true mobile analytics™

Beta Terms of Service

MOBILYTICS PRE-RELEASE LICENSE AND SERVICE AGREEMENT

 

Last modified: April 7, 2008

YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE MOBILYTICS BETA SOFTWARE. MOBILE VISIONS, INC. (“MOBILE VISIONS”) IS ONLY WILLING TO PROVIDE THE PRE-RELEASE LICENSE AND SERVICE TO YOU UNDER THESE TERMS AND CONDITIONS. ANY USE OF THE SERVICE WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT PROCEED.

Pre-Release License and Service Agreement for the Mobilytics Mobile Web Site Analytics Service (the “Agreement” or “LSA”) are additional to Mobile Visions Terms of Service (the “TOS”) and Privacy Statement. The LSA lays out the specific terms for the Pre-Release License and Service program made available through Mobile Visions, as defined below. By accepting this LSA You further confirm Your acceptance of the TOS and Privacy Statement (the “Agreements”), and understand that all terms in such Agreements shall apply also to this LSA. You must be 18 years old or older to use Mobilytics

This is an agreement between you and Mobile Visions (located at 212 Carnegie Center, Suite 206, Princeton NJ 08540) regarding your use of the pre-release version of the Mobile Visions Analytics web analytics service and any associated documentation, software code or other materials made available by Mobile Visions (collectively referred to in this agreement as the "Service"). 

 

As part of the Service, Mobile Visions supplies a proprietary code snippet. This code snippet is installed on a web page or email for the purpose of collecting mobile Web site traffic and audience data. Various APIs are also provided for greater control over the gathering or displaying of data. Together with any fixes, updates and upgrades provided to you this is collectively known as, the Mobilytics Tracking Code & API ("MTC&API" or "Script").  This agreement applies to any updates, supplements or support services for the Service, unless other terms accompany those items.  If so, those other terms apply.

 

Mobile Visions shall have sole authority and discretion to determine the period of time for testing and evaluation of the Service. Mobile Visions shall be the sole judge of the success of such testing and the decision, if any, to offer the Service as a commercial service. License shall have no obligation to acquire a subscription to use the Service released as a commercial service.

 

By installing, accessing or otherwise using the Service, you accept the terms of this agreement.  If you do not agree to the terms of this agreement, do not install, access or use the Service. If you comply with this agreement, you have the rights below.

 

1. Use of This Service

Under the terms of this agreement, Mobile Visions allows you to access and use the Service using the Mobile Visions–supplied Script solely for the purpose of receiving Mobile Web Site Analytics Service for up to 3 million page views per month for your own websites ("Your Websites"), provided that if you are an active Mobilytics™ Ad Network member.  As part of the Service, Mobile Visions may provide you with account access to online reporting systems to access, view and use a variety of online web analytics reports for Your Websites.  You may use such reports solely for your internal business purposes.  You must protect any passwords or other credentials associated with your account(s) for the Service, and take full responsibility for any use of the account(s) under your password.

 

In consideration of your use of the Service, you agree to: a) provide true, accurate, current, and complete information about yourself as prompted by the Beta Registration Process; and b) maintain and promptly update your Beta Registration data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or if Mobile Visions has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Mobile Visions has the right to terminate your Beta Membership and refuse current or future use of the Beta Service.

2. Script

You are permitted to reproduce and include copies of the Script within the body of the pages of Your Websites pages solely for the purposes of receiving the Service but only so long as:

 

You do not use the Script to collect or supply to the Service any

personally identifiable information ("PII") regarding the users of Your

Websites;

·         You do not modify the Script in any manner not authorized by

Mobile Visions in the technical requirements and instructions for the Script;

·         You do not include the Script in any websites that are malicious,

deceptive, or unlawful;

·         You comply with all technical requirements and instructions

provided by Mobile Visions for the Script;

·         You indemnify, defend, and hold harmless Mobile Visions from any claims, including attorneys' fees, related to Your Websites; and

·         You do not incorporate or distribute the Script so that any part

of it becomes subject to a license that requires that the Script be

·         disclosed or distributed in source code form or be modifiable by others it.

 

3. Scope of License

The Service (including the Script) is licensed, not sold.  This agreement only gives you some rights to access and use the Service.  Mobile Visions reserves all other rights.  Unless applicable law gives you more rights despite this limitation, you may use the Service (including the Script) only as expressly permitted in this agreement.  In doing so, you must comply with any technical limitations in the Service that allow you to use it only in certain ways.  You may not:

 

·         allow, authorize, or permit connection to the Service by daemons, bots, or other form of robotic software or automated processes;

·         work around any technical limitations in the Service or introduce

or use any device, software, or routine that interferes or attempts to interfere with the operation of the Service;

·         reverse engineer, decompile or disassemble the Service, except and only to the extent that applicable law expressly permits, despite this limitation; or

·         rent, lease, sublicense, or lend the Service or any of its components.

 

4. User Data; Personal Information and Privacy

The Service uses the Script to collect data concerning the characteristics and behavior of end users on Your Websites ("User Data"), but the Service does not provide for the collection or transfer of any PII.  You must comply with all privacy laws or regulations passed at any time by any government having jurisdiction over you, and you must maintain for Your Websites a privacy policy that complies with such laws.  Such privacy policy must include (a) a full, accurate, and clear disclosure regarding the placement, use, and reading of cookies and related technologies, and Your collection and use of data in relation to activity by users of Your Websites; (b) Your use of Mobile Visions (and others, if applicable) for analytics or advertising services for Your Websites; and (c) a disclosure that users may choose to not participate in Mobile Visions (and others', if applicable) personalized advertising services, along with a link to the Mobile Visions Online Privacy Policy at http://www.mobilytics.net/privacy.aspx (or  other address as Mobile Visions later may provide) where users may "opt out" of such personalized advertising services.  Mobile Visions may retain and use User Data subject to the terms of the Mobile Visions Online Privacy Policy (available at http://www.mobilytics.net/privacy.aspx) and publish in aggregate or average form such information in combination with information collected from others' use of the Service except that Mobile Visions will not disclose to any third parties any User Data collected by the Service from Your Websites in a manner that (i) contains or reveals any personally-identifiable information or (ii) is specifically attributable to you, Your Websites, or Your Customers.

 

Personal information you provide to Mobile Visions through the Mobilytics Service is governed by Mobile Visions Privacy Policy and applicable laws related to personal information. Your election to use the Service indicates your acceptance of the terms of the Mobile Visions Privacy Policy. You are responsible for maintaining the confidentiality of your Account information and other sensitive information. You are responsible for all activities that occur in your Account and you agree to notify Mobile Visions immediately of any unauthorized account use at support@mobilytics.net . Mobile Visions is in no way responsible for any loss or damages to you or to any third party incurred as a result of any unauthorized access and/or use of your Beta Member Account, or otherwise.

5. Export Restrictions

The Service is subject to United States export laws and regulations.  You must comply with all domestic and international export laws and regulations that apply to the Script. These laws include restrictions on destinations, end users and end use.

 

6. Pre-Release Service

This Service is a pre-release version.  It may not work the way a final version of the Service will.  Mobile Visions may change it for the final, commercial version.  Mobile Visions also may not release a commercial version. While data may be published throughout the day, the beta service only consistently provides daily data update that is completed between 12:01 am and 5am, website local time.

 

7. Support

Mobile Visions is not obligated to provide any technical or other support ("Support Services") for Service.  However, if Mobile Visions chooses to provide any Support Services to You, Your use of such Support Services will be governed by Mobile Visions policies.  With respect to any technical or other information You provide to Mobile Visions in connection with the Service or any Support Services, You agree that Mobile Visions has an unrestricted right to use such information for its business purposes, including for product support and development.  Mobile Visions will not use such information in a form that personally identifies You.

 

8. Feedback

You have the ability to give feedback about the Service to Mobile Visions.  You grant to Mobile Visions, without charge, the right to use, share and commercialize your feedback in any way and for any purpose. You also grant to third parties, without charge, any patent rights necessary for their products, technologies and services to use or interface with any specific parts of a Mobile Visions software or service that incorporates your feedback.  You will not give feedback that is subject to a license that requires Mobile Visions to license its software or documentation to third parties because Mobile Visions includes your feedback in our software or documentation.  These rights survive this agreement.

 

9. Fees

Mobile Visions may choose in the future to charge for use of the Service.  If Mobile Visions in its sole discretion chooses to establish fees and payment terms for such use, Mobile Visions will provide notice of such terms as provided in Section 11 below, and You may elect to stop using the Service rather than incurring fees.

 

10. Termination

Mobile Visions reserves the right to discontinue offering 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 the agreement to the contrary, Mobile Visions may also, in its sole discretion, terminate or suspend access to the Service to you at any time.  You acknowledge that termination and/or monetary damages may not be a sufficient remedy if you breach this agreement and that Mobile Visions will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach.  Upon the expiration or any termination of this Agreement, you must cease using the Service and the Script.  This Section and Sections 2 (but only with regard to your obligation to provide indemnification for claims occurring prior to termination), 4 (but only with regard to User Information collected prior to termination), 8 and 13-16 survive termination of this agreement or any discontinuation of the Service.

 

11. Modifications; Notices

If we change this agreement, then we will give you notice before the change is in force.  If you do not agree to these changes, then you must cancel and stop using the Service before the changes are in force. If you do not stop using the Service, then your use of the Service will continue under the changed agreement. Mobile Visions may give notices to you, at Mobile Visions option, in writing or by electronic mail to any e-mail address provided by You to Mobile Visions.

 

12. Indemnification

You agree to indemnify and hold harmless Mobile Vision, Inc., its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to any claims that you have used the Service in violation of another party’s rights, in violation of any law, in violations of any terms of these Terms of Service, or other claim related to your use of the Service.

 

13 Applicable Law

 

13.1. United States . 

If you acquired the Service in the United States, New Jersey state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles.  The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.

 

13.2. Outside the United States. 

If you acquired the Service in any other country, the laws of that country apply.

 

14. Legal Effect

This agreement describes certain legal rights.  You may have other rights under the laws of Your country.  This agreement does not change your rights under the laws of your country if the laws

of your country do not permit it to do so.

 

 

15. Disclaimer of Warranty

The Service (including the Script and API) is supplied "as-is."  You bear the risk of using it.  Mobile Visions gives no express or implied warranties, guarantees or conditions.  You may have additional consumer rights under your local laws which this agreement cannot change.  To the extent permitted under your local laws, Mobile Visions excludes the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

 

16. Limitation on and Exclusion of Remedies and Damages.

You can recover from Mobile Visions and its suppliers only direct damages up to U.S. $5.00.  You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.

 

This limitation applies to:

 

·         anything related to the Service, Script, content (including code)

on third party Internet sites, or third party programs; and

·         claims for breach of contract, breach of warranty, guarantee or

condition, strict liability, negligence, or other tort to the extent permitted by applicable law.

 

It also applies even if Mobile Visions knew or should have known about the possibility of the damages.  The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.

 

17. Trademark

Mobilytics and Mobilytics logo are trademarks of Mobile Visions, Inc. All rights are reserved to Mobile Visions, Inc. You agree not to display or use, in any manner, the Mobilytics trademarks, without Mobile Visions, Inc’s prior permission.