Terms of use on Standard Integration

Terms & Conditions – Visitor Analytics (“Service Terms”)

Terms of use

1. Contracting Parties and Structure of these Service Terms

1.1 The business customer of the Services (“Customer” or “Customer”) is entering into a service contract (“Contract”) Visitor Analytics SRL, Cluj-Napoca, GĂRII Street, No. 21, Cluj County, Romania, registered under the Trade Registry Number J12/3835/2016 and sole identification number RO36665706, (“Visitor Analytics“; Visitor Analytics and Customer together the “Parties” and each a “Party”).

1.2 Visitor Analytics only contracts with Customers that are businesses within the meaning of Article 3 NCC (Romanian Civil Code), i.e. individuals or legal entities that act only in connection with their business or self-employed activity.

1.3 The Contract consists of the Online Order Form filled in by Customer on the Visitor Analytics website (“Website”), these Service Terms and the Data Processing Agreement (“Contract”).

2. Definitions

“Contract” as defined under Section 1. Contracting Parties and Structure of these Service Terms.

“Customer(s)” refers to Visitor Analytics’ customer(s) who have integrated the Services on their website.

“Customer Website” refers to the Customer’s website on which Services   (if ordered) are used.

“Dashboard” refers to the web-based statistics dashboards featuring charts, graphs and maps that are available for most features of the Services.

“DPA” refers to the Data Processing Agreement Data Processing Agreement to these Service Terms and on our website.

“Online Order Form” as defined under Section 3 Conclusion of the Contract of these Service Terms.

“Personal Data” refers to any information relating to an identified or identifiable individual.

“Personal Use Data” refers to Personal Data collected by the Services from Visitors, Customers, Customers’ employees/authorized persons, or Visitor Analytics’ employees/authorized Personnel upon input or automatically.

“Premium Plan” refers to the pricing plans described under Section 19 Description of Services and Prices.

“Premium Plan Switching” refers to the change of a Premium Plan to another one or from one payment cycle to another.

“Services” as defined under Section 5 Services of these Service Terms. 

“Statistics Data” refers to the Personal Use Data and anonymous Website use data collected by specific features of the Services and made available to the Customer via the web-based Dashboard.

“Subprocessor” refers to any Subprocessor engaged by Visitor Analytics or by any other subprocessor of Visitor Analytics.

“Term” refers to the period of time during which the Customer may use the Services.

“Visitor(s)” refers to Visitor Analytics’ customers’ visitors that use the Customer Website.

“Website” refers to Visitor Analytics’ website under https://www.visitor-analytics.io/. 

3. Conclusion of the Contract

The content on the Website is not a binding offer. By registering online (https://app.visitor-analytics.io/register) on the Website, Customer sends a binding offer (“Online Order Form”) to enter into a contract with Visitor Analytics. Upon receipt of Customer’s registration data via the Website, Visitor Analytics will validate Customer’s e-mail address. If the validation was successful, Visitor Analytics will send Customer an e-mail that also contains these Service Terms. This e-mail constitutes the acceptance of the Customer’s offer and the conclusion of the Contract.

 

4. Services of these Service Terms

4.1 The Services provided during the Term under this Contract are listed and described [here] (“Services”). The concrete Services available depend on the Customer’s subscription. Please note that in some cases not all the described Services and/or particular features of the Services will be available from the start of the Initial Term. Any changes to Services made available by Visitor Analytics during the Term are subject to section 10 Changes to the Services and to the Contract. 

4.2 The Services may be integrated into the Customer Website upon registration from Visitor Analytics’ Website on  https://app.visitor-analytics.io/register and can be used on computers, laptops and mobile devices.

5. Use Rights of the Services

5.1 Subject to the conditions and limitations contained in the Contract, on or immediately after commencement of the Contract, Visitor Analytics hereby grants a non-exclusive, limited, non-transferable, sublicensable right to access and use during the Term of the Contract the Services online, internally for the purposes of the Contract, above all to gather and save Personal Use Data from the Customer Website using cookies, tracking code and/or other technologies for the purpose of e. g. measuring and recording (if ordered) the interactions of the Visitors. Customer shall not copy or otherwise reproduce the Services or parts thereof, except as required technically to use the Services online.

5.2 Subject to the foregoing, Customer hereby grants to Visitor Analytics and its subcontractors a non-exclusive, non-transferable right and license to use the Customer’s brand and content during the Term of the Contract and maximum three (3) months after termination of the Contact for the limited purposes of performing Visitor Analytics’ obligations under this Contract.

5.3 Subject to the rights granted in the Contract, Visitor Analytics retains all right, title and interest in and to the Services and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by the Contract. Customer further acknowledges that Visitor Analytics retains the right to use the foregoing for any purpose in Visitor Analytics’ sole discretion.

6. Term of the Contract

6.1 The Initial Term of the Contract shall start with its conclusion and lasts:

a. until the end of a subscription following the conclusion of the Contract (“Initial Term”)

b. until the Customer Website is removed from the Services 

c. until the account is deleted

6.2 After the Initial Term, the Contract shall automatically extend for additional one (1) month period in case of subscription to a monthly Premium Plan and for additional twelve (12) months in case of subscription for a yearly Premium Plan, unless terminated by either Visitor Analytics or Customer. Termination is possible at any time for Customer.

6.3 The right of the Parties to terminate the Contract for cause remains unaffected. Cause is given, for example, if a Party materially violates its obligations under the Contract despite a notice by the other Party to cease the violation within a reasonable period of time, or in case insolvency proceedings are initiated with respect to the other Party’s assets.

6.4 The Contract will be cancelled automatically without further notice if Customer is in default with payment of the subscription fees for the selected Premium Plan for more than five (5) calendar days. The Contract remains effective in this case and is not terminated. Visitor Analytics retains the right to suspend the provision of the Services until all outstanding amounts are paid. The payment obligations of Customer remain unaffected during the time the Services are blocked for Customer.

6.5 At the end of the Term of the Contract, Visitor Analytics shall, in its discretion, either delete all data and information (including any applications and/or Personal Use Data) stored by Customer on Visitor Analytics’ server system, if any, or upon written notice of Customer prior to the termination of the Contract return it to Customer. Customer may export all information and data received from Visitor Analytics in the context of the Contract from the Services before the end of the Term of the Contract.

6.6 Any termination of the Contract has to be either via e-mail by Visitor Analytics or via the termination button within the subscription section under the Customer Website’s settings in the Services ( or – if applicable – in the Visitor Analytics account) by Customer.

6.7 Customers may be refunded upon termination of the Contract only in the following conditions, whereas billing fees charged by the third party payment provider, Braintree, may not be refunded:

a. monthly payment plan: until the 3rd day of the first payment cycle, so only in the first 3 days of being a paying Customer.

b. annual payment plan: until the 10th day of the first payment, so only in the first 10 days of being a paying user.

c. excluding the above, refunds are not granted under any condition.

6.8 Customers that installed the Services from the Wix App Market on a Wix website and use the “Activate direct access” procedure to check the stats for their Wix website on app.visitor-analytics.io are governed by the terms and conditions applicable for the Wix Integration https://visitor-analytics.io/en/support/legal-data-privacy-certificates/wix-integration/terms-of-use and https://www.visitor-analytics.io/wix-data-processing-agreement.

7. Obligations of Customer

7.1 Customer is solely responsible for ensuring that Customer Website, Customer’s and Customer’s employees’/authorized persons’ use of the Services do not violate applicable laws or the rights of third parties, including, without limitation, any third party intellectual property or proprietary rights anywhere in the world. Customer shall not disrupt or disturb the Services or Visitor Analytics’ server system. This includes, but is not limited to, that Customer Website and Personal Use Data:

  • do not violate laws relating to privacy and data security;
  • are not connected in any way to theft, deceit, drug trafficking, money laundering and/or terrorism;
  • are not known, intended or reasonably suspected of being infected with viruses; or
  • are not used to send unsolicited e-mails or other message.

7.2 Notwithstanding the foregoing, Visitor Analytics may suspend the Services with or without prior notice to Customer if Visitor Analytics has a reasonable ground to believe that Customer Website and Personal Use Data do not meet the requirements of Section 8.1 above.

7.3 Customer shall maintain confidentiality of all access data and protocols to its personal customer account and shall not disclose the same to any third parties. Customer shall promptly give notice to Visitor Analytics and change all passwords if Customer reasonably suspects that any unauthorized third party has obtained information about Customer’s access data or passwords.

7.4 Customer shall update accordingly in the Visitor Analytics account, under the website subscription settings, any change of its name or company name, its residence or business address, its billing address, legal form or, if applicable, banking particulars. Customer will only be allowed to employ administrative users who have been assigned an internal unique user identification by Customer themselves to access the Services.

7.5 Customer shall grant Visitor Analytics all use and exploitation rights in any content, application or other material of Customer necessary for Visitor Analytics to provide the Services under the Contract during the Term, including arranging the application and/or content, to convert them into a different format and use type specifically for mobile devices.

7.6 In order to use and access the, Customer must have internet access as well as a common state of the art internet browser as well as any additional technical prerequisites set out on the Website. Customer is solely responsible for bearing the costs and for ensuring the functioning of its internet access as well as of the computer and the software used to access the Services.

8. Confidentiality

8.1 During the term of the Contract and for a period of two (2) years thereafter, the Parties undertake to maintain confidentiality of all documents, information and data, which became available to the Parties due to and in the course of their cooperation (“Confidential Information”).

8.2 Disclosure of Confidential Information of the disclosing Party by the receiving Party to third parties requires a prior written or e-mail consent of the disclosing Party. No consent is required for the disclosure of Confidential Information by Visitor Analytics to their subcontractors and contractors if and to the extent required to assist Visitor Analytics in performing the Contract. The receiving Party shall also commit to the agreed obligations to maintain confidentiality to all persons and companies that receive Confidential Information of the disclosing Party.

8.3 The confidentiality obligation of the receiving Party does not cover Confidential Information (i) which became known to a Party publicly without a breach of confidentiality, (ii) which was developed independently by the receiving Party without reliance in any way on Confidential Information disclosed by the disclosing Party or (iii) which must be made available to third parties pursuant to legal, judicial or public orders or mandatory law.

9. Changes to the Services and to the Contract

9.1 Visitor Analytics may change the terms of the Contract at any time in order to take account of changes to user preferences, the internet economy, applicable laws and industry practices, or similar reasons, with no modification having an adverse effect for Customer (“Changes”). Customer will be informed about Changes by e-mail. Unless Customer rejects such Change within two (2) weeks after receipt of information of such Change, the changed terms apply after lapse of this two-week period. In case Customer rejects the Change within the two-week period in a written document, the Contract can be cancelled and Customer should cancel the active Premium Plans and stop using the Services.

9.2 With respect to any modifications to the terms of the Contract other than a Change, above all modifications that are adverse or disadvantageous to Customer, like higher fees, such modifications will not apply to Customer unless Customer actively consented to such modification. Until Customer consents, the then agreed terms of the Contract will continue to apply and Visitor Analytics may allow Customer to terminate the Contract early subject to a pro-rated refund of prepaid fees at Customer’s choice.

9.3 Customer has the right to switch to a different Premium Plan at any time by using the Change Subscription button provided within the subscription section of Customer Website’s settings in the Services ( or – if applicable – in the Visitor Analytics account) and by declaring acceptance of the then current terms of the Contract under 20 Switching the Premium Plan.

10. Privacy and Data Protection

10.1 The Privacy Policy of Visitor Analytics at https://www.visitor-analytics.io/privacy-policy/ applies.

10.2 With respect to the protection of Personal Data, the Parties agree to comply with applicable local country data protection laws, including those that impose the corresponding obligations on their service providers, employees and business partners.

10.3 Visitor Analytics will collect, Process, and use Personal Data only in commission for Customer in accordance with written instructions received by Customer. Customer remains the data controller with respect to any Personal Data collected, Processed or used in connection with the provision of Services hereunder by Visitor Analytics and Visitor Analytics will function as mere data processor. Details are provided in the Data Processing Agreement concluded between the Parties. Upon installation of the Services and/or pasting the Visitor Analytics Tracking Code snippet into Customer Website’s source code, Customer is required to conclude the Data Processing Agreement with Visitor Analytics and to digitally sign it in the Customer's Visitor Analytics Account under the Settings page.

11. Miscellaneous Provisions

11.1 The Contract is governed exclusively by the laws of Romania, excluding its conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods.

11.2 The exclusive venue for all disputes arising out of this Contract shall be in a court of applicable jurisdiction located Cluj-Napoca, Romania.

11.3 If a provision of this Contract is or becomes invalid, fully or partially, this shall not affect the validity of the other provisions.

11.4 Any general terms and conditions supplied by Customer as a part of any order, invoice or demand, do not apply and are hereby rejected by Visitor Analytics.

11.5 Visitor Analytics may hire subcontractors to provide the Services stipulated in the Contract, in which event Visitor Analytics shall be responsible for insuring the performance of such subcontractors in accordance with the terms of the Contract. Provisions in the Data Processing Agreement remain unaffected.

11.6 Each Party agrees at all times to comply with all applicable laws, rules and regulations of the country of Romania in the performance of their obligations under the Contract.

12. Data Protection Officer of Visitor Analytics

Name, first name: Homorodean, Andrei
E-mail: support@visitor-analytics.io

13. Contact person of Visitor Analytics

Name, first name: Homorodean, Andrei
E-mail: support@visitor-analytics.io

14. Fees

14.1 Customer shall pay for the use of the Services defined in the Premium Plans described in 19 Description of Services Prices

14.2 The accordant subscription fee becomes payable for the first time at the time of entering into the Contract. The monthly subscription fee for the subsequent months are payable on the same day of each month. In case the Contract was concluded on the last day of a month, the payment is due on the respective last day of the following months irrespective of the number of days of each month. The yearly subscription fee is payable on the same day each year.

14.3 Payments shall be made by Braintree, for which the Customer must provide the necessary details to Visitor Analytics during the registration or Premium Plan Switching process.

14.4 Customer’s invoices are generated automatically before the subscription payment due date in the Customer Website’s settings and can be downloaded at any point in time for a period of 1 year. If Customer does not provide the payment within five (5) calendar days after the payment due date shall be in default with payment and the consequences described under Section 19 Description of Services and Prices of these Service Terms apply. The statutory interest rates apply.

14.5 Customer may not set off amounts owing to Visitor Analytics hereunder against any other obligation owing from Visitor Analytics unless such amount is uncontested or has been finally and non-appealable established by a court.

14.6 All fees payable under the Contract are exclusive of any applicable taxes that have to be borne by Customer.

15. Defects

If and to the extent the Contract qualifies as contract for works or a lease, the Customer has the statutory rights in case of a defect. The right to reduce the subscription fee is excluded except for reductions in form of Credits as set forth under section 22 Rights in the event of non-compliance of the service levels.

16. Limitation of liability

16.1 Visitor Analytics’ liability for damages caused by slight negligence shall, irrespective of its legal ground, be limited as follows:

a. For each case of loss, Visitor Analytics shall be liable up to the amount of the yearly fee volume for yearly subscriptions, and up to the amount of the monthly fee for monthly subscriptions.

b. Visitor Analytics shall not be liable due to the slightly negligent breach of any other duty of care applicable.

16.2 The aforesaid limitations of liability shall not apply to any mandatory statutory liability and liability for culpably caused personal injuries. In addition, such limitations of liability shall not apply if and to the extent Visitor Analytics has assumed a specific guarantee.

16.3 Customer shall be obliged to take adequate measures to avert and reduce damages.

17. Force Majeure

17.1 Neither Party shall be liable to the other for non-performance (either wholly or in part), nor for any delay or failure in performance, to the extent that such delay or failure is caused by a force majeure event whereat force majeure is any external, unpredictable, absolutely invincible and inevitable event such as an earthquake, a volcano eruption, a storm, a tsunami, a flood, a fire, a typhoon, a bird flu, a war, a terrorist attack or a state crisis unless these calamities are a common phenomenon in the area where the Party is located.

17.2 While a force majeure event subsists, the Party so affected shall be relieved of liability to the other for failure to perform its obligations under the Contract and such obligations shall be suspended until such time as performance can be resumed (provided that the relevant affected Party could not have prevented the failure or delay by taking reasonable precautions or measures). The affected Party shall immediately notify the other Party as soon as it becomes aware that it is unable to perform any Service to be rendered hereunder as a consequence of any force majeure event.

17.3 If a force majeure event lasts for more than one (1) subsequent month, either Party may withdraw from the Contract.

18. Description of Services and Prices

18.1 Services

Detailed descriptions of our Services may be found here

18.2 Prices

Customer may choose between different pricing Premium Plans, based on traffic quota and extra features depending on package. Customer can change his subscription to another package at any time depending on his/hers needs.

The available Premium Plans may be found here.

Customer’s subscription will automatically renew at the day of the new calendar month/calendar year equivalent to the day on which the Contract was concluded. The fees will be charged each month/each year on the calendar day corresponding to the commencement of the Contract.


If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Customer does not change Customer’s payment method or cancels Customer’s account, we may suspend Customer’s access to the service until we have obtained a valid payment method. When Customer updates Customer’s payment method, Customer authorizes us to continue charging the updated payment method, and Customer remains responsible for any uncollected amounts.


19. Switching the Premium Plan

 

Premium plan Switch type

Description

Switching the Same Premium Plan from the Yearly billing cycle to the Monthly billing cycle

The new Premium Plan will start once the Yearly Premium Plan will end. Your new Premium Plan will renew automatically unless you cancel. If you do nothing, your credit/debit card or payment account will be charged.

Switching the Same Premium Plan from the Monthly billing cycle to the Yearly billing cycle

The new Premium Plan will start immediately and proration applies to the payment of the new Premium Plan, if applicable. Your new Premium Plan will renew automatically unless you cancel. If you do nothing, your credit/debit card or payment account will be charged.

Switching to a higher Premium Plan: Monthly to Monthly or Yearly to Yearly billing cycle

The new Premium Plan will start immediately and proration applies to the payment of the new Premium Plan, if applicable. Your new Premium Plan will renew automatically unless you cancel. If you do nothing, your credit/debit card or payment account will be charged.

Switching to a higher Premium Plan: Monthly to Yearly billing cycle

The new Premium Plan will start immediately and proration applies to the payment of the new Premium Plan, if applicable. Your new Premium Plan will renew automatically unless you cancel. If you do nothing, your credit/debit card or payment account will be charged.

Switching to a higher Premium Plan: Yearly to Monthly billing cycle

The new Premium Plan will start immediately and proration applies to the payment of the new Premium Plan, if applicable. Your new Premium Plan will renew automatically unless you cancel. If you do nothing, your credit/debit card or payment account will be charged.

Switching to a lower priced Premium Plan

The new Premium Plan with a lower price will start once the current Premium Plan will end. Your new plan will renew automatically unless you cancel. If you do nothing, your credit/debit card or payment account will be charged.


20. Service Levels

20.1 The service level for the Dashboard and other available features of the Services is defined as follows:

 

System availability (Dashboard) per month [average availability]

Service level

99.9% availability

Calculation

The availability is calculated as follows:

System availability (%) = (Monthly total time-Unscheduled downtime)/Monthly total time

“Availability” is the ability of the Customer to access the functions of the Dashboard as agreed in the Contract.

“Scheduled downtime” is the total time (in minutes) in a calendar month during which the Dashboard is not available due to scheduled system maintenance or other scheduled downtime. Visitor Analytics makes every reasonable effort to ensure that the scheduled system maintenance takes place between 1 a.m. and 5 a.m. CEST/CST and that reasonable notice is given of this system maintenance.

“System availability,” in relation to availability in a calendar month, is the ratio expressed as a percentage when Customer subtract the unscheduled downtime in this month from the monthly total time in this month and then divide this difference by the monthly total time in this month (see formula above).

“Monthly total time” comprises all minutes of the relevant calendar month during the Term of the Contract.

“Unscheduled downtime” is the total time (in minutes) of non-availability in a calendar month excluding the scheduled downtime and downtime that occurs as a result of circumstances outside of the control of Visitor Analytics. These circumstances include, in particular: (i) breaches of the provisions of this Contract by the Customer, (ii) non-compliance with provisions of this SLA by the Customer, (iii) incompatibility of equipment or software of the Customer with the agreed requirements in relation to the use of the Services, including the requirements set out in the access protocols (iv) defective or insufficient performance of the Customer’s systems or equipment, (v) use of the Services by the Customer that is in considerable excess of the agreed volume, or (vi) force majeure (as defined in the Contract).

Measuring point

VA service - Handover point for Dashboard and/or other available features for the Services

Measuring time

Calendar month during the Term of the SaaS Contract

20.2 Visitor Analytics offers daily support via e-mail, 8 hours per day, globally. E-mail support can be reached at support@visitor-analytics.io.

21. Rights in the event of non-compliance of the service levels

21.1 In the event of unscheduled downtime (“Unscheduled Downtime”), Visitors Analytics undertakes to make every economically reasonable effort to remedy the Unscheduled Downtime within a reasonable time period.

21.2 If Visitor Analytics does not meet the service level set out under 21. Service Level to the Service Terms for a Service, the Customer shall be entitled to the service credit notes listed below (“Credits”), whereby the Credits for Unscheduled Downtime shall not exceed 5% of the total charges that the Customer paid to Visitor Analytics for all of the Services provided in the respective service month.

 

Service availability

Service Credit Note (% of the monthly price for the Services)

< 99.75%

2.5%

< 99.0%

5.0%

< 98.0%

7.5%

< 97.0%

10.0%

< 96.0%

15.0%

< 95.0%

20.0%

21.3 Receipt of Service Credits. In order to receive a Credit, Customer must submit a request in writing to Visitor Analytics within five (5) business days following the receipt of a report describing the Unscheduled Downtime (“Service Level Report”) for the time period for which Customer alleges the Credit accrued. Customer’s written notice must state, with specificity, the date(s), time(s), and duration(s) of each Unscheduled Downtime claimed by Customer. If Visitor Analytics inspects Customer’s written request for a Credit, and agrees, Visitor Analytics will notify Customer that the applicable Credit will be credited against Customer’s fees for Services in the next monthly invoice for the Services. Credits cannot be applied retroactively. Any Customer that does not timely submit a written request for a Credit will forfeit all rights to receive a Credit for the month in question. Credits payable by Visitor Analytics are credited against any claim for damages the Customer may have under the Contract due to such service level infringement.

21.4 Customer must promptly notify Visitor Analytics in the event Unscheduled Downtime occurs. Unscheduled Downtime will be deemed to begin when Visitor Analytics receives accurate notification thereof from Customer, or when Visitor Analytics first becomes aware of such Unscheduled Downtime, whichever first occurs.

22. Entire Agreement

22.1 Other than as stated in this section or as explicitly agreed upon in writing between you and Visitor Analytics, the Contract constitute all the terms and conditions agreed upon between you and Visitor Analytics and supersede any prior agreements in relation to the subject matter of these Articles, whether written or oral.

22.2 Please note, however, that certain aspects of your use of the Visitor Analytics App and its feature Visitor Recordings (if ordered) may be governed by additional agreements. That could include, for example, access to the Visitor Analytics Service as a result of a gift card, free or discounted Trials, or together with other services. When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. Some of those additional terms are listed on Visitor Analytics’ website. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.