Acceptance of Terms
Crittercism welcomes you. By checking the "Terms and Conditions" box, or registering for Crittercism's Service (as defined below), you agree that you have read, understand, and accept the terms and conditions described below (the "Terms of Service") and you agree to be bound by these Terms of Service and all terms, policies and guidelines incorporated in the Terms of Service by reference (this "Agreement"). If you do not agree to this Agreement, you should not use the Service in any way. The Service is offered to you conditioned on your acceptance without modification of this Agreement, including without limitation, Crittercism's right to use all data collected and analyzed by the Service.
Modification of Agreement
Crittercism reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at http://www.crittercism.com or such other URL that Crittercism may provide from time to time). Your continued use of any part of the Service following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.
Description and Use of the Service
The " Service" means, collectively, the "Software", the "Reports" and the "Documentation", all as defined below in this Agreement. Under this Agreement, Crittercism may allow you to access the Service by using Crittercism's analytics site code and any fixes, updates and upgrades provided to you (the "Agent"), provided that you have an active Crittercism account. In addition, Crittercism may provide you with on-line access to a variety of analytics reports (the "Reports") generated by Crittercism's processing code and any fixes, updates and upgrades. The Agent and Crittercism's processing code are defined collectively herein as "Software". The processing code analyzes the data collected by the Agent. This data concerns the characteristics and activities of end users of your applications ("User Data"). Unless otherwise indicated in this Agreement, Service includes Crittercism's free and paid services, including, but not limited to, Crittercism and Crittercism Pro.
Fees and Payment
Crittercism is provided to you free of charge. Crittercism Pro requires payment of fees. Crittercism may change its fees and payment policies for the Service from time to time. The changes will be posted at http://www.crittercism.com (or such other URL that Crittercism may provide from time to time). Users of Crittercism Pro shall pay a monthly subscription fee based on the number of applications that are using Crittercism's site code, as described at http://www.crittercism.com. Upon termination of this Agreement for any reason, all fees shall become due and payable immediately.
Incidental Costs Associated with Use of the Service
You agree that you are solely liable for all costs, fees, and other expenses resulting from your use of the Service. This specifically includes, but is not limited to, incidental costs incurred by you in connection with your use of the Service, including, but not limited to, costs owed to your cell phone carrier or mobile provider, monthly cell phone coverage fees, data plan costs, and any other additional fees incurred from your cell phone carrier or mobile provider.
Registration
To register for the Service, you must complete the registration process at http://www.crittercism.com (or such other URL that Crittercism may provide from time to time) by providing Crittercism with current, complete and accurate information. Upon registration for the Crittercism Services, you will be required to provide Crittercism with your email password and user name. You understand that you are solely responsible for maintaining the confidentiality of your password and that you shall be solely and fully responsible for all activities that occur under your username and password. Crittercism shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any password. You agree to immediately notify Crittercism of any unauthorized use of your password or username or any other breach of security. If a password is lost or stolen, it is the user's responsibility to change the password, and immediately notify Crittercism, so that your account remains both secure and functional.
Reports
Subject to the terms and conditions of this Agreement, you may remotely access, view and download the Reports, which will be stored at http://www.crittercism.com (or such other URL that Crittercism may provide from time to time).
Limited License
You are hereby granted a nonexclusive, limited, non-transferable, revocable and non-sublicensable license to install, use, and copy the Agent solely as necessary to use the Service for applications that you own and control. Your use of the Software and accompanying documentation ("Documentation") is subject to this Agreement and does not include: (a) any resale, lease, rental, assignment or other transfer of rights of the Software or Documentation; (b) the distribution, public performance or public display of the Software or Documentation, (c) modification, revision, creation of derivative works from or otherwise making any derivative uses of the Software or Documentation or any information or content therein; (d) decompilation, reverse engineering or otherwise attempting to derive the source code for the Software (except to the extent applicable laws specifically prohibit restriction of such activities); or (e) any use of the Software or Documentation other than for its intended purpose. Crittercism hereby reserves all rights not expressly granted herein. Any use of the Software or Documentation other than as specifically authorized herein, without the prior written permission of Crittercism, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark and other intellectual property laws.
Privacy and Information Collection
As a condition of your access to the Service, you agree that Crittercism has the right, for any purpose, to retain, use, and publish in an aggregate manner, subject to the terms of its Privacy Policy located at http://www.crittercism.com/privacy.html (or such other URL that Crittercism may provide from time to time), information collected in your use of the Service, including without limitation, User Data. Crittercism will not disclose to any third parties any User Data collected by the Service from your applications in a manner that contains or reveals any personally identifiable information or is specifically attributable to you, your applications or your customers. You will not (and will not allow any third party to) use the Service to track or collect personally identifiable information of end users, nor will you (or will you allow any third party to) associate any data gathered from your application(s) with any personally identifying information from any source as part of your use (or such third parties' use) of the Service. You agree that you have and will abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from end users of your applications. You must post a privacy policy and that policy must provide notice of your use of a tracking pixel, agent or any other visitor identification technology that collects anonymous data about end users of your applications.
Confidential Information
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within ten business days, indicated in writing as "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes publicly known, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed or collected by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
Indemnity
You agree to indemnify, defend and hold harmless Crittercism, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys' fees) arising from (i) any content that you or anyone using your account may submit or access in the course of using the Service; (ii) your use of, or inability to use, the Service; (iii) your violation of the terms of this Agreement; and (iv) any violation or failure by you to comply with all laws and regulations in connection with your use of the Service, whether or not described herein.
Third Parties
If you use the Service on behalf of any third party, you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, that third party. You shall ensure that each third party is bound by and abides by the terms of this Agreement. You agree to indemnify, hold harmless and defend Crittercism and its parents, subsidiaries, affiliates, officers and employees, at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Crittercism, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Service; (b) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Service; (c) violations of your obligations of privacy to any third party; and (d) any claims with respect to acts or omissions of third parties in connection with the Service.
Disclaimer of Warranties and Limitation of Liability
The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Crittercism may make improvements and/or changes in the Service at any time, with or without notice. You specifically agree that Crittercism shall not be responsible for unauthorized access to or alteration of the User Data or data from your applications. CRITTERCISM DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICE IS PROVIDED "AS-IS" AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, CRITTERCISM DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. IN NO EVENT SHALL CRITTERCISM, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE SERVICE, THE SOFTWARE OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE SOFTWARE OR SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE OR THE SERVICE, EVEN IF CRITTERCISM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF CRITTERCISM OR ANY OF THE ABOVE-REFERENCED PERSONS OR ENTITIES, UNDER ANY THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100).
Modifications to and Termination of the Service
Crittercism reserves the right to discontinue offering the Service or to modify the Service at any time in its sole discretion. If you are dissatisfied with any aspect of the Service at any time, your sole and exclusive remedy is to cease using it. Notwithstanding anything contained in this Agreement to the contrary, Crittercism may also, in its sole discretion, terminate or suspend your access to the Service at any time. Upon any termination of this Agreement, Crittercism will cease providing the Service, and you will delete all copies of Crittercism's site code from your applications and certify thereto in writing to Crittercism within three (3) business days of such termination.
Waiver and Severability
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Crittercism's acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive Crittercism's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Crittercism to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Choice of Law and Forum
This Agreement and the relationship between you and Crittercism shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. You and Crittercism hereby agree to submit, exclusively, to the personal jurisdiction of the state courts with jurisdiction over San Francisco, California and/ or the U.S. District Court for the Northern District of California.
Entire Agreement
This Agreement constitutes the entire agreement between you and Crittercism and governs your use of the Service, superseding any prior agreements between you and Crittercism with respect to the Service.
Survival
The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the Parties hereunder, including but not limited to the provisions relating to Indemnity, Disclaimer of Warranties and Limitation of Liability, shall so survive the completion of the performance, cancellation or termination of this Agreement.
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