1. Consent to Agreement
By using or attempting to use the Services, you certify that you are of age to legally contract and you acknowledge that you have read, fully understood, and agree to be bound by these Terms, as may be amended from time to time at our sole discretion and your continued use of the Services will signify your acceptance of any amendment to these Terms. In the event these Terms are amended by us and such amendment includes a substantial change we will provide reasonable advance notice of such amendment. If you do not meet these requirements or, if for any reason, you do not agree with all of the terms and conditions contained in these Terms, please discontinue using the Services immediately.
If you are using the Services on behalf of any company, corporation, limited liability company, general or limited partnership, trust, proprietorship, joint venture, or other business entity, unincorporated association, organization or enterprise (each, an “Entity”) then you represent and warrant that you: (i) are an authorized representative of that Entity with the authority to bind such Entity to these Terms; (ii) have read and fully understand these Terms; and (iv) agree to these Terms on behalf of such Entity.
You may be entitled to receive certain records from us or our affiliates in connection with the Terms such as contracts, notices, and other communications. To facilitate your use of the Website and the Service, you give us permission to provide these records to you electronically instead of in paper form.
In order to access and use the Services you may be required to register and create an account (“Account”). When registering to the Services you agree to: (a) provide true, accurate, current, and complete information about yourself (or, if applicable, the Entity you represent) as prompted by the Services’ registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).
You may not authorize any third party (other than, if applicable, the employees, consultants or agents of the Entity you represent) to access or use the Services on your behalf. You are responsible for maintaining the confidentiality of the username and password, and are fully responsible for all activities that occur under your username or password. You shall ensure that you keep your username and password safe and secure to ensure that they are not used by anyone else, and agree to immediately notify us if you have reason to believe that there has been any unauthorized use or access to your username or password, or any other breach of security. We cannot and will not be liable for any loss or damage arising from any unauthorized use of your Account. You shall be solely responsible and liable for any breaches of these Terms arising out of or resulting from use of your username to access the Services.
By providing us with your email address, you agree to receive all required notices electronically, to that email address. From time to time, we or our affiliates will use this email address to send you notifications about product updates and improvements, company news and events, and updates from our community.
3. Scope of Services
The Services may be updated and/or modified from time to time at our sole discretion. These Terms will apply, with any changes required by such updates or modifications, to any future revisions and/or versions of the Services. You hereby acknowledge and agree that in order for us to provide you with the Services we require full access to your data analytics platform(s) and you agree to provide us with such access.
You are not permitted, nor may you allow any third party, to modify, translate, reverse engineer, decompile, disassemble or create derivative works based on the Services, or any portion thereof, or attempt to do any of the above. You will not cause, not permit either through your direct efforts or through any third party, the modification of the Services. You are not permitted, nor may you allow any third party, to copy any part of the Services. You may not sell, rent, lease, sub-lease, lend, redistribute, sublicense or otherwise transfer or allow the use by others of the Services, in whole or in part, on a permanent or temporary basis, whether or not for consideration. You are prohibited from, either by yourself or allowing a third party, using our name, logos, or trademarks in any manner including, without limitation, in your advertising or marketing materials, except if we otherwise explicitly approved in advance and in writing.
You specifically agree that each of the terms and conditions of this section are material and that failure to comply with these terms and conditions will constitute sufficient cause for us, inter alia, to immediately terminate the rights granted to you herein and cease providing you with the Services and block your access to the Services. The presence of this section will not be relevant in determining the materiality of any other provision or breach by either party.
5. Term and Termination
These Terms will continue in effect from the date of your subscription to the Services and shall continue to be in effect until terminate as provided herein or as otherwise explicitly agreed upon between the Parties. These Terms may be terminated by either party for convenience by providing a prior written notice to such effect to the other party at least 14 days prior to such termination. These Terms will automatically terminate if: (1) you fail to comply with these Terms; (2) your business is terminated or suspended; (3) you become insolvent or generally fail to pay, or admit in writing your inability to pay your debts as they become due; (4) you become subject to direct control by a trustee, receiver or any similar authority or (5) you have wound up or liquidated, voluntary or otherwise. In such event, your access username and password to the Services will be blocked and the Services will be unavailable to you. Upon termination of these Terms, any outstanding Fees (as defined below) should be immediately paid by you.
The parties agree that the following sections of these Terms will survive the expiration or termination of these Terms for any reason: Sections 5, 8, 9, 11 and 12.
6. Fees and Taxes
We shall provide the Services upon payment in full of the fees as will be provided in an invoice sent to the e-mail associated with your Account and/or in the form of a paid receipt (as applicable) (the “Fees”). The Fees shall be paid in full upon receipt of invoice but no later than 7 days following receipt of each invoice or in accordance with the billing schedule (if included). If any due Fees are not timely paid, we may immediately cease providing you with the Services however, such termination shall not waive your obligation to pay any such outstanding fees.
If you specified a credit card or direct withdrawal from a bank account as an applicable payment mechanism under these Terms, then you authorize us to charge the credit card or debit the bank account, as applicable, provided to us for all Fees. All Fees will be non-refundable once paid to us (including upon any termination or suspension of these Terms). Until paid in full, all past due Fees will bear an additional charge of 1.5% of the amount owed per month but no more than the maximum amount permitted under applicable law. In addition, any expense incurred by us in collecting any Fees will be promptly reimbursed by you to us. The Fees to be paid to us are exclusive of any deduction or withholding, including any taxes (including VAT if applicable), commissions, duties, fees and tariffs, all of which shall be paid by you. The Fees may be changed by us upon conclusion of each term of these Terms.
7. Grant of Rights and Limitations
Provided that you comply with the terms of these Terms (including, but not limited to the full payment of the Fees), and subject to the Exclusions (as defined below) we hereby grant you the rights to any elements of text, graphics, contents, or reports specifically prepared for you under the Services. For the purpose of this section the term “Exclusions” shall mean the following (a) we retain the right to display all content elements and A/B or MVT tests as examples of our work online and as content features in other projects, including but not limited to conference presentations, webinars and free or paid products; (b) you hereby explicitly allow us to disclose at least the following for the purposes of at least one case study: the process of working with you; information about visitors to your website, your customers and prospects; voice of your customer data gathered during the Services; the process of turning raw data into tests for use on your website pages; the process of setting up the test, including the platform used and the dates in which the tests run; and the test results, including goals, conversion lift, confidence reached and next steps. Notwithstanding subsections (a) and (b) above, we will not disclose information of a private nature without having received your prior consent, including the following data: your traffic volume, your conversion rates and your average order value.
8. Proprietary Rights
Unless otherwise explicitly provided for herein, all rights, title, interest, copyrights and other intellectual property rights in and to the Services (including but not limited to all tools, data, scripts, codes, text, and other information incorporated into the Services or) are vested in and shall remain in our, or our suppliers or licensors. You agree that, other than explicitly provided for herein, you neither own nor acquire any claim or right of ownership to any aspects of the Services or to any related patents, copyrights, trademarks or other intellectual property rights. The Services are protected by the copyright laws and other local and foreign intellectual property laws and international treaties and thus your use of the Services is specifically limited to the use specifically permitted herein.
9. Disclaimer of Warranties and Limitations on Liability
- No Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND WE AND, IF APPLICABLE, OUR SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
WE DO NOT WARRANT THE SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SERVICES WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT THE SERVICES ARE COMPATIBLE WITH ANY OTHER PARTICULAR PLATFORM. WE DO NOT WARRANT THAT THE SERVICES WILL BE WHOLLY FREE FROM DEFECTS, ERRORS AND/OR BUGS OR THAT THE SERVICES WILL BE ENTIRELY SECURE. WE ARE NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SERVICES OR TO FIX ANY FAILURES OF THE SERVICES.
WE DO NOT WARRANT THE RESULTS OF USE OF THE SERVICES, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. YOU SHOULD NOTE THAT IN USING THE SERVICES, DATA WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER OUR CONTROL (SUCH AS A THIRD PARTY SERVERS AND THE INTERNET). WE MAKE NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
- No Liability for Consequential Damages
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES REMAINS WITH YOU. IN NO EVENT SHALL WE OR OUR LICENSORS (IF APPLICABLE) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST OF BUSINESS OR OF OPPORTUNITY, BUSINESS INTERRUPTION, DAMAGE TO ANY PHYSICAL STRUCTURE LOSS OF BUSINESS INFORMATION AND DATA, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO INSTANCE WILL OUR CUMULATIVE LIABILITY EXCEED THE FEES PAID BY YOU TO US OVER THE PRECEDING 6 MONTHS.
- Internet Connection
It is hereby clarified and the parties agree, that the provision of the Services and its quality, are influenced by the nature of the connection to the Internet. Such factors outside of our control and any interruption in the Internet connection such as interruption of information transmission, incorrect transfer of information, unauthorized penetration in the database and any other case beyond the areas where there is internet connection, is not our responsibility. Therefore, you hereby waive any and all claims concerning the limitations of the Services or any part thereof through computers or through the Internet, as a result of any of the above or as a result of disconnections of the communications network and over the Internet and any interruption in the network.
- No Warranties
You have no obligation to give us any suggestions, ideas, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Services. To the extent we receive any Feedback from you, we may use and include any such Feedback to improve the Services or for any other purpose. Accordingly, you hereby irrevocably, exclusively and on a royalty-free basis, assigns, all such Feedback to us and our affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback as it deems fit.
- You agree to defend, indemnify, and hold us, or anyone on our behalf harmless from and against any claims, demands, liabilities, damages, losses, and expenses, including without limitation attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Services; (ii) your violation of these Terms (including negligent or wrongful conduct); or (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.
- We shall provide notice to you of any such claim, provided that the failure or delay by us in providing such notice shall not limit your obligations hereunder. We reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting our defense of such matter.
- You may not settle any claim for which we are entitled to indemnification hereunder without our prior written consent.
These Terms will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law principles. Any disputes relating to these Terms and the use of the Services will be subject to the exclusive jurisdiction of the courts of New York, New York. If any of the terms or conditions of these Terms are deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from these Terms and the remaining terms will continue to apply. If any provision of these Terms is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. These Terms are the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. These Terms may only be modified in writing signed by an authorized officer of us. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services and these Terms or any related matter must be filed within one year after such claim or cause of action arose or be forever barred. You shall not assign these Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without our prior written consent. Any purported assignment or delegation by you without the appropriate prior written consent by us will be null and void. We may assign these Terms or all or any rights hereunder without restriction. These Terms constitute the full and entire understanding and agreement between you and us with regard to the subject matters hereof, and replaces any prior agreement pertaining to the subject matter hereof. No proposal or other form submitted by us will modify, supersede, add to or in any way vary these Terms, unless specifically set forth therein. The heading references herein are for convenience purposes only, do not constitute a part of these Terms and will not be deemed to limit or affect any of the provisions hereof. Our failure of enforcing any right or provision of these Terms, or failure to exercise any option to terminate, will not be deemed a waiver of such right or provision and shall not affect the validity of these Terms or any part thereof, or the right thereafter to enforce each and every provision. Any waiver of any provision of any term in these Terms will be effective only if in writing. Any notice or other communication to be given hereunder will be in writing and given (a) by us via email (in each case to the address that you provide), or (b) by you via email to firstname.lastname@example.org or to such other addresses as we may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.