Terms of Use

 

 

THESE TERMS OF USE CONSTITUTE AN AGREEMENT (“AGREEMENT”) BETWEEN YOU (“YOU” OR “SUBSCRIBER”) AND CLICKTALE INC IF YOU ARE AN ENTITY INCORPORATED UNDER THE LAWS OF THE UNITED STATES OR CLICKTALE LTD IN ANY OTHER CASE (“CLICKTALE”) AND SHALL GOVERN YOUR USE OF THE CLICKTALE SERVICES.   THE AGREEMENT SHALL APPLY TO YOU AND YOUR USE OF THE CLICKTALE SERVICES UNLESS SPECIFICALLY STATED OTHERWISE UNDER A SEPARATE DEFINITIVE CONTRACT ENTERED BETWEEN YOU AND CLICKTALE. 

BY SUBMITTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT AND/OR USING THE SERVICES YOU SIGNIFY THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DOT NOT AGREE TO THE TERMS OF THIS AGREEMENT THEN YOU MAY NOT USE THE SERVICES.  

 

1. SUBSCRIPTION AND ACCOUNT.

Clicktale shall provide you with the Services as set forth in an Order Form. The Order Form shall contain all applicable subscription terms, including ordered Services, subscription period, fees, Page View Limits and any other quantity limits. Unless specifically agreed otherwise by the parties in writing, each Order Form shall become effective only upon its execution by both parties. Each Order Form executed by the parties shall be subject to the terms of this Agreement.

To access and use the Services, you must 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 the activities and the security of your Account. You shall take all necessary steps to protect your Account login and password.  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 in writing immediately upon learning of any unauthorized use or access to of your Account or any other breach of security. 

Clicktale hereby grants you a limited, revocable, non-exclusive, royalty free, non-sublicensable and non-transferable: (i) license to install and implement the Codes on the Supported Pages solely as necessary to use the Services pursuant to the terms of this Agreement and the applicable Order Form; and (ii) right to access and use the Services through the interface provided by Clicktale, in each case solely as specified in the Documentation for your internal business needs. 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. 

You may permit your applicable third party contractors and/or affiliated companies (“Representatives”) to access and use the Services on your behalf solely for your benefit and internal business needs.  Use of, or access to the Services by such Representatives shall not be deemed to modify any of the subscription terms, limitations or restrictions as set forth in an Order Form (including Supported Properties, Page View Limits, etc.).  If you permit your Representatives to access or use the Services pursuant to the foregoing, you will ensure such Representatives comply with the terms of this Agreement and  will remain in any event liable for any acts or omissions of your Representatives in respect of their use of the Services.

 

2. SERVICE LEVELS AND SUPPORT.

Clicktale shall provide you with technical support services (“Support Services”) in accordance with the support level set forth in the Order Form (each level a, “Support Package”).  Clicktale may update the Support Package from time to time, upon prior notice to you, provided that such updates shall not adversely affect the existing support service levels. You will provide Clicktale with sufficient data and assistance with respect to any reported issue, and shall reasonably cooperate with Clicktale in order for Clicktale to comply with its support obligations under the applicable Support Package.

 

3. CONFIDENTIALITY.

"Confidential Information" shall mean any proprietary data and any other information and documentation of a party that: (a) if disclosed in written and/or electronic form, has been marked "confidential" or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection, which is designated as “Confidential,” “Proprietary” or some similar designation; and, (c) should reasonably be recognized as confidential information of the disclosing party due the nature of the information.

Notwithstanding the foregoing, Confidential Information will not include any information or documentation that: (i) was publicly available when received, or thereafter becomes publicly available (other than through any unauthorized disclosure by the receiving party); (ii) was already in the receiving party's possession prior to disclosure by a party without any obligation of confidentiality, as can be reasonably demonstrated by the receiving party; (iii) is obtained from a source other than the disclosing party without an obligation of confidentiality; or (iv) is independently developed by the receiving party, as demonstrated by the receiving party, without the violation, use or reference of disclosing party’s Confidential Information. A party may disclose Confidential Information if legally compelled by a court or other competent authority to disclose Confidential Information, provided that the receiving party gives the disclosing party reasonable prior written notice of such requirement prior to such disclosure and reasonable assistance in obtaining an order protecting the information from disclosure and discloses only such minimal portion of the Confidential Information required to be disclosed.  For purposes of this Agreement, Subscriber Data shall be deemed to be Confidential Information.

The parties agree to hold all Confidential Information disclosed by the other party hereto in strict confidence and not to disclose such Confidential Information to third parties other than affiliates, employees, agents, consultants or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement.  The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential, the foregoing notwithstanding, the receiving party shall remain liable for any breach thereof by its respective employees, agents, and subcontractors.  Each party agrees to treat the Confidential Information it receives with the same degree of care as it treats its own Confidential Information and in any event no less than a reasonable degree of care.

Each party shall advise the other party immediately in the event it learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and it will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages.  Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings.

Upon termination of this Agreement, in whole or in part, each party shall, within thirty (30) calendar days from the date of termination, return or destroy all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession.

The provisions of this Section ‎4 shall survive the expiration or termination of the Agreement for a period of five years except that (i) any trade secrets (including, but not limited to source codes, technology, algorithms, and protocols) shall be deemed and treated as Confidential Information for as long as such information continues to be protectable as trade secret information under applicable law; and (ii) Visitor Data shall continue to be treated as Confidential Information indefinitely.

 

4. PRIVACY.

You agree that you will not use the Service to collect any Restricted Personal Data unless Clicktale has provided its explicit written consent to such collection.  For such purpose, you will implement the appropriate blocking Codes on such areas of the Supported Pages where Restricted Personal Data may be inserted by a Visitor (e.g., through keystrokes) or displayed (e.g., prefilled, data within the HTML). If it becomes known to either party that Restricted Personal Data has been collected or is being displayed through the Service, then, without limiting any of the rights or remedies available to a party under this Agreement or under applicable law, the parties agree to cooperate in good faith to delete any such Restricted Personal Data from the Service.  It is hereby clarified that if Restricted Personal Data is required to be removed pursuant to this Section and it is not commercially reasonable or technically feasible to delete only the Restricted Personal Data (as shall be determined by Clicktale), other Subscriber Data collected may be deleted in the process.

Clicktale agrees to: (i) comply with applicable data protection and privacy laws and regulations; and (ii) maintain a data privacy and information security program, that includes appropriate physical, technical, administrative, and organizational safeguards, designed to: (a) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (b) protect against unauthorized disclosure, alteration, access to, or use of the Subscriber Data; (c) ensure the proper disposal of Subscriber Data; and, (d) ensure that all employees, agents, and subcontractors, if any, comply with all of the foregoing.

You: (i) agree to provide appropriate notice to Visitors (e.g. privacy policy conspicuously posted on the Supported Pages) that clearly and accurately discloses your privacy practices (including how data is collected and used; (ii) warrant that you have a valid lawful basis to collect and enable the processing of Subscriber Data pursuant to the terms of this Agreement; and (iii) shall comply with applicable data protection and privacy laws and regulations including, where required by law, obtaining appropriate consent from Visitors.

In respect of the processing of any Personal Data as defined under the General Data Protection Regulation - (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the “GDPR”), the parties agree that the terms of the Data Processing Addendum provided here (including the Standard Contractual Clauses as defined therein) (“DPA”) shall apply to the extent Personal Data originated from the European Economic Area, Switzerland or the United Kingdom may be processed under this Agreement. If applicable, each party agrees to comply with the terms of the DPA.  The DPA shall be incorporated into this Agreement by reference.  Your acceptance of this Agreement and/or any Order Form shall be deemed as execution of the DPA and the Standard Contractual Clauses attached thereto.

 

5. SUBSCRIBER DATA.

Subscriber Data is and shall remain the sole and exclusive property of you and all right, title, and interest in the same is reserved by you. Subject to the terms of the Agreement, you grant Clicktale a limited, royalty free license to process Subscriber Data solely for the purpose of providing the Services pursuant to the terms of this Agreement. Notwithstanding the foregoing, Clicktale may generate and use Anonymous Aggregated Data for the purpose of researching, improving and marketing the Clicktale services and technologies. Anonymous Aggregated Data shall in no way reveal your identity or any other individual. Subscriber Data collected in connection with your use of the Services shall be retained by Clicktale for analysis through the Service for the data retention period specified in the applicable Order Form. Following the applicable data retention period, Subscriber Data shall no longer be available for analysis and shall be deleted. 

 

6. DATA SECURITY.

Clicktale designates a fully-qualified employee to coordinate with you and provide to you, as needed, all information reasonably requested in writing by you concerning the processing, storage and protection of your Confidential Information.

Clicktale maintains a written data information security program, that includes appropriate physical, technical, administrative, and organizational safeguards and other security measures that are industry standard and commensurate with the nature of your Confidential Information processed by Clicktale (the “Subscriber Confidential Information” and “Information Security Program” respectively). Clicktale’s Information Security Program includes regular training of its personnel on those policies, hiring and exit procedures, including regular risk assessment of the risks to the security of Subscriber Confidential Information, and shall be updated as necessary with changes in any applicable law.

Clicktale implements appropriate physical, technical and organizational measures to ensure a level of security appropriate to the risk presented by processing Subscriber Confidential Information, in particular from unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Subscriber Confidential Information transmitted, stored or otherwise processed (“Security Breach”), including, inter alia, as appropriate: (a) implementation of reasonable and sufficient physical barriers and controls to prevent unauthorized physical access to, or compromise of Subscriber Confidential Information by human or environmental causes; (b) ensuring that only those authorized Clicktale representatives  gain access to the Subscriber Confidential Information, and taking commercially reasonable steps to prevent unauthorized access to, or destruction, alteration or loss of any Subscriber Confidential Information; and (c) maintaining a secure processing environment for Subscriber Confidential Information, which includes: (i) timely application of anti-virus updates, system patches, fixes and updates to all operating systems and applications, the implementation of firewalls and other similar measures designed to ensure the confidentiality, integrity, and availability of Subscriber Confidential Information; (ii) encryption of all Subscriber Confidential Information at all times in transit and at rest, using and deploying a commercially acceptable encryption solution with no less than a 128-bit key for symmetric encryption and a 2048 (or larger) bit key length for asymmetric encryption; and (iii) secure email (SMTP/TLS) for all Clicktale domains.

Clicktale maintains a business continuity plan so that Subscriber Confidential Information is protected and in the event of a disruption to, or loss of data or Services, delivery of Services and access to Subscriber Confidential Information are restored and continue at the applicable service levels. The plan is being reviewed and approved by management level and tested periodically.

If at any time Clicktale determines that any individual or entity has attempted to circumvent or has circumvented the security of any computer, system, or device containing Subscriber Confidential Information, or that there has been a Security Breach (each an “Incident”), Clicktale shall: (a) immediately terminate any unauthorized access and promptly notify you in writing of such Incident; (b) promptly investigate and take reasonable steps to remediate the Incident; and (c) cooperate with your investigation  and provide documentation and assistance as may reasonably be requested by you.

Upon written request, and no more than once per each calendar year, Clicktale shall respond to your reasonable information security questionnaire (“Security Questionnaire”). Each calendar year, Clicktale shall engage an appropriately-recognized accreditor to conduct an audit in accordance with ISO 27001, ISO 27018, SSAE 16/SOC2 Type II, or other similarly-recognized standards (a “Data Protection Controls Audit”). Clicktale shall cooperate with you and, upon reasonable prior notice to Clicktale (no less than 14 days), you may conduct periodic security scans and audits of Clicktale’s systems holding or containing any Subscriber Confidential Information, using a third party scanning provider (under confidentiality obligations no less strict than the obligations of Subscriber under this Agreement) or software, to verify that all necessary security measures have been implemented and are functioning properly (in any event no more than once per each calendar year, unless a failure is found; a “Technology Security Audit”). Clicktale shall promptly address all critical deficiencies, concerns or recommendations arising out of any Security Questionnaire, Data Protection Controls Audit, or Technology Security Audit (each a “Security Audit”). If, as a result of any Security Audit, you reasonably deem Clicktale’s security measures insufficient, then promptly following your written request, a senior Clicktale executive shall meet with your representative to discuss the matter in good faith until its conclusion.

 

7. BILLING.

You are responsible for and shall pay to Clicktale all Service fees and any other fees due under an Order Form pursuant to the terms and conditions contained in this Agreement and such Order Form.  Any sum due to Clicktale for the Services for which payment is not otherwise specified in an Order Form shall be due and payable thirty (30) days after receipt by you of an invoice from Clicktale.  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 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. 

Any terms and conditions that may be included in your purchase order shall be deemed to be solely for the convenience and no such term or condition shall be binding upon the parties.

 

8. INDEMNIFICATION.

Clicktale agrees to indemnify, defend, and hold you and your officers, directors, agents, and employees harmless from and against any and all damages, losses, expenses, and fines (including reasonable attorneys’ fees, costs, and expenses) (“Damages”) awarded against you by a court of competent jurisdiction or otherwise agreed in a settlement (subject to the indemnification procedure set forth below), in connection with a claim by a third party (“Claim”) that the Service infringes any United States patent, copyright, trade secret, trademark, or other proprietary right.  If any Claims of infringement arise, Clicktale shall have the right at its sole option and expense to (a) obtain for you the right to continue using such Service; (b) replace or modify such Service so that they do not infringe upon or misappropriate such proprietary right and is free to be used by you; or, (c) terminate this Agreement and refund you any prepaid fees on a pro rata basis.   For the avoidance of doubt, Clicktale shall have no obligation to defend or indemnify any infringement Claim pursuant to this Section that arises from or relates to: (i) a combination of the Service with third party products, components, processes or materials that are not authorized in writing by Clicktale; (ii) your breach of the terms and conditions of the Agreement; or (iii) use of the Service in a manner inconsistent with the Documentation.

You agree to indemnify, hold harmless and defend Clicktale, at your expense, any and all Claims brought against Clicktale or any of its officers, directors, employees, agents or affiliates, and all related  Damages 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.

If a party is entitled to indemnification pursuant to this Agreement (the “Indemnified Party”), the Indemnified Party shall give the other party (the “Indemnifying Party”) prompt written notice and provide the Indemnifying Party, at its option, control the defense against the Claim. If the Indemnifying Party elects to defend the action, the Indemnifying Party will be obligated to defend the Claim, at its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall reasonably cooperate with the Indemnifying Party and its counsel in the Claim’s defense, at the request and expense of the Indemnifying Party, and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such Claim. Any compromise or settlement of a Claim shall require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.

The indemnification obligations specified in this Section 8 are the Indemnifying Party’s sole and exclusive obligations and the Indemnified Party’s sole and exclusive remedy with respect to any claims subject to indemnity.

9. WARRANTIES AND DISCLAIMER OF WARRANTIES.

Each of you and Clicktale represent and warrant that (i) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation; (ii) it has all requisite corporate power, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles; and, (iv) it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits, consents and licenses required of it in connection with its obligations under this Agreement.

Clicktale represents and warrants that (i) the Services and any other work performed by Clicktale hereunder shall not infringe upon any copyright, patent, trade secret, or other proprietary right; (ii) it has the expertise to perform the Services in a competent, workmanlike, and professional manner; and (iii) it will not knowingly introduce any computer viruses, malware, or similar malicious software (“Viruses”) into your computing and network environment and shall take reasonable steps to ensure such Viruses are not introduced through the Services.

 

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW THE SERVICES ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY CLICKTALE, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO CLICKTALE’S UNDERTAKINGS UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO THE SERVICES, 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 SERVICES WILL 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.  

 

10. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW NEITHER PARTYWILL 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 OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

IN ANY EVENT CLICKTALE’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS AND/OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS RELATING TO THIS AGREEMENT AND ITS PERFORMANCE THEREOF SHALL NOT EXCEED THE AMOUNT PAID BY YOU DURING THE 12 MONTHS PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM UNDER THE APPLICABLE ORDER FORM.

 

11. PROPRIETARY RIGHTS NOTICE.

Clicktale and its licensors retain ownership of all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in, the Service and Codes, and in any part thereof including any updates, enhancements, derivatives, modifications or improvements made to them (“Clicktale Property”). All rights in and to Clicktale Property 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) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, transfer or distribute the Clicktale Property, or any part thereof, to any third party, or use and/or allow for the use the Clicktale Property in any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with security-related features of the Clicktale Property or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Clicktale Property; (iii) reverse engineer, decompile or disassemble the Clicktale Property or any components thereof; (iv) modify, translate, patch, alter, change or create any derivative works of the Clicktale Property, or any part thereof; (v) use any robot, spider, scraper, or other automated means to access the Service for any purpose; (vi) upload any Viruses to the Services or otherwise interfere or attempt to interfere with the integrity or proper working of the Service; and (vii) remove, deface, obscure, or alter Clicktale's or any third party's copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Services.. 

All Subscriber Confidential Information, Subscriber Data and the Reports (except the underlying technology, template forms and designs of the Reports) created, and/or compiled in performance of the Service is your sole and exclusive property.  

 

12. THIRD PARTIES.

Clicktale may, from time to time, provide certain capabilities designed to enable integration or interoperation with certain third party software (“Integrations”). It is hereby clarified that use by you of any third party software shall be governed by a separate agreement between you and the relevant third party software provider. you acknowledge and agree that the third party software provider or Clicktale (as the case may be) may need to access or receive data and information from your relevant Clicktale or third party software account to enable the Integration. You further acknowledge and agree that all Integrations are provided to the extent supported and enabled by the relevant third party software provider and that Clicktale shall have no liability with respect to your use of or inability to use such Integrations.

If you are an agency or otherwise providing services for the benefit of a third party (“Third Party”), you represent and warrant that (i) you are authorized to act on behalf of the Third Party, and (ii) collect and view content belonging to the Third Party in connection with your use of the Services.  You shall ensure that each Third Party agrees to comply with the terms of this Agreement, provided however, that you shall remain liable for any acts, omissions or breaches of this Agreement by such Third Party.

If Clicktale uses any third-party service or product (“Third Party Provider”) in support of the Services, Clicktale shall ensure such Third Party Provider’s compliance with the terms of this Agreement and Clicktale shall remain liable for any acts, omissions or breaches of this Agreement by such Third Party Provider.

 

13. TERM AND TERMINATION.

This Agreement shall be in force until your subscription expires or is terminated pursuant to the terms herein or under the applicable Order Form. Each subscription under an Order Form shall commence on the Start Date and end on the End Date (unless earlier terminated or renewed pursuant to the terms of the Agreement and unless as otherwise set forth in the applicable Order Form).

Unless otherwise specified in the Order Form, at the end of the subscription period specified in the applicable Order Form, your subscription will be automatically renewed for the same subscription period of the expiring Order Form unless you provide Clicktale with written notice of your intention not to renew the Order Form at least 30 days prior to the end of the then applicable subscription period. Except if otherwise specified in an Order Form, the fees for each unit of pricing during any such automatic renewed subscription period may be increased by up to seven percent of the applicable fees in the immediately prior subscription period.

If either party materially breaches any of its duties or obligations hereunder and such breach is not cured within thirty (30) calendar days after written notice of the breach, the non‑breaching party may terminate this Agreement or an Order Form for cause as of a date specified in such notice.

Upon the termination of this Agreement or an Order Form, you shall pay to Clicktale all amounts due and payable pursuant to an Order Form, if any, and if terminated by you for cause pursuant to this Agreement, Clicktale shall refund you all prepaid amounts on a pro rata basis with respect to the period as of the termination effective date and the End Date set forth under the Order Form.  Except as specified in this Section or in an applicable Order-Form, all fees are non-cancelable and non-refundable.

 

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. 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.

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.

This Agreement shall be governed by and construed under the laws of the State of New York USA without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in New York, New York, USA.

Any notices to Clicktale must be sent to: Clicktale Ltd., 2 Jabotinsky St., Ramat-Gan, 5250501, 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.

 

16. DEFINITIONS.

"Account" means the user account setup for the purpose of accessing and using the Services in accordance with this Agreement. 

Anonymous Aggregated Data” means information derived from the aggregation of Subscriber Data with other data or from use of the Services that has been anonymized in such a manner that it is not identifiable in any way to any person or entity (including you).

"Codes" means any tags, SDKs, APIs, JavaScript or other codes provided by Clicktale to you for the purpose of (i) collecting Subscriber Data, or (ii) using the Service and any of its features or functionalities, including, without limitation, for the blocking of Restricted Personal Data. 

"Documentation" means any accompanying proprietary documentation made available to you by Clicktale whether available online or otherwise. 

"Order Form" means any ordering form, proposal or other document (whether provided to you through an online or offline format) describing the purchased Services.

"Page View" means a single view of your Supported Pages by a Visitor.  Any visitor-interaction-triggered dynamic elements or other web technology that causes a change in the content of the page even if not the actual URL of the webpage, may also be counted as a Page View.

"Report" means the various analysis reports and heatmaps available to you displaying Subscriber Data generated through the Service.

Restricted Personal Data" means any information that identifies or can be used to identify, contact, or locate specific individual  including, without limitation, full name, physical address, telephone number, fax number, email address, financial information (including, bank account numbers, credit or debit card information, PINs, or information regulated under the GLBA), health information (including any health insurance information or information regulated under HIPAA), government issued IDs (including driver’s license number, passport number, national ID number, TIN or EIN number, social security number), medical information, biometric or genetic information, information regarding children (e.g. under the age of 16 or information subject to the Children Online Privacy Protection Act) and any information defined as ‘Special Categories of Data’ under Article 9 of the GDPR. For the purpose of this Agreement, Restricted Personal Data shall not include IP address and other unique identifiers such as cookie IDs.

Service” means the software services, deployment services, support services, consulting, training or other ancillary services provided to you by Clicktale .  

"Subscriber Data" means: (a) all text, images and other materials (e.g., contents of a webpage) that is collected or received by Clicktale in connection with your use of the Services; and (b) the data relating to a Visitor collected or received by Clicktale in connection with your use of the Service including (i) such technical information of a Visitors system (e.g., OS, IP, Screen Resolution, Time Zone), (ii) information related to a Visitor’s activity on your Supported Pages (e.g., mouse clicks, scroll moves, clicks, taps, browsed pages), and (iii) without derogating from Section ‎5 (“Privacy”), Restricted Personal Data. 

Supported Page(s)” means such webpages or app screens/pages owned and controlled by you that you have identified, through implementation of the Codes, as webpages or app screens/pages you wishes to have analyzed by the Services.

 “Visitor” means a visitor of your Supported Pages.