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”) with 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.
1.4 The Service Terms govern both, the Free Edition and the Premium Edition. These Service Terms are divided into two parts: Part I applies to both Editions (unless otherwise explicitly stated), the Free and the Premium Edition. Part II applies only and additionally to the Premium Edition. The Service Terms also govern Demo Versions of the Services that may include functionalities of the Free Edition and Premium Edition.
PART I – Free Edition
“App Market Page” refers to Visitor Analytics’ page on the WiX app market under https://www.wix.com/app-market/visitor-analytics/overview.
“Contract” as defined in Section 1.1. 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 the Services are used.
“Dashboard” refers to the web-based statistics dashboard featuring charts, graphs and maps that are available for most features of the Services.
“Demo Version” refers to a special version of the Services or functionalities thereof that is offered for a limited period of time and for free for a Customer’s Website to test the Services.
“Demo Period” refers to the period of time during which Customer may use the Demo Version.
“DPA” refers to the Data Processing Agreement (https://www.visitor-analytics.io/wix-data-processing-agreement)
“Free Edition” refers to the free of charge version of the Services (if available).
“Personal Data” refers to any information relating to an identified or identifiable individual.
“Personal Use Data” refers to Personal Data processed by the Services from Visitors, Customers, Customers’ employees / authorized persons, or Visitor Analytics’ employees / authorized Personnel upon input or automatically.
“Premium Edition” refers to the paid version of the Services as described in Part II of these Service Terms.
“Services” as defined in Section 5.1. of these Service Terms.
“Statistics Data” refers to the Personal Use Data and anonymous Website use data collected by specific functionalities 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.
3. Conclusion of the Contract
4. Demo Versions
4.1 We may at our sole discretion offer you Demo Versions for selected functionalities of the Services or the entire Service. Once your Demo Period expires, you will no longer be able to access the Demo Version of the Services. Visitor Analytics reserves the right (i) to determine if you are eligible to use the Demo Version and (ii) to discontinue any Demo Version without notice at our sole discretion.
4.2 The term of a Demo Version (“Demo Period”) commences upon registration for the Demo Version and ends after the term announced during the registration process (e.g. after three (3) months). The Demo Version ends automatically after the Demo Period without requirement of a termination of either Party. Below section 8 Term of the Contract does not apply.
4.3 The Demo Version is provided “as is” with certain downtimes. Visitor Analytics does not promise specific service levels under the Demo Version. Visitor Analytics undertakes best efforts to minimize downtimes during the Demo Periods. Visitor Analytics excludes all warranties and shall only be liable for fraudulently concealed defects.
4.4 Visitor Analytics may terminate the Demo Version immediately
a. for cause if Customer fails to comply with an obligation under sections 9 (Obligations of Customer) and 10 (Confidentiality) of these Service Terms; or
b. if the Demo Version may cause a risk or harm to Visitors and/or Customers.
4.5 Section 8.4 of these Service Terms shall apply on the condition that termination is replaced by the end of the Demo Period. Additionally, Customer is also obliged to delete and destroy any obtained Statistics and/or Personal Use Data at the end of the Demo Period unless Customer continues to use the Services as Free Edition or Premium Edition under these Service Terms.
To participate in Demo Versions, Customers are usually asked to accept updated terms for the Services. For Customers not participating in Demo Versions, the former terms continue to apply. We will update them in accordance with section 11 Changes to the Services and to the Contract.
5. Service Descriptions
5.1 The services provided during the Term under this Contract are listed and described here (“Services”). They refer to the service of the 3rd party app Visitor Analytics from Wix App Market, which is a web-based analytics solution based on a Software as a Service (SaaS) model available for all Wix websites. Please note that in some cases not all Services and/or particular features of the described 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.
5.2 The Services may be integrated into the Customer Website upon registration from the App Market Page (https://www.wix.com/app-market/visitor-analytics/overview) and can be used on computers, laptops and mobile devices.
6. The detailed scope of the Services depends on Customer’s subscription of the Free Edition or the Premium Edition. The features of both editions are detailed here and on www.wix.com/app-market/visitor-analytics/features.
7. Use Rights of the Services
7.1 Subject to the conditions and limitations contained in the Contract, on or immediately after commencement of the Contract, the Customer is hereby granted 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 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.
7.2 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.
7.3 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.
Fees for the Premium Edition are listed in the Wix App Market under https://www.wix.com/app-market/visitor-analytics/features.
9. Term of the Contract
9.1 The Initial Term of the Contract shall start with the installation of the Services and - if ordered - the integration of the tracking code for specific features and lasts:
a. indefinitely in case of the Free Edition; or
b. until the end of the subscription following the conclusion of the Contract (“Initial Term”) in case of the Premium Edition, when the Customer is downgraded to the Free Edition; or
c. for the duration of the Demo Period, or
d. until the Services are uninstalled (if subject to installation).
9.3 The Contract will be downgraded from Premium to Free Edition if Customer is in default with payment of the subscription fees under the Premium Edition.
9.5 The Contract may be terminated via the Wix user account of the Customer by the Customer.
10. Obligations of Customer
10. 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 (spam).
10.2 Notwithstanding the foregoing, Visitor Analytics may suspend the Services, including Customer access to 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 9.1 above.
10.3 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.
10.4 Customer shall promptly notify Visitor Analytics on each change of its name or company name, its residence or business address, and legal form. The notice must be made in writing or by e-mail. Customer will only be allowed to employ administrative users who have been assigned an internal unique user identification by the Customer themselves to access the Services.
10.5 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.
10.6 In order to use and access the Services 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.
11.1 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”).
11.2 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 Wix or to Visitor Analytics’ subcontractors and contractors if and to the extent required to assist Visitor Analytics in performing the Contract and if and to the extent Visitor Analytics is legally obliged to do so, e.g. by 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.
11.3 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.
12. Changes to the Contract and to the Service Subscriptions
12.1 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 terms of the Contract remain unchanged for Customer.
12.2 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, Visitor Analytics will inform Customer via e-mail of such changes.
13. Privacy and Data Protection
13.2 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.
13.3 Visitor Analytics will Process 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 (https://www.visitor-analytics.io/wix-data-processing-agreement). Upon installation of the Services and/or pasting the Visitor Recordings tracking code snippet into the Customer Website’s source code, Customer is required to conclude the Data Processing Agreement (https://www.visitor-analytics.io/wix-data-processing-agreement) with Visitor Analytics and to digitally sign it in the Customer's Visitor Analytics Account under the Settings page.
14. Limitation of liability and defects
Under the Free Edition, Visitor Analytics is only liable for damages caused by (i) intent or (ii) gross negligence. Visitor Analytics is only liable for defects based on fraudulent misrepresentation. Any further liability for damages, defects that are caused by any other third party excluded.
15. Miscellaneous Provisions
15.1 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.
15.2 The exclusive venue for all disputes arising out of this Contract shall be in a court of applicable jurisdiction located Cluj-Napoca, Romania.
15.3 If a provision of this Contract is or becomes invalid, fully or partially, this shall not affect the validity of the other provisions.
15.4 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.
15.5 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 DPA remain unaffected.
15.6 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.
16. Data Protection Officer of Visitor Analytics
Name, first name: Homorodean, Andrei
Contact persons of Visitor Analytics
Name, first name: Homorodean, Andrei
Name, first name: Stirbu, Corina
PART II – Terms applicable to the Premium Edition only
Part II of these Service Terms only apply to the Premium Edition
Under the Premium Edition, Visitor Analytics shall provide the same Services as under the Free Edition plus the additional Services described under here.
18. Payment Terms, Cancellations and Refunds
Visitor Analytics is a 3rd party app developer on the Wix App Market and the conditions regarding payment terms, termination, refunds, etc, are exclusively governed by the Wix App Market Terms under https://www.wix.com/about/app-market-terms
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.
20. Limitation of liability
20.1 Visitor Analytics’ liability for damages resulting from the use of the Visitor Analytics Services from the Wix App Market 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.
20.2 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.
21. Force Majeure
21.1 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.
21.2 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.
21.3 If a force majeure event lasts for more than one (1) subsequent month, either Party may withdraw from the Contract.