Tracking Services Product Terms

Last updated January 2, 2024

IMPORTANT: THESE PRODUCT TERMS PERTAINING TO TRACKING SERVICES, INCLUDING CUSTOM TRACKING, (THE “TRACKING TERMS”) ARE REFERRED TO IN THE SMASHEL DIGITAL MARKETING ONLINE MARKETING SERVICES TERMS AND CONDITIONS (THE “MARKETING SERVICES TERMS”) AND ARE INCORPORATED THEREIN. PLEASE READ THIS AGREEMENT CAREFULLY.

YOUR EXECUTION OF AN ORDER FORM FOR MARKETING SERVICES CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TRACKING TERMS.

IN THE EVENT OF A CONFLICT BETWEEN THESE TRACKING TERMS AND THE MARKETING SERVICES TERMS AND/OR ORDER FORM, THESE TRACKING TERMS SHALL CONTROL.

WE RESERVE THE RIGHT TO MAKE CHANGES TO THESE TRACKING TERMS AT ANY TIME. WE SHALL PROVIDE NOTIFICATION OF CHANGES IN THESE TERMS BY UPDATING THE LAST MODIFIED DATE SET FORTH ABOVE. ALL SUCH CHANGES SHALL BE BINDING UPON YOU ONCE POSTED, UNLESS SUCH CHANGES ARE MATERIAL IN WHICH CASE WE WILL NOTIFY YOU VIA THE EMAIL ADDRESS YOU HAVE PROVIDED US.

1. Defined Terms.

• Destination Page refers to the Web page to which the consumer will be directed as part of the campaign, such as your Existing Site or another Web page created by Smashel Digital Marketing, such as an offer page or a Social Media Marketing site, or a third-party directory.

• Proxy Site refers to a proxied version of the Existing Site.

• Capture Code refers to software code that Smashel Digital Marketing may provide to you to implement on your Existing Site. This will help you measure the return on investment (ROI) of your Smashel Digital Marketing campaigns by showing the activity that takes place on your Existing Site as a result of the Marketing Services, as more fully set forth in Section 5 below.

• Capitalized terms not defined herein shall have the meaning set forth in the Marketing Services Terms.

2. Tracking Services.

The “Tracking Services” described below are designed to enable you to assess the performance of your marketing campaign(s). Custom Tracking will include the specific Tracking Services set forth on your Order Form.

• Phone Tracking: Smashel Digital Marketing phone tracking tracks the phone calls you receive by providing one or more tracking phone numbers that are dynamically displayed on the Destination Page in lieu of your phone number(s) and that forward to your phone number(s). You do not own, and will not obtain, as the result of this Agreement, any ownership interest in the tracking numbers.

• Email and Form Tracking: Smashel Digital Marketing email tracking tracks emails sent to you through the Proxy Site or, if you are using Capture Code, the Existing Site, by dynamically substituting your e-mail address(es) on the Destination Page with online e-mail forms. Forms submitted on the Existing Site can also be logged using Capture Code. Tracking emails and forms are routed through Smashel Digital Marketing’s servers and forwarded to email addresses you provide. For purposes of quality assurance and campaign assessment, Smashel Digital Marketing may access and review tracking emails and form submissions. Smashel Digital Marketing will use commercially reasonable efforts to deliver all tracking emails and form submissions but cannot guarantee that 100% of the tracking emails or form submissions will be delivered to you.

• Other Tracking: The Tracking Services also may include tracking of specific events on your site, such as visits to a specific landing page or a contact us page, and the visitors to your site, including the visitor’s browser type (such as Google Chrome or Internet Explorer), IP address or date and time of the visit. We may also utilize cookies, pixels or similar technologies, from us and the third-party publishers we use to deliver the Services, in order to help us link data from multiple advertising platforms and purchase ads in more than one place.

3. Tracking Services Data Retention.

You acknowledge that Smashel Digital Marketing is not obligated to keep and maintain any data obtained as the result of the Tracking Services for more than 30 days after the collection of any such data (including Call Recordings (as defined below), tracking emails, and form submission data).

4. Smashel Digital Marketing Proxy Technology.

a. The Proxy Site. In order to implement the Tracking Services, you hereby permit Smashel Digital Marketing to deploy a Proxy Site. In connection with the implementation of the Proxy Site, Smashel Digital Marketing will do some or all of the following:

• Deploy software code on the Proxy Site to track the pages that users access as a result of your campaign. Smashel Digital Marketing or its Publishers may place cookies or similar online tools on the Proxy Site to (i) effect the foregoing Tracking Services and to ensure the proper operation of the Proxy Site, (ii) provide for advertising content (“Ad”) tracking (to enable Smashel Digital Marketing to determine the effectiveness of the Marketing Services, when applicable), and (iii) enable Smashel Digital Marketing or its Publishers to show a consumer your Ads as the consumer navigates to third-party websites. You acknowledge that such cookies may be used for the benefits of both you and for third parties.

• On the Proxy Site, insert or otherwise display a link in appropriate places on the Proxy Site, advising consumers of certain privacy and cookie matters that may be relevant to the Proxy Site. While Smashel Digital Marketing will make reasonable efforts to ensure that the display of the link does not obscure the Proxy Site, you acknowledge and agree that obscuring of a small portion of the site may be unavoidable.

• In connection with Search Marketing campaigns, implement Keyword highlighting, which would highlight, on the Proxy Site, the search terms used by the consumer to locate the site.

• Make all of the foregoing changes or enhancements to the Mobile Landing Page.

b. Proxy URL; Disclaimer. In order for Smashel Digital Marketing to implement the Tracking Services, the URL for the Proxy Site (the “Proxy URL”) will be different than the URL for the Existing Site. Some ad types will display your Existing Site URL, while others will only display the Proxy URL. Unless the Proxy URL is an alternative URL that you have provided, the Proxy URL shall be the property of Smashel Digital Marketing and it shall be disabled upon termination. In the event the Proxy URL includes one of your trademarks, you grant Smashel Digital Marketing the license provided for in Section 7a of the Marketing Services Terms, but you retain title to and ownership of such trademark. You acknowledge that, because the functionality and appearance of the Proxy Site will be substantially similar to the Existing Site (except with respect to the changes contemplated by these Tracking Terms), Smashel Digital Marketing disclaims any liability arising from the design, content, or functionality of the Proxy Site.

5. Capture Code.

The Tracking Services may also be implemented on your Existing Site using Smashel Digital Marketing’s proprietary Capture Code, either in conjunction with or instead of a Proxy Site. In addition, if you are licensing Client Center with lead management, either as part of Websites, or independently, the Tracking Services will utilize Capture Code.

a. Function of Capture Code. Capture Code:

• Tracks visits, web events, form and email submissions, and other relevant data for your website.
• Collects PII (personally identifiable information) and PHI (protected health information) but only when a user fills out a form or chat conversation on your website.
• Pixels and Tags can be turned off and are fully configurable.
• Replaces phone numbers on your website with tracking numbers (tracks phone calls) based on organic referrer source (e.g., organic Google search, etc.) or Smashel Digital Marketing campaign information.
• Matches your website visitors to views of Search Marketing, Targeted Display, and Social Ads (when possible).

b. License to Capture Code. Subject to the terms and conditions of the Marketing Services, for so long as you are purchasing Marketing Services, Smashel Digital Marketing hereby grants you a revocable, non-exclusive, non-transferable limited license (without the right to sublicense) to use Capture Code in accordance with these Tracking Terms and such other documentation that Smashel Digital Marketing may promulgate from time to time.

c. Restrictions on Grant. Except as otherwise specifically permitted in these Tracking Terms, you may not:

(i) modify or create any derivative works of Capture Code or any of the related documentation, including translation or localization (code written to published APIs (application programming interfaces) for Capture Code shall not be deemed derivative works);

(ii) copy Capture Code except as provided in these Tracking Terms or elsewhere by Smashel Digital Marketing;

(iii) separate Capture Code, which is licensed as a single product, into its component parts;

(iv) sublicense or permit simultaneous use of Capture Code by more than one user;

(v) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for Capture Code (except to the extent applicable laws specifically prohibit such restriction);

(vi) redistribute, encumber, sell, rent, lease, sublicense, use Capture Code in a timesharing or service bureau arrangement, or otherwise transfer any rights to Capture Code;

(vii) publish or share with a third party any results of benchmark tests run on Capture Code without Smashel Digital Marketing’s prior written consent; or (viii) use Capture Code on any website that is not part of a Smashel Digital Marketing campaign.

d. Ownership and Copyright of Capture Code. Title to Capture Code and all copies thereof remain the property of Smashel Digital Marketing and/or its suppliers. Capture Code is copyrighted and is protected by United States copyright laws and international treaty provisions. You may not remove copyright notices from Capture Code. You agree to prevent any unauthorized copying of Capture Code. Except as expressly provided herein, Smashel Digital Marketing does not grant any express or implied right to you under Smashel Digital Marketing patents, copyrights, trademarks, or trade secret information.

e. CAPTURE CODE IS LICENSED “AS IS”, AND SMASHEL DIGITAL MARKETING DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, SMASHEL DIGITAL MARKETING EXPRESSLY DOES NOT WARRANT THAT CAPTURE CODE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF CAPTURE CODE WILL BE UNINTERRUPTED OR ERROR-FREE.

6. Notice of Changes to Existing Site.

You hereby acknowledge that changes to the Existing Site (including any tracked phone numbers or email addresses) may result in the failure of the Tracking Services. Therefore, to avoid disrupting the Tracking Services, you must provide Smashel Digital Marketing with at least 10 business days’ prior written notice of any changes to the Existing Site (including any URL changes). Smashel Digital Marketing will not be responsible for any failure of the Tracking Services resulting from your failure to provide timely notice of changes to the Existing Site and any such failure will not excuse your obligations to pay all amounts owed under any applicable Order Form.

7. Tracking Services Disclaimer.

Smashel Digital Marketing does not guarantee that the Tracking Services will track every instance of activity that is intended to be tracked. Without limiting the generality of the foregoing, the Tracking Services may not fully function in the following circumstances, among others:

• If the Existing Site significantly uses Flash or embedded images;
• When the consumer has disabled the use of cookies; or
• When you have used the incorrect tracking URL.

8. Special Terms for Phone Tracking.

• Provisioning Tracking Numbers: You acknowledge that, for local phone numbers, Smashel Digital Marketing will first try to provision a local tracking phone number and then a number in the same area code, but, in the event such tracking numbers are not available, you hereby give Smashel Digital Marketing permission to provision a toll-free tracking number instead.

• Your Options: At your option, as reflected on the Order Form, Phone Tracking may include the following features (collectively the “Call Tracking Features”): Call Recording (where a recording is made of inbound phone calls attributable to a campaign) and Caller ID (where the phone number of the caller is used to look-up their name and address). By electing the Call Tracking Features, you represent, warrant, and covenant that you have and will maintain all necessary rights to implement such tracking features. You acknowledge that Smashel Digital Marketing disclaims any and all liability that may arise as the result of the implementation of any of the Call Tracking Features.

• Call Recording Specifics: In connection with Call Recording, you understand that an initial recording will be played to consumers at the outset of calls, which will, among other things, notify the consumer that the call is being recorded. In addition, you must advise all of your employees that their calls may be recorded and ensure that such recordings and notifications comply with all laws, regulations, and practices relevant and/or applicable to you or your business. You understand and agree that any attempts to disrupt or prevent the playing of the recording or its failure to advise its employees of the recording may expose you to substantial liability.

• Call Review: For purposes of quality assurance, campaign assessment, and all other lawful purposes, Smashel Digital Marketing may, but is not obligated to, access and review all Call Recordings, except access is restricted for HIPAA Clients' Call Recordings.

• Call Blocking: Smashel Digital Marketing may, in its sole discretion, choose to block third-party phone numbers from being able to call the tracking phone numbers.

• Custom Tracking Campaign Cycles: For Custom Tracking, the Campaign Cycle is each 30-day period in which the services are provided during the Campaign Period, unless earlier terminated by the parties as provided in the Marketing Services Terms.

9. HIPAA Considerations.

To the extent that (i) you are covered by the Health Insurance Portability and Accountability Act (“HIPAA”) as codified at 45 C.F.R. parts 160 and 164 (“HIPAA Regulations”) and (ii) you elect the Tracking Services, you acknowledge and agree to the following:

• Notification of HIPAA Covered Entity Status: You agree that you are obligated to affirmatively and promptly notify Smashel Digital Marketing of your HIPAA covered entity status.

• Handling of PHI and ePHI: You acknowledge that any Protected Health Information (“PHI”) or Electronic Protected Health Information (“ePHI”), as defined in 45 C.F.R. §160.103, collected hereunder is being done so at your express request, instruction, and direction. This is limited to the information Smashel Digital Marketing (or its third-party service providers) receives from or creates or receives on your behalf in connection with the Marketing Services provided by Smashel Digital Marketing.

• Third-Party Cookies and Tracking Pixels: You acknowledge that for Marketing Services involving the placement of any third-party cookies, tracking pixels, or other devices, Smashel Digital Marketing is not responsible for the data collected by those third-party cookies or tracking pixels. You are responsible for the data collected and the activities of any third-party pixel, including but not limited to the Facebook Meta Pixel.

• Authorization for Collection of PHI and ePHI: You hereby expressly authorize Smashel Digital Marketing and third-party call service providers to collect the PHI and ePHI as necessary and proper to effect the call recording services contemplated hereby and by the Marketing Services Terms.

• Legal Compliance and Notification: You represent and warrant that you have all necessary rights to collect such information and will use any such information collected only in strict compliance with all applicable legal requirements, including the HIPAA privacy and security rules and applicable OCR guidance. You shall promptly notify Smashel Digital Marketing in writing if your rights to collect such information are impaired.

• Execution of Business Associate Agreement: If requested by Smashel Digital Marketing, you agree to promptly execute Smashel Digital Marketing’s standard Business Associate Agreement between you and us.

• Notification of Complaints: You shall immediately notify Smashel Digital Marketing in writing if you receive a complaint from a consumer, governmental agency, or quasi-governmental agency for matters arising out of or relating to these Tracking Terms.

10. COPPA Considerations.

We do not knowingly collect information that personally identifies any child under 13 years of age. If we are informed or become aware that our Marketing Services are being used on a site or app directed at children, we will restrict the use of our Marketing Services to uses permitted under the Children’s Online Privacy Protection Act or terminate your use of the Services.

11. No Intended Use of E.U. Personal Data.

We do not knowingly target or collect information from residents of the European Union, European Economic Area, United Kingdom, or Switzerland (each, a “Data Subject”), and Capture Code is designed to prevent the deployment of cookies, pixels, and certain tracking functionality to prevent the collection and tracking of personally identifiable information from Data Subjects based upon certain geographic identifiers, as we can ascertain them, of the visitors to your website. In the event you provide Smashel Digital Marketing personally identifiable information with respect to any Data Subject or believe your marketing services are targeting Data Subjects, you will provide Smashel Digital Marketing prior written notice in order for us to implement appropriate safeguards and, whether or not such notice is provided, represent and warrant that you have obtained lawful consent to provide such data and to enable Smashel Digital Marketing to exercise its rights and process such data hereunder.

12. Service Provider Relationship.

a. In its delivery of the Marketing Services, Smashel Digital Marketing collects, retains, uses, discloses, and otherwise processes your Business Data (as defined below), where applicable, solely to fulfill its obligations to you as a service provider under this Agreement on your behalf, for your operational purposes, for our own operational purposes, for other notified purposes, and for no other purposes. Without limiting the foregoing, those purposes include, and you direct Smashel Digital Marketing to, collect, retain, use, disclose, and/or otherwise process your Business Data for the purposes (i) listed in Cal. Civ. Code § 1798.140(d) (or applicable amended section of the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 – 1798.199) and regulations promulgated thereunder (the “CCPA”)), (ii) as required by other Applicable Law, (iii) to comply with your instructions, as you may provide to Smashel Digital Marketing from time to time pursuant to this Agreement, including, without limitation, to deliver your campaigns and services on various online properties and platforms, for which Smashel Digital Marketing is not responsible, and (iv) to disclose your Business Data to third-party service providers in order to provide the Marketing Services, provided that Smashel Digital Marketing shall ensure that any such third-party service provider is bound by similar restrictions to those set forth herein. For the avoidance of doubt, Smashel Digital Marketing does not “Sell” your Business Data as such term is defined under the CCPA.

b. As used in this Section, (i) “Applicable Law” means all generally applicable state and federal laws and regulations promulgated thereunder with respect to our processing of your Business Data, including, without limitation, the CCPA, and (ii) “Business Data” means Personal Information (as defined under the CCPA) that Smashel Digital Marketing collects, retains, uses, or discloses on your behalf in its delivery of the Marketing Services pursuant to this Agreement.

c. Each of Smashel Digital Marketing and Client certifies that it understands and will comply with the restrictions and obligations set forth in this Section.

13. Effect of Termination.

Upon termination of your campaign(s), Smashel Digital Marketing’s obligation to provide the Tracking Services shall immediately terminate, along with its obligations to forward calls to the tracking phone numbers, tracking emails, or form submission data.