DESCRIPTION OF THE USER INSIGHTS SERVICE
User Insights allows you to obtain real-time statistics based on website visitors, using certain User Insights proprietary software (the “Software”, the Sites and Software shall be collectively known as the “Service”), subject to these Terms and Conditions of Service. For the sake of clarity, the “Service” includes any or all of the following service packages provided by User Insights: the User Insights API, User Insights website and User Insights Dashboard, each as defined below. Each time you access the User Insights Site (the Site,) our latest version of the Agreement will apply retrospectively for your use of the Service, from the date of your first access. Accordingly, whenever you use the Site, you should check the release date of the Agreement and inform yourself of any changes since the last update. If you do not agree with the Agreement at any time, please cease use of this Site and request a cancellation of the Service, following the steps above. You agree to accept notices sent electronically, including but not limited to, service notice email messages sent to the current email address(es) associated by us with your account and also notices posted on the Site. [You are at liberty to opt yourself out of marketing emails from us, by navigating to the Email Preferences section in the User Insights account dashboard.]
1.LICENSE & OWNERSHIP
You allow the Service to be placed on your website(s) and you hereby grant us a non-exclusive, irrevocable during the term of this Agreement, royalty-free, no-cost license to perform, or have performed, the activities relating to provision of the Service. You agree to configure the Software on your website(s) in accordance with User Insights’ requirements. We are not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Service or any damages resulting from your failure to implement the Software on your website(s) in accordance with User Insights’ requirements. In order to improve our algorithms and the Service, for statistical and analytical reporting and for research purposes, User Insights may or may not aggregate and/or anonymise the data resulting from use of the Service, including you, and provide personal information and or anonymised data, which may be aggregated with data of other customers, to third parties. User Insights will not use or disclose anonymised data in a manner that reveals your identity, the identity of your website, or your identifiable Traffic Data without your prior consent. We shall exclusively own our customers’ aggregated and/or anonymised Traffic Data. You shall own all rights in and to all your own Traffic Data, subject to the rights and licenses granted herein. “Traffic Data” means all data and information created, received, processed or provided by User Insights in performing the Service, or that results from performance of the Service for you. You hereby grant us all necessary rights to access and track Traffic Data concerning your website, solely in connection with providing the Service during the term of this Agreement.
Subject to the terms and conditions of this Agreement, we grant to you (and you agree to comply with) a non-sub-licensable, non-transferable, non-exclusive, revocable, limited license to use: (i) the Software and (ii) certain proprietary documentation in the form generally made available by us to you on the Site for use with the Software (the “Documentation”) solely to receive the Service.
You agree to:
- Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
- Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
- Not obtain the communications protocol for accessing the Service;
- Not remove, obscure or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations (“Branding”), or any electronic notices;
- Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
- Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
- Not to challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof; and
- Not post or transmit sensitive data to our servers, which includes but is not limited to, credit card data, personal identity numbers, passwords, etc.
PREVENTING TRANSMISSION OF SENSITIVE INFORMATION
You are not to transmit, or allow transmission of, sensitive data to our system by use of any of the User Insights features. Our dynamic recordings will capture the html content of the page a visitor is on, and if that page contains sensitive information you must use one of our preventative measures to block transmission of that sensitive data to our servers as outlined in our help documentation here http://userinsights.com.au/article/140-preventing-transmission-of-sensitive-data.
By default, our system will not capture keystroke data and will convert all keystrokes typed into text areas or input boxes into asterisks before sending them to our servers. If you enable keystroke logging by using our help documentation here (http://userinsights.com.au/article/90-how-do-i-capture-keystrokes-in-non-sensitive-fields), it is your responsibility that you do not enable keystroke logging on fields that are sensitive.
USER INSIGHTS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. THE SERVICE IS PROVIDED BY USER INSIGHTS AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES USER INSIGHTS GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. USER INSIGHTS DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY USER INSIGHTS FROM FACILITIES LOCATED IN THE UNITED STATES OF AMERICA. USER INSIGHTS MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S END USERS.
LIMITATION OF LIABILITY
IN NO EVENT WILL WE AND/OR OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORISED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT USER INSIGHTS WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE, AND (iii) FOR ANY CLAIM RESULTING FROM YOUR NON-COMPLIANCE WITH THE REQUIREMENTS OF CHILDREN’S ONLINE PRIVACY PROTECTION LEGISLATION OR FOR ANY CLAIM RESULTING FROM YOUR NON-COMPLIANCE WITH OR BREACH OF ANY OTHER AUSTRALIAN/ U.S. STATE OR FEDERAL PRIVACY OR ELECTRONIC PRIVACY LAWS
YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS USER INSIGHTS, OUR LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY’S FEES, ARISING OUT OF (i) YOUR USE OF THE SERVICE, (ii) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, (iv) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT OF YOUR USE OF THE SERVICE OR THE SITE, OR (v) FOR ANY CLAIM WHATSOEVER RESULTING FROM YOU OR YOUR AFFILIATES’, EMPLOYEES’, CONTRACTORS’ OR AGENTS’ BREACH OF THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT OR THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OR ANY OTHER STATE OR FEDERAL MEDICAL PRIVACY OR ELECTRONIC PRIVACY LAWS. USER INSIGHTS RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
- Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
- Assignment. You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.
- Third Party Service Providers. User Insights may provide the Service directly or indirectly using contractors or other third party vendors or service providers. User Insights will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third party suppliers or vendors.
- Publicity. You hereby consent to inclusion of your name and trademarks or service marks in customer lists that may be published as part of E-Web Marketing/ User Insights’ marketing and promotional efforts.
- Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: Sections 2 through 11.
- Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties.
- No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
- Notices. Any notice given by you under this Agreement to us shall be in writing, in the English language and emailed to firstname.lastname@example.org, or if from us to you, to the email address(es) associated with your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by e-mail without requiring a handwritten signature for such notice to be effective. It is your sole responsibility to maintain the currency of your email address(es) and contact details within your account.
- Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labour conditions, power failures, and Internet disturbances.
- Miscellaneous: Nothing in this agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the Agent of another party for any purpose. A person who is not a party to this agreement shall not have any rights under or in connection with it. This Agreement and the websites of User Insights and E-Web Marketing are governed by Federal and State laws of the state of New South Wales, Australia. Any dispute arising from the use of either will be settled in this jurisdiction.