Sitewiz - Terms and Conditions of Use (Website Optimization Services)

Last Updated: April 10, 2024

These Terms are between you and Sitewiz Inc. (referred to as We, Our, or Us).

Your Acceptance

These are the Terms on which We permit Users (referred to as You or Your) to:

• access and use Our website at www.sitewiz.ai or any App We provide on any platform from time to time (Website) including using the services and functionality made available through the Website;
• purchase services on the Website including website optimization services (Services);
• view and interact with any content, information, communications, advice, text, or other material provided by Us, Our affiliates, or other Users on the Website (Sitewiz Content);
• download and interact with reports regarding suggested improvements related to website optimization developed via the Services through Your Account on the Website (Reports);
• upload content or provide through integrations with third party providers including information, content, text, or other material to the Website, including without limitation data relating to Your existing websites and services for the purposes of consuming the Services and generating the Reports (User Content); and
• communicate with Us.

You agree to be bound by these Terms when You use, browse, or access any part of the Website. The Website is subject to change at any time without notice and may contain errors. We may from time to time review and update these Terms, including to take account of new laws, products, or technology. Your use of the Website will be governed by the most recent Terms posted on the Website. By continuing to use the Website, You agree to be bound by the most recent Terms.

Definitions and Interpretation

Definitions

Account has the meaning given to that term in clause 2.1.

App means the Sitewiz mobile application.

Business Day means a day that is not a Saturday, Sunday, public holiday, or bank holiday in New York, New York.

Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, or loss, whether based in contract, civil, common law, tort (including negligence), or statute, and whether involving a Party, Third Party, or otherwise.

Confidential Information means:

1. Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
2. all other Information belonging or relating to a Disclosing Party or any affiliate of that Disclosing Party that is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms or which the Receiving Party knows or ought reasonably to be expected to know is confidential to that Disclosing Party or any Related Entity of that Disclosing Party.

Disclosing Party means the Party to whom Information belongs or relates.

Information means any information, whether oral, graphic, electronic, written, or in any other form including:

1. forms, memoranda, letters, specifications, processes, procedures, statements, formulas, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers, and agents, employee details, reports, drawings, and data;
2. copies and extracts made of or from that information and data whether translated from the original form, recompiled, partially copied, modified, updated, or otherwise altered; and
3. samples or specimens disclosed by either Party.

Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law, or in equity and wherever existing including:

1. patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder's rights, know how, trade secrets, and any other rights subsisting in the results of intellectual effort in any field whether or not registered or capable of registration;
2. any application or right to apply for registration of any of these rights;
3. any registration of any of those rights or any registration of any application referred to in paragraph (b); and
4. all renewals, divisions, and extensions of these rights.

Loss means any loss, damage, cost, or expense.

Party means You (a User) or Us.

Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not and whether recorded in a material form, electronic form, or otherwise about an identified individual or an individual who is reasonably identifiable and includes anything that is defined as personal information or as sensitive information in the relevant Privacy Laws.

Privacy Law means any applicable law, statute, regulation, ordinance, code, standard, or requirements of any government, governmental, or semi-governmental body which relates to privacy or health information.

Receiving Party means the Party to whom Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party.

Terms means these agreed terms.

Third Party means any party other than Us or You.

User means any person who accesses and uses the Website, the Services, the Sitewiz Content, the Reports, or the User Content.

Interpretation

In these Terms unless the context requires otherwise:

• the singular includes the plural and vice versa;
• a gender includes the other genders;
• the headings are used for convenience only and do not affect the interpretation of these Terms;
• other grammatical forms of defined words or expressions have corresponding meanings;
• a reference to a document includes the document as modified from time to time and any document replacing it;
• a reference to a party is to a Party to these Terms and a reference to a party to a document includes the party's executors, administrators, successors, and permitted assigns and substitutes;
• if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
• the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency, and any other body or entity whether incorporated or not;
• the word "month" means calendar month and the word "year" means 12 months;
• the words "in writing" include any communication sent by letter, facsimile transmission, or email or any other form of communication capable of being read by the recipient;
• a reference to a thing includes a part of that thing;
• a reference to all or any part of a statute, rule, regulation, or ordinance (statute) includes that statute as amended, consolidated, re-enacted, or replaced from time to time;
• wherever "include", "for example" or any form of those words or similar expressions is used it must be construed as if it were followed by "(without being limited to)";
• money amounts are stated in United States dollars unless otherwise specified;
• a reference to time is to New York, New York time;
• a reference to any agency or body if that agency or body ceases to exist or is reconstituted, renamed, or replaced or has its powers or functions removed (defunct body) means the agency or body that performs most closely the functions of the defunct body;
• any agreement, representation, warranty, or indemnity in favor of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and
• any agreement, representation, warranty, or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally.

Registration

In order to access certain features and functionality of the Website (including access to the Services, uploading User Content, and access to the Reports) You will have to register for and obtain a user account by providing all of the information required at registration (Account). When creating Your Account, You warrant that You are of legal age to form a binding contract with Us and that all information You have provided is true, accurate, and complete. You must provide an email address that You own or control. As part of the registration process, You must create an Account user name and password. You will be fully responsible for all acts and omissions of any person using Your password and Account as if they were Your own acts and omissions. You agree that You will not share, disclose, or permit disclosure of Your password, let anyone else access Your Account, or do anything that would risk the security of Your Account. We will not in any event be liable for any Claims or Losses arising out of the use or misuse of Your password and Account, and You will indemnify Us against all Claims or Losses, damage claims, costs, or demands in this regard. You must notify Us immediately if You become aware of any unauthorized access or use of Your Account or password. You agree that You will not create more than one personal Account and if We disable or terminate Your Account for any reason, You will not create another one without Our permission whether through the use of Your own personal details or those related to You or created by You. We retain the right to refuse registration of any Account in Our sole discretion.

User Content

When You use the Website, You may upload or we may access User Content. Any User Content uploaded by You to the Website may be used by Us in accordance with the licence granted to Us by clause 3.4. You agree to be solely responsible for any User Content that is posted or uploaded to the Website. You retain all Intellectual Property Rights in the User Content uploaded to the Website by You. By uploading the User Content and for the sole purpose of providing the Website (including any Services therein and the Reports generated through Your use of the Sitewiz Content to You), You grant Us a perpetual, non-exclusive, royalty-free, irrevocable, transferable, and worldwide licence (including the right to sub-licence) to use the User Content in order to provide the Services. You acknowledge that We:

1. have no responsibility or liability for the deletion or failure to store any User Content uploaded by You or any other User on the Website; and
2. are not responsible for any User Content uploaded to the Website by You or any User nor under any obligation to monitor, move, remove, block, modify, edit, or otherwise reject it.

You represent and warrant that:

1. You own the User Content or have the necessary licences, rights, consents, and permissions to publish the User Content You upload on the Website, including such consents as may be necessary to provide Personal Information on behalf of another person;
2. You have the right and power to grant the licence contained in clause 3.4 to Us;
3. the User Content uploaded by You will not infringe the Intellectual Property Rights of any Third Party; and
4. You will not upload User Content that will cause You to breach these Terms, in particular clause 8.

You acknowledge and agree that We are under no obligation to take legal action in relation to commencing, defending, enforcing, settling, or compromising (as appropriate) any infringement or Claim relating to Your Intellectual Property Rights in Your User Content.

Sitewiz Content and Reports

The Website is owned and operated by Us or on Our behalf. The Sitewiz Content on the Website is for general information and promotional purposes only. We do not warrant or make any representations as to any Third Party products or services described or referred to on the Website, in the Sitewiz Content, or in the Reports. Any use of the Sitewiz Content, the Reports, materials, or information by another person or organisation is at Your own risk. The Sitewiz Content on the Website is obtained and developed from a variety of sources, including but not limited to collaborations with Third Parties and information provided by Third Parties (including other Users) under licence. Inclusion of the Sitewiz Content on the Website is not an endorsement of any organisation, product, service, or advice. All Intellectual Property Rights, including copyright in the Website, the Sitewiz Content, and the Reports are owned or licensed by Us or Our affiliates. You must not copy, modify, or transmit any part of the Website or the Sitewiz Content, however you may copy or modify the content of the Reports subject to and in accordance with these Terms. The Website, the Reports, and the Sitewiz Content may also contain Our or Our affiliates' or Third Parties' trade marks, logos, and trade names which may be registered or otherwise protected by law. You are not permitted to use any trade marks, logos, or trade names appearing on the Website, the Reports, or the Sitewiz Content. We grant You a non-exclusive and non-transferable licence to use the Website, the Reports, and the Sitewiz Content for Your own personal use, subject to the restrictions specified elsewhere in these Terms. It is not to be otherwise used for commercial exploitation. You acknowledge and agree that the Reports are generated using the User Content You upload on the Website through Your Account. We give no assurance or warranty as to the accuracy or completeness of a Report nor guarantee or warrant a reduction or optimization of Your website in relying on a Report.

Access and Communication

Subject to the consumer guarantees provided for in the ACL, We do not warrant that You will have continuous access to the Sitewiz Content or the Website. We will not be liable if the Sitewiz Content or Website is unavailable to You due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities, interruption in telecommunications supply, or otherwise. We do not guarantee the delivery or security of communications over the internet as such communications rely on Third Party service providers, and electronic communication (including electronic mail) is vulnerable to interception by Third Parties. We do not provide and have no control over communications networks or services, the internet, or other technology required or used across the Website, and accept no responsibility for any direct or indirect Loss in any form associated with them, whether due to congestion, technical malfunction, viruses, or otherwise.

User Obligations

As a User of the Website, You must:

1. ensure that Your use of the Website will not violate or result in the breach of any agreement between You and any Third Party;
2. comply with all Our reasonable directions with respect to Your use of the Website, the Sitewiz Content, and the User Content;
3. take all reasonable steps to mitigate the risks inherent in the use of the Website; and
4. upon Our request, provide reasonable assistance in the investigation of any security issue relevant to Your use of the Website.

Payment for Services

All currency references and transactions are processed in US dollars. If You wish to make an order for the Services on the Website (Order), You can do so through Your Account on the Website. The payment for the Order is also made to Us online through Your Account on the Website. You must pay the fees (as specified on the Website or in Your Account) for the Services in accordance with these terms and conditions. We may from time to time issue You an invoice for the fees. You must pay all invoices no later than 30 days of receipt of an invoice unless otherwise agreed by Us and You in writing. If You fail to pay an invoice in accordance with this clause, We may without limiting any other rights under these Terms do one or both of the following:

1. suspend Our supply of the Services until You pay the invoice in full; and/or
2. charge interest on the amount overdue at a rate of 10% (or the maximum amount permitted by law) per annum calculated daily from the date the relevant payment was due until the date on which it is paid in full.

Where You make a payment using a credit card or debit card You:

1. authorize Us to debit the amount that is payable from Your nominated credit card or debit card account;
2. represent that You are properly authorised to use the credit card or debit card for such payment;
3. represent that the credit card or debit card information You submit is true, correct, and complete;
4. acknowledge and agree that any fees or charges incurred by You will be honoured by Your credit card company or bank (as applicable); and
5. will pay all charges incurred by You at the listed price on the Website or in Your Account including any applicable fees, charges, and taxes.

If We are unable to successfully process Your credit card or debit card for Your Order that is accepted by Us then We may cancel Your Order. We reserve the right at Our discretion to cancel any payment if it appears fraudulent in any way and We may notify the cardholder and the relevant authorities as such.

Prohibited Uses

You agree that in accessing and using the Website You will not engage or attempt to engage in any activities that:

1. download (other than page caching), transmit, copy, store, reformat, or otherwise modify any element of the Website or the Sitewiz Content;
2. impersonate or falsely claim to represent a person or organization;
3. are commercial, including selling, marketing, advertising, or promoting goods or services except if expressly permitted by these Terms;
4. post, link to, or otherwise communicate or distribute any misleading, deceptive, inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful material or information or otherwise use the Website in a manner which is unlawful or would infringe the rights of another person, including any Intellectual Property Rights;
5. bypass (or attempt to bypass) any security mechanisms imposed by the Website;
6. provide access or links to any material (including links to peer-to-peer network trackers/beacons) which may infringe the Intellectual Property Rights of another person;
7. delete or alter or attempt to delete or alter attributions, legal notices, trademarks, or copyright marks on any material contained on the Website;
8. knowingly post, introduce, or transmit or permit the posting, introduction, or transmission of a virus, worm, Trojan horse, malware, spyware, disabling or malicious device or code, time bomb, or any other software or hardware or configuration that may cause harm or change to the Website;
9. breach or circumvent any applicable laws in using or accessing the Website;
10. damage or tamper with the operation of the Sitewiz Content; and
11. use the Website or the Sitewiz Content in a manner which is unlawful or would infringe the rights of another person, including any Intellectual Property Rights.

Confidentiality

Obligations of confidentiality

Subject to clause 9.2, the Receiving Party must:

1. keep the Confidential Information confidential and not directly or indirectly disclose, divulge, or communicate any Confidential Information to or otherwise place any Confidential Information at the disposal of any other person without the prior written approval of the Disclosing Party;
2. take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;
3. only use the Confidential Information for the purposes of performing and to the extent necessary to perform its obligations under these Terms;
4. not memorize, modify, reverse engineer, or make copies, notes, or records of the Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these Terms; and
5. take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information under clause 9.3 complies at all times with the terms of this clause 9 as if that person were a Receiving Party.

Exceptions

The obligations of confidentiality under clause 9.1 do not apply to:

1. any Confidential Information that:
   1. is disclosed to the Receiving Party by a Third Party entitled to do so whether before or after the date of these Terms;
   2. was already lawfully in the Receiving Party's possession when it was given to the Receiving Party and was not otherwise acquired from the Disclosing Party directly or indirectly; or
   3. is generally available to the public at the date of these Terms or subsequently becomes so available other than by reason of a breach of these Terms; or
2. any disclosure of Confidential Information by the Receiving Party that is necessary and only to the extent required to comply with any court order or applicable law if to the extent practicable and as soon as reasonably possible the Receiving Party:
   1. notifies the Disclosing Party of the proposed disclosure;
   2. consults with the Disclosing Party as to its content; and
   3. uses reasonable endeavours to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure.

Authorized disclosure

A Receiving Party may disclose Confidential Information to any Related Entity, employee, agent, contractor, officer, professional adviser, banker, auditor, or other consultant of the Receiving Party (each a Recipient) only if the disclosure is made to the Recipient strictly on a "need to know basis" and prior to the disclosure:

1. the Receiving Party notifies the Recipient of the confidential nature of the Confidential Information to be disclosed; and
2. the Recipient undertakes to the Receiving Party (for the benefit of the Disclosing Party) to be bound by the obligations in this clause 9 as if the Recipient were a Receiving Party in relation to the Confidential Information to be disclosed to the Recipient.

The Receiving Party is liable for any breach of this clause 9 by a Recipient as if the Recipient were a Receiving Party in relation to the Confidential Information disclosed to the Recipient.

Breach of Confidence

Each Party must promptly notify the other Party if it becomes aware of any unauthorised access, use, or disclosure of all or any part of the Confidential Information and must give that other Party all reasonable assistance in connection with any claim which it may institute in connection with that unauthorised access, use, or disclosure.

Return or destruction of Confidential Information

Immediately on the written request of the Disclosing Party, a Receiving Party must:

1. cease the use of all Confidential Information of or relating to the Disclosing Party (or any Related Entity of the Disclosing Party);
2. deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording, or constituting that Confidential Information, or at the option of the Disclosing Party, destroy and certify to the Disclosing Party that it has destroyed those documents and materials; and
3. upon delivery of the Confidential Information under clause 9.5(b), permanently delete that Confidential Information from all electronic media on which it is stored so that it cannot be restored.

Privacy

Any Personal Information submitted by You (whether Personal Information of You or another individual which You have the necessary consents to provide) to Us is subject to and will be handled in accordance with Our Privacy Policy. The Privacy Policy forms part of these Terms and can be found at https://sitewiz.com/privacy. You agree that by using the Website or communicating with Us, You have read the Privacy Policy, understood its contents, and consented to its requirements. You must not upload any Personal Information of another individual to the Website unless You first make them aware of Our Privacy Policy and have their consent to upload such Personal Information.

Warranties, Consumer Guarantees, and Limitation of Liability

Without limiting clause 4.8 of these Terms, we do not represent or warrant the accuracy or completeness of the Sitewiz Content or the Reports or that the Website is free from any errors, omissions, or defects. We are not responsible for the outcome of decisions You may make regarding implementing the recommendations produced by the Sitewiz Content or Reports. Any representation, warranty, condition, guarantee, or undertaking that would be implied in these Terms by law, trade, custom, or usage is excluded to the maximum extent permitted by law. We are not liable to You for any indirect, incidental, special, or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation, or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breach of contract, tort (including negligence), statute, or otherwise) arising out of or in connection with the Website, the Sitewiz Content, or all links to or from the Website. Subject to this clause 11, Our maximum aggregate liability for all proven Losses and Claims arising out of or in connection with these Terms or the use of the Website, including liability for breach in negligence or in tort or for any other common law or statutory action, is limited to the sum of $100.

Indemnity

You agree and acknowledge that You will fully indemnify Us in respect of all Loss, damages, costs, and expenses (including legal fees on a full indemnity basis), fines, penalties, Claims, demands, and proceedings however arising, whether at common law (including negligence) or under statute, in connection with:

1. any breach of these Terms by You;
2. Your User Content;
3. Your use of the Website, Reports, or Sitewiz Content, including any wrongful, wilful, or negligent act or omission;
4. Your communications with Us; or
5. Your use of Third Party websites linked to the Website.

Unless these Terms expressly provide otherwise, a Party may recover a payment under an indemnity in these Terms before it makes the payment in respect of which the indemnity is given.

Termination of Your access to the Website

We may at any time immediately terminate Your access (including restricting access) to the Website or any feature of the Website for any reason (including due to Your breach or alleged breach of these Terms) in Our sole discretion and without prior notice. This clause 13.2 and clauses 1, 9, 10, 11, 12, and 14 will survive termination of Your access to the Website in accordance with clause 13.1 and will continue to Our benefit and be enforceable by Us.

General

Entire understanding

These Terms contain the entire understanding between the Parties concerning the subject matter of these Terms and supersedes, terminates, and replaces all prior agreements and communications between the Parties.

No adverse construction

These Terms and any provision of these Terms are not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.

No waiver

A failure, delay, relaxation, or indulgence by a Party in exercising any power or right conferred on the Party by these Terms does not operate as a waiver of that power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these Terms. A waiver of a breach does not operate as a waiver of any other breach.

Severability

Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.

Successors and assigns

These Terms bind and benefit the Parties and their respective successors and permitted assigns under clause 14.6.

No assignment

You cannot assign or otherwise transfer the benefit of these Terms without Our prior written consent. We are permitted to assign or otherwise transfer the benefit of these Terms without Your prior consent.

Communication and Notice

You consent to Us contacting You by electronic means, including through email.

Governing Law and jurisdiction

These Terms are governed by and must be construed in accordance with the laws in force in the State of Delaware.

Contacting Us

If You have questions about these or the Terms please contact Us by email at [Insert Email].