DESCRIPTION OF THE SERVICE
Chartbeat For Everyone Service. The Chartbeat For Everyone Service provides real-time Traffic Data (as defined in Section 2) for the top twenty pages of your website. Chartbeat is no longer accepting new customer registrations for the Chartbeat For Everyone Service, but existing customers may contact email@example.com for assistance. 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 usage of the Chartbeat For Everyone Service, Chartbeat requires either a valid credit card or specific information for invoices to be e-mailed and paid via ACH or check.
Chartbeat Publishing Service. Chartbeat Publishing Service is an analytics suite that provides a basic service including real-time and historical traffic data for all pages of your major media website, and it may also include additional premium features and services. Chartbeat Publishing Service rates vary depending on the needs of your organization. To learn more about the Chartbeat Publishing Service, please contact us at firstname.lastname@example.org. 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.
Datastream. Datastream is a data pipeline service that delivers the traffic data Chartbeat collects about your applications to your cloud-hosted storage. Datastream rates vary depending on the needs of your organization. To learn more about the Datastream service, please contact us at email@example.com. In the event you wish to purchase the Datastream service, no binding agreement regarding the Datastream 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.
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.
- 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;
- Not publish content that advocates violence, harassment, threats or intimidation against individuals or groups, including but not limited to such content that is based on ethnic origin, race, religion, gender, nationality, disability, age, sexual orientation or gender identity.
FEES AND PAYMENT
Except with regard to any Free Trial Period, Chartbeat bills its customers in advance on an annual basis. All amounts due shall be paid in US dollars.
Taxes. Applicable taxes will be billed as a separate item or line item and may be billed at a later date. You shall pay sales, use, value added, goods and services, and all other similar taxes imposed by any federal, state, or local governmental entity for taxable items and/or services provided under this Agreement, excluding taxes based solely on Chartbeat’s income or property. You shall pay such tax(es) in addition to the sums due under this Agreement provided that Chartbeat itemizes them on a proper sales and use, VAT, GST, or other invoice. Any taxes paid on your behalf by Chartbeat shall be uniquely identified on the applicable invoice, and Chartbeat shall provide you with proof of payment if previously paid by Chartbeat. You shall indemnify and hold Chartbeat harmless from any interest or penalties imposed on you because of Chartbeat’s omission to pay or its under payment of any taxes on your behalf. 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. The Parties 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 you furnish Chartbeat with a valid and timely tax exemption certificate, no sales, use, value added, goods and services, or other similar taxes will be billed.
Payments for Chartbeat For Everyone Service. If you are a Chartbeat For Everyone Service customer, 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 For Everyone Service account, even for periods of inactivity. Chartbeat may change the price of the Chartbeat For Everyone 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 For Everyone Service.
Payment for Other Services. If you register for the Chartbeat Publishing or Video Service, you will be charged according to the terms of your Work Order.
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, WORMS, OR OTHER DAMAGING MATERIALS NOT CAUSED BY OR ARISING FROM CHARTBEAT. 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.
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.
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.
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, and, unless otherwise specified in an applicable Work Order, Chartbeat will have no obligation to store, retain or provide any Traffic Data (historical or otherwise) to you. 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 For Everyone Service. Termination of Chartbeat For Everyone Service. If you are a Chartbeat For Everyone 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 e-mailing Chartbeat at firstname.lastname@example.org, 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, Datastream, and Video Services. If you are a Chartbeat Publishing or Video Service customer, you or Chartbeat may terminate this Agreement only (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 email@example.com. You must remove all Chartbeat scripts and materials from your website within ninety (90) days after termination.
Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
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.
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.
Publicity.You hereby consent to the inclusion and publishing of your name and trademarks or service marks in connection with Chartbeat's marketing and promotional efforts.
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.
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.
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.
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.
Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Chartbeat - firstname.lastname@example.org, or if to you, to the email or physical address associated with your account. You hereby agree 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.
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.