This Piwik PRO Cloud Services Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the cloud-based hosting, analytics, and other related cloud services provided by Piwik PRO (the “Services”). The Services are owned and operated by Piwik PRO Sp. z o.o., dba Piwik PRO (“Piwik PRO” “us,” “we”). The term “you”, “your” includes any of your subsidiaries, affiliates and employees (also referred to as “user”, “subscriber”). This Agreement: (i) incorporates any terms agreed between you and Piwik PRO, pursuant to an applicable order form available on Site or provided to you; and (ii) becomes effective immediately at such time you click a “Start” button or check box presented with these terms, in an applicable order form, or, if earlier, when you use any of the Services. IF YOU DO NOT ACCEPT THIS AGREEMENT, WE WILL NOT GRANT YOU ANY LICENSE OR USE RIGHTS HEREUNDER. IF YOU REGISTER FOR AN ACCOUNT ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO PIWIK PRO THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.
- Registration Accuracy
In consideration of your use of the Services you agree to: (i) provide true, accurate, current and complete information about yourself in responding to and/or completing the Site’s registration form (the “Registration Information”); and (ii) keep the Registration Information true, accurate, current and complete by maintaining and promptly updating it. If you provide any information that is untrue, inaccurate, not current or incomplete or Piwik PRO has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Piwik PRO has the right to suspend or terminate your account and refuse any and all current or future use of the Site and/or the Services (or any portion thereof).
- Your Account and Security
You will be responsible for creating and maintaining the confidentiality of your user name and password. You are responsible for all activity occurring under your account. You agree that you will (i) immediately notify Piwik PRO of any unauthorized use of your user name or password and (ii) ensure that you properly exit any services and/or the Site at the completion of your session. Piwik PRO shall have no liability for any loss or damage arising from your account or your failure to comply with these requirements.
- Your Data and End User Data
“Subscriber Data” shall mean (i) any information concerning users’ actions, entries, or activities on your web page(s) (ii) any information sent to you by users’ web browsers concerning users’ web activities immediately prior to visiting your web page(s) (e.g., URL information and HTTP header information) (iii) any data or other information you provide to Piwik PRO “End User” shall mean You and any individual or entity that directly or indirectly through another party: (i) accesses or uses Subscriber Data; or (ii) otherwise accesses or uses the Services under your account;
- By using the Services, you hereby acknowledge that: (i) you or your End Users may send, receive, upload, retrieve, and/or otherwise transmit or recover Subscriber Data to or from the Services; (ii) you bear the entire and sole responsibility for the accuracy, reliability, usefulness, completeness, and contents, of any and all such Subscriber Data, including but not limited to any loss, liabilities or damages that arise or result from the Subscriber Data (without limiting the foregoing, you are solely responsible properly handling and processing notices sent to you, your End Users or any of your affiliates by any person claiming that Subscriber Data violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.)
- As between you and Piwik PRO, you or your licensors own all right, title, and interest in and to Subscriber Data. Except as otherwise provided in this Agreement, we obtain no rights under this Agreement from you or your licensors to Subscriber Data. You consent to our use of Subscriber Data to provide the Services to any End Users.
- By providing or otherwise making available any Subscriber Data in connection with the Services, you hereby represent and warrant that you own or have the necessary rights to, send, upload, transmit, provide or otherwise provide the Subscriber Data to the Services and to Piwik PRO, and the provision of the Subscriber Data to, and use of the Subscriber Data by, with, or through the Services under this Agreement will not violate or infringe any third party intellectual property rights, or other rights, including but not limited to privacy, copyright, patent, trademark or trade secret rights.
- By providing or otherwise making available any Subscriber Data in connection with the Services, you hereby represent and warrant that the Subscriber Data: (i) does not and will not contain any viruses, worms, malware, “Trojan horses” or any generally harmful, malicious, or destructive code; and (ii) is not spam, is not generated by any bots or harmful software designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (for example and without limitation, “phishing”) or mislead recipients as to the source of the material (for example and without limitation, “spoofing”).
- By submitting any Subscriber Data to Piwik PRO, you hereby grant Piwik PRO a worldwide, royalty-free, and non-exclusive right to reproduce, process and publish the Subscriber Data solely for the purpose of enabling Piwik PRO to provide you with Services.
- You hereby understand and agree the at all times Piwik PRO reserves the right (but does not assume the obligation), to be exercised in its sole discretion in the event it deems you to be in violation this Agreement, in Piwik PRO’s sole discretion, either to (i) delete or remove any Subscriber Data; or (ii) terminate or deny access to and use of the Services to you or any other party.
- You are responsible for End Users’ use of any Subscriber Data and the Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to Subscriber Data and the Services.
- You may request the complete database dump of your Subscriber Data at any time during the agreement and we will provide it within 7 days.
- Data Retention Policy.
Subscriber Data data will be retained for a period of 2 years from the date of its collection (“Data Retention Period”). Piwik PRO shall not be held responsible for retaining any of Subscriber Data after account termination or Data Retention Period. All Subscriber Data may be deleted from the servers after Data Retention Period and/or after the account is terminated and from back-ups during scheduled back-up rotation or earlier, at Piwik PRO’s convenience. The above may be changed on a case-by-case basis. Contact us at firstname.lastname@example.org for custom Data Retention Period.
- We may change, discontinue, alter, or modify any of the Services, or a portion of the Services (including the Services as a whole) or change or remove features or functionality of the Services from time to time. We will notify you of any material change to or discontinuation of the Services with two (2) months prior written to you.
- We may change, discontinue or add Service Level Agreements, which is available at https://cloud.piwik.pro/sla/, from time to time in with two (2) months prior written notice.
- Monitoring of Your Activity
- Because Piwik PRO wants to continue to improve the Services for the benefit of you or any of your End Users, we may (but do not have an obligation to) monitor your activity on the Services. Any such data shall not be used for any other purpose than analysis and services improvement.
- By using the Services, you specifically agree to Piwik PRO monitoring you in this manner.
- You understand, however, Piwik PRO cannot and does not make any warranties or guarantees that: (i) the Services, or any component thereof, will be made free from error or inaccuracy as a result of such monitoring or free from unauthorized and/or unacceptable use as a result of such monitoring; (ii) any statements or factual items presented by the Services will be free from error or authenticated; or (iii) Piwik PRO will take any action in the event of any non-compliance with this Agreement.
Any and all payments for use of the Services, shall be made in U.S. Dollars or Euros, as applicable, to be paid either by major credit or debit card on the 1st day of each calendar month, except that your initial payment shall be made pro-ratably from the date you activate your Services account with Piwik PRO until the end of the current month. Pricing for the Services is based on the number of “Piwik PRO Actions” you wish to be able to commit or use per calendar month, per the Piwik PRO Services pricing table, which is available at: https://cloud.piwik.pro/pricing/. You hereby understand and agree that if you exceed your maximum number of Piwik PRO Actions in any given calendar month, Piwik PRO reserves the right to increase your fees for the use of the Services as per the applicable pricing tier and, in no event, shall Piwik PRO be obligated to reduce pricing, should you use less than your maximum number of Piwik PRO Actions for any given calendar month. Piwik PRO reserves the right to provide any user of the Services with custom pricing on a case by case basis. For purposes of this Agreement, “Piwik PRO Actions” shall mean any use of the Piwik PRO software on a per query, per access, and/or per lookup basis to track data use and/or data activity (for more information on Piwik PRO Actions, please visit: https://cloud.piwik.pro/faq/#piwik-pro-action).
You consent to receive invoices in the electronic form.
- Ownership and Intellectual Property
- “PIWIK PRO”, and “Piwik PRO” are trademarks of Piwik PRO. All information appearing on or through the Services (inclusive of any websites, applications, and other materials associated therewith), including documents, copy, text, images, logos, design elements, graphics, as well as the arrangement and composition thereof, are the sole property of Piwik PRO or its third party licensors. Any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is expressly prohibited without the express written consent of the applicable copyright owner or licensor. Piwik PRO reserves all rights in the Services that are not expressly granted. You acknowledge and affirm that other third party trademarks, names, and logos on this Site are the intellectual property of their respective third party owners. Nothing in this Agreement shall be deemed to assign or transfer to User any rights to any such intellectual property.
- As between you and Piwik PRO, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services solely in accordance with this Agreement. Except as provided in this Section 9.2, you obtain no rights under this Agreement from us or our licensors to the Services, including any related intellectual property rights.
- Piwik PRO will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions or feedback (collectively, “Feedback”) provided to Piwik PRO by you or your affiliates, and their respective employees, representatives, or other agents, with respect to the Services and/or the Support Services. The foregoing grant of rights is made without any duty to account to any of the foregoing persons or entities for the use of such Feedback.
- Compliance with Law
Any use of the Services including but not limited to posting, distributing, or otherwise making available any Subscriber Data must be lawful and you expressly agree to avoid any use that is potentially or actually unlawful, harassing, libelous, abusive, threatening, harmful, bigoted, racially offensive, obscene or otherwise objectionable, or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or judicial ruling. You shall not falsely claim to be or represent any third parties including but not limited to Piwik PRO personnel or another user or member.
You understand and agree that Piwik PRO may, in its sole discretion and at any time, terminate your password, your account, or any Subscriber Data, discontinue any service or limit or restrict any user’s access thereto for any reason in the event it deems you to be in violation of this Agreement. In other case Piwik PRO shall provide you with two (2) months written notice prior termination of the Agreement. In the event the Agreement is terminated: (i) Piwik PRO will cease providing Services; (ii) you will cease use of the Services; and (iii) any outstanding balance payable by you to Piwik PRO will become immediately due and payable and any collection expenses incurred will be included in the amount owed (iv) you revoke right to reproduce, process and publish the Subscriber Data as described in point 3.5. All provisions of the Agreement, which by their nature should survive termination, shall survive termination, including, without limitation, fees and payments, effects of termination, warranty disclaimers, indemnity and limitations of liability. You understand and agree that Piwik PRO shall not have any liability to you or any other person for any termination of your access to any service and/or the removal of information concerning your account. You agree not to use or attempt to use the Services, for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities, or to any person. Improper uses include, but are not limited to:
- The violation of any applicable law or regulation;
- The posting or transmission of materials and/or Content that you do not have the right or authorization to post or transmit;
- The posting or transmission materials and/or content that infringes a third party’s rights;
- Posting or transmitting Subscriber Data that is in Piwik PRO’s sole discretion and judgment is considered unlawful, defamatory, infringing, libelous, slanderous, indecent, improper, offensive, in bad taste, inconsistent or disparaging to Piwik PRO’s, its trade name, and public image;
- Attempting to intercept, collect or store data about third parties without their knowledge or consent, in an unlawful fashion with the intention to cause harm to any such third-party;
- Deleting, tampering with or revising any material posted by any other person or entity;
- Accessing, tampering with or using non-public areas of the Services or any Piwik PRO website or Piwik PRO’s computer systems and network;
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
- Attempting to access or search the Services with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by us or other generally available third party web browsers;
- Sending or attempting to send unsolicited messages, including without limitation, “pyramid schemes”, “spam”, “chain mail”, “junk mail”, or any similar form of solicitation;
- Using or attempting to use the Services to send altered, deceptive or false source-identifying information;
- Attempting to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Services;
- Interfering or attempting to interfere with the access of any user, host or network, including without limitation, sending a “virus” to the Services or any other user, overloading, “flooding,” “spamming,” “crashing,” or “mail bombing” the Services;
- Impersonating or misrepresenting your affiliation with any person or entity; or
- Providing faulty or invalid credit card payment information such that Piwik PRO cannot process payment for any reason.
- Disclaimer of Warranties and Limitation of Liability
ALL SERVICES ARE PROVIDED TO YOU “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS. PIWIK PRO DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, OR THE SERVICES FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PIWIK PRO DOES NOT GUARANTEE THAT ANY PIWIK PRO MATERIALS, INFORMATION, OR SERVICES WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM DOWNLOADING SUCH MATERIAL AND/OR DATA.
PIWIK PRO EXPRESSLY DISCLAIMS ANY AND ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES IN ANY EVENT EVEN IF ADVISED BEFOREHAND OF SUCH DAMAGES AND IN NO EVENT SHALL PIWIK PRO BE LIABLE FOR SUCH DAMAGES RESULTING FROM THE ACTIONS OR CONDUCT OF ANY PIWIK PRO USER.
TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PIWIK PRO’S LIABILITY FOR ANY LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND INCLUDING THAT WHICH MAY BE DUE TO PIWIK PRO’S ACTUAL OR ALLEGED NEGLIGENCE, SHALL NOT EXCEED THE AMOUNT A SUBSCRIBER OR USER PAID FOR THE USE OF THE SERVICES.
ALL USERS WHO ARE CALIFORNIA RESIDENTS, HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES IN RELEVANT PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE ABSOLUTELY NECESSARY FOR PIWIK PRO TO OFFER THE SERVICES AND/OR OPERATE THE SITE, AND ACCORDINGLY SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL BE OF FULL EFFECT AND FORCE, EVEN IF THEY CAUSE ANY USER’S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE.
- Hold Harmless and Indemnification
By using the Services, you agree to defend, indemnify, and hold harmless PIWIK PRO, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (i) your or any End Users’ use of the Services; (ii) breach of this Agreement or violation of applicable law by you or any End User; (iii) any Subscriber Data or the combination of any Subscriber Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by any Subscriber Data or by the use, development, design, production, advertising or marketing of any Subscriber Data; or (iv) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process.
- Governing Law
If there is any dispute arising out of the Services, by using the Services, you expressly agree that any such dispute shall be governed by the laws of the Republic of Poland. Any matter not stipulated in this Agreement shall be governed by the polish Civil Code and the Act of 4 February 1994 on copyright and related rights. Any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after its term, will be brought in the ratione materiae courts in Wrocław, to whose exclusive jurisdiction the parties hereby irrevocably submit. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 14. Piwik PRO’s performance under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement shall abridge Piwik PRO’s rights to comply with any governmental, court and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by Piwik PRO with respect to such use.
If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
- No Partnership
In no event shall your use of the Services create a partnership, joint venture, broker relationship, employee-employer, agency, or franchiser-franchisee relationship. The Site’s relationship with you is that of an independent contractor.
- Entire Agreement
It is hereby acknowledged that this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter.
- No Third Party Beneficiaries
- Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND PIWIK PRO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.