This HitChecker Service Agreement (this "Agreement") sets forth the terms and conditions under which Internet Merchants, LLC, d/b/a HitChecker, ("HitChecker", "HitChecker.com", HITCHECKER", "we", "us", "our", and terms of similar meaning), makes available its Web activity data collection, tracking, reporting, and analytics service, as further described in this Agreement (the "Service"). Please read carefully this Agreement carefully. It constitutes a binding legal agreement between you and HitChecker.
YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE "AGREE" BUTTON OR USING THE SERVICE YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE. If you accept or agree to this Agreement on behalf of a company, an employer, a client, or other legal entity, you represent and warrant that you have the legal authority to bind that company, employer, client, or other legal entity to this Agreement and, in such event, "you" and "your" will refer to that company, employer, client, or other legal entity. If not, "you" refers to the individual clicking the button to join HitChecker.com hereon. You are responsible for assuring that all the terms and conditions of this Agreement are complied with.
Description of the Service
The Service collects and tracks certain data and information regarding the characteristics and activities of Website visitors ("Website Visitor Data") for any website where you have installed the software code script provided by HitChecker (the "HitChecker Client Script") and enables users of the Service to view certain analytical information based on Website Visitor Data.
HitChecker Client Script and Service License
Subject to your compliance with the terms and conditions of this Agreement, HitChecker hereby grants you a non-exclusive license, with no right to sublicense, to copy and install the HitChecker Client Script on any website that you own or control or operate on behalf of a third party for the sole purpose of using the Service in connection with such websites.
You will not nor will you allow any third party to (i) alter, adapt, translate, or create any form of derivative works based on the HitChecker Client Script or the Service; (ii) disassemble, reverse engineer, de-compile, or otherwise attempt to discover the underlying strategy, concept, methods, ideas, algorithms, structure, or organization of the HitChecker Client Script or the Service; (iii) sell, assign, rent, lease, distribute, or otherwise transfer rights in the HitChecker Client Script or the Service or offer the Service on a timesharing or hosted service basis; or (iv) use, post, transmit, or introduce any program, code, script, device, software, or routine that interferes or attempts to interfere with the operation of the HitChecker Client Script or the Service.
You agree to comply with all applicable laws and regulations in your access to and use of the HitChecker Client Script and the Service.
In order to use the Service you must register to create an account ("Account") and become a registered user ("Subscriber", "Registered User", or "Customer"). During the registration process, you are required to provide certain information to create an account and establish a login identifier and a password. You agree to provide accurate information during the registration process and to update such information to keep it accurate, current, and complete. HitChecker reserves the right to suspend, terminate, or block your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete.
You are responsible for safeguarding your password. You agree to never disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify HitChecker of any unauthorized use of your Account.
By signing up for HitChecker you agree that HitChecker may contact you using email or other contact information provided in you Account.
Use of Website Visitor Data
You acknowledge and agree that HitChecker may at any time and in its sole discretion use any or all Website Visitor Data generated by the Service internally as needed to troubleshoot issues, improve the Service, internal use, or share Website Visitor Data for marketing purposes.
HitChecker Client Script and Service Ownership
The HitChecker Client Script and the Service are protected by copyright, trademark, and other laws of the United States of America and foreign countries. HitChecker and its licensors exclusively own all right, title, and interest in and to the HitChecker Client Script and the Service, including all associated intellectual property rights. You agree to never alter, remove, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the HitChecker Client Script or the Service.
THE HITCHECKER CLIENT SCRIPT AND THE SERVICE ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, HITCHECKER DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. HITCHECKER MAKES NO WARRANTY THAT THE HITCHECKER CLIENT SCRIPT OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HITCHECKER OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold HitChecker, its officers, directors, employees, agents, clients, customers, partners, subsidiaries, affiliates and representatives harmless from and against any claims, liabilities, losses, damages, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or relating to: (i) your use of or access to the HitChecker Client Script or the Service; (ii) any individual using your login credentials to access and or the HitChecker Client Script or the Service; (iii) your breach of this Agreement; or (iv) your violation of applicable laws, rules or regulations in connection with your use of the Service.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE HITCHECKER CLIENT SCRIPT AND THE SERVICE REMAINS WITH YOU. NEITHER HITCHECKER NOR ANY OTHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, OR LOSS OF GOODWILL), OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE HITCHECKER CLIENT SCRIPT OR THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HITCHECKER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL HITCHECKER'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE HITCHECKER CLIENT SCRIPT OR THE SERVICE EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HITCHECKER AND YOU. SOME JURISDICTIONS PREVENT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, trade names, service marks, logos and any other proprietary designations of HitChecker used herein are trademarks or registered trademarks of HitChecker. Any other trademarks, trade names, service marks, logos and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
This Agreement and any action related thereto will be governed by the laws of the State of Georgia, USA without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the federal or state courts located in Gilmer County, Georgia, USA and each of the parties hereto consents to the personal jurisdiction and venue in such courts.
This Agreement constitutes the entire and exclusive understanding and agreement between HitChecker and you regarding the HitChecker Client Script and the Service, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between HitChecker and you.
You may not assign or transfer this Agreement without HitCheckerâ€™ prior written consent. Any attempt by you to transfer or assign this Agreement, without such consent, will be null and of no effect. HitChecker may transfer or assign this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to this Agreement, will be in writing, made by email to the address that you provide, or by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of HitChecker to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of HitChecker. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
BY USING THIS WEBSITE, OR THE HITCHECKER SCRIPT OR SERVICE, I ACCEPT THESE TERMS AND CONDITIONS AND AGREE TO ALL OF THE PROVISIONS CONTAINED THEREIN.
Termination and Account Cancellation
If you breach any of this Agreement, HitChecker will have the right to suspend or disable your Account or terminate this Agreement, at its sole discretion and without prior notice to you. HitChecker reserves the right to revoke your access to and use of the Service at any time, with or without cause. You may cancel your Account at any time by sending an email to support(at)hitchecker.com. Upon any termination of this Agreement or cancellation of your Account, you will promptly remove the HitChecker Client Script from all Web sites associated with your account and cease any further use of the HitChecker Client Script and the Service. You further agree to destroy all originals and copies of the HitChecker Client Script in your possession or control and so certify in writing to HitChecker.
If you disclose any visitor personally identifiable information to HitChecker, you represent and warrant that you will comply with all applicable laws relating to the collection, use, and disclosure of visitor personally identifiable information. You further acknowledge and agree that your indemnity obligation under the "Indemnity" paragraph above applies to any third party claims relating to your disclosure of any visitor personally identifiable information to HitChecker.