Terms of Service (archived 26 September, 2023)

Last updated: 7 December 2022

Dear Client, welcome to smartlook.com. These terms of service (“Terms”) set out general terms and conditions between us (Smartlook.com, s.r.o., Reg. no.: 09508830, with registered office at Šumavská 524/31, Veveří,

602 00 Brno, Czech Republic, registered in the Commercial Register administered by the Regional court in Brno under file No. C 119362) and you when you use Smartlook (“Service”).

The Service is offered to you subject to your acceptance of these Terms without modification. No one can use the Service without agreeing to them. When accepted by you, the Terms form a legally binding agreement between you and us. If you are entering into the Terms on behalf of an entity (such as your employer or the company you work for), by accepting the Terms, you represent that you have the legal authority to bind that entity. In such a case, we deem this entity to be our Client.

PLEASE READ THESE TERMS CAREFULLY. BY CLICKING THE CHECKBOX WHILE CREATING YOUR USER ACCOUNT YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS. IF YOU HAVE NOT READ THE TERMS, DO NOT UNDERSTAND IT OR DO NOT AGREE TO BE BOUND BY IT, DO NOT CLICK THE CHECKBOX AND DO NOT ACCESS OR OTHERWISE USE THE SERVICE.

SERVICE
a. The Service is a worldwide (with the exception of countries for which the U.S. Export Administration Regulations, European Union or other relevant body regulations prohibit export transactions),
non-exclusive, non-transferable and time limited right to access and use Smartlook tools on a subscription basis in the form of Software as a Service (SaaS). You may use the Service only for the purpose of collecting and analysing traffic and data on selected websites or applications for your internal business needs. We provide qualitative website and mobile app analytics with various modules (e.g., visitor recordings/user replay, automatic event tracking, conversion funnels, heatmaps etc.). Further description of tools included in the Service is available at www.smartlook.com.
b. The Service is only available over the internet. It is your responsibility to set up your devices and network connections correctly so that you can use the Service to its full extent, including setting up your web browsers. We are not responsible for the operation of your internet connection or for the correct settings of your devices or networks.
c. We are doing our best to run the Service without interruption. However, in some cases, your access to the Service may be restricted or suspended, especially due to (i) downtime or maintenance windows,
(ii) technical failures, (iii) acts or omissions of third parties (e.g. hosting providers’ faults, irregularity or termination of support for third-party services on which the Service depends, attacks on the Service etc.), (iv) connectivity issues or (v) force majeure.
d. We may also restrict, suspend or terminate your access to the Service and to your user account if (i) we have a suspicion or if we detect any malicious software, code or other harmful activity in your user account, (ii) you breach the Terms, any DPA we might have entered into under article 5.b. of these Terms, our Privacy policy, or any applicable legislation, (iii) you are found to be bankrupt, enter into liquidation or have enforcement proceedings commenced against you or (iv) you fail to pay for the Service in time. If you are using the free version (including free trial) of the Service, we may restrict, suspend or terminate your access to the Service and your user account at any time for convenience. In any case of restriction or suspension of access to your user account you are not entitled to any compensation from us.
e. The Service is only intended for use by entrepreneurs or public administration for the purposes of their business or other professional or public administration activity. You represent that you will use the Service as an entrepreneur or public administration or on their behalf and solely for the purposes linked to this activity. The Service is not intended for and shall not be used by a consumer.

USER ACCOUNT
a. The Service is accessible via your user account. You will submit only true, accurate, complete, and current information to us, via a form we have prepared, for the purpose of creating the user account and you will keep it up to date. You are responsible for any activity in your account.
b. You will keep your login credentials safe and confidential and will not communicate them to other persons. In order to prevent any breach into your user account, you are required to (i) protect any device used in relation with the Service against misuse, (ii) set up secure login credentials, (iii) prevent any access of third parties to the credentials and (iv) protect the credentials and prevent abuse of credentials.
c. You will notify us without undue delay upon becoming aware of any breach of security or unauthorized use of your user account.
d. We reserve the right for us, our contractors or employees, to access your user account and the information that you have provided, especially for support and maintenance purposes or for any security-related, technical or billing reasons.
e. In an effort to improve the Service, the Service contains features that allow us to track and analyze certain aspects of use and performance of the Service, as well as the operator and operating environment (including problems and issues that arise in connection therewith). While all data are fully anonymized during such tracking, you may still opt-out at any time at www.smartlook.com/opt-out.
f. If you wish to terminate your user account and thus the use of the Service, please contact us at [email protected].

SUBSCRIPTION AND PRICING
a. The scope of use of the Service is based on the subscription plan you choose. Overview of subscription plans, their features and price list is available at www.smartlook.com/pricing. Depending on your subscription plan, you will pay for your subscription in advance on a monthly or an annual basis (“Subscription period”), unless we agree otherwise. Payment will be made by credit/debit card or PayPal (terms and conditions of payment gateway available at www.braintreepayments.com) or based on an invoice due and payable upon presentation. If you want to use the Service without payment obligation, you can use a free version of the Service or a time-limited free trial.
b. You will provide accurate billing and payment information. By selecting a paid subscription, you agree that we may automatically charge you through your selected subscription payment method. After payment, we will make an electronic invoice accessible in your user account. Should automatic charging fail for any reason, we will notify you by email and you will provide us with a new payment method and/or any necessary information for payment processing within 7 days, in case you wish to continue to use the Service. Otherwise, we will consider that you are terminating your use of the Service.
c. We may unilaterally change the price list at any time (but we will give you at least 15 days' notice). The change of price list does not affect the price already paid for the current Subscription period. If you do not reject the new price list within this period, we will charge you the new price at the beginning of the new Subscription period. If you do not agree to the new price the Service will be either terminated at the end of the current Subscription period or it will be converted to a free subscription. In such case article 9.b. of the Terms shall apply.
d. The Subscription period will automatically and repeatedly renew for the same period of time unless you or we cancel it by a written notice of non-renewal at least on the last day of the duration of the current Subscription period. You may cancel your Subscription period renewal via the email address [email protected].
e. Unless stated otherwise, our prices are exclusive of taxes (including VAT) and similar assessments. You are responsible for all sales, use, withholding and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income. If any authority approaches us to pay such taxes or assessments, you will pay them for us or reimburse us without undue delay. The agreed price for the Services is net of any potential withholding tax that may be imposed on our invoice(s) to you. We inform you that we are a payer of the VAT in Czech Republic, and we will charge you the VAT together with the respective price, if applicable under the applicable legislation.
f. Unless we agree otherwise for important reasons, we provide no refunds, regardless of the reason or manner of termination of the use of the Service. Your obligation to pay us the full price for the Subscription period is not affected by the termination of your use of the Service.

USE OF THE SERVICE, SUPPORT
a. You may not (i) commercially exploit the Service in any way, (ii) reproduce or otherwise duplicate the Service, make modifications of or derivative works from the Service, including making a backup copy,
(iii) distribute, license, sublicense, sell, transfer, assign rent or lease the Service, (iv) display the Service or disclose it or your user account to the public, (v) translate, process, modify or otherwise alter the Service, (vi) reverse engineer, decompile, disassemble or otherwise attempt to obtain the source code of the Service, (vii) attempt to breach the security measures of the Service or otherwise attack the Service,
(viii) develop or participate in the development of a service that is based on, derived from, or otherwise competitive with the Software, (ix) use the Service in violation of any law, regulation or rule or (x) remove or alter our designation in the Service.
b. As a part of the Service, we provide support consisting of answering your questions about using and setting up the Service etc. during the Subscription period. We provide support only on working days in Czech Republic from 8 am to 10:30 pm CET Monday through Thursday and from 8 am to 4:30 pm CET on Fridays. You can reach us via [email protected]. We will make every effort to provide you with advice within a reasonable time. However, we are not liable for the unavailability of the support.

PERSONAL DATA PROTECTION
a. Personal data means any information relating to an identified or identifiable natural person (“Personal Data”) as defined in the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”). It is solely your obligation to comply with any applicable legislation when using the Service and collecting Personal Data by the Service.
b. When you use the Service, Personal Data may be processed by the Service depending on how you set it up. If Personal Data are processed, this processing is governed by a Data Processing Agreement (“DPA”). By accepting the Terms and using the Service you are also accepting the DPA. The Terms and the DPA are mutually conditional upon each other and upon acceptance/termination of Terms or DPA, the DPA or Terms are accepted/terminated. Before using the Service, you have to learn all the features and how Personal Data are processed by the Service (available at www.developer.smartlook.com). Our DPA is available at www.smartlook.com/dpa.
c. To perform our obligations stipulated in the Terms, it is necessary for us to process some of your Personal Data (if you are a natural person) or Personal Data of your employees or other cooperating persons, who are using the Service on your behalf and who have access to your user account. All information about how we process such Personal Data are available in our Privacy Policy at www.help.smartlook.com/en/articles/3244452-privacy-policy.

CONFIDENTIALITY
a. Confidential information is any non-public information of a commercial or technological nature, including trade secrets, whether or not marked confidential, which you or we have become or will become aware of, directly or indirectly, through any means of communication or observation, in connection with the use of the Service. Confidential information includes, but is not limited to, trade secrets, know-how, computer programs and their principles of operation, source and machine codes of computer programs, data files, algorithms, architectural designs, analyses, preparatory and conceptual materials, specifications and description, pricing policy, business plans, etc. Confidential information also includes information shared between you and us prior to your use of the Service if it would otherwise be considered confidential as defined herein.
b. Unless otherwise stated in the Terms, both of us will maintain the confidentiality of all confidential information as defined herein and will use it solely for the purpose of using and providing the Service. We both will use our best efforts to prevent the leakage or misuse of confidential information (especially by adequately securing our electronic facilities and communication channels).
c. The obligation of confidentiality shall continue for as long as you have a user account in the Service and for a period of 2 years from its termination.

LINKS TO OTHER WEBSITES
a. The Service may contain links to third-party websites or services that are out of our control. We are not responsible for operation or terms of use of these websites or services nor for any damage or loss caused to you by or in connection with use of any of these websites or services. We strongly recommend that you familiarize yourself in advance with the terms of use of these websites or services.

ADVERTISING
a. We mutually agree to use in the usual manner each party’s marks, logos and trade names to identify the other party in promotional and marketing materials including websites. Unless otherwise stated in the Terms, you will not directly or otherwise register any trademark, domain name, symbol, logo or trade name that is identical to or confusing with any our trademark, domain name, symbol, logo or trade name or that contains elements that are identical to or confusing with any our trademark, domain name, symbol, logo or trade name, nor will you use any such trademark, domain name, symbol, logo or trade name.

TERM AND TERMINATION
a. The Service and access to your user account will be provided for the selected Subscription period or until termination of your access to the free version of the Service. Upon termination, your right to use the Service and user account immediately ceases to exist and the DPA is also immediately terminated.
b. If you do not renew the Subscription period or if your access to the free version of the Service is terminated, we may delete all data associated with your user account and the Service. It is your responsibility to back up your important data. We are not responsible for provision of any backups of your data.

LIABILITY
a. WE WILL IN NO EVENT BE LIABLE UNDER OR IN CONNECTION WITH THE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (I) CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (III) LOSS OF GOODWILL OR REPUTATION, (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (V) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR IRREGULARITY IN THE SERVICE OR (VI) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO US UNDER THE TERMS IN THE 12 MONTHS PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THE LIMITATION OF OUR LIABILITY WILL NOT APPLY IF WE CAUSE YOU ANY DAMAGE INTENTIONALLY OR THROUGH GROSS NEGLIGENCE. THE LIMITATION OF LIABILITY IN RESPECT OF PERSONAL DATA IS STATED IN THE DPA.
b. We strongly recommend testing the operation of the Service and your website or application in a testing environment before deploying the Service to the operating environment. We are not responsible for any errors or defects of your websites or applications caused by your use of the Service.
c. We will consider as an event of force majeure all circumstances independent of the will of the obligated party which are irremovable and unforeseeable and which cannot be reasonably controlled by the obliged party, in particular natural disasters and natural calamities, embargoes, strikes (including planned ones), wars and epidemics (including pandemic covid-19). If the obligated party experiences a force majeure event that prevents it from performing its obligations under the Terms, it shall promptly notify the other party in writing, specifying the period of time for which it will be unable to perform under the Terms. Force majeure events will not affect the payment obligations of either party.
d. You use the Service at your own risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. We do not provide any warranty for the Service. We especially do not warrant that (i) the Service will operate without any interruption or irregularity, (ii) the Service will be secure or available at any particular moment or location, (iii) any errors or defects of the Service will be rectified, (iv) the Service is free of viruses or other harmful components or (v) the outputs of the Service will meet your requirements. The Service is designed and offered as a general-purpose service and not for the specific purposes of any user. The Service includes only the tools and features expressly set forth in the Terms; if the Service has no other features, this will not be considered as a defect of the Service. The Service is not intended for use and is not suitable for use in operations where failure, delay or inaccuracy in the functionality, data or content of the Service may result in death, personal injury or serious damage to property or the environment.
e. You (as an indemnifying party) will, without undue delay, indemnify us, including our affiliates, directors, personnel and other cooperating persons, (as an indemnified party) against any and all losses and expenses (including, but not limited to costs of legal representation, out-of-court compensation, costs of court proceedings, damages, fines, settlements etc.) arising out of any administrative proceedings, dispute or lawsuit brought against us by the third party due to your misuse of the Service or any other non-compliance with the Terms, applicable DPA, Privacy policy, or any applicable legislation.
f. Each party represents that (i) it will be at all times in compliance with applicable Anti-Bribery legislation and Anti-Money Laundering legislation and (ii) it will not take any action, directly or indirectly, which would expose the other party or any of its affiliates to the risk of being exposed to an offence for violation of any applicable Anti-Bribery legislation or Anti- Money Laundering legislation.

MISCELLANEOUS
a. We may unilaterally change the Terms at any time (but we will give you at least 15 days' notice) by making the new Terms available on our website and by informing you through your user account or email. If you do not reject the new Terms within this period, the new Terms will apply upon its effective date. If you do not agree to the new Terms, the Service will continue under the original Terms and we will have the right to terminate the Service at our convenience with the refund of any prepaid and unused fees being your sole remedy arising on such termination.
b. All rights and obligations arising out of the use or in connection with the Service and the Terms are governed by laws of Czech Republic, without its provisions on conflict of laws. Any dispute between you and us will be settled amicably. If we both fail to reach an amicable resolution to the dispute, any such dispute resulting out of or in connection with the Terms and/or use of the Service will be finally decided by the courts of the Czech Republic according to the place of our registered office.
c. Our failure to exercise or enforce any provision of or any of our rights under the Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
d. Our communication will be made in English, in particular electronically, with the use of your user account, email or other contacts available at our website. Written form is deemed to be adhered to also by sending an electronic message with simple electronic signature.
e. The rights and obligations agreed in paragraph 2.d., 3.e., 3.f., 10.a., 10.e., 11.b. and 11.e. and Section 5., 6., and 8. will survive the termination of the Service and will continue after the end of the Subscription period.
f. The Terms may be translated into other languages available on our website. In case of any discrepancies between the language versions of the Terms, the English version will prevail.
g. If you have any questions about the Terms, please contact us at [email protected].