Terms of Service

PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT” OR “TERMS OF SERVICE”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CHAR SOFTWARE, INC. D/B/A LOCALYTICS (“LOCALYTICS”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITES AND THE SERVICE (EACH AS DEFINED BELOW). BY CLICKING ON THE “CREATE ACCOUNT” BUTTON BELOW, YOU AGREE TO BE BOUND BY THIS AGREEMENT.

Definitions

“Active End User” means each individual installation of an Application that transmits Source Data during the applicable calendar month. “Analytic Reports” means anonymous analysis generated from Source Data by Localytics as a result of your use of the Service. “Application” means each application designated by you for use in connection with the Service. “Client Libraries” means the client libraries provided by Localytics and installed within the Application(s) for the purpose of collecting Source Data and sending such Source Data to Localytics’ servers. “Event Call” means an individual recording of a single event. “Localytics Privacy Policy” means the privacy statement of Localytics located at http://www.localytics.com/privacy (or such other URL as may be designated by Localytics from time to time) and which is incorporated by reference into these Terms of Service. “PII” means information that personally identifies an individual. “Service” means Localytics’ proprietary mobile analytics solutions, including, without limitation, any online user interface, API, or other related software or documentation, but excluding the Client Libraries. “Site Content” means information, texts, data, graphics, photographs and any other materials or content provided by Localytics or its partners on the Sites. Site Content expressly excludes all Source Data and Analytic Reports. “Sites” means websites operated by or on behalf of Localytics that are made accessible to you by Localytics. “Source Data” means data transmitted by the Client Libraries from Applications to servers operated by Localytics and processed and maintained by Localytics.

Acceptance of Terms

The Service is offered subject to acceptance without modification of all of the terms and conditions contained within these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Sites by Localytics. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by Localytics from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference. These Terms of Service solely apply to the Service. The Client Libraries are governed solely by the Localytics Modified BSD License, as amended from time to time, which can be found at: http://www.localytics.com/docs. We reserve the right, in our sole discretion, to revoke or suspend your membership in and/or access to the Sites or use of the Service at any time without notification or liability to you or any other person, and for any reason or for no reason at all. The Service is available only to individuals who are at least 18 years old. You represent and warrant that, if you are an individual, you are at least 18 years old. You further represent and warrant that all registration information you submit is accurate and truthful, and that your use of the Service does not and shall not violate any applicable law or regulation or violate, infringe or misappropriate any right of any third party (including, without limitation, any intellectual property right or right of privacy or publicity). Localytics may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.

Modification of Terms of Service

Localytics reserves the right, at its sole discretion, to modify or replace any of the Terms of Service, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, data, or content) at any time by posting a notice on the Sites or by sending you an email. Localytics may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check the Terms of Service periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Service constitutes acceptance of those changes.

Privacy and Privacy Settings

You shall not provide to Localytics any PII. However, to the extent Localytics does receive any PII via the Client Libraries as a result of your use of the Service, Localytics will use efforts to maintain the confidentiality of such PII that are consistent with industry standards. You will not, and will not allow any third party to, use the Service to track or collect any PII. Your collection of information from end users via the Application(s) shall comply with all applicable laws and regulations, and you will publicly post and abide by a privacy policy compliant with such laws and regulations and any relevant industry standards. For inquiries in regard to the Localytics Privacy Policy, or to report a privacy related problem, please send an email to contact@localytics.com.

License and Restrictions

Subject to the terms and conditions herein, Localytics hereby grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use and access the Service as hosted by Localytics in accordance with this Agreement solely for your internal operations. This license will terminate immediately if you fail to comply with these Terms of Service. Upon such termination, you must immediately cease all access to and use of the Service. Except for the limited license rights expressly granted above, no other right is granted, no other use is permitted, and Localytics retains all right, title and interest in and to the Service including all patent, copyright, trade secret and other intellectual property rights therein. You will not nor will you allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Service; (ii) reverse engineer, de-compile, disassemble the Service, except as expressly permitted by the law in effect in the jurisdiction in which you are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Service; (iv) remove any proprietary notices or labels contained within the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service. You will use the Service solely for your own internal use and will not make the Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in your use of and access to the Service. Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Localytics in its sole discretion) an unreasonable or disproportionately large load on the infrastructure of Localytics (or its third party providers); (ii) exceed 50 Event Calls per Active End User per Month for Community or 75 per Active End User per month for Premium, (iii) use unique values or a continuous set of values as an inputs to event attributes, (iv) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (v) bypass any privacy settings or measures Localytics may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (vi) run mail list, Listserv, any form of auto-responder or “spam” on the Service; or (vii) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.

Registration

As a condition to using certain aspects of the Service, you will be required to register with Localytics and provide all information as prompted by the registration process, including your email address and a password. You shall provide Localytics with accurate, complete, and updated registration information at all times. Failure to do so shall constitute a breach of the Terms of Service, which may result in immediate termination of your Localytics account. You are solely responsible for any activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Localytics password. You shall never use another user’s account without such other user’s express permission. You will immediately notify Localytics in writing of any unauthorized use of your account or other account related security breach of which you become aware.

Data and Content Rights

Localytics shall own and retains all right, title and interest in and to Analytic Reports and all other results, data and/or information provided to you through the service (collectively, “Results”) as well as all Source Data and Site Content. Localytics shall provide you with copies of Analytic Reports upon your request. Subject to the terms and conditions of this Agreement, Localytics hereby grants you the right and license (a) to use, copy, and modify the Results solely for your internal business purposes and (b) to use and reproduce (but only to the extent expressly permitted by the Service) the Site Content solely in connection with your authorized use of the Service. You shall abide by all copyright notices, information, and restrictions contained in any Site Content, and shall retain all such notices in any copies of the Site Content. Except for the foregoing limited licenses, no other license is granted and no other use is permitted. Localytics agrees that it will not disclose any Analytic Reports or Source Data in a manner that contains or reveals any PII of end users or is otherwise specifically attributable to you, the Applications or your end users.

Fees and Payment

The Localytics Community version of the Service is made available to you without charge. Localytics may offer other versions of the Service that will require the payment of fees, as notified to you at the time you sign up for such Service. Localytics may change its fee structure and payment policies for the Service from time to time. The changes will be posted on the Sites. Unless otherwise notified to you, all fees shall become due and payable immediately. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. You agree to reimburse Localytics for all costs (including attorneys’ fees) incurred by Localytics in collecting late payments. In addition to its other rights and remedies, Localytics may, at its option, suspend your access to the Service or terminate this Agreement in the event that you are not current in the payment of fees. In the event that any sales, use or similar taxes are imposed on Localytics’ supply of services under this Agreement, Localytics may invoice you and you shall pay all such taxes.

Third Party Sites

The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Sites. When you access third party websites, you do so at your own risk. Localytics is not responsible for and does not endorse any such third-party content or services. These other websites are not under the control of Localytics, and you acknowledge and agree that Localytics is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Localytics or any association with its operators, or any third-party service providers, products, services, opinions, or web sites accessed through the Service. You further acknowledge and agree that Localytics shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.

Termination

Localytics may terminate your access to all or any part of the Service at any time, with or without cause, effective immediately on three (3) days notice. If you wish to terminate your account, you may do so by following the instructions on the Sites. Any fees paid hereunder (if any) are non-refundable. All provisions of the Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

General Disclaimer

Localytics makes no representations or warranties concerning the appropriateness, accuracy, reliability, usefulness, completeness, or timeliness of the Service or any Site Content accessed through the Sites. By using the Service, you agree that Localytics does not endorse and shall not be liable for (a) any Site Content, (b) any person’s reliance on any such Site Content, whether or not correct, current and complete, or (c) the consequences of any action that you or any other person takes or fails to take based on any Site Content or otherwise as a result of your use of the Service.

Warranty Disclaimer

THE INFORMATION, PROGRAMS, PRODUCTS, SERVICES AND MATERIALS CONTAINED IN OR ACCESSED ON THE SITES, INCLUDING, WITHOUT LIMITATION, THE SERVICE AND THE SITE CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND ALL WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, LOCALYTICS AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND PARTNERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS IN THE SERVICE CAN OR WILL BE CORRECTED; (C) THE SERVICE OR SITE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (D) THE SITE CONTENT AND MATERIALS ON THE SITES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR FREE, AND LOCALYTICS EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION AS TO THE ACCURACY OR PROPRIETARY CHARACTER OF THE SITES, THE SITE CONTENT OR ANY PORTION THEREOF; (E) ANY VENDOR WILL PERFORM AS A RESULT OF THE SERVICE OR (F) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification

You shall defend, indemnify, and hold harmless Localytics, its affiliates and each of its, and its affiliates’ employees, contractors, directors, suppliers, licensors and representatives from and against all claims, actions, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees), that arise from or relate to (a) your use or misuse of, or access to, the Sites, Service, or Site Content, (b) your violation of these Terms of Service, or (c) infringement, violation or misappropriation by you, or any third party using your account, of any intellectual property or other right of any person or entity. Localytics reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Localytics in asserting any available defenses.

Limitation of Liability

IN NO EVENT SHALL LOCALYTICS, OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE OR SITE CONTENT (A) FOR ANY LOST PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, DATA LOSS, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (B) FOR ANY DAMAGES CAUSED BY OR RESULTING FROM (I) YOUR RELIANCE ON ANY SITE CONTENT (INCLUDING, IF APPLICABLE, ADVERTISEMENTS) OR OTHER INFORMATION OBTAINED FROM LOCALYTICS OR ACCESSIBLE VIA THE SITES OR SERVICE, OR (II) MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO LOCALYTICS’ RECORDS, PROGRAMS OR SERVICES, (C) FOR YOUR FAILURE TO PROVIDE LOCALYTICS WITH ACCURATE ACCOUNT INFORMATION, (D) FOR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL OR (E) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE-HUNDRED U.S. DOLLARS ($100.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Dispute Resolution

A printed version of the Terms of Service and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Boston, Massachusetts using the English language, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in Suffolk County, Massachusetts. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including , without limitation, this Section.

Force Majeure

While we will make every effort to keep the Sites accessible, you agree not to hold Localytics liable for any downtime or inaccuracy that may occur. Localytics has many systems in place to ensure that the Service is operational, but we cannot guarantee that it will always be accessible, timely or accurate. You agree that under no circumstances will Localytics be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, but not limited to: Internet failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, terrorism, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties or failures of third party applications, hacks or denial of service attacks, or loss of or fluctuations in heat, light or air conditioning.

Integration and Severability

The Terms of Service are the entire agreement between you and Localytics with respect to the Sites and the Service and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Localytics with respect to the Sites and the Service. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

Miscellaneous

The Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with the prior written consent of Localytics. Localytics may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Service and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Service, the prevailing party will be entitled to recover costs and attorneys’ fees. Unless otherwise expressly stated herein, all notices under the Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, postage pre-paid, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

Copyright and Trademark Notices

Contact

Thank you for your cooperation. We hope you find the Service and Sites informative, useful and easy to use. If you have any comments or questions regarding the Service or Sites, or you want to report a malfunction or problem, please use our Contact Us Form or send us snail mail addressed to Attn.: Member Care, Localytics, P.O. Box 425732, Cambridge, MA 02142 USA. We will try our best to respond to you quickly, but cannot always do so due to the volume of requests. Last updated December 30, 2011.