The ReplayMonster Terms of Service (this “Agreement”), including the Data Processing Addendum (attached as Exhibit A), has been prepared as a legally binding agreement between you (sometimes referred to as “you” or “your”) and ReplayMonster a subsidiary of Bouncezap Ltd, a UK Limited company, (“ReplayMonster”, “We”, or “Us”)  (You and ReplayMonster collectively referred to as the (“Parties”).

This Agreement sets forth the rights and obligations of the Parties with respect to the implementation of ReplayMonster’s Service (defined below) on your website.  Before you can use any part of the Service, you must read and affirmatively indicate your acceptance of the following Terms of Service and any applicable Work Order (individually or collectively the “Agreement”).

By implementing or using the Service, you agree that you are authorized to accept these terms and conditions on behalf of yourself and/or your company (collectively, “you”), and that you are bound by the terms of this Agreement for the Service. This Agreement is made and entered into by and between you and ReplayMonster.

Your use of the Service shall be restricted pursuant to the terms and conditions of this Agreement. You agree that you are responsible, and ReplayMonster bears no liability, for the use of your account by any third party, or for your use of the Service through a third party’s account, and the acts and/or omissions of such third party.

  • DESCRIPTION OF THE SERVICE

    ReplayMonster allows you to obtain real-time statistics based on website visitors, using certain ReplayMonster proprietary software, including but not limited to the ReplayMonster API (the “Software”, along with the ReplayMonster website, and ReplayMonster Dashboard, are collectively known as the “Service”), subject to this Agreement.

  • PRIVACY POLICY ON YOUR SITE; OPT-OUT

    You are responsible for compliance with privacy laws and regulations applicable to your use of the Service, including providing any required notice to individuals.  By using ReplayMonster’s Service on your site, you are required to publish a privacy policy that describes the way you are using ReplayMonster on your site. You are also responsible for providing your site’s end users with information on how to opt out of tracking by the Service (e.g., providing a link to the opt-out mechanism on ReplayMonster’s site).

  • AGREEMENT TO PROVIDE THE SERVICE

    Until this Agreement is terminated, cancelled, or rescinded pursuant to its terms, ReplayMonster agrees to provide the Service to you, on the terms and conditions set forth herein. You represent, warrant, and covenant that you are, and will continue to be during the term of this Agreement, eligible to receive the Service and will only use the Service as permitted by the terms of this Agreement.

    ReplayMonster is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Service or any damages resulting from your failure to implement the Software on your website(s) in accordance with ReplayMonster’s Help Documentation (available on ReplayMonster’s website).

    Each time you use the Service, the current version of the Agreement will apply for your use of the Service. Accordingly, you should periodically check the date of the Agreement and review any changes since the last version. If you do not agree with the Agreement at any time, please cease use of the Service.

    We reserve the right to refuse access to the ReplayMonster Service to any user.

  • FREE TRIAL PERIOD

    When you register for the ReplayMonster Service, ReplayMonster will provide you with data and analytics for your website through a free trial use of the Service for seven (7) days (“Free Trial Period”). The term for the Free Trial Period will begin on the date of your registration for the ReplayMonster Service and will continue for seven (7) days, unless extended or sooner terminated in accordance with this Agreement. If you register for the ReplayMonster Service, either you or ReplayMonster may terminate this Agreement upon written notice thereof at any time for any reason or no reason, during or at the end of the Free Trial Period. Upon completion of the Free Trial Period, you must convert to one of the ReplayMonster Service plans by providing standard credit card information in addition to the information you provided to ReplayMonster upon registration.

  • LICENSE; OWNERSHIP

    Subject to the terms and conditions of this Agreement and payment of any required fees, ReplayMonster grants to you a non-sub-licensable, non-transferable, nonexclusive, revocable, limited license to use: (i) the Software and (ii) certain proprietary documentation in the form generally made available by ReplayMonster to you on the Site for use with the Software (the “Documentation”) solely for your personal or internal business purposes.

    Other than as expressly granted in this Agreement, no other rights are granted, including without limitation any and all ReplayMonster patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectable) (“Intellectual Property Rights”). Nothing in this Agreement grants to you any rights whatsoever in or relating to the source code of the Software, other than the limited right to place the ReplayMonster JavaScripts on your website(s). All ownership rights, title, and Intellectual Property Rights in and to the Service shall remain in ReplayMonster and/or its licensors. You agree that ReplayMonster has the right to change, modify, add to or discontinue or retire any aspect or feature of the ReplayMonster Service at any time without any obligation to give you notice of any changes. From time to time, ReplayMonster may, but is under no obligation to, release upgrades, fixes or new versions of the Service, although these upgrades may not be consistent across all platforms and devices.

    “Traffic Data” means all data and information created, received, processed, or provided by ReplayMonster in performing the Service, or that result from performance of the Service for you.  You shall own all rights in and to all Traffic Data, subject to the rights and licenses granted herein. In order to improve our algorithms and the Service, for statistical and analytical reporting and for research purposes, ReplayMonster may, in its discretion, aggregate and/or anonymize the data resulting from use of the Service, including your use of the Service, and provide anonymized data, which may be aggregated with data of other customers, to third parties. ReplayMonster shall exclusively own aggregated and/or anonymized Traffic Data. You hereby assign ReplayMonster all necessary rights to access and use Traffic Data, solely in connection with providing the Service during the term of this Agreement.  If such assignment is not effective for any reason, including by operation of law in any jurisdiction, you hereby grant ReplayMonster a perpetual, exclusive, transferable, sub-licenseable, royalty-free, fully paid up license to use the Traffic Data.

  • RESTRICTIONS

    You agree not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, make derivative works of, disassemble, or reverse engineer the Service, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction or where in accordance with any applicable API terms of service); (ii) copy the Software (except as required to place the ReplayMonster JavaScripts on your website); (iii) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Service, unless explicitly authorized by ReplayMonster; or (iv) use the Service in violation of any applicable regulation or law; or (v) ship, divert, trans-ship, transfer, export or re- export the Service or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department’s Bureau of Export Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency.

    You agree to:

      • Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
      • Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
      • Not obtain the communications protocol for accessing the Service;
      • Not remove, obscure, or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs, or designations (“Branding”), or any electronic notices;
      • Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
      • Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
      • Not to challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof; and
      • Not post or transmit Sensitive Data (defined below) to our servers.
  • PREVENTING TRANSMISSION OF SENSITIVE DATA

    “Sensitive Data” includes payment card data, social security numbers, government-issued identifiers, passwords or other log-in credentials, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health, and data concerning a natural person’s sex life or sexual orientation.

    You are not to transmit or allow transmission of, Sensitive Data to our system by use of any of the ReplayMonster features. Our dynamic recordings will capture the HTML content of the page a visitor is on, and if that page contains Sensitive Data, you must use one of our preventative measures to help prevent transmission of that sensitive data to our servers.

    By default, our system will not capture keystroke data and will convert all keystrokes typed into text areas or input boxes into asterisks before sending them to our servers. If you enable keystroke logging, it is your responsibility that you do not enable keystroke logging on fields that may contain Sensitive Data.

  • FEES AND PAYMENT

    Except with regard to the Free Trial Period, ReplayMonster bills its customers in advance on a monthly basis or once a year, reoccurring, for annual plans. All amounts due shall be paid in US dollars. Service fees are exclusive of all banking fees and all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such fees, taxes, levies, or duties, excluding only United States income (federal or state) taxes imposed on ReplayMonster. In the event you are required to withhold any portion of service fees due to payments to banks or taxing authorities, (i) you agree to do so and to indemnify ReplayMonster for any liability resulting from your failure to make such withholdings, and (ii) ReplayMonster reserves the right to adjust the pricing of the Service so that you are responsible for payment to ReplayMonster of the full amount for the Service, net of any such withholdings. When required by law, you will be responsible for all applicable sales, use, transfer, excise, value-added or similar taxes, and your payment obligation to ReplayMonster hereunder shall include the amount of such tax.

    ReplayMonster will not issue refunds for fees paid for a ReplayMonster Service account, even for periods of inactivity. ReplayMonster may change the price of the ReplayMonster Service upon thirty (30) days’ notice to you. Such notice may be provided at any time by posting the changes to the Site. ReplayMonster will not be liable to you or to any third party for any modifications, price changes, or suspension or discontinuation of the ReplayMonster Service.

  • PAYMENT FOR OTHER SERVICES

    If you register for other ReplayMonster services (collectively, the “Add-On Services”), you will be charged according to the terms of your Work Order.

  • EARLY TERMINATION FEE

    For monthly contracts, there is no early termination fee or refunds.  For annual contracts billed monthly, you agree to pay three (3) times the monthly cost specified in such annual contracts.

  • WARRANTY DISCLAIMER

    REPLAYMONSTER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. THE SERVICE IS PROVIDED BY REPLAYMONSTER AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORMS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES REPLAYMONSTER GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. REPLAYMONSTER DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, IS ACCURATE, ERROR OR BUG-FREE, THAT YOUR USE OF THE SERVICE, WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 11 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY REPLAYMONSTER FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. REPLAYMONSTER MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S END USERS.
  • LIMITATION OF LIABILITY

    IN NO EVENT WILL REPLAYMONSTER AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT REPLAYMONSTER WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE, AND (iii) FOR ANY CLAIM RESULTING FROM YOUR NON-COMPLIANCE WITH THE REQUIREMENTS OF ANY APPLICABLE PRIVACY AND DATA PROTECTION LAWS OR REGULATIONS.  IN NO EVENT SHALL REPLAYMONSTER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
  • INDEMNIFICATION

    YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND, AND HOLD HARMLESS REPLAYMONSTER, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF (i) YOUR USE OF THE SERVICE, (ii) THIRD PARTY CLAIMS, ACTIONS, OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA, OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, (iv) THIRD PARTY CLAIMS, ACTIONS, OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT OF YOUR USE OF THE SERVICE OR THE SITE, OR (v) FOR ANY CLAIM WHATSOEVER RESULTING FROM YOU OR YOUR AFFILIATES’, EMPLOYEES’, CONTRACTORS’, OR AGENTS’ BREACH OF ANY APPLICABLE PRIVACY OR DATA PROTECTION LAW OR REGULATION. REPLAYMONSTER RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
  • TERM AND TERMINATION

    • Termination of ReplayMonster Service.

    If you are a ReplayMonster Service customer, you or we may terminate this Agreement at any time, in whole or in part, for any reason, provided that if you terminate, you shall be obligated to pay any fees accrued prior to the date of termination. You may terminate this Agreement by accessing your Account Settings in your dashboard and following the instructions provided.

    We also may permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the Service upon reasonable prior notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of fees.

    • Termination of Add-On Services.

    If you have purchased any Add-On Services, you or ReplayMonster may terminate this Agreement (i) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party or (ii) as otherwise set forth in your Work Order, provided that you shall remain obligated to pay any fees accrued prior to the date of termination. To terminate this Agreement in accordance with this section, email support@replaymonster.com. You must remove all ReplayMonster scripts and materials from your website within thirty (30) days after termination.

    • Effect of Termination

    You must remove all ReplayMonster scripts and materials from your website(s) within thirty (30) days after termination.  Unless otherwise specified in an applicable Work Order, the term of the license granted herein for the Service shall commence upon the earlier of (i) your implementation of the Service or (ii) your agreement to these Terms of Service and may be terminated as set forth herein. Upon termination of this Agreement, all licenses, and any other rights and services provided by ReplayMonster to you in this Agreement, shall cease immediately. Termination of this Agreement, any license granted hereunder, or your access to the Site, shall not limit us from pursuing other remedies available to us, including but not limited to injunctive relief.

  • CHOICE OF LAW

    This Agreement and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the state of Kansas, exclusive of conflict or choice of law rules. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).

  • AGREEMENT TO ARBITRATE

    • Arbitration

    To the extent feasible, the Parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access of the Site, this Agreement or the breach, termination, enforcement, interpretation or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The Parties agree to attempt to resolve any Disputes by negotiation with the other Party (by phone, electronic correspondence, or written correspondence). If, after good faith discussions, a Dispute(s) cannot be resolved solely between the Parties, such Dispute(s) will be determined by arbitration in Johnson County, Kansas before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA Consumer Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This provision will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. This Section 16 will survive termination of this Agreement. Conduct of Arbitration.

    The arbitration will be commenced by the claimant party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing party. Within thirty (30) calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the AAA Consumer Arbitration Rules’ appointment procedures. Except as may be required by law, neither Party nor the arbitrator may disclose the existence, content or results of any arbitration under this Agreement without the prior written consent of both Parties. The arbitrator’s award will be in writing accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.

    • Costs; Judgment

    The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the Parties, and may award attorneys’ fees.  Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings. Judgment upon the award returned by the arbitrator may be entered in any court having jurisdiction over the parties or their assets or application of enforcement, as the case may be. Any award by the arbitrator shall be the sole and exclusive remedy of the parties. The parties hereby waive all rights to judicial review of the arbitrator’s decision and any award contained therein.

    • Limitation of Liability.

    In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits or any punitive or exemplary damages.

    • Arbitration is on an Individual Basis Only; Class Action Waiver.
    THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S POWER TO RULE ON HIS OR HER OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THIS SECTION 16 WILL REMAIN IN FORCE.
  • GENERAL

      1. Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
      2. Assignment. You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.
      3. Third Party Service Providers. ReplayMonster may provide the Service directly or indirectly using contractors or other third party vendors or service providers. ReplayMonster will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third party suppliers or vendors.
      4. Publicity. You hereby consent to inclusion of your name and trademarks or service marks in customer lists that may be published as part of ReplayMonster’s marketing and promotional efforts.
      5. Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: Sections 8 through 17.
      6. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties.
      7. No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
      8. Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed to ReplayMonster at support@luckyorange.com, or if to you, to the email or physical address associated with your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by email without requiring a handwritten signature for such notice to be effective.
      9. Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood, or other acts of God, labor conditions, power failures, and Internet disturbances.
      10. This Agreement. This Agreement and any related Work Orders, constitute a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matters of this Agreement.
      11. Revisions to this Agreement.  This Agreement may be revised from time to time at our sole discretion by posting the revised Agreement on the ReplayMonster Website or otherwise providing the revised Agreement to you. The revised Agreement shall become effective upon your use of the Service after its publication or provision. Your acceptance of any revised Agreement is your continued use of the Service.

Exhibit A – ReplayMonster Data Processing Addendum

This Data Processing Addendum (“Addendum”) and the related Details of Data Processing in Exhibit A-1 are incorporated by reference into, and constitute an addendum to, the ReplayMonster Terms of Service (the “Agreement”) by and between ReplayMonster, LLC, a Kansas limited liability company (“ReplayMonster”) and the entity that you represent (the “Company”).

This Addendum reflects the parties’ agreement with regard to the processing of Personal Data (defined below), the details of which are set forth in Exhibit A-1.  Capitalized terms not defined in this Addendum have the meanings specified in the Agreement.

WHEREAS, the Company operates a website that implements the ReplayMonster Service;

WHEREAS, in connection with providing the Service, ReplayMonster will process information relating to identified or identifiable natural person(s) (“Personal Data”) on behalf of the Company; and

WHEREAS, the Parties desire to ensure each Party’s adherence to, and compliance with, all applicable laws and regulations relating to the sharing, collection, processing, and disclosure of Personal Data in connection with the Services, including without limitation, after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data) (all applicable laws and regulations collectively referred to as the “Personal Data Regulations”).

  • NOW, THEREFORE, for and in consideration of the foregoing recitals and the Agreement, and covenants hereinafter set forth, the Parties hereby agree as follows:

    DATA PROCESSING REPRESENTATIONS, WARRANTIES, AND AGREEMENTS

    • The Parties represent, warrant and agree, as follows:
    1. That ReplayMonster will process Personal Data only for purposes of performing the Service, will comply with all documented instructions of the Company regarding the processing of Personal Data, and will not process Personal Data for its own purposes unless authorized by the Agreement or otherwise agreed in writing;
    2. That Company has obtained all consents for use and disclosure of Personal Data, or the Company otherwise has a lawful basis for processing Personal Data upon which ReplayMonster may rely, as required by Personal Data Regulations;
    3. That each Party will provide Personal Data the same protection as required under the Personal Data Regulations, including, but not limited to,  undertaking appropriate technical and organizational measures to protect Personal Data from accidental or unlawful destruction, accidental loss or alteration, and unauthorized disclosure or access;
    4. That ReplayMonster will require individuals who will process Personal Data to commit to maintaining the confidentiality of Personal Data as required by Personal Data Regulations, or will confirm that such individuals are under an appropriate statutory obligation of confidentiality;
    5. That, upon Company’s reasonable written request, ReplayMonster will assist Company in responding to requests from individuals to whom Personal Data relate when they exercise their rights under Personal Data Regulations, including rights relating to notice, choice, access, and data privacy complaint resolution;
    6. That, upon Company’s reasonable written request, ReplayMonster will assist Company by providing information necessary for Company to complete any data protection impact assessments (“DPIAs”) or to engage in prior consultation with a supervisory authority, if Personal Data Regulations require such DPIAs or prior consultation;
    7. That, upon Company’s reasonable written request, ReplayMonster will provide Company with copies of the documentation applicable to its processing of Personal Data, including, but not limited to, its privacy policies;
    8. That, upon Company’s reasonable written request and at most once per year, ReplayMonster will allow and cooperate with the Company’s or a qualified, independent third party’s audit or inspection of ReplayMonster’s processing of Personal Data, provided that such audits or inspections are reasonably limited in time and scope to minimize any disruption of ReplayMonster’s business;
    9. That, in the event ReplayMonster determines that it no longer can provide Personal Data the same protection as provided under the Personal Data Regulations, ReplayMonster shall notify Company, in writing, including by means of electronic mail, no later than 48 hours following such a determination;
    10. That, in the event of any unauthorized processing of Personal Data, a Party shall take reasonable and appropriate steps to stop and remediate unauthorized processing and notify the other Party no later than 24 hours from having discovered any unauthorized processing of Personal Data;
    11. That, in the event of any unauthorized processing that is considered a Data Breach under Personal Data Regulations, each Party will cooperate as reasonably requested by the other Party to fulfil any data breach response and notification obligations under Personal Data Regulations, provided that Company may not send or publish any information concerning such a Data Breach without ReplayMonster’s approval, which will not be unreasonably withheld;
    12. That ReplayMonster will not retain Personal Data (or any documents or records containing Personal Data, electronic or otherwise) for any period of time longer than is necessary to perform the Service;
    13. That, upon completion or termination of the Service, at Company’s election, ReplayMonster will delete or return all Personal Data in accordance with the following:
      1. If Company elects deletion of Personal Data, ReplayMonster will delete Personal Data by the later of (i) 30 days after Company’s election or (ii) the date previously agreed upon for deletion of Company’s data;
      2. If Company elects return of Personal Data, ReplayMonster will return Personal Data to Company in a mutually agreed upon format;
      3. After Company has completed either action requested by Company, ReplayMonster will delete any and all remaining copies of Personal Data unless ReplayMonster is obligated to retain such data under applicable law or regulation;
    14. That Company hereby authorizes ReplayMonster to engage third parties to assist with ReplayMonster in providing the Service (“Sub-Processors”), including the processing Personal Data necessary for such Service, provided that ReplayMonster will inform Company and provide Company with an opportunity to object to additional or replacement Sub-Processors if required to do so by Personal Data Regulations; and
    15. That, a Party will promptly notify, in writing, the other Party about: (a) any legally binding request for disclosure of Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation, (b) any accidental or unauthorized access to Personal Data, and (c) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so.
  • LIMITATION OF LIABILITY

    Notwithstanding any other provision of this Addendum or the Agreement, neither Party will be liable to the other Party, by reason of any error of omission or commission, performance or failure to perform or delay in performing any obligations under this Addendum, for any damages in excess of amounts paid under the Agreement, unless such damages are caused by a Party’s gross negligence, willful misconduct, bad faith, or failure to comply with the Personal Data Regulations or other applicable laws or regulations.  IN ADDITION TO THE FOREGOING, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
    • Indemnification
    1. The Company (the “Indemnifying Party”) agrees to defend, indemnify, and hold ReplayMonster, its Affiliates, and their respective officers, directors, employees, agents, and the successors and assigns of the foregoing (the “Indemnified Party”), harmless from and against any and all damages, costs, losses, fines, sanctions, and expenses (including reasonable attorneys’ fees, collectively, “Losses”) arising out of claims, demands, suits, proceedings, regulatory action, or investigation (“Claims”) made or brought against the Indemnified Party by a third party (including without limitation a supervisory authority or other government agency with regulatory authority over the Company) to the extent that the Claim arises out of or relates to (i) the processing of Personal Data in accordance with the Company’s instructions; (ii) any data breach or security incident caused by the Company or the Company’s agent; or (iii) any violation by the Company of Personal Data Regulations or the Company’s representations, warranties, or covenants under this Addendum.
    2. The Indemnified Party shall promptly notify Company in writing of any Claim asserted against the Indemnified Party.  In such event, the Indemnifying Party shall defend against or settle any such claim or suit. The Indemnified Party shall, at the Indemnifying Party’s request and at Company’s expense, cooperate with the Indemnifying Party and provide assistance and information with respect to any Claim. The Indemnified Party shall have the right, at the Indemnifying Party’s expense, to select counsel and to take over the defense against any Claim. Subject to the terms of the Agreement, pursuant to this indemnity, the Company shall pay fees and costs of such defense and any damages and/or costs finally awarded against the Indemnified Party.

Exhibit A-1

Details of Data Processing

Categories of Personal Data:

ReplayMonster may process the following categories of Personal Data on behalf of Company:

  • Traffic data (e.g., the pages visited, the visitor’s mouse movements and clicks, keystroke data, and HTML data on a page visited by a visitor (if such HTML data includes Personal Information))
  • IP address and header information (e.g., browser type, referring URL)

Nature and Purposes of Processing:

ReplayMonster may process Personal Data on behalf of Company for the following purposes:

  • Performance of the Service
  • Compliance with obligations under applicable laws, rules or regulations
  • Aggregation of Traffic Data to provide statistical benchmarking data and vertical-driven insights to our Customers

Categories of Data Subjects:

The Personal Data processed by ReplayMonster on behalf of Company relates to visitors of the Company’s website(s).

Duration of Processing:

Unless otherwise instructed by Company, ReplayMonster stores Personal Data for thirty (30) days.