Date Published – 20th Aug 2018
You may not access the Service if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on May 1, 2017. It is effective between You and Us as of the date of You accepting this Agreement.
1.1 “Service” means the application(s) and/or technology provided under this Agreement to You that We have either: (i) not made generally available to Our customers, and has been designated by Us as beta, limited release, developer preview, development or test bed environments; or by descriptions of similar import, such as, but not limited to, “Free Plan” Service excludes Content and Non-Visitly Applications.
1.2 “Content” means information obtained by Us from Our content licensors or publicly available sources and which may be made available to You through the Service, as may be more fully described in the Documentation.
1.3 “Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, and which may be accessible via Visitly.com or login to the applicable infrastructure(s) from which the Service otherwise operates. Your use of the Service shall be subject to any notice and licensing information in the Documentation as may be applicable to the infrastructure from which it operates and/or the Service itself.
1.4 “GA Service” means any successor version of the applicable Service that We may make generally available.
1.5 “Marketplace” means an online directory, catalog or marketplace of applications that may interoperate with the Service.
1.6 “Non-Visitly Application” means a Web-based or offline software application that is provided by You or a third party and which may interoperate with the Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as Visitly Labs or by a similar designation.
1.7 “Users” means individuals who are authorized by You to use the Service, and have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to employees, consultants, contractors and agents of You or Your affiliates.
1.8 “We,” “Us” or “Our” means Visitly, LLC.
1.9 “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity.
2. Use of Service. We shall make the Service and Content available to You subject to the terms of this Agreement and the applicable Documentation. You shall allow only Users to access the Service, and only for the purpose(s) described by Us. The Service may be subject to additional terms as communicated to You. Using Visitly’s free plan authorizes us to use your company’s name and logo for marketing and promotional purposes.
3. Acquisition of Non-Visitly Products and Services. The Service may contain features designed to interoperate with Non-Visitly Applications. To use such features, You may be required to obtain access to Non-Visitly Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Visitly Applications. Any acquisition by You of such Non-Visitly products or services, and any exchange of data between You and any non-Visitly provider, is solely between You and the applicable non-Visitly provider. If You install or enable a Non-Visitly Application for use with the Service, You grant Us permission to allow the provider of that Non-Visitly Application to access any data submitted to or collected through the Service as required for the interoperation of that Non-Visitly Application with the Service. We are not responsible for any disclosure, modification or deletion of such data resulting from access by the provider of such Non-Visitly Application.
4. Removal of Content and Non-Visitly Applications. If We are required by a licensor or any third-party rights holder to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may discontinue Your access to such Content through the Service. In addition, We may, upon notice to You, require You to discontinue all use of such Content and, to the extent not prohibited by law, promptly remove such Content from its systems. If We receive information that a Non-Visitly Application hosted on a Service by You may violate Our External-Facing Service Policy or applicable law or third party rights, We may so notify You and in such event You will promptly disable such Non-Visitly Application or modify the Non-Visitly Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Visitly Application until the potential violation is resolved. If so requested by Us, You shall certify such deletion and discontinuance of use in writing and We shall be authorized to provide a copy of such certification to any such third party claimant or governmental authority, as applicable.
5. Feedback & Aggregated Data. If reasonably requested by Us, You agree to provide feedback to Us regarding the Service, and Visitly may use such feedback as set forth in section 11 of this Agreement. We may use the data generated in connection with Your use of the Service (e.g., types of web applications utilized); provided, however, in the event We provide such data to third parties, it shall be anonymized and presented in the aggregate so that it cannot be linked specifically to You or any User.
6. Confidentiality. Information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement that is identified as confidential or that would reasonably be understood to be confidential based on the nature of the information or the circumstances surrounding its disclosure, is Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Service and all information provided or disclosed to You relating to the Service is Our Confidential Information. The Receiving Party shall use the same degree of care to protect such Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. Term and Termination. This Agreement shall commence upon Your acceptance and shall remain in effect with respect to a Service until the earlier of either (1) the generally availability of the applicable Service, or (2) Our ceasing to make the applicable Service functionality available to You.
8. Your Responsibilities. You are responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. You shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Service or Content nor make the Service or Content available to any third party, other than as expressly permitted by this Agreement; (b) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (d) use the Service to send or store any virus, worm, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or programs; (e) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (f) attempt to gain unauthorized access to the Content, the Service or its related systems or networks, or permit direct or indirect access to or use of the Service or Content in a way that circumvents a contractual usage limit; (g) modify, copy or create derivative works based on the Service; (h) modify, copy or create derivative works based on Content except as expressly permitted under this Agreement or the Documentation; (h) frame or mirror any part of the Service or Content, other than framing on Your own intranets or otherwise for its own internal business purposes; (i) reverse engineer the Service (to the extent such restriction is permitted by law); (j) access the Service in order to build a competitive product or service; (k) access the Service or Content in order to copy any ideas, features, functions or graphics of the Service or Content; (l) send or store any data subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; or (m) otherwise use the Service in manner that violates applicable laws. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information and material submitted to the Service by You or by Users or on their behalf, the means by which You acquired such information and material, and the use of such content and data; (ii) to the extent any Documentation imposes restrictions on submission of data to services which operate on the same infrastructure as the Service, You shall abide by such restrictions in Your submission of data to the Service; (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and Content, and notify Us promptly of any such unauthorized access or use; and (iv) comply with the Documentation (if applicable) and all applicable local, state, federal and foreign laws, and written or electronically provided instructions from Us in using the Service and Content; (v) comply with terms of service of Non-Visitly Applications with which You use the Service or Content.
9. No Warranty. THE SERVICE IS PROVIDED “AS-IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Service may contain bugs or errors. Any production use of the Service is at Your sole risk. You acknowledge that We may discontinue making the Service available to You at any time in Our sole discretion, and may never make the Service generally available.
10. No Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY HEREUNDER TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATA OR USE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Proprietary Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service and/or any GA Service any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Service.
12. Relationship to Other Agreements. You may be or become entitled to receive access to other of Our online services or a generally available version of the GA Service under a separate agreement with Us, including but not limited to the Master Subscription Agreement. In such case, that separate agreement will govern Your access to Our other online services or generally available version of the GA Service, but will not govern Your access to the Service, and this Agreement will govern Your access to the Service but not Your access to Our other online services or any generally available versions of the GA Service. If during the Term of this Agreement We make a GA Service generally available, then following such general availability, the use of such GA Service shall thereafter be governed by the terms and conditions of the Master Subscription Agreement (and not this Agreement) unless We give You notice of the applicability of different terms and conditions for such GA Service. The use of a GA Service may require Your payment of subscription or other usage fees as applicable to Our customers generally for use of such GA Service.
13. Communications. By registering for and using the Service, You thereby consent to receiving information about Visitly and its products and services, via the contact information that You provide to Visitly. You may opt-out of any such communications at any time, by providing Visitly with notification of Your intent to opt-out in accordance with the instructions contained in such communications.
14. General Provisions. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. Each party hereby consents to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California to adjudicate any dispute arising out of or relating to this Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.