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Updated November 10, 2013
- Removal of redundant terms;
- Consolidation of certain terms into specific sections (e.g. privacy);
- Addition of terms specifically for free account users; and
- Other cosmetic changes including modification of the general language used throughout the agreement to ensure further clarity.
THE FOLLOWING TERMS AND CONDITIONS IS AN AGREEMENT (“AGREEMENT”) BETWEEN YOU AND CLICKTALE LTD. (“CLICKTALE”) AND SHALL GOVERN YOUR USE OF THE CLICKTALE SERVICES. THE AGREEMENT SHALL APPLY TO YOU WHETHER YOU HAVE PURCHASED A SUBSCRIPTION OR ARE USING THE SERVICES UNDER A FREE SUBSCRIPTION PLAN.
"Account" means the account setup for the purpose of accessing and using the Services pursuant to your Subscription Plan.
"CTC" means the proprietary ClickTale code, which is installed on a web page for the purpose of collecting Customer Data, including any fixes, updates and upgrades thereto.
"Customer Data" means the data concerning the characteristics and activities of visitors to your website that is collected through use of the Services.
"Documentation" means any accompanying proprietary documentation made available to you by ClickTale whether available online or otherwise.
"Order Form" means any ordering form, or document (whether provided to you through an online or offline format) specifying your Subscription Plan (and including the online registration form for the free Subscription Plan).
“Personally Identifiable Information" or “PII” means any information that identifies or can be used to identify, contact, or locate the person to whom such information pertains including, without limitation, full name, physical address, telephone number, fax number, email address, password, personal profile information, biometric information, information regarding a visitor's state of health, economic condition, financial information such as credit card details, checking, social security number or other government-issued identifier, banking, or any other payment information.
"Recording" means the recording of your Website visitor’s interaction with your Website.
"Report" means the various analysis reports and heatmaps available to you pursuant to your Subscription Plan.
“Service” means the services, software and/or products provided by ClickTale through its website www.clicktale.com or any other Website operated by ClickTale and including, without limitation, the CTC, Reports, Recordings and Documentation.
"Subscription Plan" means the various subscription plans offered by ClickTale for use of the Services, including the free plan.
2. SUBCRIPTION AND ACCOUNT.
To access and use the Services, you must choose an appropriate Subscription Plan and set up an Account. When setting up your Account you must provide current, complete and accurate information. You will at all times be responsible for maintaining the security of your Account. You shall take all necessary steps to protect your Account password from disclosure. You are fully responsible for your own and third party use of your Account. ClickTale will not be liable for any loss and/or damage resulting from your failure to comply with this section. You agree to notify ClickTale immediately upon learning of any unauthorized use of your Account or any other breach of security.
3. NON EXCLUSIVE LICENSE.
ClickTale hereby grants you a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the CTC solely as necessary to use the Services for one or more web pages or domains that you own and/or control (collectively, the "Website") pursuant to your Subscription Plan and the terms of this Agreement. You agree that you will not, nor will you allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Services; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Services; (iii) rent, lease, sell, assign, sublicense or otherwise transfer rights in the Services; (iv) remove any proprietary notices or labels on the Services or placed by the Services; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; or (vi) use the Services for illegal purposes.
You will use the Services solely for your own internal use, and will not (i) make the Services available for timesharing, application service provider or service bureau use; (ii) use the Services outside of the scope of the license granted hereunder; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; and/or (iv) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs. You will comply with all applicable laws and regulations in your use of and access to the Services.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of your password(s) and username(s) issued to you by ClickTale, and for any use or misuse of your account resulting from any third party using a password or username issued to you.
ClickTale strictly prohibits you from using the Services to collect, track or record any Personally Identifiable Information. You must identify and are solely responsible for identifying (i) all areas on your Website where prefilled Personally Identifiable Information may be displayed; and (ii) all fields where Personally Identifiable Information may be entered (collectively, the “PII Areas”). You must not allow the collection of any data from such PII Areas. For more information on how to block the recording, tracking or collection of any Personally Identifiable Information by the Services please see: http://wiki.clicktale.com/Article/Sensitive_data . Without limiting your obligations pursuant to this section, ClickTale may implement, at any time, certain processes, features, functionalities or technologies to limit your ability to record Personally Identifiable Information, including, without limitation, by disabling and/or limiting any recording of keystrokes entered on your Website and/or adding certain controls, terms or processes in cases where keystroke recording is permitted. In any event if keystroke recording is activated for your Account, You hereby acknowledge and agree that you shall only enable the Recording of keystrokes from fields or areas that do not contain Personally Identifiable Information.
6. CUSTOMER DATA.
ClickTale will not use or disclose your Customer Data to any third parties except (i) if required in limited circumstances, including, when complying with legal requirements, preventing fraud or imminent harm, and ensuring the security of our network and services; (ii) if it is part of aggregated, non-personal information, such as average page load time, or the number of pages processed by our system per day; or (iii) to a limited number of ClickTale employees or contractors as required to operate, develop or improve the Services.
If you sign up for a pay Subscription Plan you shall pay ClickTale the fees for your Subscription Plan (the “Subscription Plan Fees”) in advance unless otherwise explicitly specified in your Order Form. Any fees unpaid by you by the due date shall thereafter bear interest at the rate of one and half percent (1.5%) per month (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid.
All amounts owed to ClickTale are non-cancellable and fees paid are non-refundable except as explicitly stated otherwise in writing.
ClickTale may use various billing service providers. When using such provider’s services, you agree to follow and comply with the policies of such provider.
All fees payable hereunder, do not include local, state, or federal sales, use, excise, personal property, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by you. For the avoidance of doubt, you shall not be responsible for any payment of taxes based on ClickTale’s net income.
You agree to indemnify, hold harmless and defend ClickTale, at your expense, any and all third-party claims, actions, proceedings, and suits brought against ClickTale or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by ClickTale or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Services, or (iii) your violations of applicable laws, rules or regulations in connection with the Services. In such a case, ClickTale will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. ClickTale reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
9. THIRD PARTIES.
If you are an agency or a party representing a third party (“Third Party”), you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, that Third Party (and upon our request shall provide evidence of such).
You further represent and warrant that such Third Party has provided you with explicit permission to collect on its behalf and view its Customer Data and that you shall use such Customer Data strictly in accordance with the permissions provided to you by such Third Party and the terms of this Agreement.
You shall ensure that each Third Party agrees to the terms of this Agreement and agrees to abide by its terms, including without limitation, Section 5 (Privacy). You acknowledge and agree that (i) ClickTale makes no representations or warranties for the direct or indirect benefit of any Third Party and (ii) that you will not make any representations or warranties to such Third Party on behalf of ClickTale. You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to ClickTale, the Services, or use thereof. You agree to indemnify, hold harmless and defend ClickTale, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against ClickTale or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by ClickTale, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Services to a Third Party; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Services; (c) violations of your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of a Third Party in connection with the Services.
10. WARRANTIES AND DISCLAIMER OF WARRANTIES.
You represent and warrant that: (a) You have the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; and (b) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which you are bound.
The Services (including, without limitation, any information, features or functionality contained therein), may include inaccuracies or typographical errors. ClickTale and/or its respective suppliers may make improvements and/or changes in the Services at any time, with or without notice. You specifically agree that ClickTale shall not be responsible for unauthorized access to or alteration of the Customer Data or data from your Website.
ClickTale does not guarantee the Services will be operable at all times including, without limitation, during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond ClickTale's control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where ClickTale or your servers are located or co-located. Complete accuracy in all aspects of your Recordings or Reports at all times also is not guaranteed.
THE SERVICES ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY CLICKTALE, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. CLICKTALE DOES NOT WARRANT THAT THE SERVICESWILL MEET YOUR NEEDS OR BE FREE FROM ERRORS OR VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY.
CLICKTALE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF CLICKTALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
IN ANY EVENT CLICKTALE’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE FOR 1 MONTH PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
12. PROPRIETARY RIGHTS NOTICE.
The Services (including any derivatives and enhancements) and all intellectual property rights in the Services are, and shall remain, the property of ClickTale. All rights in and to the Services not expressly granted to you in this Agreement are hereby expressly reserved and retained by ClickTale and its licensors without restriction, including, without limitation, ClickTale’s right to sole ownership of its logos, trademarks, trade secrets, databases, reports, and Website.
You agree not to (and not to allow any third party to): (i) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of ClickTale; (ii) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with ClickTale other than in the name of ClickTale; or (iii) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services.
13. TERM and TERMINATION.
This Agreement shall be in force until your subscription expires or is terminated pursuant to the terms herein.
At the end of the subscription period specified in your Subscription Plan, your Subscription Plan will be automatically renewed unless otherwise explicitly stated in an Order Form or if terminated pursuant to the terms herein.
If you wish to terminate your subscription prior to the renewal of your Subscription Plan then you may do so by contacting ClickTale for Account cancellation.
When you cancel your subscription, your Subscription Plan will remain active during the then current subscription period specified in your Subscription Plan, but your Subscription Plan will not thereafter be renewed.
ClickTale, in its sole discretion, has the right to suspend or terminate your subscription and refuse any and all current or future use of the Services at any time as a result of your breach of this Agreement or for any other reason.
Upon any termination or expiration of this Agreement, ClickTale will cease providing the Services to you, and you will delete all copies of ClickTale's CTC code from all web pages under your control and certify thereto in writing to ClickTale within three (3) business days of such termination. In the event of any termination (a) you will not be entitled to any refunds of any usage fees or any other fees (except as explicitly otherwise provided in writing), and (b) any (i) outstanding balance through the date of termination, and (ii) other unpaid payment obligations will be immediately due and payable in full and (c) all of your Reports, Recordings, Customer Data and other data associated with your Account will no longer be available to you.
14. MODIFICATIONS TO AGREEMENT AND SERVICE.
ClickTale reserves the right to modify the terms of this Agreement from time to time. You are therefore encouraged to regularly review the Agreement.
ClickTale may, from time to time, update or make certain modifications to the Services, including, without limitation, removing certain functionalities, changing the layout or adding new features that augment or enhance the current Services (“Updates”). It is hereby clarified that any such Updates, including the release of new tools and resources, shall be subject to the terms of this Agreement. Continued use of the Services after any such Updates shall constitute your consent to such Updates. You can review the most current version of this Agreement at any time at: http://www.clicktale.com/terms-use.
15. SERVICE UPGRADES AND DOWNGRADES.
Any downgrade to your Subscription Plan will take effect at the end of the current subscription period specified in your Subscription Plan. Any Subscription Plan upgrades take effect immediately. Downgrading the Service may cause loss of Customer Data, features, Reports, Recordings, or other data associated with your Account for which ClickTale is not liable.
16. GENERAL CONDITIONS.
Technical support may be provided to customers depending on their Subscription Plan. If the Subscription Plan specifies Technical Support, Account Management (or similar) in general terms it shall mean that ClickTale will use commercially reasonable efforts to provide technical assistance or account management under this agreement, but does not guarantee that all problems will be solved or that any item will be error-free. Additionally, all such support or account management shall be provided only during ClickTale business hours.
You understand that the technical processing and transmission of the Services, including your Customer Data, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
ClickTale technical staff may instruct you, from time to time, to perform modifications to the CTC installed in your Website. You agree to cooperate and perform any required modifications.
You authorize ClickTale to use your company name, logo or other applicable trademarks, at any time, for the purpose of referencing you as a customer on the ClickTale Website or in other promotional marketing materials. If you do not wish to be referenced please contact ClickTale at firstname.lastname@example.org.
18. ADDITIONAL TERMS FOR FREE SUBSCRIPTION PLANS AND ACCOUNTS.
Without derogating from and in addition to the terms specified in this Agreement, the following shall apply to all free Subscription Plans:
ClickTale may offer, from time to time, a free Subscription Plan for the intention of enabling you to evaluate the Services. Such free Subscription Plan may not provide the full functionality of the Services as available with the various paid Subscription Plans. You acknowledge and agree that ClickTale shall have the full right and authority to cease providing the free Subscription Plan to you, at any time, and for any reason, or for no reason, and to make any modifications to or remove any features and functionalities of the Service, including, without limitation, limiting the amount of Recordings available or stored during any given period and/or ceasing to provide certain reports, heatmaps, or any other functionality or features available through the Service. ClickTale does not guarantee storage of Customer Data. Storage space allocated to you may be changed and is subject to the amount of available space. ClickTale shall not be responsible for or liable to you or any third party for any loss of data, including Recordings, Reports, analysis, heatmaps or Customer Data resulting from such cessation or modification of the free Subscription Plan. You are strictly prohibited from recording the same domain in more than one free Account. Furthermore, any technical support or account management shall be provided (if at all) in ClickTale’s sole discretion.
Without derogating from ClickTale’s termination rights pursuant to this Agreement, it is hereby clarified that if you have registered for a free Subscription Plan and have not accessed the Services or performed any activity within the Services for a period of 90 days, ClickTale may terminate your subscription, cease any further Recordings and/or permanently remove your Account including, any Reports, Recordings, Customer Data or other data associated with your Account with or without any prior notice and without any liability to ClickTale.
19. MISCELLANEOUS; APPLICABLE LAW AND VENUE.
ClickTale shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
This Agreement shall be governed by and construed under the laws of the State of Israel without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Tel-Aviv, Israel.
Any notices to ClickTale must be sent to: ClickTale Ltd., 2 Shoham St., Ramat-Gan, 52521, Israel, via first class or air mail or overnight courier, and are deemed given upon receipt. The failure of ClickTale to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
You may not assign or otherwise transfer any of your rights hereunder without ClickTale's prior written consent, and any such attempt is void. ClickTale may freely assign its rights under this Agreement. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
The relationship between ClickTale and you is not one of a legal partnership relationship, but is one of independent contractors.