Effective January 27, 2014

The Terms of Service below set forth the rights and obligations of the parties associated with the implementation of Chartbeat’s Service (defined below) on your website. Your use of chartbeat.com and each website (each a "Site") owned and operated by Chartbeat Inc. ("Chartbeat", "We" or "Us") is governed by these Terms of Service. Before you can use any part of the Service, you must read and affirmatively indicate your acceptance of the following Terms of Service, any applicable Work Order (as defined below) and the Privacy Policy (individually or collectively the "Agreement").By visiting the Site or implementing or 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 this Agreement for the Service. This Agreement is made and entered into by and between you and Chartbeat. Chartbeat allows you to obtain real-time statistics based on website visitors, using certain Chartbeat proprietary software (the “Software”, the Sites and Software shall be collectively known as the "Service"), subject to these Terms of Service. For the sake of clarity, the “Service” includes any or all of the following service packages provided by Chartbeat: the Chartbeat Service,Chartbeat Publishing Service, Chartbeat Video, and Chartbeat for Ad Sales, each as defined below. Each time you visit or use the Site, the current version of the Agreement will apply for your use of the Service from the date of your first access. Accordingly, when you use the Site, you should check the date of the Agreement and review any changes since the last version. If you do not agree with the Agreement at any time, please cease use of this Site and the Service. 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 Site. You can opt out of any marketing emails from us through the Email Preferences page of the Site.

1. DESCRIPTION OF THE SERVICE

   Chartbeat Service. The Chartbeat Service provides real-time Traffic Data (as defined in Section 2) for the top twenty pages of your website. If you wish to register for the Chartbeat Service, please contact us at support@chartbeat.com. You must provide certain limited information about yourself as prompted to do so by the Service. We reserve the right to refuse access to the Chartbeat Service to any user. For registration for the Chartbeat Service, Chartbeat requires either a valid credit card or specific information for invoices to be e-mailed and paid via ACH or check. When you register for the Chartbeat Service, Chartbeat will provide you with Traffic Data for the top twenty pages of your website through a free trial use of the Service for thirty (30) days ("Free Trial Period"). The term for the Free Trial Period will begin on the date of your registration on the Site for the Chartbeat Service and will continue for thirty (30) days, unless extended or sooner terminated in accordance with this Agreement. If you register for the Chartbeat Service, either you or Chartbeat may terminate this Agreement upon written notice thereof at any time for any reason or no reason, during or at the end of the Free Trial Period. Upon completion of the Free Trial Period, Chartbeat will automatically convert you to a full Chartbeat Service account by charging the credit card you provided to Chartbeat upon registration or issuing you an invoice for amounts due to us.

   Chartbeat Publishing Service. The Chartbeat Publishing Service includes the basic Chartbeat Service along with other premium features, including real-time Traffic Data for all pages of your major media website. Chartbeat Publishing Service rates vary depending on the needs of your organization. To learn more about the Chartbeat Publishing Service, please contact us at outreach@chartbeat.com. In the event you wish to purchase the Chartbeat Publishing Service, no binding agreement regarding the Chartbeat Publishing Service will exist between you and Chartbeat unless and until you and Chartbeat execute a Work Order or other agreement governing the provision of the Chartbeat Publishing Service (“Work Order”). In the event of any conflict between these Terms of Service and the applicable Work Order or other agreement, the terms of the Work Order or other agreement shall govern.

   Chartbeat Video. The Chartbeat Video Service shows online video in context so publishers know exactly how their video engagement relates to their written content. The Chartbeat Video Service is available only to Chartbeat Publishing customers.

   Chartbeat for Ad Sales. The Chartbeat for Ad Sales Service measures a website audience’s true engagement – how long they’re actively consuming content with ads in view. If you wish to register for Chartbeat for Ad Sales, please contact us at support@chartbeat.com. You will be required to provide the information listed under the Chartbeat Service description above and you and Chartbeat will execute a Work Order.

2. LICENSE; OWNERSHIP

   You 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, no-cost license to perform, or have performed, the activities relating to provision of the Service. You agree to configure the Software on your website(s) in accordance with Chartbeat’s requirements, including by ensuring that URLs containing personally identifiable information of end users are not captured by the Service. Chartbeat is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Service or any damages resulting from your failure to implement the Software on your website(s) in accordance with Chartbeat’s requirements. In order to improve our algorithms and the Service, for statistical and analytical reporting and for research purposes, Chartbeat may aggregate and/or anonymize the data resulting from use of the Service, including you, and provide anonymized data, which may be aggregated with data of other customers, to third parties. Chartbeat will not use or disclose anonymized data in a manner that reveals your identity, the identity of your website, or your identifiable Traffic Data without your express prior consent. Chartbeat shall exclusively own its customers’ aggregated and/or anonymized Traffic Data.

   You shall own all rights in and to all Traffic Data, subject to the rights and licenses granted herein. “Traffic Data” means all data and information created, received, processed or provided by Chartbeat in performing the Service, or that results from performance of the Service for you. You hereby grant Chartbeat all necessary rights to access and track Traffic Data concerning your website, solely in connection with providing the Service during the term of this Agreement.

   Subject to the terms and conditions of this Agreement, Chartbeat grants to you (and you agree to comply with) a non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use: (i) the Software and (ii) certain proprietary documentation in the form generally made available by Chartbeat to you on the Site for use with the Software (the "Documentation") solely to receive the Chartbeat Service.
Your use of the Service shall be restricted pursuant to the terms and conditions of this Agreement. You agree that you are responsible, and Chartbeat bears no liability, for the use of your account by any third party, or for your use of the Service through a third party’s account, and the acts and/or omissions of such third party . Chartbeat also grants you a nonexclusive, nontransferable, revocable, limited license to access and use the Chartbeat API solely in connection with its use of the Service. 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, 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, other than the limited right to place the Chartbeat JavaScripts on your website(s). All ownership rights, title, and Intellectual Property Rights in and to the Service 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 Chartbeat Service at any time without any 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.

3. 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 (except as required to place the Chartbeat JavaScripts on your website); (iii) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Service, unless explicitly authorized by Chartbeat; 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:

   • Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
   • Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
   • Not obtain the communications protocol for accessing the Service;
   • 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;
   • Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
   • Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
   • Not to challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof; and
   • Use the Chartbeat API solely in accordance with the API Terms of Use available at https://chartbeat.com/apiterms/.

4. FEES AND PAYMENT


   Except with regard to the Free Trial Period, Chartbeat bills its customers in advance on a monthly basis. All amounts due shall be paid in US dollars. Service fees are exclusive of all banking fees and all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such fees, taxes, levies, or duties, excluding only United States income (federal or state) taxes imposed on Chartbeat. In the event you are required to withhold any portion of service fees due to payments to banks or taxing authorities, (i) you agree to do so and to indemnify Chartbeat for any liability resulting from your failure to make such withholdings, and (ii) Chartbeat reserves the right to adjust the pricing of the Service so that you are responsible for payment to Chartbeat of the full amount for the Service, net of any such withholdings. When required by law, you will be responsible for all applicable sales, use, transfer, excise, value-added or similar taxes, and your payment obligation to Chartbeat hereunder shall include the amount of such tax.

   Payments for Chartbeat Service. If you register for the Chartbeat Service and your account is not canceled during the Free Trial Period, your credit card will be charged or invoices will be issued to you on a recurring monthly basis starting on the 31st day after your account was initially created. Chartbeat will not issue refunds for fees paid for a Chartbeat Service account, even for periods of inactivity. Chartbeat may change the price of the Chartbeat Service 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 Chartbeat Service.

   Payment for Other Services. If you register for the Chartbeat Publishing, Video or Ad Sales Service, you will be charged according to the terms of your Work Order.

5. 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 GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT 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, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S END USERS.

6. 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’S 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.

7. 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 (i) YOUR USE OF THE SERVICE, (ii) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, OR (iv) 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.

8. TERM AND TERMINATION


   Unless otherwise specified in an applicable Work Order, the term of the license granted herein for the Service shall commence upon the earlier of (i) your implementation or (ii) your agreement to these Terms of Service, and may be terminated as set forth herein. Upon termination of this Agreement, all licenses, and any other rights and services provided by Chartbeat 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 upon reasonable prior notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of fees. Termination of this Agreement, any license granted hereunder, or your access to the Site, shall not limit us from pursuing other remedies available to us, including but not limited to injunctive relief.

   Termination of Chartbeat Service. If you are a Chartbeat Service customer, you or we may terminate this Agreement at any time, in whole or in part, for any reason, provided that if you terminate, you shall be obligated to pay any fees accrued prior to the date of termination. You may terminate this Agreement by clicking ,e-mailing Chartbeat at support@chartbeat.com, or accessing Account Settings --> Billing Information from your dashboard. You must remove all Chartbeat scripts and materials from your website(s) within ninety (90) days after termination..

   Termination of Chartbeat Publishing, Video and Ad Sales Services. If you are a Chartbeat Publishing, Video and/or Ad Sales Service customer, you or Chartbeat may terminate this Agreement (i) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party or (ii) as otherwise set forth in your Work Order, provided that you shall remain obligated to pay any fees accrued prior to the date of termination. To terminate this Agreement in accordance with this section, e-mail support@chartbeat.com. You must remove all Chartbeat scripts and materials from your website within ninety (90) days after termination.

9. GENERAL


   1. Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.

   2. Assignment. You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.

   3. Third Party Service Providers. Chartbeat may provide the Service directly or indirectly using contractors or other third party vendors or service providers. Chartbeat will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third party suppliers or vendors.

   4. Publicity.You hereby consent to inclusion of your name and trademarks or service marks in customer lists that may be published as part of Chartbeat's marketing and promotional efforts.

   5. Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: the first two paragraphs of Section 2, and Sections 3 through 9.

   6. 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.

   7. 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 enforceable between the parties.

   8. 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.

   9. Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Chartbeat - legal@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 e-mail without requiring a handwritten signature for such notice to be effective.

   10. 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.

   11. The Agreement. This Agreement, our Privacy Policy located at www.chartbeat.com/privacy and the terms, policies or other provisions located on the Site (which are all incorporated herein by reference), constitute a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matters of this Agreement. This Agreement may be revised from time to time at our sole discretion by posting the revised Agreement on the Website or otherwise providing the revised Agreement to you. The revised Agreement shall become effective upon your use of the Service after its publication or provision. Your acceptance of any revised Agreement is your continued use of the Service.