1. Account Registration and Access
To Register for the Analysis Service and create an account, you must complete the registration process by providing Ptengine with the information prompted by the registration form, including your name, e-mail address, telephone, company name, company website and password. You agree to provide us with complete and accurate information when you register for the Analysis Service, and to keep such information up to date.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. If you allow a third party to access the Analysis Service on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify Ptmind immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Analysis Service.
Ptmind may access your account, or information associated with your account to provide support or maintenance for security-related reasons or any other business purpose. Agreeing to these terms and conditions means you consent to such access.
All fees are paid in advance (monthly or annually) and are not refundable. You may evaluate the Service by using the free plan. We use Paypal as the service provider. When using such provider’s services, you agree to follow and comply with the policies of such provider.
3.1 License to Ptmind Software
Subject to the terms and conditions of this Agreement, Ptmind hereby grants you a limited, revocable, non-exclusive, non-transferable and non-assignable license to install, copy and use the tracking code solely as necessary to use the Service for the Website. Subject to the terms and conditions of this Agreement, you may remotely access, view and download your Reports stored at www.Ptengine.com (or such other URL Ptengine may provide from time to time). Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, Documentation and the Reports) is conditions upon your compliance with the terms and conditions of the Agreement, including the following:
. You will not nor will you allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the course code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which you are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the tracking code, the Processing Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit, or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software, Service and Reports solely for your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software, Service and Reports.
. This license will terminate immediately if you fail to comply with the terms of this Agreement. Upon such termination, you must destroy all originals and copies of the tracking code in your possession and so certify in writing to Ptmind within three (3) business days of termination and cease any further use of the Service without the express written consent of Ptmind.
As used in this Section, “Personally Identifiable Information” refers to information that can be used to personally identify an individual, such as name, address and phone number.
4.1 Cookies Used by the Ptengine Script on Visitors to Your Website
The Ptengine Script may store a cookie on computers used by those who visit your website (“Visitors”). This cookie contains a cookie value that allows Ptmind to detect if the Visitor is a returning Visitor or a first-time Visitor. No personally identifiable information relating to the Visitor or details about your website’s content or statistics are stored within the cookie.
4.2 Your Obligations With Respect to Personally Identifiable Information
Your Ptengine account is protected by an e-mail address and password, and should be accessed only by you or authorized third parties. For maximum protection you should protect against unauthorized access to your e-mail address and password and remember to log off when using any shared computer or device.
Ptmind has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuses and unauthorized access, disclosure, alteration and destruction. However, please bear in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to Ptengine, information we compile on your behalf, and/or information that we collect about you. Ptmind cannot guarantee the security of such information and is not responsible for unauthorized access to client accounts.
4.4 Ptmind Limits Access to Your Information
Ptmind will not knowingly permit access to, or otherwise divulge to a third party, the statistical information we compile for you except for the express purpose of generating reports which have been authorized by or approved by you, or unless acting under a good faith believe that such action is necessary to (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of Ptmind; (iii) enforce our agreements with clients and/or Visitors; (iv) troubleshoot problems with the Services; or (v) generate aggregate reports as set forth below.
4.5 Aggregate Reports
Ptmind reserves the right to aggregate certain broad categories of data (such as internet browser usage and screen resolution) across some or all of the websites using Ptengine for the purposes set forth in Section 3 (“License to Client Data”) and/or to compile reports regarding general web usage or trend, which may be provided to third parties. This information will be presented only in aggregate form, and in no event will we compile specific site data that identifies clients or clients’ Visitors without client permission.
4.6 Analysis Services not Available for Websites Directed to Children
You may not use the Analysis Services in connection with any website labeled or described as a “Kid’s” or “Children’s” website or any website directed at individuals under the age of 13.
5. Proprietary Rights; Restrictions on use
5.1 Content on the Website
Any opinions expressed by the contributors, authors and moderators who post content on the Website are the personal opinions of the authors, not of Ptmind, whether or not the authors are employees or contractors of Ptmind. The Website and all materials published and/or distributed on or through the Website (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by Ptmind or any other party.
Except for the limited license expressly granted herein, Ptmind expressly reserves all right, title and interest in and to the Ptengine script, content on the Ptengine website, and all processing, analytics, and other software and technology used by Ptmind in the analysis of your website and/or the provision of the Analysis Service (“Ptengine Technology and Service”), including, without limitation, any derivatives, improvements, enhancements or extensions of the Ptengine Technology and Service conceived, reduced to practice or otherwise developed on or on behalf of Ptmind, all of which are valuable assets to Ptmind, and any copyright, patent or trademark or other intellectual property right, or federal or state right pertaining thereto.
5.3 Restrictions on Use and Compliance
You shall not
i. Use, or allow the use of, the Ptengine Technology and Service, except pursuant to the limited rights expressly granted in this Agreement;
ii. Use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by Ptmind or inconsistent with Ptmind’s standard security procedures, if any, accessible through your user interface;
iii. Attempt to reverse engineer, hack into, or compromise any aspect of the Ptengine Technology or Service, or attempt to access data or account information of any other customer of Ptengine;
iv. Remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Ptmind;
v. Use post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Ptengine Technology and Service;
vi. Use the Ptengine Technology and Service for academic research or research unrelated to your Visitors or the web page(s) registered for use with the Services, or for contemplated litigation, scholarship, or any other unintended purpose;
vii. Post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or program;
viii. Post or transmit any message, data, image or program that would violate any property rights of others using the Services;
ix. Upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents;
x. Use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others.
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including, without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
5.4 Ptmind’s Exclusive Right to Manage Material
You acknowledge that any Material you post, upload, or submit to the Website may be edited, removed, deleted, modified, published, transmitted, and displayed by Ptmind in its sole discretion and without your permission and you waive any rights you have have in having the material altered or changed in a manner not agreeable to you. You expressly agree that we may remove, disable or restrict access to or the availability of any Material from the Website at any time, for any reason or for no reason at all. However, Ptmind shall not be responsible for controlling or editing any Material and Ptmind cannot ensure removal of inappropriate or unlawful Material. Under no circumstances will we be held liable for removing, disabling or restricting access to or the availability of Material or for any failure to do so.
You agree to indemnify, hold harmless and (only if requested by Ptmind) defend Ptengine at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against Ptmind 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) incurred by Ptmind 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 Services, or (iii) your unauthorized use of the Ptengine Script. In such instances, Ptmind will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to Ptmind within 14 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. Ptmind reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
7. Representations and Warranties
You represent and warrant to Ptmind that you (i) own all right, title and interest in and to the URLs of your website; (ii) own or have obtained all rights necessary to publish all of the content published on or through your website and the user interface of your website; and (iii) have obtained all necessary consent(s) from Visitors required to enable the Services.
Ptmind does not represent or warrant that (1) the Services will be error-free or accessible at particular times; (2) defects will be corrected; (3) the Services, or the server(s) that makes it available, are free of viruses or other harmful components; or (4) the use of the result of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable. You specifically agree that Ptmind shall not be responsible for unauthorized access to or alteration of your data.
8. Disclaimers and Limitations on Liability
8.1 General Disclaimers
The information, reports and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Ptmind and/or its respective vendors may make improvements and/or changes in the Services at any time, without obligation to notify any person or entity of such changes.
The Services may contain links to third party websites (“Third Party Websites”). Access to Third Party Websites is at your own risk and Ptmind is not responsible for the accuracy, availability or reliability of any information, goods, data, opinions, advice or statements made available on Third Party Websites that you access from the Services. The Third Party Websites are not under the control of Ptmind and as such, Ptmind is not liable for any damage or loss caused or alleged to be caused by or in connection use of or reliance on any Third Party Website. Ptmind provides these links merely as a convenience and the inclusion of such links does not imply an endorsement or recommendation.
8.2 Disclaimers and Warranties
THE SERVICES, THE Ptengine SCRIPT AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY PTMIND EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE Ptengine SCRIPT, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OR 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. PTMIND DOES NOT WARRANT THAT THE SERVICES, THE Ptengine SCRIPT OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES 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 ANALYSIS SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANT, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
8.3 Limitations on Liability
PTMIND AND ITS OFFICERS, DIRECTORS, AND EMPLOYEES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), 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 PTMIND 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 ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN FULL.
PTMIND’S 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 THE AGGREGATE FEES PAID TO PTMIND FOR USE OF THE SERVICES.
9. Service Failures
Ptmind does not guarantee, and shall have no liability for, any Services downtime, including without limitation, any downtime (i) caused by failures of or previously scheduled maintenance to Ptmind’s equipment or servers; (ii) caused by outages to any public Internet backbone, networks or servers; (iii) caused by any failures of your equipment, systems or local access services; or (iv) relating to events beyond Ptmind’s control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in internet services to an area where Ptmind or your servers are located or co-located.
10. Term and Termination
10.1 In General
Ptmind may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason.
10.2 Termination of Analysis Services
Either party may terminate the Analysis Services at any time and for any reason. To terminate your use of the Analysis Service, please contact us . Requests to cancel by phone are not considered, and do not result in cancellation.
Upon any termination of the Analysis Services (i) Ptmind will cease providing the Analysis Service; (ii) you will delete all copies of the Ptengine Script from your web page(s); (iii) any outstanding balance payable and any collection expenses incurred will be included in the amount owed; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you through Ptengine.
In addition, upon expiration of any Session with respect to a web page, you shall delete all copies of the Ptengine tracking code from such web page. You understand and acknowledge that, unless and until the Ptengine tracking code is deleted from a web page, the Ptengine tracking code may continue to track information on such web page on an automated basis.
11. Modification to Terms and Services and Other Policies
Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (i) by obtaining our written consent in a notarized agreement signed by an officer of Ptmind; or (ii) as set forth below in the immediately following paragraph.
You agree that Ptmind may modify the terms of this Agreement or any policy governing the Services from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by posting a notice on the Ptengine Website for 14 days following any revisions or the first time that you visit the Website following such revisions or modifications. You will be deemed to have agreed to the new terms and conditions if you continue to access the Services after the passage of 14 days from the time the revised terms and conditions are first posted on the Website. We assume no responsibility for your failure to actually receive notice. You are responsible for regularly reviewing the Website for revisions to this Agreement.
12. Miscellaneous; Applicable Law and Venue
Ptmind shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
12.2 Severability and Waiver
This Agreement (including any amendments thereto) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
Ptmind’s acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive Ptmind’s right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Ptmind to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
12.3 Choice of Law and Forum; Agreement to Arbitrate;
This Agreement shall be governed by and construed under the laws of Japan, without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Tokyo, Japan. All parties to arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. You and Ptmind will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules.
In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorney’s fees). However, WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN 1 YEAR AFTER THE DISPUTE ARISES, OR IT WILL BE FOREVER BARRED.
The foregoing provisions of this Section 12.3 will not apply to any (A) legal action taken by you or Ptmind to seek an injunction or other equitable relief, or (B) controversy, allegation or claims relating to your or Ptmind’s actual or alleged intellectual property rights.
Ptmind may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your Ptengine account or by written communication delivered by first class mail to your address on record.
Any notices to Ptmind must be sent to:
• Room202, 5-29-7, Sendagaya, Shibuya-ku, Tokyo, Japan 151-0051
Via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver or any subsequent default.
12.5 Transfer of Rights
You may not assign or otherwise transfer any of your rights hereunder without Ptmind’s prior written consent, and any such attempt is void. The relationship between Ptmind and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.