Terms and Conditions

Heatmap™ Website Terms and Conditions

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Last Updated: October 21, 2024

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These HeatMap™  Website Terms and Conditions (“Terms”) are inclusive of the HeatMap™ Privacy Policy (“Privacy Policy”), the HeatMap™ Tool Privacy Policy and any and all other applicable HeatMap™ operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”).

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The HeatMap™ Offerings (as defined below) are owned and operated by HeatMap, Inc. (“HeatMap™,” “we,” “our” or “us”).  You agree to the terms and conditions contained in the Agreement, in their entirety, when you (“User”): (a) access and/or use the HeatMap™ website located at www.heatmap.com (the “Site”); (b) access certain text, images, video, audio, testimonials, and other content and information relating to the HeatMap™ Offerings as made available by: (i) HeatMap™ (collectively, “HeatMap™ Content”); and (ii) third-parties (“Third-Party Content,” and together with the HeatMap™ Content, the “Content”); (c) access links to third-party websites and resources (“Third-Party Links”); (d) register to establish a HeatMap™ account (“Account”) that, depending on which subscription plan (“Subscription”) you register for (with additional terms applicable to certain Subscription plans to be set forth on the Site), enables you to: (i) obtain access to the HeatMap™ proprietary website plug-in tool, including the associated software, website overlay and interactive user interface (collectively, the “HeatMap™ Tool”); (ii) obtain access to real-time heatmap data generated by recording a certain number (depending on your Subscription Pan) of end-user sessions on your website(s) (collectively, “Customer Websites”) per month, and associated Customer Website screen recordings and revenue-based scrollmaps (collectively, the “Tracked Reporting”); and (iii) obtain e-commerce revenue reporting for the e-commerce features on the applicable Customer Website(s); (e) access links to the HeatMap™ social media pages/accounts appearing on third-party social media websites (collectively, “Social Media Pages”), such as  Facebook® and X® (collectively, “Social Media Websites”); (f) utilize the various contact forms and/or contact information made available on the Site as a means to contact directly, or request to be contacted by, HeatMap™ (collectively, the “Contact Services,” and together with the Site, Content, Third-Party Links, Tracked Reporting, HeatMap™ Tool and Social Media Pages, the “HeatMap™ Offerings”); and/or (g) otherwise affirmatively consent to these Terms and/or the Agreement.  

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These Terms are effective as of the date set forth above.  Please print the Agreement for your records.  A printed version of the Agreement will be valid, enforceable, and admissible in judicial and/or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as a paper agreement that you sign manually.  Violation of the Agreement may result in suspension or termination of your Account.

PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY.  IF A USER DOES NOT AGREE WITH THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, THAT USER IS NOT AUTHORIZED TO USE THE HEATMAP™ OFFERINGS IN ANY MANNER OR FORM.

THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST HEATMAP™, AS WELL AS ITS PARENT, SUBSIDIARIES, RELATED PARTIES, THIRD-PARTY SERVICE PROVIDERS, STRATEGIC PARTNERS AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.

NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).

Facebook® is a registered trademark Meta Platforms, Inc. (“Facebook”).  X® is a registered trademark of X Corp. (“X”).  Please be advised that HeatMap™ is not in any way affiliated with Facebook or X, nor are the HeatMap™ Offerings endorsed, administered or sponsored by either Facebook or X.

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Disclaimers

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The Tracked Reporting is provided on an “as is,” “as available,” basis, without warranty of any kind, whether express or implied.  HeatMap™ makes no representation, express or implied, as to the accuracy, timeliness or completeness of the Tracked Reporting, or the results that may be obtained from reliance on and/or use of same.  

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You acknowledge and agree that use of the Tracked Reporting is at your own risk.  In no event will HeatMap™ or any affiliated party be liable for any direct or indirect losses caused by any Tracked Reporting featured by and/or through the HeatMap™ Offerings.  You agree to do your own research and due diligence before making any decision with respect to any Tracked Reporting.  

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Scope; Modification

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You agree to the terms and conditions outlined in the Agreement with respect to your use of the HeatMap™ Offerings.  The Agreement constitutes the entire and only agreement between you and HeatMap™ with respect to your use of the HeatMap™ Offerings and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to your use of the HeatMap™ Offerings. HeatMap™ may change the Agreement, and the scope and functionality of the HeatMap™ Offerings, in whole or in part, at any time without specific notice to you; provided, however, that (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification.  The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the HeatMap™ Offerings.  By your continued use of the HeatMap™ Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).  Therefore, you should regularly check the Site for any updates and/or changes. You understand and agree that HeatMap™ is not responsible or liable in any manner whatsoever for your inability to use the HeatMap™ Offerings.

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Content

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The Site may provide general information about the HeatMap™ Offerings.  We may discontinue or make changes to the HeatMap™ Offerings, Content and information, products, licenses, or services described on the Site at any time.  Any Content published by and through the HeatMap™ Offerings should be deemed published as of its publication date only.  We do not undertake any obligation or responsibility to update or amend any such Content.  Although we try to provide accurate and timely Content on the Site, there may be inadvertent, technical, or factual inaccuracies and typographical errors.  For these reasons we cannot warrant the accuracy, completeness, or timeliness of the Content, information, text, graphics, links and/or other items made available by and/or through the HeatMap™ Offerings.  The Content should not necessarily be relied upon.  Users understand and agree that HeatMap™ will not be responsible for, and HeatMap™ undertakes no responsibility to monitor or otherwise police, Third-Party Content.  Users agree that HeatMap™ shall have no obligation and incur no liability to such Users in connection with any Content.  Users may find certain Content to be outdated, harmful, inaccurate and/or deceptive.  Please use caution, common sense and safety when using the Content.

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Links to Other Websites

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The Site may contain links to third-party websites, such as the Social Media Websites, which we do not own or control, but which are provided for your convenience.  If you visit a link to another website, you do so at your own risk subject to the terms and conditions established by the operator of that website.  The fact that we provide a link to a website does not necessarily mean we endorse, authorize, or sponsor that third-party website, or that we are affiliated with the third-party website’s owners and/or sponsors.  You acknowledge and agree that HeatMap™ shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of, or reliance on, any such material available on, by or through any such site. We reserve the right to terminate a link to a third-party website at any time.

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Accessing the HeatMap™ Offerings; Necessary Equipment; Restrictions

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The HeatMap™ Offerings are available only to individuals who: (a) are at least eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in their respective jurisdictions); (b) can enter into legally binding contracts under applicable law; and/or (c) are acting in their capacity as a duly authorized representative of a valid business entity or sole proprietorship (collectively, “Business Entity”).  If you do not meet the criteria set forth in (a) through (c) in the preceding sentence (collectively, “Eligibility Requirements”), you do not have permission to use and/or access the HeatMap™ Offerings. Without limiting the foregoing, the HeatMap™ Offerings are not intended for use by persons in any jurisdiction or country where such use would be contrary to applicable laws or regulations.  We may restrict your access to the HeatMap™ Offerings when you are physically located in a country in which use of the HeatMap™ Offerings would be prohibited.  You are responsible for compliance with all applicable laws, rules and regulations in connection with your access to, and use of, the HeatMap™ Offerings.   If you do not satisfy all of the Eligibility Requirements, you may not access the HeatMap™ Offerings.

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To access and use the HeatMap™ Offerings, you will need a working connection to the Internet via a web browser on a mobile device and/or computer for which you are responsible for obtaining and maintaining, as well as a functioning Customer Website capable of incorporating the HeatMap™ Tool plug-in, including all associated costs, expenses, and fees.  HeatMap™ does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer.  HeatMap™ does not guarantee that the HeatMap™ Offerings can be: (i) accessed on all mobile devices; (ii) accessed through all wireless service plans; (iii) accessed via all Internet browsers; (iv) incorporated into all Customer Website(s); and/or (v) accessed in all geographical areas.  Standard messaging, data and wireless access fees may apply to your use of the HeatMap™ Offerings.  You are fully responsible for all such charges and HeatMap™ has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.

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From time to time, due to the performance of maintenance, malfunctions or failures of software, equipment, or telecommunications devices, unusual transaction volume, or similar reasons, the HeatMap™ Offerings may not be available for your use.  We are not responsible for any reliance on the continued availability of the HeatMap™ Offerings.

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Your use of the HeatMap™ Offerings is limited to the intended functions of the HeatMap™ Offerings.  Unauthorized use of the HeatMap™ Offerings and/or our systems including, but not limited to, misuse of any information posted on or through the HeatMap™ Offerings and/or unauthorized entry into any of our systems is strictly prohibited.  You are prohibited from using the HeatMap™ Offerings in any manner that:

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• Constitutes a use other than your own internal business use;
• Accesses data that is not intended for you;
• Attempts to harvest, collect, gather or otherwise assemble Customer Website user (“Customer Website User”) personal information;
• Invades the privacy of, obtains the identity of, or obtains any personal information about any Customer Website User or other user of the HeatMap™ Offerings;
• Probes, scans, or tests the vulnerability of the HeatMap™ Offerings, our network, our security, or authentication measures without proper authorization;
• Attempts to interfere with service to any user, host, or network or otherwise attempts to disrupt our business including, without limitation, via means of submitting a virus through the HeatMap™ Offerings, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
• Copies, modifies, redistributes, reverse engineers, decompiles or disassembles any aspect of the Site or any content delivered to you via the HeatMap™ Offerings;
• Is unlawful, fraudulent or deceptive;
• Communicates any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic or profane material;
• Encourages conduct that would constitute a criminal offense or that gives rise to civil liability;
• Violates the Agreement or any other policies or agreements that you enter into with us;
• Fails to comply with applicable third-party terms; or
• Constitutes any other inappropriate conduct, as determined by us in our sole discretion.

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In addition, you may not either directly or through the use of any device, software, Internet site, web-based service, or other means:

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• Remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content of the Site or any digital rights management mechanism, device, or other Content protection or access control measure associated with the Content made available by and/or through the HeatMap™ Offerings, including geo-filtering mechanisms;
• Copy, download, stream, capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit, or retransmit the Content the HeatMap™ Offerings (except as expressly permitted by the Agreement);
• Incorporate the Content made available by and/or through the HeatMap™ Offerings into, or stream or retransmit the content via, any hardware or software application, or make it available via frames or in-line links; or
• Create, recreate, distribute, or advertise an index or any significant portion of the Content made available by and/or through the HeatMap™ Offerings.

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You may not build a business utilizing the Content made available by and/or through the HeatMap™ Offerings, whether or not for profit.  In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on any of the Content made available by and/or through the HeatMap™ Offerings including, without limitation, montages, mash-ups and similar videos, and merchandise, unless it is expressly permitted by us in writing in each instance.  This prohibition applies even if you intend to give away the derivative materials free of charge.

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If you violate any provision of the Agreement, we reserve the right to terminate your Account and/or access to the HeatMap™ Offerings.  Additionally, we, in our sole discretion, may suspend or terminate your Account at any time, with or without notice.  We may at any time, with or without cause, and without prior notice to you, deny you access to the HeatMap™ Offerings.  We may terminate the Agreement and/or the HeatMap™ Offerings, in whole or in part, at any time without prior notice to you.  In the event that we terminate these Terms, any existing transactions that you have entered into with us shall remain in effect, unless we otherwise provide notice thereof.

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Account Registration; User Eligibility

In order to obtain access to certain of the HeatMap™ Offerings, you must first submit the applicable registration and application form to HeatMap™ for review and initial approval.  The registration data that you must supply in order to obtain access to the HeatMap™ Offerings may include, without limitation, depending on the applicable HeatMap™ Offerings requested: (a) your full name; (b) your e-mail address; (c) your username and password; (d) your mailing address/your Business Entity’s mailing address (where purchasing a Subscription); (e) your telephone number; (f) the name of your Business Entity; (g) your Customer Website URL; (h) your credit card information (where purchasing a Subscription); and (i) any other information requested by us on the applicable registration form (collectively, “Registration Data”).  

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You acknowledge and agree to create an Account and register on the Site for business purposes only.  By using the HeatMap™ Offerings or registering on the Site on behalf of a Business Entity, you represent and warrant that: (i) you have the power and authority to bind such Business Entity as a duly authorized representative of the Business Entity; (ii) you are using the HeatMap™ Offerings only on behalf of such Business Entity; (iii) all Registration Data and information that you submit is information that you are authorized to submit and is truthful, complete, up to date and accurate; (iv) you will maintain the accuracy, truthfulness and completeness of such information; (v) you authorize (and have the authority to authorize) any credit checks that may be performed by HeatMap™; (vi) you satisfy the Eligibility Requirements; (vii) you reside in a country where HeatMap™ is authorized to conduct business; and (viii) your use of the HeatMap™ Offerings does not violate any applicable laws or regulations.  You agree not to use any other User’s Account without obtaining express permission and authorization to do so.

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Subscription Account Features; Tracked Reporting

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Upon creating an Account, and in some cases upon obtaining a Subscription, you can attempt to utilize certain of the HeatMap™ Offerings that are only available to Account holders, such as the HeatMap™ Tool and associated Tracked Reporting, user interface and Customer Website heatmapping overlays (collectively, “Account Features”).  Please be advised that the Tracked Reporting provides information about Customer Website Users on a fully anonymized basis, with no personally identifiable information that is linked to the Tracked Reporting and/or collected, provided to or accessible by Account holders. HeatMap™ does not represent that the results generated from use of the Account Features, including the Tracked Reporting, are accurate, correct or comprehensive.    

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Billing Provisions; Payments

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The pricing associated with each Subscription shall be set forth on the Site.  User acknowledges and agrees that by purchasing a Subscription: (a) User hereby authorizes HeatMap™ to charge the credit card provided by User (“Active Credit Card”), in advance, for all applicable amounts attributable to the Subscription purchased by User; (b) all Subscription payments will be charged to the Active Credit Card automatically, on a recurring basis (either monthly or an annual basis, depending on the applicable Subscription plan), and HeatMap™ will not obtain any additional authorization from User to charge for recurring Subscription payments; (c) should the Active Credit Card be declined for any reason: (i) User agrees that HeatMap™ may contact User on any phone number (including a cell phone number) or e-mail address provided by User for alternate payment information; (ii) HeatMap™ reserves the right to make additional attempts to charge the Active Credit Card; and/or (iii) HeatMap™ reserves the right to suspend access to the applicable HeatMap™ Offerings Account Features until valid credit card information is provided by User; (d) User must, at all times, keep its Active Credit Card information updated with HeatMap™; (e) HeatMap™ reserves the right to contract with credit card companies, issuing banks and third-party service providers in order to update and maintain the Active Credit Card information of User.  This may be accomplished by refreshing expired, changed or replaced credit card and/or debit card numbers on file with HeatMap™ with the numbers of any replacement cards so that User’s Subscription does not lapse; and (f) User must contact HeatMap™ prior to making any Active Credit Card chargeback or inquiry, in order to reasonably allow for a resolution of any underlying dispute.  

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UNLESS OTHERWISE INDICATED ON THE SITE, ALL FEES ARE FINAL AND NON-REFUNDABLE.  Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of HeatMap™ in effect at any given time.  Upon reasonable prior written notice to you (with e-mail sufficing), HeatMap™ reserves the right to change its Billing Provisions whenever necessary, in its sole discretion.  Subsequent payment of Subscription fees after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any Subscription fees incurred prior to the applicable amendment or modification.  All prices displayed on the Site are quoted in U.S. Dollars, are payable in U.S. Dollars and are valid and effective only in the United States.  Failure to use any HeatMap™ Offerings does not constitute a basis for refusing to pay any of the associated charges.  If payment is not made in a timely manner, HeatMap™ may, at its option, immediately suspend User’s Subscription. Interest will accrue on any past due amounts at the rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law. In addition, User shall be liable to HeatMap™ for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts.

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Electronic Signatures

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HeatMap’s™ authorization to provide and bill for the fees is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation.  Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency.  HeatMap’s™ reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively (collectively, the “E-Sign Act”).  Both laws specifically pre-empt all state laws that recognize only paper and handwritten signatures. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the E-Sign Act and other similar state and federal statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE HEATMAP™ OFFERINGS.  Further, you hereby waive any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.  You acknowledge and agree that you have the ability to print information delivered to you electronically, or otherwise know how to store that information in a way that ensures that it remains accessible to you in unchanged form.

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Subscription Cancellation

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User may modify or cancel her/his/its Subscription by providing HeatMap™ with ten (10) days prior notice by emailing HeatMap™ at: support@heatmap.com; provided, however, that: (a) User will remain responsible for timely payment of any and all fees that User has already incurred; (b) User shall not receive any pro-rata refund for partial months/years, as applicable; and (c) HeatMap™ will not refund any amounts previously paid up to the date of cancellation or termination unless approved by the Heatmap Inc.

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Compliance with Applicable Law.  

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By accessing and using the HeatMap™ Offerings, each User represents and warrants that: (a) its use of any and all Tracking Reports; and (b) its use of any and all other HeatMap™ Offerings (will be in strict compliance with all applicable HeatMap™ guidelines, as well as all applicable local, state, national, federal and international laws, rules and regulations including, but not limited to, Applicable Privacy Laws (as defined below), the Gramm-Leach Bliley Act of 1999 (15 U.S.C. §§ 6801 et seq.) and the FTC’s Safeguards Rule (16 CFR Part 314), the Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), California Business & Professions Code §17529 et seq., CIPA (as defined below), WESCA (as defined below), TUCSRA (as defined below), MWESA (as defined below), IEL (as defined below), the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200) (the “TCPA”), the Federal Communications Act, the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq., and laws governing the National Do-Not-Call Registry, the Oklahoma Telemarketer Restriction Act, the Florida Telemarketing Act and Florida Do Not Call Act and Federal Do Not Call List requirements, the Washington Telemarketing Law HB1497, the Canadian Anti-SPAM Legislation (“CASL”), and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”).  For purposes of the Agreement, “Applicable Privacy Laws” means any and all statutes, regulations, regulatory guidelines and judicial or administrative holdings or interpretations related to consumer privacy including, but not limited to, the California Consumer Privacy Act, Cal. Civ. Code § § 1798.100 et seq. (“CCPA”), the California Privacy Rights Act (“CPRA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act (“CTDPA”), the Delaware Personal Data Privacy Act (“DPDPA”), the Florida Digital Bill of Rights (“FDBR”), the Indiana Consumer Data Protection Act ("ICDPA”), Iowa Consumer Data Protection Act (“ICDPA”), Nevada’s privacy law, as amended by Senate Bill 220 (the “Nevada Privacy Law”), the Montana Consumer Data Privacy Act (“MCDPA”), the Nebraska Data Privacy Act (“NDPA”), New Hampshire’s SB 255-FN (“NHDPA”), the New Jersey Data Privacy Act (“NJDPA”), the Oregon Consumer Privacy Act (“OCPA”), the Tennessee Information Protection Act (“TIPA”), the Texas Data Privacy and Security Act (“TDPSA”), the Utah Consumer Privacy Act (“UCPA”), the Virginia Consumer Data Protection Act (“VCDPA”) the EU General Data Protection Regulation (“GDPR”), and the UK General Data Protection Regulation (“UK GDPR”).  

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Without limiting the foregoing, by accessing and using the HeatMap™ Offerings, each User represents and warrants that she/he/it has obtained (in advance) and maintained any and all consumer consents required by the California Invasion of Privacy Act (“CIPA”), the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), the Arizona Telephone, Utility and Communication Service Records Act (“TUCSRA”), the Maryland Wiretapping and Electronic Surveillance Act (“MWESA”), Illinois Eavesdropping Law, Illinois - 720 I.L.C.S. § 5/14-2(a) (the “IEL”) other state and/or federal anti-wiretapping laws and Applicable Privacy Law in connection with the HeatMap™ Tool’s tracking and recording of Customer Website User sessions, actions and other behavior on the Customer Websites (collectively, “Consumer Consents”).

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In light of the foregoing: (a) each User must ensure that the Privacy Policies appearing on all Customer Websites that have the HeatMap™ Tool embedded contain a prominent disclosure, in plain English, stating that such User employs the HeatMap™ Tool in order to record certain Tracked Actions (as defined below) taken by Customer Website Users.  For purposes of the Agreement, “Tracked Actions” means: (i) mouse and touch activity (but no keyboard activity) on Customer Websites; (ii) Customer Website User device screen size; (iii) geographic location (country only) from where a Customer Website is accessed; (iv) Customer Website pages visited; (v) date and time when Customer Website pages were accessed; and (vi) Customer Website e-commerce transactions (collectively, “Tracked Reporting”) (b) each User must obtain affirmative consent to use the HeatMap™ Tool from each Customer Website User prior to the HeatMap™ Tool recording such Customer Website User’s actions on the applicable Customer Website(s) (“Recordation Prior Consent”); (c) each User must obtain Recordation Prior Consent by including prominent language above a “submit” or other call to action button (collectively, “Submit Button”) on each Customer Website stating that, by clicking on the Submit Button, the Customer Website User understands and agrees that the Customer Website uses the HeatMap™ Tool to record and generate the Tracked Reporting; and (d) each User shall ensure that the HeatMap™ Tool shall not record such Customer Website User actions on the applicable Customer Website unless and until User has obtained Recordation Prior Consent, as indicated above.

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Consumer Requests Under Applicable Privacy Laws

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(a) Each User shall timely honor all Consumer Requests (as defined below) that it receives, as required by Applicable Privacy Laws.

(b) User and HeatMap™ shall each provide all assistance as is reasonably requested by the other party to meet its obligations under Applicable Privacy Laws with respect to responding to Consumer Requests.  Such assistance shall be promptly provided.

(c) For purposes of the Agreement, “Consumer Requests” means requests from Customer Website Users to: (i) correct inaccurate and/or outdated Covered Personal Information; (ii) opt-out from and/or limit the use and/or sharing of sensitive Covered Personal Information; (iii) opt out from the sale and/or sharing of any Covered Personal Information; (iv) know the: (A) categories of Covered Personal Information that such party has collected about the subject consumer(s); (B) specific pieces of Covered Personal Information that such party has collected about the subject consumer(s); (C) categories of sources from which the Covered Personal Information is collected; (D) business or commercial purpose for collecting, selling and/or sharing the subject Covered Personal Information; and (E) categories of third parties to whom such party discloses Covered Personal Information; (v) opt-out of profiling; (vi) opt-out of targeted advertising; and/or (vii) delete any Covered Personal Information collected.

(d) For purposes of the Agreement, “Covered Personal Information” means, in addition to any definition under Applicable Privacy Laws, any personally identifiable information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to any individual or household that would be considered a resident of California, Colorado, Connecticut, Delaware, Florida, Indiana, Iowa, Maryland, Montana, Nebraska, New Hampshire, New Jersey, Oregon, Tennessee, Texas, Utah, Virginia, any European Union Member State and/or the United Kingdom.

(e) Without limiting the foregoing, each User must provide Customer Website Users with the ability to opt-out of tracking technology including, without limitation, the HeatMap™ Tool.  Each User shall immediately provide notice to HeatMap™ of any such HeatMap™ Tool opt-out requests.

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Disclaimer of Warranties

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THE HEATMAP™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR BY AND THROUGH SAME ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, HEATMAP™ MAKES NO WARRANTY THAT: (A) THE HEATMAP™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR BY AND THROUGH SAME WILL MEET YOUR REQUIREMENTS; (B) THE HEATMAP™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR BY AND THROUGH SAME WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) YOU WILL REALIZE ANY FINANCIAL BENEFIT AND/OR REALIZE ANY OTHER BUSINESS OUTCOME; (D) THE TRACKED REPORTING AND OTHER CONTENT WILL BE ACCURATE OR ERROR FREE; OR (E) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HEATMAP™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR BY AND THROUGH SAME WILL BE ACCURATE OR RELIABLE. THE HEATMAP™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR BY AND THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE SITE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HEATMAP™, ANY INVESTOR, PARTNER OR OTHERWISE THROUGH OR FROM THE HEATMAP™ OFFERINGS, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

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Limitations of Liability

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YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER HEATMAP™, NOR ITS PARENT, SUBSIDIARIES AND/OR CORPORATE AFFILIATES,  SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HEATMAP™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE HEATMAP™ OFFERINGS AND/OR ANY OTHER HEATMAP™ PRODUCTS AND/OR SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER HEATMAP™ PRODUCTS AND/OR SERVICES PURCHASED OR OBTAINED FROM OR THROUGH THE HEATMAP™ OFFERINGS; (C) YOUR INABILITY TO REALIZE ANY FINANCIAL BENEFIT AND/OR REALIZE ANY OTHER BUSINESS OUTCOME; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA AND/OR OTHER PERSONALLY IDENTIFIABLE OR NON-PERSONALLY IDENTIFIABLE INFORMATION THAT WAS COLLECTED BY AND/OR THROUGH THE SITE OR OTHER HEATMAP™ OFFERINGS INCLUDING, WITHOUT LIMITATION, SEARCH TERMS ENTERED ON THE SITE, WEBSITE REFERRERS, DEVICE TYPES (DESKTOP, MOBILE, TABLET, ETC.), BROWSER TYPES, SITE PAGES VISITED, TIME SPENT ON EACH SITE PAGE, NAVIGATION PATH THROUGH THE SITE, AND/OR ANY ACTION TAKEN ON THE SITE, INCLUDING CLICKS, DOWNLOADS, PURCHASES, FORM SUBMISSIONS AND ADD TO CART/ABANDONED CART ACTIONS; (E) ANY ERROR AND/OR INACCURACY ASSOCIATED WITH THE TRACKED REPORTING AND OTHER CONTENT; (F) ANY ALLEGATION RELATING TO TRACKING WEBSITE USERS WITHOUT CONSUMER CONSENT; AND (F) ANY OTHER MATTER RELATING TO THE HEATMAP™ OFFERINGS AND/OR ANY OTHER HEATMAP™ PRODUCTS AND/OR SERVICES.  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, SECURITIES LAW VIOLATIONS, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS.  YOU HEREBY RELEASE HEATMAP™ FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN.  IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF HEATMAP™ TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00).  NO ACTION, REGARDLESS OF FORM, ARISING OUT OF YOUR USE OF THE HEATMAP™ OFFERINGS AND/OR ANY OTHER HEATMAP™ PRODUCTS AND/OR SERVICES MAY BE BROUGHT BY YOU OR HEATMAP™ MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION.  THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND HEATMAP™.  ACCESS TO THE HEATMAP™ OFFERINGS AND/OR ANY OTHER HEATMAP™ PRODUCTS AND/OR SERVICES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS HEATMAP’S™ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

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Representations and Warranties

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Each User hereby represents and warrants to HeatMap™ as follows: (a) the Agreement constitutes such User’s legal, valid and binding obligation which is fully enforceable against such User in accordance with its terms; (b) such User understands and agrees that such User has independently evaluated the desirability of utilizing the HeatMap™ Offerings and that such User has not relied on any representation and/or warranty other than those set forth in the Agreement; (c) its use of the HeatMap™ Offerings, including the HeatMap™ Tool and Tracked Reporting, as well as the execution, delivery and performance by such User of the Agreement will not conflict with or violate: (i) any order, judgment or decree applicable to such User; or (ii) any agreement or other instrument applicable to such User; and (d) its use of the HeatMap™ Offerings, including the HeatMap™ Tool, Tracked Reporting and performance under the Agreement will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any Applicable Law (including CIPA, WESCA, TUCSRA, MWESA, IEL, other state and/or federal anti-wiretapping laws or any Applicable Privacy Law); and/or (iv) otherwise infringe upon the rights of any third-parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.

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Indemnification

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You agree, at your own cost and expense, to indemnify and hold the Covered Parties harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all costs and fees, including reasonable legal and attorneys' fees, arising out of or relating to: (a) your breach of the Agreement; (b) any unauthorized or improper use of your Account and/or the HeatMap™ Offerings by any person, including yourself; (c) your violation, or alleged violation, of Applicable Law (including CIPA, WESCA, TUCSRA, MWESA, IEL, other state and/or federal anti-wiretapping laws and any Applicable Privacy Law); (d) your failure or alleged failure, to obtain Consumer Consents; (e) any failure by you to provide accurate and up-to-date Registration Data; (f) any dispute between you and any consumer and/or third party; and/or (g) your negligence or misconduct.  If we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.  We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not, in any event, settle any such claim or matter without our prior written consent.

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Proprietary Rights

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The HeatMap™ Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, and all HeatMap™ logos, symbols, expansion names and symbols, play level symbols, trade dress or "look and feel,” and all derivative works or modifications of/to any of the foregoing, and all related and underlying intellectual property (including, without limitation, patents, trademarks, trade secrets and copyrights), are the sole and exclusive property of HeatMap™. We reserve all rights not expressly granted herein. Except as expressly set forth herein, no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of the HeatMap™ Offerings does not convey or imply the right to use the HeatMap™ Offerings in combination with any other information or products. The posting of information or material by and through the HeatMap™ Offerings does not constitute a waiver of any right in or to such information and/or materials.  The “HeatMap” name and logo are trademarks of HeatMap, Inc.  The use of any HeatMap™ trademark without HeatMap’s™ express written consent is strictly prohibited.

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License

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Each User is granted a non-exclusive, non-transferable, revocable and limited license to access and use the HeatMap™ Offerings.  HeatMap™ may terminate this license at any time for any reason.  Unless otherwise expressly authorized by HeatMap™ in writing in each instance, Users may only use the HeatMap™ Offerings for their own internal business purposes.  No part of the HeatMap™ Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical.  No User or other third-party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the HeatMap™ Offerings except as expressly permitted by HeatMap™.  No User or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the HeatMap™ Offerings, or any portion thereof.  No User or other third-party may create any “derivative works” by altering any aspect of the HeatMap™ Offerings.  No User or other third-party may use the HeatMap™ Offerings in conjunction with any other third-party content.  No User or other third-party may exploit any aspect of the HeatMap™ Offerings for any commercial purposes not expressly permitted by HeatMap™.  Each User further agrees to indemnify and hold HeatMap™ harmless for that User’s failure to comply with this paragraph.  HeatMap™ reserves any rights not explicitly granted in the Agreement.

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Dispute Resolution Provisions

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The Agreement shall be treated as though it were executed and performed in New York, NY and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles).  The parties (and Covered Parties) hereby agree to arbitrate all claims that may arise under and/or relate to the HeatMap™ Offerings and/or the Agreement.  Without limiting the foregoing, should a dispute arise between the parties/any Covered Parties including, without limitation, any matter concerning the HeatMap™ Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties/Covered Parties agree to submit their dispute for resolution by arbitration before JAMS, in accordance with the then current General Arbitration Rules & Procedures of JAMS; provided, however, that HeatMap™ reserves the right to require that any and all user claims be combined and conducted under the JAMS Mass Arbitration Procedures and Guidelines where there are seventy-five (75) or more arbitration demands pending against HeatMap™ that are similar to the demand for arbitration submitted by you; and (b) you agree to first commence a formal dispute proceeding by emailing support@heatmap.com.  The Covered Party(ies) named in your Initial Dispute Notice (collectively, the “Named Parties”) may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”).  If the applicable Named Party(ies) provide(s) you with a Final Settlement Offer and you do not accept it, or such Named Party(ies) cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must: (i) provide HeatMap™ with proof that you accessed the Site and provided consent to the Agreement; and, thereafter (ii)  submit your dispute for resolution by arbitration before JAMS, in your county of residence, by filing a separate Demand for Arbitration, which is available here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions.  If the arbitrator awards you relief that is greater than the applicable Final Settlement Offer, then the Named Party(ies) will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, the Named Party(ies) will reimburse any reasonable attorneys' fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction.  Although the Named Party(ies) may have a right to an award of attorneys' fees and expenses if Named Party(ies) prevail(s) in arbitration, the Named Party(ies) will not seek such an award from you unless the arbitrator determines that your claim was frivolous.

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To the extent permitted by law, other than where HeatMap™ compels mass arbitration as set forth above, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against any of the Covered Parties.  You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.

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Other Terms & Conditions

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Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.  HeatMap’s™ failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.  The parties do not intend that any agency or partnership relationship be created through operation of the Agreement.  HeatMap™ may, with or without notice to you and in its sole discretion, assign the Agreement and/or any of its rights or delegate its duties under the Agreement to any third party for any purpose. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it.  Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

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Social Media Pages

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The Site contains links to the various HeatMap™ Social Media Pages.  The Social Media Pages are hosted and made available on the Social Media Websites by third party entities.  Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions.  You understand and agree that HeatMap™ shall not be liable to you, any other User or any third party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.

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Electronic Signatures

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You acknowledge and agree that by clicking on the submit button, or taking such other action as may be designated by HeatMap™ as a means of accepting the Agreement, you are submitting a legally binding electronic signature and entering into a legally binding contract.  You acknowledge that your electronic submission constitutes your agreement and intent to be bound by the Agreement.  Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE HEATMAP™ OFFERINGS.  Further, you hereby waive any right or requirement under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires: (a) an original signature; (b) delivery or retention of non-electronic records; and/or (c) payments, or the granting of credits, by other than electronic means.

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California End-User Consumer Rights

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In accordance with Cal. Civ. Code Sec. 1789.3, California State resident end-users may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to dca@dca.ca.gov.

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Contact Us

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If you have any questions about the Agreement and/or the HeatMap™ Offerings, please call us at: 516-780-1721; send us U.S. Mail to: HeatMap, Inc., 24970 Greengage Pl., Aldie, VA 20105; or email us at: support@heatmap.com.

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