Except for changes by Chartbeat as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both Customer and Chartbeat.

Additionally, users may be able to access certain parts or features of the Services by using their account credentials from other services (each, a “Third Party Account”), such as those offered by Okta, Google, Meta, or Microsoft. By using the Services through a Third Party Account, Customer and the applicable Customer user permits Chartbeat to access certain information from such account for use by the Services. Customer is ultimately in control of how much information is accessible and may exercise such control by adjusting the privacy settings on the user’s Third Party Account.

Customer’s users will not share their individual User ID, account, password, or API key (to the extent applicable) with anyone, including other Customer users, and must protect the security of their User ID, account, password, API key, and any other access tools or credentials. Customer is responsible for any activity associated with its users’ User ID and accounts.

Subject to these Terms and except as provided herein, Chartbeat grants to Customer and each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without Chartbeat’s prior written permission. Although the Services may allow users to copy or download certain Content, all the restrictions in these Terms still apply.

• 1. User Submissions
  Anything Customer or Customer’s users post, upload, share, store, or otherwise provide publicly about the Services such as through public social media accounts or third party review platforms (each, a “User Submission”) may be reposted on the Services. Customer is solely responsible for all User Submissions contributed to the Services. Customer represents that all User Submissions submitted by it are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.

  Customer agrees that it will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.

  
  
• 2. Licenses
  In order to display Customer’s User Submissions on the Services, and to allow other users to enjoy them (where applicable), Customer grants to Chartbeat certain rights in User Submissions. Please note that all of the following licenses are subject to the Chartbeat Privacy Policy and/or the Tubular Privacy Policy, as applicable, to the extent they relate to User Submissions that may contain personally-identifiable information.

  By submitting User Submissions, Customer hereby does and shall grant to Chartbeat (i) a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Services and Chartbeat’s (and its successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after Customer’s termination of an account or the Services and (ii) a non-exclusive, royalty-free, limited license to use Customer’s name, logo and trademark(s) on Chartbeat’s website and in other marketing materials to identify it as a customer. Customer also hereby does and shall grant each user of the Services a non-exclusive, perpetual license to access its User Submissions through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after Customer’s termination of an account or the Services. For clarity, the foregoing license grants to Chartbeat and its users do not affect Customer’s other ownership or license rights in its User Submissions, including the right to grant additional licenses to its User Submissions, unless otherwise agreed in writing. Customer represents and warrants that it has all rights to grant such licenses to Chartbeat without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.

  Certain features of the Services allow users to share information with others, including through social networks or other Third Party Accounts. When Content is authorized for sharing, Chartbeat will clearly identify the Content authorized to redistribute and the ways it may be redistributed, usually by providing a “share” button on or near the Content. If Customer shares information from the Services with others through Third Party Accounts, such as social networks, Customer authorizes Chartbeat to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers Customer shares information with or through for additional information about how they may use Customer’s information. If Customer redistributes Content, it must be able to edit or delete any Content it redistributes, and Customer must edit or delete it promptly upon Chartbeat’s request.

  Finally, Customer understands and agrees that Chartbeat, in performing the required technical steps to provide the Services, may need to make changes to User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

Customer is responsible for all Content it contributes, in any manner, to the Services, and represents and warrants it has all rights necessary to do so, in the manner in which Customer contributes it. Customer is also responsible for obtaining the consent of other participants when using the Services to the extent required by applicable law, including, but not limited to, laws governing the monitoring or recording of conversations, cookies and other tracking technologies, and data privacy laws.

The Services may contain links or connections to third-party websites or services that are not owned or controlled by Chartbeat. When Customer accesses third-party websites or use third-party services, Customer accepts that there are risks in doing so, and that Chartbeat is not responsible for such risks.

Chartbeat has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that Customer interacts with through the Services. In addition, Chartbeat will not and cannot monitor, verify, censor or edit the content of any third-party site or service and use of such third-party services may be subject to the terms and conditions and privacy policy of each third-party website or service that Customer visits or utilizes. By using the Services, Customer releases and holds Chartbeat harmless from any and all liability arising from Customer’s use of any third-party website or service.

Customer must remove all Chartbeat scripts and materials from its website(s), and disable access to the Chartbeat API (as defined in the API Terms of Use), within ninety (90) days after termination.

Applicable taxes will be invoiced as a separate item or line item and may be billed at a later date. Customer shall pay sales, use, value added, goods and services, and all other similar taxes imposed by any federal, state, or local governmental entity (foreign or domestic) for taxable items and/or any Services provided under these Terms or any applicable Work Order, excluding taxes based solely on Chartbeat’s income or property. In the event Customer is required to withhold any portion of service fees due to payments to banks or taxing authorities, Customer agrees to do so and to indemnify Chartbeat/Tubular for any liability resulting from its failure to make such withholdings, and Chartbeat/Tubular reserves the right to adjust the pricing of the Services so that Customer is responsible for payment of the full amount for the Services, net of any such withholdings. Customer and Chartbeat 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 Customer furnishes Chartbeat with a valid and timely tax exemption certificate, no sales, use, value added, goods and services, or other similar taxes will be billed.

Chartbeat is also free to terminate (or suspend access to) Customer’s use of the Services or any user account for any reason in its sole discretion, including Customer’s breach of these Terms. Chartbeat has the sole right to decide whether Customer is in violation of any of the restrictions set forth in these Terms. If Customer is not in violation of these Terms or the associated Work Order, and Chartbeat nonetheless terminates Customer’s use of the Services, Customer shall receive a prorated refund of fees paid in advance for the period following such termination.

Account termination may result in destruction of any Content associated with Customer or Customer’s users’ account(s).

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any of Customer’s payment or indemnification obligations, any limitations on Chartbeat’s liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes, including without limitation the arbitration agreement.

• 1. Apple App Store Terms
  These Terms apply to Customer’s use of all the Services, including Chartbeat’s iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
  • Both Customer and Chartbeat acknowledge that the Terms are concluded between Customer and Chartbeat only, and not with Apple, and that Apple is not responsible for the Application or the Content;
  • The Application is licensed to Customer on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services, subject to all the terms and conditions of these Terms as they are applicable to the Services;
  • Customer will only use the Application in connection with an Apple device that it owns or controls;
  • Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
  • In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, Customer may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Customer will be to refund to it the purchase price, if any, of the Application;
  • Customer acknowledges and agrees that Chartbeat, and not Apple, is responsible for addressing any claims it or any third party may have in relation to the Application;
  • Customer acknowledges and agrees that, in the event of any third-party claim that the Application or Customer’s possession and use of the Application infringes that third party’s intellectual property rights, Chartbeat, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
  • Customer represents and warrants that it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that it is not listed on any U.S. Government list of prohibited or restricted parties;
  • Both Customer and Chartbeat acknowledge and agree that, in Customer’s use of the Application, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
  • Both Customer and Chartbeat acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon Customer’s acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.

• 1. Warranty Disclaimer
  Chartbeat and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, including but not limited to Tubular, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Chartbeat and all such parties together, the “Chartbeat Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Chartbeat Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to Customer’s participation in, the Services. The Chartbeat Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY CHARTBEAT (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT DOES CHARTBEAT GUARANTEE ANY RESULTS, INCREASED TRAFFIC, OR USER ENGAGEMENT FOR CUSTOMER. CHARTBEAT MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. CUSTOMER IS RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM CUSTOMER’S WEBSITE’S END USERS
• 2. Limitation of Liability
  TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE CHARTBEAT PARTIES BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID AND/OR PAYABLE BY CUSTOMER TO CHARTBEAT IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND CHARTBEAT’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER IN THOSE STATES.
• 3. Indemnity
  Customer agrees to indemnify and hold the Chartbeat Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) Customer or Customer’s users’ use of the Services (including any actions taken by a third party using Customer accounts), (b) any actual or alleged harassment (sexual or otherwise) or intimidation of any employee of the Chartbeat Parties by Customer or Customer’s users, or (c) Customer’s violation of these Terms. In the event of such a claim, suit, or action (“Claim”). Chartbeat will attempt to provide notice of the Claim to the contact information provided by Customer in the Work Order (provided that failure to deliver such notice shall not eliminate or reduce Customer’s indemnification obligations hereunder). 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 Customer.

  Chartbeat agrees to indemnify and hold the Customer harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims that the Services infringe any third-party intellectual property or proprietary right. Chartbeat’s indemnification obligations hereunder shall be conditioned upon Customer providing Chartbeat with: (x) prompt written notice of any claim; (y) the right to assume sole control over the defense and settlement of any claim (provided that Customer may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at Chartbeat’s expense). The foregoing obligations of Chartbeat do not apply with respect to the Services or any information, technology, materials, Content, User Submissions, or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Chartbeat (including without limitation any Content, User Submissions, or other information provided by Customer or Customer’s users), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Chartbeat, (iv) combined with other products, processes or materials not provided by Chartbeat (where the alleged losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.

  If the Services or any part thereof becomes or, in Chartbeat’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Chartbeat may, at its option and expense, (1) obtain for Customer the right to continue using the Services or (2) replace or modify the infringing portions of the Services so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Chartbeat, then it may (3) terminate the applicable Order Form(s) and/or these Terms upon written notice to Customer and refund to Customer any unused fees for the Services that were pre-paid for the then-current term, pro-rated for the remainder thereof.

• 4. Assignment. Customer may not assign, delegate or transfer these Terms or its rights or obligations hereunder, or its Services account(s), in any way (by operation of law or otherwise) without Chartbeat’s prior written consent. Chartbeat may transfer, assign, or delegate these Terms and its rights and obligations without consent.
• 5. Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.
• 6. Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires Customer to arbitrate certain disputes and claims with Chartbeat and limits the manner in which Customer can seek relief from Chartbeat. Both Customer and Chartbeat acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Chartbeat’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon Customer’s acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.
  • Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Wilmington, Delaware. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
  • Costs of Arbitration. The Rules will govern payment of all arbitration fees.
  • Infringement. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
  • Waiver of Jury Trial. CUSTOMER AND CHARTBEAT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Customer and Chartbeat are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Customer and Chartbeat over whether to vacate or enforce an arbitration award, CUSTOMER AND CHARTBEAT WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
  • Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE ENTITY OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER ENTITY OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Chartbeat is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
  • Opt-out. Customer has the right to opt out of the provisions of this Section by sending written notice of its decision to opt out to the following address: 701 Tillery St, Unit 12-1019, Austin, TX 78702 postmarked within thirty (30) days of first accepting these Terms. Customer must include (i) its full legal name and address, (ii) the email address and/or telephone number associated with the applicable account, and (iii) a clear statement that Customer wants to opt out of these Terms’ arbitration agreement.
  • Exclusive Venue. If Customer sends the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either Customer or Chartbeat to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both Customer and Chartbeat agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Wilmington Delaware, or the federal district in which that county falls.
  • Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of Customer’s relationship with Chartbeat.

• 7. Miscellaneous. The failure of either Customer or Chartbeat to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. Customer and Chartbeat agree that these Terms are the complete and exclusive statement of the mutual understanding between Customer and Chartbeat, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Customer hereby acknowledges and agrees that it is not an employee, agent, partner, or joint venture of Chartbeat, and it does not have any authority of any kind to bind Chartbeat in any respect whatsoever.