Terms of service
Updated 10 September 2019
These Terms of Service (the “Terms”) including its appendices listed below constitutes the entire agreement between the Customer or You and NewPath Consulting, Inc. (”NewPath” or “we,” “our” or “us” ), regarding your use of our services specified in the Terms (the software, and services are collectively referred to as the “Service”). Please read these Terms carefully. The term “you” shall also include your employees or other authorized users to the extent applicable and permitted under your subscription of the Service.
The following appendices forms an inseparable part of and is governed by the terms of these Terms of Service:
Schedule 1: Data Processing Agreement
In the event of any conflicting terms in the Terms and its appendices, the Terms shall take precedence over the appendices, except in any matters relating to the processing of personal data, in which case Schedule 1 (Data Processing Agreement) shall take precedence.
1. The Service
The Service is an analytics and reporting solution that helps customers collect their online data and create reports.
The Service is not intended for users that are consumers (being an individual acting primarily for purposes other than a trade, business or profession) and the applicability of consumer protection legislation is therefore excluded. You must be 18 years of age or older to enter into this agreement and use the Service. You represent and warrant that any information you submit is true and accurate and that you are 18 years of age or older and are fully able and competent to enter into, and abide by these Terms.
3. Account Registration
You must register to use certain features of the Service. When you register, you agree to (a) provide accurate, current and complete information about you as may be prompted by registration forms on the Service (“Registration Data”); (b) maintain the security of any logins, passwords, or other credentials that you select or that are provided to you for use on the Service; (c) maintain and promptly update the Registration Data, and any other information you provide to us, and to keep all such information accurate, current, and complete; and (d) notify us immediately of any unauthorized use of your account or any other breach of security by emailing us at firstname.lastname@example.org.
4. Free Trial
We may at our sole discretion offer you free trials for selected features of the Service or a limited time trial period of the entire Service. Once your free trial period ends, your ability to access the Service will terminate. NewPath reserves the right to determine if you are eligible for a free trial and to discontinue any free trial without notice at our sole discretion.
5. Fees and payment
Access to selected features of the Service may be provided to you free of charge. We will charge fees for certain features, either on a one-time or a subscription basis (“Paid Services”). NewPath reserves the right to implement fees or change the fees for certain services at any time by providing you notice on the Service or otherwise. When you purchase any Paid Services, you authorize NewPath or its third party payment processors to charge the credit card identified by you (which you represent and warrant that you are authorized to use) all applicable fees for your purchase, including all applicable taxes, and you agree that our payment provider can store your credit card information. If NewPath does not receive payment from your credit card provider, you agree to pay all amounts due upon demand and NewPath may suspend your access to the Services until full payment is received or terminate the Terms of Service. All sales are final and NewPath will not issue refunds, including for prepaid monthly fees. If you choose an automatic recurring payment and later decide to end your subscription, cancelling the payment is your responsibility. NewPath does not refund automatic payments not cancelled in time.
6. Use Restrictions
Your right to use the Service is personal, limited to your internal business purposes, non-transferable, non-exclusive, revocable and subject to your compliance with the Terms at all times, including your timely payment of all applicable fees for the Services.
Licenses for the Service are based on the Service client, data source, data destination and usage restrictions. Licenses may be restricted to one individual, company, your NewPath team or specific data access/usage. There may be additional restrictions on purchased licenses and restrictions may change from time to time. We will take every step to inform you of impending changes in a timely manner. Special license usage terms and/or restrictions may be entered into with NewPath through a separate agreement and/or contract that will override these Terms.
Without limiting the generality of the foregoing, you will not:
a) access, monitor, or copy any content or information on the Service using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission;
b) violate the restrictions in any robot exclusion headers on the Service or bypass or circumvent other measures employed to prevent or limit access to the Service;
c) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
d) deep-link to any portion of the Service for any purpose without our express written permission;
e) “frame”, “mirror,” or otherwise incorporate any part of the Service into any other website without our prior written authorization; or
f) violate any applicable local, provincial, national, or international law or regulation.
We may at any time suspend or terminate your access to the Service if we have reason to believe that you are not complying with the Terms or you are otherwise abusing the Service.
7. Third-party services, data and content
The Service allows you to gather data from multiple third-party data sources and services, including various third-party websites (jointly “Third-Party Services”). The Third-party Services from which the data can be gathered are selected by NewPath at its sole discretion. NewPath may, after the conclusion of the Terms, change such available sources in accordance with Section 8. Notwithstanding the above, NewPath may always discontinue Third-Party Services if the service providers of the Third-Party Services in question discontinue the relevant services or discontinue providing such services to NewPath.
NewPath assumes no liability whatsoever for the data or other content collected from Third-Party Services. You are solely responsible for ascertaining that you have the right to use the Service for gathering and processing any such data by using the Service, and you must obtain any such consents and authorizations as may be needed from time to time in relation to such data or other content and their processing by using the Service. The Service may be used as an add-on to various Third-Party Services and software. We do not assume any liability for such Third-Party services or software, and you are exclusively responsible for obtaining any necessary licenses or consents needed for their use. You must familiarize yourself with the applicable terms and conditions, including any restrictions on use, in relation to any such Third-Party Services and you agree to comply with such third-party terms and conditions in addition to the terms of these Terms.
Furthermore, the Service may contain links to Web pages and content of third parties as a service to those interested in this information. We do not monitor, endorse, or adopt, or have any control over any third-party content. We undertake no responsibility to update or review any third-party content and can make no guarantee as to its accuracy or completeness. Additionally, if you follow a link or otherwise navigate away from the Service, please be aware that these Terms will no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any third-party content or service provider to which you navigate from the Service. You access and use third-party content at your own risk. The Service may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
8. Modifications to the Service
NewPath reserves the right to modify, discontinue, and restrict, temporarily or permanently, all or part of the Service without notice at our sole discretion. Neither we nor our suppliers or licensors will be liable to you or to any third party for any modification, discontinuance, or restriction of the Service.
NewPath may engage subcontractors to perform the Service under the Terms.
10. Term and Termination
Your account and subscription of the Service remains in effect unless you terminate it or unless NewPath terminates your account as provided by these Terms. Your account and subscription of the Service may, depending on your choice, be automatically renewable or valid for a fixed period.
Term of the Terms of Service regarding Paid Services enters into force when we have received payment from your credit card provider. If the Service is provided to you free of charge, the Term of the Terms of Service enters into force upon your trial license creation and/or account registration.
If your subscription is automatically renewable, your subscription to the Service will remain in effect and will be renewed automatically at the end of each subscription period unless you terminate your subscription or we terminate it.
If your subscription is made for a fixed period and/or not automatically renewable, your subscription will automatically terminate at the end of the agreed subscription period.
Separate written order forms or contracts for the Service may have special adherence terms regarding renewal and defined advance notice periods for termination.
Upon the termination or expiration of your subscription, you must immediately stop using the Service and must destroy any copies of the same in your possession.
If Customer’s continued use of the Service may result in material harm to NewPath, its subcontractors, affiliates, or another customer of the Service, NewPath may block or restrict Customer’s access to the Service, always provided that NewPath does not adopt or undertake more far-reaching measures than is justified under the circumstances.
In addition, NewPath is entitled to suspend an individual user’s continued use of the Service if the individual user has submitted information to the Service in breach of applicable legislation or otherwise used the Service in breach of the Terms.
Any materials, including but not limited to comments, suggestions, ideas, or other information, provided by you in the form of email or other submissions to us (excluding Customer Data and other material that you post on the Service in accordance with these Terms) (collectively “Feedback”), are non-confidential and you hereby grant to us and our subcontractors and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use your Feedback for any purpose without compensation or attribution to you.
NewPath, the NewPath logos, and any other product or service name or slogan contained on the Service are trademarks or registered trademarks of NewPath and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa.
Unless You provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that NewPath may use your name(s) and logo(s) in the NewPath website, press releases, promotional and sales literature, customer/prospect presentations, lists of customers, and/or other similar situations in accordance with good marketing practices.
13. Ownership and intellectual property rights
We, our affiliates, and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the Service, and any services available in connection with the Service. Except for those rights expressly granted in these Terms, no other rights are granted, either express or implied, to you. All copying, distribution or other use of the Service or any third-party services or content except as expressly permitted hereunder is prohibited without the prior written consent of the relevant rights holders.
NewPath will defend, indemnify and hold harmless Customer, its representatives, subsidiaries, affiliates and customers from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys’ fees) arising out of or in relation to any claims or actions regarding infringement of a third party’s intellectual property rights due to Customer’s use of the Service. The obligation by NewPath only applies under the condition that Customer has notified NewPath in writing of a claim or action within a reasonable time. In case such third party claim is made or is likely to be made, NewPath is responsible, at its own cost, for obtaining any necessary rights for Customer to continue to use the Service under the Terms of Service or replace or modify the infringing part of the Service to be non-infringing without decreasing functionality. If all Services provided under the Terms are affected and terminated, the Terms shall be considered terminated in its entirety.
NewPath liability for infringement of intellectual property rights in the Service shall be limited to section 13.2.
14. Confidential information
If we share non-public information about the Service with you, you must keep it confidential and use reasonable security measures to prevent unauthorized disclosure of or access to that information.
NewPath will process personal data as both 1) data controller; and 2) data processor.
As a data processor, we process such personal data which you have provided to us (including collected or generated through the use of the Service) for the purpose of providing the Service. This processing of personal data is governed by the Data Processing Agreement (Schedule 1) entered into between you and us in connection with your signing up for the Service.
16. Customer Data
Customer, its subsidiaries, affiliates and customers retain all rights pertaining to all data, personal data or other information that Customer, or another party on Customer’s behalf, provides to NewPath for the purpose of providing the Service (“Customer Data”). For the avoidance of doubt, Customer Data is considered Confidential Information.
You will defend, indemnify and hold harmless NewPath, its subsidiaries, affiliates, partners and third-party advertisers and their respective directors, officers, agents, employees, licensors, and suppliers from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys’ fees) arising out of any claims or actions by any third party that relates to an actual or alleged infringement of a third party’s intellectual property rights by the Customer Data.
17. Disclaimer of Warranties
Your use of the service, including, without limitation, your use of any content accessible through the service and your interactions and dealings with any service users, is at your sole risk. NewPath does not warrant uninterrupted use or operation of the service or your access to any content. No advice or information, whether oral or written, obtained by you from the service will create any warranty regarding NewPath that is not expressly stated in these Terms.
However, NewPath warrants that it will perform its obligations in a professional manner and the Service shall performed in accordance with the methods normally applied by a well reputed service provider.
18. Limitation of Liability
Neither party nor its suppliers or licensors will be liable for any indirect, incidental, special, consequential, or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data, or other intangible losses (even if NewPath or any supplier or licensor has been advised of the possibility of these damages), arising out of or relating to your access to or use of, or your inability to access or use the Service or any content. NewPath’s maximum total liability towards the other party and its suppliers and licensors for all claims under these Terms or otherwise in relation to the Service, whether in contract, tort, or otherwise, is limited to 100 CAD.
Any limitations of liability under this Section 18 shall not apply in the event of death, personal injury, damage to third party property, liability in accordance with Section 14 (Confidentiality) or in the event of willful conduct or gross negligence.
19. Consent to Electronic Communications
By using the Service, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Service.
20. Governing law and dispute resolution
These Terms shall be governed and construed in accordance with the laws of Canada, without giving effect to principles of conflicts of law or to the Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of Canada. The jurisdiction and seat of arbitration shall be Ontario, Canada. The number of arbitrators shall be one. The language of the arbitration shall be English.
21. Other terms
Our failure to act in a particular circumstance does not waive our ability to act with respect to that circumstance or similar circumstances. Any provision of these Terms that is found to be invalid, unlawful, or unenforceable will be severed from these Terms, and the remaining provisions of these Terms will continue to be in full force and effect. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. Any provision in these Terms that by its nature should survive the termination of your license to access the Service or any termination of these Terms (including, without limitation, provisions governing indemnification, limitations on liability, disclaimers of warranty, and ownership of intellectual property) will continue to remain in full force and effect after any such termination. NewPath may change the content of these Terms, subject to posting a notice of change in its web page.
22. Questions and Contact Information
If you have any questions or concerns about the Service, or these Terms, you may contact NewPath at email@example.com .
SCHEDULE 1 Data Processing Agreement
1. Nature and purpose of the processing
This Data Processing Agreement (“DPA) is an annex to and forms an inseparable part of the Terms of Service between the Customer or you and NewPath, regarding your use of our Services.
The agreed Service delivery may include processing of personal data by NewPath and its subcontractors, on behalf of the Customer, within the scope described in the Terms of Service. The purpose of this DPA is to set the terms and conditions governing such processing by NewPath on behalf of the Customer in compliance with the requirements set by the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and other applicable data protection legislation.
NewPath may process personal data solely to the extent necessary for the provision of the Services set forth in the Terms of Service, and may not otherwise process or use personal data for purposes other than those set forth in this DPA or as reasonably instructed by the Customer in writing where such instructions are consistent with the terms of the Terms of Service. This DPA shall take precedence over conflicting provisions relating to processing of personal data in the Agreement, unless otherwise expressly stated in this DPA.
The parties acknowledge and agree that the Customer enters into this DPA on behalf of itself and on behalf of its affiliates which utilize the Services as defined in the Terms of Service (“Affiliates”), thereby establishing a separate DPA between NewPath and each of the Customer Affiliates subject to the terms of this DPA. The Customer and Affiliates are jointly referred to as the “Customer”. NewPath enters into this DPA on its own behalf and on behalf of those of NewPath’s group companies that are involved in the processing of personal data under this DPA and the Terms of Service.
All references to “personal data”, “processing”, “data subject” and other terms defined in the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and not expressly defined herein shall have the same meaning in this DPA as in Article 4 of the GDPR.
In the event that under the Terms of Service it is agreed that a cloud based service shall be delivered by a third-party provider (Amazon Web Services, Microsoft, Google or other) the parties acknowledge that any personal data processed within the cloud service shall be exclusively governed by the terms and conditions for the cloud service as stipulated and amended from time to time by the cloud service provider.
2. Term and termination of this DPA
This DPA shall become effective simultaneously with the Terms of Service and shall remain in force during the validity of the Terms of Service and thereafter for as long as necessary for the finalization of the agreed processing of personal data.
3. Processing of your personal data
For the sake of clarity, it is noted that in relation to the personal data processed under this DPA, NewPath acts as a data processor or second data processor (a so called sub-processor) and the Customer acts as a data controller or first data processor (to the extent NewPath process personal data for which a customer of the Customer is considered controller).
The types of personal data and categories of data subjects may include the following:
Categories of data subjects The personal data will concern the following categories of data subjects:
- data subjects about whom NewPath collects personal data in its provision of the Services; and/or
- data subjects about whom personal data is transferred (including granted access to) to NewPath in connection with the Services by, at the direction of, or on behalf of the Customer.
These Data Subjects may include individuals: (a) to whom online advertising has been, or will be, directed; (b) who have visited websites, platforms, services or applications in respect of which NewPath provides the Services; and/or (c) who are customers or users (including prospective customer’s or user’s) of the Customer or Customer’s customers.
Types of personal data
- Online identifiers, such as cookie identifiers, internet protocol addresses and device identifiers; precise location data; client identifiers;
- Contact details, such as names, email addresses, phone numbers and addresses;
- Data relating to individuals provided to NewPath via the Services by (or at the direction of) the Customer, including to create and collaborate on reports, graphs and charts;
- Event data and CRM data relating to individuals provided to NewPath via the Services by (or at the direction of) the Customer, such as data about data subjects and the actions they take on or in relation to specific websites, apps, services or applications.
- Financial and transactional details such as accounting, sales, orders, invoices, payments and items purchased.
- Other personal data submitted to the Services by (or at the direction of) the Customer within the scope of the Terms of Service.
This DPA with the Terms of Service constitutes the instructions in accordance with which any such data is processed as per the date of entering into this DPA.
4. Responsibilities of the Customer
The Customer is the owner of its personal data and is responsible for the accuracy, legality, integrity and content reliability of such personal data. Customer shall, in its use of the Services, process personal data in accordance with the requirements of applicable data protection legislation.
5. Assistance to the Customer
NewPath will assist the Customer in ensuring compliance with their obligations under Article 32 (security of processing), Article 33 (notification of personal data breaches to supervisory authorities), Article 34 (communication of personal data breach to data subjects), Article 35 (data protection impact assessments) and Article 36 (prior consultation) taking into account the nature of processing and the information available to the processor. Any assistance by processor shall be charged by processor at the then current rate applied by processor.
NewPath shall, taking into account the nature of the processing, assist the Customer by appropriate technical or organisational measures, in the fulfilment of the Customer’s obligations to respond to data subject requests relating to their exercise of their rights under the GDPR. In this respect, NewPath shall provide assistance only upon request by the Customer. Any request directed to NewPath by a data subject shall be referred by NewPath to the Customer without undue delay. Any assistance by processor shall be charged by NewPath at the then current rate applied by NewPath.
NewPath shall notify the Customer about any personal data breaches concerning the Customer’s personal data without undue delay after having become aware of such personal data breach. To the extent possible, the notification shall include the following information:
a) description of the nature of the personal data breach including where possible the categories and approximate number of data subjects and personal data records concerned;
b) the name and contact details of NewPath data protection officer or other contacts where further information can be obtained;
c) description of the likely consequences of the personal data breach; and
d) description of the measures taken or proposed to be taken to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
Where it is not possible for NewPath to provide the information as indicated in Section 5.3 at the same time as the notification of the personal data breach, the information may be provided in phases without undue delay.
6. Confidentiality and security
NewPath shall ensure that all persons authorized to process the personal data of the Customer are bound by an obligation of confidentiality with respect to such personal data, and only processes such personal data on instructions from the Customer, unless required to do so under applicable EU or EU member state law.
NewPath shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing. This shall include at least measures to:
a) implement and maintain technical and organisational measures for safeguarding the confidentiality, integrity, availability and resilience of systems and services processing personal data;
b) restore the availability and access to personal data in a timely manner in the event of an incident;
c) regularly test, assess and evaluate the effectiveness of technical and organisational measures for ensuring the security of the processing; and
d) pseudonymize and/or encrypt personal data (if and to the extent this has specifically been agreed to by NewPath).
On request by the supervisory authority, NewPath shall cooperate with the supervisory authority in the performance of its tasks and shall comply with decisions by the supervisory authority on security measures required to comply with the GDPR. If and to the extent the Customer or the supervisory authority instructs NewPath to perform any measure, activity or action outside the scope of the Services agreed to under the Terms of Service, then such instruction shall be considered a request for additional services pursuant to the Terms of Service and additional fees may apply.
7. Sub-processors and transfers to third countries
The Customer acknowledges that NewPath needs to engage other processors for carrying out specific processing activities and that NewPath wishes to deliver standard services to its customers in a consistent, secure and efficient manner. Accordingly, the DPA shall constitute a general authorization by the Customer for NewPaths’ use of sub-processors. NewPath shall ensure that sub-processors are bound by a written agreement that require them to provide at least the level of data protection required by NewPath under this DPA. NewPath shall inform the Customer of changes concerning its sub-processors, including the identity and location of new or replaced sub-processors. A list of sub-processors is available at NewPath’s web pages [https://www.newpathconsulting.com/privacy.html] or other location as designated by NewPath from time to time.
Where a sub-processor fails to fulfil its data protection obligation, NewPath shall remain fully liable to the Customer for the performance of that sub-processor’s obligations.
In case the Customer objects to the use of a specific sub-processor, the parties shall enter into good faith negotiations on how to resolve the issue. In case the negotiations do not solve the issue and the Customer opposes NewPath’s use of a specific sub-processor either party shall, for a justified reason and as a final remedy, be entitled to terminate the Terms of Service on thirty days’ written notice.
NewPath and its sub-processors may transfer or process personal data outside the EU/EEA area.
When transfer of personal data by NewPath to a sub-processor outside the EU/EEA, is permitted as stated above, in case of any transfer NewPath shall ensure that transfer is only made to (a) a country deemed by the Commission to have an adequate level of protection, (b) entities having committed to the EU-US Privacy Shield or having entered into the EU Commission standard contractual clauses approved by the European Union concerning the transfer of personal data to outside the EU/EEA or provided other appropriate safeguards as described in Article 46 of the GDPR.
Subject to the above and subject to NewPath keeping the Customer informed of any transfer of personal data outside the EU/EEA, the Customer gives its consent to the transfers and authorizes NewPath to agree on the use of privacy clauses on behalf of the Customer and to represent the Customer regarding those conditions of the standard contractual clauses that refer to the rights and liabilities of the Customer.
8. Retention of your data
NewPath has no obligation to store and NewPath will not store any of your data after the termination of your account and/or subscription of the Service. NewPath will, at your choice, promptly delete or return all personal data related to you after the end of the provision of the Services relating to processing and delete existing copies unless applicable legislation requires storage of the personal data.
NewPath shall upon the Customer’s request make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this DPA and the GDPR.
The Customer or an auditor authorized by the Customer (however, not a competitor of the NewPath) is entitled to audit the activities pursuant to the DPA. The Parties shall agree on the time of the auditing and other details ahead of time and at latest 30 days before the inspection. The auditing shall be carried out in a way that does not impede the obligations of NewPath or its subcontractors in regard to third parties. The representatives of the Customer and the auditor must sign conventional non-disclosure commitments. The Customer shall be responsible for its own and NewPath’s expenses caused by the auditing.
NewPath may also provide the Customer with an audit report by a third-party auditor (a separate charge may apply).
NewPath shall compensate the Customer for damages incurred by the Customer as a result of fault or negligence by NewPath, or by a sub-contractor to NewPath, in the processing of personal data in breach of the Terms of Service or this DPA, including for claims by data subjects or a supervisory authority against the Customer caused directly by NewPath’s breach of this DPA.
The parties’ (including their group companies) liability for damages under the DPA shall be limited in scope and to the double of maximum amounts set out in the Terms of Service, except when limitations of liability are expressly prohibited under the applicable legislation or are otherwise legally invalid or unenforceable. To clarify, indirect damages are excluded.