Last updated on September 19, 2018
Terms of Use
Welcome to Sublytics! We created the Sublytics service to make it easy for businesses to centralize and streamline their data analytics efforts and to help them use this data to automate processes within their business. These Terms of Use set forth here constitute a legally binding agreement between Martingale Media, LLC dba Sublytics ("Sublytics", "we", "us" or "our") and the individual(s), application, service, or business named on the registration page. By registering with us on our website ("Site"), or by using our service in any way - you agree to these Terms of Use and all other operating rules, policies and procedures that will be published from time to time on the Site. The Site and Sublytics services will be referred collectively as the "Service".
Sublytics Services
The Service collects end-user-authorized data from shopping cart platforms (such as Shopify™) billing management platforms (such as ReCharge™), credit card processing accounts (such as Stripe™), customer service help desks (such as Zendesk™), cookie and website tracking (such as Google Analytics™), fulfillment and shipping information (Such as ShipStation™) and other data repositories to generate reporting and automation capabilities within our application. We attempt to structure, normalize, and cleanse the data we return to the end-user into a concise and highly functional format.
Our Services are accessible using the Sublytics online portal and related tools made available on this site. Sublytics makes no warranty for use of these Services, which are provided "as-is" (see our Section ‘Disclaimers’). You assume all risk for use of these Services, as we cannot guarantee data quality, uptime, or other relative metrics. Our Service is built to help you understand your customers, their behavior, trends, profitability, and other relevant information and it is your responsibility to obtain your customer’s consent in compliance with the applicable legal requirements and rules. Further, the use of our Services for anything other than what is named in these Terms of Use or our Privacy Policy is prohibited.
Registration
The Service is made available under these Terms of Use to individuals or businesses. To sign up for the Service, you must create an account ("Account") by registering using our registration page or our License Agreement and providing basic information including your name, company name, location, email address, company/site URL, and phone number. You must provide accurate and complete information and keep your Account information updated. It is your responsibility to maintain access to your Account; you may never share your account information with an unauthorized third party or allow any other application or service to act as you without authorization.
If You use the Service on behalf of a third party or a third party, you represent and warrant that (a) you are authorized to act on behalf of, and bind to this Agreement, the third party to all obligations that you have under this Terms of Use, (b) You will not share any information outside of the third party without the third party’s consent.
By accepting these Terms of Use, you confirm that you, your business, your employees, any third party that you’re representing, and any others relating to you adhere to all local laws and regulations, especially those pertaining to personally identifiable data collected by you and provided to us.
Customer Service
We will provide customer service to help resolve any issues relating to your Account, our Services, and the other use of our software. Customer service may include direct access and communication with an employee(s) of Sublytics or access to a website describing use and functionalities of the Services. The extent and nature of such customer service may be determined by Sublytics in its sole and absolute discretion.
General Services Content
You agree that the Service contains information and other content specifically provided by Sublytics or its partners and that such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. For clarity, this section does not apply to your customer data. Except as expressly authorized by Sublytics in writing, you shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such content. However, Sublytics hereby grants you a limited, revocable, non-exclusive and non-sublicensable license to use such content; provided, that you retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any such content, including any materials or design elements on the Service, for any other purpose is strictly prohibited without the express prior written permission of Sublytics.
Security Obligations
We cannot guarantee the security of our users' applications. We reserve the right to terminate a user without notice if we suspect that they are at risk of a security breach. While we cannot ensure that our users follow all the necessary security protocols, we strongly recommend that you adhere to the following minimum security protocols:
- Use of PCI compliant servers
- Encryption when communicating or storing access credentials to our Service.
It is your responsibility to maintain the security of your Account information, including your login username and password. You must notify us immediately of any breach of security or unauthorized use of your Account. You may never publish, distribute or share your login username or password.
In the event of a security breach that may affect you or anyone on your Service, we’ll notify you of the breach once we have determined, in our discretion, that it occurred and will provide a description of what happened and notify you, and that you’ll promptly notify your affected customers.
Representations and Warranties
You represent and warrant that you either own or have permission to use all of the material, content, data, and information (including your personal information and the personal information of others) you submit to Sublytics in the course of using the Service. You retain ownership of the information that you upload to the Service. We may use or disclose your information (including any personal information therein) only as described in these Terms of Use and our Privacy Policy.
Prohibited Uses
You are responsible for all of your and any third-party representatives' activity in connection with the Service. You shall not (and shall not permit any other party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other rights of any other person or entity or violate any law or contractual duty;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
- impersonates any person or entity, including any of our employees or representatives; or
- includes anyone's identification documents or sensitive financial information.
The Service may only be used by you to interact directly with us. You will not resell or otherwise distribute the Service. In accepting these Terms of Use, you agree to use the Service for the purposes for which it is provided by us and not for competitive evaluation, spying, copying, or other nefarious purposes.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws, and regulations.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third-party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run any form of auto-responder or "spam" on the Service; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site; (vi) harvest or scrape any content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
Suspicion
We reserve the right to withhold our Services in their entirety or in part where we believe they are being used in violation of these Terms of Use, any other Sublytics agreement, or pose a risk to the end-user, their Customers, or Sublytics itself. Under the terms of these Terms of Use, you are granting us authorization to share information with law enforcement about you, your transactions, your Sublytics Account, or your Customers if we reasonably suspect that your use of the Service has been for an unauthorized, illegal, or criminal purpose.
Privacy and Customer Data
For our privacy policies, please see our Privacy Policy. You agree that you have clearly communicated to your Customers:
A clear and conspicuous link to your privacy policy. Such a link must include a clear and conspicuous statement that each Customer acknowledges and agrees that information will be treated in accordance with such policy. You will ensure that each Customer is put on notice of, and agrees to, such policy prior to engaging with our Service. In addition, your privacy policy must include an express authorization by the Customer expressly granting Sublytics the right, power and authority to (acting on behalf of such end-user) access and use their End User Data as reasonably necessary for Sublytics to provide the Service to you. All of the foregoing must be done in a form and manner that is acceptable to Sublytics. You will immediately make any changes requested by us. You agree that compliance of this section is to be enforced by you and that we are not required to audit to ensure your compliance herein.
Payments and Billing
Certain aspects of the Service may be subject to payments now or in the future (the "Paid Services"). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms of Use.
We may use a third-party payment processor to bill you through a payment account linked to your Account on Sublytics (your "Billing Account") for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the payment processor in addition to these Terms of Use. We are not responsible for error by the payment processor. By choosing to use Paid Services, you agree to pay us, through the payment processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the payment processor, to charge your payment provider (your "Payment Method"). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or another provider of your Payment Method. If we, through the payment processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Some of the Paid Services may consist of recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. We may submit periodic charges (e.g., monthly) without further authorization from you until you provide notice (a receipt of which is confirmed by us) that you have terminated this authorization or wish to change your Payment Method. Such notice will not affect charges submitted before we reasonably could act.
You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your billing address current, complete and accurate, and must promptly notify us or your payment processor if your Payment Method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security. If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of Paid Services under your Billing Account unless you have terminated your Paid Services as set forth above.
If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. You may request this notice by contacting billing@sublytics.com. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. You agree to receipt of this notice and authorize all payments outlined in our Paid Services Schedule, service orders or site materials.
We reserve the right to update pricing for our Paid Services or introduce new Paid Services. If a change to our Paid Service occurs, we will: 1) Provide 30 days notice of the pricing change, allowing you to opt-out of the new price and terminate the Service; 2) Provide no notice and keep your current Paid Services rate by not applying the new pricing schedule (“Legacy Pricing”). Sublytics at its sole discretion will determine the method used.
We may offer promotional periods (“Free Trial Period”) to grant access to our Paid Services without requiring payment as outlined in our Paid Services schedule. The trial period length is determined by Sublytics at its sole discretion. At any time during the trial period, Sublytics may terminate the account access and terminate our relationship. A trial period is not a guarantee of Service length and is offered only as a promotional, sales or marketing tool. After the trial period, you will be required to provide payment information. If a Payment Method is on file, you authorize us to use this Payment Method to charge for any Paid Services not discontinued after the promotional period as outlined in our Paid Services Schedule.
Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
Non-Disclosure of Confidential Information
"Confidential Information" means any information disclosed by either party or its Representatives (as defined below) to the other party or its Representatives, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment). Confidential Information shall include without limitation technical data, trade secrets and know-how, including, but not limited to, research, product plans, products, services, suppliers, customer lists and customers, prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information, and the fact that the parties have entered into this agreement and are having any discussions with respect to a business relationship. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party or its Representatives; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party or its Representatives from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession. The term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, managers, members, officers, partners, employees, agents, representatives, advisors, controlling persons, consultants. As used in this Agreement, the term “person” shall be interpreted broadly to include, without limitation, any corporation, limited liability company, partnership, other business entity or individual.
Non-use and Non-disclosure. Each party, on behalf of itself and its Representatives, agrees not to use any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship or in the course of an existing business relationship between the parties. Each party, on behalf of itself and its Representatives, agrees not to disclose any Confidential Information of the other party to third parties or to such party's Representatives, except such Representatives who receive the information with the disclosing party’s approval (which approval shall not be unreasonably withheld) in order to assist the receiving party in evaluating or engaging in discussions concerning the contemplated business relationship. Each party shall be responsible for any breach of this Agreement by its Representatives. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Either party may disclose Confidential Information of the other if required by law or by the court or governmental order or process; provided that, to the extent legally permitted, such party must first give the disclosing party prompt written notice of such requirement to permit the disclosing party to seek a protective order or other appropriate relief. In the event that such protective order or other remedy is not obtained, the receiving party or its Representatives shall disclose only that portion of the Confidential Information which the receiving party’s or it's Representative’s counsel advises is legally required to be disclosed.
Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its Representatives who have access to Confidential Information of the other party have signed a non- use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any disclosure of Confidential Information to such Representatives. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
Ownership of Work
ALL WORK PRODUCT IS THE PROPERTY OF SUBLYTICS, INCLUDING CUSTOM REQUESTS SUBMITTED BY YOU, AND IS INCORPORATED INTO THE PROPRIETARY PROPERTY WITH ALL RIGHTS BEING ASSIGNED TO SUBLYTICS. YOU ACKNOWLEDGE THAT ALL IDEAS, WORK PRODUCT, CUSTOM REQUESTS, FEATURE IMPROVEMENTS, PRODUCT RECOMMENDATIONS, OR ANY COMMUNICATION TO SUBLYTICS THAT RESULTS IN THE CONTINUED DEVELOPMENT OF A CURRENT PRODUCT OR SERVICE, OR THE DEVELOPMENT OF NEW PRODUCTS OR SERVICES, IS THE SOLE PROPERTY OF SUBLYTICS AND YOU WAIVE ANY RIGHT, INCLUDING THE RIGHT TO ARBITRATION, TO SEEK OWNERSHIP, ROYALTIES OR OTHER MONETARY OR NON-MONETARY CONSIDERATIONS.
Indemnification
You shall defend, indemnify, and hold harmless Sublytics, our affiliates and each of our and their respective employees, contractors, directors, suppliers, and representatives from all damages, losses, liabilities, claims, and costs and expenses, including all attorneys' fees, that arise from or relate to: (i) your use or misuse of, or access to, the Service, (ii) your violation of these Terms of Use, (iii) any content, information or materials provided by you or any or your Customers, (iv) disputes or issues your Customers may have with respect to you or any of your products or services or content, or use of our Service (v) disputes or issues your Customers may have with respect to any End User Data (including, without limitation, with respect to the timeliness, accuracy or completeness thereof), or (vi) infringement by you, or any third party using your account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
References
You agree that, during the time you are a registered Service user, we may identify you as a customer of Sublytics using information including your company, product logo, name and/or other identifying information (including, without limitation, on the Site and in promotional materials).
Termination
We may terminate or suspend your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate your Account, you may do so by contacting billing@sublytics.com. Any fees paid hereunder are non-refundable. All provisions of these Terms of Use, which shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
In the event of termination, Sublytics will terminate access to its Services and provide a 15-day grace period of limited access to be used solely for migrating off the Service. Unless requested in writing prior to the grace period end date, at the end of this grace period all information associated with you will be removed indefinitely and all Services will end.
Limitation on Liability
IN NO EVENT SHALL SUBLYTICS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE APPLICATION: (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100.00 (U.S.) (PROVIDED THAT, IF YOU ARE A PAYING USER OF THE SERVICE, SUCH AMOUNT SHALL BE CAPPED AT THE AMOUNTS PAID BY YOU TO SUBLYTICS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUED). THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Disclaimers
THE SERVICE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SUBLYTICS MAKES NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET USER'S REQUIREMENTS. IN ADDITION, SUBLYTICS MAKES NO WARRANTY THAT ANY END USER DATA WILL BE TIMELY, ACCURATE OR COMPLETE. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Modification
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Use, or change, suspend, or discontinue an aspect of the Service at any time by posting a notice on the Site or by sending you notice through the Service, via e-mail, as an account notification, or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Use periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Use constitutes acceptance of those changes.
Miscellaneous
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Sublytics shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Sublytics’ reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of these Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect and enforceable. These Terms of Use are not assignable, transferable or sublicensable by you except with our prior written consent. Sublytics may transfer, assign or delegate these Terms of Use and its rights and obligations without consent. These Terms of Use shall be governed by and construed in accordance with the laws of the state of Colorado as if made within Colorado between two residents thereof, and the parties submit to the exclusive jurisdiction and venue of the state and Federal courts located in Denver, Colorado. Notwithstanding the foregoing sentence, (but without limiting either party's right to seek injunctive or other equitable relief immediately, at any time, in any court of competent jurisdiction), any disputes arising with respect to these Terms of Use shall be settled by arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. ("JAMS"). The arbitrator shall be selected by the joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in Denver, Colorado using the English language. Both parties agree that these Terms of Use are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms of Use, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms of Use and you do not have any authority of any kind to bind Sublytics in any respect whatsoever.