These Terms of Service (the “Terms“) govern your use of certain Services (as defined below) provided by Visit Widget LLC (“ Visit Widget”). If you have accepted these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the term “Client” shall refer to such entity and its affiliates.
Visit Widget may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms, we will update the ‘last revised’ date at the top of this page. If there are material changes to these Terms, we will notify you either by posting a notice of such changes prior to implementing the change or by directly sending you a notification. Your continued use of the Service after any such change constitutes your acceptance of the new Terms. If you do not agree to any of these terms or any future Terms, do not use or access (or continue to access) the Service.
1.1. Provision of Services. Subject to these Terms, including without limitation your payment of all of the fees due hereunder, we will provide you with access to the Visit Widget planning tool (each a “Service” and collectively the “Services”) in accordance with any terms and conditions provided for in any Services order form you submit (each, an “Order Form”). You may use the Services solely for their intended purpose in accordance with these Terms.
1.2. Infrastructure. We may host the Services using our own infrastructure or we may engage a third party to host the Services on our behalf. The use of a third party will in no way mitigate our obligations herein, and we will be fully liable for any acts or omissions of any third party service provider.
1.3. Support and Maintenance. We will provide you with a reasonable amount of maintenance and support regarding use of the Services during the Term. Updates to the Services will be provided at no charge to you. However, certain major functional updates or enhancements may, in our discretion, be considered new products that will be made available to you at an additional charge. You shall be under no obligation to subscribe to such new products. Scheduled system maintenance will take place during a normal maintenance window during minimal-traffic times. During such time, the Services may be unavailable. Emergency maintenance may be required at other times in the event of system failure. We will use commercially reasonable efforts to notify you of the emergency maintenance event and promptly remedy any system failure and restore the Services.
1.4. Authorized User Accounts. You may establish accounts for your employees and your independent contractors, that are not competitors of ours, to use the administration area of the Services on your behalf (“Authorized Users”). The administration area of the Services and the functionality contained therein may be used solely for your internal consumption. You may not charge any fee for Authorized Users’ access to the Services. You and Authorized Users will promptly notify us in the event that you or an Authorized User becomes aware of any violation of these Terms.
1.5. Account Protection. You and all Authorized Users will protect the confidentiality of all account information, including user names and passwords. In the event that an Authorized User becomes aware that the security of its login information has been compromised or breached, the Authorized User must immediately notify you and you must promptly de-activate such account or change the account’s login information.
1.6. Assistance. You shall provide us with all information and assistance as reasonably required for for us to activate and operate the Services. If you fail to provide timely assistance and feedback, implementation of the Services may be delayed.
2. FEES AND PAYMENT
2.1. Fees and Expenses. You shall pay us the fees set forth in each Order Form. All fees are exclusive of applicable sales, excise, or use taxes, all of which you will be responsible for and will pay in full, except for taxes based solely on our net income. If we invoice you, each invoice is due upon receipt of the invoice. Any unpaid and uncontested balance due and owing 30 days after the invoice date will incur a penalty charge of 1% per month, If you are paying by credit card, you authorize us to charge the fees to the credit card you have provided for your account.
2.2. Non-Payment and Suspension. If you do not pay an invoice when due or if your credit card is declined, and you do not provide us with a valid credit card promptly after we notify you, we may suspend your access to our Service. We may also suspend your account and refuse further access to the Service if you start a credit card charge-back process on any amounts paid or due us. You will continue to be charged applicable fees for the Services during any period of suspension. Furthermore, our suspension of the Services will not limit or prevent us from pursuing all other remedies available.
3. PROPRIETARY RIGHTS
3.1. Service Ownership and Retained Rights. We own all right, title, and interest in and to the Services, including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. You do not own the Services, but only have a right to use the Services subject to and under these Terms. We reserve all rights not expressly granted to you hereunder.
3.2. Restrictions. You and any Authorized Users may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services; (ii) use, evaluate or view the Services for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Services; or (iii) use the Services in a service bureau or any other manner to provide services for a third party. Neither you nor any Authorized User may remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to or contained within the Services.
3.3. Data Collection, Ownership, and Use.
3.3.1. Client Data. We may collect certain data from you or end users in connection with the provision of the Services which, as and between you and us, you own (collectively, “Client Data”). You grant and agree to grant to us a perpetual, non-exclusive, royalty-free, irrevocable, world-wide license to use and disclose Client Data (a) in order to provide and monitor the Services, and (b) for statistical, analytical and other aggregate uses including without limitation product research, development and improvement so long as any such use does not personally identify you or your end users. As between you and us, you acknowledge and agree that any derivatives or improvements to Client Data developed by us are the sole and exclusive property of Visit Widget (“ Visit Widget Data”). Upon your request, we will provide you with a raw data feed of the Client Data at no charge. We may charge a reasonable fee for an electronic copy of the Client Data if the format or method of delivery is not currently supported by us.
3.3.3. Personally Identifiable Information. In the event that you, your employees, your independent contractors, or Authorized Users request that we collect information that may be personally identifiable information, you represent and warrant that you will obtain all necessary consents for us to collect or use your users’ personally identifiable information or other data in connection with the Services and that you will not request us to collect or use this data in violation of any applicable laws, including any applicable privacy laws.
3.4. Confidential Information. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party. You acknowledge that the Services, these Terms and any Order Forms, and any other proprietary or confidential information provided to you by us constitute our valuable proprietary information and trade secrets. We acknowledge that the Confidential Information you provide to us constitutes your valuable proprietary information and trade secrets. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with these Terms, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party will have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.
Notwithstanding the foregoing, Confidential Information does not include any information which (i) is now, or becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of these Terms by the receiving party; (ii) was acquired by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
3.5. No Legal Advice. The collection of end user data shall be subject to additional end user terms and conditions. Such terms and conditions may be provided by you or Visit Widget. If Visit Widget provides such terms conditions, such provision is not intended to and does not constitute legal advice and no attorney-client relationship is formed. Use of any Visit Widget-provided end user terms and conditions is at your own risk.
4. WARRANTY; LIMITATIONS OF LIABILITY
4.1. Limited Warranty. We warrant that (i) we have all right, title, and interest necessary to provide the Services to you under the terms set forth in these Terms and each Order Form; (ii) the Services will perform materially in accordance with these Terms; and (iii) the functionality of the Services will not be materially decreased during the term of any Order Form.
4.2. Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, WE DISCLAIM ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO.
4.3. Limitations of Liability. THE FOLLOWING LIMITATIONS OF LIABILITY WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL THE FOLLOWING LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THESE TERMS. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE.
4.3.1. No Special Damages. EXCEPT FOR CLAIMS ARISING UNDERS SECTION 3.2 – RESTRICTIONS, NEITHER PARTY IS LIABLE TO THE OTHER PARTY, IN CONTRACT OR IN TORT, FOR BREACH OF WARRANTY OR OTHERWISE, FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.
4.3.2. Liability Cap. EXCEPT FOR CLAIMS ARISING UNDER SECTION 3.2 – RESTRICTIONS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THESE TERMS EXCEED THE AGGREGATE FEES PAID (PLUS AMOUNTS PAYABLE) BY YOU UNDER THESE TERMS DURING THE 6 MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
4.4. Your Indemnity. You shall defend, indemnify and hold us harmless from all damages finally awarded that arise from a third party’s claim resulting directly from (a) unauthorized use of the Services by you or any Authorized User; (b) use of the Services by you or any Authorized User in violation of any law or regulation; (c) your use of the Client Data or Visit Widget Data; and (d) a breach of your representations and warranties.
4.5. Our Indemnity. We shall defend, indemnify and hold you harmless against all damages finally awarded arising from a third party’s claim that the Services, as provided by us to you within the scope of these Terms, infringe any trademark, copyright or patent in the United States. We shall have no liability to indemnify a claim of infringement to the extent it arises from: (i) infringing matter supplied by you; (ii) unauthorized modifications or uses of the Services; or (iii) your acts or omissions not in accordance with these Terms.
4.5.1. If your use of the Services is enjoined due to a third party claim of infringement for which we are required to indemnify you then we may, at our expense and within our sole discretion: (i) procure for you the right to continue using the Services; (ii) replace or modify the enjoined Service to make it non-infringing but functionally equivalent; or (iii) terminate the enjoined Service and return any fees paid for infringing Services not yet rendered.
4.5.2. The indemnification obligations set forth in this Section 4.5 are our sole and exclusive obligations, and your sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights of any kind.
4.6. Indemnity Procedures. The indemnified party shall (i) provide prompt notice of the claim to the indemnifying party; (ii) give the indemnifying party sole control of the defense and settlement of the claim; (iii) provide the indemnifying party all available information, assistance, and authority to defend; and (iv) not compromise or settle such claim without the indemnifying party’s prior written consent.
4.7. Proportional Liability. Each indemnitor’s liability to pay or reimburse any indemnified claim is limited to the extent of the indemnitor’s proportional contribution. Neither party has any liability to the extent that any losses in conjunction with indemnified claims are attributable to acts or omissions of the other party or its indemnitees.
5.1. Term. These Terms shall remain in effect for as long as any Order Form is in effect.
5.2. Termination. If either party materially breaches a material provision of these Terms, the other party may terminate these Terms and each Order Form upon 30 days advance written notice to the other party unless the other party cures the breach within 10 days of receipt of such notice of material breach.
5.3. Suspension. Visit Widget reserves the right to suspend Service at any time at its discretion and without notice if you are not complying with these Terms, or use the Service in a manner that would cause legal liability or otherwise disrupt the Service.
5.4. Effect of Termination. Upon termination of these Terms, you and any Authorized Users must immediately stop using the Services, return or destroy all documentation, and certify in writing such return or destruction. We may irretrievably delete Client Data upon termination of these Terms. Any provision of these Terms that contemplates performance or observance subsequent to termination or expiration of these Terms (including, without limitation, confidentiality, limitation of liability and indemnification provisions) survive termination or expiration of these Terms and continue in full force and effect.
6.1. Publicity. You agree that the Services may be branded on with an identifying mark similar to “Powered by Visit Widget” or as otherwise agreed by the parties in writing. You shall (i) assist Visit Widget in its preparation of a press release announcing you as a new Visit Widget customer within 15 days after the Effective Date; (ii) provide a quote from a senior marketing executive for use in Visit Widget marketing materials; (iii) provide Visit Widget with a file containing your logo(s) for use on Visit Widget’s web site and in its sales collateral; (iv) assist Visit Widget in the preparation of two case studies for external use that detail your use of the Services, featuring specific results, with the view to publishing the first study within six months after the Effective Date, and the second study within one year after the Effective Date; (v) promote the case studies jointly with Visit Widget to the press and analyst community through direct conversations, as well as in marketing events, industry conferences or trade show speaking engagements; and (vi) upon request, serve as a reference to media and/or industry analysts and to Visit Widget potential customers and investors. You grant and agree to grant to us a perpetual, non-exclusive, royalty-free, irrevocable, world-wide license to use and display screenshots and other examples of the Services displayed on your website in our sales collateral and promotional materials.
6.2. Independent Contractor. In performing under these Terms, each party is acting as an independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
6.3. Export and Other Laws. Both parties agree to comply with all applicable laws, including without limitation, export and import regulations of the United States and other countries. You further agree not to export or re-export any software included within the Service, either directly or indirectly, without both parties’ written consent and any required license from the appropriate governmental agency.
6.4. Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networks or the public Internet, power outages, labor disputes or governmental demands or restrictions.
6.5. Assignment. You will not assign these Terms or any Order Form, whether voluntarily or by operation of law, nor will you delegate your duties hereunder and any attempt to do so will be null and void.. Any assignment in contravention of this subsection is void.
6.6. Notice and Delivery. Except as otherwise provided herein, all notices, statements and other documents, and all approvals or consents that any party is required or desires to give to any other party, will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the addresses as may be designated by such party. Delivery will be deemed conclusively made (i) at the time of service, if personally served, (ii) five days after deposit in the United States mail, properly addressed and postage prepaid, if delivered by express mail or certified mail, (iii) upon confirmation of delivery by the private overnight deliverer, if served by overnight delivery, and (iv) at the time of electronic transmission (with successful transmission confirmation).
6.7. Miscellaneous. These Terms are governed by the laws of the State of Texas (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to these Terms shall be brought in the state or federal courts located in Austin, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. These Terms and each Order Form constitute the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. Nothing contained in any purchase order or other document will in any way modify these Terms or add any additional terms or conditions. If any provision of these Terms, or the application thereof, will for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original will be substituted and the remaining provisions of these Terms will be interpreted so as best to reasonably effect its original intent. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to these Terms will impair any such right or power or be construed to be a waiver thereof.
[End of Terms]