March 5th, 2013
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THIS SITE. BY USING THIS SITE, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT USE THIS SITE.
The Analytics Service is available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. You represent and warrant that (a), if you are an individual, you are at least 18 years old, and (b) if you are a company, you are appropriately licensed and is legally permitted to conduct business.
MODIFICATION OF AGREEMENT
MarkedUp 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://markedup.com/terms or such other URL that MarkedUp may provide from time to time). Your continued use of any part of the Analytics Service following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.
DESCRIPTION AND USE OF THE ANALYTICS SERVICE
The "Analytics Service" means, collectively, the "Software", the "Reports" and the "Documentation", all as defined below in this Agreement. Under this Agreement, MarkedUp may allow you to access the Analytics Service by using MarkedUp's analytics site code (the "Agent") and any fixes, updates and upgrades provided to you, provided that you have an active MarkedUp account. In addition, MarkedUp may provide you with on-line access to a variety of analytics reports (the "Reports") generated by MarkedUp's processing code and any fixes, updates and upgrades. The Agent and MarkedUp'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").
FEES AND PAYMENT
MarkedUp Analytics is provided to you free of charge while in beta testing. MarkedUp may change its fees and payment policies for the Analytics Service from time to time. The changes will be posted at http://markedup.com/pricing (or such other URL that MarkedUp may provide from time to time).
INCIDENTAL COSTS ASSOCIATED WITH USE OF THE ANALYTICS SERVICE
You agree that you are solely liable for all costs, fees, and other expenses resulting from your use of the Analytics Service. This specifically includes, but is not limited to, incidental costs incurred by you in connection with your use of the Analytics 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.
To register for the Analytics Service, you must complete the registration process at http://markedup.com (or such other URL that MarkedUp may provide from time to time) by providing MarkedUp with current, complete and accurate information. Upon registration for the MarkedUp Analytics Services, you will be required to provide MarkedUp 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. MarkedUp 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 MarkedUp 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 MarkedUp, so that your account remains both secure and functional.
REPORTS AND RESULTS
Subject to the terms and conditions of this Agreement, you may remotely access, view and download the Reports, which will be stored at http://markedup.com (or such other URL that MarkedUp may provide from time to time). MarkedUp shall own and retains all right, title and interest in and to Reports and all other results, data and/or information provided to you through the service (collectively, "Results"). You may use the Reports only in connection with your use of MarkedUp Analytics pursuant to this Agreement and not for any other purpose.
You are hereby granted a nonexclusive, limited, non-transferable, revocable and non-sublicensable license to install, use, copy and distribute the MarkedUp SDK solely as necessary to use the Analytics Service pursuant to this Agreement 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 (except as expressly set forth above with respect to the Agent); (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. MarkedUp 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 MarkedUp, 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
You agree that you will not use the Analytics Service in connection with any application labeled or described as a "Kids" or "Children" application and will not use the MarkedUp Analytics Services a) in connection with any application, advertisement or service directed towards children or b) to collect any personal information of children.
"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.
You shall indemnify, defend, and hold harmless MarkedUp and its affiliates, employees, agents, successors, officers, directors, and assigns, from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that they may sustain or incur arising from (i) Your use of the software available at or downloaded from this site, (ii) Your failure to comply with any applicable laws and regulations (including without limitation those regarding the export of products or technology abroad) or to obtain any licenses or approvals from the appropriate government agencies necessary to purchase or sell the subject goods and services, (iii) Your use of the content available on this site in any way contrary to this agreement (d) Your breach of any of Your representations, warranties or obligations set forth in this agreement, (iv) the sale, purchase, transportation, delivery, use or disposal of any MarkedUp service, product, or download associated with this site or available through other sites, or any loss suffered by or harm to any person or property in any way relating to of caused in whole or in part by Your use of this site or any service, product, or download associated with this site (including, without limitation, any personal injuries or death of any third person caused in whole or in part by such products or services, the use, transportation, delivery, storage, handling or release thereof), and (v) any taxes attributable to the relating to any service, product, or download associated with this site.
Customer grants MarkedUp the right to add Customer’s name and company logo to its customer list and web site. Except for the foregoing, neither party may use the other party’s name or logo without the other party's prior written consent.
If you use the Analytics 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 MarkedUp 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 MarkedUp, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Analytics Service; (b) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Analytics 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 Analytics Service.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
The information and services included in or available through the Analytics Service, including the Reports, may include inaccuracies or typographical errors. MarkedUp may make improvements and/or changes in the Analytics Service at any time, with or without notice. You specifically agree that MarkedUp shall not be responsible for unauthorized access to or alteration of the User Data or data from your applications.
MARKEDUP 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 ANALYTICS 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, MARKEDUP DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE ANALYTICS SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE ANALYTICS 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 WILL MARKEDUP, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "MARKEDUP PARTIES"), BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF THIS AGREEMENT OR MARKEDUP ANALYTICS, EVEN IF MARKEDUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE MARKEDUP PARTIES' AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR MARKEDUP ANALYTICS WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE MARKEDUP PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You shall not, directly or indirectly, take any fraudulent action in the use of the Services, including without limitation, click fraud or fraudulent downloads. MarkedUp may terminate your account at any time for any reason, including without limitation, such fraudulent activity, in its sole discretion.
MODIFICATIONS TO AND TERMINATION OF THE ANALYTICS SERVICE
MarkedUp reserves the right to discontinue offering the Analytics Service or to modify the Analytics Service at any time in its sole discretion. If you are dissatisfied with any aspect of the Analytics Service at any time, your sole and exclusive remedy is to cease using it. Notwithstanding anything contained in this Agreement to the contrary, MarkedUp may also, in its sole discretion, terminate or suspend your access to the Analytics Service at any time. Upon any termination of this Agreement, MarkedUp will cease providing the Analytics Service, and you will delete all copies of MarkedUp's analytics site code from your applications and certify thereto in writing to MarkedUp within five (5) 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. MarkedUp's acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive MarkedUp's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of MarkedUp 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 MarkedUp shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. Subject to the arbitration provisions below, you and MarkedUp hereby agree to submit exclusively, to the personal jurisdiction of the state courts with jurisdiction over Santa Monica, California and/or the U.S. District Court for the Northern District of California.
Certain portions of this Section are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and MarkedUp agree that we intend that this Section satisfies the "writing" requirement of the Federal Arbitration Act.
You or MarkedUp may elect to have any controversy, allegation or claim arising out of or relating to this Agreement, the Analytics Service or the User Data, including but not limited to claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a "Dispute") finally and exclusively resolved by binding arbitration before a sole arbitrator under the rules and regulations of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in San Francisco, California; but if the applicable arbitration rules or laws require the arbitration to be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration, MarkedUp shall have the right to elect to proceed to arbitration in such location. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. You and MarkedUp will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require MarkedUp to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then MarkedUp will have the right to elect to pay the fees and costs and proceed to arbitration.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT (I) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (III) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR MARKEDUP WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR MARKEDUP MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES - OR IT WILL BE FOREVER BARRED.
In the event either you or MarkedUp elects arbitration, for any Dispute where the total amount of the award sought is less than $10,000 USD, the party requesting relief may further elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
This Agreement constitutes the entire agreement between you and MarkedUp and governs your use of the Analytics Service, superseding any prior agreements between you and MarkedUp with respect to the Analytics Service.
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.
BY INSTALLING, RUNNING, OR USING ANY MARKEDUP SERVICE YOU AFFIRM THAT YOU HAVE READ THIS ENTIRE AGREEMENT AND AGREE TO ALL ITS TERMS, CONDITIONS, AND POLICIES. IF YOU DO NOT AGREE TO ALL TERMS, CONDITIONS AND POLICIES SET FORWARD, PLEASE DISCONTINUE USE OF ANY AND ALL OF MARKEDUP PRODUCTS AND SERVICES.
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