Insightech Master Service Agreement

This Insightech Master Service Agreement (the “MSA”) is entered into between Insightech and the contracting party identified in the applicable Order Form (including its Affiliates that have executed Order Forms for Insightech Services, collectively referred to as “the Client”) as of the date of the last signature on the first Order Form executed between Insightech and the Client. Insightech and the Client may each be referred to individually as a “Party” and collectively as the “Parties.”

The Parties agree to be bound by the terms and conditions of this MSA, as well as the terms and conditions of any Order Form(s), specific service terms, product details, and applicable license/subscription terms outlined in any exhibits or the applicable Order Form(s) executed by the Parties from time to time. Such Order Form(s) shall be subject to the terms and conditions of this MSA.

In the event of any conflict among contractual documents, the following order of precedence shall apply: (1) Order Form, (2) exhibits and linked documents to this MSA, and (3) MSA.

Terms and Conditions

1. Definitions
   1. “Account” refers to the account for the Service. All website profiles (as applicable) linked to a single account will have their website traffic aggregated before determining the usage for the Service for that Account. Multiple profiles can be used under an account to track multiple domains, subdomains, and web environments as part of a single account.
   2. "Client Data" or Insightech data stored in the Insightech platform means any content, data, information or material that is recorded by, being submitted to or stored by, the Services, concerning the characteristics and activities of Users
   3. “Client Reports” means any visualisation or report provided within the Insightech platform as part of the standard platform services provided. This does not include any custom built reports in 3rd party platforms using data collected by the Insightech platform.
   4. “Personal Information” means all Personal Data relating to a person that identifies such person or could reasonably be used to identify such person, including but not limited to, first and last name, home address, billing address, or other physical address, email address, telephone number (As defined by the Privacy Act 1988 (Cth) pt II div 1. Retrieved from https://www.legislation.gov.au/Details/C2018C00034)
   5. "Profile" means any website, application, other property or resource under Your control that sends data to Insightech.
   6. "Recordings" means any Client Data that has been processed and stored in the Insightech platform, and made available in reproductions of anonymised user interactions and experiences across a website or web application.
   7. "Script(s)" refers to the JavaScript created by Insightech and supplied to the Client as part of the Insightech Service. When implemented on the Client’s Site(s) by the Client or its representatives, this Script interacts with the Insightech Service to enable its functionality, including features for blocking or preventing the collection of personal data.
   8. “Subscription / Subscription Plan” means the Services outlined in the Services Order Form, and ‘services’ provided by the Insightech platform.
   9. “Services” or Insightech platform services means the content, features, functionality, tools, data, software applications and APIs provided by Insightech via http://insightech.com/ and/or other designated websites as described in the Services Order Form.
   10. "Third Party" means any third party (i) to which You provide access to Your Account or (ii) for which You use the Service to collect information on the third party's behalf.
   11. "Users" means individuals who are authorized by Client to use the Services, for whom subscriptions to the Services have been purchased under an Order, and who have been supplied user identifications and passwords by Client (or by Insightech, at Client’s request). Users may include Client’s employees, consultants, contractors and agents or third parties with which the Client transacts business.
2. Services and Support
   1. Subject to the terms of this Agreement, Insightech will use commercially reasonable efforts to provide Client the Services in accordance with the Services uptime guarantee listed in the above Order Form.
   2. Subject to the terms of this Agreement, Insightech will provide Client with reasonable technical support services in accordance with the terms set forth in the above Order Form.
3. Rights of Insightech
   1. All right, title, and interest in and to the Services (excluding Data provided by Client) are and will remain the exclusive property of Insightech and its licensors.
   2. The Services are protected by copyright, trademark, and other laws of both Australia and foreign countries. Client will not use Insightech name or any of the Insightech trademarks, logos, domain names and other distinctive brand features.
   3. Insightech reserves all intellectual property rights, including, but not limited to, copyright in the Services.
   4. Client hereby grants Insightech the non exclusive right and license to use and display the Client’s name, logo and similar indicia (“Client Marks”)
      1. to the extent any customization or implementation of the Services involve the incorporation of Client Marks in furtherance of this Agreement and
      2. on its website and marketing collateral identifying Client as a customer of Insightech
      3. Insightech obtains no rights in the Client Marks except for the limited right described in the preceding sentence, and Client retains all right, title and interest in the Client Marks. All use of the Client Marks by Insightech will insure to Client.
      4. the Client may withdraw such right for any reason or no reason at all immediately upon written notice to Insightech.
4. Non Exclusive License
   1. Insightech hereby grants Client a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Insightech Code (“IC”) solely as necessary to use the Services for one or more web pages or domains that Client owns and/or controls (collectively, the "Website") pursuant to Client’s Subscription Plan and the terms of this Agreement.
   2. Client will not, nor will Client allow any third party to:
      1. copy, modify, adapt, translate or otherwise create derivative works of the Services;
      2. reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Services;
      3. rent, lease, sell, assign, sublicense or otherwise transfer rights in the Services;
      4. remove any proprietary notices or labels on the Services or placed by the Services;
      5. use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; or
      6. use the Services for illegal purposes.
   3. Client will use the Services solely for Client’s own internal use, and will not
      1. make the Services available for timesharing, application service provider or service bureau use;
      2. use the Services outside of the scope of the license granted hereunder;
      3. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; and/or
      4. send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs. Client will comply with all applicable laws and regulations in client’s use of and access to the Services.
5. Subscription, Account and Cancellation
   1. Client will at all times be responsible for maintaining the security of Client’s Account. Client shall take all necessary steps to protect Client’s Account password from disclosure. Client is fully responsible for Client’s own and third party use of Client’s Account. Insightech will not be liable for any loss and/or damage resulting from Client’s failure to comply with this section. Client agrees to notify Insightech immediately upon learning of any unauthorized use of Client’s Account or any other breach of security.
   2. Client shall pay Insightech the fees for Client’s Subscription Plan (the “Subscription Plan Fees”) in advance unless otherwise explicitly specified in Client’s Order Form. Any fees unpaid by Client by the due date shall thereafter bear interest at the rate of one and a half percent (1.5%) per month (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid.
   3. All amounts owed to Insightech are non-cancellable and fees paid are non-refundable except as explicitly stated otherwise in writing.
   4. Insightech may use various billing service providers. When using such provider’s services, Client agrees to follow and comply with the policies of such provider.
   5. All fees payable hereunder, do not include local, state, or federal sales, use, excise, personal property, GST, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by Client. For the avoidance of doubt, Client shall not be responsible for any payment of taxes based on Insightech’s net income.
   6. This Agreement shall be in force until Client’s subscription expires or is terminated pursuant to the terms herein. At the end of the subscription period specified in Client’s Subscription Plan, Client’s Subscription Plan will be automatically renewed unless otherwise explicitly stated in an Order Form or if terminated pursuant to the terms herein.
   7. If Client wishes to terminate subscription prior to the renewal of Client’s Subscription Plan then Client may do so by contacting Insightech for Account cancellation. When Client cancels subscription, Client’s Subscription Plan will remain active during the then current subscription period specified in Client’s Subscription Plan, but Client’s Subscription Plan will not thereafter be renewed.
   8. Insightech, in its sole discretion, has the right to suspend or terminate Client’s subscription and refuse any and all current or future use of the Services at any time as a result of Client’s breach of this Agreement or for any other reason.
   9. Upon any termination or expiration of this Agreement, Insightech will cease providing the Services to Client, and Client will delete all copies of Insightech Code from all web pages under Client’s control and certify thereto in writing to Insightech within three (3) business days of such termination. In the event of any termination
      1. Client will not be entitled to any refunds of any usage fees or any other fees (except as explicitly otherwise provided in writing), where Insightech has suspended or terminated the Services for material breach by the Client in accordance with clause 5.8. In all other cases, Client will be entitled to a refund of any fees paid for the remaining term of the Agreement on a pro-rata basis.
      2. any outstanding balance through the date of termination, and other unpaid payment obligations will be immediately due and payable in full and
      3. all of Client’s Reports, Recordings, Client Data and other data associated with Client’s Account will no longer be available to Client.
6. Client Data
   1. Client retain full ownership of Client Data. Client hereby allows Insightech to collect, store and process Client Data. Insightech shall use and maintain Client Data only as set forth in this Agreement and the Insightech Privacy Policy available at https://www.insightech.com/privacy-policy, as may be updated from time to time.
   2. Insightech will not use or disclose Client Data to any third parties except
      1. if required in limited circumstances, including when complying with legal requirements, preventing fraud or imminent harm, and ensuring the security of our network and services;
      2. if it is part of aggregated, non-personal information, such as average page load time, or the number of pages processed by our system per day; or
      3. to a limited number of Insightech employees or contractors as required to operate, develop or improve the Services.
   3. Upon any termination or expiration of this Agreement, Insightech will permanently delete all of Client Data in two (2) business days.
7. Privacy
   1. For information about Insightech’s data protection and collection practices, please read the Insightech Privacy Policy at https://​www.insightech.com/privacy-policy, which is incorporated herein by reference. Client agrees to Insightech’s use of Client’s data in accordance with the Privacy Policy.
   2. Client represents and warrants that Client will not transmit, provide, or otherwise make available to Insightech sensitive personal information about other individuals, including but not limited to other employees, customers, partners, or site visitors. Sensitive personal information includes but is not limited to information regarding a minor, financial information, and medical or health information.
8. Third Parties
   1. If Client is an agency or a party representing a third party (“Third Party”), Client represents and warrants that Client is authorized to act on behalf of, and bind to this Agreement, that Third Party (and upon our request shall provide evidence of such).
   2. Client further represents and warrants that such Third Party has provided Client with explicit permission to collect on its behalf and view its Client Data and that Client shall use such Client Data strictly in accordance with the permissions provided to Client by such Third Party and the terms of this Agreement.
   3. Client shall ensure that each Third Party agrees to the terms of this Agreement and agrees to abide by its terms, including without limitation, Section 5 (Privacy). Client acknowledges and agrees that
      1. Insightech makes no representations or warranties for the direct or indirect benefit of any Third Party and
      2. that Client will not make any representations or warranties to such Third Party on behalf of Insightech. Client shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Insightech, the Services, or use thereof. Client agrees to indemnify, hold harmless and defend Insightech, at Client’s expense, against any and all third-party claims, actions, proceedings, and suits brought against Insightech or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Insightech, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to
         1. any representations and warranties made by Client concerning any aspect of the Services to a Third Party;
         2. any claims made by or on behalf of any Third Party pertaining directly or indirectly to Client’s use of the Services;
         3. violations of Client’s obligations of privacy to any Third Party; and
         4. any claims with respect to acts or omissions of a Third Party in connection with the Services.
9. Warranties and Disclaimer of Warranties
   1. The Client and Insightech each represent and warrant to the other that:
      1. (a) this Agreement has been duly executed and delivered and constitutes a valid and binding obligation enforceable in accordance with its terms; (b) no authorization or approval from any third party is required for its execution of the Agreement; and (c) it will comply in all material respects with applicable federal, state, local laws, court orders, or regulations relevant to its performance of obligations under this Agreement, including obtaining all necessary permits, consents, and licenses required for its obligations hereunder.
      2. Neither the execution, delivery, nor the performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which Client is bound.
   2. Insightech warrants that: (a) during the applicable Term, the Insightech Service (excluding Professional Services), when used by the Client as authorized under this Agreement, will perform substantially in accordance with the accompanying Documentation; and (b) Insightech will use commercially reasonable efforts to ensure that the Insightech Service does not introduce any files, scripts, agents, or programs intended to cause harm—such as viruses, worms, time bombs, or Trojan horses—into the Client’s system. The Client’s sole and exclusive remedy for any breach of these warranties by Insightech is for Insightech to repair or replace the affected Insightech Service to ensure material compliance, or, if Insightech determines that such a remedy is not commercially feasible, either Party may terminate the affected portion of the Order Form.
   3. Insightech does not guarantee the Services will be operable at all times including, without limitation, during any down time
      1. caused by outages to any public Internet backbones, networks or servers,
      2. caused by any failures of Client’s equipment, systems or local access services,
      3. for previously scheduled maintenance or
      4. relating to events beyond Insightech’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Insightech or Client’s servers are located or co-located. Complete accuracy in all aspects of Client’s Recordings or Reports at all times also is not guaranteed.
   4. The services are provided “as is,” and to the fullest extent permitted by law, except as expressly stated in this Agreement, Insightech (a) disclaims all representations and warranties regarding the Insightech Service, scripts, integrations, or documentation, whether express or implied, including warranties of accuracy, quality, performance, merchantability, or fitness for a particular purpose; (b) does not guarantee that the Insightech Service will be error-free, uninterrupted, or meet the Client's requirements. The Client cannot make any representation or warranty on behalf of Insightech to third parties; (c) is not liable for delays, failures, or issues related to the Client’s systems or any errors in the Client's installation or operation of the Insightech Service, or scripts. Access to and performance of the Insightech Service may be subject to limitations and delays inherent in internet and electronic communications, and Insightech shall not be liable for any damages arising from such issues.
10. Limitation of Liability
    1. To the maximum extent allowed by law, neither Party (or their respective Affiliates) shall, under any circumstances and regardless of the type of claim, be liable to the other Party for any loss of profits, loss of sales or business, loss of anticipated savings, loss or corruption of software, data, or information, work stoppage, or any consequential, incidental, indirect, special, cover, punitive, or exemplary damages arising from or related to the Agreement, even if they were advised of the possibility of such losses.
    2. With the exclusion of: damages arising from death or bodily injury, or physical damage to tangible property caused by either Party’s gross negligence; damages resulting from either Party’s gross negligence or willful misconduct; and Insightech’s right to recover any unpaid Fees under this Agreement, each Party’s total cumulative liability (including that of their Affiliates) related to or arising from the Agreement will be limited, to the extent permitted by law, to the amounts paid by the Client for the Insightech Service in the twelve (12) months preceding the first event giving rise to such liability. This limitation applies regardless of whether the action is brought under contract, tort (including negligence), breach of statutory duty, or any other legal or equitable theory. Any amounts the Client recovers from Insightech under statutory rights will be aggregated with other claims hereunder for the purpose of applying the above liability cap.
    3. Insightech shall not be liable for: (i) any damage resulting from the Client’s integration of Script(s) with Client Site(s); (ii) any damage due to errors or omissions in any information, instructions, or scripts provided by the Client to Insightech in relation to this Agreement; or (iii) any content published on Client Site(s) by or on behalf of the Client, or any actions performed by Insightech at the Client’s request.
11. Waiver / Severability
    1. The failure of Insightech to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, at the option of Insightech the remaining provisions of these Terms will remain in full force and effect.
12. Governance
    1. The use of the Services provided by Insightech and the agreement set out in these Terms are governed by the laws of New South Wales, Australia, without giving effect to any principles of conflicts of laws. Client agrees to the jurisdiction of the courts of New South Wales to determine any dispute arising out of these Terms.