PLEASE READ THESE TERMS OF USE (“AGREEMENT” OR “TERMS OF USE”) 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 VARIOUS WEBSITES OWNED AND OPERATED BY LOCALYTICS, INCLUDING, WITHOUT LIMITATION, THE HTTP://WWW.LOCALYTICS.COM, HTTP://ANALYTICS.LOCALYTICS.COM AND HTTP://WIKI.LOCALYTICS.COM WEBSITES AND ANY SUCCESSOR SITES (THE “SITES”), AND THE SERVICE OWNED AND OPERATED BY LOCALYTICS. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON BELOW, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
Definitions
“Source Data” means data gathered and transmitted by the Localytics Client Libraries to servers operated by Localytics.
“Localytics Analytic Data” means the data analysis generated by Localytics as a result of your use of the Service.
“Localytics Client Libraries” means the client libraries provided by Localytics and installed within your application(s) for the purpose of collecting Source Data and sending such Source Data to Localytics’ servers.
“Localytics Site Content” means information, texts, data, graphics, photographs and any other materials or content provided by Localytics or its partners on the Sites. Localytics Site Content expressly excludes all Source Data or Localytics Analytic Data.
“PII” means information that personally identifies an individual.
“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 Use.
“Service” means Localytics’ proprietary mobile analytics solutions, including an online user interface, API, and any other software and documentation, but excluding the Localytics Client Libraries.
Acceptance of Terms
The Service is offered subject to acceptance without modification of all of the terms and conditions contained within these Terms of Use 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 Use by this reference.
These Terms of Use solely apply to the Service. The Localytics Client Libraries are governed solely by the Localytics Modified BSD License, as amended from time to time, which can be found at: http://wiki.localytics.com.
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.
Age Requirements
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 that all registration information you submit is accurate and truthful; and that your use of the Service does not violate any applicable law or regulation. 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 Use
Localytics reserves the right, at its sole discretion, to modify or replace any of the Terms of Use, 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 Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes.
Privacy and Privacy Settings
Use of the Service does not require that you provide to Localytics, and Localytics requests that you do not provide to it, any PII relating to your End Users. However, to the extent Localytics does receive any PII via the Client Libraries as a result of your use of the Service, Localytics shall make commercially reasonable efforts, consistent with the terms of its Privacy Policy, to maintain the confidentiality of such PII. You will not, and will not allow any third party to use the Service to track or collect personally identifiable information of Internet users. Your collection of information from end users via your 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 Privacy Policy, or to report a privacy related problem, please send an email to contact@localytics.com.
Proprietary Rights and Restrictions
Subject to the terms and conditions herein, Localytics hereby grants you a limited, revocable, non-exclusive, non-sublicensable license to use and access the Service. This license will terminate immediately if you fail to comply with these Terms of Use. Upon such termination, you must immediately cease all access to and use of the Service.
As a condition of your use of the Service, you recognize and agree that Localytics has the right, for any purpose, to retain, use, publish or sell in anonymized or aggregate form all data collected or generated as a result of your use of the Service, including all Source Data and Localytics Analytics Data. Localytics shall not use or disclose such data in a manner that contains or reveals any PII of your end users or is otherwise specifically attributable to you or your application(s) and shall otherwise comply with the terms of the Privacy Policy.
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) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) 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); (iv) run mail list, Listserv, any form of auto-responder or “spam” on the Service; or (v) 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 Use, which may result in immediate termination of your Localytics account. You are solely responsible for 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 are aware.
Fees and Payment
The Localytics Community version of the Service is made available to you without charge. Localytics may offer other versions of Service that will require the payment of fees. Localytics may change its fee structure and payment policies for the Service from time to time. The changes will be posted on the Sites. All fees shall become due and payable upon termination of these Terms of Use for any reason.
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 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.
Localytics Sites Content
You agree that the Localytics Site Content provided by Localytics or its partners is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You agree that you have no license or right to use the trademarks, copyrights, patents, trade secrets, Localytics Site Content and other intellectual property rights of Localytics or its licensors (collectively, “Intellectual Property”), except while logged in as an authorized member of the Sites, and then only in connection with your use of the Sites to the extent authorized by these Terms of Use. The Intellectual Property may not be used in connection with any product, service, publication or web sites of yours or any third party without the express written permission of Localytics, or in any manner that disparages or discredits Localytics.
You shall abide by all copyright notices, information, and restrictions contained in any Localytics Site Content accessed through the Service. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Localytics Site Content or third party submissions or other proprietary rights not owned by you (a) without the consent of the respective owners or other valid right and (b) in any way that violates any third party right.
You may, to the extent the Sites expressly authorized you to do so, download or copy the Localytics Site Content, and other items displayed on the Sites for download, for internal use only, provided that you maintain all copyright and other notices contained in such Localytics Site Content. You shall not store any significant portion of any Localytics Site Content in any form. Subject to the terms and conditions of these Terms of Use, Localytics grants you a limited, non-exclusive, non-sublicensable and non-transferable license to access and use the Sites, Service and the Localytics Site Content, and to download or print a copy of any portion of the Localytics Site Content to which you have properly gained access, solely for your internal use, provided that you keep all copyright or other proprietary notices intact. Use, reproduction, modification, distribution, copying or storing of any Localytics Site Content for other than personal use is expressly prohibited without prior written permission from Localytics, or from the copyright holder identified in such Localytics Site Content’s copyright notice.
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 Use 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 Localytics 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 Localytics Site Content, (b) any person’s reliance on any such Localytics 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 Localytics 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 LOCALYTICS 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 WILL BE CORRECTED; (C) THE SERVICE OR LOCALYTICS SITE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (D) THE LOCALYTICS 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 LOCALYTICS 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.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC 2701-2711): LOCALYTICS MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITES OR ANY WEBSITE LINKED TO THE SITES. Localytics will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade secret information, or any other Localytics Site Content, Source Data, or Localytics Analytic Data stored on Localytics’ equipment, transmitted over networks accessed by the Sites, or otherwise connected with your use of the Service.
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 liabilities, claims, 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 Localytics Site Content, (b) your violation of these Terms of Use, or (c) infringement by you, or any third party using the 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 LOCALYTICS 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 LOCALYTICS 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 Use and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use 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 Use 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 Use, 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 have 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 Use are the entire agreement between you and Localytics with respect to the Service and use of the Sites, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Localytics with respect to the Service and use of the Sites. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use 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 Use 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 Use 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 Use, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Terms of Use 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
Unless otherwise indicated, the Terms of Use and all Localytics Site Content provided by Localytics are copyright © 2008 – 2010 Char Software, Inc. All rights reserved.
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 Localytics, PO Box 425732, Cambridge, MA 02142, Attn: Member Care. We will try our best to respond to you quickly, but cannot always do so due to the volume of requests.
Last Updated on Mar 9, 2010.
