Chartbeat Terms of Service

Effective date: April 15, 2024

These Terms of Service (the “Terms”) are a binding contract between the customer listed on the applicable Work Order (including any end-users, “Customer”) and Chartbeat, Inc. These Terms govern Customer’s use of the website(s), products, services and applications (the “Services”) offered by Chartbeat, Inc. (the “Chartbeat Services”) and/or by its affiliate, Tubular Labs, Inc. (“Tubular” and, such Services, the “Tubular Services”). Chartbeat, Inc. and Tubular are collectively referred to as “Chartbeat”. For any questions, comments, or concerns regarding these terms or the Services, please contact:

Chartbeat
Email: privacy@chartbeat.com
Address: 701 Tillery St, Unit 12-1019, Austin, TX 78702

Tubular
Email: privacy@tubularlabs.com
Address: 447 Sutter Street, Suite 405, San Francisco, CA 94108

Customer’s use of the Services in any way or, with respect to the Chartbeat Services, Customer’s implementation of any Chartbeat Services means that Customer agrees to all of these Terms, and these Terms will remain in effect while Customer uses the Services. These Terms include the provisions in this document as well as those in the Chartbeat Privacy Policy, the Chartbeat Data Processing Agreement, the Tubular Privacy Policy, the Tubular Data Processing Agreement, and the API Terms of Use, each as applicable, as well as any work orders, statements of work or other agreement governing the provision of the applicable Services (“Work Orders”).

Please read these Terms carefully. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT CUSTOMER’S AND CUSTOMER’S USERS’ USE OF AND ACCESS TO THE SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF CUSTOMER DOES NOT AGREE TO ALL OF THE FOLLOWING, CUSTOMER AND CUSTOMER’S USERS MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. EACH USER IS ENTERING INTO THESE TERMS ON BEHALF OF CUSTOMER AND REPRESENTS AND WARRANTS THAT IT IS AUTHORIZED TO BIND CUSTOMER TO THESE TERMS.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, CUSTOMER AGREES THAT DISPUTES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND CUSTOMER WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

• A. PRODUCT DESCRIPTIONS; INTELLECTUAL PROPERTY RIGHTS
  The products, services and applications offered by Chartbeat and Tubular are more particularly described at https://chartbeat.com and https://tubularlabs.com. The Services and all software and other technologies embodied in or used to provide the Services as well as all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Chartbeat and Tubular, as the case may be.
  
  
• B. MODIFICATION
  Chartbeat reserves the right to change the Terms at any time. In the event material changes are made, Chartbeat will place a notice on the applicable site, send Customer an email, and/or notify Customer by some other means. If Customer or Customer’s users disagree with any of these Terms, Chartbeat does not grant Customer or such user a license to use the Services. Customer’s and each user’s continued use of the Services after Chartbeat posts a new version of these Terms will be conclusively deemed to be acceptance by Customer of any such new version.
  
  Except for changes by Chartbeat as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both Customer and Chartbeat.
  
  
• C. CHILDREN’S ONLINE PRIVACY PROTECTION ACT
  The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before knowingly collecting personally identifiable information online from children who are under 13 years of age. Chartbeat does not knowingly collect or solicit personally identifiable information from children under 16 years of age. If Chartbeat learns that it has collected personal information from a child under 16 years of age, Chartbeat will delete that information as quickly as possible. If Customer believes that a child under 16 years of age may have provided personal information to Chartbeat, Customer shall immediately contact Chartbeat at support@chartbeat.com for Chartbeat Services and support@tubularlabs.com for Tubular Services.
  
  
• D. ACCESS TO THE SERVICES
  Each Customer user will be required to sign up for an account, select a password and user name (“User ID”), and provide certain information or data, such as their contact information. Customer shall provide accurate, complete, and updated registration information about its users. Customer’s users may not select as a User ID a name that Customer does not have the right to use, or another person’s name with the intent to impersonate that person. Customer may not transfer user accounts to anyone else without Chartbeat’s prior written permission.
  
  Additionally, users may be able to access certain parts or features of the Services by using their account credentials from other services (each, a “Third Party Account”), such as those offered by Okta, Google, Meta, or Microsoft. By using the Services through a Third Party Account, Customer and the applicable Customer user permits Chartbeat to access certain information from such account for use by the Services. Customer is ultimately in control of how much information is accessible and may exercise such control by adjusting the privacy settings on the user’s Third Party Account.
  
  Customer’s users will not share their individual User ID, account, password, or API key (to the extent applicable) with anyone, including other Customer users, and must protect the security of their User ID, account, password, API key, and any other access tools or credentials. Customer is responsible for any activity associated with its users’ User ID and accounts.
  
  
• E. MESSAGING
  As part of the Services, Customer’s users may receive communications through the Services, including messages that Chartbeat sends users (for example, via email or SMS). When signing up for the Services, Customer users will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing Chartbeat with a wireless number, Customer and each of its applicable users confirms that Chartbeat is permitted to send information regarding Customer’s or such user’s account or transactions, which may include Chartbeat using automated dialing technology to text Customer and its applicable users at the wireless number(s) provided, and Customer and each applicable user agrees to receive communications from Chartbeat, and Customer represents and warrants that each person registered for the Services or for whom a wireless phone number is provided has consented to receive communications from Chartbeat. Customer agrees to indemnify and hold Chartbeat harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to Customer or Customer’s users breach of the foregoing.
  
  
• F. CUSTOMER RESTRICTIONS
  Except as expressly set forth in these Terms, Customer shall not (and shall not permit any user or third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Chartbeat product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Chartbeat may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading data, information, or other material provided by Customer onto the Services. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
  
  
• G. CUSTOMER CONTENT
  The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. Customer shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content it accesses through the Services, and Customer shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by it, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Chartbeat’s) rights.
  
  Subject to these Terms and except as provided herein, Chartbeat grants to Customer and each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without Chartbeat’s prior written permission. Although the Services may allow users to copy or download certain Content, all the restrictions in these Terms still apply.
  • 1. User Submissions
    Anything Customer or Customer’s users post, upload, share, store, or otherwise provide publicly about the Services such as through public social media accounts or third party review platforms (each, a “User Submission”) may be reposted on the Services. Customer is solely responsible for all User Submissions contributed to the Services. Customer represents that all User Submissions submitted by it are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
    
    Customer agrees that it will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
    
  • 2. Licenses
    In order to display Customer’s User Submissions on the Services, and to allow other users to enjoy them (where applicable), Customer grants to Chartbeat certain rights in User Submissions. Please note that all of the following licenses are subject to the Chartbeat Privacy Policy and/or the Tubular Privacy Policy, as applicable, to the extent they relate to User Submissions that may contain personally-identifiable information.
    
    By submitting User Submissions, Customer hereby does and shall grant to Chartbeat (i) a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Services and Chartbeat’s (and its successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after Customer’s termination of an account or the Services and (ii) a non-exclusive, royalty-free, limited license to use Customer’s name, logo and trademark(s) on Chartbeat’s website and in other marketing materials to identify it as a customer. Customer also hereby does and shall grant each user of the Services a non-exclusive, perpetual license to access its User Submissions through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after Customer’s termination of an account or the Services. For clarity, the foregoing license grants to Chartbeat and its users do not affect Customer’s other ownership or license rights in its User Submissions, including the right to grant additional licenses to its User Submissions, unless otherwise agreed in writing. Customer represents and warrants that it has all rights to grant such licenses to Chartbeat without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
    
    Certain features of the Services allow users to share information with others, including through social networks or other Third Party Accounts. When Content is authorized for sharing, Chartbeat will clearly identify the Content authorized to redistribute and the ways it may be redistributed, usually by providing a “share” button on or near the Content. If Customer shares information from the Services with others through Third Party Accounts, such as social networks, Customer authorizes Chartbeat to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers Customer shares information with or through for additional information about how they may use Customer’s information. If Customer redistributes Content, it must be able to edit or delete any Content it redistributes, and Customer must edit or delete it promptly upon Chartbeat’s request.
    
    Finally, Customer understands and agrees that Chartbeat, in performing the required technical steps to provide the Services, may need to make changes to User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
    
    
• H. CUSTOMER RESPONSIBILITIES
  Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and Customer accesses all such information and Content at its own risk, and Chartbeat is not liable for any errors or omissions in that information or Content or for any damages or loss Customer might suffer in connection with it. Customer hereby releases Chartbeat from all liability for Customer having acquired or not acquired Content through the Services.
  
  Customer is responsible for all Content it contributes, in any manner, to the Services, and represents and warrants it has all rights necessary to do so, in the manner in which Customer contributes it. Customer is also responsible for obtaining the consent of other participants when using the Services to the extent required by applicable law, including, but not limited to, laws governing the monitoring or recording of conversations, cookies and other tracking technologies, and data privacy laws.
  
  The Services may contain links or connections to third-party websites or services that are not owned or controlled by Chartbeat. When Customer accesses third-party websites or use third-party services, Customer accepts that there are risks in doing so, and that Chartbeat is not responsible for such risks.
  
  Chartbeat has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that Customer interacts with through the Services. In addition, Chartbeat will not and cannot monitor, verify, censor or edit the content of any third-party site or service and use of such third-party services may be subject to the terms and conditions and privacy policy of each third-party website or service that Customer visits or utilizes. By using the Services, Customer releases and holds Chartbeat harmless from any and all liability arising from Customer’s use of any third-party website or service.
  
  
• I. SERVICE CHANGES
  Chartbeat reserves the right to suspend or discontinue any part of the Services, introduce new features, impose limits on certain features or restrict access to parts or all of the Services. Chartbeat will endeavor to provide notice of material changes to the Services that would adversely affect Customer. Chartbeat reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges Customer contributed that Content in violation of these Terms), in its sole discretion, and without notice.
  
  
• J. CHARTBEAT SERVICES TERMS
  If Customer is a Chartbeat Services user, Customer agrees to configure the Services on its website(s) in accordance with Chartbeat’s Documentation. By loading the Chartbeat JavaScript on Customer’s website, it will be placing certain cookies (described in the Chartbeat Cookie page) on Customer’s users’ web browsers when those users visit such website. Customer agrees that it is responsible for such placement and for complying with any applicable laws associated therewith. Chartbeat is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Chartbeat Services or any damages resulting from Customer’s failure to implement the Chartbeat Software on Customer’s website(s) in accordance with Chartbeat’s requirements. Customer agrees to configure the Software on its website(s) in accordance with Chartbeat’s requirements, including by ensuring that URLs containing Personal Data (as defined in the Chartbeat Data Processing Agreement) of end users are not captured by the Services.
  
  Customer must remove all Chartbeat scripts and materials from its website(s), and disable access to the Chartbeat API (as defined in the API Terms of Use), within ninety (90) days after termination.
  
  
• K. TUBULAR SERVICES TERMS
  Customer agrees that it may use the Tubular Services and any data generated or derived from the Tubular Services solely in support of its business operations related to the measurement and analysis of online video audience behavior and not for the benefit of any third party. Notwithstanding the foregoing, Customer may disclose data generated or derived from the Services internally, provided that Customer will not redistribute data or data derived from the Services for direct commercial gain. Customer agrees that it may not disclose data generated or derived from the Services with any third party unless Chartbeat has provided its prior written consent. For more information about redistributing data from the Services or to share such data with a third party, please reach out to the Customer Success Manager. Customer shall conspicuously credit Tubular as the source of any such data that is being disclosed using the phrase “Data provided by Tubular Labs” or a comparable attribution approved in writing by Tubular. Citation guidelines can be found here. In digital media, the attribution shall also include a hyperlink to www.tubularlabs.com.
  
  
• L. PAYMENT
  Except as otherwise set forth in an applicable Work Order, all fees shall be invoiced annually in advance and all invoices issued under these Terms are payable in U.S. dollars within thirty (30) days from the date of the invoice. All fees paid under these Terms or an applicable Work Order are non-refundable and past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.
  
  Applicable taxes will be invoiced as a separate item or line item and may be billed at a later date. Customer shall pay sales, use, value added, goods and services, and all other similar taxes imposed by any federal, state, or local governmental entity (foreign or domestic) for taxable items and/or any Services provided under these Terms or any applicable Work Order, excluding taxes based solely on Chartbeat’s income or property. In the event Customer is required to withhold any portion of service fees due to payments to banks or taxing authorities, Customer agrees to do so and to indemnify Chartbeat/Tubular for any liability resulting from its failure to make such withholdings, and Chartbeat/Tubular reserves the right to adjust the pricing of the Services so that Customer is responsible for payment of the full amount for the Services, net of any such withholdings. Customer and Chartbeat shall cooperate in good faith to minimize taxes to the extent legally permissible. Each party shall provide and make available to the other party any resale certificates, treaty certification, and other exemption information reasonably requested by the other party. Notwithstanding the foregoing, provided Customer furnishes Chartbeat with a valid and timely tax exemption certificate, no sales, use, value added, goods and services, or other similar taxes will be billed.
  
  
• M. TERMINATION
  Customer may terminate the Services only if Chartbeat materially breaches these Terms and fails to cure such breach within thirty (30) days after receiving written notice of such breach from Customer. Notwithstanding the foregoing, if Customer has previously subscribed to the legacy product known as Chartbeat for Everyone, Customer may terminate its use of that service only at any time. Additionally, please refer to the Chartbeat Privacy Policy or the Tubular Privacy Policy, as applicable, as well as the licenses above, to understand how Chartbeat treats information provided following termination.
  
  Chartbeat is also free to terminate (or suspend access to) Customer’s use of the Services or any user account for any reason in its sole discretion, including Customer’s breach of these Terms. Chartbeat has the sole right to decide whether Customer is in violation of any of the restrictions set forth in these Terms. If Customer is not in violation of these Terms or the associated Work Order, and Chartbeat nonetheless terminates Customer’s use of the Services, Customer shall receive a prorated refund of fees paid in advance for the period following such termination.
  
  Account termination may result in destruction of any Content associated with Customer or Customer’s users’ account(s).
  
  Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any of Customer’s payment or indemnification obligations, any limitations on Chartbeat’s liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes, including without limitation the arbitration agreement.
  
  
• N. MOBILE APPLICATIONS
  Customer acknowledges and agrees that the availability of the Chartbeat mobile application is dependent on the third party stores from which each user downloads the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which Customer must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. Customer agrees to comply with, and Customer’s license to use Chartbeat’s application is conditioned upon its compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service apply.
  • 1. Apple App Store Terms
    These Terms apply to Customer’s use of all the Services, including Chartbeat’s iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
    • Both Customer and Chartbeat acknowledge that the Terms are concluded between Customer and Chartbeat only, and not with Apple, and that Apple is not responsible for the Application or the Content;
      
      
    • The Application is licensed to Customer on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services, subject to all the terms and conditions of these Terms as they are applicable to the Services;
      
      
    • Customer will only use the Application in connection with an Apple device that it owns or controls;
      
      
    • Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
      
      
    • In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, Customer may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Customer will be to refund to it the purchase price, if any, of the Application;
      
      
    • Customer acknowledges and agrees that Chartbeat, and not Apple, is responsible for addressing any claims it or any third party may have in relation to the Application;
      
      
    • Customer acknowledges and agrees that, in the event of any third-party claim that the Application or Customer’s possession and use of the Application infringes that third party’s intellectual property rights, Chartbeat, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
      
      
    • Customer represents and warrants that it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that it is not listed on any U.S. Government list of prohibited or restricted parties;
      
      
    • Both Customer and Chartbeat acknowledge and agree that, in Customer’s use of the Application, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
      
      
    • Both Customer and Chartbeat acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon Customer’s acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.
      
      
• O. MISCELLANEOUS
  • 1. Warranty Disclaimer
    Chartbeat and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, including but not limited to Tubular, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Chartbeat and all such parties together, the “Chartbeat Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Chartbeat Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to Customer’s participation in, the Services. The Chartbeat Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY CHARTBEAT (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT DOES CHARTBEAT GUARANTEE ANY RESULTS, INCREASED TRAFFIC, OR USER ENGAGEMENT FOR CUSTOMER. CHARTBEAT MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. CUSTOMER IS RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM CUSTOMER’S WEBSITE’S END USERS
    
    
  • 2. Limitation of Liability
    TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE CHARTBEAT PARTIES BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID AND/OR PAYABLE BY CUSTOMER TO CHARTBEAT IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND CHARTBEAT’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER IN THOSE STATES.
    
    
  • 3. Indemnity
    Customer agrees to indemnify and hold the Chartbeat Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) Customer or Customer’s users’ use of the Services (including any actions taken by a third party using Customer accounts), and (b) Customer’s violation of these Terms. In the event of such a claim, suit, or action (“Claim”). Chartbeat will attempt to provide notice of the Claim to the contact information provided by Customer in the Work Order (provided that failure to deliver such notice shall not eliminate or reduce Customer’s indemnification obligations hereunder). Chartbeat 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 Customer.
    
    Chartbeat agrees to indemnify and hold the Customer harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims that the Services infringe any third-party intellectual property or proprietary right. Chartbeat’s indemnification obligations hereunder shall be conditioned upon Customer providing Chartbeat with: (x) prompt written notice of any claim; (y) the right to assume sole control over the defense and settlement of any claim (provided that Customer may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at Chartbeat’s expense). The foregoing obligations of Chartbeat do not apply with respect to the Services or any information, technology, materials, Content, User Submissions, or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Chartbeat (including without limitation any Content, User Submissions, or other information provided by Customer or Customer’s users), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Chartbeat, (iv) combined with other products, processes or materials not provided by Chartbeat (where the alleged losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.
    
    If the Services or any part thereof becomes or, in Chartbeat’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Chartbeat may, at its option and expense, (1) obtain for Customer the right to continue using the Services or (2) replace or modify the infringing portions of the Services so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Chartbeat, then it may (3) terminate the applicable Order Form(s) and/or these Terms upon written notice to Customer and refund to Customer any unused fees for the Services that were pre-paid for the then-current term, pro-rated for the remainder thereof.
    
    
  • 4. Assignment. Customer may not assign, delegate or transfer these Terms or its rights or obligations hereunder, or its Services account(s), in any way (by operation of law or otherwise) without Chartbeat’s prior written consent. Chartbeat may transfer, assign, or delegate these Terms and its rights and obligations without consent.
    
    
  • 5. Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.
    
    
  • 6. Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires Customer to arbitrate certain disputes and claims with Chartbeat and limits the manner in which Customer can seek relief from Chartbeat. Both Customer and Chartbeat acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Chartbeat’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon Customer’s acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.
    
    
    • Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Wilmington, Delaware. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
      
      
    • Costs of Arbitration. The Rules will govern payment of all arbitration fees. Chartbeat will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Chartbeat will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that Customer’s claim is frivolous
      
      
    • Infringement. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
      
      
    • Waiver of Jury Trial. CUSTOMER AND CHARTBEAT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Customer and Chartbeat are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Customer and Chartbeat over whether to vacate or enforce an arbitration award, CUSTOMER AND CHARTBEAT WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
      
      
    • Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE ENTITY OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER ENTITY OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Chartbeat is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
      
      
    • Opt-out. Customer has the right to opt out of the provisions of this Section by sending written notice of its decision to opt out to the following address: 701 Tillery St, Unit 12-1019, Austin, TX 78702 postmarked within thirty (30) days of first accepting these Terms. Customer must include (i) its full legal name and address, (ii) the email address and/or telephone number associated with the applicable account, and (iii) a clear statement that Customer wants to opt out of these Terms’ arbitration agreement.
      
      
    • Exclusive Venue. If Customer sends the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either Customer or Chartbeat to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both Customer and Chartbeat agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Wilmington Delaware, or the federal district in which that county falls.
      
      
    • Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of Customer’s relationship with Chartbeat.
      
      
  • 7. Miscellaneous. The failure of either Customer or Chartbeat to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. Customer and Chartbeat agree that these Terms are the complete and exclusive statement of the mutual understanding between Customer and Chartbeat, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Customer hereby acknowledges and agrees that it is not an employee, agent, partner, or joint venture of Chartbeat, and it does not have any authority of any kind to bind Chartbeat in any respect whatsoever.
    

Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, Customer and Chartbeat agree there are no third-party beneficiaries intended under these Terms.