Last updated: October 22, 2012
"Account" refers to the billing account for the Service.
"OPCC" means the proprietary Oopgo Client Code, which is installed on a web page for the purpose of collecting Customer Data, together with any fixes, updates and upgrades that may be provided to you by Oopgo, from time to time.
"Customer Data" means the data concerning the characteristics and activities of visitors to your website that is collected through use of the OPCC and then forwarded to the Servers and analyzed by the Processing Software.
"Documentation" means any accompanying proprietary documentation made available to you by Oopgo for use with the Processing Software, including any documentation available online or otherwise.
"Page View" is a unit of measurement for usage of the Service. A Page View is used when the OPCC is executed on a web page accessed by a visitor, and processed.
"Processing Software" means the Oopgo Software and any upgrades to such, which analyzes the Customer Data and generates the Reports.
"Recording" is a unit of measurement for usage of the Service. A Recording is made when the OPCC records client side actions and transmits them to the server for processing. It is understood and agreed that Recording of Visitor Input and/or PII may or may not be included, all as defined and implemented by you and subject to the terms and conditions of this Agreement.
"Project" means the collection of settings, data and Recordings. For example, a Project could be established to collect data about a specific web site or a web page. There can be multiple Projects established for a single Account.
"Report" means the resulting analysis shown at www.Oopgo.com (or such other URL Oopgo may provide from time to time) including stored Page Views and Recordings. The number of Recordings, Page Views, charts, graphs, and statistics contained in a Report varies by the subscription level of the Service.
"Servers" means the servers controlled by Oopgo upon which the Processing Software and Customer Data are stored.
"Software" means the OPCC and the Processing Software.
"Subscription" means the specific Recordings, Reports and billing terms agreed upon for your Account, between you and Oopgo, your hosting supplier.
2. MEMBER ACCOUNT, PASSWORD, AND SECURITY.
To register for the Service, you must complete the registration process by providing Oopgo with current, complete and accurate information as prompted by the registration form, including your e-mail address (username) and password. You will at all times be responsible for maintaining the security of your account and password: you should protect your passwords and are fully responsible for your own and third party use of your accounts. Oopgo cannot and will not be liable for any loss and/or damage resulting from your failure to comply with this security obligation. You may not use the Service for any illegal or unauthorized purpose, nor violate any applicable laws (including but not limited to copyright laws). You are solely responsible for any and all activities that relate to your Account. You agree to notify Oopgo immediately upon learning of any unauthorized use of your Account or any other breach of security. The Oopgo support or sales staff will need your explicit agreement via the Account Info section or via email to log in to the Service under your customer password in order to maintain or improve the Service, including providing you with assistance on technical or billing issues.
3. NON EXCLUSIVE LICENSE.
Oopgo hereby grants you a limited, revocable, non-exclusive, non-sub licensable 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 may remotely access, view and download your Reports stored at www.Oopgo.com (or such other URL Oopgo may provide from time to time). Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, Documentation and 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 OPCC, 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, Service and Reports 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, Service and Reports.
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 OPCC in your possession and so certify in writing to Oopgo within 3 business days of termination and cease any further use of the Service without the express written consent of Oopgo.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. 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, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of your password(s) and username(s) issued to you by Oopgo, and for any use or misuse of your account resulting from any third party using a password or username issued to you.
5. INFORMATION RIGHTS.
You hereby allow Oopgo to collect, store and process your Customer Data. The Customer Data may include one or more cookies that Oopgo uses to differentiate between users. Oopgo may examine Customer Data to provide you with technical support or to improve the Service.
All fees are paid in advance (monthly or annually) and are not refundable. You may evaluate the Service by using the free plan.
We use various billing service providers. When using such provider’s services, you agree to follow and comply with the policies of such provider.
You agree to indemnify, hold harmless and defend Oopgo, at your expense, any and all third-party claims, actions, proceedings, and suits brought against Oopgo 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 and other litigation expenses) incurred by Oopgo 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 Service, (iii) your violations of applicable laws, rules or regulations in connection with the Service, or (iv) your Brand Features. In such a case, Oopgo 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. Oopgo reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
10. THIRD PARTIES.
If you provide access to your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party ("Third Party"), whether or not you are authorized to do so by Oopgo, the terms of this Section shall apply to you.
If you use the Service on behalf of any Third Party, you represent and warrant that (a) you are authorized to act on behalf of, and bind to this Agreement, that Third Party, (b) as between the Third Party and you, the Third Party owns any rights to Customer Data in the applicable account, and (c) you shall not disclose Third Party's Customer Data to any other party without the Third Party's consent.
You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. Oopgo makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, you shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Oopgo, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend Oopgo, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Oopgo 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 and other litigation expenses) incurred by Oopgo, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Service, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Service, the Software or Reports; (c) violations of your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.
11. DISCLAIMER OF WARRANTIES.
The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Oopgo and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. Oopgo does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. You specifically agree that Oopgo shall not be responsible for unauthorized access to or alteration of the Customer Data or data from your Website. Oopgo does not guarantee storage of Customer Data. Storage space allocated to you is subject to agreement with Oopgo or the amount of available space.
Oopgo does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Oopgo'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 Oopgo or your servers are located or co-located. Complete accuracy in all aspects of your Statistics at all times also is not guaranteed.
THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY OOPGO, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, 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. OOPGO DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR 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 AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY.
OOPGO WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR 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 OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF OOPGO 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.
OOPGO TOTAL 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 AMOUNT PAID BY YOU FOR THE SERVICE FOR 1 MONTH PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
13. PROPRIETARY RIGHTS NOTICE.
The Service, which includes but is not limited to the OPCC and the Software and all intellectual property rights in the Service are, and shall remain, the property of Oopgo. All rights in and to the Software not expressly granted to you in this Agreement are hereby expressly reserved and retained by Oopgo and its licensors without restriction, including, without limitation, Oopgo right to sole ownership of the Software and Documentation logos, trademarks, trade secrets, databases, reports, and Web site.
Without limiting the generality of the foregoing, you agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Oopgo; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Oopgo other than in the name of Oopgo; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
14. TERM and TERMINATION.
You can cancel your Account and Subscription at any time by removing the oopgo.js from your web pages, deleting all Projects from your Account and then contacting Oopgo for account cancellation. You should note that immediately following cancellation, all data will be deleted from the Servers and you will not be able to recover the deleted information once the Account is cancelled.
When you cancel your Subscription, your plan will remain active during the then current billing period, but your subscription will not thereafter be renewed. After your subscription expires, no new recordings will be generated, however, your recording history will be maintained for a 30-day period, after which data will be immediately deleted from your Account. The deleted information will not be recoverable at the end of such 30-day period.
Oopgo, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Service. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Data in your Account. Oopgo reserves the right to refuse service to anyone for any reason at any time.
Violation of any of the Terms of Service may result in the termination of the Service.
Upon any termination or expiration of this Agreement, Oopgo will cease providing the Service, and you will delete all copies of Oopgo's OPCC code from all web pages under your control and certify thereto in writing to Oopgo within three (3) business days of such termination. In the event of any termination (a) you will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of your historical report data will no longer be available to you unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.
Note that your Subscription will be automatically renewed at the end of the specific Term and accordingly your Account and Subscription will stay valid (and accordingly, your obligation to pay the applicable fees will continue) until you decide to cancel your Account as stated herein below.
15. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES.
Oopgo reserves the right at any time and from time to time to update, modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Oopgo shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at:http://www.oopgo.com/terms. Downgrading your Service may cause the loss of Data, features, or capacity of your Account. Oopgo does not accept any liability for such loss.
16. SERVICE UPGRADES AND DOWNGRADES.
You can downgrade or upgrade your subscription at any time. 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 Oopgo is not liable.
17. GENERAL CONDITIONS.
Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis.
Technical support will be provided to customers depending on their plan.
You must not modify` , adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Oopgo, or any other Oopgo service.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Oopgo.
You understand that the technical processing and transmission of the Service, including your Data, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You may not record the same domain in more than one free Account.
Oopgo technical staff may instruct you, from time to time, to perform modifications to the OPCC installed in your Website. You agree to cooperate and perform any required modifications.
You authorize Oopgo to use your company name, logo or other applicable trademarks, at any time, for the purpose of referencing you as a customer on the Oopgo Website or in other promotional marketing materials. If you do not wish to be referenced please contact Oopgo at firstname.lastname@example.org.
18. MISCELLANEOUS; APPLICABLE LAW AND VENUE.
Oopgo 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 California without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in the State of California. Any notices to Oopgo must be sent to: Oopgo Inc., 7590 Fay Ave #404 La Jolla, CA 92037, via first class or air mail or overnight courier, and are deemed given upon receipt. The failure of Oopgo to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. You may not assign or otherwise transfer any of your rights hereunder without Oopgo's prior written consent, and any such attempt is void. The relationship between Oopgo 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. Oopgo 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.