LuckyOrange.com Terms of Service
You must include verbiage as follows or something equivalent in meaning:
Lucky Orange Web Analytics Service
Note: If you have certain recording features disabled for your site, such as mouse clicks, keystrokes, etc. you may leave out those notices.
"This site uses the Lucky Orange analytics system to help improve usability and the customer experience.
Lucky Orange may record mouse clicks, mouse movements and scrolling activity. Lucky Orange may record keystroke information that you voluntarily enter on this website.
Lucky Orange does not track this activity on any site that does not use the Lucky Orange system.
You can choose to disable the Lucky Orange Service at http://www.luckyorange.com/disable.php.
Note, that doing so will disable other features of the Lucky Orange system that this site employs such as 1-to-1 support chat."
So, if you do NOT have keystroke logging turned on you can leave that off since you aren't recording that data with the system.
DESCRIPTION OF THE SERVICE
Lucky Orange Service. Lucky Orange allows you to obtain real-time statistics based on website visitors, using certain Lucky Orange proprietary software (the “Software”, the Sites and Software shall be collectively known as the "Service"), subject to these Terms of Service. For the sake of clarity, the “Service” includes any or all of the following service packages provided by Lucky Orange: the Lucky Orange API, Lucky Orange website and Lucky Orange Dashboard, each as defined below. Each time you visit or use the Site, the current version of the Agreement will apply for your use of the Service from the date of your first access. Accordingly, when you use the Site, you should check the date of the Agreement and review any changes since the last version. If you do not agree with the Agreement at any time, please cease use of this Site and the Service. You agree to accept notices sent electronically, including but not limited to, email messages sent to the current email address of your account and notices posted on the Site. [You can opt out of any marketing emails from us through the Email Preferences section in the Lucky Orange account dashboard.]
If you wish to register for the Lucky Orange Service, please use our website. You must provide certain limited information about yourself as prompted to do so by the Service. We reserve the right to refuse access to the Lucky Orange Service to any user. When you register for the Lucky Orange Service, Lucky Orange will provide you with data and analytics for your website through a free trial use of the Service for seven (7) days ("Free Trial Period"). The term for the Free Trial Period will begin on the date of your registration on the Site for the Lucky Orange Service and will continue for seven (7) days, unless extended or sooner terminated in accordance with this Agreement. If you register for the Lucky Orange Service, either you or Lucky Orange may terminate this Agreement upon written notice thereof at any time for any reason or no reason, during or at the end of the Free Trial Period. Upon completion of the Free Trial Period, you must convert to one of the Lucky Orange Service plans by providing standard credit card information in additional to certain personal information you provided to Lucky Orange upon registration.
1. LICENSE; OWNERSHIP
You allow the Service to be placed on your website(s) and you hereby grant us a nonexclusive, irrevocable during the term of this Agreement, royalty-free, no-cost license to perform, or have performed, the activities relating to provision of the Service. You agree to configure the Software on your website(s) in accordance with Lucky Orange’s requirements.Lucky Orange is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Service or any damages resulting from your failure to implement the Software on your website(s) in accordance with Lucky Orange’s requirements. In order to improve our algorithms and the Service, for statistical and analytical reporting and for research purposes, Lucky Orange may or may not aggregate and/or anonymize the data resulting from use of the Service, including you, and provide personal information and or anonymized data, which may be aggregated with data of other customers, to third parties. Lucky Orange will not use or disclose anonymized data in a manner that reveals your identity, the identity of your website, or your identifiable Traffic Data without your p consent. Lucky Orange shall exclusively own its customers’ aggregated and/or anonymized Traffic Data.
You shall own all rights in and to all Traffic Data, subject to the rights and licenses granted herein. “Traffic Data” means all data and information created, received, processed or provided by Lucky Orange in performing the Service, or that results from performance of the Service for you. You hereby grant Lucky Orange all necessary rights to access and track Traffic Data concerning your website, solely in connection with providing the Service during the term of this Agreement.
Subject to the terms and conditions of this Agreement, Lucky Orange grants to you (and you agree to comply with) a non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use: (i) the Software and (ii) certain proprietary documentation in the form generally made available by Lucky Orange to you on the Site for use with the Software (the "Documentation") solely to receive the Lucky Orange Service.
You agree to:
1. Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
2. Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
3. Not obtain the communications protocol for accessing the Service;
4. Not remove, obscure or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations ("Branding"), or any electronic notices;
5. Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
6. Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
7. Not to challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof; and
9. Not post or transmit sensitive data to our servers, which includes but is not limited to, credit card data, social security numbers, passwords, etc.
PREVENTING TRANSMISSION OF SENSITIVE INFORMATION
You are not to transmit, or allow transmission of, sensitive data to our system by use of any of the Lucky Orange features. Our dynamic recordings will capture the html content of the page a visitor is on, and if that page contains sensitive information you must use one of our preventative measures to block transmission of that sensitive data to our servers as outlined in our help documentation here http://help.luckyorange.com/article/140-preventing-transmission-of-sensitive-data.
By default, our system will not capture keystroke data and will convert all keystrokes typed into text areas or input boxes into asterisks before sending them to our servers. If you enable keystroke logging by using our help documentation here (http://help.luckyorange.com/article/90-how-do-i-capture-keystrokes-in-non-sensitive-fields), it is your responsibility that you do not enable keystroke logging on fields that are sensitive.
FEES AND PAYMENT
Except with regard to the Free Trial Period, Lucky Orange bills its customers in advance on a monthly basis or once a year, reoccurring, for annual plans. All amounts due shall be paid in US dollars. Service fees are exclusive of all banking fees and all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such fees, taxes, levies, or duties, excluding only United States income (federal or state) taxes imposed on Lucky Orange. In the event you are required to withhold any portion of service fees due to payments to banks or taxing authorities, (i) you agree to do so and to indemnify Lucky Orange for any liability resulting from your failure to make such withholdings, and (ii) Lucky Orange reserves the right to adjust the pricing of the Service so that you are responsible for payment to Lucky Orange of the full amount for the Service, net of any such withholdings. When required by law, you will be responsible for all applicable sales, use, transfer, excise, value-added or similar taxes, and your payment obligation to Lucky Orange hereunder shall include the amount of such tax.
Payments for Lucky Orange Service. Lucky Orange will not issue refunds for fees paid for a Lucky Orange Service account, even for periods of inactivity. Lucky Orange may change the price of the Lucky Orange Service upon thirty (30) days notice to you. Such notice may be provided at any time by posting the changes to the Site. Lucky Orange will not be liable to you or to any third party for any modifications, price changes, or suspension or discontinuation of the Lucky Orange Service.
Payment for Other Services.
If you register for other Lucky Orange services (collectively, the “Add On Services”), you will be charged according to the terms of your Work Order.
LUCKY ORANGE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. THE SERVICE IS PROVIDED BY LUCKY ORANGE AND ITS LICENSORS "AS IS" AND "AS AVAILABLE." YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES LUCKY ORANGE GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. LUCKY ORANGE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE'S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 4 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY LUCKY ORANGE FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. LUCKY ORANGE MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S END USERS.
LIMITATION OF LIABILITY
IN NO EVENT WILL LUCKY ORANGE AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT LUCKY ORANGE WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE, AND (iii) FOR ANY CLAIM RESULTING FROM YOUR NON-COMPLIANCE WITH THE REQUIREMENTS OF THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT OR FOR ANY CLAIM RESULTING FROM YOUR NON-COMPLIANCE WITH OR BREACH OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OR ANY OTHER STATE OR FEDERAL MEDICAL PRIVACY OR ELECTRONIC PRIVACY LAWS. IN NO EVENT SHALL LUCKY ORANGE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS LUCKY ORANGE, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES, ARISING OUT OF (i) YOUR USE OF THE SERVICE, (ii) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, (iv) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT OF YOUR USE OF THE SERVICE OR THE SITE, OR (v) FOR ANY CLAIM WHATSOEVER RESULTING FROM YOU OR YOUR AFFILIATES’, EMPLOYEES’, CONTRACTORS’ OR AGENTS’ BREACH OF THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT OR THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OR ANY OTHER STATE OR FEDERAL MEDICAL PRIVACY OR ELECTRONIC PRIVACY LAWS. LUCKY ORANGE RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
TERM AND TERMINATION
Unless otherwise specified in an applicable Work Order, the term of the license granted herein for the Service shall commence upon the earlier of (i) your implementation or (ii) your agreement to these Terms of Service, and may be terminated as set forth herein. Upon termination of this Agreement, all licenses, and any other rights and services provided by Lucky Orange to you in this Agreement, shall cease immediately. We also may permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the Service upon reasonable prior notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of fees. Termination of this Agreement, any license granted hereunder, or your access to the Site, shall not limit us from pursuing other remedies available to us, including but not limited to injunctive relief.
Termination of Lucky Orange Service.
If you are a Lucky Orange Service customer, you or we may terminate this Agreement at any time, in whole or in part, for any reason, provided that if you terminate, you shall be obligated to pay any fees accrued prior to the date of termination. You may terminate this Agreement by emailing a request for termination to [email@example.com], or accessing [Account Settings Billing Information from your dashboard]. You must remove all Lucky Orange scripts and materials from your website(s) within thirty (30) days after termination.
Termination of Add-On Services.
If you have purchased any Add On Services, you or Lucky Orange may terminate this Agreement (i) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party or (ii) as otherwise set forth in your Work Order, provided that you shall remain obligated to pay any fees accrued prior to the date of termination. To terminate this Agreement in accordance with this section, e-mail [firstname.lastname@example.org]. You must remove all Lucky Orange scripts and materials from your website within thirty (30) days after termination.
Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
2. Assignment. You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.
3. Third Party Service Providers. Lucky Orange may provide the Service directly or indirectly using contractors or other third party vendors or service providers. Lucky Orange will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third party suppliers or vendors.
4. Publicity. You hereby consent to inclusion of your name and trademarks or service marks in customer lists that may be published as part of Lucky Orange's marketing and promotional efforts.
5. Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: Sections 2 through 8.
6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri and the federal U.S. laws applicable therein, excluding its choice of law provisions, and the parties agree to submit to the personal and exclusive jurisdiction of such courts.
7. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties.
8. No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
9. Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed to Lucky Orange [
email@example.com], or if to you, to the email or physical address associated with your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by e-mail without requiring a handwritten signature for such notice to be effective.
10. Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
17. Early Termination Fee
- For monthly contracts, there is no early termination fee or refunds.
- For annual contracts billed monthly, the purchaser agrees to pay 3 times the monthly cost specified in the custom agreement.