Updated July 1, 2022
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF:
- Service Provided “As Is” and limitations of liability;
- Term and Termination;
- User obligations; and
These terms and conditions along with any other terms or policies referenced herein (which terms or policies shall be deemed to be incorporated by reference and form an integral part hereof), as amended from time to time (the “Terms”) constitute a legally binding agreement as of the Effective Date (as defined below) governing the User’s access to and use of the Services and ChartMogul.
These Terms are between the Owner and you, either individually, or if you are acting on behalf of your employer or any other organisation or entity (an “Employer/Entity”), that Employer/Entity (the “User”, “you”, your”). If an individual represents their Employer/Entity, such individual warrants, represents and undertakes that: (i) such individual has full legal authority to bind his or her Employer/Entity (as applicable) to these Terms; (ii) they have read and understand these Terms and agree to them on behalf of their Employer/Entity (as applicable); and (iii) that these Terms shall bind their Employer/Entity (as applicable). Without prejudice to the warranties, representations and undertakings set out above, an Employer/Entity shall be deemed to have represented that an individual is an authorised representatives of the Employer/Entity (as applicable) if they are:
- using their Employer/Entity email address when registering as a User;
- use their Employer/Entity details when adding billing details; or
- load User Data which contains invoices issued by their Employer/Entity.
The User shall ensure that any persons that use the Services under the User’s account (whether authorised by the User to do so or otherwise and whether or not they are from the User’s organisation) (the “Account Users”) do so in accordance with the Terms and shall be responsible for any acts or omissions of such persons which would be in breach of the Terms as if they were the acts or omissions of the User. The User acknowledges that any action taken of the User’s account, is deemed by the Owner as an authorised action by the User, hence the User shall have no claim in this regard.
If you do not agree to comply with, and be bound by the Terms or if the person purporting to bind the User to the Terms does not have authority to bind the User, please do not access ChartMogul or use the Services.
Owner of ChartMogul and related Services
ChartMogul CMTDE GmbH & Co. KG (Germany) (the “Owner”), 1-888-919-6255, email@example.com
Information about ChartMogul
https://chartmogul.com/ (“ChartMogul”) is an analytics and revenue reporting platform which allows Users to track the financial performance of their subscription business.
Content provided by the User
Users are responsible for their own data and content, and that of third parties that they share through ChartMogul, that they upload and post on or through ChartMogul, or that they transfer by any other means (“User Data”). Users warrant and represent that they have the lawful basis for third parties whose data and/or content they input or import in the course of their use of the Services or otherwise share with the Owner.
Users own their User Data, and these Terms don’t give the Owner rights to User Data except for the limited rights that enable the Owner to offer and provide the Service or as otherwise expressly authorized by these Terms.
The Owner does not moderate the content provided by Users or by third parties but will act if complaints are received from Users or if orders are issued by the public authorities regarding content deemed offensive or illegal. The Owner reserves the right, without liability or prejudice to its other rights to the User, to disable the User’s access if the Owner becomes aware of any use of any material that breaches the provisions of this clause.
THE USER GRANTS THE OWNER SUFFICIENT RIGHTS TO USE THE USER DATA IN ORDER TO PROVIDE THE SERVICES TO THE USER. THE USER OWNS ALL RIGHT, TITLE AND INTEREST IN AND TO THE USER DATA AND SHALL HAVE SOLE RESPONSIBILITY FOR THE LEGALITY, RELIABILITY, INTEGRITY, ACCURACY AND QUALITY OF THE USER DATA.
THE USER FURTHER UNDERTAKES THAT IT SHALL:
- PROVIDE THE OWNER WITH:
- ALL NECESSARY CO-OPERATION AND ASSISTANCE IN RELATION TO THE SERVICES; AND
- ALL NECESSARY ACCESS TO SUCH INFORMATION AS MAY BE REQUIRED BY THE OWNER, IN ORDER TO PROVIDE THE SERVICES, INCLUDING BUT NOT LIMITED TO CUSTOMER DATA, SECURITY ACCESS INFORMATION AND CONFIGURATION SERVICES;
- OBTAIN AND SHALL MAINTAIN ALL NECESSARY LICENCES, CONSENTS, LAWFUL BASES, AND PERMISSIONS NECESSARY FOR THE OWNER, ITS CONTRACTORS AND AGENTS TO PERFORM THEIR OBLIGATIONS UNDER THE TERMS, INCLUDING WITHOUT LIMITATION THE SERVICES; AND
- KEEP A FULL BACK-UP COPY OF ALL OF ITS DATA, INCLUDING BUT NOT LIMITED TO USER DATA.
Services provided by third parties
Users may use third party services, destinations, integrations, or content supported by or included in ChartMogul or the Service (“Third Party Services”), but the User does so solely at their own risk and must be aware of these third parties’ terms and conditions and have given consent to them. The User is solely responsible for complying with any relevant third party terms and conditions and maintaining any third party account(s) in good-standing. Under no circumstances will the Owner be deemed liable or have any obligations whatsoever in relation to the content, proper functionality, availability or the security of any link with any third party services or any transactions completed, and any contract entered into by the User, with any such third party. In order for the Service to communicate with Third Party Services, the User may be required to input credentials. By enabling use of ChartMogul or the Service with any Third Party Services, the User authorizes the Owner to access User accounts with such third parties. The Owner does not guarantee that the Service will maintain Third Party Services, and it may disable any such Third Party Services at any time with or without notice to the User. These Terms govern User’s access to and use of the Service, even if accessed via Third Party Services.
After registering on ChartMogul, subject to the restrictions set out in these Terms, Users can import User Data stored in third-party services of their choice supported by ChartMogul into the application. Users may also import User Data into the application by uploading it via ChartMogul’s APIs or simply by manually adding it into the application user interface.
After registration, the User’s right to use the Service and ChartMogul shall be subject to the restrictions set out in these Terms and ChartMogul grants the User a non-exclusive, non-transferable right to use the relevant Services and ChartMogul solely for the User’s internal business purposes of i) in the case of a Trial, the duration of such Trial, or ii) in the case of a Subscription, the duration of such Subscription.
The Owner shall be entitled to make changes to the Services and significant changes shall be notified to the User.
Subscriptions start from the Subscription Date, when Users choose a Subscription on ChartMogul. Billing periods for paid Subscriptions start on the date the User chooses a paid Subscription or modifies another existing payment plan to fall within a different Subscription threshold.
Details of the subscription types, billing periods, the features of each subscription type and the fees payable in respect of each subscription type (the “Subscription Fees”) are available on the ChartMogul pricing page https://chartmogul.com/pricing/ (the “Pricing Page”).
The Owner may also, at its discretion, offer the User access to the Services on a trial basis (“Trial”), during which time the User will be able to experience, free of charge and for a limited period of time, some of the features of the Services offered on ChartMogul. The Owner reserves the right to modify, terminate and/or limit this Trial at any time and without liability or explanation to the User. On termination of the Trial, the User’s right to receive the Services shall cease automatically and the User agrees that it shall make no further use of the Services and/or ChartMogul, unless it thereafter orders and the Owner agrees to provide it with, a Subscription.
The User shall pay the Subscription Fees to the Owner for the Services. Payment of the Subscription Fees is to be made in advance at the commencement of each billing period and by way of deduction from a credit card unless otherwise agreed in a service order, in which case, User is to pay in accordance with the payment terms set out in the service order. The User shall provide the Owner with its valid, up-to-date and complete credit card details through the ChartMogul billing system and the User hereby authorises the Owner to bill such credit card.
The Subscription must be renewed at each billing period to maintain the benefits provided by the Services.
Migration between Subscription types
At any time, the Owner may audit the User’s use of the Services, and depending on the average MRR tracked through the Services in the most recent billing period and/or current MRR which the User is tracking on or about the time of audit, the Owner may move the User to a different subscription type which is more consistent with the User’s usage of the Services either immediately, in which case a pro-rated charge may be applied, or for the next billing period and the User shall thereafter pay the Subscription Fees payable in respect of the subscription type to which it has been moved.
The MRR tracked by a User through the Services at any given time is the sum of the MRR of all active customer subscriptions tracked by the User through the Services at that time.
The settings a User choses when using the Services may affect the MRR of a Subscription (for example, including or excluding taxes, processing fees, and changing how cancellations and refunds are treated).
Users can contact the Owner sales team at any time through the Pricing Page.
Term and termination
ALL PAID SUBSCRIPTIONS SHALL, UNLESS OTHERWISE AGREED BETWEEN THE OWNER AND THE USER IN A SERVICE ORDER, BE RECURRING SUBSCRIPTIONS WHICH RENEW AUTOMATICALLY AT THE END OF EACH BILLING PERIOD THROUGH THE SAME PAYMENT METHOD THAT THE USER CHOSES ON THE SUBSCRIPTION DATE. THE RENEWED SUBSCRIPTION WILL LAST FOR THE SAME PERIOD OF TIME AS THE ORIGINAL BILLING PERIOD (FOR THE AVOIDANCE OF DOUBT, IF THE ORIGINAL BILLING PERIOD IS ONE CALENDAR MONTH, EACH RENEWAL PERIOD SHALL BE ONE CALENDAR MONTH).
EITHER PARTY MAY CANCEL A SUBSCRIPTION WITH EFFECT FROM THE END OF THE THEN CURRENT BILLING PERIOD BY NOTICE IN WRITING TO THE OTHER PARTY, IN WHICH CASE THE SUBSCRIPTION WILL NOT RENEW AT THE END OF THAT BILLING PERIOD. CANCELLATION REQUESTS MAY TAKE UP TO 5 DAYS TO PROCESS.
IF THE SUBSCRIPTION IS NOT A PAID SUBSCRIPTION, THE OWNER MAY TERMINATE THE SUBSCRIPTION AT ANY TIME.
IF ANY OF THE FOLLOWING EVENTS OCCUR, THE OWNER SHALL HAVE THE RIGHT TO SUSPEND OR TERMINATE THE USER’S SUBSCRIPTION WITHOUT NOTICE:
- A BREACH OF ANY OF THE TERMS BY THE USER OR ANY OF THE ACCOUNT USERS;
- THE USER IS, OR IS DEEMED FOR THE PURPOSES OF ANY RELEVANT LAW TO BE, UNABLE TO PAY ITS DEBTS AS THEY FALL DUE OR TO BE INSOLVENT;
- ANY STEP (INCLUDING THE MAKING OF ANY PROPOSAL, THE CONVENING OF ANY MEETING, THE PASSING OF ANY RESOLUTION, THE PRESENTING OF ANY PETITION OR THE MAKING OF ANY ORDER) IS TAKEN WITH A VIEW TO A COMPOSITION, ASSIGNMENT OR ARRANGEMENT WITH ANY CREDITORS OF, OR THE WINDING UP, LIQUIDATION OR DISSOLUTION OF, THE USER; OR ANY LIQUIDATOR, PROVISIONAL LIQUIDATOR, RECEIVER OR EXAMINER IS APPOINTED TO OR IN RESPECT OF THE USER OR ANY OF ITS ASSETS OR ANYTHING ANALOGOUS TO ANY OF THE FOREGOING UNDER THE LAW OF ANY JURISDICTION OCCURS IN RELATION TO THE USER.
THE OWNER SHALL HAVE THE RIGHT, WITHOUT PREJUDICE TO ANY OTHER RIGHTS OR REMEDIES TO WHICH IT MAY BE ENTITLED, TO TERMINATE THE SUBSCRIPTION IMMEDIATELY UPON WRITTEN NOTICE TO THE USER WHERE THE USER DISPUTES THE OWNERSHIP OR VALIDITY OF THE OWNER’S INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SERVICES, SOFTWARE AND/OR CHARTMOGUL.
ON TERMINATION OF THE SUBSCRIPTION, THE USER’S RIGHT TO RECEIVE THE SERVICES SHALL CEASE AUTOMATICALLY AND NO REFUNDS (WHETHER PRO RATA OR OTHERWISE) OF ANY AMOUNT WILL BE PAYABLE TO THE USER AND THE USER AGREES THAT IT SHALL MAKE NO FURTHER USE OF THE SERVICES AND/OR CHARTMOGUL.
ON TERMINATION OF THE SUBSCRIPTION FOR ANY REASON ALL AMOUNTS DUE FROM THE USER UNDER THE TERMS SHALL BE PAYABLE IMMEDIATELY BY THE USER.
THE PROVISIONS OF THIS CLAUSE, “TERM AND TERMINATION” AND THE CLAUSES ENTITLED, “INDEMNITY”, “SERVICE PROVIDED “AS IS” AND LIMITATIONS OF LIABILITY”, “GOVERNING LAW”, “CUSTOMER OBLIGATIONS”, AND “CONTENT PROVIDED BY THE USERS” SHALL SURVIVE THE TERMINATION OF THE SUBSCRIPTION AND THE TERMINATION OF ANY TRIAL HOWEVER IT ARISES, AND SHALL CONTINUE TO BIND THE PARTIES OR THE RELEVANT PARTY (AS APPLICABLE) WITHOUT LIMIT IN TIME.
WITHOUT PREJUDICE TO ANY OTHER RIGHT THAT THE OWNER MAY HAVE IT MAY SUSPEND THE SERVICES OR ANY PART THEREOF UPON WRITTEN NOTICE TO THE USER WHERE:
- THE OWNER BECOMES AWARE OF A CLAIM THAT THE SERVICES, SOFTWARE AND/OR CHARTMOGUL INFRINGES ON ANY THIRD PARTY RIGHTS OR OCCURS IN VIOLATION OF APPLICABLE LAWS OR REGULATIONS; OR
- THE OWNER DETECTS THAT ANY METHOD OR DEVICE IS BEING USED TO CIRCUMVENT THE NORMAL SECURITY MEASURES IMPLEMENTED IN CONNECTION WITH ACCESS AND USE OF THE SERVICES; OR
- IF THERE IS A SUSPECTED, THREATENED OR ACTUAL ATTACK ON EITHER PARTY’S APPLICATIONS AND/OR PLATFORMS USED TO PROVIDE THE SERVICES; OR
- IF ANY EVENT OCCURS FOR WHICH THE OWNER REASONABLY BELIEVES THAT SUSPENSION OF THE SERVICES IS NECESSARY TO PROTECT THE SERVICES OR TO PREVENT THIRD PARTY ACCESS TO THE SERVICES.
ALL SUBSCRIPTION FEES ARE NON-REFUNDABLE.
Users are not allowed to reproduce, duplicate, copy, sell, resell or exploit any portion of ChartMogul and of its Service without the Owner’s express permission, granted either directly or through a proper reselling program.
THE USER SHALL DEFEND, INDEMNIFY ON DEMAND AND HOLD THE OWNER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, CO-BRANDERS, PARTNERS AND EMPLOYEES (TOGETHER THE “INDEMNIFIED PERSONS” AND EACH AN “INDEMNIFIED PERSON”), AS THE CASE MAY BE, HARMLESS FROM AND AGAINST ANY DEMAND, CLAIM, PROCEEDING, SUIT, JUDGMENT, LOSS, LIABILITY, COST, EXPENSE, FEE, PENALTY OR FINE, (INCLUDING WITHOUT LIMITATION, REASONABLE LAWYER’S FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH ANY OF: (I) THE USER DATA; (II) THE USER’S OR ANY OF THE ACCOUNT USERS’ USE OF OR CONNECTION TO, THE SERVICES, III) ANY VIOLATION OF THESE TERMS BY ANY OF THE USER OR ANY OF THE ACCOUNT USERS, IV) USER’S VIOLATION OF ANY THIRD-PARTY RIGHTS, V) ANY UNLAWFUL USE OF THE SERVICES; VI) THE INPUTTING OR IMPORTATION OF USER DATA IN THE COURSE OF THEIR USE OF THE SERVICES OR ANY OTHER SHARING OF USER DATA WITH THE OWNER WITHOUT HAVING THE LAWFUL BASIS FOR ANY PERSON TO WHOM THAT USER DATA RELATES. THE OWNER HOLDS THE BENEFIT OF THE INDEMNITY PROVIDED BY THE USER UNDER THIS CLAUSE FOR ITSELF AND IN TRUST FOR EACH INDEMNIFIED PERSON.
The Service shall be used only in accordance with these Terms.
Users shall not and shall procure that Account Users shall not:
- reverse engineer, decompile, disassemble, modify or create derivative works based on ChartMogul or any portion of it;
- circumvent any technology used by ChartMogul or its licensors to protect content accessible via it; copy, store, edit, change, prepare any derivative work of or alter in any way any of the content provided through ChartMogul;
- use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of ChartMogul or its content;
- rent, lease or sublicense Service;
- defame, abuse, harass, use threatening practices, threaten or violate the legal rights of others in any other way (such as rights of privacy and publicity);
- disseminate or publish content that is unlawful, obscene, illegitimate, defamatory or inappropriate;
- access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (vi) in a manner that is otherwise illegal or causes damage or injury to any person or property.
- use ChartMogul in any other improper way that violates these Terms.
Company name, and feedback
The User acknowledges and agrees that the Owner may include the User’s company name to identify User as a customer to its partners and in sales or marketing materials which identify and/or list names of ChartMogul customers. In no event shall Owner use the User’s company name or logo without the User’s prior written approval in any marketing or promotional material to specifically and individually highlight User as a customer of ChartMogul.
The User may from time to time submit feedback to the Owner. The User acknowledges and agrees that the Owner may freely use or exploit feedback in connection with the Service.
Usage Data and Anonymous Data
The User acknowledges and agrees that the Owner may derive or create Usage Data and the Owner may use and disclose such Usage Data to its third party service providers in order to improve the Service.
The User acknowledges and agrees that the Owner may anonymise and aggregate User Data and/ or Usage Data to create Aggregated Anonymous Data and may use such Aggregated Anonymous Data to analyse, improve, support and operate the Services and otherwise for any business purpose, during and after the term of the User Subscription, including, without limitation, to generate industry benchmarks or best practices guidance, insights, recommendations or similar reports for distribution to and consumption by the User and other users of the Owner and prospective users. For the avoidance of doubt, the foregoing does not give the Owner the right to identify the User as the source of any Aggregated Anonymous Data.
Intellectual Property Rights
The User acknowledges and agrees that the Owner and/or its licensors own all the Intellectual Property Rights in the Services. These Terms do not grant the User any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the Services. The User shall notify the Owner if it becomes aware of any unauthorised use of the whole or any part of the Services and the Documentation by any person or entity. All trademarks, nominal or figurative, and all other marks, trade names, service marks, word marks, illustrations, images, or logos that appear concerning ChartMogul are, and remain, the exclusive property of the Owner or its licensors and are protected by the laws in force on trademarks and by related international treaties.
The Intellectual Property Rights in the Services including any adaptions, modifications and updates to same (but excluding the API) are and shall remain vested in the Owner, whether created by the User or the Owner. The User assigns (by way of present and, where appropriate, future assignment) all such Intellectual Property Rights to the Owner.
The Owner makes no representation or warranty as to the existence, validity or enforceability of the Intellectual Property Rights in any API which may be used in connection with the Services nor as to whether the same infringe on any Intellectual Property Rights of third parties.
The User shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that the Owner may consider necessary or desirable to perfect the right, title and interest of the Owner in and to the Intellectual Property Rights in the Services provided by the Owner and including any adaptions, modifications and updates to same.
Users declare themselves to have reached the age of majority according to the applicable legislation of their country of residence. Under no circumstance may persons under the age of majority use the Service.
The User warrants that it is not a consumer. The Owner reserves the right to request such evidence as it may reasonably require to confirm that the User is not a consumer.
Service Provided “As Is” and limitations of liability
THIS CLAUSE SETS OUT THE OWNER’S ENTIRE FINANCIAL LIABILITY (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS AND SUB-CONTRACTORS) TO THE USER IN RESPECT OF: (I) ANY BREACH OF THESE TERMS; (II) ANY USE MADE BY THE USER OF THE SERVICES OR SOFTWARE OR ANY PART OF THEM; AND (III) IN RESPECT OF ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THE SERVICES.
USER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES AND/OR SOFTWARE BY THE USER, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. THE OWNER SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO THE OWNER BY THE USER IN CONNECTION WITH THE SERVICES, OR ANY ACTIONS TAKEN BY THE OWNER AT THE USER’S DIRECTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE SERVICES AND/OR SOFTWARE ARE PROVIDED TO THE USER ON AN “AS IS” BASIS AND THE OWNER MAKES NO WARRANTIES, REPRESENTATIONS, CONDITIONS, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES AND/OR SOFTWARE WHETHER IMPOSED BY STATUTE OR BY OPERATION OF LAW OR OTHERWISE, AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THESE TERMS. WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, THE OWNER MAKES NO REPRESENTATION AS TO THE ACCURACY OR AVAILABILITY OF THE SERVICES AND/OR SOFTWARE. THE OWNER DOES NOT ACCEPT, AND EXCLUDES, ALL LIABILITY FOR BREACH OF ANY OBLIGATION OR DUTY TO TAKE REASONABLE CARE OR EXERCISE REASONABLE SKILL.
THE OWNER SHALL NOT BE LIABLE IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE ARISING FOR ANY OF THE FOLLOWING LOSSES OR DAMAGE (WHETHER OR NOT SUCH LOSS OR DAMAGE WAS FORESEEN, FORESEEABLE, KNOWN OR OTHERWISE) TO THE EXTENT PERMITTED BY THE APPLICABLE LAW:
- LOSS OF REVENUE,
- LOSS OF ACTUAL OR ANTICIPATED PROFITS,
- LOSS OF CONTRACTS,
- LOSS OF THE USE OF MONEY,
- LOSS OF ANTICIPATED SAVINGS,
- LOSS OF BUSINESS,
- LOSS OF OPPORTUNITY,
- LOSS OF GOODWILL,
- LOSS OF REPUTATION,
- LOSS OF, DAMAGE TO OR CORRUPTION OF DATA OR COSTS OF SUBSTITUTION, OR
- ANY INDIRECT OR CONSEQUENTIAL LOSS HOWSOEVER CAUSED (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHETHER SUCH LOSS OR DAMAGE IS OF A TYPE SPECIFIED IN THIS CLAUSE)
WHETHER ARISING OUT OF, OR IN CONNECTION WITH, OR IN RELATION TO THE SERVICES OR THE SUPPLY OR NON-SUPPLY OR PURPORTED SUPPLY OR DELAY IN SUPPLY OF THE SERVICES OR OTHERWISE OUT OF OR IN CONNECTION WITH OR IN RELATION TO THE TERMS OR ANY TRANSACTION OR MATTER CONTEMPLATED BY THEM.
THE OWNER SHALL TAKE ANY APPROPRIATE SECURITY MEASURES TO PREVENT UNAUTHORISED ACCESS OR DISCLOSURE OF THE USER DATA IMPORTED INTO THE APPLICATION. THE OWNER SHALL NOT BE LIABLE FOR ANY UNAUTHORISED ACCESS OR DISCLOSURE OF USER DATA CAUSED BY ANY EVENT BEYOND THE OWNER’S REASONABLE CONTROL OR WHICH COULD NOT HAVE BEEN FORESEEN OR PREVENTED BY THE TAKING OF APPROPRIATE SECURITY MEASURES BY THE OWNER.
THE OWNER SHALL HAVE NO LIABILITY TO THE USER IF IT IS PREVENTED FROM OR DELAYED IN PERFORMING THE SERVICES, OR FROM CARRYING ON ITS BUSINESS, BY AN ACT OF GOD INCLUDING BUT NOT LIMITED TO FIRE, FLOOD, EARTHQUAKE, WINDSTORM OR OTHER NATURAL DISASTER; AN ACT OF ANY SOVEREIGN INCLUDING BUT NOT LIMITED TO WAR, INVASION, ACT OF FOREIGN ENEMIES, HOSTILITIES (WHETHER WAR BE DECLARED OR NOT), TERRORIST ATTACK, CIVIL WAR, REBELLION, REVOLUTION, INSURRECTION, MILITARY OR USURPED POWER OR CONFISCATION, NATIONALISATION, REQUISITION, DESTRUCTION OR DAMAGE TO PROPERTY BY OR UNDER ANY ORDER, RULE, REGULATION OR DIRECTION OR RECOMMENDATION OF GOVERNMENT OR PUBLIC OR LOCAL AUTHORITY OR IMPOSITION OF GOVERNMENT SANCTION EMBARGO OR SIMILAR ACTION; LAW, JUDGMENT, ORDER, DECREE, EMBARGO, BLOCKADE; ANY COLLAPSE OF A BUILDING, FIRE, EXPLOSION OR ACCIDENT; ANY LABOUR DISPUTE INCLUDING BUT NOT LIMITED TO STRIKE, LOCKOUT OR BOYCOTT; INTERRUPTION OR FAILURE OF UTILITY SERVICE INCLUDING BUT NOT LIMITED TO ELECTRIC POWER, GAS, WATER OR TELEPHONE SERVICE; ANY FAILURE OF ANY TELECOMMUNICATIONS NETWORK; ANY NON-AVAILABILITY OR FAILURE OF ANY WEB HOSTING SERVICE; ANY OUTBREAK OF DISEASE INCLUDING BUT NOT LIMITED TO ANY EPIDEMIC OR PANDEMIC; ANY FAILURE OR DELAY OF SUPPLIERS OR SUBCONTRACTORS OF THE OWNER, PROVIDED THAT THE USER IS NOTIFIED OF SUCH AN EVENT AND ITS EXPECTED DURATION.
THE OWNER’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) TO THE USER OR ANY THIRD PARTY IN RESPECT OF CLAIM, LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR IN RELATION TO THE PROVISION OR NON-PROVISION OF SERVICES DURING ANY BILLING PERIOD, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION FEES PAID BY THE USER DURING THAT BILLING PERIOD IN AGGREGATE.
THE USER AGREES THAT, IN ENTERING INTO THESE TERMS, EITHER IT DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OF ANY PERSON OTHER THAN THOSE EXPRESSLY SET OUT IN THESE TERMS OR (IF IT DID RELY ON ANY REPRESENTATIONS, WHETHER WRITTEN OR ORAL, NOT EXPRESSLY SET OUT IN THESE TERMS) THAT IT SHALL HAVE NO REMEDY IN RESPECT OF SUCH REPRESENTATIONS AND (IN EITHER CASE) THE OWNER SHALL HAVE NO LIABILITY OTHERWISE THAN PURSUANT TO THE EXPRESS PROVISIONS OF THESE TERMS.
THE SUBSCRIPTION FEES PAYABLE BY THE USER ARE DETERMINED ON THE BASIS OF THE LIMITS OF LIABILITY SET OUT IN THIS CLAUSE.
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT THE OWNER’S LIABILITY TO THE EXTENT THAT, UNDER APPLICABLE LAW, IT CANNOT BE EXCLUDED OR LIMITED.
Changes to these Terms
The Owner reserves the right to modify these Terms at any time, informing Users by publishing a notice posted on ChartMogul. Such amended Terms will be effective from the date upon which they are posted on ChartMogul.
Users who continue to use the Services after the publication of the changes accept the new Terms in their entirety.
Assignment of contract
The Owner reserves the right to transfer, assign, dispose of by novation or subcontract all or any rights or obligations under these Terms.
Users may not assign or transfer their rights or obligations under these Terms in any way without the written permission of the Owner.
All communications relating to ChartMogul and the Services must be sent using the contacts stated in this document.
If any provision of these Terms is invalid or unenforceable, that clause will be removed and the remaining provisions shall not be affected and they will remain in force.
Governing law and jurisdiction
These Terms and any non-contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with Irish law.
The Irish courts shall have exclusive jurisdiction to hear, determine and settle any dispute arising out of or in connection with these Terms or any related non-contractual obligations and the parties submit to the exclusive jurisdiction of the Irish courts for that purpose.
Aggregated Anonymous Data
Technical, business and other data about the User’s use of the Services including aggregated and anonymised personally identifiable information relating to the User and its customers. This includes statistical metrics such as those displayed in the application based on User Data and Usage Data from multiple Users.
The Terms shall be effective on the earlier of (i) the User clicking a button indicating its acceptance of these Terms; (ii) the User registering for a Trial; (iii) the User entering into a service order or similar form incorporating these Terms; or (iv) the User using ChartMogul or the Services.
Intellectual Property Rights
All patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all and other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world;
Monthly Recurring Revenue “MRR”
The MRR relating to an individual subscription is the price a customer is billed for this subscription during any given billing period for the subscription, divided by the length of that billing period in months. Billing periods may be longer (e.g. annual subscriptions) or shorter (e.g. weekly or pro-rated subscriptions) than one month, or exactly one month long. During its billing period a subscription is considered active.
The software subscription services (and any add-ons purchased by the User) provided by the Owner to the User under these terms via ChartMogul or any other website notified to the User by the Owner from time to time, as more particularly described in the description of the relevant subscription type on the Pricing Page.
The online software applications provided by the Owner as part of the Services and described on the Pricing Page.
The access to use the Services which the User has ordered through ChartMogul or a service order form and which the Owner has agreed to provide or to which the Owner has moved the User pursuant to the clause entitled “Migration between Subscription types” above.
The date on which a User chooses a Subscription.
Data and information about the use of the Service by the User.
Data Processing Addendum
This Data Processing Addendum (“Addendum”) is incorporated into and forms an integral part of the Terms of Service (“Terms”) as concluded by and between User (as defined in the Terms) and ChartMogul CMTDE GmbH & Co. KG, with registered offices in c/o WeWork, Kemperplatz 1, 10785 Berlin, Germany (“ChartMogul”) (each a “party” and together the “parties”) and is effective upon its incorporation into the Terms, which may be specified in the Terms or a service order. This Addendum on the processing of personal data (as defined below) on behalf of a controller in accordance with Article 28 (3) of the EU General Data Protection Regulation (GDPR) will apply to any and all processing of personal data by ChartMogul in its capacity as processor of personal data on behalf of User.
To the extent that a User is a “business” subject to California Civil Code § 1798.100 et seq. of the California Consumer Privacy Act of 2018 (“CCPA”), § 8 of this Addendum also details additional obligations under the CCPA (as defined below).
§ 1 Interpretation
(1) in this Addendum:
“CCPA” means the California Consumer Privacy Act of 2018;
“Data” means the personal data processed by ChartMogul on behalf of the User in connection with the Services as more specifically set out in Exhibit 1;
“Data Protection Acts” means the Data Protection Acts 1988-2018 of Ireland;
“Data Protection Law” means all legislation and regulations relating to the protection of personal data including (without limitation) the Data Protection Acts, the GDPR and all other statutory instruments, statutory industry guidelines or codes of practice or guidance issued by the Data Protection Commission relating to the processing of personal data or privacy;
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679);
“List of Subprocessors” means the list of subprocessors with whom CharMogul engages in the context of the provision of the Services, as specifically listed at https://chartmogul.com/privacy/subcontractors/ and as may be amended, supplemented or substituted by ChartMogul in its absolute discretion from time to time;
“Permitted Third Party Service Provider” means a third party service provider listed in the List of Subprocessors or otherwise approved by the User from time to time;
“Personnel” means those servants, officers, employees, agents, or contractors of ChartMogul to whom disclosure of Data is necessary for the provision of the Services and who are appropriately trained in and committed to data security and confidentiality;
“Service” or “Services” means the services to be provided by ChartMogul to the User as defined in the Terms; and “Terms” means the ChartMogul Terms at https://chartmogul.com/privacy/terms/ as may be amended from time to time.
(2) Construction: In this Addendum, unless the contrary intention is stated, a reference to:
- (a) ‘data controller’, ‘data processor’, ‘data subject’, ‘personal data’, ‘‘processing’, and ‘appropriate technical and organisational measures’ will have the meanings given to them in Data Protection Law;
- (b) the singular will include the plural and vice versa;
- (c) either gender includes the other and the neuter, and vice versa;
- (d) a person will be construed as a reference to any individual, firm or User, corporation, governmental entity or agency of a state or any association or partnership (whether or not having separate legal personality) or two or more of the foregoing;
- (e) a person includes that person’s legal personal representatives, successors, and permitted assigns;
- (f) time will be construed by reference to whatever time may from time to time be in force in Ireland;
- (g) any agreement, document, or instrument is to the same as amended, novated, modified, supplemented, or replaced from time to time;
- (h) ‘this Addendum’ means the Clauses of, and the Exhibits to, this Addendum, all of which will be read as one document;
- (i) a clause or other provision is a reference to a clause or provision of this Addendum, and any reference to a sub provision is, unless otherwise stated, a reference to a sub provision of the provision in which the reference appears;
- (j) ‘including’ means comprising, but not by way of limitation to any class, list or category;
- (k) a law includes any provision of any constitution, statute, statutory instrument, order, by-law, directive, regulation or decision of any governmental entity, and any judicial or administrative interpretation of any of the foregoing, in each case, as amended, revised, modified, or replaced from time to time; and
- (l) ‘writing’ will include a reference to any electronic mode of representing or reproducing words in visible form.
§ 2 Personal Data Types and Processing Purposes
(1) The User and ChartMogul agree and acknowledge that for the purpose of Data Protection Law and in relation to the Data:
- (a) the User is the controller and ChartMogul is the processor.
- (b) the User remains responsible for its compliance obligations as controller of the Data under Data Protection Law, including providing any required notices and securing a lawful basis for the processing of the Data, and for the written processing instructions it gives to ChartMogul.
- (c) Exhibit 1 describes the subject matter, nature and purpose of the processing, and the categories of Data and data subjects in respect of which ChartMogul may process the Data for the purposes of providing the Services. (2) The User undertakes not to provide (or cause to be provided) to ChartMogul any information that falls within the definition of “special categories of data” under Data Protection Law or an equivalent category of personal data in any other applicable law relating to privacy and data protection, and ChartMogul will not be liable to the User or to a data subject for any losses arising out of or in relation to its processing of special categories of personal data provided to it in breach of this Addendum. (3) Except where this Addendum stipulates obligations beyond the duration of the Services, the term of this Addendum will be the term of the provision of the Services by ChartMogul to the User plus any period of retention required for backup, disaster recovery, or other purposes as stipulated in ChartMogul’s Data Retention Policy.
§ 3 Scope of application
(1) The User’s written instructions in relation to the processing of the Data will, initially, be as required for the provision of the Services and set out in the Terms. The user may, subsequently, request the modification, amendment, or substitution of such written instructions by issuing a written request to the ChartMogul Data Protection Officer. For the avoidance of doubt, such written requests will relate strictly to the processing (within the meaning of Data Protection Law) of the Data only and will not include customer or Service support requests or similar.
§ 4 ChartMogul’s Obligations
(1) ChartMogul undertakes and agrees with the User that:
- (a) it will only process:
- Data strictly in accordance with the documented instructions of the User;
- Data in accordance with the nature and purpose of the processing set out in Exhibit 1;
- the minimum volume of Data which is strictly necessary for the performance of the Services;
- (b) any Processing of Data by ChartMogul will be carried out in full compliance with Data Protection Law;
- (c) it will inform the User as soon as practicable if, in its opinion, it receives an instruction from the User which infringes Data Protection Law; and
- (d) it will disclose Data only to those members of its Personnel to whom such disclosure is necessary for the exercise of its rights, and performance of its obligations, under this Addendum and the Terms, and will procure that such persons are made aware of, and agree to observe the obligations of confidentiality in §4(2) and security in §4(4). (2) ChartMogul will maintain the confidentiality of the Data and will not disclose the Data to third parties unless the User, this Addendum, or the Terms specifically authorise the disclosure, or as required by Data Protection Law, other applicable law, court, or regulator (including but not limited to the Data Protection Commission of Ireland, Federal Commissioner for Data Protection and Freedom of Information and Berliner Beauftragter für Datenschutz und Informationsfreiheit). If applicable law, court, or regulator (including but not limited to the Data Protection Commission of Ireland, Federal Commissioner for Data Protection and Freedom of Information and Berliner Beauftragter für Datenschutz und Informationsfreiheit) requires ChartMogul to process or disclose the Data to a third-party, ChartMogul will, where appropriate, endeavour to inform the User of such legal or regulatory requirement and give the User an opportunity to object or challenge the requirement, unless the applicable law prohibits the giving of such notice. (3) ChartMogul will reasonably assist the User, at the User’s expense, with meeting the User’s compliance obligations under the Data Protection Law, taking into account the nature of ChartMogul’s processing and the information available to ChartMogul, including in relation to data subject rights, data protection impact assessments and reporting to and consulting with the Data Protection Commission of Ireland under Data Protection Law. (4) ChartMogul will implement appropriate security measures to prevent accidental or unauthorised loss, destruction, damage, alteration, disclosure, or unlawful or unauthorised access to any Data in the custody of ChartMogul, and ChartMogul will ensure that its Personnel are aware of and comply with those measures. (5) ChartMogul will promptly after becoming aware of it notify the User of any unauthorised access to, or unauthorised use, alteration, disclosure, accidental loss or destruction of, any Data in the custody of ChartMogul (each a “data breach”). In the event of any data breach, ChartMogul will:
- (a) take prompt action to investigate the cause of the data breach;
- (b) at the User’s expense, promptly, assist the User in complying with its obligations under Articles 32 to 36 of the GDPR. (6) ChartMogul will promptly notify the User of any request from a data subject to exercise any of his or her rights under Data Protection Law or any complaint from any data subject. ChartMogul will not accede to any such request or deal with any complaint except on the written instructions of the User. ChartMogul will, upon the User’s request and at the User’s expense, and taking into account the nature of the processing, assist the User by appropriate technical and organisational measures, for the fulfilment of the User’s obligation to respond to requests for exercising the data subject’s rights under Data Protection Law. (7) ChartMogul will make available to User, upon request and on at least 14 calendar days’ written notice such information as may be reasonably necessary to demonstrate compliance with its obligations hereunder and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller. The above notice period will apply in all instances, except where the User reasonably believes that a personal data breach occurred or is occurring, in which case a 72 hours’ notice period will apply. (8) Upon termination of the Services, ChartMogul will, upon the request of the User, immediately destroy all Data (except for one copy that it may retain and use for backup, disaster recovery, and business continuity purposes) and will certify such destruction in writing to the User on request from time to time.
§ 5 Permitted Third Party Service Providers
(1) ChartMogul will be permitted to subcontract processing of Data to Permitted Third Party Service Providers provided that ChartMogul will remain responsible for all acts and omissions of a Permitted Third Party Service Provider and the acts and omissions of those employed or engaged by it as if they were its own. An obligation on ChartMogul to do, or to refrain from doing, any act or thing will include an obligation on ChartMogul to procure that its Personnel and the personnel of each Permitted Third Party Service Provider also do, or refrain from doing, such act or thing.
(2) ChartMogul may authorise additional or substitute third parties (subcontractors) to process the Data as Permitted Third Party Service Providers and amend the List of Subprocessors if the User is provided with an opportunity to object to the appointment of each new Permitted Third Party Service Provider within 14 calendar days after ChartMogul supplies the User with details regarding such new Permitted Third Party Service Provider. For the avoidance of doubt, User’s only remedy in case of objection to the appointment of a new Permitted Third Party Service Provider is to cancel its subscription with effect from the day before the day on which the additional or substitute Permitted Third Party Service Provider is appointed by notice in writing to Chartmogul as set out in the Terms.
(3) Where access to the Data by a Permitted Third Party Service Provider constitutes an international data transfer, User authorises ChartMogul to put in place such transfer mechanisms as may be required for the lawful execution of the transfer of Data in the User’s name and on its behalf, including entering into standard contractual clauses. ChartMogul will make the executed transfer instrument available to the User on request.
§ 6 User’s Representations and Warranties
(1) The User represents and warrants to ChartMogul, on a continuing basis for the duration of the Services that:
- (c) a lawful basis for the processing of the Data, including but not limited to all consents, if required, for the processing of all the Data by ChartMogul in the manner contemplated by the Services have been validly obtained and are in full force and effect;
- (d) User has complied with all of its obligations (however arising) in respect of all the Data; and
- (e) the processing by ChartMogul of the Data in the manner contemplated by the Services, the Terms, and this Addendum will not infringe the rights of any person under Data Protection Law in any jurisdiction other than Ireland.
§ 7 Liability
(1) The limitation of liability provisions contained in the Terms will apply to any liability on the part of ChartMogul arising out of or in relation to the processing of Data as set out in this Addendum.
§ 8 California Consumer Privacy Act
(1) Where User is a “business” subject to California Civil Code, § 1798.100 et seq. of the CCPA, the provisions in this § 8 of this Addendum will apply in addition to the provisions in §§ 1 – 7 of this Addendum and the Terms with respect to the processing of Personal Data of any Data Subjects who are “consumers” or “households” under the CCPA.
(2) Any references to “Personal Data” in this Addendum or the Terms will also mean any information describing, capable of being associated with, or reasonably linkable, directly or indirectly, to Data Subjects, including “personal information” as that term is defined in the CCPA; in the context of this Addendum, Personal Data also includes information relating to or describing an identified or identifiable household, when required by Applicable Data Protection Law.
(3) Any references to “Data Processor” in this Addendum will also mean ChartMogul in its role as “service provider” as that term is defined in the CCPA, with respect to the processing of Personal Data of Data Subjects.
(4) Any references to “Applicable Data Protection Law” in this Addendum will also include California Civil Code § 1798.100 et seq. of the CCPA.
(5) As a service provider, ChartMogul will not retain, use, or disclose Personal Data for any purpose other than as set out in the Terms or as otherwise permitted by the CCPA.
(6) User will not instruct ChartMogul to process or disclose Personal Data for any purpose other than as set out in the Terms, this Addendum (as applicable, and where executed by both parties), or as otherwise agreed in writing between ChartMogul and User, or as otherwise permitted by the CCPA and other Applicable Data Protection Law.
(7) ChartMogul will not sell Personal Data provided by User through the use of the Services.
(8) ChartMogul will not release, disclose, disseminate, make available, transfer, or otherwise communicate Personal Data provided in Data provided by User through the use of ChartMogul’s services to any third party. However, ChartMogul may disclose the Personal Data to its own Subcontractors (which are service providers as defined in the CCPA) where ChartMogul has (i) carried out due diligence on each service provider and; (ii) included terms in the contract between ChartMogul and each service provider that are substantially consistent with those set out in this Addendum.
§ 9 General
(1) If the whole or any part of a provision of this Addendum is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that will not affect the legality, validity, or enforceability under the law of that jurisdiction of the remainder of the provision in question or any other provision of this Addendum and the legality, validity, or enforceability under the law of any other jurisdiction of that or any other provision of this Addendum.
(2) This Addendum and all of its provisions will be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, and permitted assigns.
(3) The expiry or termination of this Addendum however caused will not affect any provision of this Addendum which is expressly or by implication to come into effect on or to continue in effect after such termination, each of which will survive any such termination.
(4) ChartMogul will not be liable in contract, tort or otherwise howsoever for any of the following losses or damage (whether or not such loss or damage was foreseen, foreseeable, known or otherwise): (i) loss of revenue, (ii) loss of actual or anticipated profits, (iii) loss of contracts, (iv) loss of the use of money, (v) loss of anticipated savings, (vi) loss of business, (vii) loss of opportunity, (viii) loss of goodwill, (ix) loss of reputation, (x) loss of, damage to, or corruption of data, or (xi) any indirect or consequential loss howsoever caused (including, for the avoidance of doubt, whether such loss or damage is of a type specified in sub-clauses (i) to (x) above) whether arising out of, or in connection with this Addendum provided that nothing in this Addendum will exclude or limit ChartMogul’s liability under the tort of deceit or for death or personal injury, or any other liability to the extent that, under applicable law, it cannot be excluded or limited.
(5) The express terms of this Addendum and the Terms constitute the sole and entire agreement between the parties in relation to the processing of Data by ChartMogul as a processor on behalf of the User and supersedes all prior written and oral arrangements, understandings, representations, warranties and agreements between them in that regard (if any). In case of conflict between the terms of this Addendum and the Terms in relation to ChartMogul’s processing of Data, the terms of this Addendum will prevail.
(6) ChartMogul reserves the right to make any updates or changes to this Addendum at any time in its sole discretion, provided that such updates or changes do not violate applicable Data Protection Law or adversely impact the security of Data or other fundamental rights of the User.
(7) By agreeing to the Terms, the parties are deemed to have duly executed this Addendum as of the Effective Date of the Terms.
Exhibit 1 – Details of Contract Processing
This Exhibit 1 includes certain details of the Data as required by Article 28(3) GDPR.
The types of User Personal Data to be Processed
- First and last name;
- Contact information (company, email, phone, physical business address);
- Invoice and transaction history;
- Details of the methods of the data subject uses to make payments (See Note 1);
- Arbitrary data which the Controller may input into ChartMogul, and which is associated with a Data Subject – (See Note 2)
(1) This does not include sensitive payment information such as credit card numbers, expiry dates, CVC codes or bank account details.
(2) ChartMogul provides the capability for its Users to associate any data they wish with a data subject, utilizing our API. ChartMogul does not and cannot ascertain what the content or purpose of this data actually is. The User is forbidden from providing special categories of data.
Categories of data subjects
- Prospective customers;
Nature of the processing
Any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Purpose of the processing
The provision of the Services as described in the Terms.
Permitted Third Party Service Providers https://chartmogul.com/privacy/subcontractors/