SMS - TMAS

Terms and Conditions Last updated : June 7th, 2019

Terms and Conditions, Privacy Policy

In common language:

Yes, we’ll tell you must read all the terms,conditions and privacy policy below, but we thought we could simplify a few important points:

We respect your privacy. We will not share your information without your permission. In some case we use third party tools such as 3rd party email servers (Sparkpost, Active Campaign, Microsoft Office 365,) to send out email communications, but we ensure these services do not share your data. Credit card data is managed by a PCI certified supplier in a very secure manner.

Our software will shortly be able to analyze the data we get to provide industry trends. Which means we put a lot of data together and then give trends for certain category of industry, verticals, and geography. Once calculated we do not store trace of the calculation and data used, and we never provide a list of who’s included or not in an industry benchmark. We also validate that we have enough data in a trend from many different customers, stores and sensors to ensure no one can estimate the performance of your store(s).

Unless you are on our limited free app. plan, you must pay to use the service. If you stop paying, or do not have enough licenses for your number of locations, you will not be able to access your account and your data may be deleted after some time. You will of course be notified of this. We may use ad services to display a few ads to our free app users.

Security is top of mind; we actively monitor for it and develop new features with security as a primary concern. Our production servers are hosted in a SOC2 secure datacenter protected by many industry standards means for security, reliability and quality of our services.

We ask you not to attempt to reverse engineer any SMS products and software.

T.M.A.S. Terms of Service

The present document (the "Agreement") sets out the terms and conditions governing the use of T.M.A.S. by the user ("You"). T.M.AS is provided by St. Michael Strategies Inc. ("SMS"). By using T.M.A.S., You signify that You have the right, authority and capacity to enter into this Agreement, that You have read and understand this Agreement and that You agree to abide by all the terms and conditions of this Agreement.

1 INTERPRETATION

1.1 In this Agreement, the following terms have the following meanings

1.1.1 "Software as a Service Agreement" refers to the agreement with SMS, when applicable, by which You have been granted access and use of the Service, as defined in Section 2.1 below.

1.1.2 "Content" refers to any information, communication, data, file, text, graphic or other material submitted by, for or on behalf of You for use in connection with the Service.

1.1.3 "Distribution Agreement" refers to the agreement between SMS and a distributor in your market, when applicable, by which the Service has subsequently been made available to You for access and use.

1.1.4 "Documentation" refers to the manuals and other documentation offered by SMS to You regarding the use of the Service.

1.1.5 "T.M.A.S." refers to the software offered by SMS for data collection and management of traffic counter systems.

1.1.6 “Software” refers to T.M.A.S. and other provided Software, such as Mobile application provided by SMS.

1.1.7 "Location" refers to a physical location, such as a retail store or room, represented in the Software as an entity that can be reported on specifically. One Location can support up to 4 traffic counting sensors.

1.1.8 "Occupancy" refers to the number of individuals in a Location at a particular time.

1.2 The inclusion in this Agreement of headings and subheadings is for convenience of reference only and will not affect the construction or interpretation of this Agreement.

1.3 In this Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.

1.4 If any provision of this Agreement is held by a Court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.

1.5 This Agreement, the Software as a Service Agreement and any other agreement with SMS by which You have been granted access and use of the Service constitute the entire agreement between the parties pertaining to the subject matter of this Agreement. There are no warranties, representations or agreements between the parties in connection with such subject matter except as specifically set forth or referred to in this Agreement, the Software as a Service Agreement and any other agreement with SMS by which You have been granted access and use of the Service.

1.6 The failure of SMS to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. A waiver is effective only if made in writing by SMS.

2 SERVICE

2.1 For as long as this Agreement is in effect, You will receive a nonexclusive, non-transferable and non-assignable right to access and use, through your web browser, the hosted Software (hereinafter called the "Service") solely for your internal business operations and subject to the terms and conditions of this Agreement, the Software as a Service Agreement and any other agreement with SMS by which You have been granted access and use of the Service.

2.2 You may allow your employees, affiliates and other persons (hereinafter called the "Users") to access and use the Service for your internal business operations and are solely responsible for the User's compliance with the terms and conditions of this Agreement, the Software as a Service Agreement and any other agreement with SMS by which You have been granted access and use of the Service.

2.3 In order to access and use the Service, you are responsible at your own expense to acquire access to the World Wide Web, either directly or through devices that access web-based content, and to pay any service fees associated with such access. SMS may specify from time to time the version(s) of related products and/or services required in order to use the Service, including without limitation supported browser versions.

2.4 You acknowledge that this Agreement is a service agreement and SMS will not be delivering copies of the Software to You as part of the Service.

3 MODIFICATION OF THE SERVICE

3.1 SMS reserves the right to modify the Service, or any part thereof, at any time, in its sole discretion, with or without notice.

4 SUPPORT

4.1 Should You have been granted access and use of the Service by the means of a Software as a Service Agreement, and for as long as this Agreement is in effect, You will receive e-mail and chat technical support on normal usage of the Software during the business hours of 8:00 a.m. EST to 5:00 p.m. EST, Monday through Friday, excluding SMS’s observed Canadian Federal and Quebec Provincial holidays, which are New Year’s Day, Good Friday, Easter Monday, Victoria Day (Monday preceding May 25th), Provincial Day (June 24th), Canada Day (July 1st), Labor Day (first Monday of the month of September), Thanksgiving Day (second Monday of the month of October), Christmas Day and the day following Christmas Day. If one of these holidays occurs during the weekend, then SMS reserves the right to be closed during a weekday following or preceding the weekend where the holiday occurred. SMS’s by e-mail at techsupport@storetraffic.com, at help.storetraffic.com and in T.MA.S. through the chat option.

4.2 You will receive technical support on the Software only. Any problem related with the hardware installed at your Location(s) is not covered by this Agreement.

5 FEES

5.1 If your level of subscription requires a fee, fees will be due and payable to SMS as agreed upon in the Software as a Service Agreement or any other agreement with SMS by which You have been granted access and use of the Service. SMS reserves the right to display ads in its free versions of software.

6 TERM AND TERIMNATION

6.1 This Agreement will be applicable at all times when You use the Service and will expire or terminate in accordance with the terms of this Agreement, the Software as a Service Agreement, the Distribution Agreement and/or any other agreement by which You have been granted access and use of the Service.

6.2 SMS will have the right to terminate this Agreement immediately and without notice to You, if (i) You are in breach or default of any of your obligations under this Agreement, other than in regard to payment, and such breach or default continues unrectified for five (5) days following the provision of written notice of such breach or default, (ii) You enter into proceedings in bankruptcy or insolvency, make an assignment for the benefit of your creditors, are adjudged to be bankrupt or insolvent, a petition is filed against You under a bankruptcy law, corporate reorganization law or any other law for the relief of debtors or similar law and such petition is not discharged within sixty (60) days after its filling, or a receiver, trustee or similar person is appointed with respect to your assets, (iii) You cease to carry on your business, or (iv) SMS has not received any payment when due under the Software as a Service Agreement or any other agreement with SMS by which You have been granted access and use of the Service. Upon termination of this Agreement in accordance with the above, You will immediately pay to SMS all fees then due and all fees that would have become due under the Software as a Service Agreement or any other agreement with SMS by which You have been granted access and use of the Service during its remaining term had it not also been so terminated, without prejudice to SMS's other rights and recourses in the circumstances.

6.3 SMS will also have the right to terminate this Agreement immediately and without notice if it has not received any payment when due under the Distribution Agreement, should this apply to you.

6.4 Upon expiration or termination of this Agreement, SMS will immediately cease providing the Service and all access and usage rights granted under this Agreement will terminate. You will be responsible for retrieving the Content from the Service prior to the expiration or termination of this Agreement and SMS will not be responsible for any resulting loss or destruction of the Content. Furthermore, You will, at SMS's request, return or permanently delete and destroy all Documentation and Confidential Information.

7 SUSPENSION

7.1 SMS will have the right to suspend the Service immediately and without notice if it has not received any payment when due under the Software as a Service Agreement or any other agreement with SMS by which You have been granted access and use of the Service. All fees remain due during the suspension and will not be reimbursed. You must pay all fees and interest thereon current to end the suspension of the Service.

7.2 SMS will also have the right to suspend the Service immediately and without notice if it has not received any payment when due under the Distribution Agreement, should this apply to you.

8 PROPRIETARY RIGHTS

8.1 The Software, Documentation and other deliverables provided under this Agreement and the Software as a Service Agreement and any other agreement with SMS by which You have been granted access and use of the Service, including without limitation all modifications, improvements, upgrades, derivative works and feedback relating thereto, are proprietary products of SMS protected under copyright and other intellectual property laws. All right, title and interest in and to the above, including without limitation associated intellectual property rights, are and will remain with SMS. Your use, this Agreement and the Software as a Service Agreement and any other agreement with SMS by which You have been granted access and use of the Service do not convey to You an interest in or to the above, but only a limited right of use revocable in accordance with the terms of this Agreement and/or the Software as a Service Agreement and/or any other agreement with SMS by which You have been granted access and use of the Service.

8.2 You warrant that You are the owner of the Content or have been granted all the rights necessary from the owner of the Content to submit the latter for use in connection with the Service. You confirm SMS's right to use the Content in order to provide the Service. You represent that the use of the Content by SMS will not infringe or misappropriate the intellectual property rights of, or otherwise violate the rights of, any third party. SMS does not obtain any right, title or interest in the Content, except as specifically granted herein in order to provide the Service.

8.3 Upon execution of this Agreement, SMS will be entitled to represent that You are a customer of the Service and SMS will be permitted to use your business name and logo to identify You as a customer of the Service.

9 RESTRICTIONS

9.1 You will not, and will not permit anyone to: (i) copy or republish the Service or Software, (ii) make the Service available in any manner to any third party, (iii) access or use the Service to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the Service or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software or Documentation, (vi) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Software, or (vii) access the Service or use the Documentation in order to build a similar product or competitive product, or (viii) reverse engineer the communication between the SMS built sensor and the Software in order to connect the sensor to another Software.

9.2 You agree not to access the Service by any means other than through the interface that is provided by SMS for use in accessing the Service.

10 PRIVACY POLICY

> See Annex A. <

11 INFRINGEMENT

11.1 You will immediately notify SMS in writing of any claim, demand, action, suit or proceeding, actual or threatened, against You, which alleges that your access and/or use of the Service has infringed the intellectual property rights of any third party (hereinafter called the "Infringement Claim").

11.2 SMS, if it elects to do so by notice in writing to You, may defend and/or settle any Infringement Claim, in its sole discretion and in whatever manner that SMS deems appropriate, and, in that event, You hereby appoint SMS as your lawful attorney, with full power of substitution, to do such things as SMS in its sole discretion considers necessary or desirable in order to defend and/or settle any Infringement Claim. Said appointment is irrevocable by You. In the event that SMS elects to undertake the defense and/or settlement of an Infringement Claim as herein provided, You agree to co-operate in all reasonable respects with the efforts of SMS in regard thereto.

12 INDEMNIFICATION

12.1 You agree to indemnify and hold harmless SMS, its affiliates, suppliers and subcontractors, and its and their directors, officers and employees (hereinafter called the "Indemnitees") from and against any and all damages, liabilities, fines, costs and expenses, including reasonable attorney's fees, due to, arising out of or related to the Content, your or the User's access to the Service, your or the User's use of the Service, your or the User's violation of this Agreement and/or your or the User's violation of any proprietary or other rights of another.

12.2 SMS agrees to indemnify and hold You harmless from and against any and all damages, liabilities, fines, costs and expenses, including reasonable attorney's fees, due to, arising out of or related to any Infringement Claim in which it is determined by a Court of competent jurisdiction, or admitted in writing by SMS, that your access and/or use of the Service in accordance with the terms of this Agreement and the Software as a Service Agreement has infringed the intellectual property rights of any third party.

13 LIMITED WARRANTY

13.1 SMS warrants that it will provide the Service in a professional manner consistent with generally accepted industry standards for the provision of similar services. With regards to Service availability, SMS’s sole warranty is as established in the Software as a Service Agreement when applicable to You.

13.2 Notwithstanding anything herein contained to the contrary, SMS's entire liability, and your sole and exclusive remedy, for a breach of the warranty set out in Section 13.1 will be, at SMS's sole option, for SMS to (i) terminate this Agreement and the Software as a Service Agreement and any other agreement with SMS by which You have been granted access and use of the Service and refund any monthly fee(s) paid in accordance with the Software as a Service Agreement or any other agreement with SMS by which You have been granted access and use of the Service during the month(s) in which the breach occurred, (ii) provide a fix, patch or work-around for the problem, (iii) replace the Service with services or products with a similar functionality, or (iv) use all commercially reasonable efforts to promptly correct the breach. With regards to Service availability, SMS’s entire liability, and your sole and exclusive remedy, will only be as established in the Software as a Service Agreement when applicable to You.

13.3 EXCEPT AS STATED IN SECTION 13.1, SMS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR LEGAL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SMS AND ITS SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR RESULT IN PROFITS OR REVENUE, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE OR THAT ALL DEFECTS WILL BE CORRECTED, (III) THE RESULTS OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE, RELIABLE OR COMPLETE, AND (IV) THE QUALITY OF ANY PRODUCT, SERVICE, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. YOU UNDERSTAND THAT SMS’S ABILITY TO REPORT ON OCCUPANCY IS LIMITED TO AN ESTIMATE DUE TO TECHNOLOGICAL LIMITATIONS. OCCUPANCY OBTAINED FROM THE USE OF THE SERVICE SHOULD HENCE NEVER BE USED IN SITUATIONS WHERE AN INACCURACY COULD RESULT IN INDIVIDUALS GETTING HURT OR DYING, INCLUDING WITHOUT LIMITATION USING OCCUPANCY TO DETERMINE THE NUMBER OF INDIVIDUALS IN A LOCATION ON FIRE. WHILE SMS WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO THE CONTENT, SMS MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICE WILL BE SECURE AGAINST UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. SMS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES THAT YOUR USE OF THE SERVICE WILL SATISFY ANY LEGAL OR REGULATORY OBLIGATION, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAW OR REGULATION. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICE, RELATED SERVICES AND THE CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW AND REGULATION. YOU ASSUME THE ENTIRE RISK AS TO THE USE OF THE CONTENT, INCLUDING WITHOUT LIMITATION ANY RELIANCE ON ITS ACCURACY, RELIABILITY OR COMPLETENESS. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMS OR THROUGH OR FROM THE SERVICE WILL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

13.4 NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL SMS AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, REVENUE, GOODWILL AND CONTENT AS WELL AS PUNITIVE AND EXEMPLARY DAMAGES) RESULTING FROM ANY MATTER ARISING OUT OF OR RELATING TO THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, CIVIL LIABILITY (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF FORESEEABLE AND EVEN IF SMS AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL SMS AND/OR ITS SUPPLIERS BE LIABLE FOR (I) MODIFICATION OF THE SERVICE, (II) SUSPENSION OF THE SERVICE, (III) ACCESS DELAYS TO THE SERVICE, (IV) ACCESS INTERRUPTIONS TO THE SERVICE, (V) INTERRUPTION OF BUSINESS, (VI) UNAUTHORIZED ACCESS TO THE CONTENT OR BREACH OF ANY SECURITY MECHANISM UTILIZED IN THE SERVICE, (VII) USE OF OR RELIANCE ON THE CONTENT OR THE RESULTS OBTAINED FROM THE USE OF THE SERVICE, INCLUDING OCCUPANCY (VIII) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, (IX) FAILURE TO STORE, LOSS, DELETION, DESTRUCTION, NON-DELIVERY, MIS-DELIVERY, CORRUPTION, ALTERATION OR ANY OTHER MODIFICATION OF THE CONTENT, AND (IX) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE. THIS SECTION 13.4 WILL NOT BE INTERPRETED AS TO AFFECT THE CREDIT, PAYMENT OR REFUND REFERRED TO IN SECTION 13.2 ABOVE.

13.5 SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, SMS’S AND/OR ITS SUPPLIER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. HOWEVER, IN NO EVENT WILL SMS’S AND/OR ITS SUPPLIER’S AGGREGATE LIABILITY EXCEED THE MONTHLY FEE(S) PAID IN ACCORDANCE WITH THE SOFTWARE AS A SERVICE AGREEMENT OR ANY OTHER AGREEMENT WITH SMS BY WHICH YOU HAVE BEEN GRANTED ACCESS AND USE OF THE SERVICE FOR THE RELEVANT MONTH(S), TO A MAXIMUM AMOUNT EQUAL TO SIX (6) MONTHS, OR $5,000, WHICHEVER IS LOWER. THIS SECTION 13.5 WILL NOT BE INTERPRETED AS TO AFFECT THE CREDIT, PAYMENT OR REFUND REFERRED TO IN SECTION 13.2 ABOVE.

13.6 NO ACTION ARISING OUT OF OR RELATING TO THE SERVICE AND/OR THIS AGREEMENT AND/OR THE SOFTWARE AS A SERVICE AGREEMENT AND/OR ANY OTHER AGREEMENT WITH SMS BY WHICH YOU HAVE BEEN GRANTED ACCESS AND USE OF THE SERVICE, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME HAD BEEN KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN DISCOVERED BY, YOU.

14 GENERAL PRACTICES AND LIMITS

14.1 You acknowledge that SMS may establish at any time, in its sole discretion, with or without notice, general practices and limits concerning your use of the Service, including without limitation establishing the maximum amount of storage space You have at any time and limiting the amount of bandwidth (such as, but not limited to, number of Scheduled Reports, API calls, Exports, and Imports) You may use with the Service in a given period of time. Bandwidth is defined as the total amount of data downloaded from and uploaded to SMS's server in a given period of time. In addition, SMS may limit the volume of file downloading from your database in response to unreasonable activity.

14.2 You further acknowledge that SMS may change the general practices and limits mentioned in Section 14.1 at any time, in its sole discretion, with or without notice.

15 USER INFORMATION

15.1 You agree to provide true, accurate, current and complete information about yourself in connection with your registration. You further agree to maintain and promptly update said information. SMS is not responsible if your information is untrue, inaccurate, not current or incomplete.

15.2 SMS uses de-identified customer submitted data in his system in order to provide industry benchmark, such as trends and averages. These will be done and provided only when the customer data anonymity can be respected.

16 MODIFICATION OF THIS AGREEMENT

16.1 SMS may periodically modify this Agreement in its sole discretion. In the event SMS modifies this Agreement, SMS will post the modified agreement to the Service and it will be visible once You log in but before You are granted access. Your continued use of the Service after such modification will constitute your acceptance of the modified agreement. If You do not agree with the modified agreement, this Agreement will be terminated and You will immediately cease all access and use of the Service. You agree that such termination will be your exclusive remedy if You do not wish to abide to the modified agreement and that said termination will not affect the fees due and payable to SMS as agreed upon in the Software as a Service Agreement or any other agreement with SMS by which You have been granted access and use of the Service.

17 GENERAL PROVISIONS

17.1 The expiration or termination of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or implicitly intended to remain in force after such expiration or termination.

17.2 The relationship between the parties to this Agreement will at all times be one of independent contract. The parties to this Agreement are not partners, joint ventures, employee and employer or principal and agent and nothing contained in this Agreement will be interpreted so as to construe otherwise. Neither party has the authority to bind the other party and each party agrees not to hold itself out as being so authorized.

17.3 SMS may subcontract its obligations under this Agreement, provided, however, that SMS will remain responsible for the performance of obligations performed by subcontractors to the same extent as if such obligations were performed by SMS.

17.4 Neither party will be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control (including without limitation acts of God, earthquakes, strikes or shortages of materials) (hereinafter called "Force Majeure Events"). With respect to SMS, Force Majeure Events include failures or delays caused by You.

17.5 This Agreement is governed and will be construed in accordance with the laws of the Province of Quebec. Any action arising out of or relating to this Agreement will be brought and maintained only in the Province of Quebec in the judicial district of Montreal.

17.6 Any notice or communication to SMS will be in writing, in English and sent by registered letter or fax to the following address:

ST. MICHAEL STRATEGIES INC.
86 St-Luc Boulevard, suite 230
St-Jean-sur-Richelieu, Quebec J3L 1R2
Fax: 1 (450) 658-7764

17.7 This Agreement will be binding upon and inure to the benefit of each party and such parties' successors and assigns.

17.8 The parties declare that they have requested that this Agreement and all writings related thereto be drafted in the English language. Les parties déclarent avoir exigé que la présente convention et tous écrits s'y rapportant soient rédigés en langue anglaise.

Annex A :Privacy Policy [April 3rd, 2019]

SMS ("us", "we", or "our") operates the Storetraffic.com website, the T.M.A.S. Software and the Store Traffic Mobile Application (hereinafter referred to as the "Service"). This page informs you of our policies regarding the collection, use and disclosure of personal data when you use our Service and the choices you have associated with that data. We use your data to provide and improve the Service. By using the Service, you agree to the collection and use of information in accordance with this policy. Unless otherwise defined in this Privacy Policy, the terms used in this Privacy Policy have the same meanings as in our Terms and Conditions.

Definitions

Service: Service is the Storetraffic.com website, T.M.A.S.Software and the Mobile applications operated by SMS.
Personal Data: Personal Data means data about a living individual who can be identified from those data (or from those and other information either in our possession or likely to come into our possession).
Usage Data: Usage Data is data collected automatically either generated by the use of the Service or from the Service infrastructure itself (for example, the duration of a page visit).
Cookies: Cookies are small files stored on your device (computer or mobile device).
Data Controller: Data Controller means the natural or legal person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal information are, or are to be, processed. For the purpose of this Privacy Policy, we are a Data Controller of your Personal Data.
Data Processors (or Service Providers): Data Processor (or Service Provider) means any natural or legal person who processes the data on behalf of the Data Controller. We may use the services of various Service Providers in order to process your data more effectively.
Data Subject (or User): Data Subject is any living individual who is using our Service and is the subject of Personal Data.

Information Collection and Use

We collect several different types of information for various purposes to provide and improve our Service to you.

Types of Data Collected

Personal Data

While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you ("Personal Data"). Personally identifiable information may include, but is not limited to:

Email address
First name and last name
Phone number
Address, State, Province, ZIP/Postal code, City
Cookies and Usage Data

We may use your Personal Data to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send or by contacting us. Scheduled Reports and Alerts emails must be turned-off by either you or your Administrator to stop them from being received.

Usage Data

When you access the Service with a mobile device, we may collect certain information automatically, including, but not limited to, the type of mobile device you use, your mobile device unique ID, location, the IP address of your mobile device, your mobile operating system, the type of mobile Internet browser you use, unique device identifiers and other diagnostic data ("Usage Data").

Tracking & Cookies Data

We use cookies and similar tracking technologies to track the activity on our Service and we hold certain information. Cookies are files with a small amount of data which may include an anonymous unique identifier. Cookies are sent to your browser from a website and stored on your device. Other tracking technologies are also used such as beacons, tags and scripts to collect and track information and to improve and analyse our Service. You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Service. Examples of Cookies we use:

Session Cookies: We use Session Cookies to operate our Service.
Preference Cookies: We use Preference Cookies to remember your preferences and various settings.
Security Cookies: We use Security Cookies for security purposes.
Advertising Cookies: Advertising Cookies are used to serve you with advertisements that may be relevant to you and your interests.

Use of Data

SMS uses the collected data for various purposes:

To provide and maintain our Service
To notify you about changes to our Service
To allow you to participate in interactive features of our Service when you choose to do so
To provide customer support
To gather analysis or valuable information so that we can improve our Service
To monitor the usage of our Service
To detect, prevent and address technical issues
SMS uses de-identified customer submitted data in his system in order to provide industry benchmark, such as trends and averages. These will be done and provided only when the customer data anonymity can be respected.
To provide you with news, special offers and general information about other goods, services and events which we offer that are similar to those that you have already purchased or enquired about unless you have opted not to receive such information

Legal Basis for Processing Personal Data under the General Data Protection Regulation (GDPR)

If you are from the European Economic Area (EEA), SMS legal basis for collecting and using the personal information described in this Privacy Policy depends on the Personal Data we collect and the specific context in which we collect it. SMS may process your Personal Data because:

We need to perform a contract with you
You have given us permission to do so
The processing is in our legitimate interests and it is not overridden by your rights
For payment processing purposes
To comply with the law

Retention of Data

SMS will retain your Personal Data only for as long as is necessary for the purposes set out in this Privacy Policy. We will retain and use your Personal Data to the extent necessary to comply with our legal obligations (for example, if we are required to retain your data to comply with applicable laws), resolve disputes and enforce our legal agreements and policies. SMS will also retain Usage Data for internal analysis purposes. Usage Data is generally retained for a shorter period of time, except when this data is used to strengthen the security or to improve the functionality of our Service, or we are legally obligated to retain this data for longer periods.

Transfer of Data

Your information, including Personal Data, may be transferred to — and maintained on — computers located outside of your state, province, country or other governmental jurisdiction where the data protection laws may differ from those of your jurisdiction. If you are located outside Canada and choose to provide information to us, please note that we transfer the data, including Personal Data, to Canada and process it there. Your consent to this Privacy Policy followed by your submission of such information represents your agreement to that transfer. SMS will take all the steps reasonably necessary to ensure that your data is treated securely and in accordance with this Privacy Policy and no transfer of your Personal Data will take place to an organisation or a country unless there are adequate controls in place including the security of your data and other personal information.

Disclosure of Data

Business Transaction

If SMS is involved in a merger, acquisition or asset sale, your Personal Data may be transferred. We will provide notice before your Personal Data is transferred and becomes subject to a different Privacy Policy.

Disclosure for Law Enforcement

Under certain circumstances, SMS may be required to disclose your Personal Data if required to do so by law or in response to valid requests by public authorities (e.g. a court or a government agency).

Legal Requirements

SMS may disclose your Personal Data in the good faith belief that such action is necessary to:

To comply with a legal obligation
To protect and defend the rights or property of SMS
To prevent or investigate possible wrongdoing in connection with the Service
To protect the personal safety of users of the Service or the public
To protect against legal liability

Security of Data

The security of your data is important to us but remember that no method of transmission over the Internet or method of electronic storage is 100% secure. While we strive to use commercially acceptable means to protect your Personal Data, we cannot guarantee its absolute security.

Your Data Protection Rights under the General Data Protection Regulation (GDPR)

If you are a resident of the European Economic Area (EEA), you have certain data protection rights. SMS aims to take reasonable steps to allow you to correct, amend, delete or limit the use of your Personal Data. If you wish to be informed about what Personal Data we hold about you and if you want it to be removed from our systems, please contact us. In certain circumstances, you have the following data protection rights:

The right to access, update or delete the information we have on you: Whenever made possible, you can access, update or request deletion of your Personal Data directly within your account settings section. If you are unable to perform these actions yourself, please contact us to assist you.
The right of rectification: You have the right to have your information rectified if that information is inaccurate or incomplete.
The right to object: You have the right to object to our processing of your Personal Data.
The right of restriction: You have the right to request that we restrict the processing of your personal information.
The right to data portability: You have the right to be provided with a copy of the information we have on you in a structured, machine-readable and commonly used format.
The right to withdraw consent: You also have the right to withdraw your consent at any time where SMS relied on your consent to process your personal information. Please note that we may ask you to verify your identity before responding to such requests. You have the right to complain to a Data Protection Authority about our collection and use of your Personal Data. For more information, please contact your local data protection authority in the European Economic Area (EEA).

Service Providers

We may employ third party companies and individuals to facilitate our Service ("Service Providers"), provide the Service on our behalf, perform Service-related services or assist us in analysing how our Service is used. These third parties have access to your Personal Data only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.

Analytics

This applies to our corporate website only (storetraffic.com). We may use third-party Service Providers to monitor and analyse the use of our Service.

Google Analytics: Google Analytics is a web analytics service offered by Google that tracks and reports website traffic. Google uses the data collected to track and monitor the use of our Service. This data is shared with other Google services. Google may use the collected data to contextualise and personalise the ads of its own advertising network. You may opt-out of certain Google Analytics features through your mobile device settings, such as your device advertising settings or by following the instructions provided by Google in their Privacy Policy. For more information on the privacy practices of Google, please visit the Google Privacy & Terms web page

Advertising

This applies to our corporate website only (storetraffic.com). We may use third-party Service Providers to show advertisements to you to help support and maintain our Service.

Google AdSense & DoubleClick Cookie: Google, as a third party vendor, uses cookies to serve ads on our Service. Google's use of the DoubleClick cookie enables it and its partners to serve ads to our users based on their visit to our Service or other websites on the Internet. You may opt out of the use of the DoubleClick Cookie for interest-based advertising by visiting the Google Ads Settings web page

Behavioral Remarketing

This applies to our corporate website only (storetraffic.com) SMS uses remarketing services to advertise on third party websites to you after you visited our Service. We and our third-party vendors use cookies to inform, optimise and serve ads based on your past visits to our Service.

Google Ads (AdWords): Google Ads (AdWords) remarketing service is provided by Google Inc. You can opt-out of Google Analytics for Display Advertising and customise the Google Display Network ads by visiting the Google Ads Settings page. Google also recommends installing the Google Analytics Opt-out Browser Add-on for your web browser. Google Analytics Opt-out Browser Add-on provides visitors with the ability to prevent their data from being collected and used by Google Analytics. For more information on the privacy practices of Google, please visit the Google Privacy & Terms web page
Facebook: Facebook remarketing service is provided by Facebook Inc. You can learn more about interest-based advertising from Facebook by visiting this page. To opt-out from Facebook's interest-based ads, follow these instructions from Facebook. Facebook adheres to the Self-Regulatory Principles for Online Behavioural Advertising established by the Digital Advertising Alliance. You can also opt-out from Facebook and other participating companies through the Digital Advertising Alliance in the USA, the Digital Advertising Alliance of Canada in Canada or the European Interactive Digital Advertising Alliance in Europe, or opt-out using your mobile device settings. For more information on the privacy practices of Facebook, please visit Facebook's Data Policy

Payments

We may provide paid products and/or services within the Service. In that case, we use third-party services for payment processing (e.g. payment processors). We will not store or collect your payment card details. That information is provided directly to our third-party payment processors whose use of your personal information is governed by their Privacy Policy. These payment processors adhere to the standards set by PCI-DSS as managed by the PCI Security Standards Council, which is a joint effort of brands like Visa, MasterCard, American Express and Discover. PCI-DSS requirements help ensure the secure handling of payment information. The payment processors we work with are:

Fusebill: One may consult their Privacy Policy
Moneris: One may consult their Privacy Policy
Stripe: One may consult their Privacy Policy

Emailing, SMS & CRM

We use third party tools to facilitate communication with you and to provide some features related with the service such as, but not limited to, Text Message Alerts, Email Alerts and Scheduled Reports by Email. The company we work with are:

ActiveCampaign: One may consult their Privacy Policy
Microsoft: One may consult their Privacy Policy
Nexmo: One may consult their Privacy Policy
Nylas Inc.: One may consult their Privacy Policy
SparkPost: One may consult their Privacy Policy
Zendesk Inc.: One may consult their Privacy Policy

Links to Other Sites

Our Service may contain links to other sites that are not operated by us. If you click a third party link, you will be directed to that third party's site. We strongly advise you to review the Privacy Policy of every site you visit. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.

Children's Privacy

Our Service does not address anyone under the age of 18 ("Children"). We do not knowingly collect personally identifiable information from anyone under the age of 18. If you are a parent or guardian and you are aware that your Child has provided us with Personal Data, please contact us. If we become aware that we have collected Personal Data from children without verification of parental consent, we take steps to remove that information from our servers.

Changes to This Privacy Policy

We may update our Privacy Policy from time to time. We will notify you of any changes by posting the new Privacy Policy on this page. We will let you know via email and/or a prominent notice on our Service, prior to the change becoming effective and update the "effective date" at the top of this Privacy Policy. You are advised to review this Privacy Policy periodically for any changes. Changes to this Privacy Policy are effective when they are posted on this page.

Contact Us

If you have any questions about this Privacy Policy, please contact us by e-mail : info@storetraffic.com

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