GENERAL TERMS AND CONDITIONS OF SPOTTERS
The following General Terms and Conditions apply to the use of the SmartSpotter App. The App is offered by SmartSpotter B.V.
ARTICLE 1 – DEFINITIONS
The capitalised terms in these General Terms and Conditions have the following meaning (both singular and plural):
1.1 Account: the personal account made available to the Spotter by SmartSpotter for the use of the App.
1.2 App: the software used by SmartSpotter in connection with the online platform on which Clients can place Assignments that are carried out by Spotters.
1.3 General terms and conditions: these terms and conditions.
1.4 Material: the data, photos, etc. submitted by the Spotter for the fulfilment of an Assignment.
1.5 Assignment: every assignment from SmartSpotter offered to Spotters in the App, which may consist of checking (marketing) agreements on behalf of the Client.
1.6 Client: the natural or legal person who asks SmartSpotter to have an Assignment carried out.
1.7 Agreement: the agreement between the Spotter and SmartSpotter on the basis of which the Spotter can use the App and of which the General Terms and Conditions form an integrated part.
1.8 SmartSpotter: SmartSpotter B.V., established at IJsselmeerweg 100 Unit K in Naarden and registered with the Chamber of Commerce under number 55334652.
1.9 Spotter: a natural person who registers with SmartSpotter to be able to carry out Assignments.
1.10 Party/Parties: the parties to the Agreement, Spotter, SmartSpotter and Client, individually or jointly.
1.11 Fee: Amount of money or credit paid out by SmartSpotter to the Spotter, which depends on the number of Assignments carried out by the Spotter that have been approved by SmartSpotter. The Spotter can also receive a Fee if he/she has referred a new Spotter and the person subsequently completes an Assignment. The Fee may also consist of costs incurred by the Spotter to fulfil the Assignment and temporary bonuses to be determined by SmartSpotter.
1.12 Website: the website of SmartSpotter, www.smartspotter.com, and any other (sub) domains.
ARTICLE 2 – FORMATION OF THE AGREEMENT
2.1 The Spotter can download the App from the App Store and the Google Play Store.
2.2 To be able to use the App, the Spotter must first register via the App or Website.
2.3 The Agreement is formed the moment the Spotter accepts SmartSpotter’s offer by registering.
2.4 A Spotter must be 16 years or older and is required to register his real name with SmartSpotter.
2.5 The Parties only wish to contract each other on the basis of a contract for services within the meaning of Section 7:400 et seq. of the Dutch Civil Code.
2.6 The parties emphatically do not intend to enter into an employment contract within the meaning of Section 7:610 et seq. of the Dutch Civil Code.
2.7 A Spotter is personally responsible for paying taxes.
2.8 SmartSpotter reserves the right to refuse people as a Spotter without stating a reason or to deny a Spotter access to an Assignment, for example, if SmartSpotter suspects fraud or believes the person concerned is trying to influence the results.
2.9 Upon registration, SmartSpotter asks for the name, age, e-mail address and IBAN and it is legally obliged to ask for the name, age, e-mail address and IBAN of the Spotter when registering and paying for assignments. The Spotter is responsible for ensuring the correctness of this information. Both SmartSpotter and the Spotter must be able to provide a statement of payments to the Tax and Customs Administration when the latter asks for it. The Assignments come under ‘results from other activities’.
2.10 In addition to the provisions set out below, Apple’s App Store and Google Play may impose conditions on obtaining the App and using it.
ARTICLE 3 – USE OF THE APP AND ACCOUNT
3.1 To be able to use the App, the Spotter must first register and create an Account. The Spotter must also enter data for this. The Spotter declares he is authorised to enter this data.
3.2 During the registration procedure, the Spotter uses an e-mail address and password that can be used to log in to the App after registration. The Spotter is responsible for choosing a sufficiently reliable password. SmartSpotter is not liable for misuse of the login details and may always assume that a Spotter who registers via the App is, indeed, that Spotter.
3.3 SmartSpotter makes every effort to ensure the information in the App is as complete and accurate as possible. However, SmartSpotter does not accept any responsibility for damage in any way caused by the use, incompleteness or inaccuracy of the information provided in the App and all other means of communication.
3.4 The Spotter indemnifies SmartSpotter against all third-party claims arising from a breach of the Agreement by Spotter.
ARTICLE 4 – ACCEPTING AND PERFORMING ASSIGNMENTS
4.1 SmartSpotter can place Assignments in the App. The description states what the Assignment entails, what the conditions are and what the Fee is, if any. Spotters who want to carry out an Assignment can accept an Assignment via the App. After confirmation of the Assignment by a notification from SmartSpotter in the App, the Spotter can perform the Assignment.
4.2 The Spotter makes every effort to fulfil the Assignment in such a way that the Material meets the expectations of the Client. The performance of the Assignment is at Spotter’s risk.
4.3 The Spotter is only allowed to photograph people if explicitly requested in the Assignment and if the person concerned gives his permission to do so.
4.4 It is prohibited to submit sexually explicit, violent, nonsensical, or copyrighted material.
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, the Spotter has limited time to perform the Assignment. If the Assignment has not been performed or has not been performed correctly within the specified time, the Assignment will be released again.
4.7 SmartSpotter aims to approve or reject the Material within 48 hours. SmartSpotter is authorised to reject Material without giving any reason. If the Material submitted by Spotter is rejected, the Assignment will be released again if it is still available. No correspondence will be entered into about rejected Material.
4.8 After approval of the Material, the Fee to which the Spotter is entitled will be added to his Account.
ARTICLE 5 – USE OF THE APP
5.1 SmartSpotter gains access to the Spotter’s location data when the Spotter has given permission for this in the App. The Spotter only sees Assignments that can be performed in the vicinity when he has given permission in the App to access this location data.
5.2 In the case of performed Assignments, the location and the submission time of the specific Assignment and the Spotter becomes visible to employees of SmartSpotter. After validation of the submission, the submission time and the address details of the Assignment become visible to the Client. The Spotter information is also anonymised for SmartSpotter employees when the Account is deactivated.
5.3 SmartSpotter prevents Spotters from cheating with geolocations by tracking geolocations while the App is in use. This is only tracked when the use of the App requires a geolocation (for example, at App start-up, when a list of nearby available Assignments is requested). If there are large differences between these locations (for example, a travel distance of hundreds of kilometres between two locations), this behaviour is marked as possible fraud. Preventing this form of fraud is essential for the services of SmartSpotter to its Clients. The geolocations are stored for a week, after which they are automatically destroyed.
5.4 Our servers and Software log requests made by the Spotter’s system. These contain the IP addresses and e-mail addresses of Spotters logged in at that time. In some cases, geolocations are also requested. Geolocations for interactions and location spoofing are automatically deleted after one week. The other data above is automatically collected and deleted after one month.
5.5 If SmartSpotter establishes that the Spotter is violating these terms and conditions or the law, or receives a complaint about this, SmartSpotter may intervene to end the violation. In that case, SmartSpotter may block access to the relevant information or block the Spotter’s access to the App.
ARTICLE 6 – PAYMENT
6.1 If it is stated in the description of the Assignment that the Spotter can receive a Fee for the Assignment, the Spotter is entitled to the Fee 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 Spotters weekly, on Thursdays.
6.4 SmartSpotter pays the Fee into 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 desires. 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 – LICENCE AND INTELLECTUAL PROPERTY RIGHTS
7.1 SmartSpotter hereby grants the Spotter, as the lawful acquirer of the App, a personal right of use (licence) to use the App in the manner for which it is intended for the term of the Agreement.
7.2 All rights to the App, the accompanying documentation and all changes and extensions to it are and continue to be vested in 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, related rights and patent rights.
7.3 The Spotter guarantees that no third-party rights are vested in the Material.
7.4 The Spotter always gives SmartSpotter a free and unlimited licence for all forms of use and exploitation. This licence is perpetual and does not end on termination of the Agreement, regardless of the reason for termination.
7.5 Insofar as the intellectual property rights to the Material are not transferable, the Spotter grants SmartSpotter an exclusive right of use, with the right to grant sub-licences to third parties.
7.6 SmartSpotter is permitted to use the Material and possibly provide it to the Client who issues the Assignment.
7.7 The Spotter indemnifies SmartSpotter against third-party claims regarding infringement of their intellectual property rights.
ARTICLE 8 – SECURITY AND PRIVACY
8.1 SmartSpotter will endeavour to adequately protect the App against misuse and unauthorised access to the Spotter’s and Client’s data.
8.2 SmartSpotter can take (technical) measures to protect the App. If SmartSpotter has taken such security measures, the Spotter is not allowed to avoid or remove this security.
8.3 When using the App, (personal) data of the Spotter himself, and of the Material submitted by the Spotter, is processed. The processing of the (personal) data of the Spotter and the Client is necessary to be able to use the App and such data is therefore processed to perform the Agreement.
8.4 As individuals, Spotters have the right to information, access, correct or have the data that we store about you deleted. If you want to exercise this right, you can send an e-mail to firstname.lastname@example.org, along with a copy of your proof of ID and your request. After confirming your identity, we will provide you with the information or grant your request within 1 month.
ARTICLE 9 – AVAILABILITY, MAINTENANCE AND CHANGES
9.1 The Spotter is responsible for installing and starting to use the App.
9.2 SmartSpotter strives to ensure that the App does not contain viruses, back doors 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 in use in a timely manner.
9.5 From time to time, SmartSpotter releases updates that can fix errors or improve the functioning of the App.
9.6 Available updates for the App will be communicated via notifications through Apple’s App Store and Google Play, while it is the responsibility of the Spotter to keep track of these notifications. The updates are also carried out via this platform, which requires an active Internet connection.
9.7 Updates are installed with separate permission from the Spotter. SmartSpotter is dependent on the availability of Apple’s App Store and Google Play for proper implementation of the updates, over which SmartSpotter has no control. SmartSpotter is neither responsible nor liable for the correct implementation of the updates. It is not liable for damage as a result of errors that are resolved in an update that was not installed by the Spotter.
9.8 An update may stipulate conditions that deviate from the provisions of the Agreement. The Spotter is always notified of this in advance and the Spotter can then refuse the update. By installing such an update, the 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 entered and stored in the App by the Spotter, nor can it influence how the Spotter handles the Material. SmartSpotter therefore excludes its liability towards the Spotter for damage due to shortcomings in the performance 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 wilful recklessness on the part of SmartSpotter’s management.
10.3 Liability is limited to what the Client paid to SmartSpotter for that part of the Assignment that gave rise to the damage, minus the costs incurred by SmartSpotter in connection with that Assignment.
10.4 SmartSpotter is in no way responsible for damage in any way caused by the use, incompleteness or inaccuracy of the Material provided by the Spotter.
10.5 SmartSpotter is not liable for damage to the Spotter’s smartphone caused by or in connection with the performance of the Assignment.
10.6 The Spotter indemnifies SmartSpotter against third-party claims with regard to damage caused in connection with or ensuing from the performance of an Assignment.
10.7 SmartSpotter is not liable if this is the direct or indirect result of the incorrect functioning of Apple’s App Store or Google Play.
ARTICLE 11 – FORCE MAJEURE
11.1 Neither of the parties is obliged to fulfil any obligations if unable to do so due to force majeure. Force majeure can include: (i) power failure, (ii) failure of the Internet, server failure, computer work or telecommunication facilities, as well as other events as a result of which the Parties are unable to fulfil any obligation through no fault of their own.
11.2 Force majeure also applies if no Assignment can be fulfilled at the location indicated in the Assignment.
ARTICLE 12 – TERM AND TERMINATION
12.1 SmartSpotter may terminate the agreement at any time.
12.2 If the Spotter has not used his/her account for three months, the Account will be closed. The Spotter will be notified of this by e-mail and has the right to withdraw the credit for three months thereafter. After that period, the credit is due to SmartSpotter.
12.3 The Spotter may cancel at any time, provided he no longer has any outstanding Assignments.
12.4 Accounts are automatically and permanently deactivated and deleted after six months of inactivity. At that time, the Spotter will have already received several warnings about this. When the Spotter asks SmartSpotter to deactivate his/her account, the Account is immediately deactivated and deleted.
12.5 After termination of the Agreement (for whatever reason) the Spotter must cease and stop any use of SmartSpotter. In that case, the Spotter must delete all copies (including backup copies) of the App from all of the Spotter’s systems.
ARTICLE 13 – CHANGES TO THE GENERAL TERMS AND CONDITIONS
13.1 SmartSpotter has the right to change or supplement these General Terms and Conditions. SmartSpotter will announce the change or supplement to the Spotter at least 30 days before it comes into effect.
13.2 If the Spotter does not wish to accept the changes or supplements, the Spotter can lodge a motivated objection within 14 days of the notification, after which SmartSpotter will reconsider the amendment or supplement.
13.3 If SmartSpotter decides to stick to the change or supplement, the Spotter can cancel the Agreement.
ARTICLE 14 – EXIT
14.1 SmartSpotter will keep all of the Spotter’s personal data for the term of the Agreement. SmartSpotter will make every effort to provide a copy of this personal data at the Spotter’s request after the end of the Agreement.
14.2 The copy will be provided in a commonly used file format to be determined by SmartSpotter.
ARTICLE 15 – OTHER PROVISIONS
15.1 This Agreement and all further agreements concluded between the Parties that may or may not arise from it are governed by the laws of the Netherlands. This choice of law does not affect the protection enjoyed by the Spotter under the mandatory law of his place of residence.
15.2 Insofar as not dictated otherwise by mandatory law, any disputes ensuing from the Agreement will be submitted to the competent Dutch court in the district where SmartSpotter has its registered office.
15.3 If a provision of the General Terms and Conditions turns out to be null and void, this will not affect the validity of the General Terms and Conditions as a whole. In that case, the Parties will determine (a) new provision(s) which reflect(s) the intention and purport of the original provision as closely as legally possible.
15.4 In these General Terms and Conditions, the terms “in writing” and “written” are also taken to mean communications by e-mail, provided the identity of the sender and integrity of the e-mail have been sufficiently established.
15.5 SmartSpotter may transfer its rights and obligations under this Agreement to a third party who will take over the relevant business activities or copyrights in SmartSpotter.
15.6 Obligations which by their nature are intended to continue after termination of the agreement, will continue to apply after termination of the agreement. The termination of the Agreement explicitly does not discharge the Parties from their obligations in respect of liability, intellectual property rights, applicable law and choice of forum.
If you have any questions, complaints or comments after reading these General Terms and Conditions, please feel free to contact us.
1411 DL Naarden
Telephone: +31 (0) 88 124 4250