Terms of Service
Effective Date: 2015.1.1
A. USERS OF THE SITE
Streamlyzer provides real-time and historic streaming analytics and behavior data for Customer website(s) and other platforms on or through which the Service is implemented and a visitor may play, stream or otherwise access video content, including without limitation iOS, Android, AppleTV, Roku, Chromecast and set-top box (“Customer Platform”). Users to this Site can obtain information about the Service.
1. DESCRIPTION OF THE SERVICE
For purposes of this Agreement. the “Service” is the collection and processing of real-time statistics and historic statistics based on activities of visitors and users of Customer Platforms (“Visitors”), using certain Streamlyzer proprietary software (the “Software”), subject to these Terms of Service. For the sake of clarity, the “Service” includes any or all of the service packages defined in this “Description of the Service.”
When you register for the Service, Streamlyzer will provide you with streaming analytics and behavior data for your website through a free trial use of the Service for thirty (30) days (the “Free Trial Period”). The term for the Free Trial Period will begin on the date of your registration on the Site for the Service and will continue during the Free Trial Period, unless extended or sooner terminated in accordance with this Agreement. If you register for the Service, either you or Streamlyzer may terminate this Agreement upon written notice thereof at any time for any reason or no reason, during or at the end of the Free Trial Period.
Upon completion of the Free Trial Period, Streamlyzer will automatically convert you to a full Service account to one of the three Service packages based on your prior month’s usage by charging the credit card you provided to Streamlyzer upon registration or issuing you an invoice for amounts due to us. Details of the three Service packages offered by Streamlyzer, including monthly subscription amounts, can be found here Pricing.
Upon the registration for the Service, you are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.
2. LICENSE; OWNERSHIP
Subject to the terms and conditions set forth herein, Customer shall allow the Service to be placed and implemented on the Customer Platform and Customer shall grant Streamlyzer a worldwide, nonexclusive, irrevocable, royalty-free, no-cost right and license to (i) use, reproduce, copy and distribute Customer Data, and (ii) perform, or have performed, the activities relating to provision of the Service. Customer agrees to configure the Software on the Customer Platform in accordance with Streamlyzer’s requirements, including by ensuring that URLs containing personally identifiable information of Visitors are not captured by the Service.
Streamlyzer is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Service or any damages resulting from Customer’s failure to implement the Software on the Customer Platform in accordance with Streamlyzer’s requirements.
In order to improve our algorithms and the Service, for statistical and analytical reporting and for research purposes, Streamlyzer may aggregate and/or anonymize the Customer Data provided in connection with Customer’s use of the Service, and provide such anonymized Customer Data, which may be aggregated with Customer Data of other Customers, to third parties; provided that Streamlyzer will not use or disclose anonymized Customer Data in a manner that reveals Customer’s identity, the identity of the Customer Platform, or Customer’s identifiable data without Customer’s express prior consent.
Subject to your compliance with these Terms of Service and your payment of any applicable fees, Streamlyzer grants to Customer (and Customer hereby agrees to comply with) a non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use: (i) the Software and (ii) certain proprietary documentation in the form generally made available by Streamlyzer to Customer on the Site for use with the Software (the “Documentation”) solely in connection with Customer’s valid use of the Service. Customer’s use of the Service shall be restricted pursuant to the terms and conditions of these Terms of Service. Customer hereby agrees that Customer is solely responsible, and Streamlyzer bears no liability, for the use of its account by any third party, or for Customer’s use of the Service through a third party’s account, and the acts and/or omissions of such third party. Subject to Customer’s compliance with these Terms of Service and its payment of any applicable fees, Streamlyzer also grants Customer a nonexclusive, nontransferable, revocable, limited license to access and use the Streamlyzer plugins solely in connection with its use of the Service.
“Customer Data” means all information that is posted, uploaded, provided or submitted by Customer to Streamlyzer or Streamlyzer’s data centers and network on which Streamlyzer hosts the Service in the course of using the Service, including without limitation data and information related to Visitors.
“Service Data” means all information, including any software, documentation, analytics, data and other materials created, received, processed, produced, collected or otherwise obtained by Streamlyzer in performing the Service.
You agree to:
a. Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
b. Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
c. Not obtain the communications protocol for accessing the Service;
d. Not remove, obscure or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations (“Branding”), or any electronic notices;
e. Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
f. Not take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
g. Not challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof; and
4. FEES AND PAYMENT
Except with regard to the Free Trial Period, Streamlyzer bills its customers in advance on a monthly basis based on Customer’s previous month’s usage. More details can be found in our Pricing page. All amounts due shall be paid in US dollars. Service fees are exclusive of all banking fees and all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such fees, taxes, levies, or duties, excluding only United States income (federal or state) taxes imposed on Streamlyzer. In the event you are required to withhold any portion of service fees due to payments to banks or taxing authorities, (i) you agree to do so and to indemnify Streamlyzer for any liability resulting from your failure to make such withholdings, and (ii) Streamlyzer reserves the right to adjust the pricing of the Service so that you are responsible for payment to Streamlyzer of the full amount for the Service, net of any such withholdings. When required by law, you will be responsible for all applicable sales, use, transfer, excise, value-added or similar taxes, and your payment obligation to Streamlyzer hereunder shall include the amount of such tax.
If you register for the Streamlyzer Service and your account is not canceled during the Free Trial Period, your credit card will be charged or invoices will be issued to you on a recurring monthly basis starting on the 31st day after your account was initially created. Streamlyzer will not issue refunds for fees paid for a Streamlyzer Service account, even for periods of inactivity. Streamlyzer may change the price of the Streamlyzer Service upon thirty (30) days notice to you. Such notice may be provided at any time by posting the changes to the Site. Streamlyzer will not be liable to you or to any third party for any modifications, price changes, or suspension or discontinuation of the Streamlyzer Service.
5. WARRANTY DISCLAIMER
STREAMLYZER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. THE SERVICE IS PROVIDED BY STREAMLYZER AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES STREAMLYZER GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. STREAMLYZER DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE'S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 5 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY STREAMLYZER FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. STREAMLYZER MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S END USERS.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL STREAMLYZER AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT STREAMLYZER WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. IN NO EVENT SHALL STREAMLYZER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS STREAMLYZER, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES, ARISING OUT OF (i) YOUR USE OF THE SERVICE, (ii) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, OR (iv) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT OF YOUR USE OF THE SERVICE. STREAMLYZER 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 YOU.
8. TERM AND TERMINATION
Unless otherwise specified in a separate written contract, the term of the license granted herein for the Service shall commence upon the earlier of (i) your implementation or (ii) your agreement to this Agreement, and may be terminated as set forth herein. Upon termination of this Agreement, all licenses, and any other rights and services provided by Streamlyzer to you in this Agreement, shall cease immediately. We also may permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the Service upon reasonable prior notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of fees. Termination of this Agreement, any license granted hereunder, or your access to the Site, shall not limit us from pursuing other remedies available to us, including but not limited to injunctive relief.
If you are a Streamlyzer Service Customer, you or we may terminate this Agreement at any time, in whole or in part, for any reason, provided that if you terminate, you shall be obligated to pay any fees accrued prior to the date of termination. You may terminate this Agreement by e-mailing Streamlyzer at email@example.com, You must remove all Streamlyzer scripts and materials from your website(s) within ninety (90) days after termination.
Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.
c. Third Party Service Providers.
Streamlyzer may provide the Service directly or indirectly using contractors or other third party vendors or service providers. Streamlyzer will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third party suppliers or vendors.
You hereby consent to inclusion of your name and trademarks or service marks in customer lists that may be published as part of Streamlyzer's marketing and promotional efforts.
Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: the first two paragraphs of Section 2, and Sections 3 through 9.
f. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its choice of law provisions, and the parties agree to submit to the personal and exclusive jurisdiction of such courts.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties.
h. No waiver.
Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Streamlyzer - firstname.lastname@example.org, or if to you, to the email or physical address associated with your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by e-mail without requiring a handwritten signature for such notice to be effective.
j. Force Majeure.
Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
k. The Agreement.