1. Definitions
Whenever used in these Terms and Conditions (“Agreement”), the following terms will have the following specified meanings:
“Account” refers to the Customer’s account whereby Customer registers for and accesses the Service.
“Brand Features” means any trade names, trademarks, servicemarks, logos, domain names, trade dress or other distinctive items that represent Customer or Fullvisitor, respectively. Mouseflow® is a duly registered trademark and property of Fullvisitor.
“Customer” means you, the individual or legal entity that you represent, subscriber of one of Fullvisitor plans, including those in Trial, Free or Custom plans.
“Customer Data” means anonymous, aggregated data concerning the characteristics and activities of visitors of the Customers’ Website(s) collected by the MFTC and MFRS, forwarded to the Servers, and analyzed by the Processing Software. The parties agree and understand that Customer intends to use the Service in a way that only anonymous information is collected from website visitors, so that no information collected can be used to identify individual website visitors’ PII.
“Documentation” means any documentation related to the Processing Software, including that which is available online or otherwise.
“Enterprise Plan” refers to a plan that exceeds the capacity, features, functionality or limitations of a Standard Plan or to an existing separate contract between Customer and Fullvisitor.
“Free or Custom Plan” means a restricted Account which includes limited features and or functionality, provided at no cost to collect Customer Data derived from 500 sessions per month.
“Knowledge Base” means the pages on Fullvisitor website which have information and documentation concerning the Software (https://fullvisitor/faqs.com).
“MFRS” means the proprietary Fullvisitor Recording Script, which is included in the MFTC for the purpose of collecting Customer Data, together with any fixes, updates, and upgrades.
“MFTC” means the proprietary Fullvisitor Tracking Code, which is installed by the Customer on a Website for the purpose of collecting Customer Data, together with any fixes, updates, and upgrades.
“Mouseflow” means the company Fullvisitor ApS registered in Denmark, Europe.
“Page View” is a unit of measurement for usage of the Service. A Page View occurs each time the MFTC or MFRS is executed on a web page accessed by a Visitor.
“Paid Plan” refers to an Account which includes access to additional features and/or functionality, sessions per month, or storage based on a Subscription to a Standard Plan, Enterprise Plan or Agency Plan.
“PII” means Personally Identifiable Information which relates to any data that identifies or could potentially identify an individual.
“Processing Software” or “Software” means the proprietary Fullvisitor server software, together with any fixes, updates, and upgrades, which process, analyze, and store the Customer Data.
“Proprietary Rights” means, without limitation, any patent, copyright, trademark, trade secret, design, database right, business name, domain name, layout, design or other intellectual property or Proprietary Right, whether registered or not and whether registerable or not, as may exist anywhere in the world.
“Renewal Date” means the annual or monthly date a Paid Plan is renewed.
“Recorded Session” or “Session” is a unit of measurement which consists of a plurality of Page Views during a single browsing session on the Website. A session is started when a user arrives on the Website and navigates to a page which has the MFTC on it, continuing until terminated due to (a) thirty minutes of inactivity, (b) the session reaching a threshold of 100 Page Views, (c) the user closing their browser window or clearing their cookies, or (d) the user navigating to a page which does not have the MFTC on it and, afterwards, never navigating to any other page(s) which has/have the MFTC on it.
“Report” means the analysis derived from Customer Data and made available through the Account. The charts, graphs, and statistics contained in a Report vary based on the type of account and plan.
“Servers” means the technological infrastructure controlled by Fullvisitor (or its subsidiaries and/or subcontractors) upon which the Processing Software operates and the Customer Data and MFRS are stored.
“Service” means the facilities to analyze or parse Customer Data, including Recorded Sessions, from a Website owned, controlled, or operated by Customer.
“Software” means the MFTC, MFRS, and Processing Software.
“Standard Plan” means a plan listed at https://Fullvisitor.com/pricing, except for an Enterprise and Agency Plan. The current standard plans are “Starter”, “Growth”, “Business”, and “Pro”.
“Subscription” means the specific features, pricing, and attributes agreed upon by Customer and Fullvisitor for the provision of the Software or Service or set forth in a separate contract.
“Term” has the meaning set forth in the Section labelled “Term and Termination” on this Agreement.
“Trial Plan” refers to restricted Account which includes limited features/functionality, provided at no cost for a period of fourteen (14) days to collect Customer Data derived from a one-time sample of 500 sessions.
“Visitor” means the person who access the Customer Website where Fullvisitor is installed and capturing information.
“Website” means a collection of one or more web pages that Customer owns and controls or operates or authorizes a third party to control or operate on its behalf.
2. Purpose
Customer engages Fullvisitor to provide the Service that uses Software to process, analyze, and store Customer Data on behalf of Customer.
3. Trial
Customer may sign up for a Trial Plan for a period of fourteen (14) days. Once the Trial Plan ends, the Customer can decide to transition the Account to the Free or Limited Plan, unless upgraded to a Paid Plan. Fullvisitor reserves the right to cancel, terminate, or modify a Free or Limited or Trial Plan for any or no reason and at any time.
4. Billing
For a Paid Plan, Customer will be billed automatically via credit card, PayPal, or invoice, depending on the Subscription pursuant to an agreed-upon billing cycle; otherwise, monthly.
The bill amount shall include the applicable fees for the Subscription, together with any extraordinary costs that are incurred as a result of high traffic or data transfer related to the Customer’s use of the Software.
Fullvisitor shall have the sole right to determine whether such extraordinary costs are billed to Customer and, if so, the rate which shall be billed (to be no higher than twenty percent (20%) above cost).
If the Customer is invoiced, invoices will be sent to the Customer at the beginning of the billing cycle via electronic mail and must be paid within thirty (30) days of receipt. A late fee will be charged at a rate of one percent (1%) per month on undisputed overdue amounts. If payments on undisputed amounts are not received within thirty (30) days, Fullvisitor reserves the right to suspend access to the Service. If payments on undisputed amounts are not received within sixty (60) days, Fullvisitor reserves the right to disable the MFTC or MFRS and/or permanently delete the Customer Data.
5. Term and Termination
The Agreement will take effect as of the date the Account is created and will continue in full force and effect until deleted.
This Agreement will apply to the Software and Services provided on or after the Account creation date, and if Fullvisitor agrees to provide the Software and Services after the end of a Term, this Agreement shall apply to such Software and Services.
Without prejudice to any other rights, Fullvisitor may terminate Customer’s Subscription and the licenses contained herein (a) for any or no reason and at anytime or (b) if Customer fails to comply with these Terms and Conditions. For a Standard Plan, Customer may cancel the Subscription at any time and with no penalty at https://app.Fullvisitor.com/account/.
For an Enterprise Plan, Customer may cancel its Subscription upon thirty (30) days written notice to Fullvisitor before the Renewal Date, unless otherwise specified in a separate contract between the parties. If the 30th day falls after the date of renewal of a Term, the termination will take effect upon completion of the active Term. Otherwise, the termination will take effect upon the expiration of the 30th day and the completion of the then-current billing cycle.
Upon termination of Subscription, Customer’s right to access the Service shall automatically terminate and Customer must destroy all originals and copies of the Software, and, upon request, certify thereto in writing to Fullvisitor within three (3) business days. In the event of termination of the Subscription, (a) Customer shall not be entitled to any refund(s) or credit(s) (b) any outstanding balance for Service rendered will be immediately due and payable in full. For the Enterprise Plans, if the termination date falls in a new billing cycle, Customer must pay all fees due to the renewal of the Subscription regardless of the fact Customer did or did not use the Services during such period and (c) Customer Data will no longer be available to Customer through the Software and Service; however, Customer may retain copies of the Customer Data and Reports. If Customer fails to remove MFTC or MFRS from Customer’s Website(s) after three (3) business days, Fullvisitor may alter the MFRS code to include an alert box stating that Customer’s Subscription has been terminated.
6. Installation
In order to use the Service, Customer must install the MFTC on its Website(s). Customer agrees to modify the MFTC, if directed by Fullvisitor, and also grants Fullvisitor permission to carry out such modification(s) to ensure compatibility with the Service. Fullvisitor shall not be liable for any delays in Customer’s access to its Account or errors in Customer Data related to such event.
If required by law, Customer agrees to post a clear and conspicuous notice and statement, with the following or equivalent language, in the privacy policy or otherwise on its website: “This website uses Fullvisitor (https://Fullvisitor.com), a third-party analytics tool, to track page content and click/touch, movement, scroll, and keystroke activity. You can opt-out at:
Fullvisitor agrees to maintain an opt-out process on its website, which allows website visitors to prohibit tracking of their activity on the Customer website, as long as the Visitor’s browser allows third-party cookies; otherwise such feature might be impaired.
Customer agrees to exclude any PII, confidential, proprietary, or sensitive information from capture, as necessary, described in the links to the relevant articles below and (i) accepts full responsibility and liability of ensuring such information is adequately and completely excluded, (ii) will indemnify, defend and hold Fullvisitor harmless for all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with an alleged or actual failure to meet this obligation and (iii) Customer warrants that it will designate skilled employees to perform the proper installation and use of the Software.
If Customer discovers that PII has been collected it will immediately and permanently delete such information from within the Fullvisitor dashboard upon discovery.
DISCLAIMER: CUSTOMER ACKNOWLEDGES THAT Fullvisitor HAS PROVIDED ALL NECESSARY INFORMATION TO SECURE THE RECORDINGS, PREVENTING THE COLLECTION OF PII AND SENSITIVE DATA. Such information can be found in the Knowledge Base as, among others, the articles below:
Disable Keystrokes from Being Recorded
Exclude Certain Input Fields from Being Recorded
Exclude/Replace Content on Pages
7. Sensitive Data
Customer must comply with all applicable laws (including, but not limited to, privacy and data security laws) and represents and warrants that it will not use the Service or the Software to violate such laws.
Both parties agree to (i) notify the other party if it discovers that PII and/or sensitive data has been collected and (ii) immediately and permanently delete such PII and/or sensitive data upon discovery or written request from the other party.
8. Account and Security
Customer is responsible for safeguarding the confidentiality of login credentials issued by Fullvisitor and for any use or misuse of the Service resulting from unauthorized access. Customer agrees to notify Fullvisitor immediately in the event of a security breach or unauthorized access to the Account or Service. Fullvisitor may, from time to time, login to Customer’s Account to make improvements or troubleshoot technical issues. Customer hereby consents to such access.
9. Nonexclusive License
Fullvisitor hereby grants Customer a limited, revocable, nonexclusive, nonsublicensable license to install, copy, and use the MFTC or MFRS on one or more Customer Website as necessary to use the Service.
Customer may access, view, and download Customer Data and Reports at Fullvisitor.com (or any other such URL that Fullvisitor may provide from time to time), and may share such Customer Data and Reports with its employees, contractors, agents (e.g. accountants, attorneys, public relations, advertising and marketing agencies, and the like) and customers.
Except as otherwise provided in this Agreement, Customer neither will nor will allow any third party to (i) copy, modify, adapt, translate, or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which Customer is located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the MFTC, MFRS, the Account, the Software, the Documentation, or the Service; (ii) remove any proprietary notices or labels on the Software or placed by the Service; or (iii) use, post, transmit or introduce any device, software, or routine which interferes or attempts to interfere with the operation of the Service or the Software.
Customer will use the Account, Software and Service solely for its internal use, and will not make the Account, Software or Service available for access by other parties, application service providers, or service bureaus, except that Customer may grant access to its employees and contractors.
Customer will comply with all applicable laws and regulations in Customer’s use of and access to the Account, Documentation, Reports, Service, and Software.
10. Confidentiality
“Confidential Information” includes any proprietary data or other information disclosed by one party (“Disclosing Party”) to the other (“Recipient”) in writing and marked “confidential” or disclosed orally and, within five (5) business days, reduced to writing and marked “confidential”. Notwithstanding the foregoing, Confidential Information will not include any information that: (a) is or becomes public knowledge other than as a result of a breach of this Agreement or other obligation of confidentiality; (b) the Recipient can show was in its unrestricted possession, known to it before the date of this Agreement or independently developed by it before being disclosed under this Agreement; (c) is disclosed or made available to the Recipient by a third party other than in breach of this Agreement or other obligation of confidentiality; or (d) is disclosed by the Recipient with the prior written permission of the Disclosing Party.
Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law enforcement personnel, regulation, court order, or administrative agency, in which case, the Recipient must give the Disclosing Party as much notice as is reasonably practicable (and permitted by law) prior to disclosing such information.
Upon termination of Customer’s Subscription, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
11. Information Rights and Publicity
Except as permitted herein, Fullvisitor will not share information associated with Customer or Customer’s Website(s) with any third parties unless Fullvisitor (i) has Customer’s prior written consent; (ii) concludes that disclosure is required by law or has a good faith belief that disclosure is reasonably necessary to protect the rights, property, or safety of Fullvisitor, its users, or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on Mouseflow’s behalf (e.g. billing, data storage, or support) with strict restrictions intended to prevent the data from being used or shared except as directed by Fullvisitor.
12. Warranty and Indemnification
Fullvisitor warrants that: (i) each of its employees has the proper skill, training and background necessary to accomplish their assigned tasks; (ii) all Services will be performed in a competent and professional manner, by qualified personnel.
Customer will indemnify, defend and hold Fullvisitor harmless for all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees) that arise out of or in connection with Customer’s use of the Software or Services, termination, or failure to comply with this Agreement.
Subject to the applicable statute of limitations, the indemnity set forth in this Section 12 will continue in full force and effect subsequent to and notwithstanding this Agreement’s expiration or termination.
13. Disclaimer of Warranties
The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors.
Fullvisitor may make improvements and/or changes to the Account, Service or Software at any time, with or without notice.
Fullvisitor does not represent or warrant that the Account, Service, or Software will be uninterrupted or error-free, that defects will be corrected, or that the Service, Software, or Server is free of viruses or other harmful components.
Fullvisitor does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable.
Customer specifically agrees that Fullvisitor and its subsidiaries shall not be responsible for unauthorized access to or alteration of the Customer Data or data from Customer’s Website(s).
THE SERVICE, THE SOFTWARE, DOCUMENTATION AND REPORTS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY Fullvisitor AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION OR REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.
Fullvisitor DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET CUSTOMER’S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED.
THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS TERMS AND CONDITIONS AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.
14. Limitation on Liability
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 12 TITLED “WARRANTY AND INDEMNIFICATION” ABOVE WITH RESPECT TO CLAIMS BY THIRD PARTIES, NO PARTY OR ANY OF ITS SUBSIDIARIES AND/OR AFFILIATES OR EMPLOYEES SHALL BE CUMULATIVELY LIABLE TO THE OTHER FOR (A) ANY LOSS OR DAMAGE IN EXCESS OF $250, OR (B) ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY AND/OR ITS SUBSIDIARIES OR AFFILIATES OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN SOME INSTANCES, AND TO THAT EXTENT, SUCH LIMITATIONS OR EXCLUSIONS DO NOT APPLY.
15. Proprietary Rights
The Service, which includes, but is not limited to, the Account and Software, together with all intellectual property rights is, and shall remain, the property of Fullvisitor (and its subsidiaries).
All rights not expressly granted to Customer in this Agreement are hereby exclusively reserved and retained by Fullvisitor and its licensors without restriction, including, without limitation, Mouseflow’s (and its subsidiaries’) right to sole ownership of the Software and Documentation.
Without limiting the generality of the foregoing, Customer agrees not to (and to not allow any Third Party to): (a) sublicense, distribute, or use the Service or the Software outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or Service or otherwise attempt to discover any source code or trade secrets related to the Software of Service; (c) use the Brand Features or any copyright or other Proprietary Rights associated with the Software or the Service for any purpose without the express written consent of Fullvisitor; (d) register, attempt to register, or assist anyone else in creating or registering any Brand Feature, copyright, or other proprietary right associated with Fullvisitor (or its subsidiaries) ; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Software or the Service.
16. Applicable Law and Forum
This Agreement shall be governed and construed in accordance with the laws of Denmark without regard to the conflicts of laws or principles thereof.
The parties will resolve any disputes in the courts located in Denmark, to whose exclusive jurisdiction and venue they irrevocably submit.
17. Notice
Fullvisitor may provide any notice to Customer under these Terms and Conditions by: (i) posting a notice on the Service dashboard; or (ii) email sent to the Account owner’s registered email address. Such notices will be effective upon the moment Customer read the posting or Fullvisitor sends the email.
Customer may provide any notice to Fullvisitor under these Terms and Conditions by email sent to [email protected]. Such notices will be effective upon the moment Customer receives a confirmation receipt by an automated email response.
18. Nonwaiver
Any failure by a party to insist upon or enforce strict performance by the other party of any of the provisions of this Agreement, or to exercise any right or remedy under this Agreement, will not be construed as a waiver or relinquishment of any right to assert or rely upon any such provision, right, or remedy in that or any other instance.
19. Entire Agreement
This Agreement constitutes the entire agreement between the parties concerning its subject matter, and supersedes all prior agreements and representations between the parties.
20. Modifications
Fullvisitor reserves the right to change or modify the Service or this Agreement at any time and with or without notice Customer is responsible for regularly reviewing and being aware of such changes.
21. Severability
If any provision of this Agreement is invalid or unenforceable under any statute or rule of law, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
22. Headings
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
23. Assignment
Customer may not assign or otherwise transfer any of its rights hereunder without prior written consent from a duly authorized representative of Fullvisitor; any such attempt is void. Except Customer may transfer this Agreement to an affiliated company or in the case of a merger or sale of all or substantially all of its assets or ownership.
24. Survival
Sections 5, 7, 10, 12-16 shall survive termination of Customer’s subscription.
25. Force Majeure
Fullvisitor shall be excused from performance hereunder to the extent that performance is prevented, delayed, or obstructed by causes beyond its reasonable control.
26. Independent Contractors
The relationship between Fullvisitor and Customer is not one of partnership, but independent contractors.