Terms of service
Last modified on 17.05.2018
Thank you for accessing and using Smartfrog's websites, services, and apps ("Services"). These Services are made available to you by Smartfrog Limited (“we”, “us” and “our”). Please read these Terms of Service (the “Terms”) carefully, as when you register for, or access or use our Services, you are agreeing to these Terms and entering into a legally binding agreement with us. If you wish to terminate this agreement, you can do so in accordance with Section 14 of these Terms.
If you have any questions about these Terms, please contact us at email@example.com.
- Your agreement with us incorporates these Terms of Service (including the Addendum at Schedule 1), the Open Source Terms and any other binding terms we make available to you as part of the Service (“Agreement”). You agree that by registering, accessing or using our Services, including our Premium Services, you are entering into a legally binding agreement with us.
- The Services are not for use by persons under 16 years of age. To use our Services, you must be 16 years of age or older. By registering for or using or accessing our Services, you confirm to us that you are 16 years of age or older. You agree that you will provide us with your real name during the registration process; and you are not otherwise restricted from using the Services. Creating an account with false information is a violation of our Terms, including accounts registered on behalf of others or persons under the age of 16.
- If your use of the Services is not allowed by applicable laws, then your right to enter into this Agreement is revoked where these laws apply and you are not authorised to use the Services. We are not responsible for your access or use of the Services in a way that is not in accordance with applicable law.
- If you do not agree to this Agreement you must immediately cease using and accessing the Services, delete our apps from your devices, and return any of our Products to us, in accordance with any product return guidance that we may issue from time to time.
Website, Services & Product
- Our Services are operated by us and may enable you to (a) search, store, access, and view audio, video and other content and (b) transmit, share and distribute live and pre-generated audio, video and other content. We may also provide optional service features that you may acquire from us for a fee, such as cloud recording that allows you to record audio and video content, track or monitor activities, receive custom alerts and to make and share audio, video and other content.
- You may also avail of cameras and other equipment or products from us for an additional fee, which you may use in connection with the Services (“Product”). Due to technical limitations you may only be able to use the Products in connection with the Services, and for no other use.
- You are responsible for all of your activity in connection with the Services and Products. We only supply the Services and Products for use in a manner that complies with all laws that apply to you.
- In order to deliver interesting and exciting innovations to you, our Services and Products are constantly evolving. We may change the terms of this Agreement or the features or functionality of a Service or Product at any time. If the changes are material, we will provide notice to you through the Services, by email, SMS or other means (or by using a combination of these means). Changes may include changing, suspending or ending any part or feature of the Services, changing the availability of a feature or part of a Service or Product, or modifying fees and means of payment or the categories of features and Services that are free or for payment. We may also impose limits on certain features and Services or restrict your access to parts or all of the Services.
- We will not back-date these changes. Unless required as a matter of urgency or reasonable necessity, a material change will be effective no earlier than 14 days after we notify you. However, non-material changes, material changes addressing new functions for a Service or material Product changes made to reflect changes in relevant law or regulatory requirements may be effective immediately.
- You are responsible for reviewing and becoming familiar with any change we make. If you do not agree to a change you will have to immediately stop using the Services and Products and close your account with us where you have one. If you use the Services or a Product following our change notice, then you will have accepted the Service or Product or Terms of Service as modified.
- As between you and others, your user account belongs to you. You agree to try to choose a strong and secure password, keep your password secure and confidential and not transfer any part of your user account. You should immediately notify us of any unauthorised use of your user account and/or password. You are responsible for anything that happens through your account unless you close it or report misuse.
- You may not select or use the actual name or user account ID of another person with the intent to impersonate that person or without their authorisation. We reserve the right to refuse registration of or cancel a user account or to refuse any and all current or future use of the Services if you provide any information that we believe is inaccurate, not current, or incomplete.
Content and User Content
- Certain materials may be displayed or performed on the Services, such as text, graphics, articles, photographs, audio and video recordings, images, and illustrations some or all of which are protected by law (“Content”). Content also includes information, photos and video and audio clips that you and other users contribute, upload, post, transmit or provide us in the course of using the Services and comments, questions, feedback or other information that you and others transmit to us (“User Content”). Between you and us, you are responsible for all User Content and you promise to us that you have all the necessary rights to contribute this User Content in the manner in which you contribute it. You confirm and shall ensure that User Content does not infringe any third parties' rights.
- You understand that some Content may be visible to others. User Content may be shared by you. We make no promises in relation to any Content contained in or accessed through the Services. We are not responsible for the accuracy, copyright compliance, legality or decency of any Content contained in or accessed through the Services. You acknowledge that all Content including User Content provided or accessed by you using the Services is at your own risk and, between you and us, we do not control how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content. You agree that we have no liability or responsibility arising from you providing, acquiring or not acquiring Content through the Services.
- You agree to comply with all copyright notices, trade mark rules, information, and restrictions contained in any Content. You agree not to use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit any Content or third party User Content or other proprietary rights not owned by you: (a) without the express prior written consent of the respective owners; and (b) in any way that violates any third party right.
- You acknowledge that we can, and you instruct us to, remove any Content including User Content from the Services where we consider it appropriate, with or without notice, including if we receive a claim or complaint from a third party relating to such Content or if we believe that you are or may be in breach of your Agreement.
- You agree to comply with all applicable laws, including, without limitation, privacy and data protection laws, intellectual property laws and other rights of any third party, tax laws, and other regulatory requirements in connection with your use of the Services and Products. This may include applicable laws requiring you to obtain appropriate licenses, consents and permits before using the Services or Products.
- By using or accessing the Service you agree not to broadcast, record, store, post, transmit, or display any Content or otherwise use the Services in a manner that:
Optional Features & Payment
- All registered users of the Services will get a free account by default. We may charge you a fee in relation to certain aspects of the Services, such as if you purchase any of our paid Services which provide access to additional features on a temporary basis (“Premium Services”) or if you avail of any Product from us (which may include additional delivery charges). You agree to pay us all fees and taxes in connection with the Services and Products you purchase from us. We will calculate any taxes that apply based on the billing address information that you provide us.
- The current monthly subscription fees in respect of Premium Services and Products are described on our website (“Subscription Plan”) and are available here. Our website also describes the current fees for purchasing Products outright from us.
- Subscription Plans may have specific conditions, limitations and features, including the features of Products you acquire from us, the number of devices you are allowed to use with the Services and your optional cloud storage entitlement. You can upgrade, downgrade or cancel your chosen Subscription Plan through our website. We need you to provide our trusted third party payment provider with a current, valid, accepted method of payment ("Payment Method") to use a Subscription Plan and to purchase Products outright from us.
- If you order a Product from us that you wish to purchase outright you will need to make payment for the Product in advance by a valid Payment Method. Your Payment Method will not be charged until we dispatch the Product to you.
- To avoid interruptions in your Subscription Plan and to facilitate payment for new Premium Services and Products you authorise us and our trusted partners to store relevant details and continue billing the fees for your chosen Subscription Plan at the then current rate, and any other fees you may incur in connection with your use of the Services to your requested Payment Method. Where you change your Subscription Plan during a month, we may bill you any difference between the subscription fees for your old and new Subscription Plan for the remainder of that month. The amount billed each month for the Subscription Plan is a recurring amount which will only be varied in the event that you change your Subscription Plan or we change the fee for the Services or Products in accordance with these Terms of Service. Where the applicable Subscription Plan fee is changed, you authorise us to charge your Payment Method for the new amounts, which we will bill monthly.
- If a payment is not successful and you do not edit your Payment Method information or cancel your account, you remain responsible for any unpaid amounts and authorise us to continue billing the Payment Method, as it may be updated. If you do not pay us when you are supposed to, in addition to any of our other rights, we may suspend your Subscription Plan (including your Premium Services) and/or Services with immediate effect until you have paid us the outstanding amounts (except where we consider that you have a good faith dispute concerning payment). We will contact you to tell you this. This does not affect our right to take legal or other collection action against you for non-payment, to charge you interest, or to request that you return to us a Product that we own.
- If you do not make any payment due to us by the due date for payment, we may also charge interest to you on the overdue amount at the rate of 6% a year above the base lending rate of the European Central Bank from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You will be required to pay interest together with any overdue amount. However, if you dispute a request for payment in good faith and contact us to let us know promptly after you have received a payment request that you dispute, interest may not apply for the period of the dispute. An example of where we might charge interest would be where you avail of a Product but you cease making the monthly payment for the Subscription Plan or do not return our Product to us when your Subscription Plan expires. In these circumstances, we may charge you interest in addition to seeking the unpaid fees for our Product that you have.
- For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges.
- To the extent allowed by law any fees paid for the Services and Products are non-refundable. You need to cancel your Subscription Plan before it renews each month in order to avoid billing of the next month's Subscription Plan fees to your Payment Method. If you cancel a Subscription Plan part of the way through a subscription period you agree to pay the fees due up to the end of that subscription period and you will continue to have access to the Subscription Plan until the end of your current subscription period. Your Subscription Plan may also require you to return Products to us at the end of the subscription period, in accordance with our instructions and any product return guidance we issue.
Privacy and Intellectual Property Rights Protection
- To the extent that we process your Video Feeds (as defined in the Data Protection Addendum (“Addendum”) attached as Schedule 1), we do so on your behalf and in compliance with these Terms and Section 5 of the Addendum. You shall comply with all your obligations described in the Addendum including those in Section 6.
- We respond to notices of alleged intellectual property rights infringement and may terminate the accounts of infringers.
- We and our licensors reserve all of our intellectual property rights in the Services and Product. For example, logos and other trade marks, service marks and graphics used in connection with the Services and Products are trademarks or registered trademarks of ours and our licensors.
- We need the ability to process Content so that we can operate and improve the Services we provide to you. We therefore require you under this Agreement to grant us a license to your User Content. As between you and us, you own your User Content and you only grant us (and those we work with) a non-exclusive, worldwide, transferable and sub-licensable right to access, process, use, copy, distribute publish and modify your User Content without any further notice, consent, or compensation to you or others. For the purposes of operating and improving our Services you agree that we retain the right to create derivative works of, reformat, extract from and translate any of your User Content. If you delete or cancel your user account with us you understand and agree that any User Content that you have shared with others may remain accessible to them, for example if they have made a separate copy of your User Content. You agree to compensate us for any loss or damage that we may incur if you submit or upload any User Content that infringes the intellectual property rights of a third party.
Software in the Services
- The Service and Products include software. This software may be updated automatically on your web browser or device once a new version or feature is available. You may be able to adjust your automatic update settings on your device's operating system.
- Any software component embodied in the Services and Product is licensed to you, and not sold. We (and our licensors) provide you with a personal, worldwide, non-assignable, non-sub-licencable, non-exclusive licence to use the software provided to you as part of the Service and Products. This licence is for the sole purpose of enabling you to use and enjoy the benefit of the Services and Products in accordance with this Agreement. You are not allowed to copy, modify, distribute, sell or lease any part of the Services or Product or included software or reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have written permission to do so.
- Some software used in our Services and Products may be subject to an open-source licence agreement (Open Source Software). The Open Source Software is licensed under the terms of the license that accompanies that Open Source Software. A current list of the applicable Open Source Software licence terms is located here. You and we acknowledge that nothing in these Terms of Service limits your rights under or grants you rights that supersede the terms of any Open Source Software license.
Product Delivery, Title and Return
- If you order a Product from us, the timescales for delivery and delivery charges will vary depending on the availability of the Products and your address. The current countries where we accept orders from are described on our website. When you place an order for a Product we will contact you with an estimated delivery date. We will use reasonably commercially endeavors to deliver the Product as soon as possible but occasionally our delivery to you may be affected by an event outside our control in which case we will deliver the Product once that event is finished.
- If we are not able to deliver the whole of the order at one time due to operational reasons or shortage of stock, we may deliver the order in installments. We will not charge you extra delivery charges for this.
- Delivery of a Product shall be completed when we deliver the Product to the address you gave us. You will be responsible for the Product from that time.
- If you purchase a Product from us you own the Product once we have received payment in full. If you damage or lose the Product before you have paid for it in full, you will still be required to pay us the full price of the Product.
- Products that you do not purchase outright but you avail from us under a Subscription Plan shall remain in our ownership. Title and ownership in these Products shall not transfer to you and your monthly payments shall be for your right to use our Products. This means that you cannot sell, rent, mortgage or otherwise encumber these Products unless we agree in writing. At the end of your Subscription Plan you need to return to us any Product you avail from us under a Subscription Plan, unless (a) you avail of a further Subscription Plan from us that includes a Product, or (b) the terms of your Subscription Plan do not require you to return the Product to us after a certain period has been passed. If you fail to return an applicable Product to us within 14 days following the end of your Subscription Plan you will be breaking the terms of this Agreement and we may continue to charge your Subscription Plan fees until you return the Product to us and/or we may take legal or other collection action against you. This could mean you have to pay our costs and expenses, including legal costs, with interest added daily as described in Section 7.7 above.
- If you are eligible under applicable law or in accordance with a special Product offering from us to avail of a right to cancel this Agreement within 14 days (or any longer period agreed by us) without giving any reason and to receive a reimbursement of payments, we need to be notified by an unequivocal statement (for example, letter sent by post, fax or e-mail) of your decision to cancel this Agreement within 14 days (or any longer period agreed by us) of receipt of your Product. The Product, any boxed accessories and items needs to be returned to us in their original purchase condition, with the original packaging and other related material and accompanied by proof of purchase. The cost of returning the Product, boxed accessories and items to us shall be borne by you. To be eligible for this right to cancel, the Product must not be faulty due to damage caused to it whilst in your possession. The Product and boxed accessories and items need to be returned to us via post. We recommend that any Product you return to us under this Agreement is sent by registered post and you obtain a receipt for payment, as we may withhold any reimbursement until we have received the Products back or you have supplied evidence of having sent back the Products, whichever is the earliest.
- Limited Product Warranty. We warrant to you that a Product that you avail of from us under this Agreement will be materially free from defects in materials and workmanship for a 12 month period from the date of delivery of the Product. Where the Product is not in compliance with this warranty or where the Product ceases to operate in accordance with its specifications after the 12 month period, you just need to return it to us and we will replace it. This warranty only applies to a Product made available to you that you have only used in the country where it was delivered to you by us. In the event of difficulties with the Product arising due to (a) fair wear and tear; (b) willful damage, abnormal storage or working conditions, accident, negligence by you or by any third party; (c) operation or use other than as described in the Product documentation; or (d) any alteration or repair by you or by a third party who is not one of our authorised repairers, then you should return it to us but we may charge you for the Product. To the extent allowed under law, our only liability and your only remedy under this warranty is for us to choose to either repair or replace the Product. This warranty does not affect your legal rights in relation to the Products.
- Exclusion. Except as described in this Section, to the extent allowed under law, in respect of the Services, Content and Products and any software, we (and our partners that we work with to provide the Services) (a) exclude all implied warranties and representations (such as warranties of merchantability, fitness for a particular purpose, service quality and standards, accuracy of data, and non-infringement); and (b) do not promise that the Services or Products including and software comprised in the Services and Products will function without interruption or errors.
- If we fail to comply with this Agreement, to the extent allowed under law we (and our partners that we work with to provide the Services) are not liable to you or others for any loss of profits or revenues, loss of data, loss of opportunities, or loss of reputation related to the Services or for any indirect or consequential loss or damage whether or not foreseeable and whether or not we had been advised of the possibility of such loss in advance.
- To the extent allowed under law in no event shall our liability (and the liability of our partners that we work with to provide the Services) exceed, in total for all claims, an amount that is the greater of (a) the total fees paid by you for the Services and any Products in the 12 month period immediately before your claim; and (b) €60. This limitation of liability applies to all claims of liability in contract, tort, negligence, warranty or other law, whether or not foreseeable and whether or not we had been advised of the possibility of such claims in advance.
- To the extent allowed under law, the limitation of liability in Section 13.2 applies to our liability (a) for death or personal injury caused by our negligence or the negligence of our partners; and (b) for fraud or fraudulent misrepresentation. However, under this Agreement we do not exclude or limit in any way our liability which cannot be excluded or limited under applicable law.
- We acknowledge that in some countries, if you are a consumer, you have legal rights in relation to Products that are faulty or not as described or Services that are not provided with due care and skill. Nothing in this Agreement excludes any of your consumer or other statutory legal rights that cannot be waived.
Suspension & Termination
- We may suspend or terminate with immediate effect your access to the Services (in whole or in part) or your account if we reasonably believe that you are or may be in breach of this Agreement or law, are or may be misusing the Services, or if we are investigating suspected misconduct.
- We or you may terminate this Agreement at any time with notice to the other. On termination, you immediately lose the right to access or use the Services and any Content. Where reasonably possible, we will give you a chance to remove your User Content from the Services. If you terminate this Agreement part of the way through a Subscription Plan subscription period you agree to pay the fees due up to the end of that subscription period and you will continue to have access to the Subscription Plan until the end of your current subscription period. You may also be required to return Products to us in accordance with the terms of your Subscription Plan, this Agreement and any product return guidance we issue.
- The following provisions survive termination of this Agreement:
(a) Sections 5 (Content and User Content), 7 (Optional Features & Payment), 11 (Product Delivery, Title & Return), 12 (Product Warranty), 13 (Liability) and 16 (Dispute Resolution) of this Agreement.
(b) Any amounts owed by either party prior to termination remain owed after termination.
Third Party Services
- You are responsible for deciding if you want to access or use any third party websites, apps, products or services that link from our Services, including in relation to any products/services that we recommend or payment and delivery of goods/services (“ Third Party Services”). We have no control over the content, accuracy, practices or opinions expressed by any third party, including in relation to any Third Party Services. We are not able to monitor, verify, censor or edit the content of any Third Party Services. Third Party Services may have their own legal terms and conditions and privacy policies that may apply to you.
- We are not responsible for these Third Party Services and any loss or damage that may arise from your access or use of them. Your use of Third Party Services is at your own risk.
- You and us agree that this Agreement, and all disputes (both contractual and non-contractual) and matters arising out of or in connection to it, are governed by Irish law. You and us submit to the exclusive jurisdiction of the courts of Ireland in connection with any disputes or matters arising out of this Agreement. We acknowledge that the courts in some countries may apply their local laws in addition to the laws of Ireland to certain types of disputes and the courts in your country may consider your dispute against us.
- If there is a dispute between you and another user of our Services, or between you and any third party, you agree that we are under no obligation to become involved and you will not make any claim or demand against us in relation to that dispute.
- If you want to send us notices or service of process, please contact us:
Online at: firstname.lastname@example.org
By postal mail at: Smartfrog Limited, Pembroke House, 28-32 Pembroke Street Upper, Dublin 2, Ireland.
Apple Device & Application Terms
- In the event you are using the Services in connection with a device provided by Apple, Inc., or its affiliates (“Apple”), or one of our applications downloaded through the Apple App Store (collectively, “App”), the following terms apply:
(a) Both you and us acknowledge that this Agreement is concluded between you and us only, and not with Apple, and that Apple is not responsible for the App or the Content.
(b) The App is licensed to you on a limited, non-exclusive, non-transferrable, non-sub-licensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Service.
(c) You will only use the App in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(e) In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App.
(f) You acknowledge and agree that we, and not Apple, are responsible for addressing any claims you or any third party may have in relation to the App;
(g) You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, we, and not Apple, are responsible for the investigation, defence, settlement and discharge of any such infringement claim.
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
(i) Both you and us acknowledge and agree that, in your use of the App you will comply with any applicable third party terms of agreement which may affect or be affected by such use.
(j) Both you and us acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
Some Final Terms
- Smartfrog Limited is an Irish registered company (registration number 559717), with its place of business at Pembroke House, 28-32 Pembroke Street Upper, Dublin 2, Ireland.
- If a court with jurisdiction over this Agreement finds that any part of this Agreement is wholly or partly unenforceable, you and us agree that where possible, the court should modify the terms to make that part enforceable while still achieving its intent. If the court cannot do that, you and us agree that the court should not have regard to that unenforceable part but still enforce the rest of this Agreement.
- We are not liable for any failure or delay to perform our obligations under this Agreement where the failure is due to anything beyond our reasonable control (for example, natural disasters, flood, fire, acts of terror, malicious damage, compliance with any law or governmental order, or mechanical, electronic or communications failure or degradation).
- If we fail to insist that you perform any of your obligations under this Agreement or we do not act or delay in acting to in exercise a right or remedy provided by this Agreement that does not mean we have waived our rights or remedies against you and will not mean that you do not have to comply with your obligations.
- To the extent allowed by law, the English language version of this Agreement is binding and other translations are for convenience only.
- You may not transfer or assign this Agreement (or your user account) to anyone without our written authorisation. We may assign or transfer this Agreement to our affiliates or to a party that buys us or an affiliate or parent of ours without your authorisation by providing you with notice.
- You and us agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind us in any respect.
- You agree that the only way you can provide us with a legal notice is at the addresses set out in Section 17 above.
- This Agreement (including additional terms that may be provided by us when you engage with a feature of the Services) is the entire agreement between you and us and supersedes all prior representations or agreements for the Services. Headings are for reference purposes only and do not form part of this Agreement.
(a) violates any law, statute, ordinance or regulation;
(b) violates the intellectual property rights of others, including patents, trademarks, trade secrets, copyrights or other proprietary rights;
(c) is unlawful, libellous, abusive, obscene, pornographic, discriminatory, harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar invasive of another's privacy, hateful or otherwise objectionable;
(d) impersonates any person or entity;
(e) constitutes stalking or otherwise harassing another person;
(f) exploits children or we otherwise believe harms or may harm someone under 18 years of age;
(g) promotes or provides information about illegal activities, promotes physical harm or injury against any group or individual, or promotes any illegal acts;
(h) sells/re-sells, rents, leases, loans, or trades access to the Services or Products, any related information or data;
(i) obtains or attempts to obtain the password, account, or other security information from any user or other person;
(j) overrides any security feature of the Services or jeopardises the security of your account or someone else’s account (such as allowing someone else to log in to the Services as you);
(k) contains a virus, malware, or other harmful code;
(l) violates the security of any computer network, or compromises any passwords or security encryption codes or processes;
(m) interferes with the operation of, or places an unreasonable load on, the Services (such as viruses, denial of service attack or gaming algorithms);
(n) reverse engineers, decompile, disassemble, decipher or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services or any related technology, or any part thereof unless allowed by law;
(o) uses manual or automated software, devices or other means or processes to access, scrape or crawl the Services or any Content or information;
(p) engages in ‘framing’, ‘mirroring’, or otherwise simulating the appearance or function of the Services;
(q) removes any copyright, trademark or other proprietary rights notices contained in or on the Services or Product;
(r) modifies, creates derivative works or copies or stores any significant portion of the Services or of the Content or any related technology (unless allowed by law or we expressly authorise);
(s) accesses the Services except through the interfaces and application program interfaces (APIs) provided by us, such as our website and apps;
(t) removes, covers or obscures any advertisement included on the Services;
(u) collects, uses, copies, or transfers any information obtained from us without our consent;
(v) monitors the Services' availability, performance or functionality for any competitive purpose; or
(w) offers for sale or selling any item, good or service that violates any applicable law or regulation or that we determine, in our sole discretion, is inappropriate for transmission through the Service.
Data Protection Addendum
This Addendum or "DPA” forms part of the Terms.
Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms. Except as modified below, the Terms shall remain in full force and effect. To the extent there is any conflict between provisions of the Addendum and the rest of the Terms, the provisions of the Addendum shall prevail.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Terms. Except where the context requires otherwise, references in this Addendum to the Terms are to the Terms as amended by, and including, this Addendum.
- “Special Categories of Personal Data” shall have the same meaning as in Article 9(1) of the GDPR;
- “Sub-processor” means any entity engaged by Smartfrog or a Smartfrog affiliate to process Video Feeds in connection with the Services;
- “Video Feeds” means the Personal Data comprised in the audio and video footage, images and meta data captured by our Services and processed on your behalf; and
- The terms “Controller”, “data subject”, “Personal Data”, “Personal Data Breach”, “Processor” “processing” and “Supervisory Authority” shall have the same meaning as in Article 4 of the General Data Protection Regulation (“GDPR”) (together with any national transposing measures, secondary legislation (including European Commission decisions) adopted under the foregoing, “ Applicable Data Protection Law”).
Details of Data Processing
- Subject Matter. The subject matter of the data processing under this Addendum is your Video Feeds.
- Duration. As between you and us, the duration of the data processing under this Addendum is determined by you.
- Purpose. The purpose of the data processing under this Addendum is the provision of the Services initiated by you from time to time.
- Nature of the Processing. The Services as described in the Agreement and initiated by you from time to time.
- Type of Personal Data. Your Videos Feeds relating to you or other individuals whose Personal Data is included in such Video Feeds which is processed as part of the Services in accordance with instructions given through your account.
- Categories of Data Subjects. You and any other individuals whose Personal Data is included in Video Feeds.
Processing Roles and Activities.
- Smartfrog as Processor and You as Controller. You are the Controller and Smartfrog is the Processor of your Video Feeds.
- Description of Processing Activities. We will process your Video Feeds for the purpose of providing you with the Services, as may be used, configured or modified from within your account (the “ Purpose”).
- Compliance with Laws. You will ensure that your instructions comply with all laws, regulations and rules applicable in relation to your Video Feeds and that your Video Feeds are collected lawfully and in accordance with such laws, rules and regulations. You will also ensure that the processing of your Video Feeds in accordance with your instructions will not cause or result in us or you breaching any laws, rules or regulations (including EU Data Protection Law). Smartfrog will not access or use your Video Feeds except as provided in the Agreement, as necessary to maintain or provide the Services or as necessary to comply with the law or binding order of a governmental, law enforcement or regulatory body.
- Smartfrog (as Processor) agrees with you (as “Controller”) that it shall:
- only process Video Feeds on your behalf and in compliance with your documented instructions and the Agreement unless Smartfrog is required to do so by mandatory EU or EU Member State law to which Smartfrog is subject. In such cases, Smartfrog will inform you of that legal requirement before processing, where permitted to under that law;
- taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, in relation to Video Feeds implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk;
- take reasonable steps to ensure that Smartfrog’s personnel, agents and contractors that process your Video Feeds are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
- taking into account the nature of the processing, assist you by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of your obligations to respond to requests to exercise data subject’s rights under the GDPR;
- notify you without undue delay of becoming aware of a Personal Data Breach affecting your Video Feeds and taking into account the nature of processing and the information available to Smartfrog, provide reasonable assistance to you to allow you to meet any obligations applicable to you in relation to such breaches under the GDPR;
- taking into account the nature of the processing and the information available to Smartfrog, provide reasonable assistance to you in relation to any mandatory obligations applicable to you in relation to the performance of data protection impact assessments or the carrying out of consultations with a Supervisory Authority under the GDPR, in each case solely in relation to the processing of your Video Feeds;
- upon the expiration or termination of this Agreement for any reason, at your election, return or delete all your Video Feeds in Smartfrog’s possession and delete existing copies of your Video Feeds (unless Smartfrog is required by mandatory EU or EU Member State law to retain the Personal Data);
- provide written responses and documentary information reasonably necessary to demonstrate compliance with Smartfrog’s obligations under Clauses 5.1.1 - 5.1.7 above and, only to the extent required under Applicable Data Protection Law and where such compliance cannot be verified by providing you with evidence of Smartfrog’s compliance, including without limitation evidence provided by a independent third party provider of compliance verification, allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you and agreed to by Smartfrog that relate to your Video Feeds. For the avoidance of doubt, such audit shall be carried out no more than once in any 12-month period with reasonable notice, during regular business hours, in a manner which is not disruptive to Smartfrog’s business and under a duty of confidentiality. The scope of such an audit will be agreed in advance and shall not involve physical access to the servers from which the Services are provided. You will bear the fees of any auditor and any expenses incurred by Smartfrog in complying with this clause 5.1.8 and clauses 5.1.4 and 5.1.6; and
- promptly inform you if, in its opinion, an instruction infringes Applicable Data Protection Law.
- You acknowledge and agrees that (a) Smartfrog’s affiliates, including Smartfrog Services GmbH, may be retained as Sub-processors; and (b) Smartfrog and its affiliates may engage third party Sub-processors in connection with the provision of the Services. As a condition to permitting a third-party Sub-processor to process your Video Feeds, Smartfrog or a Smartfrog affiliate will enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Video Feeds as those in this Addendum, to the extent applicable to the nature of the services provided by such Sub-processor.
- A current list of Sub-processors, including the identities of those Sub-processors and their country of location, is available from Smartfrog via a secured resource upon request. Smartfrog shall update this secured resource with the details of new Sub-processor(s) before authorizing such new Sub-processor(s) to process Video Feeds in connection with the provision of the applicable Services. You agree to review the secured resource regularly in the context of such updates.
- You may reasonably object to Smartfrog’s use of a new Sub-processor by notifying Smartfrog promptly in writing within ten (10) business days after details of the new Sub-Processor have been added to the secured resource in accordance with clause 5.3. Such notice shall explain the reasonable grounds for the objection. Smartfrog may recommend a commercially reasonable change to your configuration or use of the Services to avoid processing of your Video Feeds by the objected-to new Sub-processor without unreasonably burdening you. If Smartfrog is unable to make available such change within a reasonable period of time, which shall not exceed twenty (20) days, either party may terminate without penalty the applicable subscription with respect only to those Services which cannot be provided by Smartfrog without the use of the objected-to new Sub-processor by providing written notice to the other party.
- Smartfrog shall be liable for the acts and omissions of its Sub-processors to the same extent Smartfrog would be liable if performing the services of each Sub-processor directly under the terms of this Addendum.
- If and to the extent that Smartfrog, as Processor of your Video Feeds, proposes to transfer such Video Feeds outside the European Economic Area, Smartfrog will carry out such transfers in compliance with Applicable Data Protection Law.
- If Smartfrog determines that it can no longer meet any of its obligations arising under clause 5.1 of this Addendum, it shall notify you without delay. In such a case, or if you have otherwise notified Smartfrog of your determination that Smartfrog cannot meet said obligations, Smartfrog shall cease processing your Video Feeds and take other reasonable and appropriate remedial steps, including as directed by you.
- Smartfrog (as Processor) agrees with you (as “Controller”) that it shall:
Your Obligations and Instructions to Smartfrog
- You represent and warrant that:
- all use of the Services by you, your employees, agents and any other persons with access to or use of the Services will be in compliance with Applicable Data Protection Law;
- you shall only process Special Categories of Personal Data using the Services in accordance with Article 9 of the GDPR, in reliance on explicit consent or to protect the vital interests of the data subjects or of another person where the data subject is physically or legally incapable of giving consent, and as otherwise permitted by Applicable Data Protection Law;
- to the extent that you rely on consent as a ground to process Personal Data or Special Categories of Personal Data under Applicable Data Protection Laws, you shall obtain the valid consent of data subjects in accordance with Applicable Data Protection Laws (including, in particular, in accordance with Articles 6(1)(a) and 9(2)(a) of the GDPR);
- you will display any notices, stickers or other signage inside and outside your property as required by Smartfrog or Applicable Data Protection Law from time to time; and
- you will not, and will procure that your employees, agents and any other persons with access to or use of the Services do not, unlawfully upload or circulate Video Feeds generated by the Services.
- You hereby instruct Smartfrog to:
- process Video Feeds on its behalf so Smartfrog can comply with its obligations under this Agreement and provide the Services to you;
- disclose your Video Feeds as appropriate to designated third parties; and
- remove Video Feeds in accordance with Section 5.4 of the Term; and
- delete Video Feeds one (1) year after you have deactivated your account with us.
- You represent and warrant that:
Liability and Indemnity
- The liability of each party under this Addendum is subject to the exclusions and limitations of liability set out in the Agreement. You agree that any regulatory penalties or claims by data subjects or others incurred by Smartfrog in relation to your Video Feeds that arise as a result of, or in connection with, your failure to comply with your obligations under this Addendum or Applicable Data Protection Law shall reduce Smartfrog’s maximum aggregate liability to you under the Agreement in the same amount as the fine and/or liability incurred by us as a result.
- Where pursuant to Article 82(4) of the GDPR, either party is found to be liable for the entire damage arising from a breach or breaches of the GDPR relating to activities under the Agreement, in order to ensure effective compensation of one or more individuals, then the other party shall indemnify that party for that portion of the compensation attributable to any breaches of GDPR giving rise to the compensation for which it is responsible.
This Addendum only applies to you if you are habitually located within the EEA and you are subject to the obligations under the GDPR as a Controller of Video Feeds (in other words, other than where your use of the Services is “in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity”). This Addendum only applies in respect of Video Feeds. You agree that Smartfrog is not responsible for Personal Data, including Video Feeds, that you have elected to process or share outside of the Services.
You are responsible for any costs and expenses arising from Smartfrog’s compliance with your instructions or requests pursuant to the Agreement (including this Addendum) which fall outside the standard functionality made available by Smartfrog to its users generally through the Services.