TERMS OF SERVICE (US)

    Spectrm Platform Terms of Service for EU: Here

    These Terms of Service (the “Terms”) and as the case may be together with the Services Order Form and any applicable Annexes, constitute an agreement (“Agreement”) between Spectrm Ltd  located at 199 Water Street in New York, NY 10038, United States ( “Spectrm”) and the customer (the “Customer”) (each also a “Party” and jointly the “Parties”).

     

    Last Updated: April 15th, 2022

    1. Object

    1. These Terms set out the agreement between Spectrm and the Customer with regard to the services provided by Spectrm to the Customer as set out below and, as the case may be, ordered pursuant to the Services Order Form. In the event of a conflict between these Terms and a Services Order Form, the Services Order Form shall prevail. 
    2. If Customer has not yet placed an order via the Services Order Form, Spectrm can limit or shut down the Services at any time available to the Customer.
    3. Customer Affiliates may use the Spectrm Services purchased by Customer without signing an Order Form, if Customer sets up individuals using the Spectrm Services on behalf of such Affiliate as Users. Customer Affiliates may also purchase and use subscriptions to the Spectrm Services subject to the terms of this Agreement by executing Order Forms hereunder, in which case this Agreement shall apply to such Customer Affiliates, and such Affiliates shall be deemed with the exception of 4 IV as the “Customer” as contemplated herein. 
    4. The Services include access to a technical infrastructure for sending messages via third party Messaging Programs (such as Facebook Messenger, AdLingo, Instagram Direct, WhatsApp or Google Business Messaging (these and any other Messaging Programs now in existence or developed in the future are the “Messaging Programs”)) to members of the public using a Customer chatbot (the “User(s)”).
    5. The Customer acknowledges and agrees that the Messaging Programs may change or cease to exist, and that as a consequence the Services may be limited or terminated, without any liability of Spectrm. The Parties understand that Spectrm has no influence on any Messaging Program´s functionality, presentation or design. In the event of such termination of Services, this Agreement and Customer’s obligations under this Agreement will terminate to the extent of the specific Messaging Program at the time of the termination of Services.

    2. Availability

    1. Spectrm shall use commercially reasonable efforts to ensure the Services have 98.0 % Availability (as defined below) on a monthly basis. Availability shall mean the time during which the Services were available to the Customer, with existing Customer’s telecoms and Internet availability, plus (a) standard maintenance times (to take place between 3:00 – 5.00 am local time as decided at the discretion of Spectrm), (b) scheduled maintenance times (not exceeding three (3) hours per month and provided Customer was notified in writing not less than two (2) business days in advance), (c) emergency maintenance times, and (d) downtime due to force majeure or caused by the Customer or reasons caused by or on behalf of the Customer, or beyond the reasonable control of Spectrm, as compared to the respective calendar month (a calendar month being calculated on the basis of the total number of minutes in such month for which the availability is calculated, e.g. 44,640 minutes in the month of July).

    3. Customer’s use of the service

    1. Subject to the Customer’s compliance with these Terms and payment of the fees, the Customer is granted the limited, non-exclusive and non-transferable, non- sublicensable right to access and use the Services during the Term, in accordance with these Terms.
    2. In addition to complying with these Terms, the Customer agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party; (b) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (c) falsely imply any sponsorship or association with Spectrm; (d) use the Services in any unlawful manner, including but not limited to violation of any person’s privacy rights; (e) use the Services to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (f) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s or entity’s intellectual property or other rights; (g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Services; (i) remove, change or cover any labels, logos or legal notices regarding copyrights, trademarks and similar rights; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (k) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (l use the Services in violation of these Terms
    3. The Customer is responsible for compliance with the provisions of these Terms and all applicable laws by users within its organization and for any and all activities that occur under the Customer’s login data, as well as for all of Customer’s data. The Customer agrees and acknowledges that each user will be identified by a unique username and password (“Login”) and that a user login may only be used by one (1) individual. The Customer is responsible for maintaining the confidentiality of all Login information. Spectrm will not accept liability for any damage or loss that may occur as a result of Customer’s failure to adequately maintain Logins.
    4. The Customer shall be responsible for storing its content and creating its own backup copies.

    4. Obligations and cooperation of the customer. Limited License

    1. The Services will connect to the Customer’s Messaging Program account via API. The Customer shall be responsible for procuring and maintaining the conditions necessary for its use of the Services at its own expense.
    2. The Customer shall be responsible for fulfilling the requirements of use for the respective Messaging Programs at its own expense. This shall include registering and maintaining accounts with the respective Messaging Programs and complying with the terms and conditions of the Messaging Programs. Specifically with regard to Facebook Messenger, the Customer shall maintain a Facebook page and comply with the Facebook Platform Policies and the Facebook Commerce Product Merchant Agreement as currently required and as amended by Facebook in the future. Specifically with regard to Google & AdLingo the Customer shall maintain a Display & Video 360 Account and comply with the Google Ad Policies and the Display & Video 360 targeting policies. A failure by the Customer to comply with the terms and conditions of any Messaging Program shall not affect the Customer’s other obligations under this Agreement.
    3. To the extent necessary for Spectrm to provide the Services hereunder, the Customer hereby grants to Spectrm a royalty-free, non-exclusive, non-assignable, non-transferable, non-sublicensable, limited right during the contract term to use any and all media content (such as text, images, videos and photographs) provided by or on behalf of the Customer (the “Media Content”). This shall include, without limitation, the right to reproduce, transmit and communicate to the public any Media Content as provided by or on behalf of the Customer for transmission to Users via the Service.The Customer warrants that (a) he is owner or licensee in the Media Content with sufficient rights to use the services and grant to Spectrm the above rights and that (b) the Media Content does not infringe upon and is not subject to any third-party rights such as copyright or rights of personality. The Customer further war- rants that the Media Content and its use by Spectrm pursuant to this agreement, as well as Customer’s use of the services, will not (a) include any illegal content (such as pornography, hate speech or criminal content) and will not infringe upon any applicable laws and regulations.
    4. Unless otherwise agreed between the Parties, Spectrm is entitled to refer to the collaboration with the Customer and the contractual product and to depict the Customer’s logo for self-promotional purposes.

    5. Intellectual Property Rights

    1. Each Party shall maintain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know- how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”).
    2. The rights granted to the Customer under these Terms do not convey any additional rights in the Services, or in any Intellectual Property Rights associated therewith. Spectrm has the worldwide, transferable, sublicensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) Spectrm receives from the Customer, End- User, or other third parties acting on the Customers behalf; provided, however, that all such Feedback is provided “AS IS” WITH NO WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED. 
    3. In case Spectrms Natural Language Processing functionalities (“NLP”) are used by the Customer Spectrm receives the right to use and modify all created instructions and training data (“Intent”) in order to optimise the results; all other rights remain with the Customer.

    6. Fees and Payment

    1. Customer shall pay all fees specified in all Service Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Spectrm Services subscription(s) purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) and fees paid are non-refundable. Unless explicitly stated otherwise, all fees are quoted exclusive of the statutory value-added tax  applicable at the time.
    2. Except as otherwise provided, all fees are quoted and payable in Dollar ($). Except as otherwise provided, Fees for Spectrm Services will be invoiced electronically and are payable via Credit Card or ACH Direct Debit a: (i) in advance, and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Service Order Form. If the Customer makes a payment via credit card, the fee will be debited with the creation of the invoice. Customer is responsible for maintaining complete and accurate billing and contact information.
    3. Spectrm may impose late fees as contemplated in each Service Order Form. If Customer’s account is 30 days or more overdue, Spectrm may, in addition to any of its other rights or remedies, upon written notice, suspend Customer’s access to the Spectrm Services and provision of any associated services until such amounts are paid in full.
    4. The fee may increase by 5% with each renewal term.

    7. Data Privacy

    1. The Parties are obliged to treat, collect, use and process all personal data in connection with the services in strict accordance with applicable data protection laws.
    2. In case the Customer makes the Service available to Users the parties shall enter into a Data Processing Agreement (“DPA”). If the Service is made available to Users without the agreeing to a separate DPA the parties agree to comply with the terms of the data processing addendum.
    3. Upon specific request by Customer Spectrm can access the Google Analytics account of Customer to store, analyse and display conversion values, specifically of UTM parameters, tfo improve the Service for Users. 

    8. Representation and Warranties and Liability

    1. Spectrm represents and warrants, that:
      1. it has all right, title and interest in and to the Services including the technical infrastructure and the underlying software etc. necessary, including copyrights and neighboring rights and any such rights originally vesting in third parties and that it is authorized to dispose over such rights to the benefit of the Customer; 
      2. it has all right, title and interest in and to the Services necessary to grant to the Customer the licenses to use the Services granted in Section 2 and the Services Order Form;
      3. the Services do not infringe or violate the trademark, trade name, copyright, right of privacy or publicity, property rights or any other right of any third party;
      4. and the Services are free of “viruses” and “malware”(damaging computer programs of any kind).
    2. Each Party represents and warrants to the other that (a) it has the full corporate right, power and authority to enter into this Agreement and perform its obligations hereunder; (b) the execution, delivery and performance of this Agreement by such Party will not violate any other agreement or instrument, whether written or verbal, to which it is a party or by which it is otherwise bound, or any order, statute, rule or regulation applicable to such Party; and (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms
    3. Spectrm shall not accept any liability for any default or occurrences not based on its own services, including in particular (a) the system requirements to be provided by the Customer according to Clause 3.1,(b) any default or occurrences of the Messaging Programs or (c) any force majeure events.
    4. Customer and Spectrm shall indemnify, defend, and hold harmless Customer and Spectrm as well as Spectrm’s parent, subsidiaries and affiliates, and the directors, officers, employees, agents and representatives and its parent, subsidiaries and affiliates, from and against the full amount of any and all third party claims, actions, counterclaims and/or suits, and any damages demands, losses, judgments and expenses incurred in connection therewith, whether fixed or contingent, including, without limitation, reasonable attorneys’ fees and expenses, reasonable out-of-pocket expenses and court costs, that such Indemnified Parties may incur as the result of this Terms. Indemnification of liability by Customer and Spectrm will be limited to the aggregate amount of fees Customer pays to Spectrm in the 12 month period preceding the date of any third party claim.

    9. Confidentiality

    1. All information, documents and other business or technical information identified by the disclosing party as “confidential” or “proprietary” or which, under the circumstances of its disclosure, should reasonably be treated as confidential or proprietary,  provided to each other in connection with this agreement (the  “Confidential Information”) shall be kept and maintained by the Parties in confidence and not be disclosed to third parties other than each Party’s professional advisors,  employees, contractors, or agents (“Representatives”) on a “need to know” basis for the purpose of performing its obligations hereunder without the express written consent of the disclosing Party. Notwithstanding the foregoing, Confidential Information shall not include information which the receiving Party can show: (a) was already known to it before commencement of this agreement; (b) was disclosed to it by a third party without a violation of a statutory or contractual duty of confidentiality; (c) was or becomes publicly known without any default on the side of the receiving Party; or (d) is developed by or on behalf of the receiving party independent of any Confidential Information furnished under this Agreement.
      The provisions of this Section shall continue during the Term and for a period of two (2) years thereafter.

    10. Governing Law. Jurisdiction

    1. These Terms and any Services Order Form(s) and their interpretation are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the principles of conflict of laws.
    2. The Parties hereby submit to the exclusive jurisdiction of the court in Berlin, Germany, for resolution of any dispute, action or proceeding arising out of or in connection with these Terms and any Services Order Form(s) set forth hereunder.

    11. Final clauses

    1. Amendments or additions to these Terms, the Service Order Form and the Data Processing Agreement (DPA) have to be expressly acknowledged by Spectrm in writing (email is sufficient). This Agreement also applies exclusively if Spectrm has not explicitly objected to any contrary terms and conditions.
    2. Should one or more provisions of these Terms or Services Order Form(s) set forth hereunder be found to be unlawful, void or unenforceable, such provision(s) shall be deemed severable and will not affect the validity and/or enforceability of the remaining provisions of which shall remain valid and enforceable. The same shall apply to gaps. In such event, the Parties undertake to replace such unlawful, void or unenforceable provision with a valid provision that comes as close as possible to what the Parties had originally intended
    3. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy. No waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.  Any waiver by any party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.
    4. “Beta Services‘ ‘ shall mean the services (i) provided by Spectrm that are not generally available to customers, and (ii) that are clearly designated as beta, pilot, developer preview, evaluation or by a description of similar import. From time to time, Spectrm may invite Customer to try Beta Services. Customer may accept or decline any such trial in its sole discretion. Beta Services are for evaluation purposes and are not subject to service level agreements hereunder, and may be subject to additional terms, except that personal data submitted to the Beta Services shall be processed in accordance with the DPA. 
    5. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restrictions, it will use reasonable efforts to promptly notify Spectrm’s Legal Department at [email protected] with email subject (in English) “Spectrm violation of anti-corruption obligations.”