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Terms of Use for purchase of Visitor Analytics’ app on Wix.com App Market

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.

1.3.Installing the app from Wix App Market, https://www.wix.com/app-market/visitor-analytics/overview is governed by the Wix App Market Terms of Use (https://www.wix.com/about/app-market-terms), e.g. with regard to install and payment. In addition, these terms (the “Service Terms”) including their Annex 1 – Description of Services and Data Processing Agreement (https://www.visitor-analytics.io/wix-data-processing-agreement) apply with regard to the services offered by Visitor Analytics in the app.

1.4.The Service Terms govern both, the Free Edition and the Premium Edition. The 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.

PART I – Free Edition

2. Definitions

“App” refers to 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.

“Contract” as defined in Section 1.1. of these Service Terms.

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

“Customer Website” refers to the Customer’s website on which the App is used.

“Dashboard” refers to the web-based statistics dashboards featuring charts, graphs and maps.

“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 App.

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

“Personal Use Data” refers to Personal Data collected by the App 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 App as described in Part II of these Service Terms.

“Services” as defined in Section 4.1. of these Service Terms.

“Statistics Data” refers to the Personal Use Data and anonymous Website use data collected by the App 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.

“App Market Page” refers to Visitor Analytics’ App page under https://www.wix.com/app-market/visitor-analytics/overview.

3. Conclusion of the Contract

The contract with regard to the installation of the app is concluded according to the Wix App Market Terms of Use (https://www.wix.com/about/app-market-terms).

4. Services

4.1.The services (“Services”) provided during the Term under this Contract comprise the provision of the App being a web-based analytics solution based on the Software as a Service (SaaS) model for Customers all over the world. The App is a simple and straightforward analytics tool for non-technical people enabling a friendly user experience. Once installed on a website, the App provides real time insights about each website visitor and their behavior. This information can be used to interact with the site visitors and significantly improve sales processes. Basically, Customer can check Customer’s visitors (“Visitors”), new visitors, IPs (if IP anonymization is not enabled), page visits, bounce rate, conversions and even live visitors from the very moment they install the App on the Customer Website.

4.2.The App 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.

4.3.A detailed description of the App can be found under https://www.wix.com/app-market/visitor-analytics/overview.

4.4.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 in these Service Terms’ Annex 1 – Description of Services and on https://www.wix.com/app-market/visitor-analytics/features.

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, the customer is hereby granted a non-exclusive, limited, non-transferable, sublicensable right to access and use during the Term of the Contract the App online, internally for the purposes of the Contract, above all to gather and save Personal Use Data from the Customer Website using cookies for the purpose of measuring the interactions of the Visitors. Customer shall not copy or otherwise reproduce the App or parts thereof, except as required technically to use the App 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, including the App, 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. Fees

Fees for the premium edition are listed in the Wix App Market under https://www.wix.com/app-market/visitor-analytics/features.

7. Term of the Contract

7.1.The Initial Term of the Contract shall start with the installation of the app 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

c.until the app is uninstalled

7.2.After the Initial Term, the Contract shall automatically extend for additional one (1) month periods in case of subscription to the monthly payment plan and for additional twelve (12) months in case of subscription to the yearly payment plan, unless terminated by either Wix or Customer according to the Wix App Market Terms of Use (https://www.wix.com/about/app-market-terms). Termination is possible at any time for Customer.

7.3.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.

7.4.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 shall cease all use of the Services immediately after termination of the Contract and shall within three (3) months after termination of the Contact export all information and data received from Visitor Analytics in the context of the Contract from the App. Please note that according to the Wix Partner Agreement (https://dev.wix.com/docs/launch-requirements/partners-agreement), Wix might retain your data.

7.5.The Contract may be terminated via the Wix user account of the Customer.

Obligations of Customer

7.6.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).

7.7.Notwithstanding the foregoing, Visitor Analytics may suspend the Services, including Customer access to the App, 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 7.6. above.

7.8.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.

7.9.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 a unique user identification to access the App.

7.10.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.

7.11.In order to use the Services and access the App 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 App.

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 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.

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 terms of the Contract remain unchanged for Customer.

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, Visitor Analytics will inform Customer via e-mail of such changes.

9.3.Customer has the right to switch from Free Edition to Premium Edition or from Premium Edition to Free Edition at any time by using the upgrade/downgrade options provided within the subscription section of Customer’s Wix account and by declaring acceptance of the then current terms of the Contract (“Switching”). Switching from Free Edition to Premium Edition and from Premium Edition to Free Edition will take effect under Wix terms of use (https://www.wix.com/about/app-market-terms).

10. Privacy and Data Protection

10.1.The Privacy Policies of Visitor Analytics under the Terms of Use (https://www.visitor-analytics.io/wix-terms-of-use) and Data Processing Agreement (https://www.visitor-analytics.io/wix-data-processing-agreement) 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 Annex 2 - Data Processing Agreement concluded between the Parties. Upon installation of the App, 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.

11. 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.

12. Miscellaneous Provisions

12.1.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.

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

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

12.4.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.

12.5.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.

12.6.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.

13. Data Protection Officer of Visitor Analytics

Name, first name: Homorodean, Andrei

E-mail: support@visitor-analytics.io

Contact persons of Visitor Analytics

Name, first name: Homorodean, Andrei

E-mail: support@visitor-analytics.io

Name, first name: Stirbu, Corina

E-mail: contact@visitor-analytics.io

PART II – Terms applicable to the Premium Edition only

Part II of these Service Terms only apply to the Premium Edition

14. Services

Under the Premium Edition, Visitor Analytics shall provide the same Services as under the Free Edition plus the additional Services described in the App Market Page and in Annex 1– Description of Services and Prices to these Service Terms.

15. 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

16. 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.

17. Limitation of liability

17.1.Visitor Analytics’ liability for damages resulting from the use of the Visitor Analytics App 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.

17.2.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.

18. Force Majeure

18.1.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.

18.2.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.

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

ANNEX 1 – Description of Services and Prices - Free and Premium

1. Free and Premium Edition

The Free and Premium Editions are based on our state-of the-art software service available in the App Market Page (https://www.wix.com/app-market/visitor-analytics/features) and are addressing small and medium sized businesses around the world, that need a straightforward analytics tool providing them with real time insights about each Visitor and their use of the respective Customer Website. Our App is offered as a Freemium model, giving Customers the possibility to choose between the Free Edition of the App and the paid Premium Edition in the following conditions:

I. Free Edition

The Free Edition gives Customer access to the App, enabling Visitor Analytics to collect for Customer via the App the information on the Visitors’ use of Customer Website as described on the App Market Page https://www.wix.com/app-market/visitor-analytics/features. This information is analyzed via the App and made available to Customer in Customer’s account on the Wix platform in statistics dashboards featuring charts, graphs and maps.

Pricing: Free to use with no fees.

II. Premium Edition

Our Premium Edition gives Customer access to the App, enabling Visitor Analytics to collect for Customer via the App the information on the Visitors’ use of Customer Website as described on the App Market Page: https://www.wix.com/app-market/visitor-analytics/features. This information is analyzed via the App and made available to Customer on Wix platform in statistics dashboards featuring charts, graphs and maps. Customer may export parts of the Statistics Data for Customer’s free use.

Pricing:

In order to benefit from the enhanced features of our Premium Edition Customer may choose one of the pricing plans from the App Market Page (https://www.wix.com/app-market/visitor-analytics/features) and pay once the service is activated via the App Market Page using the payment methods offered there.

Customer’s subscription will automatically renew based on the Wix terms and conditions as described here https://www.wix.com/about/app-market-terms.