Article 1 - Definitions
1.1 In these terms and conditions, the following definitions apply:
Client: the party that requests SmartSpotter to carry out an assignment;
SmartSpotter: SmartSpotter B.V., a private limited company incorporated under Dutch law, with its registered office at IJsselmeerweg 100 Unit K in Naarden and registered with the Chamber of Commerce under number 55334652.
Assignment: every assignment from SmartSpotter that is offered to Spotters in the App.
App: the software created by SmartSpotter and is used in connection with the online platform on which Clients can place Assignments that need to be carried out by Spotters.
Terms and conditions: the present conditions.
Material: the data, photos and such submitted by Spotter to fulfill an Assignment.
Account: the personal account made available by SmartSpotter to Spotter for the use of the App.
Agreement: the agreement between Spotter and SmartSpotter on the basis of which Spotter can use the App and of which the present Terms and Conditions form an integral part.
Spotter: the company, or the natural person or persons authorized to represent the company, which registers with SmartSpotter in order to carry out Assignments.
Party(ies): the parties to the Agreement, Spotter, SmartSpotter and Client, individually or jointly.
Website: SmartSpotter's website, www.smartspotter.com, and any other (sub)domains.
Article 2 - Conclusion of agreement
2.1 The App can be downloaded by Spotter via the App Store and the Google Play Store.
2.2 To be able to use the App, Spotter must first register via the App or Website.
2.3 The Agreement is concluded when Spotter accepts SmartSpotter's offer by registering.
2.4 If a Spotter is a natural person he must be 16 years or older, and is obliged to register his real name with SmartSpotter.
2.5 The parties wish to contract with each other exclusively on the basis of an assignment agreement within the meaning of Article 7:400 of the Dutch Civil Code.
2.6 All prices are exclusive VAT which (if and to the extent applicable) shall be payable by the Spotter.
2.7 SmartSpotter reserves the right to refuse a Spotter or to deny access to an Assignment without stating reasons, for example if SmartSpotter suspects fraud or believes that the person concerned is trying to influence the results.
2.8 When registering and paying out orders, SmartSpotter asks for the name, age, e-mail address and IBAN number of the Spotter. The Spotter is responsible for ensuring the correctness of this information.
2.9 In addition to the provisions set out below, Apple's Appstore and Google Play may impose conditions on obtaining the App and using it.
2.10 Spotter must consult the terms of use and privacy statement of Apple's Appstore, Google Play, and any applicable terms and conditions on the website of the relevant provider.
2.11 The applicability of the purchase conditions or other terms and conditions of Spotter is hereby expressly excluded.
Article 3 - Using the app and account
3.1 In order to use the App, Spotter must first register and create an Account. Spotter also needs to fill in data for this. Spotter, or the natural person who registers on behalf of Spotter, declares to be authorized to enter this information.
3.2 During the registration procedure, Spotter uses an email address and password that can be used to log in to the App after registration. Spotter is responsible for choosing a sufficiently reliable password. SmartSpotter is not liable for misuse of the login details and can always assume that a Spotter who registers via the App is actually that Spotter.
3.3 SmartSpotter makes every effort to ensure that information in the App is as complete and accurate as possible. However, SmartSpotter does not accept any responsibility for damage in any way whatsoever caused by the use, incompleteness or inaccuracy of the information offered in the App and all other means of communication.
3.4 Spotter indemnifies SmartSpotter against all third-party claims arising from a breach of the Agreement by Spotter.
Article 4 - Accepting and executing assignments
4.1 SmartSpotter can place Assignments in the App. The description states what the Assignment entails, what the conditions are and what the possible Fee is. If Spotter wants to carry out an Assignment, he/she can accept an Assignment via the App. After confirmation of the Assignment by a notification from SmartSpotter in the App, Spotter can carry out the Assignment.
4.2 Spotter will make every effort to fulfill the Assignment in such a way that the Material meets the Client's expectations. The performance of the Assignment is at Spotter's own risk.
4.3 Spotter may only photograph people if it is expressly requested to do so in the Assignment and the person concerned gives his/her permission.
4.4 It is prohibited to submit sexually oriented, violent, nonsensical or copyrighted material into the App.
4.5 The Website and the App may not be used for purposes other than those for which they are intended.
4.6 After accepting an Assignment, Spotter has a limited time to execute the Assignment. If the Assignment has not been executed or has not been carried out correctly within the set time, the Assignment will be released again.
4.7 The aim is to approve or reject the Material by SmartSpotter within 48 hours. SmartSpotter is authorized to reject Material without stating reasons. If the Material submitted by Spotter is rejected, the Assignment can be released again. There will be no correspondence about rejected Material.
4.8 After approval of the Material, the Fee to which Spotter is entitled will be added to his Account.
Article 5 - Using the app
5.1 SmartSpotter gains access to Spotter's location data when Spotter has given permission for this in the App. The Spotter will only see Assignments that can be performed nearby when permission is given in the App to access this location data by the Spotter.
5.2 When Assignments have been carried out, the location and submission time of the specific Assignment and Spotter will become visible to employees of SmartSpotter. After validation of the submission, the submission time and the address details of the Assignment will become visible to the Client. The Spotter information is also anonymized for SmartSpotter employees when the Account is deactivated.
5.3 SmartSpotter prevents Spotters from defrauding with geolocations by keeping track of geolocations while using the App. This is only tracked when the use of the App requires geolocation (e.g. on App startup, when a list of nearby Assignments is requested). If there are major differences between these locations (for example, a travel distance of hundreds of kilometers between two locations), this behavior is flagged as possible fraud. Preventing this form of fraud is essential for the services provided by SmartSpotter to its Clients. The geolocations are stored for a week, after which they are automatically destroyed.
5.4 SmartSpotter's Servers and Software log requests made by the system. These contain the IP address and e-mail address of Spotters logged in at that time. In some cases geolocations are also requested. Geolocations for interactions and location spoofing are automatically deleted after a week. The other above data is automatically collected and deleted after one month.
5.5 If SmartSpotter determines that Spotter is in violation of these terms and conditions or the law, or receives a complaint about Spotter, SmartSpotter may intervene to end the violation. SmartSpotter has the right to block access to the relevant information or block access to the App for Spotter.
Article 6 - Payment
6.1 If it is stated in the description of the Assignment that Spotter can receive a Payment for the Assignment, Spotter is entitled to the Payment if all the Material relevant to the Assignment has been approved by SmartSpotter.
6.2 The Account contains an overview of the Fees to which the Spotter is entitled.
6.3 SmartSpotter pays out to Spotters weekly on Thursdays.
6.4 SmartSpotter pays the Fee to the bank account specified by Spotter in the Account.
6.5 Amounts in excess of EUR 20 can be transferred automatically if the Spotter so wishes. This can be indicated in the profile. Payment of smaller amounts can be requested via the Website against payment of EUR 0.50 transaction costs.
Article 7 - Intellectual property rights
7.1 SmartSpotter hereby grants Spotter, as the legal acquirer of the App, a personal right of use (license) to use the App in the manner for which it is intended for the duration of the Agreement.
7.2 All rights to the App, the accompanying documentation and all changes and extensions thereto remain with SmartSpotter. Nothing in this Agreement is intended to transfer intellectual property rights, including in any case copyrights, database rights, rights to domain names, trade name rights, rights to know-how, trademark rights, design rights, neighboring rights and patent rights.
7.3 Spotter may make a backup copy of the App. Spotter may not use or trade or distribute this backup copy independently, however, other than in combination with the original App.
7.4 Spotter guarantees that no third-party rights rest on the Material.
7.5 Spotter always grants SmartSpotter a free and unlimited license for all forms of use and exploitation. This license is perpetual and does not terminate upon termination of the Agreement, regardless of the reason for termination.
7.6 Insofar as the intellectual property rights to the Material are not transferable, Spotter provides SmartSpotter with an exclusive right of use, with the right to grant sub-licenses to third parties.
7.7 SmartSpotter is permitted to use the Material and possibly provide it to the Client of the Assignment.
7.8 Spotter indemnifies SmartSpotter against claims from third parties regarding infringement of their intellectual property rights.
Article 8 - Security and privacy
8.1 SmartSpotter will make every effort to adequately protect the App against misuse and unauthorized access to the data of Spotter and Client.
8.2 SmartSpotter can take (technical) measures to protect the App. If SmartSpotter has taken such security measures, Spotter is not allowed to evade or remove this security.
8.3 When using the App, (personal) data of Spotter itself, and of the Material submitted by Spotter, are processed. The processing of the (personal) data of Spotter and of the Client is necessary to be able to use the App and is therefore processed for the execution of the Agreement.
Article 9 - Availability, maintenance and changes
9.1 Spotter is responsible for installation and commissioning of the App.
9.2 SmartSpotter strives to ensure that the App does not contain viruses, backdoors or malicious routines and strives to keep the App and the Website available as much as possible, but does not guarantee uninterrupted availability.
9.3 SmartSpotter has the right to change and maintain the App or a part thereof.
9.4 Maintenance and changes to the App and the Website by SmartSpotter may result in the App and/or the Website being temporarily out of use in whole or in part. SmartSpotter will make every effort to announce these restrictions on use in a timely manner.
9.5 SmartSpotter releases updates from time to time that may fix errors or improve the functioning of the App.
9.6 Available updates for the App will be made known via notification via Apple's Appstore and Google Play, whereby Spotter is responsible for keeping these notifications up to date. The updates are also performed via this platform, which requires an active internet connection.
9.7 Installation of updates is done with separate permission from Spotter. For proper implementation of the updates, SmartSpotter is dependent on the availability of Apple's Appstore and Google Play, over which SmartSpotter has no control. SmartSpotter is neither responsible nor liable for the correct implementation of the updates. No liability exists for damage as a result of errors that have been corrected in an update not installed by Spotter.
9.8 An update may set conditions that deviate from the provisions of the Agreement. Spotter is always notified of this in advance and Spotter then has the opportunity to refuse the update. By installing such an update, Spotter agrees to these deviating terms and conditions, which will then form part of the Agreement.
Article 10 - Liability
10.1 SmartSpotter has no influence on the data that Spotter itself enters and stores in the App and no influence on the way in which Spotter handles the Material. SmartSpotter therefore excludes its liability towards Spotter for damage due to shortcomings in the fulfillment of the Agreement or due to unlawful acts.
10.2 Any limitation or exclusion of liability included in the Agreement does not apply if and insofar as the damage is the result of intent or willful recklessness on the part of (the management of) SmartSpotter.
10.3 Liability is limited to what the Client has paid to SmartSpotter for that part of the Assignment that gave rise to the damage, less the costs incurred by SmartSpotter in connection with that Assignment.
10.4 SmartSpotter is in no way responsible for damage in any way whatsoever caused by the use, incompleteness or inaccuracy of the Material offered by Spotter.
10.5 SmartSpotter is not liable for damage to Spotter's smartphone caused by or in connection with the execution of the Assignment.
10.6 Spotter indemnifies SmartSpotter against claims from third parties with regard to damage caused in connection with or arising from the execution of an Assignment.
10.7 No liability exists if this is the direct or indirect result of the incorrect functioning of Apple's Appstore or Google Play.
Article 11- Force majeure
11.1 Neither Party is obliged to fulfill any obligation if it is prevented from doing so as a result of force majeure. Force majeure may include: electricity failure, internet failure, server failure, computer work or telecommunications facilities, as well as other events as a result of which the Parties are beyond their control reasonably unable to fulfill any obligation.
11.2 Force majeure also applies if no Assignment can be fulfilled at the location specified in the Order
Article 12 - Duration and termination
12.1 The Agreement between SmartSpotter and Spotter runs for an indefinite period of time, unless agreed otherwise.
12.2 SmartSpotter may terminate the agreement at any time.
12.3 If Spotter has not used his/her account for three months, the Account will be closed. Spotter will be notified by e-mail and has the right to withdraw the credit for a period of three months thereafter. After that period, the credit will expire to SmartSpotter.
12.4 Spotter may – if Spotter no longer has any outstanding Assignments outstanding – cancel at any time.
12.5 Accounts are automatically and permanently deactivated and deleted after six months of inactivity. At that point, Spotter has already received more than two warning messages about this. When Spotter asks SmartSpotter to deactivate his/her account, the Account will be deactivated and deleted immediately.
12.6 After termination of the Agreement (for whatever reason), Spotter must cease and discontinue any use of SmartSpotter. Spotter must then remove all copies (including backup copies) of the App from all Spotter systems.
Article 13 - Amendment of terms and conditions
13.1 SmartSpotter has the right to change or supplement these Terms and Conditions. SmartSpotter will announce the change or addition to Spotter at least 30 days before it comes into effect.
13.2 If Spotter does not wish to accept the changes or additions, Spotter can object within 14 days of notification, after which SmartSpotter will reconsider the adjustment or addition.
13.3 If SmartSpotter decides to hold on to the change or addition, Spotter can terminate the Agreement.
Article 14 - Exit
14.1 SmartSpotter will keep all personal data of Spotter for the duration of the Agreement. SmartSpotter will make every effort to provide a copy of this personal data after the end of the Agreement at Spotter's request.
14.2 The copy is provided in a common file format to be determined by SmartSpotter.
Article 15 - Other provisions
15.1 Dutch law applies to all Agreements concluded between the Parties.
15.2 Insofar as not dictated otherwise by mandatory law, all disputes that may arise as a result of the Agreement will be submitted to the competent Dutch court in the district where SmartSpotter is located.
15.3 If a provision in the Terms and Conditions proves to be invalid, this does not affect the validity of the entire Terms and Conditions. In that case, the parties will determine (a) new provision(s) as a replacement, which will give shape to the intention of the original provision as much as legally possible.
15.4 "In writing" in the Terms and Conditions also includes communication by e-mail, provided that the identity of the sender and the integrity of the e-mail are sufficiently established.
15.5 SmartSpotter may transfer its rights and obligations under this Agreement to a third party who takes over the relevant business activities or the copyrights in SmartSpotter from it.
15.6 Obligations which by their nature are intended to continue even after termination of the agreement, continue to exist after termination thereof. The termination of the agreement expressly does not release the parties from the provisions with regard to liability, intellectual property rights, applicable law and choice of forum.