Terms of Service
Last Updated: 25.9.2019
These Terms of Service (the “Agreement”) sets forth the terms and conditions of relationship between You as the user and Behavee s.r.o., Id. Nr.: 07178581, registered address at Nádražní 402, 273 04 Kačice, the Czech Republic, (“Behavee”). By checking the "Souhlasím s Podmínkami služby a Zásadami ochrany osobních údajů" check-box and clicking on the "PŘIHLÁSIT / ZAREGISTROVAT button, or otherwise making use of the Service You agree to be bound by the terms of this Agreement.
You have the right to sign up for an Account and to use of any of the Services or the Site only if you agree with the Terms. This Agreement may be amended unilaterally by Behavee from time to time. The amendment to come will be notified on the Site by a notice. The amendment will become effective on the first of the date on which You use the Site and Services or in 15 days following the date on which the amendment was notified.
“Account” shall mean an account with Behavee to use the Services;
“Additional Services” shall mean Services that can be purchased in addition to the Services included in the selected “Subscription Plan”;
“Agreement” shall mean these Terms of Service, including any amendments thereto. The amendments are essential part of the Agreement;
“Confidential Information” shall mean all information provided by You (“Disclosing Party”), to Behavee (“Receiving Party”), whether orally or in writing, which information is marked as confidential. The term Confidential Information shall not include any information that is (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by the Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party's representatives; or (d) is disclosed by the Receiving Party with the Disclosing Party's prior written approval;
“Data” shall mean content, Personal Data, information, Know-How and Confidential Information relating to Your business, some of which may not be publicly available, including but not limited to technical and commercial information concerning Your, or any of Your parent company’s or subsidiaries’, business, systems, processes, software and services, as the case may be;
“Intellectual Property Rights” shall mean registered patents, copyright of any kind, database rights, rights (contractual or otherwise) to prevent disclosure or use of Confidential Information, improvements to any inventions, and any other similar form of intellectual property or proprietary rights, statutory or otherwise, whether registrable or not and shall include applications for any of them;
“Know-How” shall mean unpatented information, knowledge, experience, formula, research, processes, studies, reports, Data and designs developed by and/or in Your possession;
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Service/s” shall mean the software as a service (SaaS) offered by Behavee in a Site or via API and having a variety of resources including but not limited to Heatmaps, AB testing, Session recordings, E-commerce module / Baskets, Standard Reports, Power BI Reports, Recommendation, Custom data transformation, Index search, Product 360°, Custom searches, creation and management of marketing campaigns and other functionalities as developed and introduced by Behavee from time to time and as further described on the Site in Our Product Tour;
“Site/s” shall mean the website Behavee.com , in addition to any sub-pages that are integrated within this website (including portal.behavee.com);
“Subscription Plan” shall mean one of the different subscription packages through which You can use the Services as further described in Our Product Tour;
“Subscription Term” shall mean the period of time for which subscription to the Services shall be made available by Behavee to You, subject to Your adherence to the obligations undertaken by virtue of this Agreement;
“Third Party/ies” shall mean any persons, whether legal or natural, which are neither You nor Behavee;
“Trial Period” shall mean free access provided to You by Behavee for a limited and established period of time, to the Services, which shall be granted at the sole discretion of Behavee, which access may be revoked by Behavee at any time without need of any prior notice;
„“You” means your company/person as identified through the use of the Service under the Agreement
2. Account - Registration, Access and Disclosure
2.1. To use the Site and benefit from the Services, You must create an Account by completing a registration form, by providing Behavee with all required information and checking the "Souhlasím s Podmínkami služby a Zásadami ochrany osobních údajů" check-box and clicking on the "PŘIHLÁSIT / ZAREGISTROVAT button. You agree to provide Behavee with complete and accurate information upon registration and to keep such information accurate and up-to-date during Your course of use of the Service. Please keep the log-in information in strict confidentiality. Behavee shall not be liable for unauthorized access to the Account as a result of a failure to maintain confidentiality of Your log-in.
2.2. If You are using the Site or the Services for and on behalf of a legal entity, You may do so by creating a separate Account with Behavee or by adding a new partner site to Your existing Account. Any such separate Account or new partner site to Your existing Account shall be governed by the terms and conditions set forth in this Agreement and as further detailed in clause 2.6 hereunder. For each partner site / website domain, You have to choose and purchase a separate Subscription Plan.
2.3. Behavee reserves the right after obtaining Your prior consent, to access Your Account and the information that You have provided for support, maintenance and servicing purposes or for any security-related, technical or billing reasons.
2.4. It is Your responsibility to protect Your Personal Data and maintain the confidentiality of Your user information and passwords. You are also responsible for promptly notifying Behavee of any unauthorized use of Your account, or breach of Your Account information or password. To the extent that such loss has not been caused due to gross negligence, willful misconduct, fraud or bad faith by Behavee, Behavee 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 the Applicable Law, You shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney's fees for Your intentional or negligent failure to safeguard user and password information and/or promptly notifying Behavee about any unauthorized use of Your Account or breach of Your Account information or password.
2.5. If You are:
a parent company owning a majority shareholding (51% or higher) in a subsidiary company or other legal entity; or
a subsidiary company or other legal entity, owned by a parent company owning a majority shareholding (51% or higher); and
wish to extend this Agreement to either Your parent company or Your subsidiaries, as the case may be, You may do so by creating a separate Account with Behavee or by adding a new partner site to Your existing Account. Any such separate Account or new partner site to Your existing Account shall be governed by the terms and conditions set forth in this Agreement.
2.6. Your parent company or subsidiary(ies), as the case may be, shall be deemed to be a third-party beneficiary of this Agreement with the same rights and obligations attributed to You and Behavee under this Agreement and shall take on all responsibilities and obligations as if such parent company or subsidiary, as the case may be, were You.
3. Extent of Services
3.1. The extent of the Service(s) to which You may have access to may be dependent on the relevant Subscription Plan, Additional Services purchased, Subscription Term and respective and timely payment of Service fees to Behavee.
3.2. Behavee is obliged to provide you with the access to Behavee service. In this case, the provision of the service on the Internet in accordance with these Terms of Service is considered to be the delivery of the product and the fulfilment of the deadline.
4.1. Behavee offers several different Subscription Plans for Our Services. The applicable Subscription Term Plan depends on Your choice. Your Subscription Plan is selected during Your Account registration and You can choose to change Your plan at any time. Information about Our standard plans can be found on Our Pricing page. All fees quoted on Our site are exclusive of VAT or any other taxes that may be applicable in Your jurisdiction. For additional information on Our Subscription Plans, please contact us by sending an email at email@example.com. You may upgrade or downgrade Your Subscription at any time during Your Subscription Term, upon which We will apply the respective fees on a pro-rata basis.
4.2. Following Your current Subscription Term, We reserve the right to amend the Subscription Plans and/or Subscription Term at any time or introduce new fees and/or subscription levels or charges. We will provide You with thirty (30) calendar days’ written notice in advance during which You will have the right to unsubscribe from, or change Your current Subscription Plan, should You not agree with these amendments.
4.3. In addition to the services contained in the chosen Subscription Plan you can purchase Additional Services to extend the scope of the plan (e.g. 10 extra Session recordings per month). The offer of the Additional Services is available in the Site and you can buy these extra services at any time.
4.4. You can request a full refund for any reason within fifteen (15) calendar days of completing your first payment for the Service. It’s not possible to refund a payment if the refund request is made more than fifteen (15) calendar days after the first ever payment was made in your account. This refund only applies to your first-ever payment, unless otherwise stipulated in these Terms of Service or other arrangement.
5. Subscription Term and Renewal
5.1. Trial Period. The duration of the trial period is specified during the Account creation process. At the end of the trial period, You will be prompted to enter Your payment details if You have not already done so. If You've already updated Your payment details, Your credit card will be automatically charged on the displayed billing date on the billing section associated to Your Account on Our Site.
5.2. Renewal Term. Unless Behavee is notified in writing at least three (3) business days before the end of the conclusion of Your current Subscription Term (or any subsequent Renewal Term) that You do not intend to renew Your subscription, You will be enrolled into an automatic renewing cycle for the same term at the conclusion of the Subscription Term (the “Renewal Term”). This applies to all Subscription Plans involving payment, and works the same for both monthly and annual renewals. Any written notice of Your intention not to renew shall be provided to the following email address: firstname.lastname@example.org. The email must come from the registered Behavee Account owner.
6.1. Under the terms and conditions of this Agreement, Behavee hereby grants permission to You to use, whether for commercial or non-commercial purposes, Site and Services (“Product”).
6.2. Behavee hereby grants to You under all of Behavee’s intellectual property rights, a non-exclusive, revocable, and worldwide license to Behavee’s open source software.
(i) create interfaces between and integrating the SaaS with any Your product(s) (including, without limitation, software product(s) or hosted solution(s) marketed and/or distributed by You, now and in the future, and any updates, upgrades or extensions thereto). The integrated Software and Your product are also referred to herein as an “Integrated Product”;
(ii) reproduce and distribute the Integrated Product (in whole or in part under the terms of Yours end user license agreement);
(iv) sublicense the rights contained in subsection (i) to Your affiliates and to subcontractors of You and Your affiliates; and
(v) sublicense the rights contained in subsections (ii) and (iv) through multiple tiers of distribution to Your affiliates and Channel Partners.
6.3. You agree that its use of the Software shall always be connected with the products of Behavee.
6.4. Fees shall be due or owing to Behavee in connection with exercise of the licenses and rights set forth under this Agreement in accordance with the Price List.
7. Conditions for Use and Redistribution
7.1. Use and redistribution of the Product, whether in binary or source code form, shall be allowed without restriction provided that:
Use and redistribution of the Software must retain the following copyright notice: “Copyright (C) 2018 Behavee, All rights reserved”. This copyright notice must be included in all copies of the Product or in substantial portion thereof.
The name of the author of the Product may be used to endorse or promote products derived from the Product without specific prior written permission of the author in question.
Modifications of the Product (“Derivatives”) must be shared with Behavee.
Derivatives can be used by Behavee without your approval and free of charge.
Copyright notice applies to the Derivatives accordingly.
Modifications of the Product source code itself can be done but only with approval and in cooperation with Behavee.
8. Limitation of Warranty
8.1. Behavee represents and warrants that: (i) Behavee owns the entire right, title and interest (including all intellectual property rights) in and to the Product; and/or (ii) Behavee has the right and power to grant the licenses and rights set forth in this Agreement. Behavee further represents and warrants that Behavee materials do not infringe any patents, copyrights, trade secrets or other proprietary rights of others. Behavee has not received notice from any person claiming that the design, development, manufacture, use, import and/or sale of the Software infringes or misappropriates any intellectual property rights of any third party.
9. Intellectual Property Rights
9.1. You hereby agree and accept that Behavee shall own all right, title and interest to the intellectual property rights, including, but not limited to copyright, trademark and patent rights, to any Product derivatives that you may create, and you hereby assign any and all such rights to such derivatives to Behavee, subject to the following. Behavee hereby grants to You a fully paid up, no-charge, royalty-free, world-wide, in perpetuity, non-exclusive right and license back to use these derivatives solely in conjunction with the Product and the products of Behavee (or any components of the Product).
9.2. This Agreement does not grant permission to use the trade names, trademarks, service marks, or product names of Behavee, except as required for reasonable and customary use in describing the origin of the Product.
10. Confidential Information
10.1. The person in receipt of Confidential Information (the “Receiving Party”) shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the other party (for the purposes of this section, the “Disclosing Party”). Receiving Party shall ensure restriction of access to Confidential Information to its employees, contractors and Third Parties as is commercially and reasonably required and shall require those persons to sign and abide by nondisclosure restrictions at least as protective as those contained within this Agreement. The Receiving Party shall not, without the prior written approval from the Disclosing Party, use for Receiving Party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any Confidential Information. The Receiving Party shall return to the Disclosing Party any Confidential Information and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately where the Disclosing Party so requests in writing.
11.1. Behavee warrants and represents to You that:
Behavee will only use Your Data in accordance with this Agreement, including its annexes; and
Behavee represents and warrants to You that it has all necessary rights and authority to enter into the Principal Agreement and any Addendum to perform the Services.
11.3. If You are located in the European Economic Area (EEA) or have any visitors in the EEA, You represent and warrant that You use the Service in accordance with the GDPR, including that You:
will clearly describe in writing how You plan on using any Data processed, including for Your use of Our Service. We have developed some model wording You can use for this (please seek advice from Your own counsel before using it!);
have complied, and will comply, with all regulations, as well as Data protection, electronic communication, and privacy laws that apply;
have processed all Data relating to any individual in compliance with all Data protection laws and regulations; and
You agree to indemnify and hold Behavee harmless from any losses, including attorney fees, that result from Your breach of any part of these warranties;
You further agree that, if You request it and is applicable to you, You have signed Our Data Processing Agreement. You can request and sign Data Processing Agreement by sending an email at email@example.com
11.4. You agree, in connection with Your use of the Service, to comply with all applicable export and re-export control laws and regulations. You warrant that You are not located in a United Nations Security Council sanctioned country and are not on a sanctioned persons list. You also warrant that You will not purchase the Service using funds sourced from a sanctioned country.
11.5. Unless You specifically withdraw Your consent to this clause by sending an email at firstname.lastname@example.org, You hereby acknowledge and consent to Behavee making use of any of Your marks, logos and trade names to identify You as Behavee’s user/customer on Behavee’s Site and/or Services, in addition to any other marketing material.
12.1. Our Indemnification Obligations: We agree to indemnify, defend, and hold You harmless from and against any claims brought by Third Parties arising from or relating to Our violation of a Third Party’s Intellectual Property Rights directly arising out of Your use of the Services in accordance with the terms of this Agreement. Notwithstanding the foregoing, We shall have no indemnification obligation with respect to any claims (i) arising out of or related to Your Data (ii) to Your violation of any Applicable Laws; (iii) Your violation, whether alleged or actual, of any Third Party rights, including but not limited to Data protection and privacy rights.
12.2. Your Indemnification Obligations: You shall indemnify, hold harmless and defend Behavee, including any of its subsidiaries, officers, owners, partners, directors, employees, contractors, agents, subsidiaries, shareholders, Behavee’s suppliers and other partners (“Behavee Indemnified Parties”), to the maximum extent permitted, in full and in perpetuity, and at Your own cost, from any third party liabilities, claims, costs, expenses, obligations, losses or damages, excluding indirect damages and consequential loss that may arise from (i) Your unauthorized use of any material obtained through the Site and Services; (ii) Your use and access to the Site and Services which is not in accordance with this Agreement; and (iii) Your violation, whether alleged or actual, of any Third Party rights.
12.3. Indemnification Procedures: The parties’ respective indemnification obligations above are conditioned on: (a) the indemnified parties giving the indemnifying party prompt written notice of the claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the indemnifying party is prejudiced by the delay or failure; (b) the indemnifying party has full and complete control over the defense and settlement of the claim; (c) the relevant indemnified parties providing assistance in connection with the defense and settlement of the claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the indemnified parties), as the indemnifying party may reasonably request; and (d) the indemnified parties’ compliance with any settlement or court order made in connection with the claim. The indemnifying party will indemnify the indemnified parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the claim (other than attorneys’ fees and costs incurred without the indemnifying party’s consent after it has accepted defense of such claim); and (iii) all amounts that the indemnifying party agreed to pay to any third party in settlement of any claims arising under this Clause and settled by the indemnifying party or with its approval.
12.4. Infringement Remedy: If You are enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a Third Party Intellectual Property infringement claim covered by Our indemnification obligations under this Clause above, then We will, at Our sole expense and option, either: (a) obtain for You the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If We determine that the foregoing remedies are not commercially reasonable, then We will promptly provide a prorated refund to You for any prepaid fees received by Behavee under this Agreement that correspond to the unused portion of the Term. The remedy set out in this Clause is Your sole and exclusive remedy for any actual or alleged infringement by Us of any Third Party Intellectual Property Rights in the event that You are enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a claim covered by Our indemnification obligations under this Clause.
12.5. You shall be solely responsible with respect to defending any such claims, and for the payment of losses, costs, damages or expenses resulting from the foregoing to both a Third Party and to Behavee in connection therewith. You shall not, without the prior express written approval of Behavee, attempt to, or 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 Behavee. Provided that this clause shall survive termination of this Agreement, howsoever occurred, and termination of Your access and/or use of the Site or Services.
13.1. Either You or Behavee may terminate this Agreement for cause as a result a material breach by the other party of the terms hereof in this Agreement, if the defaulting party fails to cure such material breach within fifteen (15) calendar days of its receipt of written notice of the breach from the non-defaulting party. In addition, We may immediately terminate this Agreement if You: (i) terminate Your business activities or become insolvent; (ii) admit in writing to the inability to pay Your debts as they mature; (iii) make an assignment for the benefit of creditors; (iv) become subject to direct control of a trustee, receiver or similar authority; or (v) do not pay the fees when due in accordance with Your Subscription Plan. In the event this Agreement is terminated for cause due to Your uncured material breach, You agree, without limiting any of Our other rights or remedies, to pay all remaining fees payable through the remainder of Your Term.
13.2. In the event this Agreement is terminated for cause by You due to uncured material breach of Behavee, You shall be entitled to a pro rata refund of all fees previously advanced to Behavee from the date of the termination through the end of the Subscription Term.
13.3. You may terminate this Agreement by requesting Your Account to be deactivated and deleted while logged into the Service. Behavee may also terminate Your right to use the Site and/or Services with or without cause at any time. Behavee shall notify You via email to Your registered email account if We terminate Your Account. Your obligation to pay accrued charges and fees accrued up to the date of termination, shall survive any termination of this Agreement. In the event of any termination of this Agreement, the Use and Redistribution as set forth in Clause 7 and Behavee warranties as set forth in clause 11 shall survive such termination.
13.4. Upon expiration of the Subscription Term, or termination, howsoever occasioned, Your Subscription Plan shall immediately terminate and consequently, You may make use of the free version of the Service.
14. Governing Law and Dispute Resolution
14.1. This Agreement is governed by, and construed in accordance with the laws of the Czech Republic
15. Assignment and Delegation
15.1. Neither Party may assign rights or obligations under the Agreement without the prior written consent of the other party.
16. Relationship of the Parties
16.1. The Terms shall not constitute a partnership, agency, or employment relationship.
17. Privacy / Data Protection
17.2. By accepting the terms contained within this Agreement, including its annexes, You acknowledge represent and warrant that You shall comply with all applicable laws, including but not limited to Data protection and privacy laws and that You shall indemnify Behavee Indemnified Parties against any Third Party claims related to violation of such applicable laws in the use of the Service.
18. Complaints procedure
18.1. Behavee’s Rights and Obligations:
When concluding the contract and during its term, providing users of the service the information required by law about activated services and setting parameters and pricing of common services and additional services.
Providing all users with quality services so that justified user requirements are met in accordance with the contract.
Providing users with customer support and service for services, in particular handling requests for information about the services provided, receiving and reporting service failures, receiving complaints and handling them within the statutory deadlines, receiving requests to change service parameters, and additional services and handling them accordingly, especially through Customer Support.
Providing an overview of billing for all the services provided in the service (the user account on portal.behavee.com) and in the form of invoice per billing period. An invoice - a tax document, is issued after the service has been purchased and is payable in fourteen (14) days from its issue date (unless the service is paid directly online). Behavee issues an invoice - tax document free of charge in electronic form and, in written agreement with the user, even possibly in a other form than electronic (written). We will send the issued tax document in electronic form to the e-mail entered by the user at registration. If the user does not make a claim for non-delivery or billing error within thirty (30) days after the end of Behavee’s billing period, the billing will have been deemed to have been duly delivered and the context is correct.