TERMS OF SERVICE
Last Updated: 15 August 2019
PLEASE READ THIS AGREEMENT CAREFULLY.
These terms of service (" Terms") cover your use and access to the services (" Services") provided by Chartyn Analytics Limited (" Chartyn" ).
" Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Service;
Affiliate" means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. " Control ," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
" Application" means Chartyn's web application;
" Chartyn Materials" means the Chartyn Systems, Application and any and all other information, data, documents, materials, works, and other content that are provided or used by Chartyn in connection with the Services or otherwise comprise or relate to the Services or Chartyn Systems, including any third party materials, but excluding the Customer Data. For the avoidance of doubt, Chartyn Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of Chartyn under these Terms;
" Chartyn Systems" means the information technology infrastructure used by or on behalf of Chartyn in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Chartyn or through the use of third party services;
" Customer Data" means any and all information, data, and other content, in any form or medium, that is uploaded into the Application or otherwise provided to Chartyn, directly or indirectly, by you in connection with any of the Services;
" Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent you from accessing or using the Service or Chartyn Systems as intended by these Terms;
" Intellectual Property Rights" means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations; and
" Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and " Processing" and " Processed" have correlative meanings.
1.2. USE OF SERVICES
The Services may be purchased as monthly or annual subscriptions. You may cancel or change your subscription at any point, but you won't be issued a refund for any payments that have already been made for a particular subscription.
You shall not, except as expressly permitted in these Terms: (a) make any Service available to, or use any Service or for the benefit of, anyone other than you (b) copy, modify, or create derivative works or improvements of the Service; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer any Service to any person or entity, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (e) bypass or breach any security device or protection used by the Service other than through the use of then valid Access Credentials; (f) input, upload, transmit, or otherwise provide to or through the Service or Chartyn Systems any Customer Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Chartyn Materials, or Chartyn's provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or Chartyn Materials; (i) access or use the Service or Chartyn Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; (j) access or use the Service or Chartyn Materials for purposes of competitive analysis of the Service or Chartyn Materials, the development, provision, or use of a competing service or product, or any other purpose that is to Chartyn's detriment or commercial disadvantage; or (k) otherwise access or use the Service or Chartyn Materials beyond the scope of the rights granted under this paragraph.
You represent and warrant that you are authorised to process your Customer Data and make such Customer Data available to Chartyn so that Chartyn's receipt and Processing of Customer Data in accordance with these Terms does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any User or other person or entity, or any applicable law. You shall retain sole responsibility for: (a) all your Customer Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by you in connection with the Services; and (c) the security and use of your Access Credentials.
Suspension of Access.
Chartyn may suspend your to or use of all or any part of the Services or Chartyn Materials, without incurring any resulting obligation or liability, if: (a) Chartyn receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Chartyn to do so; (b) Chartyn believes, in its good faith and reasonable discretion, that Customer or any of its Users have violated these Terms. If Chartyn suspends the Service, Chartyn shall promptly restore your access to and use of the Service after the event giving rise to the suspension has been resolved to Chartyn's satisfaction.
Links to Other Websites.
1.3. OUR RESPONSIBILITIES
We will:(a) make the services available to you pursuant to these terms; (b) provide our standard support for the services to you at no additional charge; and (c) use commercially reasonable efforts to make the online services available 24 hours a day, 7 days a week, except for (i) planned downtime with 24 hours of electronic notice; and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of god, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), internet service provider failure or delay, or denial of service attack.
Protection of the Customer Data.
We will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of the Customer Data. We shall make periodic backups of all Customer Data on the server provided that this does not replace the need for you to maintain regular data backups or redundant data archives. Chartyn has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data.
We may, from time to time in our sole discretion, develop and provide software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, " Updates"). Updates may also modify or delete in their entirety certain features and functionality of the Service. You acknowledge and agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service.
From time to time, we may invite you to try beta services at no charge. You may accept or decline any such trial in your sole discretion. Beta services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. We may discontinue beta services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a beta service.
You acknowledge that the Services are offered to you on the basis of predications and can therefore never be 100% accurate. The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service. We shall have no liability for any harm or damage arising out of business decisions you may make based on the intelligence provided by the Services
1.4. FEES AND PAYMENT
You will pay all fees associated with the subscription to the Services. While we do not send out invoices, we will provide a receipt for each transaction once processed. We may change the fees in effect but will give you advance notice of these changes via a message to the email address associated with your account.
You will provide Chartyn with valid and updated credit card information. If you provide credit card information to Chartyn, you authorize Chartyn to charge such credit card for all subscription charges. Such charges shall be made in advance, with a monthly or annual billing frequency depending on your subscription. You are responsible for providing complete and accurate billing and contact information to Chartyn and notifying Chartyn of any changes to such information.
If any monthly subscription amount is not received by Chartyn by the due date, use of the Services will be suspended until the subscription amount is paid in full.
You agree that your subscriptions are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Chartyn regarding future functionality or features.
1.5. PROPRIETARY RIGHTS AND LICENSES
License by You to Host the Customer Data.
You are and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights, subject to the license granted to Chartyn. You grant Chartyn a worldwide, limited-term license to host, copy, transmit, display and Process the Customer Data as necessary for Chartyn to provide the Services in accordance with these Terms.
Reservation of Rights.
Subject to the limited rights granted to you, Chartyn is and shall remain the sole and exclusive owner of all right, title, and interest in and to all developments, inventions, technology, materials, and other work product made or conceived or actually or constructively reduced to practice by or on behalf of Chartyn in the course of performing any Services (collectively, the " Work Product"), including related all Intellectual Property Rights. For clarity, Work Product does not include Customer Data. In the event you are a deemed owner of any right, title, or interest in or to any part of the Work Product, you agree to assign, and hereby irrevocably assign, to Chartyn all of its right, title, and interest in and to the Work Product, including all related Intellectual Property Rights. You agree to give Chartyn, and any person designated by Chartyn, reasonable assistance, at Chartyn's expense, in perfecting and/or evidencing Chartyn's rights in and to the Work Product, including by executing and delivering all documents reasonably requested by Chartyn for such purposes. Chartyn hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Work Product provided by Chartyn to you in connection with the Professional Services solely for your internal business operations and in connection with the Service, subject to all applicable Terms.
License by You to Use Feedback.
You grant to Chartyn a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of the Services.
Chartyn may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the Chartyn Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ((a) and (b) collectively, " Service Analyses"). Chartyn may make Service Analyses publicly available and use the Service Analyses for its business purposes, however Service Analyses shall not incorporate Customer Data in a form that could serve to identify you. Service Analyses do not constitute Customer Data, and Chartyn shall retain all right, title, and interest in and to Service Analyses, including all related Intellectual Property Rights.
Definition of Confidential Information.
"Confidential Information" means all information disclosed by a party ( "Disclosing Party") to the other party ( "Receiving Party" ), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes the Customer Data; our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of these Terms and all proposals (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the ReceivingParty containing protections no less stringent than those herein. Neither party will disclose the terms of these Terms to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such affiliate's, legal counsel's or accountant's compliance.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Indemnification of Chartyn.
You will indemnify, defend, and hold harmless Chartyn, its affiliates, and its and their respective officers, directors, employees, and agents from and against all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable legal fees) arising out of or in connection with any third party claim, action, suit, or proceeding arising out of or related to: (a) Customer Data, including any Processing of Customer Data by or on behalf of Chartyn in accordance with these Terms; (b) Chartyn's compliance with any specifications or directions provided by you; or (c) any breach or violation of these Terms or applicable law by you, or any other person accessing and/or using any of the Services or Chartyn Materials directly or indirectly by or through your systems or your Access Credentials, with or without your knowledge or consent.
Upon receiving notice of a claim for which Chartyn is entitled to indemnification by Customer, Chartyn shall provide you with written notification and the opportunity to assume sole control over the defense or settlement of such claim and reasonable assistance to settle and/or defend such claim at your sole expense; provided, however, that: (a) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by Chartyn will require Chartyn's prior written consent; (b) the failure to provide timely notice, control, or assistance shall not relieve you of your indemnification obligations; and (c) Chartyn may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at Chartyn's own expense, unless you fail or refuse to secure legal counsel to defend any claim in a timely manner, in which case you shall pay all expenses related to Chartyn's use of such counsel.
1.8. LIMITATION OF LIABILITY
Exclusion of certain damages.
To the maximum extent permitted by applicable law, in no event shall chartyn, its affiliates, or its or their respective officers, directors, employees, agents, licensors, or service providers be liable under or in connection with the agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for any consequential, incidental, indirect, exemplary, special, or punitive damages (including lost profits, damage or loss of use of data, business interruptions, and lost business opportunity), regardless of whether such persons were advised of the possibility of such damages or such damages were otherwise foreseeable. Without limiting the foregoing, in no event shall chartyn, its affiliates,or its or their respective officers, directors, employees, agents, licensors, or service providers be liable for any damages arising out of or in connection with: (a) customer's use, or inability to use, the services, equipment, or chartyn materials; (b) any customer data, including any unauthorized access to or use of any customer data; (c) interruption or cessation of transmission to or from the service; and/or (d) any harmful code which may be transmitted to or through the services, equipment, or any chartyn materials.
Notwithstanding anything herein to the contrary, in no event shall the collective aggregate liability of chartyn, its affiliates,and its and their respective officers, directors, employees, agents, licensors, and service providers under or related in any way to the agreement or its subject matter, whether in contract, tort (including negligence), or otherwise, exceed the total amount paid by customer to chartyn under the agreement during the 12-month period immediately preceding the event giving rise to the claim.
Termination by You.
You may cancel your subscription at any time. Should you need to cancel, your payment is non-refundable and your Service will continue until the end of the active billing period.
Termination by Chartyn.
Chartyn may terminate these Terms, effective immediately upon written notice to you, if you breach any of your obligations under Usage Restrictions section.
Effects of Termination.
Upon termination of these Terms, all rights and licenses granted to you under these Terms shall immediately terminate, and Chartyn may disable your access to the Service. In addition, you shall, and immediately cease using the Service and Chartyn Materials and destroy all copies of the Chartyn Materials in your possession or control. The expiration or termination of these Terms shall not (a) prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party's acts or omissions prior to the effective date of the termination.
Customer Data Portability and Deletion.
Upon request by you made within 30 days after the effective date of termination or expiration of these Terms, we will make the Customer Data available to you for export or download. After that 30-day period, we will have no obligation to maintain or provide Customer Data, and will thereafter delete or destroy all copies of the Customer Data in our systems or otherwise in our possession or control, unless legally prohibited.
The sections titled "Disclaimer", "Proprietary Rights and Licenses", "Confidentiality", "Indemnification", "Limitation of Liability" "Customer Data Portability and Deletion" and "General Provisions" will survive any termination or expiration of these Terms.
Except as otherwise specified in these Terms, all notices, permissions, and approvals under these Terms shall be in writing and shall be deemed to have been given upon: (i) registered mail delivery (in the case of notices of indemnifiable claim); or (ii) email.
Governing Law and Jurisdiction.
These Terms will be governed by the laws of England and Wales.