Mouse Eye Tracking

The following are the Terms of Service for use of the PicNet’s Mouse Eye Tracking service ("Service") between PicNet Pty Ltd (www.picnet.com.au) and you (either an individual or a legal entity that you represent as an authorised employee or agent) ("You").

Please read them carefully.

By clicking the "I accept" button, completing the registration process and/or using the Service, you are stating that you are eligible for an Account and that you agree to be bound by all of these Terms of Service (Terms, Conditions, Agreement, Privacy and other Policies)

The Service is offered to you conditioned on your acceptance without modification of these Terms of Service and notices contained herein.

1. DEFINITIONS

"Account" refers to your email address registered to use the PicNet’s Mouse Eye Tracking service able to view Mouse Tracking information in all the web sites where You add/install the Code given to you by the PicNet’s Mouse Eye Tracking service at registration time.

"Code" means the javascript code given to you at registration time, Code that you are able to install or remove from any web site and its pages under your control. This Code should not be tampered with because it interacts with the PicNet’s Mouse Eye Tracking central servers and databases to record Tracking Information which You will be able to view and analyse.

"Tracking Information" means the data concerning the Mouse activities of visitors to your website, stored in the PicNet’s Mouse Eye Tracking Servers. This Tracking Information can be viewed and analysed with the PicNet’s Mouse Eye Tracking Management Console. The Tracking Information is kept for the time duration indicated by PicNet in its FAQ.

"Servers" means the servers controlled by PicNet upon which the Tracking Information is processed and stored.

2. FEES AND SERVICES.

These are defined in the FAQ section of the PicNet’s Mouse Eye Tracking web site http://met.picnet.com.au/ .

PicNet may change its fees and payment policies for the Service from time to time. The changes to the fees or payment policies are effective upon Your acceptance of such changes which will be posted at http://met.picnet.com.au/ FAQ section.

Unless otherwise stated, all fees are quoted in Australian dollars.

3. NONEXCLUSIVE LICENCE.

PicNet hereby grants You a limited, revocable, non-exclusive, non-sub licensable license to install, copy and use the Code solely as necessary to use the Service for one or more web sites that You own and control.

Subject to the terms and conditions of this Agreement, You may remotely access, view and analyse Your tracking Information as represented by the PicNet’s Mouse Eye Tracking service.

This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, PicNet will remove access to Your Account.

4. CONFIDENTIALITY.

"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 user name(s) issued to You by PicNet, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify PicNet of any unauthorized use of Your account or any other breach of security known to You.

5. PRIVACY.

You will not use the PicNet’s Mouse Eye Tracking service to track or collect personally identifiable information of Internet users, nor will You associate any data gathered from your website(s) with any personally identifying information from any source as part of.

From its part, PicNet believes your private information should stay that way. Therefore, PicNet has adopted strict guidelines and practices to ensure that your confidential personal and/or business information remains secure.

Please note that part of the responsibility for privacy lies with you. Make sure that only You access the Service and that you change your password on a regular basis.

You must ensure that your password is kept secure and confidential and not revealed to any other person. Furthermore, you may not permit any other person to use your account. You may change your password at any time by following the instructions provided on the Service.

You agree to notify PicNet immediately of any unauthorised use of your account or any other breach of security and or privacy.

6. INDEMNIFICATION.

You agree to indemnify, hold harmless and defend PicNet at your expense, any and all third-party claims, actions, proceedings, and suits brought against PicNet 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 PicNet 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 Mouse Eye Tracking service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your Brand Features. In such a case, PicNet will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defence of any claim. PicNet reserves the right, at its own expense, to assume the exclusive defence and control of any matter subject to indemnification by You.

7. DISCLAIMER OF WARRANTIES.

The Tracking Information included in or available through the PicNet’s Mouse Eye Tracking service may include inaccuracies or typographical errors. Changes are periodically added to the information herein and to the functionality of the Service. PicNet may make improvements and/or changes in the Service or Software at any time, with or without notice. PicNet 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 Servers are free of viruses or other harmful components. PicNet does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that PicNet shall not be responsible for unauthorized access to or alteration of the Tracking Information or data from Your Website.

The service, the software and reports are provided "as is" and there are no warranties, claims or representations made by PicNet, 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. PicNet 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.

8. LIMITATION OF LIABILITY.

PicNet will not be liable to user or any third-party claimant for any indirect, special, punitive, consequential (including, without limitation, lost profits or lost Tracking Information 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 PicNet 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.

PicNet's 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 value paid for one month of the service for one of your web sites (domain).

9. SERVICE LEVELS.

PicNet 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 PicNet's control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labour conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where PicNet or Your servers are located or co-located. Complete accuracy in all aspects of Your Tracking Information at all times also is not guaranteed.

10. PROPRIETARY RIGHTS NOTICE.

The Service, which includes but is not limited to the PicNet’s Mouse Eye Tracking software, databases and Code and all intellectual property rights in the Service are, and shall remain, the property of PicNet. All rights not expressly granted to You in these Terms of Service are hereby expressly reserved and retained by PicNet without restriction, including, without limitation, PicNet's right to sole ownership of PicNet’s Mouse Eye Tracking Software. Without limiting the generality of the foregoing, You agree not to (and to not 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 PicNet; (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 PicNet other than in the name of PicNet; 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.

11. TERM and TERMINATION.

Either party to the Agreement may terminate it at any time and for any reason.

PicNet reserves the right to decide whether the content of your website on which the PicNet Mouse Eye Tracking service is used, is appropriate and complies with these Terms of Service for violations other than copyright infringement, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. PicNet may remove You and your account and terminate your access to the PicNet Mouse Eye Tracking management console for violation of these Terms of Service at any time, without prior notice and at its sole discretion.

Upon any termination or expiration of this Agreement, PicNet will cease providing the Service, and You will delete all copies of PicNet’s Mouse Eye Tracking's Code from all your web sites where the Code was installed and certify thereto in writing to PicNet 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 Tracking Information will no longer be available to You.

12. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES.

PicNet reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement to the site located at http://met.picnet.com.au/. You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of PicNet, (ii) You accept updated terms online, or (iii) You continue to use the Service after PicNet has posted updates to the Agreement or to any policy governing the Service.

13. MISCELLANEOUS; APPLICABLE LAW AND VENUE.

PicNet shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. 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. In the event of any conflicts between foreign law, rules, and regulations, and Australia’s NSW law, rules, and regulations, Australia’s NSW law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in NSW, Australia.

Any notices to PicNet must be sent to: PicNet Pty Ltd to the Contact Us information provided in www.picnet.com.au

A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without PicNet's prior written consent, and any such attempt is void. The relationship between PicNet 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.

The following sections of this Agreement will survive any termination thereof: 1,3,4,5,6,7,8,10,11,12 and 13.