Terms of Use
Spotted, Inc.
Terms of Use
Welcome to Spotted, Inc. (the “Company”)! The Company provides and powers [Insert Name
of Application] (the “Application”) on behalf of [Insert Name of Dog Day Care Facility], a
Tennessee business with an address of [Insert Address] (the “Center”). These Terms of Use (
the “Terms”) govern your use of the Application. You are referred to as “User” in the Terms.
The Company and User are collectively referred to herein as “Parties” and individually as
“Party.” THE USER HERBY CONSENTS TO THESE TERMS. THE USER’S
AGREEMENT TO THESE TERMS ARE A CONDITION AND PART OF THE
CONSIDERATION FOR THE USER’S INITIAL AND CONTINUED ACCESS TO THE
APPLICATION, SERVICE, AND ANYTHING ELSE RELATED THERETO.
VIOLATION OF ANY OF THE TERMS MAY RESULT IN IMMEDIATE
TERMINATION OF THE TERMS AND THE USER’S ACCESS TO THE
APPLICATION. FURTHER, THE USER AGREES THAT DISPUTES BETWEEN THE
USER AND THE COMPANY SHALL BE RESOLVED BY BINDING, INDIVIDUAL
ARBITRATION AS SET FORTH IN SECTION 17.
Section 1: The Service
The Application permits the Center to connect or link its cameras located at the Center (the
“Cameras”) to the Application and stream video of the Center to the User during normal
business hours (the “Service”). The Service shall not include the following: (i) audio; (ii)
installation (to include appropriate hardware and software to enable linking to the Application),
maintenance, or repair of any cameras, computers, or any other equipment or supplies ancillary
to the Service; (iii) customer service concerning a Center or a User’s experience with or the
performance of the Service; (iv) any requirement to communicate with the Center or User; or (v)
or any other product or service not expressly set forth herein.
Section 2: Application Availability
The Application may be available to download on certain third-party application stores such as
the Google Play Store for Android or the Apple App Store for iOS (the “Application Store”)
subject to the User’s compliance with the Terms. The Company may change the Terms from
time to time in its sole and absolute discretion. User acknowledges and understands the content
present on the Application shall not be exclusive to the User (or the Center).
Section 3: Billing
The Application may be free to the User. In the event the User is charged a flat or recurring fee,
such transaction is between the Application Store and the User. The Company does not directly
charge the User. Therefore, the terms of use of the Application Store and User’s credit card
provider shall govern such transaction.
Section 4: Center Responsible for Its Content
The Company takes no and shall bear no responsibility for the content present on the
Application, including, without limitation, the content of the video streams supplied by the
Center to the User or any other third parties (collectively the “Center’s Content”). Nor shall the
Company have any obligation to monitor the Center’s Content.
Section 5: Profile
The User must register an account to access the Service (the “Profile”). A Profile requires the
Center to choose a username and password.
Section 6: Usernames and Passwords
The Application Store (not the Company) controls and manages the User’s username and
password. Therefore, the Company shall have no responsibility to provide the Center a method
or process to retrieve, reset, or otherwise change any username or password.
Section 7: Company’s Access to Information
The Company may have access to the following information: (i) the Center’s Content; (ii) the
User’s email address associated with its Profile; (iii) the User’s log in history and total time spent
on the Application; and (iv) the general location (not an exact address or crossroads) of the
device in which the Application is downloaded and/or open (the “User’s Information”).
Section 8: User’s Information
The Company shall be entitled to use, record, collect, monitor, edit, preserve, or disclose
(including to third parties) User’s Information for any of the following purposes: (i)
communicate matters indirectly and directly related the Service; (ii) enforce the Terms, including
investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud,
security, or technical issues, including, without limitation, the filtering of spam; (iv) protect the
rights, property, or safety of the Company, the User, the Center and its guests, pets, employees,
and other representatives; (v) maintain, repair, and otherwise keep the Application, Service, and
anything else indirectly or directly related thereto in excellent working condition; (vi) fulfill the
purpose for which such information was provided; (vii) comply with any valid legal process or
governmental request (such as a search warrant, subpoena, statute, or court order); (vii) respond
to Center support requests; (viii) ensure the Application is meeting quality control standards; or
(ix) any other purpose reasonably related to those enumerated in this Section 8. The Company
shall not be responsible or liable for the exercise or non-exercise of its rights under this Section
8.
Section 9: User’s Representations, Warranties, and Covenants
The User represents, warrants, and covenants the following: (i) the User has the full power and
authority to agree to the Terms; and (ii) the User is at least eighteen (18) years old; and (iii) the
User shall comply with all of the Terms and with all applicable foreign, federal, state, or local
statutes, laws, and regulations; and (iv) the User shall not disclose the username and password
associated with its Profile to any third parties; and (v) the User shall only access the Service by
logging into the Application; and (vi) the User shall immediately delete the Application off any
and all devices in its control and not otherwise access the Application or Service upon this
Term’s termination or expiration; and (vii) the User shall immediately delete the Application off
any and all devices in its control and not otherwise access the Service after it no longer uses the
Center’s dog day care services on a regular and reoccurring basis. The User further represents,
warrants, and covenants it shall not: (i) impersonate others or provide inaccurate information; (ii)
do anything unlawful, misleading, or fraudulent; (iii) violate (or help or encourage others to
violate) the Terms; (iv) do anything to interfere with or impair the intended operation of the
Service or anything related thereto; (v) create accounts or profiles or access or collect
information in unauthorized ways; (vi) use any process (automated or otherwise) to monitor,
record, or copy the Center’s Content or any other content related to the Service; (vi) license, sell,
rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the
Service; (vii) utilize framing techniques to enclose any trademark or logo located on or provided
through the Application, Center’s Content, Service, or anything else related thereto; (viii)
remove or destroy any copyright notices or other proprietary markings located on or provided
through the Application, Center’s Content, or Service; (ix) modify, translate, create derivative
works of, or reverse engineer the Application or its components or anything else related thereto;
(x) use a domain name or URL in your username without prior written consent; (xi) upload,
transmit, any content that the Company determines in its sole and absolute discretion to be
unlawful, tortious, invasive of another’s privacy, harmful, defamatory, harassing, abusive,
fraudulent, obscene, contains viruses, or otherwise objectionable or inappropriate; (xii) upload,
transmit, or otherwise distribute content that infringes upon the Company or anyone other entity
or individual’s intellectual property rights, or other proprietary, contractual, or fiduciary rights or
obligations; (xiii) capture, record, share, or retain video footage or any other images available in
connection with the Service for any purpose, including personal use (e.g., sharing photos or
video made available through the Service on a social media platform); (xiv) remain logged on to
the Application when not using the Service; (xv) introduce software or automated agents to the
Service for any purpose; (xvi) access the Service in order to build a similar or competitive
website, application, or service to the Application, Service, and other offerings related thereto;
(xvii) create derivative works of, decompile, or otherwise attempt to extract source code from the
Company; (xviii) be prohibited from receiving any aspect of the Company’s Service under
applicable laws; (xix) have had any Profile terminated for violation of the Terms or any law; or
(xix) allow its Profile and thus the Application and Service to be accessed by a convicted sex
offender.
Section 10: Right of Publicity
Notwithstanding anything to the contrary herein, the Company, in its sole and absolute
discretion, reserves the right to: include its trade names, trademarks, service marks, logos,
domain names, and other distinctive brand features (the “Company’s Trade Dress”) on the
Application and Center’s Content.
Section 11: Intellectual Property Rights
The Company owns all right, title, and interest in and to the Application and the Service,
including without limitation all intellectual property rights associated therewith (excluding the
Center’s intellectual property). Such rights include, but are not limited to, the following: (i) the
Service developed and provided by the Company; (ii) all software associated with the Service;
and (iii) all updates, improvements, and modifications thereto.
Section 12: Termination
(a) User’s Right to Termination
The User may terminate the Terms and Service for convenience and without cause at any time by
deleting the Application.
(b) Company’s Right to Termination
The Company may terminate the Terms, Application, Service, and anything else related thereto
for convenience and without cause at any time.
(c) Company’s Rights in the Event of Termination
The User may not be granted access to its Profile or any files or other content contained in such
Profile although the User’s Information may remain in the Company’s system. The Company
shall not have any liability whatsoever to the User for any suspension or termination of the
Terms, Profile, Application, Service, or anything related thereto.
Section 13: Consent to Receive Communications Electronically
The User agrees to receive communications from the Company in an electronic form and agrees
that all terms and conditions, agreements, notices, disclosures, and other communications that the
Company provides to the User electronically satisfy any legal requirement that such
communications would satisfy if it were in writing.
Section 14: Disclaimer of Warranties
THE USER EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ITS USE OF THE SERVICE AND ANYTHING
RELATED THERETO IS AT ITS SOLE RISK, AND THAT THE SERVICE AND
ANYTHING RELATED THERETO IS PROVIDED ON AN “AS IS” AND “AS
AVAILABLE” BASIS, WITH ALL FAULTS. THE COMPANY EXPRESSLY DISCLAIMS
ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO
WARRANTY, REPRESENTATION, OR CONDITION THAT: (I) THE SERVICE AND
ANYTHING RELATED THERETO SHALL MEET THE USER’S REQUIREMENTS; (II)
THE USERS’S USE OF THE SERVICE OR ANYTHING RELATED THERETO SHALL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT
MAY BE OBTAINED FROM USE OF THE SERVICE OR ANYTHING RELATED
THERETO SHALL BE ACCURATE OR RELIABLE; OR (IV) ANY ERRORS IN THE
SERVICE SHALL BE CORRECTED. THE SERVICE MAY BE SUBJECT TO DELAYS,
CANCELLATIONS, AND OTHER DISRUPTIONS FOR MAINTENANCE OR ANY OTHER
REASON OF WHATSOEVER KIND.
Section 15: Limitation of Liability
THE USER UNDERSTANDS AND AGREES THAT IN NO EVENT SHALL THE
COMPANY BE LIABLE FOR ANY DAMAGES OF WHATSOEVER KIND ARISING OUT
OF OR IN CONNECTION WITH THE SERVICE, INCLUDING, WITHOUT LIMITATION,
ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, INFORMATION, OR
PROFITS, WHETHER OR NOT THE USER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THE USER FURTHER UNDERSTANDS AND AGREES THAT IN
NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES OF
WHATSOEVER KIND FOR PERSONAL OR BODILY INJURY OR EMOTIONAL
DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR
ANYTHING RELATED THERETO, FROM ANY ACTS OR OMISSIONS OF THE
COMPANY, OR ON ANY THEORY OF LIABILITY RESULTING FROM: (I) THE USE OR
INABILITY TO USE THE SERVICE OR ANYTHING RELATED THERETO; (II) THE
COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM
THE SERVICE OR ANYTHING RELATED THERETO; (III) UNAUTHORIZED ACCESS
TO OR ALTERATION OF SERVICE OR ANYTHING RLEATED THERETO, INCLUDING,
BUT NOT LIMITED TO, THE CENTER’S CONTENT; (IV) STATEMENTS OR CONDUCT
OF ANY THIRD-PARTY; OR (V) ANY OTHER MATTER RELATED TO THE SERVICE,
WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING
NEGLIGENCE OR GROSS NEGIGENCE), PRODUCT LIABILITY, OR ANY OTHER
LEGAL THEORY. THE COMPANY ASSUMES NO RESPONSIBILITY FOR THE
TIMELINESS, INACCURACY, DELETION, MIS-DELIVERY, OR FAILURE TO STORE
ANY CONTENT OR PERSONALIZATION SETTINGS. THE USER AND CENTER ARE
SOLELY RESPONSIBLE FOR ALL OF THEIR COMMUNICATIONS AND
INTERACTIONS WITH THE OTHER. THE USER UNDERSTANDS THAT COMPANY IS
NOT RESPONSIBLE OR LIABLE FOR ANY OF THE USER OR CENTER’S ACTS OR
OMISSIONS OR FOR THE CENTER’S CONTENT.
Section 16: Indemnification
The User, at its own expense, shall defend, indemnify, and hold harmless the Company, its
subsidiaries, affiliates, officers, partners, employees, contractors, subcontractors, consultants,
agents, representatives, and successors and assigns from and against any and all liability of loss,
damages (including actual and consequential), expense (including reasonable attorneys' fees) or
claim, suit, demand, or liability of whatsoever action or cause of action arising out of the Terms,
Service, or anything related thereto or any violation of any law, rule, or regulation. The
Company shall be entitled to participate in such defense at the User’s own expense if the
Company so chooses. The User shall not settle a third-party claim without the Company’s
express written consent if such settlement shall require action, including, but not limited to,
injunctive relief, or other non-monetary damages or payment, by the Company. This Section 16
shall be liberally construed in favor of the Company and apply fully and accrue to the benefit of
the Company.
Section 17: Arbitration; Choice of Law
Any dispute (including whether the claims asserted are arbitrable) shall be referred to and finally
determined by binding and confidential arbitration. Arbitration shall be subject to the Federal
Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one
commercial arbitrator, who shall be a retired judge and have substantial experience in resolving
commercial contract disputes from the American Arbitration Association (the “AAA”). As
modified by the Terms, and unless otherwise agreed upon by the Parties in writing, the
arbitration shall be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator
deems them applicable, the Supplementary Procedures for Consumer Related Disputes. Neither
Party shall initiate or prosecute any lawsuit in any way related to any dispute or claim covered by
the Terms. The following rules shall apply: (i) any claims brought by the User must be brought
in the Party’s individual capacity, and not as a plaintiff or class member in any purported class or
representative proceeding; (ii) the arbitrator may not consolidate more than one person’s claims,
may not otherwise preside over any form of a representative or class proceeding, and may not
award class-wide relief; (iii) the arbitrator may award any individual relief or individual
remedies that are permitted by applicable law; and (iv) the arbitrator shall award attorneys’ fees
as provided for in Section 18. The arbitrator shall issue a written award and statement of decision
describing the essential findings and conclusions on which the award is based, including the
calculation of any damages awarded. UNDER NO CIRCUMSTANCES WHATSOEVER
SHALL THE COMPANY BE LIABLE FOR DAMAGES IN EXCESS OF THE TOTAL
AMOUNT OF FEES PAID BY THE USER TO THE COMPANY FOR THE SERVICE.
The judgment of the arbitrator shall be binding and may be entered as a final judgment by any
court having jurisdiction over the User or Company. The arbitrator also shall be authorized to
grant any temporary, preliminary, or permanent equitable remedy or relief it deems just and
equitable and within the scope of the Terms, including, without limitation, an injunction or order
for specific performance. The arbitration award shall be final and binding upon the parties
without appeal or review except as permitted by Tennessee state law or United States federal
law. Notwithstanding this agreement to arbitrate, either Party may seek emergency equitable
relief before the state or federal courts located in Davidson County in the State of Tennessee in
order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive
personal jurisdiction of the courts located within Davidson County in the State Tennessee for
such purpose. A request for interim measures shall not be deemed a waiver of the right to
arbitrate. To the fullest extent permitted by law, arbitration proceedings shall take place in
Davidson County in the State of Tennessee. If for any reason, a claim proceeds in court rather
than in arbitration, the dispute shall be exclusively brought in state or federal court in Davidson
County in the State Tennessee. THE PARTIES UNDERSTAND AND ACKNOWLEDGE
THAT UNDER THIS SECTION 17 EACH WAIVES THE RIGHT TO TRIAL BY JURY
IN CONNECTION WITH ANY ARBITRABLE CONTROVERSY OR CLAIM.
Section 18: Attorneys’ Fees and Costs
The Company shall have the right to collect from the User its reasonable attorneys’ fees, costs,
and necessary disbursements, including, but not limited to, the cost of expert witnesses and any
appeals, incurred in its enforcement of the Terms.
Section 19: Binding Effect and Assignment
The Terms shall inure to the benefit of the Company and its successors and assigns. The User
shall not assign the Terms or otherwise delegate or transfer its obligations hereunder.
Section 20: Survivability
Any provisions of the Terms that contemplate performance or observance subsequent to any
termination of the Terms shall survive any termination of the Terms and continue in full force
and effect.
Section 21: Waiver
No waiver by either Party of any right or remedy hereunder shall be valid unless the same shall
be in writing and signed by the Party giving such waiver. No waiver by either Party with respect
to any breach hereunder shall be deemed to extend to any prior or subsequent breach or affect in
any way any rights arising by virtue of any prior or subsequent breach.
Section 22: Severability
If a court or an arbitrator of competent jurisdiction holds any section, paragraph, sentence, or
word of the Terms to be illegal, invalid, or unenforceable in whole or in part for any reason, the
enforceability of the remaining sections, paragraphs, sentences, or words in the Terms shall
remain in full force and effect.
Section 23: Singular and Plural
As used herein the singular shall include the plural and the plural the singular.
Section 24: Reasonableness
The Company and User agree that each has weighed all the facts, conditions, and circumstances
pertaining to the Terms, and acknowledges that all of the provisions of the Terms are reasonable.
Neither Party shall contest the validity of the Terms or any provision thereof and waives any and
all rights it may have to bring any claim, action, or suit or to raise any defense regarding the
validity and reasonableness of the Terms or any of its provisions. Each Party agrees that it has
been, or has had the opportunity to be, represented by legal counsel with respect to the Terms.
No term or provision of the Terms shall be construed against either Party based upon authorship
thereof.
Section 25: Entire Terms
The Terms constitutes the entire agreement on this subject between the Company and the User
and supersedes any and all prior discussions, representations, demonstrations, negotiations,
correspondence, writings, and other agreements and states the entire understanding and
agreement upon which the Company and User rely respecting the subject matter of the Terms.