FLURRY ANALYTICS TERMS OF SERVICE

Acceptance of Terms


Flurry welcomes you. By checking the "Terms and Conditions" box, or registering for Flurry's Analytics Service (as defined below), you agree that you have read, understand, and accept the terms and conditions described below (the "Terms of Service") and you agree to be bound by these Terms of Service and all terms, policies and guidelines incorporated in the Terms of Service by reference (this "Agreement"). If you do not agree to this Agreement, you should not use the Analytics Service in any way. The Analytics Service is offered to you conditioned on your acceptance without modification of this Agreement, including without limitation, Flurry’s right to use all data collected and analyzed by the Analytics Service.

Modification of Agreement

Flurry reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at http://www.flurry.com (or such other URL that Flurry may provide from time to time). Your continued use of any part of the Analytics Service following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.

Description and Use of the Analytics Service

The “Analytics Service” means, collectively, the “Software”, the “Reports” and the “Documentation”, all as defined below in this Agreement. Under this Agreement, Flurry may allow you to access the Analytics Service by using Flurry’s analytics site code and any fixes, updates and upgrades provided to you (the “Agent”), provided that you have an active Flurry account. In addition, Flurry may provide you with on-line access to a variety of analytics reports (the “Reports”) generated by Flurry’s processing code and any fixes, updates and upgrades. The Agent and Flurry’s processing code are defined collectively herein as “Software”. The processing code analyzes the data collected by the Agent. This data concerns the characteristics and activities of end users of your applications (“User Data”).

Fees and Payment

The Analytics Service is provided to you free of charge. Flurry may change its fees and payment policies for the Analytics Service from time to time. The changes will be posted at http://www.flurry.com (or such other URL that Flurry may provide from time to time). You may elect to stop using the Analytics Service rather than incurring fees.

Incidental Costs Associated with Use of the Analytics Service

You agree that you are solely liable for all costs, fees, and other expenses resulting from your use of the Analytics Service. This specifically includes, but is not limited to, incidental costs incurred by you in connection with your use of the Analytics Service, including, but not limited to, costs owed to your cell phone carrier or mobile provider, monthly cell phone coverage fees, data plan costs, and any other additional fees incurred from your cell phone carrier or mobile provider.

Registration

To register for the Analytics Service, you must complete the registration process at http://www.flurry.com (or such other URL that Flurry may provide from time to time) by providing Flurry with current, complete and accurate information. Upon registration for the Flurry Services, you will be required to provide Flurry with your email password and user name. You understand that you are solely responsible for maintaining the confidentiality of your password and that you shall be solely and fully responsible for all activities that occur under your username and password. Flurry shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any password. You agree to immediately notify Flurry of any unauthorized use of your password or username or any other breach of security. If a password is lost or stolen, it is the user's responsibility to change the password, and immediately notify Flurry, so that your account remains both secure and functional.

Reports

Subject to the terms and conditions of this Agreement, you may remotely access, view and download the Reports, which will be stored at http://www.flurry.com (or such other URL that Flurry may provide from time to time).

Limited License

You are hereby granted a nonexclusive, limited, non-transferable, revocable and non-sublicensable license to install, use, and copy the Agent solely as necessary to use the Analytics Service for applications that you own and control. Your use of the Software and accompanying documentation (“Documentation”) is subject to this Agreement and does not include: (a) any resale, lease, rental, assignment or other transfer of rights of the Software or Documentation; (b) the distribution, public performance or public display of the Software or Documentation, (c) modification, revision, creation of derivative works from or otherwise making any derivative uses of the Software or Documentation or any information or content therein; (d) decompilation, reverse engineering or otherwise attempting to derive the source code for the Software (except to the extent applicable laws specifically prohibit restriction of such activities); or (e) any use of the Software or Documentation other than for its intended purpose. Flurry hereby reserves all rights not expressly granted herein.

Any use of the Software or Documentation other than as specifically authorized herein, without the prior written permission of Flurry, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark and other intellectual property laws.

Privacy and Information Collection

As a condition of your access to the Analytics Service, you agree that Flurry has the right, for any purpose, to retain, use, and publish in an aggregate manner, subject to the terms of its Privacy Policy located at http://www.flurry.com/legal/privacy.do (or such other URL that Flurry may provide from time to time), information collected in your use of the Analytics Service, including without limitation, User Data. Flurry will not disclose to any third parties any User Data collected by the Analytics Service from your applications in a manner that contains or reveals any personally identifiable information or is specifically attributable to you, your applications or your customers. You will not (and will not allow any third party to) use the Analytics Service to track or collect personally identifiable information of end users, nor will you (or will you allow any third party to) associate any data gathered from your application(s) with any personally identifying information from any source as part of your use (or such third parties' use) of the Analytics Service. You agree that you have and will abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from end users of your applications. You must post a privacy policy and that policy must provide notice of your use of a tracking pixel, agent or any other visitor identification technology that collects anonymous data about end users of your applications.

Indemnity


You agree to indemnify, defend and hold harmless Flurry, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys' fees) arising from (i) any content that you or anyone using your account may submit or access in the course of using the Analytics Service; (ii) your use of, or inability to use, the Analytics Service; (iii) your violation of the terms of this Agreement; and (iv) any violation or failure by you to comply with all laws and regulations in connection with your use of the Analytics Service, whether or not described herein.

Third Parties

If you use the Analytics Service on behalf of any third party, you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, that third party. You shall ensure that each third party is bound by and abides by the terms of this Agreement. You agree to indemnify, hold harmless and defend Flurry and its parents, subsidiaries, affiliates, officers and employees, at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Flurry, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Analytics Service; (b) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Analytics Service; (c) violations of your obligations of privacy to any third party; and (d) any claims with respect to acts or omissions of third parties in connection with the Analytics Service.

Disclaimer of Warranties and Limitation of Liability

The information and services included in or available through the Analytics Service, including the Reports, may include inaccuracies or typographical errors. Flurry may make improvements and/or changes in the Analytics Service at any time, with or without notice. You specifically agree that Flurry shall not be responsible for unauthorized access to or alteration of the User Data or data from your applications.

FLURRY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ANALYTICS SERVICE IS PROVIDED "AS-IS" AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, FLURRY DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE ANALYTICS SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE ANALYTICS SERVICE WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

IN NO EVENT SHALL FLURRY, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE ANALYTICS SERVICE, THE SOFTWARE OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE SOFTWARE OR ANALYTICS SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE OR THE ANALYTICS SERVICE, EVEN IF FLURRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. . 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.

IN NO EVENT SHALL THE TOTAL LIABILITY OF FLURRY OR ANY OF THE ABOVE-REFERENCED PERSONS OR ENTITIES, UNDER ANY THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100).

Modifications to and Termination of the Analytics Service

Flurry reserves the right to discontinue offering the Analytics Service or to modify the Analytics Service at any time in its sole discretion. If you are dissatisfied with any aspect of the Analytics Service at any time, your sole and exclusive remedy is to cease using it. Notwithstanding anything contained in this Agreement to the contrary, Flurry may also, in its sole discretion, terminate or suspend your access to the Analytics Service at any time. Upon any termination of this Agreement, Flurry will cease providing the Analytics Service, and you will delete all copies of Flurry’s analytics site code from your applications and certify thereto in writing to Flurry within three (3) business days of such termination.

Waiver and Severability

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Flurry's acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive Flurry's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Flurry to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

Choice of Law and Forum

This Agreement and the relationship between you and Flurry shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. You and Flurry hereby agree to submit, exclusively, to the personal jurisdiction of the state courts with jurisdiction over San Francisco, California and/ or the U.S. District Court for the Northern District of California.

Entire Agreement

This Agreement constitutes the entire agreement between you and Flurry and governs your use of the Analytics Service, superseding any prior agreements between you and Flurry with respect to the Analytics Service.


Survival

The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the Parties hereunder, including but not limited to the provisions relating to Indemnity, Disclaimer of Warranties and Limitation of Liability, shall so survive the completion of the performance, cancellation or termination of this Agreement.