assume no liability or responsibility for any errors or omissions in the content of the Products, or any failures, delays, or interruptions in the provision of the Products. We disclaim and exclude any express or implied warranties or representations, including any warranties as to merchantability or fitness for a particular purpose of the Products to the broadest extent permitted by law. We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the content and information posted on the Products. We make no warranties or representations, express or implied, for technical accessibility, fitness or flawlessness of the Products. We make no warranties or representations that your use of content and information posted on the Products will not infringe rights of third parties.

(f) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are hereby excluded to the extent permitted by law.

13.4 NO WAIVER

If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right.

13.5 FORCE MAJEURE

We will not be liable to you for any lack of performance, or the unavailability or failure, of the Products, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.

13.6 INTERPRETATION

In these Terms, unless the context requires otherwise: (i) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and (ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.

13.7 ELECTRONIC COMMUNICATIONS

(a) Applicable laws require that some of the information or communications we send to you should be in writing. When using the Products, you agree to transact with us electronically, and that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on the Products. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.

(b) In order to retain a copy, please either print or save the text to a file on your Device.

(c) You have the right to receive a paper copy of the communications. To receive a paper copy, please request it by emailing us at [email protected].

(d) We may charge you a reasonable service charge to mail you a paper copy of any communication. We will either include such service charge on our fee schedule or we will first inform you of the charge and provide you with the choice as to whether you still want us to send you a paper copy. Please be sure to state that you are requesting a copy of the particular communication.

(e) You can also contact us via email at [email protected] to unsubscribe from further communications, which will take effect within a reasonable time after we receive your request. Unsubscribing from communication may impact your ability to use the Products.

(f) We reserve the right, in our sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which we provide electronic communications. We will provide you with notice of any such termination or change as required by law.

13.8 NOTICES

Unless otherwise specifically indicated, all notices given by you to us must be given to Spot-It at [email protected]. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in section 13.7 above. Notice will be deemed received and properly served immediately when posted on the Products or when an e-mail or other electronic communication is sent. In proving the service of any notice via email, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.

13.9 ENTIRE AGREEMENT

These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this section limits or excludes any liability for fraud.

13.10 THIRD PARTY RIGHTS

A person who is not party to these Terms will not have any rights under or in connection with these Terms.

13.11 LIMITATION OF SPOT-IT’S LIABILITY

(a) We will use reasonable endeavors to remedy faults in the Products. If we fail to comply with these Terms, your sole and exclusive remedy and our entire obligation and liability to you will be strictly limited to the actual amount paid by you for the Products in question. In addition, we will not be liable for:

(i) Faulty operation of computers during the registration process or during completion of a subscription or during the transmission of any data and/or for incorrect or overly slow transmission of data by the internet provider and/or any damage that occurs due to information submitted by you not being received by us or not being received promptly or not being considered, as a consequence of technical faults with our software or hardware (whether or not they are within or outside of our control).

(ii) Any loss or damage due to viruses or other malicious software that may infect your Device, computer equipment, software, data or other property caused by you accessing, using or downloading from the Products, or from transmissions via emails or attachments received from us.

(iii) Any use of websites linked to the Products but operated by third parties.

(b) TO THE FULLEST EXTENT PERMITTED BY LAW, SPOT-IT AND ITS AFFILIATES, SUPPLIERS, CLIENTS OR LICENSORS (COLLECTIVELY, THE “PROTECTED ENTITIES”) SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT, ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE PRODUCTS OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE PRODUCTS, OR LOST BUSINESS OR LOST SALES, OR ANY ERRORS, VIRUSES OR BUGS CONTAINED IN THE PRODUCTS, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON OR THROUGHOUT THE PRODUCTS. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE TERMS OF USE OR YOUR USE OF THE PRODUCTS EXCEED, IN THE AGGREGATE, THE ACTUAL AMOUNT, IF ANY, PAID BY YOU TO SPOT-IT FOR YOUR USE OF THE PRODUCTS IN QUESTION.

(c) Notwithstanding anything to the contrary, you assume full responsibility for your own use of the Products. In no event shall Spot-It be liable to you, your heirs, or assigns or to any third party for any loss, death, damage, or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Products or other activities you undertake in connection with your use of the Products. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

13.12 DISPUTE RESOLUTION AND BINDING ARBITRATION

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH SPOT-IT, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SPOT-IT INCLUDING A LIMITATION ON THE RIGHT TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM.

(a) All disputes arising out of, relating to, or in connection with these Terms or your use of the Products that cannot be resolved informally or in small claims court will be resolved through binding arbitration on an individual basis, except that you and Spot-It are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.

(b) Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules (“AAA Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator. If the claim is for $10,000 or less, the party initiating the arbitration may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county of your billing address. In the case of an in-person hearing, the proceedings will be conducted at a location which is reasonably convenient for both parties with due consideration of the ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by the arbitration institution. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA Rules with the remainder paid by Spot-It. If the arbitrator finds that either the substance of your claim or the relief sought in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Spot-It for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the way the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

(c) The arbitrator will have exclusive authority to decide the jurisdiction of the arbitrator, including any challenge that the arbitration provision or the Agreement is void, voidable, or otherwise invalid. The arbitrator shall also have the exclusive authority to determine the rights and liabilities, if any, of you and Spot-It. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award all remedies available under applicable law, the arbitral forum's rules, and the Terms. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Spot-It.

(d) Except where not permitted by law, you and Spot-It waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury. Rather, you and Spot-It elect to have claims and disputes resolved by arbitration. In any litigation between you and Spot-It over whether to vacate or enforce an arbitration award, you and Spot-It waive all rights to a jury trial and elect instead to have the dispute be resolved by a judge.

(e) Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND SPOT-IT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR CONSOLIDATED ACTION. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Spot-It are entitled to arbitration; instead, all claims and disputes will be resolved in a court as set forth in section 13.13 below.

(f) Opt-out. YOU MAY OPT-OUT OF THIS ARBITRATION AGREEMENT. If you do so, neither you nor Spot-It can force the other to arbitrate. To opt-out, you must notify Spot-It in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, and the email address you used to set up your Spot-It account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must send your opt-out notice to [email protected].

(g) Small Claims Court. Notwithstanding the foregoing, either you or Spot-It may bring an individual action in small claims court.

(h) Public Injunction Exclusion. Notwithstanding the foregoing, you may pursue a claim for public injunctive relief either in court or through arbitration.

(i) Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Spot-It.

13.13 EXCLUSIVE VENUE

To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Spot-It agree that all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in a court located in Camden County in the State of New Jersey having appropriate subject matter jurisdiction. You and Spot-It consent to the personal jurisdiction of any such court.

13.14 CHOICE OF LAW

Except to the extent that they are preempted by U.S. federal law, the laws of New Jersey will govern these Terms and any disputes arising out of them, including tort claims, but excluding its conflict-of-laws principles.

13.15 SEVERABILITY

If any provision of these Terms is determined to be unenforceable, then that provision will be severed from these Terms but will not affect the validity and enforceability of any remaining provisions.

These Terms are effective and were last updated on Arpil 21, 2023.

DillonMarcus is headquartered at 22 Crofton Commons, Cherry Hill, NJ 08034