TrackConsole Terms of Use
The following are the terms and conditions for use of the TrackConsole Ltd. ("TrackConsole") software and service described herein (the "Software"). Please read them carefully. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SOFTWARE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF these terms of use ("AGREEMENT"). The Software is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
I. ACCOUNT
To register for the Software and create an account, you must complete the registration process by providing TrackConsole with complete and accurate information as prompted by the registration form, including e-mail address (username) and password. You shall protect your password and take full responsibility for your own and third party activities that occur under your account. You agree to notify TrackConsole immediately of any unauthorized use of your account or any other breach of security.
From time to time, TrackConsole may find it necessary to access your account. For instance, TrackConsole may access your account for support, maintenance or security-related reasons. In such event, TrackConsole will, if possible, provide you notice of its intent [to use your username and password] to do so. Regardless of whether such notice is provided, you acknowledge and consent to such access.
Payment, Refunds, Upgrading and Downgrading Terms
1. The Software is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. With the activation of your first initial account you will have a 30 day money back guarantee. If you are dissatisfied with our software or service for any reason, you can request for a full refund if you cancel your account within 30 days after the first initial activation of your account.
2. Subscription downgrades take effect at the end of the current billing period. Subscription upgrades take effect immediately. Downgrading the Service by switching to a plan with a shorter history may cause loss of historical data for which TrackConsole is not liable
3. We use various billing service providers. When using such provider’s services, you agree to follow and comply with the policies of such provider.
Account Cancellation
1. The only accepted method for canceling your account is via the TrackConsole website account settings in the Control Panel. An email or phone request to cancel your account is not considered cancellation. You can cancel your Software at any time when you are logged into your TrackConsole account by going to your Control Panel and using the cancellation link.
2. If you cancel the Software before the end of your current paid up period, your cancellation will take effect immediately and you will not be charged again.
II. LICENSE
TrackConsole hereby grants you a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Software solely as necessary to use the Service for one or more web pages that you own and control (collectively, the "Website"). Subject to the terms and conditions of this Agreement, You will download the on TrackConsole’s server captured visiting data of the Website with the TrackConsole Software. Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, Documentation and the Reports) is conditioned upon your compliance with the terms and conditions of the Agreement, including the following:
You will not ,nor will you allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the SC, the Processing Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) 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. You will use the Software and Service solely for your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software and Service.
The license will expire immediately upon failure to comply with the terms of this Agreement. Upon such expiration, you must destroy all originals and copies of the SC in your possession and so certify in writing to TrackConsole within 3 business days of termination and cease any further use of the Software and Service without the express written consent of TrackConsole
III. FEES
As a condition of your use of and access to the Service, you agree to pay all applicable fees as described on the TrackConsole website. Service may be priced based on usage, which means the number of page views (each, a "Visit") of a registered web page for a specified usage period (each, a "Session"). With respect to each such web page, your access to the Service will expire unless renewed when (i) you reach the maximum number of Visits for your software license; or (ii) you reach the maximum number of webpages for your software license, whichever occurs first. Upon any such expiration with respect to a Session for any web page, TrackConsole will have no obligation to track, collect, maintain or provide to you information or reports (i) with respect to any Visits in excess of the registered number of Visits therefor, or (ii) at any time after the expiration of the specified usage period for the applicable Session.
We may change the fees for our Service at any time and from time to time effective immediately upon posting on our website, provided that, no fee change will be effective as to Software orders accepted by TrackConsole prior to the effective date of such change.
Unless otherwise stated, all fees are stated in U.S. Dollars. All fees are payable [monthly/annually] in advance. We reserve the right to deactivate your access to the Software for failure to pay applicable fees as to any Session. If you provide us with a credit card that expires during the term of this Agreement, we reserve the right to charge any renewal card issued to you as a replacement.
IV. INFORMATION RIGHTS
You hereby allow TrackConsole to collect, store and process your Visitor Data. Visitor Data means the data concerning the characteristics and activities of visitors to your website that is collected through use of the SC and then forwarded to the Servers and analyzed by the Software.The Visitor Data may include one or more cookies that TrackConsole uses to differentiate between users. TrackConsole may examine Visitor Data to provide you with technical support or to improve the Software and Service.
TrackConsole may retain and use, subject to the terms of its Privacy Policy (located at http://www.TrackConsole.com/Privacy-Policy-TrackConsole-Software.html, or such other URL as TrackConsole may provide from time to time), information collected on your use of the Service, in order to, among others, generate anonymous aggregated reports. TrackConsole will not share information associated with you or your Website with any third parties unless TrackConsole (i) has your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of TrackConsole, its users or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on TrackConsole's behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by TrackConsole. When this is done, it is subject to agreements that oblige those parties to process such information only on TrackConsole's instructions and in compliance with this Agreement and appropriate confidentiality and security measures.
V. PRIVACY
You will not (and will not allow any third party to) use the Software to track or collect personally identifiable information of visitors that was not voluntarily supplied to you, nor will you (or will you allow any third party to) associate any data gathered from your website(s) (or such third parties' website(s)) with any personally identifying information from any source as part of your use (or such third parties' use) of the Software. You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to your websites.
V.a DISCLOSURE
You must post a privacy policy and that policy must provide, among other customary provisions, the following or equivalent notice:
"This site uses TrackConsole web analytics software. TrackConsole may record mouse clicks, mouse movements and scrolling activity. TrackConsole does not collect personally identifiable information that you do not voluntarily enter in this website. TrackConsole does not track your browsing habits across web sites which do not use TrackConsole services. For more information see Privacy Policy for Data Collected by the TrackConsole Ltd. ("TrackConsole") web analytics software We are using the information collected by TrackConsole software to [explain your use of the data]”
VI. CONFIDENTIALITY
Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information, except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without such other Party's prior written consent. Each Party shall take reasonable measures to prevent the disclosure and unauthorized use of Confidential Information of the other Party.
The term "Confidential Information" shall mean any information disclosed by one Party to the other Party in connection with this Agreement which is disclosed in writing or orally and is identified as "Confidential" or which a Party should reasonably believe is treated as confidential by such other Party, and any other information disclosed by TrackConsole that relates to the Software, the TrackConsole Script or TrackConsole technology (including your password) that is not publicly known. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (i) was developed independently by the receiving Party without any use of the Confidential Information of the other Party or by employees of the receiving Party who have no knowledge of such Confidential Information; (ii) becomes known to the receiving Party, without restriction, from a third party without breach of this Agreement or any other obligation of confidentiality; (iii) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the receiving Party; (iv) was rightfully known to the receiving Party as demonstrated by prior written records at the time of disclosure; or (v) is disclosed by agreement of the Parties or pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving Party shall provide prompt notice thereof to the other Party and shall use commercially reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information.
VII. PROPRIETARY RIGHTS; RESTRICTIONS ON USE
Except for the limited licenses expressly granted herein, TrackConsole expressly reserves all right, title and interest in and to the TrackConsole Script, the content of the TrackConsole website, and all processing, analytics, and other software and technology used by TrackConsole in the analysis of your website and/or the provision of the Software, including, without limitation, any derivatives, improvements, enhancements or extensions of the Software conceived, reduced to practice or otherwise developed on or on behalf of TrackConsole, all of which are valuable assets of the Software, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
You shall not: (i) use, or allow the use of, the Software, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Software in any manner that is inconsistent with user documentation, if any, supplied to you by TrackConsole or inconsistent with TrackConsole's standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Software, or attempt to access data of any other customer of TrackConsole; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by TrackConsole; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Software.
VII. INDEMNIFICATION
You agree to indemnify, hold harmless and defend TrackConsole, at your expense, against any and all third party claims, actions, proceedings, and suits brought against TrackConsole or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by TrackConsole or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Software, or (iii) your unauthorized use of the TrackConsole Script. In such a case, TrackConsole will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. TrackConsole reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
IX. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
You represent and warrant to TrackConsole that you own all right, title and interest in and to the URLs of your website, and you own or have rights to publish all of the content published on or through your website and the user interface of your website.
The information, reports and services included in or available through the Software may include inaccuracies or typographical errors. Changes are periodically added to the information herein. TrackConsole and/or its respective suppliers may make improvements and/or changes in the Software at any time, without obligation to notify any person or entity of such changes.
TrackConsole does not represent or warrant that (i) the Software will be error-free or accessible at all times, (ii) defects will be corrected, (iii) the Software or the server that makes it available, are free of viruses or other harmful component, or (iv) the use or the results of the use of the Software or the materials made available as part of the Software will be correct, accurate, timely, or otherwise reliable. You specifically agree that TrackConsole shall not be responsible for unauthorized access to or alteration of your data.
THE SOFTWARE, THE TRACKCONSOLE SCRIPT AND REPORTS ARE [PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY TRACKCONSOLE EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, THE SOFTWARE, THE TRACKCONSOLE SCRIPT, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. TRACKCONSOLE DOES NOT WARRANT THAT THE SOFTWARE, THE TRACKCONSOLE SCRIPT OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
X. SERVICE LEVELS
TrackConsole does not guarantee, and shall have no liability for, any service down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance, or (iv) relating to events beyond TrackConsole's control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where TrackConsole or your servers are located or co-located.
XI. LIMITATIONS OF LIABILITY
TRACKCONSOLE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SOFTWARE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF TRACKCONSOLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
TRACKCONSOLE'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO TRACKCONSOLE FOR USE OF THE SOFTWARE.
XII. U.S. GOVERNMENT RIGHTS
If the use of the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in TrackConsole Technology, including its rights to use, modify, reproduce, release, perform, display or disclose the TrackConsole Technology, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
XIII. TERM AND TERMINATION
Either party may terminate this agreement at any time and for any reason. In addition, this agreement will terminate immediately, without notice, if you fail to comply with the terms of this Agreement or if you remove the TrackConsole Script from your web pages. Further, if you do not renew your account within thirty (30) days after expiration of your last-to-expire Session, this agreement will automatically terminate.
Upon any termination of this agreement, (i) TrackConsole will cease providing the Software; (ii) you will delete all copies of the TrackConsole Script from your web page(s) and certify thereto in writing to TrackConsole within five (5) business days of such termination; (iii) any outstanding balance payable by you to TrackConsole will become immediately due and payable; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you.
In addition, upon expiration of any Session with respect to a web page, you shall delete all copies of the TrackConsole Script from such web page. You understand and acknowledge that, unless and until the TrackConsole Script is deleted from a web page, such script may continue to track information on such web page on an automated basis.
XIV. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
TrackConsole reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Software, at any time, by posting the new agreement to the TrackConsole website located at http://www.trackconsole.com/ (or such other URL as TrackConsole may provide). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of TrackConsole, (ii) you accept updated terms online, or (iii) you continue to use the Software after TrackConsole has posted updates to the Agreement or to any policy governing the Software.
XV. COMPLIANCE
You will not use the Software in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
XVI. MISCELLANEOUS; APPLICABLE LAW AND VENUE
TrackConsole shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable for any reason, 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. This Agreement shall be governed by and construed under the laws of the State of The Netherlands without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Utrecht, The Netherlands. Any notices to TrackConsole must be sent to: TrackConsole Ltd., John F. Kennedylaan 99, 3981 GB, Bunnik, The Netherlands, via first class or air mail or overnight courier, and are deemed given upon receipt. You may not assign or otherwise transfer any of your rights hereunder without TrackConsole's prior written consent, and any such attempt is void. The relationship between TrackConsole and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. TrackConsole reserves the right to amend, change these terms of service, except for the agreed upon terms of the Account and the Subscription, at any time without notice, and encourages you to periodically review them to ensure you are in compliance therewith.
