February 22nd, 2021
Article 1. INTRODUCTION
This Master Service 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 term “you”, “your” includes any of your subsidiaries, affiliates and employees. BY ACCEPTING THESE TERMS OR BY USING PIWIK PRO ANALYTICS SUITE IN ANY MANNER YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. You represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. You hereby warrant that you are a corporation or other legal business entity, that such entity is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement.
Article 2. DEFINITIONS
The following terms shall have the following meanings:
|Subscriber Data||shall mean (i) any information concerning users’ actions, entries, or activities on your web page(s) or within your digital product or mobile application; or (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); or (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 has access to Your Instance.|
|Action, Actions; Event, Events||shall mean a request sent to the Instance, including but not limited to: (i) the recording of a tracked activity (such as a page view, download, out-link, or other custom event or goal); or (ii) loading a tag manager container; or (iii) loading a consent manager window; or (iv) uploading a line item; or (v) sending an API request.|
|You; Your; Customer||shall mean any legal entity or affiliated entities, and/or any agency or network acting on Your behalf, which ordered Services, which will also be bound by this Agreement. A person who acts on behalf of the Customer shall be properly authorized to represent the Customer.|
|Fees||means the mutually agreed upon fees that Piwik PRO charges Customers for using the Services.|
|Instance||shall mean an installation of the Piwik PRO Analytics Suite for use in connection with a single database supported by Piwik PRO.|
|Piwik PRO Analytics Suite||shall mean the version of software provided to the Customer.
The software tools include but are not limited to:
Piwik PRO Analytics, Piwik PRO Tag manager, Piwik PRO Audience Manager, Piwik PRO Consent Manager, as well as any other additional bespoke code embedded into the software.
|Services||shall mean all products and services provided by Piwik PRO to the Customer in accordance with this Agreement. Services may be provided for a fee or free, depending on the plan chosen by You.|
|Subscription Period||means, for each Service mutually agreed term commencing on the date set on an invoice for a subscription to that Service and continuing until terminated or renewed per this Agreement.|
|Party, Parties||“Party” shall mean Piwik PRO or the Customer, individually, and “Parties” shall mean Piwik PRO and/or the Customer, collectively.|
|We; Us; Our; Piwik PRO||shall mean Piwik PRO Sp. z o.o. ul. Św. Antoniego 2/4, 50-073 Wrocław, Poland (entered in the Register of Entrepreneurs under KRS number 0000478271, NIP: 8971792634) and/or its subsidiaries and affiliated companies.|
Article 3. SERVICES
3.3. The Piwik PRO Analytics Suite provides several modules that are internally connected and able to process information between each other. The service is used to analyze the use of websites by the Customer’s visitors, manage other marketing tools, personalize content viewed by the visitor, onboard any other data of the Customer and create audiences.
3.4 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 any applicable law ) (iii) you have obtained a sufficient consent for processing the Subscriber Data or have performed an assessment to establish a legitimate interest to process such data.
3.5. 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.
3.6. 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.
3.7. 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”).
3.8. 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.
3.9. You hereby understand and agree that 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 especially as enumerated in section 6, 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.
3.10. 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 any End User, you will immediately terminate such End User’s access to Subscriber Data and the Services.
3.11. To use the Services the Customer must have a device with Internet access and web browser.
3.12. Piwik PRO will use commercially reasonable efforts to make the application available with the monthly uptime percentage (as set forth below) of not less than 99.0%. In case of Services provided free of charge: (i) in the event hosting does not meet the above mentioned level you may report it to us, , (ii) the Customer is not entitled to any compensation. Unless agreed otherwise, in case of paid subscription to the Services the Article 5 shall apply.
Article 4. SERVICE LEVEL AGREEMENT FOR PAID SERVICES
4.1. This Article (4) shall apply for paid subscriptions to Services.
4.2. Piwik PRO will use commercially reasonable efforts to make hosting available with the applicable Monthly Uptime Percentage (as set forth below) during any applicable billing cycle (the “Service Commitment”). In the event hosting does not meet the Service Commitment and in the event you are a paying customer of Piwik PRO you will be eligible to receive a Service Credit as described below.
4.3. Service Credit is calculated as a percentage of the total charges paid by you for the subscription (excluding professional services) for the billing cycle in which the error occurred in accordance with the schedule below.
Monthly Uptime Percentage is less than uptime guarantee from your bill – Service Credit: 25%
We will apply any Service Credit (as such term is defined below) only against future hosting payments otherwise due from you. At our discretion, we may issue the Service Credit for the billing cycle in which the error occurred. Service Credit will not entitle you to any refund or other payment from Piwik PRO. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than five dollars ($5) or five euro (5€). Service Credit may not be transferred or applied to any other account.
4.4. The Service Commitment does not apply to any unavailability, suspension or termination of hosting, or any other hosting performance issues: (i) that result from a termination of your account as described in the Services Agreement; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems; (iii) that result from any actions or inactions of you or any third party; (iv) that result from your equipment, software or other technology and/or any third party equipment, software or other technology (other than third party equipment within our direct control); or (v) arising from our suspension and termination of your right to use hosting in accordance with the Agreement. If availability is impacted by factors other than those used in our calculation of the Average Error Rate (as such term is defined below), then we may issue a Service Credit considering such factors at our discretion.
“Average Error Rate” means an average of: (i) total number of internal server responses divided by (ii) the total number of valid requests for the applicable request type during each five minute periods in the month. The calculation of the number of internal server errors will not include errors that arise directly or indirectly as a result of any of the Exclusions (as set forth above).
A “Service Credit” is a fraction of the monthly service fee, calculated as set forth above, that we may credit back to an eligible hosting account.
Article 5. MONITORING OF YOUR ACTIVITY
5.1. Due to the fact that Piwik PRO wants to continue to improve the Services and provide in-app communication with End Users 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. The data collected shall be limited to End User behavior in the Piwik PRO user interface and related server logs. For the avoidance of doubt, as part of monitoring activity, Piwik PRO shall not monitor or otherwise process the Subscriber Data.
5.2. By using the Services, you specifically agree to Piwik PRO monitoring you in this manner.
5.3. 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.
Article 6. 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.
Article 7. TERMINATION
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 use constitutes the material breach of the Agreement and may result in suspension of the Services or termination of the Agreement, at sole discretion of Piwik PRO. Improper uses include, but are not limited to:
a. The violation of any applicable law or regulation;
b. The posting or transmission materials and/or content that infringes a third party’s rights, including copyright or trademark laws;
c. 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, violent, threatening, harassing, hateful or disparaging to Piwik PRO’s, its trade name, and public image;
d. 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;
e. Deleting, tampering with or revising any material posted by any other person or entity;
f. Accessing, tampering with or using non-public areas of the Services or any Piwik PRO website or Piwik PRO’s computer systems and network;
g. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
h. 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;
i. Sending or attempting to use the Services to send unsolicited messages, including without limitation, “pyramid schemes”, “spam”, “chain mail”, “junk mail”, or any similar form of solicitation;
j. Attempting to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Services or any other services provided by Piwik PRO;
m. Interfering or attempting to interfere with the access of any user, host or network, including without limitation, sending a “virus” to the Services, any other services provided by Piwik PRO or any other user, overloading, “flooding,” “spamming,” “crashing,” or “mail bombing” the Services;
n. Impersonating or misrepresenting your affiliation with any person or entity;
o. Providing faulty or invalid credit card payment information such that Piwik PRO cannot process payment for any reason.
Article 8. SUBSCRIBER DATA RETENTION
Unless specified otherwise, Piwik PRO shall make the Subscriber Data available for 14 months from the date the data has been captured.
Article 9. FREE SERVICES
9.1 Piwik PRO offers a free subscription plan for no fees with a limited feature set, functionality or volume defined by the number of monthly Actions (“Core Plan”). Piwik PRO may modify the Core Plan at any time in its sole discretion or discontinue them entirely with 180 days prior notice to You. Current limits to Core Plan shall be found on the following page: https://piwik.pro/core-plan/. Paid plans’ descriptions shall be available here: https://piwik.pro/pricing/ or by contacting us via email: firstname.lastname@example.org.
9.2 Piwik PRO reserves the right to remove Instance due to more than 180 days of either: End Users inactivity or no collection of Subscriber Data. Piwik PRO will inform you 30 days prior in case you’d like to retain the Service.
9.3 Piwik PRO reserves the right to remove Instance at the end of the following month if you exceed the limits of Core Plan and do not scale down your use or upgrade to paid plan.
9.4 In case you exceed Actions limit more than 10-fold in a month without prior notification, Piwik PRO reserves the right to remove Your instance at its own discretion in order to preserve a high level of Service for other Core Plan customers.
Article 10. FEES
10.1 In case of selection paid subscription to the Services Piwik PRO will charge You for all Fees specified in the invoice and You shall pay any such Fees using the selected and mutually agreed upon payment method.
10.2 The Fees set forth in the invoice are due within fourteen (14) days after the receipt of an invoice, unless otherwise specified.
10.3 You hereby understand and agree that if you exceed your maximum number of Actions in any given calendar month, Piwik PRO reserves the right to increase your fees for the overages.
10.4 Piwik PRO, in its sole discretion and with or without notice, may suspend or terminate any Services if Your payment of any applicable Fees is more than fourteen (14) days past due.
10.5 You consent to receive invoices via electronic mail.
10.6 You are responsible for providing Piwik PRO complete and accurate billing and contact information as well as maintaining such information.
Article 11. WARRANTY DISCLAIMER
11.1 Unless otherwise mutually agreed upon, the Services are provided “as is” and “as available”. Piwik PRO and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Piwik PRO nor its suppliers, licensors, directors, employees, content providers, agents and affiliates, makes any warranty that the Services will be error free or that access thereto will be continuous or uninterrupted, unless otherwise provided for by applicable law. You understand that You use the Services at Your own discretion and risk.
11.2. The Customer may submit reservations related to the Services, their functioning and quality by way of a complaint (“Complaint”). The Customer’s Complaint should be sent to Piwik PRO in writing or by email to email@example.com and should contain: (i) Customer’s data enabling contact with him, including data identifying the person submitting the Complaint; (ii) the Instance web url address the Complaint relates to; (iii) the subject of the Complaint, the period to which the Complaint relates and presentation of the circumstances justifying the Complaint; (iv) the date of making the Complaint and the date of the occurrence of the circumstances justifying the Complaint.
11.3. Piwik PRO will consider the Complaint within 14 days of receipt of a complete Complaint notification, provided that this time may be extended to 30 days in justified cases.
11.4 At all times during the term of the Agreement, Piwik PRO shall hold all licenses, permits, consents, and agreements necessary for the provision of Services.
Article 12. LIMITATION OF LIABILITY
12.1 In no event and under no circumstances shall Piwik PRO, its directors, members, employees agents or other contractors be liable to You for any direct, special, indirect or consequential loss or damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of data, whether in an action in contract, tort (including but not limited to negligence) or otherwise.
12.2 In no event Piwik PRO shall be liable for: (i) permanent or temporary inability to provide the Services or failure to perform or improper performance of the Services due to Force Majeure or any other circumstance for which Piwik PRO is not responsible in accordance with generally applicable law; (ii) any profits lost by the Customer; (iii) consequences of improper use of the Services by the Customer; (iv) consequences of the Customer’s breach of the Agreement; (v) consequences of the use of information authorizing access to the Services by third parties, if these persons came into possession of this information as a result of its disclosure by the Customer or as a result of insufficient protection of information by the Customer against access by such persons.
12.3 Piwik PRO’s liability to You for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by You to Piwik PRO for the Services.
Article 13. INDEMNIFICATION
Each Party shall defend, indemnify, and hold harmless the other Party, its employees, officers, directors, shareholders, subcontractors, agents, successors and permitted assigns from and against any and all liabilities, obligations, damages, deficiencies, costs and expenses, including reasonable attorneys’ fees and the costs to enforce these indemnification provisions arising out of or relating to any third party claims or demands based on any breach by the indemnifying Party of any of its representations, warranties, covenants or obligations contained in the Agreement, or the inaccuracy of any representation of the indemnifying Party contained in the Agreement.
Article 14. MISCELLANEOUS
14.1 In the event that any provision or portion of this Agreement shall be declared invalid or unenforceable for any reason by a court of competent jurisdiction, such provision or portion shall be considered separate and apart from the remainder of this Agreement, which shall remain in full force and effect.
14.2 The Customer hereby grants Piwik PRO a non-exclusive right and license to use Customer’s trade names, trademarks, service marks, trade dress or logos to promote the Services, including the right to publicly identify the Customer as a customer of Piwik PRO.
14.3. The Agreement shall be governed by and construed in accordance with the laws of Poland.
14.4. Any disputes arising from the implementation of these Agreement will be settled on an amicable basis (through mutual negotiations), and in the event of failure to reach an agreement by the court competent for the seat of Piwik PRO.
14.5. All notifications connected with these Agreement shall be made in writing and sent to us by email to the following addresses: firstname.lastname@example.org