Terms and Conditions
Date: 28th July 2017
This Agreement (the “Agreement”) is a legal agreement between You (an entity or person) and StickyMarketers that governs your limited, non-exclusive, terminable right to the use of the StickyMarketers website (“Site”) and the services provided including; Heatmaps, Visitor Recordings, Funnels and Form Analysis, Feedback Polls, Surveys and Recruiters (collectively, the “Service(s)”). By clicking on the “Create Account” button, or otherwise using the Service, You agree to be bound by the terms of this Agreement.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT SIGN UP FOR AN ACCOUNT AND CANNOT USE THE SERVICE. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
We may amend this Agreement from time-to-time. All amended terms automatically take effect on the sooner of the day you use the Service or 10 days after they are initially posted on the Site. Your use of the Site following the effective date of any modifications to this agreement will constitute your acceptance of the Agreement, as modified. We will provide you with advance notice of the modifications, by posting a notice on our Site. You agree that this is adequate notice.
1. Account Registration and Access
To use the Site and benefit from our Services, you must create an account by filling out a registration form and by providing us with the required information. You agree to provide us with complete and accurate information upon registration and to keep such information accurate and up-to-date. You are advised to keep your login details strictly confidential and to refrain from disclosing these to any other third party. We shall not be held responsible for unauthorized access to your account.
We reserve the right to access your account and the information that you have provided, for support and maintenance purposes or for any security-related or business reasons.
We offer a different subscription plans to our Services. For information on our plans, including pricing information please see StickyMarketers.com All fees quoted on our site are exclusive of VAT or any other taxes that may be applicable.
We reserve the right to amend the subscription fees at any time or introduce new fees or charges. We will provide you with written notice in advance during which you will have the right to unsubscribe from your current plan, should you not agree with these changes. The percentage off forever promotional plans for ActiveCampaign are exempt from new fees and charges and as they are at a fixed percentage discount off of ActiveCampaign’s listed pricing, the price of these plans would only change should ActiveCampaign change its pricing.
3. Limited Licenses
Subject to these terms, StickyMarketers grants You a limited, revocable, non-exclusive, non-transferable and non-assignable license to use the Site and Service for Your own individual, enterprise, and limited commercial use subject to the other terms of this Agreement. You agree not to resell the Service. You may not transfer, lease, sub-licence, modify, reverse engineer, decompile or disassemble the Site and Service. You may not copy, adapt, alter, modify, translate, or create derivative works of the Site and System without written authorization of StickyMarketers. You may not use the System for illegal purposes or for the transmission of information that is unlawful, libelous, abusive, obscene or that infringes the rights or intellectual property of others. You may not permit other individuals to use the System, including but not limited to shared use via a network connection, except under the terms of this Agreement. You may not rent, lease, loan, sublicense, distribute, or otherwise transfer rights to the System. You may not circumvent or disable any technological features or measures in the System for protection of intellectual property rights. You may not use the System in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. Any such forbidden use shall immediately terminate Your license to the Site and System.
4. Proprietary Rights
All rights, titles and interest in the Service and any content contained herein is the exclusive property of StickyMarketers, except as otherwise stated. Unless otherwise specified, this Service is for your personal and limited commercial use only and you may print, copy and download any information or portion of the Site for your personal use only. If you copy or download any information from this Site, you agree that you will not remove or obscure any copyright or other notices or legends contained in any such information.
You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or services obtained from the Service, except for the purposes expressly provided herein, without StickyMarketers’ prior written approval.
Except for any intellectual property already owned, registered or vested in You, or created by or for You during the duration of this Agreement, all StickyMarketers trademarks, trade names, service marks and logos are proprietary to StickyMarketers. Your use of any marks on the Site and Service in any manner other than as authorized in these Terms and Conditions, or as authorized in writing by StickyMarketers, is strictly prohibited.
In the course of performing the Services, StickyMarketers will have access to your content, data, information and know-how relating to your business some of which is not publically available, including but not limited to technical and commercial information concerning the business, systems, processes, software and services of you (including any of your affiliates) (“Data”). All right, title and interest in the Data is the exclusive property of you, except as otherwise stated.
StickyMarketers may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any Data, except for the Services expressly provided herein, without your prior written approval.
For the avoidance of doubt, StickyMarketers will keep the Data confidential and maintain your confidentiality in the strictest of confidence and not disclose or permit disclosure of any Data to any unauthorized person, and only make such limited use and number of copies of the Data as strictly necessary for StickyMarketers to perform the Services, and take proper and all reasonable measures to ensure the confidentiality of the Data and procure that authorized persons to who the Data is disclosed will keep the Data confidential and use it solely to assist with supplying the Services under these Terms and Conditions.
All your trademarks, trade names, service marks and logos are proprietary to you. StickyMarketers’ use of any of your marks in any manner other than as authorized in these Terms and Conditions, or as authorized in writing by you, is strictly prohibited.
For the avoidance of doubt, all such rights to StickyMarketers to use your Data shall be granted solely for term of these Terms and Conditions.
The materials on the StickyMarketers Site and Services are provided “as is”. Other than the express warranties in Clause 6 of these Terms and Conditions StickyMarketers makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or other violation of rights. Further, StickyMarketers does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.
StickyMarketers warrants and represents to you that:
The Service is provided in accordance with all applicable laws and regulations;
All intellectual property rights (including without limitation all copyright, trademarks, design rights, service marks, whether registered or unregistered) in any content provided by StickyMarketers do not infringe the rights of third parties when used in accordance with these Terms and Conditions; and
In no event shall StickyMarketers, its owners, suppliers or any of their respective owners, employees and/or agents be liable to you or any third party for direct, indirect, special, exemplary, punitive or other consequential or incidental damages (including but not limited to any lost profits or revenue, interruption, loss of programs or other information, or any other pecuniary loss) arising directly or indirectly from (i) your use of or access to the Service, or any content, products or services distributed on or provided through the website and Service, (ii) for any failure or interruption of the Service; whether as a result of errors, omissions, loss of data, defects, viruses, interruptions or delays in operations or transmission or any other cause, whether based on warranty, contract, tort (including negligence) or any other legal theory, even if StickyMarketers or its suppliers have been expressly advised of the possibility of such damages, unless such failure or interruption of Service or your use of or access to the Service or any content, product or services distributed on or provided through the Site and Service, is caused by StickyMarketers’ willful misconduct or gross negligence.
Some jurisdictions restrict the limitation of liability or damages, so the above exclusions and limitations may not apply to you. If any part of the limitation of liability set forth above is unenforceable under applicable law, StickyMarketers’ aggregate liability will be limited to the maximum extent permitted by law in the applicable jurisdiction.
The materials appearing on the StickyMarketers Site and Services may include technical, typographical, or photographic errors. StickyMarketers does not warrant that any of the materials on its Site and Service are accurate, complete, or current. StickyMarketers may make changes to the materials contained on its Site and Service at any time without notice. StickyMarketers however, makes no commitment of any kind to update the materials.
9. Assumption of Risk
You use the Internet solely at your own risk and subject to all applicable local, state, national, and international laws and regulations. While StickyMarketers has endeavored to create a secure and reliable Site and Service, StickyMarketers is not responsible for the security of any information outside of its control,. StickyMarketers shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Site.
10. Your Responsibility to Protect Data and Password
It is your responsibility to protect your personal data and maintain the confidentiality of your user information and password. You are also responsible for immediately notifying StickyMarketers of any unauthorized use of your account, or breach of your account information or password. StickyMarketers will not be liable for any loss that You may incur as a result of someone else using Your username or password, either with or without Your knowledge. To the extent allowable by law, you shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for your failure to safeguard user and password information and/or promptly notify StickyMarketers about unauthorized use of your account or breach of your account information or password.
The Site may include links to certain website, materials, or content developed by third parties. StickyMarketers has not reviewed all of the sites linked to its Internet Site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by StickyMarketers of the Site. Use of any such linked website is at your own risk. StickyMarketers reserves the right in its sole and absolute discretion to discontinue links to any other sites at any time and for any reason.
12. Enforcing Security
Actual or attempted unauthorized use of any of the Site and Service may result in criminal and/or civil prosecution. For your protection, we reserve the right to view, monitor, and record activity on the Site and Service without notice or further permission from you, to the fullest extent permitted by applicable law and only in accordance with these Terms and Conditions. This right extends to our review of tracking activity and details pertaining to claimed violations by users. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site and Service.
13. Compliance with Laws
You will use the Service and Site in full compliance with all applicable laws and regulations with regard to your use of this Site and service provided by the Site, to include, without limitation, the laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications.
Each party agrees to defend, indemnify and hold each other and its officers, owners, partners, directors, employees, agents, subsidiaries, affiliates, shareholders, licensors, suppliers and other partners harmless, in full and in perpetuity against any third party liabilities, claims, costs, expenses, obligations, losses or damages, excluding indirect damages and consequential loss that may arise from i) the other party’s unauthorised use of material obtained through the Site and Service; ii) the other party’s breach of this Agreement; iii) the other party’s use and access to the Site and Service not in accordance with the Terms and Conditions; iv) the other party’s other violation, alleged or actual, of any third party right; and (v) StickyMarketers’ breach of the warranties in clause 6. The indemnifying party is solely responsible for defending any such claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the indemnified party in connection therewith. Each party shall not, without the prior express written approval of the other, settle, dispose or enter into any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any the indemnified party. This defense and indemnification obligation will survive this Agreement and the other party’s access and/or use of the website.
15. Termination of License
StickyMarketers may terminate your right to use the Site and Service with or without cause at any time. You may also terminate this Agreement by simply discontinuing use of the Service. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement. In the event of any termination of this Agreement, the limitations on your use of the Software as set forth in Section 2 and StickyMarketers’ warranties as set forth in Clause 6 shall survive such termination, and each party agree to be bound by those terms.
16. Governing Law and Dispute Resolution
This Agreement is governed by the laws of New York. The parties agree that any dispute or claim arising out of or in connection with this Agreement or its subject-matter, shall be subject to the non-exclusive jurisdiction of the New York.
17. Waiver of Jury Trial
EACH OF THE PARTIES WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ALL CLAIMS OR CAUSES OF ACTION (INCLUDING COUNTERCLAIMS) RELATED TO OR ARISING OUT OF THIS AGREEMENT BROUGHT BY EITHER PARTY AGAINST THE OTHER. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS OF OR MODIFICATIONS TO THIS AGREEMENT.
18. No Class Actions
All claims between the parties related to this Agreement will be litigated individually and you will not consolidate or seek class treatment for any claim with respect to the Services. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
19. Waiver of Compliance of this Agreement
Even if we do not require strict compliance with the Agreement in each instance, you will be obligated to comply with the Agreement. Our failure to enforce, at any time, any of the provisions, conditions or requirements of the Agreement, or the failure to require, at any time, performance by you of any of the provisions of the Agreement, will in no way waive your obligation to comply with any of the provisions of the Agreement or our ability to enforce each and every such provision as written.
Any and all waivers by StickyMarketers of any provision, condition or requirement of the Agreement will only be effective against StickyMarketers if it is in writing and signed by an authorized officer of StickyMarketers, and any such written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
20. Assignment and Delegation
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, StickyMarketers for any third party that assumes our rights and obligations under this Agreement.
If any part of this Agreement is held by a court of competent jurisdiction to be unenforceable, the validity of the remainder of the Agreement will not be affected.
Rights and obligations under this Agreement which by their nature are intended to survive termination, including without limitation the indemnification and limitations provisions, will remain in full effect after termination or expiration of the Agreement.
21. Privacy / Data Protection
By using StickyMarketers, you acknowledge that you may collect information which is considered as being personal information and/or personal information which is defined as being sensitive, under the applicable laws. You acknowledge that you shall be solely and exclusively responsible to provide all the necessary controls on your website as well as obtain any consent, which you might be legally obliged to obtain.