The Terms and Conditions of Service below set forth the rights and obligations of the parties associated with the implementation of the User Insights Web Analytics Service (ABN 13 091 463 857) (defined below) (the “Service.”) Before you can use any part of the Service, you must read and affirmatively indicate your acceptance of the following Terms and Conditions of Service, any applicable Order from us and any applicable Privacy Policy (individually or collectively the “Agreement”). By visiting the User Insights website (the “Site”) or implementing or using the Service, you agree that you are authorised to accept these terms and conditions on behalf of yourself and/or your company (collectively, “you”, “your” or “yours”), and that you are bound by the terms of this Agreement for the Service. This Agreement is made and entered into by and between you and us.

Registration for the User Insights Fourteen (14) Day Free Trial : Subscription to this trial may only be made through our Site. Whilst no Credit Card information is required at this stage, you must provide certain limited information about yourself and we reserve the right to refuse access to the Service to any user. Beginning on the date of completion of your registration, data and analytics for your website will be made available for a period of fourteen (14) days, unless sooner terminated in accordance with this Agreement. Either you or we may terminate this Agreement upon written notice thereof at any time, for any or no reason, during or at the end of the Free Trial Period. To maintain continuity of service upon completion of the Free Trial Period, you must subscribe to one of our plans by providing an accepted credit card for billing. This is to supplement the certain personal information already provided to us upon initial registration.

Payment: Our pricing is quoted excluding GST and the lawful prescribed rate of GST will be levied on our invoices. (A surcharge of 3.1% applies to the use of American Express cards.)
We will bill you in advance, on a monthly, quarterly or annual basis (as agreed.) Your nominated credit card will automatically be charged at that time.

Recurring Subscription Fees: All User Insights subscriptions are recurring by nature which you agree to pay in advance, on each anniversary date, until such time as you submit a cancellation request in accordance with these Terms and Conditions of Service. Invoices are provided to you by email only, using the contact email address(es) assigned to you within our billing system. Invoices are not sent via regular Australia Post mail or any other courier style service.

Failure to Pay: Should your recurring fees exceed 28 days past due date, we may temporarily suspend service or terminate this Agreement. Such service suspension or termination does not relieve you of liability for all accrued charges, plus reasonable interest and any debt collection fees.

Refunds: Payments made to us are non-refundable, except for an instance of unsuccessful installation of the Service on your website. Refunds are not provided automatically and must be requested by you within 30 days of requesting cancellation. Refunds are provided at our sole discretion.

Cancellation: User Insights is an ongoing, recurring service which will remain active until such time as you submit a cancellation request via email to [email protected]. To avoid liability for the next recurring payment, a request for cancellation must be received by us at least 2 business days prior to the next recurring billing anniversary. In the case of cancelling multiple services, a list of all domain names affected must be included on your cancellation request. Upon termination of this Agreement, all licenses, and any other rights and services provided by us to you in this Agreement, shall cease immediately. We also may permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the Service upon reasonable prior notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your non payment of fees.

Customer Data: Upon successful cancellation of the Service, all data collected within the (cancelled) Service will be securely destroyed and we do not undertake to retrieve, summarise or report your data. You must remove all User Insights scripts and materials from your website(s) within thirty (30) days after cancellation.

Confidentiality: All parties will keep in strict confidence any and all information of a confidential nature which each obtains, about either of the other parties, as a result of the arrangements contemplated by this agreement. This clause shall not apply in relation to any information that is already available in the public domain, other than as a result of a breach of this clause by any party.

Privacy Policy On Your Own Website: By deploying User Insights on your site you will need to update your own website’s privacy policy to declare the way User Insights operates on your site. You must include a disclosure as follows or of similar intent:

• User Insights Web Analytics Service
• This site uses 3rd party analytics systems to help improve usability and you experience.
• We may record mouse clicks, mouse movements and scrolling activity. In addition, we may record keystroke information that you voluntarily enter on this website. You can choose to disable this service here. Note, that doing so will disable other features that this site offers such as 1-to-1 support chat.

Note: If you have certain recording features disabled for your site, such as mouse clicks, keystrokes, etc. you may leave out those notices. So, if you do NOT have keystroke logging turned on you can leave that off since you aren’t recording that data with the system.

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.

Your use of the Service shall be restricted pursuant to the terms and conditions of this Agreement. You agree that you are solely responsible, and we bear no liability, for the use of your account by any third party, or for your use of the Service through a third party’s account, and the acts and/or omissions of such third party. We also grant you a nonexclusive, non-transferable, revocable, limited license to access and use the User Insights API solely in connection with its use of the Service. Other than as expressly granted above, no other rights are granted, including without limitation any and all User Insights patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectable) (“Intellectual Property Rights”). Nothing in this Agreement grants to you any rights whatsoever in or relating to the source code of the Software, other than the limited right to place the User Insights JavaScripts on your website(s). All ownership rights, title, and Intellectual Property Rights in and to the Service shall remain in User Insights and/or its licensors. You agree that we have the right to change, modify, add to or discontinue or retire any aspect or feature of the Service at any time without any obligation to give you notice of any changes. From time to time, we may, but are under no obligation to, release upgrades, fixes or new versions of the Service, although these upgrades may not be consistent across all platforms and devices.

2.RESTRICTIONS

You agree not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, make derivative works, disassemble, or reverse engineer the Service, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction or where in accordance with the API Terms and Conditions of Service); (ii) copy the Software (except as required to place the User Insights JavaScripts on your website); (iii) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Service, unless explicitly authorised by User Insights; or (iv) use the Service in violation of any applicable regulation or law; or (v) ship, divert, trans-ship, transfer, export or re- export the Service or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the Australian Federal & State Government Agencies and/or U.S. Commerce Department’s Bureau of Export Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency.

You agree to:

1. Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
2. Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
3. Not obtain the communications protocol for accessing the Service;
4. 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;
5. Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
6. Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
7. Not to challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof; and
8. Use the User Insights API solely in accordance with the API Terms of Use available here.
9. 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 https://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 (https://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.

WARRANTY DISCLAIMER

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

INDEMNIFICATION

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.

GENERAL

1. Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.

2. 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.

3. 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.

4. 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.

5. Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: Sections 2 through 11.

6. 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.
7. 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.

8. Notices. Any notice given by you under this Agreement to us shall be in writing, in the English language and emailed to [email protected], 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.

9. 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.

10. The Agreement : our Privacy Policy is located at https://userinsights.com.au/privacy.php and the terms, policies or other provisions located on the Site (which are all incorporated herein by reference), constitute a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matters of this Agreement. This Agreement may be revised from time to time at our sole discretion by posting the revised Agreement on the Site. The revised Agreement shall become effective upon your use of the Service after its publication. Your acceptance of any revised Agreement is deemed by your continued use of the Service.

11. 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.