INTERAMIND REMARKETY TERMS OF SERVICE
Interamind, Ltd. (“Interamind”, “Remarkety,” or “us”, “our”, “we”) provides Remarkety, an automatic customer retention service (the “Service”). These Terms of Service (“Terms”) govern your access and use of the Service. “Merchant,” or “you” means any entity that uses the Service. Merchants must agree to these Terms prior to using the Service.
For the purposes of these Terms, the following definitions apply:
“Applicable Laws” means (a) European Union law or any laws of a member state of the European Union; and (b) any other applicable law in respect of which Remarkety or Merchant is subject to;
“Contracted Processor” means Remarkety or a Subprocessor;
“Customer” means a customer of a Merchant.
“Data Protection Legislation” means the EU General Data Protection Regulation 2016/679 “GDPR“, and, to the extent applicable, the local data protection or privacy laws of any other country in the European Union where Remarkety is established and provides Services from pursuant to the Terms, including the United Kingdom following any exit from the European Union;
“Merchant Personal Data” means any Personal Data which may be Processed by a Contracted Processor on behalf of Merchant pursuant to or in connection with the Terms, including related to a Customer; and
“Subprocessor” means any person (excluding an employee of Remarkety) appointed by or on behalf of Remarkety to Process Personal Data on behalf of the Merchant in connection with the Terms.
Please read these Terms carefully. By registering to use the Service or using the Service, you signify your assent to these Terms. Changes may be made to these Terms from time to time, and we will make commercially reasonable efforts to notify you of such changes. Use of the Service subsequent to such changes in these Terms signifies your consent to such changes. If you do not agree to any of these Terms, please do not click “I agree” and do not use the Service. By clicking “I agree”: (1) you acknowledge that you have read, understood and agreed to these Terms; and (2) you confirm that you are acting as a representative of your company or organization and have the authority to enter into this Agreement on behalf of your employer.
- Remarkety Service. Subject to the terms and conditions hereof, you may use the Service to send emails and messages (“Messages”) to your Customers for your own business purposes. You may not use the Service to provide any similar services to third parties, for example, as a service bureau. You may not use the Service to send Messages under any name other than your own or with fraudulent or misleading header information. Notwithstanding the foregoing, if you offer a package of website marketing and development services to third parties, then you may manage these Services as well on behalf of such third parties, so long as each such third party receiving Services hereunder accepts these Terms.
- Account Registration. When you complete the registration process, you create a Remarkety account. Your account allows you to use the Service, subject to these Terms. You must provide all information as requested in the registration process, and you represent and warrant that all such information shall be accurate and complete. You shall keep such information up-to-date. You shall immediately notify us if there is a security breach of your account. You shall immediately notify us of any unauthorized use of your Remarkety account or password. You are fully and solely responsible for the security of your computer system and all activity on your account, even if such activities were not committed by you.
- Intellectual Property. All right, title and interest in the Service, all content and templates provided by Remarkety, including any related documentation and all enhancements, derivatives, bug fixes or improvements to the foregoing shall at all times remain solely with Remarkety or its licensors. Remarkety shall retain all right, title and interest in the trade names, trademarks, and logos of Remarkety. All references in these Terms or any other communications to the sale, resale or purchase of the foregoing or any service shall mean only the right to use the Service pursuant to these Terms. As between the parties, and subject to the foregoing, all right, title and interest in all trade names, trademarks, and logos of Merchant shall at all times remain solely with Merchant or its licensors.
- Payment. In consideration for the use of the Services, you shall make payments of amounts set forth in a separate quotation provided by us to you in writing or on the Remarkety website in advance of each billing cycle. We shall charge you automatically through a third party payment service in respect of each calendar month, and you agree to make full payment in respect of the Services through such mechanism. You’ll provide us with valid credit card information and authorize us to deduct the monthly charges against that credit card. You’ll replace the information for any credit card that expires with information for a different valid credit card. Anyone using a credit card represents and warrants that he or she is authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If, for some reason, we’re unable to process your credit card order, we’ll try to contact you by email and suspend your account until your payment can be processed. Amounts due hereunder are exclusive of VAT and applicable taxes. You shall make payments hereunder free and clear, and without deduction or withholding, except as required by law. If you are required by law to make any deduction or withholding, you shall make payment of such additional amounts as is necessary such that Remarkety shall receive the amounts due hereunder without any such deduction or withholding. Late payments shall bear interest at the rate of 18% per annum or, if lower, the maximum amounts permitted under applicable law.
- Upgrades/Downgrades. If you upgrade your Pricing Plan level, you will immediately be charged for the increased price of the upgraded Plan, pro-rated to reflect the remaining duration of your subscription period, and you will be charged the full amount of the then-current rate for the new Plan, as provided at http://www.remarkety.com/pricing, beginning with your next billing cycle. If you desire to downgrade your Plan level prior to the end of your subscription period, please provide written notice to firstname.lastname@example.org. The Plan downgrade will take effect the first billing cycle that occurs more than thirty (30) days following your notice to Remarkety, and you will not receive any refunds for payments made on your current billing cycle. Downgrading your Plan may cause the loss of account content, features, or capacity. Remarkety disclaims liability for any such loss. Any discounts applied to a previous subscription may not apply to a renewed subscription or upgraded, including to any automatic renewals.
- Refunds. We’ll give you a pro-rata refund for one month period if we stop providing our Services to you for a reason that’s not laid out in these Terms. In the event you cancel your Plan, no refunds or credits will be provided for partial or unused months of the Services.
- Use and Use Restrictions. You represent and warrant that you have full authority to enter into these Terms, and that the provision of the Service to you and associated services hereunder will not violate any other of your contractual or other obligations. Except as set forth expressly herein, you shall not, and shall not permit any third party, to (a) reverse engineer, or attempt to find the underlying code of, the Service; (b) modify the Service or any Messages, or insert any code or product, or in any other way manipulate the Service or Messages in any way not permitted by the functionality of the Service itself; (c) sell, transfer, sublicense or distribute the Service or bypass any security measures of Remarkety. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, you shall inform us in writing in each instance prior to engaging in the activities set forth above. Merchant shall not remove any “unsubscribe” details from any Messages.
- Content. The Service allows you to compose Messages or to customize templates of Messages that we may provide. Remarkety cannot and does not monitor the content of all Messages. All content provided by you for inclusion in any message shall be of your original authorship and shall not (a) contain any defamatory, libelous, or otherwise offensive content, (b) contain or link to any obscene, pornographic, adult-only or sexual content, (c) contain or link to any illegal, immoral, deceptive or fraudulent material, or material that encourages illegal or immoral conduct, (d) contain or link to any racist or hate speech, or which material promotes or endorses any violent acts, (e) contain any material (including any logos, names and trademarks) that infringes the intellectual property, moral, privacy or publicity rights of third parties, or contain any worms, viruses, spyware, adware or other malicious or intrusive software. Remarkety may refuse to send any content provided by you that, in the sole discretion of Remarkety, violates these Terms or otherwise may damage the business interests of Remarkety. Notwithstanding the foregoing, Remarkety shall have no obligation to Monitor any content for compliance with these Terms.
(a) The terms, “Controller“, “Data Subject“, “member state“, “Personal Data“, “Personal Data Breach“, and “Processing” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
(b) Processing of Merchant Personal Data.
(b.1) Remarkety shall only process Merchant Personal Data on the reasonable and lawful documented instructions of Merchant, unless otherwise required by an Applicable Law to which Remarkety is subject, in which case Remarkety shall inform Merchant of that legal requirement before such Processing (save where that law prohibits such information).
(b.2) For the purpose of section (b.1) Merchant instructs Remarkety (and authorises Remarkety to instruct each Subprocessor) to Process Merchant Personal Data and in particular transfer Merchant Personal Data to, and access Personal Data from, any country or territory, as is necessary to provide the Services and comply with the Terms. Merchant warrants and represents that it is and will at all relevant times remain duly authorised to give such instruction.
(b.3) Annex 1 to the Terms sets out certain information as required by Article 28(3) of the GDPR in the event Personal Data may be processed by Remarkety. Merchant warrants that Annex 1 is an accurate reflection of the Processing activities pursuant to the Terms.
(b.4) Merchant warrants that all Merchant Personal Data processed by any Contracted Processor has been collected by the Merchant in accordance with all Applicable Laws and the Merchant has ensured that there is and there will continue to be a lawful basis for the Contracted Processors to process such Personal Data on the Merchant’s behalf. For clarity, Merchant shall ensure that any marketing is done in accordance with the local laws regarding spam and marketing (in particular, the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 as amended or replaced from time to time and any local implementing laws therefor) and that any required permissions have been lawfully obtained. Merchant shall indemnify and hold harmless, on an unlimited basis, any Contracted Processors against all losses, fines and regulatory sanctions arising from any claim by a third party (including any Supervisory Authority or a Data Subject) arising from any breach of this term.
(c) Personnel. Remarkety will ensure that all employees or contractors of any Contracted Processor who have access to Merchant Personal Data are subject to confidentiality undertakings or professional/statutory obligations of confidentiality.
(d.1) Remarkety will implement appropriate technical and organisational measures, with respect to the Processing of Merchant Personal Data, taking into account the measures required by Article 32 of the GDPR, which measures may be updated by Remarkety from time to time provided that such updates shall not decrease the protection of Personal Data for Data Subjects.
(d.2) Merchant may implement its own additional measures, for example applying encryption before the data is transferred to any Contracted Processor (“Merchant Security Measures“), provided always that no Contracted Processor shall be required to change any of its measures unless otherwise agreed.
(d.3) Merchant shall have contractual responsibility to ensure that, together with any Merchant Security Measures which Merchant may implement itself from time to time in accordance with section (d.2) above, Remarkety’s commitments in these Terms collectively meet the requirements set out in Applicable Laws for security, including Article 32 of the GDPR
(e.1) Merchant authorises Remarkety to appoint (and permit each Subprocessor to appoint) Subprocessors in accordance with the Terms.
(e.2) Merchant specifically authorises Remarkety to permit:
Amazon Web Services, Sendgrid, SolarWinds, Elasticsearch BV, Postmastery BV, Hubspot, Zendesk, Recurly, ChartMogul, Unbounce, Google, AdRoll, Facebook, Sumo
to Process Merchant Personal Data as required to provide the Services, subject to Remarkety in each case as soon as practicable meeting the obligations set out in section (e.4) (“Authorised Sub-Processors“).
(e.3) Remarkety shall inform Merchant as soon as reasonably practicable of any intended changes concerning the addition or replacement of any of the Authorised Sub-Processors that will Process any Merchant Personal Data (“New Sub-Processor“). If, within 30 calendar days of receipt of that notice, Merchant notifies Remarkety in writing of any objections (on reasonable grounds) to the proposed appointment of a New Sub-Processor, the parties will endeavour to agree the commercially reasonable steps to be taken to ensure that the New Sub-Processor in question is compliant with Article 28(4) of the GDPR. Where the Merchant considers, acting reasonably, that the risks involved with the subprocessing are still unacceptable in the context of Article 28, within 14 calendar days following the proposal in relation to the appropriate steps, the Merchant’s sole remedy shall be to terminate the Services so far as they relate to the New Sub-Processor.
(e.4) With respect to each Subprocessor, Remarkety shall: (i) ensure that the arrangement between Remarkety and the Subprocessor is governed by a written contract including terms which offers no less protection for Merchant Personal Data as those terms set out in this Agreement; (ii) if that arrangement involves the transfer of Personal Data from the European Union to a country outside of the European Union that has not been determined to ensure an adequate level of protection for Personal Data, at Remarkety’s discretion: ensure that an appropriate data transfer safeguard is in place in compliance with Chapter IV of the GDPR, including certification with the privacy shield framework, or where required to ensure compliance with Data Protection Legislation, use commercially reasonable endeavours to procure that the Subprocessor enters into Standard Contractual Clauses directly with the relevant Merchant.
(f) Data Subject Rights.
(f.1) Merchant shall, in the first instance, comply with requests received from any Data Subjects to exercise their rights pursuant to Chapter III of the GDPR by itself accessing the Merchant Personal Data held on Remarkety’s website platform.
(f.2) Subject to section (f.1) and taking into account the nature of the Processing, Remarkety shall provide reasonable assistance to the Merchant, at Merchant’s cost, to comply with requests to exercise Data Subject rights under the Data Protection Legislation including by notifying Merchant without undue delay if any Contracted Processor receives a formal request directly from a Data Subject to exercise any of its rights under Chapter III of any Data Protection Legislation in respect of Merchant Personal Data.
(g) Personal Data Breach.
(g.1) Remarkety shall notify Merchant without undue delay, upon Remarkety becoming aware of a Personal Data Breach affecting Merchant Personal Data, providing Merchant with information (as and when available) to assist Merchant to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Legislation.
(g.2) Remarkety shall, at Merchant’s cost, co-operate with Merchant and take such reasonable commercial steps as are reasonably instructed by Merchant to assist in the investigation and mitigation of each such Personal Data Breach.
(h) Data Protection Impact Assessment and Prior Consultation. Where the Remarkety introduces new scope of Services which involve high risk Processing of Personal Data, Remarkety shall, at Merchant’s cost, provide reasonable assistance to Merchant with any data protection impact assessments, and prior consultations with Supervisory Authorities, which are required by Article 35 or 36 of the GDPR, in each case solely in relation to Processing of Merchant Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
(i) Deletion or Return of Merchant Personal Data.
(i.1) Subject to sections (i.2) and (i.3) and to the requirements of any applicable exit plan in the Agreement, Remarkety shall promptly and in any event within 45 calendar days of the date of cessation of any Services involving the Processing of Merchant Personal Data (the “Cessation Date“), delete and procure the deletion of such Merchant Personal Data.
(i.2) Subject to section (i.3), Merchant may in its discretion by written notice to Remarkety within 30 calendar days of the Cessation Date require Remarkety to (a) return a complete copy of all Merchant Personal Data by file transfer (Merchant to provide such file transfer mechanism at its cost). Remarkety shall comply with any such written request within 45 calendar days of the Cessation Date.
(i.3) Each Contracted Processor may retain Merchant Personal Data to the extent required by Applicable Laws for such period as required or permitted by Applicable Laws.
(h) Audit Rights
(h.1) Subject to section (h.2) and (h.3), Remarkety shall make available to Merchant on reasonable request such information reasonably necessary to demonstrate compliance with Article 28(3) of the GDPR, but in any event Remarkety is not obliged to provide permanent copies of such information (and, at Remarkety’s discretion, Remarkety may require a commitment from Merchant and Merchant’s auditors to comply with reasonable security and confidentiality controls). In particular, Remarkety shall inform Merchant if, in its reasonable opinion, an instruction provided by Merchant pursuant to section (b.2) infringes the GDPR or any other Data Protection Legislation, save that Remarkety shall not be obliged to conduct any legal review or analysis and in such instance, Remarkety shall not be required to comply with such unlawful instruction until Merchant varies its instruction to ensure legal compliance.
(h.2) Where applicable if Merchant is not otherwise satisfied by its audit rights pursuant to the Terms, Remarkety shall, at the Merchant’s costs, allow for audits, including inspections, by an auditor mandated by Merchant (subject to section (h.3) and to such auditor being subject to written confidentiality obligations) in relation to the Processing of the Merchant Personal Data by the Contracted Processors, provided that: (i) Merchant shall give Remarkety reasonable notice of any audit or inspection to be conducted; (ii) Merchant shall take reasonable steps to ensure (and shall procure that each of its mandated auditors) minimise the disruption to the Contracted Processors’ business in the course of such an audit or inspection and such audits or inspections shall be conducted during normal working hours; and (iii) a Contracted Processor need not contribute or allow for an inspection or audit more than once in any calendar year, except for any audit or inspections.
(h.3) Remarkety may object in writing to an auditor mandated by Merchant if the auditor is, in Remarkety’s reasonable opinion, not suitably qualified or independent, a competitor of Remarkety, or otherwise manifestly unsuitable. In the event of such an objection, Merchant shall appoint another auditor or conduct the audit itself.
(i) General Terms
(i.1) Transfers. To the extent the Merchant is established within the European Union, Merchant (as “data exporter“) and Remarkety on behalf of each Contracted Processor established outside the European Union (as “data importer“) with effect from the commencement of the relevant transfer hereby enter into the Processor SCCs in respect of any transfer (or onward transfer) where such transfer would otherwise be prohibited by Data Protection Legislation (or by the terms of data transfer agreements put in place to address Data Protection Legislation). Appendix 1 to the Processor SCCs shall be deemed to be prepopulated with the relevant sections of Annex 1 to this Agreement and the processing operations are deemed to be those described in the Agreement. Appendix 2 to the Processor SCCs shall be deemed to be prepopulated with the following “Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood for the rights and freedoms of natural persons, each Contracted Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including as appropriate the specific controls described in Article 32(1), (a) to (d) inclusive of GDPR and including any other controls mandated by applicable Data Protection Legislation or set out in the Agreement.”
(i.2) Costs. Remarkety shall provide assistance pursuant to these Terms upon reasonable prior written notice to Remarkety during normal working hours. Any effort beyond [two (2)] man days’ effort per annum (or its equivalent in hours) shall be at the Merchant’s cost as per Remarkety’s then current standard rate card. Remarkety’s costs will be waived where Remarkety is found to be in breach of its obligations under these Terms.
- Confidentiality. Merchant may disclose to Remarkety certain information regarding its business and operations. Merchant acknowledges that Remarkety may disclose to Merchant certain information confidential or proprietary to Remarkety regarding the Service. Either party (the “Receiving Party”) receiving such information from the other party (the “Disclosing Party”) which the Disclosing Party has marked or identified as confidential or proprietary, or which should reasonably be considered confidential or proprietary given its content and the circumstances of its disclosure (collectively, “Confidential Information”), agrees to keep such Confidential Information confidential during and after the Term and not disclose or use such Confidential Information except in performance of the Receiving Party’s obligations hereunder. Confidential Information shall not include information (i) already lawfully known to or independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, (ii) lawfully received by the Receiving Party from any third party without restrictions, (iii) publicly and generally available, free of confidentiality restrictions; or (iv) required to be disclosed by law, regulation or the lawful request of any regulatory authority, provided that the Receiving Party provides prompt notice of such requirement to the Disclosing Party. In such event, the Disclosing Party shall reimburse the Receiving Party for its costs incurred in compiling and disclosing the required information. The Receiving Party shall restrict disclosure of Confidential Information to those of the Receiving Party’s employees and officers with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Merchant will not disclose any information regarding the results of any testing or evaluation of the Service to any third party without Remarkety’s prior written consent.
- Indemnification. Merchant shall defend, indemnify and hold harmless Remarkety (and its employees, officers, directors and subcontractors) from and against any and all suits, proceedings, assertions, damages, costs, liabilities or expenses (including court costs and attorneys’ fees) which Remarkety may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from or relating to any breach of these Terms by Merchant.
- Disclaimer. The Service is provided on an “AS IS” basis. Remarkety expressly disclaims any warranties, including without limitation, express or implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. The Service may provide you with specific recommendation or suggestions for customer retention campaigns. Remarkety does not make any warranty in respect of any results to be obtained as a result of any recommendations or suggestions, and does not warrant that any campaign or the use of the Service will increase your revenues or market share. Any decisions made based on recommendations or suggestions provided by Remarkety are your own responsibility. Remarkety does not represent or warrant that the sending of any Messages complies with applicable law. It is your responsibility to ensure that your collection of user data and the sending of any Messages complies with applicable law.
- Limitation of Liability. in no event shall Remarkety be liable for any consequential, indirect, direct, special or punitive damages, arising out of or relating to the Service. Remarkety’s entire liability under any provision of these terms shall not exceed amounts you have paid to Remarkety to use the Service in the 12 months prior to the applicable claim. Remarkety shall have no responsibility for the reactions of any Customer to the receipt of any Messages including, without limitation, in respect of the receipt of messages not in compliance with directions provided by Merchant. Remarkety shall not have any liability for the failure of the Services to send Messages according to rules provided by Merchants.
- Term. The term of this agreement shall commence on the date Merchant accepts these Terms and shall continue indefinitely unless otherwise terminated in accordance with these Terms (the “Term”). Either party may terminate this agreement with advance written notice of 24 hours. Remarkety may terminate these Terms upon written notice if it should have reason to believe that Merchant has breached these Terms or is using the Service in violation of applicable law. Upon termination of these Terms for any reason, (a) Merchant shall immediately cease to make any use of the Service (including any information or analysis provided through the Service) and (b) Merchant shall promptly return to Remarkety all copies of Remarkety Confidential Information or destroy same. Remarkety may terminate any content and data provided by you upon termination. The termination of these Terms shall not affect any payment obligations hereunder. Section 3-14 shall survive the termination of these Terms for any reason.
- Miscellaneous. Remarkety and Merchant are and intend to remain independent parties. Nothing contained in these Terms shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and except as otherwise specifically agreed upon in writing by the parties, neither party shall hold itself out as an agent, partner or employee of the other. Neither party shall have any right to bind the other party. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all other agreements between the parties regarding the subject matter hereof. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition. Remarkety may assign its rights or obligations pursuant to these Terms. Merchant agrees not to assign any rights under these Terms; any attempted assignment shall be null and void. If any provision of these Terms shall be deemed invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect. Any notices requires to be sent by Remarkety hereunder may be sent to the email address or other contact information provided by Merchant in its account, or any updates to the same provided by Merchant in writing. These Terms shall be governed by the laws of Israel, and the competent courts in Tel-Aviv/Jaffa, Israel shall have exclusive jurisdiction to hear any disputes arising hereunder.
ANNEX 1: DETAILS OF PROCESSING
This Annex 1 includes certain details of the Processing of Merchant Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Merchant Personal Data
Remarkety process the subject data to allow sending targeted messages to the subject based on their activity history in the merchant’s store. Personal data is processed as long the merchant store is connected to Remarkety.
The nature and purpose of the Processing of Merchant Personal Data
Remarkety process the subject data to allow sending targeted messages to the subject based on their activity history in the merchant’s store.
In particular, the Personal Data will be subject to the following basic processing operations:
- Save personal data and activity history in database
- Analyse the data to come up with best targeted messages and best time to send them
- Send messages to subjects
- Save history log of sent messages
The types of Merchant Personal Data to be Processed
Shoppers personal data including, name, email, phone, address
Shoppers orders history
Emails history sent from Remarkety
Merchant personal data including name, email, phone
Activity logs in Remarkety
Store browsing activity
Special Categories of Personal Data to be Processed
The categories of Data Subject to whom the Merchant Personal Data relates
The obligations and rights of Merchant
The obligations and rights of Merchant are set out in these Terms.