Terms of Service
The following are the terms and conditions for use of the Brinkin Analytics service described herein (the "Service") between Brinkin Consulting and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You"). Please read them carefully. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE ("AGREEMENT"). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
1. DEFINITIONS
"Account" refers to the billing account for the Service. All Sites linked to a single Site will have their Page Views aggregated prior to determining the charge for the Service for that Site.
"Customer Data" means the data concerning the characteristics and activities of visitors to your website that is collected through use of the BATC and then forwarded to the Servers and analyzed by the Analytics Software.
"Documentation" means any accompanying proprietary documentation made available to You by Brinkin Consulting for use with the Analytics Software, including any documentation available online or otherwise.
"Page View" is the unit of measurement for usage of the Service. A Page View is used when the BATC is executed on a web page accessed by a visitor, and processed as part of a Site. A Page View will be incurred for each instance of the BATC on the web page, and for each Site receiving information from the BATC for such web page.
"Analytics Software" means the proprietary Brinkin Analytics Software and any all upgrades to such, which analyzes the Customer Data and generates the Reports.
"Report" means the resulting analysis shown at analytics.brinkin.com (or such other URL Brinkin Consulting may provide from time to time) for an individual site. The number of charts, graphs, and statistics contained in a Report varies with the edition of the Service.
"BATC" means the proprietary Brinkin Analytics Tracking Code, which is installed on a web page for the purpose of collecting Customer Data, together with any fixes, updates and upgrades provided to you (collectively, the "BATC").
"Servers" means the servers controlled by Brinkin Consulting (or its wholly owned subsidiaries) upon which the Analytics Software and Customer Data are stored.
"Site" means a group of web pages that are linked to an Account and use the same BATC. Each Site consists of a default Site that measures all pages within the Site.
"Software" means the BATC and the Analytics Software.
Brinkin Consulting may change its fees and payment policies for the Service from time to time including but not limited to the addition of costs for geographic data, the importing of cost data from search engines, or other fees charged to Brinkin Consulting or its wholly-owned subsidiaries by 3rd party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon Your acceptance of such changes which will be posted at analytics.brinkin.com (or such other URL Brinkin Consulting may provide from time to time). Unless otherwise stated, all fees are quoted in U.S. Dollars.
2. MEMBER ACCOUNT, PASSWORD, AND SECURITY . To register for the Service, You must complete the registration process by providing Brinkin Consulting with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You shall protect your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify Brinkin Consulting immediately upon learning of any unauthorized use of Your Account or any other breach of security. From time to time, Brinkin Consulting's (or its wholly-owned subsidiaries') support staff may log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
3. NONEXCLUSIVE LICENSE . Brinkin Consulting hereby grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the BATC solely as necessary to use the Service for one or more web pages that You own and control (collectively, the "Website").
4. CONFIDENTIALITY . "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 five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed 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. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. 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 are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by Brinkin Consulting, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify Brinkin Consulting of any unauthorized use of Your account or any other breach of security known to You.
5. INFORMATION RIGHTS AND PUBLICITY . Brinkin Consulting and its wholly owned subsidiaries may retain and use, subject to the terms of its Privacy Policy (located at http://analytics.brinkin.com/privacy_policy , or such other URL as Brinkin Consulting may provide from time to time), information collected in Your use of the Service. Brinkin Consulting will not share information associated with You or your Site with any third parties unless Brinkin Consulting (i) has Your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Brinkin Consulting, its users or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on Brinkin Consulting's behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by Brinkin Consulting . When this is done, it is subject to agreements that oblige those parties to process such information only on Brinkin Consulting's instructions and in compliance with this Agreement and appropriate confidentiality and security measures.
6. PRIVACY . You will not (and will not allow any third party to) use the Service to track or collect personally identifiable information of Internet users, nor will You (or will You allow any third party to) associate any data gathered from Your website(s) (or such third parties' website(s)) with any personally identifying information from any source as part of Your use (or such third parties' use) of the Service. You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to Your websites.
7. INDEMNIFICATION . You agree to indemnify, hold harmless and defend Brinkin Consulting and its wholly owned subsidiaries, at Your expense, any and all third-party claims, actions, proceedings, and suits brought against Brinkin Consulting or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Brinkin Consulting or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your Brand Features. In such a case, Brinkin Consulting will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Brinkin Consulting reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
8. DISCLAIMER OF WARRANTIES . The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Brinkin Consulting and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. Brinkin Consulting does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. Brinkin Consulting does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that Brinkin Consulting and its wholly owned subsidiaries shall not be responsible for unauthorized access to or alteration of the Customer Data or data from Your Website.
THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY BRINKIN CONSULTING AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. BRINKIN CONSULTING DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY . BRINKIN CONSULTING AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF BRINKIN CONSULTING AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
Brinkin Consulting's (and its wholly owned subsidiaries') total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed U.S. $500.
10. SERVICE LEVELS . Brinkin Consulting does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Brinkin Consulting's (or its wholly owned subsidiaries') control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Brinkin Consulting (or its wholly owned subsidiaries) or Your servers are located or co-located. Complete accuracy in all aspects of Your Statistics at all times also is not guaranteed.
11. PROPRIETARY RIGHTS NOTICE . The Service, which includes but is not limited to the BATC and the Brinkin Analytics Software and all intellectual property rights in the Service are, and shall remain, the property of Brinkin Consulting (and its wholly owned subsidiaries). All rights in and to the Analytics Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by Brinkin Consulting and its licensors without restriction, including, without limitation, Brinkin Consulting's (and its wholly owned subsidiaries') right to sole ownership of the Brinkin Analytics Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Analytics Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Brinkin Consulting; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Brinkin Consulting (or its wholly owned subsidiaries) other than in the name of Brinkin Consulting (or its wholly owned subsidiaries, as the case may be); or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
12. TERM and TERMINATION . Either party to the Agreement may terminate it at any time and for any reason.
Upon any termination or expiration of this Agreement, Brinkin Consulting will cease providing the Service, and You will delete all copies of Brinkin Analytics's BATC code from all Pages and certify thereto in writing to Brinkin Consulting within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical report data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.