Effective October 1, 2008
END USER LICENSE AGREEMENT
The CHARTBEAT.COM website (the "Site") are owned and operated
by Chartbeat Inc. ("CHARTBEAT.COM", "Chartbeat",
"We" or "Us"). The Site contains certain Chartbeat
proprietary software (the "Software") that allows any website
to access real-time statistics based on their website visitors, (the
Site and Software shall be collectively known as the "Service"),
subject to these Terms of Use. You must agree to these Terms of Use
in order to use the Site. Before you can use any part of the Service,
you must read and affirmatively indicate your acceptance of the following
terms and conditions and the Privacy Policy (individually or collectively
the "End User License Agreement" or "Agreement").
This Agreement sets forth the rights and obligations of the parties
associated with Your use of the Service. Each time you use the Site,
the current version of these Terms of Use will apply. Accordingly, when
you use the Site, you should check the date of the Terms of Use and
review any changes since the last version. If you do not agree with
these Terms of Use at any time, please cease use of this Site and the
Service.
By either (1) clicking on the "I Accept" button below or (2)
implementing or (3) using the Service You agree that you are authorized
to accept these terms and conditions on behalf of yourself and/or Your
company (collectively, "You"), and that You are bound by the
terms of the Agreement for the Service. This Agreement is made and entered
into by and between You and Chartbeat. You agree to accept notices sent
electronically, including but not limited to, email messages sent to
the current email address of Your account and notices posted on the
Website.
1. LICENSE. Subject to the terms and conditions of this Agreement, Chartbeat
grants to You (and You agree to comply with) a non-sub licensable, non-transferable,
non-exclusive, revocable, limited license to use: (i) certain Chartbeat
proprietary software (the "Software") and (ii) certain proprietary
documentation in the form generally made available by Chartbeat to You
on the Website for use with the Software (the "Documentation").
Your use of the Services shall be restricted pursuant to the terms and
conditions of this Agreement. You agree to be responsible for the acts
and/or omissions of any third party using the Service through Your account.
Other than as expressly granted above, no other rights are granted,
including without limitation any and all Chartbeat patents, copyrights,
moral rights, trade secrets, trademarks, service marks, publicity rights
law, and other proprietary rights (whether or not perfected or perfectable)
("Intellectual Property Rights"). Nothing in this Agreement
grants to You any rights whatsoever in or relating to the source code
of the Software. All ownership rights, title, and Intellectual Property
Rights in and to the Services shall remain in Chartbeat and/or its licensors.
You agree that Chartbeat has the right to change, modify, add to or
discontinue or retire any aspect or feature of the Service at any time.
Chartbeat has no obligation to give you notice of any changes. From
time to time, Chartbeat may, but is under no obligation to, release
upgrades, fixes or new versions of the Service, although these upgrades
may not be consistent across all platforms and devices.
2. RESTRICTIONS. You agree not to, or to allow others to: (i) adapt,
alter, modify, decompile, translate, make derivative works, disassemble,
or reverse engineer the Service, including without limitation, the source
code and any other underlying ideas or algorithms of the Software (except
to the extent applicable laws specifically prohibit such restriction
or where in accordance with the API terms of service); (ii) copy the
Software; (iii) transfer, sublicense, loan, sell, lease, use for timesharing
or service bureau purposes, or otherwise commercially use or exploit
the Service; or (iv) use the Service in violation of any applicable
regulation or law; or (v) ship, divert, trans-ship, transfer, export
or re- export the Service or any component thereof into any country
or use it in any manner prohibited by any export control laws, restrictions,
or regulations administered by the U.S. Commerce Department's Bureau
of Export Administration, the U.S. Department of Treasury's Office of
Foreign Assets Control or any other applicable government agency.
You agree to: A. Use the Service for lawful purposes only and in compliance
with any policies posted to the Website or conveyed by electronic notice;
B. Not use the Service in a way that prevents or inhibits another user
from enjoying the Service;
C. Not obtain the communications protocol for accessing the Service;
D. Not remove, obscure or alter any notices or indications of any Intellectual
Property Rights, any trade names, trademarks, service marks, logos,
trade dress, and any other distinctive or proprietary symbols, labels,
designs or designations ("Branding"), or any electronic notices;
E. Not interfere with, or attempt to interfere with, compromise the
system integrity or security, or decipher any transmissions to or from
the Service servers;
F. Not to take any action that imposes an unreasonable or disproportionately
large load on our infrastructure;
G. Not to challenge or assist others to challenge Branding, Intellectual
Property Rights or registration or applications thereof;
H. Allow the content posted using the Service by all users, including
by you, will be collected, aggregated and anonymously integrated into
the Service, and that We will use aggregated data collected from you
and other users for statistical and analytical reporting purposes; and
I. Allow the Service to be placed on your website(s) and you hereby
grant Us a nonexclusive, irrevocable during the term of this Agreement,
royalty-free license to perform, or have performed, these activities.
3. REGISTRATION PROCESS. If you decide to register for the Service,
you must provide certain limited information about yourself as prompted
to do so by the Service. We reserve the right to refuse the Service
to any user.
FREE TRIAL PERIOD
A valid credit card is required for registration. By registering for
the Service, Chartbeat will provide You with access to the Site as a
free trial user for thirty (30) days ("Free Trial Period").
The term of use for the Free Trial Period will begin on the date of
Your registration on the Site and continue for thirty (30) days, unless
extended or sooner terminated. Either You or Chartbeat may terminate
this Agreement at any time for any reason. Upon completion of the beta
or Free Trial Period membership term, Chartbeat may offer You a full
membership to the Site by charging the credit card You provided to Chartbeat
upon registration.
PAYING MEMBERSHIPS
Paying memberships are billed in advance on a monthly basis. If You
do not cancel your account within the Free Trial Period, Your credit
card will be charged on a recurring monthly basis starting on the 31st
day after your account was initially created. Chartbeat will not issue
refunds for periods of inactivity within an open account. Chartbeat
may change the prices of all membership plans upon thirty (30) days
notice to You. Such notice may be provided at any time by posting the
changes to the Site. Chartbeat will not be liable to You or to any third
party for any modifications, price changes, or suspension or discontinuation
of the Site or Services. Service fees are exclusive of all taxes, levies,
or duties imposed by taxing authorities, and You are responsible for
payment of all such taxes, levies, or duties, excluding only United
States income (federal or state) taxes.
4. WARRANTY DISCLAIMER. CHARTBEAT MAKES NO WARRANTY OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION,
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. THE
SERVICE IS PROVIDED BY CHARTBEAT AND ITS LICENSORS "AS IS"
AND "AS AVAILABLE." YOU ASSUME ALL RISK FOR YOUR USE OF THE
SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS,
OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES CHARTBEAT DOES GUARANTEE
ANY RESULTS, INCREASED TRAFFIC OR USER ENAGEMENT FOR YOU. CHARTBEAT
DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE,
ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED,
OR THAT THE SERVICE'S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE
OR HARDWARE. THIS SECTION 5 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY
APPLICABLE LAW. THE SERVICE IS OFFERED BY CHARTBEAT FROM ITS FACILITIES
IN THE UNITED STATES OF AMERICA. CHARTBEAT MAKES NO REPRESENTATIONS
THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES.
THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT
THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE
LAWS.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL CHARTBEAT AND/OR ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO
USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA,
LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR
USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS,
SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN,
HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED,
TO CONTRACT OR TORT AND WHETHER OR NOT CHARTBEAT WAS OR SHOULD HAVE
BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) FOR
ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN
THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. IN NO EVENT SHALL
CHARTBEAT AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL
SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE
DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO SUCH LIABILITY.
6. INDEMNIFICATION. YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY,
DEFEND AND HOLD HARMLESS CHARTBEAT ITS LICENSORS, AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS,
LIABILITIES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES,
ARISING OUT OF (A) YOUR USE OF THE SERVICE, (B) THIRD PARTY CLAIMS,
ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR
CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (C) ANY FRAUD
OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, OR (D) THIRD
PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT
OF YOUR USE OF THE SERVICE OR THE SITE. 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 YOU.
7. TERM AND TERMINATION. The term of the license granted herein for
the Service shall commence upon the earlier of (1) Your clicking on
the "I Accept" button below or (2) Your implementation or
(3) Your use of the Service and may be terminated as set forth herein.
We may terminate this Agreement at any time, in whole or in part, for
any reason. You may terminate this Agreement at any time by discontinuing
Your use of the Services. Upon termination of this Agreement, all licenses,
and any other rights and services provided by Us to You in this Agreement,
shall cease immediately. We also may permanently or temporarily terminate,
suspend, or otherwise refuse to permit Your use of the Service without
notice or liability, if in Our sole determination, You violate the Agreement.
Termination of this Agreement, any license, or Your access to the Website,
shall not limit Us from pursuing other remedies available to it, including
injunctive relief.
8. GENERAL. A. Headings. Headings are for organizational purposes only
and shall in no way affect the interpretation of this Agreement.
B. Assignment. You may not assign or otherwise transfer Your rights
or delegate Your obligations under this Agreement, in whole or in part,
Any attempted assignment by You shall be null and void.
C. Survival. Upon any expiration or termination of this Agreement, the
following Sections of this Agreement shall survive: 2, and 5 through
8.
D. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York and the federal
U.S. laws applicable therein, excluding its choice of law provisions,
and the parties agree to submit to the personal and exclusive jurisdiction
of such courts.
E. Severability. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be unenforceable or invalid,
that provision shall be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full force
and effect and remain enforceable between the parties.
F. No waiver. Failure of either party to act in the event of a breach
of this Agreement by the other shall not be deemed a waiver of such
breach or a waiver of future breaches.
G. Notices. Any notice given under this Agreement shall be in writing
and in the English language and shall be emailed, if to Chartbeat -
legal [AT SIGN] chartbeat.com, or if to You, to the email or physical
address associated with Your account. You hereby consent to receiving
any notices relevant to the Services or this Agreement by email without
requiring a handwritten signature for such notice to be effective.
H. Force Majeure. Neither party shall be liable for failing or delaying
performance of its obligations (except for the payment of money) resulting
from any condition beyond its reasonable control, including but not
limited to, governmental action, acts of terrorism, natural disasters,
earthquake, fire, flood or other acts of God, labor conditions, power
failures, and Internet disturbances.
I. The Agreement. This Agreement, Our Privacy Policy located at http://chartbeat.com/
