Welcome to http://www.hotspotty.net. These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “Hotspotty Services”). The Hotspotty Services are offered to you subject to your acceptance, without modification (other than Special Terms (as defined below) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, guidelines, policies (including, without limitation, our Privacy Policy at http://www.hotspotty.net/privacy-policy), and any future modifications thereof, and procedures that may be published from time to time on the Platform or made available to you on or through the Hotspotty Services (collectively, the “Terms”). When accepted by you (as defined below), these Terms form a legally binding contract between you and Supplier (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE HOTSPOTTY SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE HOTSPOTTY SERVICES.
Supplier may, in its sole discretion, elect to suspend or terminate access to, or use of the Hotspotty Services to anyone who violates these Terms.
If you register for a free beta version or a free trial of the Hotspotty Services, the applicable provisions of these Terms will govern the beta and the trial.
The original language of these Terms is English. Suppliers may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.
1. Definitions
Account
the primary means for accessing and using the Hotspotty Services, free of charge for the basic functionally but subject to payment of a Fee designated in the selected Plan;
Activity
simulations, locations, testing, commissions processing, recording, contact management and any other actions (such as linking, tracking, messaging, monitoring etc.) that can be associated with a User, a person, a Workspace or an Organization;
Additional Terms
Provisions applicable to the Client’s use of a particular Feature as indicated by the Supplier in relevant areas of Hotspotty Services;
App
Hotspotty mobile application available on iOS and Android
Authorization
the set of rights and privileges on the Web Site or App assigned to a User by a Client;
Beta Service
A Feature or functionality of Hotspotty Services that is in development or has not been released as a final product which Supplier has made available to Client for testing and evaluation;
Client
a natural or legal person who has accepted these Terms with the Supplier;
Client Data
Files and any other digital data and information, which is subjected to the Hotspotty Services or otherwise inserted to the System by the Client (including the specific Users, Products, Persons, Organizations, Activities, Locations, Payment Terms, Payment Amounts and Commission Frequency associated with the Client);
Content
any data and information available through Hotspotty Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Discord
Refers to http://www.discord.com instant messaging service provided by Discord Inc., its subsidiaries, and its related companies.
Hotspot
A Helium mining hotspot;
Feature
A function or set of functions providing a particular capability within Hotspotty Services as determined by the Supplier;
Fee
regular payment for using the activated Account;
Files
documents of any kind (images, spreadsheets, text files, etc.) that are inserted to the System by the Client, and usually associated with a particular Hotspot, Person or Location;
Free Trial
temporary access for the purposes of trying out the Web Site or App and Hotspotty Services in accordance with any selected Plan without paying a Fee;
Guidelines
additional guidelines or rules applicable to specific Features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the Hotspotty Services;
Organization
legal persons (such as companies) and other entities with which that Client is making Deals;
Hotspotty
Hotspotty Ltd, a private limited company established under the laws of the Republic of Bulgaria, and registered in Bulgarian Commercial Register under code 206521211.
Plan
various criteria related to the use and functionality of the Services and on which the Fee is based;
Platform
Hotspotty, an all-in-one tool for building the Helium network. Understand your hotspot data, plan, monitor and manage your hotspots and payouts, collaborate with the community and your team, optimize network performance and HNT earnings.
Products
the goods or services that a Client is offering to persons and Organizations;
Reseller
third party entity that (i) purchases Hotspotty Services and resells such Hotspotty Services to Clients, (ii) bills such Clients directly and (iii) provides such Clients with customer service;
Special Terms
any particulars, specifications and conditions by which the parties have agreed to deviate from these Terms;
Supplier
As the context requires, Hotspotty Ltd or any subsidiaries;
System
the integrated cloud computing solution for providing the Hotspotty Services, including applications, software, hardware, databases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
User
a natural person granted with the Authorization to participate in a Workspace assigned to the User by a Client;
Web Site
the compilation of all web documents (including images, php and html files) made available via http://www.hotspotty.net or its sub domains or domains with identical names under other top domains and owned by Supplier.
Workspace
A Hotspotty Workspace is generated when an Account is created. Every created account has a free of charge Workspace under the Hotspotty Community Plan.
2. Authority to Enter into These Terms with Supplier
The use of the Hotspotty Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The Terms are accepted as soon as one of the following occurs first:
a) the person has received the confirmation of the creation of the Account from Supplier in order to log in to his/her/its Account; or
b) for those Hotspotty Services and parts of the Web Site the use of which is not dependent on creating an Account, upon the moment of gaining access to such services.
You may not, without Hotspotty’s prior written consent, access the Hotspotty Services (i) for production purposes, (ii) if you are a competitor of Hotspotty, (iii) to monitor the availability, performance or functionality of the Hotspotty Services or (iv) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
3. Modifications to Terms
Hotspotty reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or the Hotspotty Services. Please check these Terms periodically for changes. Your continued use of the Hotspotty Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the Hotspotty Services, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Supplier will be governed by the Terms in effect at the time such dispute arose.
4. Our Responsibilities
4.1. Provision of Hotspotty Services
Hotspotty will (a) make the Hotspotty Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the Hotspotty Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the Hotspotty Services available 24 hours a day, 7 days a week, except for:
(i) planned downtime (of which Hotspotty shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond Hotspotty’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
4.2. Protection of Client Data
Hotspotty will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by Hotspotty personnel except (a) to provide the Hotspotty Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.
Hotspotty may use service providers to perform the Services. Hotspotty shares as little information as possible and encrypts and/or makes it impossible for Client to be identified by the recipient where possible (for instance by using a User ID). Hotspotty will make commercially reasonable efforts to ensure that data transfers to service providers meet requirements applicable to Clients’ processing of data and will provide information on such data transfers in these Terms for Client’s consideration.
By agreeing to these Terms, the Client authorizes Hotspotty (a general written authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679) to engage the following service providers for the purposes of performing the Services.
List of service providers processing Client Data:
Hetzner Online GmbH
hetzner.com
Datacenter provider where Hotspotty hosts all Services.
Mailgun
mailgun.com
Transactional email software used to send emails from the SaaS, such as registration, notifications, etc (not marketing or newsletters).
Backblaze
Backblaze.com
Backup software used to take snapshots of the databases.
Mailchimp
Mailchimp.com
SaaS service to send marketing and newsletters to users.
Amazon SES
aws.amazon.com/ses/
Transactional email services.
Google Analytics
google.com/analytics
Website analytics services to anonymously track user engagement and visits to the website.
Canny
canny.io
Service to request user feedback for new feature implementations, suggestions, and bug reports.
Intercom
intercom.com
Software used to provide live chat and support to users.
Mapbox
mapbox.com
Software that provides map and geolocation data.
Sentry
sentry.io
Software used to track bugs in the application, which records basic user interactions to the software along with server error messages.
Stripe
stripe.com
Payment processor used to charge customers for the Hotspotty Service, which holds all users data regarding payment such as credit-card information, addresses and more.
Goaffpro
goaffpro.com
Software used for referral marketing that generates cookies inside the User computer.
5. Using the Hotspotty Services
5.1 Establishing an Account
Certain Features, functions, parts or elements of the Hotspotty Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
a) complete the activation process on the Web Site or app by connecting to an existing Discord account; and
b) accept these Terms by interacting with the website or app while being authenticated through step a
Clients that create an Account as described above get automatically generated a Workspace linked to the Account. This automatically generated Workspace is free of charge as granted by the Hotspotty Community Plan. Each Client may have only one Account with one free Workspace under the Hotspotty Community Plan. If several persons need to collaborate on an Account on behalf of Client, Client must designate such persons as Users of Client Workspace. Collaboration between persons within a Workspace is only possible for Clients with paid plans. Each such User shall be subject to the restrictions set in these Terms, and will have to complete the activation process on the Web Site by connecting to Discord and accepting these Terms.
If Client has invited Users to its Workspace within a paid plan, such Users will be deemed to be authorized to act on behalf of Client when using the designated Workspace within the Account. Hotspotty is not responsible for and shall have no liability for verifying the validity of authorization of any User added by the Client to a Workspace.
A User may be associated with multiple Clients and Workspaces. Deleting a User from a Workspace will not remove the User from the Platform as the User becomes a Client as soon as the User creates an Account to participate in any existing Workspace.
5.2 Logging Into an Account
Hotspotty does not provide Client with a username and password, and the Client must have an active Discord Account to log in to Client Hotspotty Account. If Client has designated several Users, each User must provide separate Discord Credentials to create a Hotspotty Client Account and be assigned to Client Workspace as User.
It is the responsibility of Client to terminate and disconnect Users from Workspaces when a User changes its role in Client’s organization or Client wants to terminate a User from a Workspace for any reason.
5.3 Termination of Account
Client is free to stop using Hotspotty and may terminate these Terms at any time as provided in Section 17. To delete Information associated with an Account Client must delete all Workspaces linked to the Account, which will leave the Account with one single Community Plan Workspace, that should remain empty. To permanently delete an Account Client shall contact Hotspotty on [email protected] and request a formal deletion.
5.4 Fees
Hotspotty operates with a freemium model. This means that Hotspotty Client gets access to one Workspace with limited functionalities free of charge under Hotspotty Community Plan. Clients that require greater functionalities than provided in the free Hotspotty Community Plan must choose a different Hotspotty Plan that is subject to a Fee. Different rates apply to different Plans. The applicable Fee is charged in advance on monthly payment intervals, unless agreed otherwise between parties. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, Client elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.
Client can at any time elect to downgrade a Plan which triggers a scheduled downgrade at the end of the current billing cycle. It is the responsibility of Client to ensure that the Workspace does not exceed the limitations of a Plan that Client is downgrading to.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
5.5 Changing Plans
Any Client has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by Hotspotty. In such an event, the Client’s credit card on file with Stripe will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan. If the upgrade happens mid-cycle the Fee will be calculated pro-rata.
Downgrading of the current Plan may cause the loss of Features, functionality, or capacity of the Account, as well as the loss of Client Data.
5.6 Free Trial
A new Client may be entitled to a Free Trial of functionalities outside of the Hotspotty Community Plan. The Client is not required to provide any credit card information during the period of Free Trial. If the period of Free Trial has expired, the Account will be automatically fall back to the Hotspotty Community Plan. In order to prevent deactivation or to reactivate functionalities, the Client is required to select a suitable Plan and pay the first Fee. If the Client does not pay the first Fee within 2 weeks as of the expiry of the Free Trial, Hotspotty has the right to permanently delete the Account, including all Client Data therein.
In addition to the current collection of Plans, Hotspotty may offer special discounts and motivation schemes (for example finder’s fees, etc.).
6. Payment
6.1 Payment Card Authorization
Hotspotty may seek pre-authorization of Client’s payment card account prior to your purchase of Hotspotty Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You authorize such payment account to pay any amounts described herein, and authorize Hotspotty to charge all sums described in these Terms to such card account. You agree to provide Hotspotty updated information regarding your payment account upon Hotspotty’s request and any time the information earlier provided is no longer valid.
6.2 Direct Debit Payments
In some markets Hotspotty may, if Client elects, request that Client complete a direct debit mandate to enable direct debit payments. In such cases Hotspotty shall comply with all applicable national rules and regulations related to direct debit payments.
We use Stripe to process your Direct Debit payments. More information on how Stripe processes your personal data and your data protection rights, including your right to object, is available at stripe.com/en-pt/privacy
6.4 Overage Charges
Upon delay with any payments, Hotspotty may require the Client to pay interest on the delay (penalty for late payment) for the period as of the time the payment obligation falls due until conforming performance is rendered. The interest rate of penalty for late payment due to Hotspotty Ltd shall be the interest rate specified in the statutory right to interest on late payments as provided for in Bulgarian Obligations and Contracts Act Article 86. The statutory rate is determined by the Council of Ministers Decree as the sum of the basic interest rate of the Bulgarian National Bank for Bulgarian Leva plus 10%. Upon calculation of the penalty for late payment, one year shall be deemed to contain 360 calendar days.
7. Client data
7.1 Uploading Client Data to Platform
If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organizations) whether posted and/or uploaded by you or made available on or through the Hotspotty Services. By uploading Client Data to the Platform, Client authorizes Hotspotty to process the Client Data. The Client is responsible for ensuring that:
the Client and any of the Users associated with the Account or individual Workspaces linked to the account do not create, transmit, display or make otherwise available any Client Data that violates the terms of these Terms, the rights of Hotspotty, other Clients or Users, persons or Organizations or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
the Client and all of the Users associated with the Account or individual Workspaces linked to the Account have the necessary rights to use the Client Data, including to insert it into the Platform and process it by means of the Account.
7.2 No Guarantee of Accuracy
Hotspotty does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Hotspotty Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not Hotspotty, is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the Hotspotty Services, as well as for any actions taken by Hotspotty or other Clients or Users as a result of such Client Data.
7.3 Unlawful Client Data
Hotspotty is not obliged to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of Hotspotty or if there is reason to believe that certain Client Data is unlawful, Hotspotty has the right to:
a) notify the Client of such unlawful Client Data;
b) deny its publication on the Web Site or its insertion to the System;
c) demand that the Client bring the unlawful Client Data into compliance with these Terms and applicable law;
d) temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it.
If Hotspotty is presented convincing evidence that the Client Data is not unlawful, Hotspotty may, at its sole discretion, restore such Client Data, which was removed from the Web Site or Account or access to which was restricted.
In addition, in the event Hotspotty believes in its sole discretion Client Data violates applicable laws, rules or regulations or these Terms, Hotspotty may (but has no obligation), to remove such Client Data at any time with or without notice.
Without limiting the generality of the preceding sentence, Hotspotty complies with the Digital Millennium Copyright Act, and will remove Client Data from the Platform upon receipt of a compliant takedown notice.
Hotspotty Ltd as the data processor will assist the Client as the data controller in meeting the Client’s obligations under Regulation (EU) 2016/679, providing subject access, and allowing data subjects to exercise their rights under Regulation (EU) 2016/679.
7.4 Compelled Disclosure
Hotspotty may disclose a Client’s confidential information to the extent compelled by law to do so. In such instances, Hotspotty will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If Hotspotty is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which Hotspotty is a party, and Client is not contesting the disclosure, Client will reimburse Hotspotty for its reasonable cost of compiling and providing secure access to that confidential information.
8. Services
8.1 Use of the Hotspotty Services
Subject to these Terms, and the payment of the applicable service Fee, Hotspotty grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the Hotspotty Services to:
collect, store and organize Client Data, such as add new Persons and Organizations, create tags, flows and add commission terms, generate reports based on Client Data, add Contacts information and monitor hotspots performance data; model location and hotspot performance, analyze the network, communicate with Helium Network Users, connect with Manufacturers and other parties; add new Users to Workspaces and grant them Authorizations, assign Activities to a particular User;
modify and delete Client Data;
customize the standard Features or functionality of the Hotspotty Services;
receive reasonable help and guidance Hotspotty regarding the use of the Hotspotty Services.
If Hotspotty determines Client usage of the Services to be outside of the permitted and intended use as outlined herein, or bandwidth usage of the Service or any Features or functionality to be significantly excessive in relation to other Users, Hotspotty reserves the right to suspend respective Client Account, (or part thereof) until Client assures Hotspotty that Client shall refrain from further abuse of the Services.
8.2 Technical Support.
Hotspotty shall provide reasonable technical support to Client and its authorized User at the reasonable request of the Client. Hotspotty shall respond to enquiries of support from a Client utilizing the contacts set below as soon as reasonably possible. Responding to enquiries of Clients and Users who have accepted these Terms but do not have an Account may be less expedient, or may not occur at all.
The contacts for all enquiries of support are:
a) intercom at https://hotspotty.net/,
b) e-mail: [email protected]
Notwithstanding the foregoing, if you purchased access to the Hotspotty Services from a Reseller, then first-line technical support will be provided by the Reseller and not by Hotspotty.
8.3 Modifications to Service
Hotspotty reserves the right to modify the Hotspotty Services or any part or element thereof from time to time without prior notice, including, without limitation:
a) rebranding the Hotspotty Services at its sole discretion;
b) ceasing providing or discontinuing the development any particular Hotspotty Service or part or element of the Platform temporarily or permanently;
c) taking such action as is necessary to preserve Hotspotty’s rights upon any use of the Hotspotty Services that may be reasonably interpreted as violation of Hotspotty’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
As applicable, Client may be notified of such modifications when logging in to the Account. Modifications, including change in applicable rates for the Hotspotty Services, will become effective thirty (30) days before the effective date of such modification.
If the Client does not accept the modification, the Client shall notify Hotspotty before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Client’s continued use of the Hotspotty Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Hotspotty shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Hotspotty Services, or any part or element thereof.
8.4 Additional Features
Hotspotty may from time to time make additional Features available through the Hotspotty Services, which may be subject to Additional Terms. The Client’s use of any such Feature is subject to their acceptance of Additional Terms presented within the relevant Feature or these Terms of Service.
8.5 Beta Services
Hotspotty may offer certain Features of functionality for the purpose of testing and evaluation (“Beta Service” or “Beta Services”). Hotspotty reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to the Client. The Client agrees that Hotspotty will not be liable to the Client or to any third party for any harm related to, arising out of the Client’s use of the Beta Services, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.
9. Data Processing Contract
For the purposes of Article 28 of Regulation (EU) 2016/679, these Terms constitute the data processing contract between the Client as the data controller and Hotspotty as the data processor. The Client hereby instructs Hotspotty to process the data as described in these Terms.
9.1 Subject matter and nature of processing
Hotspotty provides the Platform where the Client, as the data controller, can collect, store and organize the personal data of data subjects determined by the Client.
The Platform has been designed to work as a tool to monitor and manage Helium Hotspot performance but, to the extent not regulated by these Terms, the Client decides how they use the Platform.
9.2 Duration
Hotspotty will process data on behalf of the Client until the termination of the Hotspotty Services in accordance with these Terms. Upon termination, which happens when Client deletes all Workspaces linked to the Account and requests to have the Account terminated via [email protected], Hotspotty will store only very limited Client’s data for a period of six months. Deleted Workspaces and the Information within them cannot be restored. Hotspotty deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data.
An Account will be reactivated and a new Workspace created if a Client logs in to Hotspotty using the same Discord Account within the period of six months.
9.3 Parties’ rights and obligations
The Client’s rights and obligations regarding Client Data are provided in sections 4 through 10 of these Terms. Hotspotty ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Hotspotty takes all measures required pursuant to Article 32 of Regulation (EU) 2016/679. Hotspotty undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Client as the data controller.
10. Restrictions
10.1 Prohibited Activities
Client and its authorized Users may use the Hotspotty Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
a) use the Hotspotty Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
b) copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Hotspotty Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that Hotspotty is not permitted by that applicable law to exclude or limit the foregoing rights;
c) use the Hotspotty Services or any part or element thereof unless it has agreed to these Terms.
10.2 Certain Uses Require Hotspotty Consent
The Client or any User may not, without Hotspotty’s prior express written consent (e-mail, Skype, etc.):
a) sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the Hotspotty Services available in whole or in part to any third persons, unless such third person is another authorized User of the same Client;
b) use the Hotspotty Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
c) use the Hotspotty Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by Hotspotty;
10.3 Trade Control Compliance
The Client, any user, reseller, or agent (“Third Party”) hereby represents, warrants, covenants, and agrees that, with respect to the Hotspotty Services:
a) Third Party has complied and shall comply with, and shall cause its directors, officers, employees, and agents to comply with, U.S., EU, and any other applicable foreign economic, trade, and financial sanctions laws and regulations, including economic and trade sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the Department of State (collectively, “Sanctions”), and U.S., EU and applicable foreign laws and regulations pertaining to export controls, including those administered by the U.S. Departments of Commerce and State (collectively, “Trade Controls”).
b) Third Party shall take no action, directly or indirectly, that would cause Hotspotty or any of its subsidiaries or affiliates, or any of their respective officers, directors, employees, or representatives, to violate any Trade Controls.
c) Neither the Third Party nor any of its officers or directors, employees, and any agents or other representatives acting on their behalf (i) has been or is designated on any Sanctions- or export- related list of restricted or blocked persons, including designation on OFAC’s List of Specially Designated Nationals and Blocked Persons (the “SDN List”) or OFAC’s Sectoral Sanctions Identifications List (the “SSI List”), (ii) is located in, organized under the laws of, or resident in any country or territory that is itself the subject of any economic or financial sanctions by any Governmental Authority, including, but not limited to, Cuba, Iran, Syria, North Korea, Venezuela and the Crimea Region of Ukraine, (iii) is or has been greater than 50% owned or controlled by any Person or Persons described in clause (i) or (ii) (collectively with (i) and (ii), a “Restricted Person”), or (iv) has or will provide the Hotspotty Services to any Persons described in clauses (i)-(iii).
d) Third Party will promptly notify Hotspotty if Third Party or any personnel employed by or affiliated with Third Party (i) commits any actual or potential breach of Trade Controls relation to the Hotspotty Services, or (ii) becomes a Restricted Person.
e) Hotspotty shall have the right to immediately terminate the access to, or use of the Hotspotty Services without notice or liability to Third Party, if Third Party, or any person employed by or affiliated with Third Party takes any action in violation of the provisions described herein or if Hotspotty determines, in its sole discretion, that the Third Party’s continued use of the Hotspotty Services could violate Trade Controls.
11. Privacy
Hotspotty takes the privacy of its Clients and Users very seriously. Hotspotty’s Privacy Policy at http://www.hotspotty.com/privacy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs Hotspotty’s collection, use, and disclosure of Client’s or User’s personal information.
12. Intellectual Property Rights
12.1 Hotspotty’s Intellectual Property Rights in the Hotspotty Services
The Hotspotty Services, Hotspotty Materials, Hotspotty trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by Hotspotty and its third party vendors and hosting partners. Hotspotty Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Hotspotty, its affiliates and licensors retains all right, title and interest in such Hotspotty Services, Hotspotty Materials, Hotspotty trade names and trademarks, and any parts or elements. Your use of the Hotspotty Services and Hotspotty Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the Hotspotty Materials is strictly prohibited unless you have received the express prior written permission from Hotspotty or the otherwise applicable rights holder. Hotspotty reserves all rights to the Hotspotty Services, Hotspotty Materials and Hotspotty trade names and trademarks not expressly granted in the Terms.
12.2 Content Owned by Hotspotty
Subject to these Terms and the payment of the applicable service Fee, Hotspotty grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the Hotspotty Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the Hotspotty Services or as otherwise permitted by applicable law.
12.3 Client Data
a) Hotspotty may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes. Hotspotty may not otherwise use or display Client Data without Client’s written consent. Hotspotty respects your right to exclusive ownership of your Client Data. Unless specifically permitted by you, your use of the Hotspotty Services does not grant Hotspotty the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by you or stored in your Account for Hotspotty’s commercial, marketing or any similar purpose. Client expressly grants Hotspotty the right to use and analyze aggregate system activity data associated with use of the Hotspotty Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the Hotspotty Services operate, and to create new Features and functionality in connection with the Hotspotty Services in the sole discretion of Hotspotty.
b) Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the Hotspotty Service. In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize the Hotspotty to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Client Data in a manner consistent with the intended Features and functionality of the Hotspotty Services and these Terms, and to grant the rights and license set forth in Section 11.3(a), and (ii) Client Data, Hotspotty’s or any Hotspotty Licensee’s use of such Client Data pursuant to these Terms, and Hotspotty’s or any Hotspotty Licensee’s exercise of the license rights set forth in Section 11.3(a), do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by Hotspotty to any third party for the performance of any Hotspotty Services Client has chosen to be performed by Hotspotty or for the exercise of any rights granted in these Terms, unless Client and Hotspotty otherwise agree.
12.4 Feedback
If Client or a User provides Hotspotty with any comments, bug reports, feedback, or modifications for the Hotspotty Services (“Feedback”), Hotspotty shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Hotspotty Services.
Client or User (as applicable) hereby grants Hotspotty a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. Hotspotty shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if the Hotspotty deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
13. Third-Party Sites, Products and Services
The Hotspotty Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, Hotspotty does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, Hotspotty makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Any content referred to as community provided is provided by third parties and not developed or maintained by Hotspotty. By using any community marked code or libraries in your software development, you acknowledge and agree that Hotspotty is not in any way responsible for the performance or damages caused by such community provided code or library.
14. Disclaimers; No Warranty
UNLESS OTHERWISE EXPRESSLY STATED BY HOTSPOTTY, THE HOTSPOTTY SERVICES, HOTSPOTTY MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE HOTSPOTTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HOTSPOTTY AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY HOTSPOTTY, HOTSPOTTY AND ITS AFFILIATES DO NOT WARRANT THAT THE HOTSPOTTY SERVICES AND ANY CONTENT, CLIENT DATA SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE HOTSPOTTY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE HOTSPOTTY SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE HOTSPOTTY SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY HOTSPOTTY, HOTSPOTTY AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE HOTSPOTTY SERVICES, HOTSPOTTY MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Indemnification
You agree to defend, indemnify and hold harmless Hotspotty and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Hotspotty Services, Hotspotty Materials, representations made to the Hotspotty, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Hotspotty reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Hotspotty, and you agree to cooperate with such defense of these claims.
16. Limitation of Liability
16.1 No Liability
Hotspotty shall not be liable to the Client or User for any consequences resulting from:
a) any modifications in these Terms, calculation and rates of Fees, the Hotspotty Services, Hotspotty Material, or any part or element thereof (including but not limited to Account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the Hotspotty Services or Hotspotty Material;
b) deletion of, corruption of, or failure to store any Client Data;
c) use of Client Data by the Client or any of the Users associated with the Account;
d) upgrading or downgrading the current Plan;
e) any disclosure, loss or unauthorized use of the login credentials of Client or any authorized User due to Client’s failure to keep them confidential;
f) the Client’s use of the Account or the Hotspotty Services by means of browsers other than those accepted or supported by Hotspotty;
g) the application of any remedies against the Client or authorized Users by the Hotspotty, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the Hotspotty Services or any part or element thereof;
h) the differences between technologies and platforms used for access, for example if certain Features, functions, parts or elements of the Hotspotty Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
i) the Hotspotty’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, Hotspotty and its affiliates shall not be liable to the Client for any claim by any User, person, Organization or third persons against the Client arising out of the Client’s failure to:
a) provide Hotspotty with accurate information about the Client, Users or Account;
b) notify Hotspotty of any reasons due to which a User does not have the right to use the Account on behalf of the Client;
c) provide any Products which it has agreed to provide to such a person or Organization (whether such failure arises as a result of Hotspotty’s negligence, breach of these Terms or otherwise);
d) ensure the lawfulness of the Client Data;
e) obtain the necessary rights to use the Client Data; or
f) abide by any of the restrictions described in these Terms.
16.2 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HOTSPOTTY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE HOTSPOTTY SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
16.3 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
17. Termination of These Terms
17.1 For Convenience
These Terms may be terminated for convenience in the following situations;
a) by the Client any time by sending an email to [email protected], or if the Client is paying for the Service with Stripe, by revoking the billing agreement with Stripe; or if the client is paying for the Service via a Reseller, by means agreed upon between the Client and the Reseller;
b) by Hotspotty upon decision to end provision of the Hotspotty Services and close the Platform; or
c) immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
17.2 For Default
These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:
a) by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or
b) immediately by either party if the other party breaches its obligations, as applicable under Sections 12 [Intellectual Property Rights], 15 [Indemnification], or 10 [Restrictions] of these Terms.
17.3 Effect of Termination
Upon termination of these Terms,
a) Hotspotty shall deactivate and permanently delete the Account, within six months of the effective date of termination of these Terms. If the Client has specifically requested for an earlier deletion of the Account, Hotspotty shall fulfill such request within 1 month of its receipt of such request.
b) Client must:
* stop using and prevent the further usage of the Hotspotty Services, including, without limitation, the Platform;
* pay any amounts owed to Hotspotty under these Terms; and
* discharge any liability incurred by the Client before under these Terms prior to their termination; and
c) The following provisions shall survive the termination of these Terms: Sections 1, 7.4, 10, 11, 12, 14, 15, 16, 18 and 19.
17.4 Remedies
If Hotspotty terminates these Terms as a result of an uncured breach by a Client or User, Hotspotty is entitled to use the same or similar remedies against any other persons who use the Hotspotty Services in conflict with these Terms. Notwithstanding the foregoing, Hotspotty may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain Features, functions, parts or elements of the Hotspotty Services.
If Hotspotty has reasonable grounds to believe that the Client’s or User’s use of the Hotspotty Services, including the Account may harm any third persons, Hotspotty has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
Hotspotty has the right to suspend access to all or any part of the Hotspotty Service, including removing Content, at any time for violation of this Agreement or to protect the integrity, operability, and security of the Service, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the Service or any third party, Hotspotty typically provides notice in the form of a banner or email on or before such suspension. Hotspotty will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Service.
18. Governing Law and Jurisdiction
In the event of a dispute, controversy or claim arising out of or in relation to these Terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below.The enforceability, construction, interpretation, and validity of these Terms shall be governed by the laws of Bulgaria. Exclusive jurisdiction and venue for all matters relating to these Terms shall be in courts located in Sofia (Bulgaria), and the Client consents to such jurisdiction and court. Any questions relating to these Terms which are not expressly or implicitly settled by the provisions contained in these Terms shall be governed by and construed in accordance with the following:
We each agree that we shall bring any dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, we each agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
Use of the Hotspotty Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
19. General Provisions
19.1 Relationship of the Parties
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and either Hotspotty, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
19.2 Severability
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
19.3 Entire Agreement
These Terms are the entire agreement between Client and Hotspotty regarding Client’s use of the Hotspotty Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
19.4 Assignment
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without Hotspotty’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
19.5 No Waiver
Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
19.6 Notices
Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.
Last update: 2 April, 2022