Terms of Service

The following are the terms and conditions for use of PercentMobile (“Service”.) PercentMobile is a service of TigTags Corporation. Please read them carefully before using the Service.

BY CLICKING THE “I ACCEPT” BUTTON AND COMPLETING THE REGISTRATION PROCESS, YOU (the terms “you” or “yours” includes the person or entity that is registered with the Service as well as any third parties accessing the Service on your behalf) ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE (“Agreement”). The Service is offered to you by TigTags Corporation conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.

I. Definitions

• Account refers to the billing account for the Service. All Sites linked to a single Account will have their Events aggregated prior to determining the charge for the Service for that Site. There are two (2) types of accounts ("Account Types"), Starter Edition and Professional Edition.
• Customer Data means the data concerning the characteristics and activities of visitors to your website that is collected through use of the Tracking Code and then forwarded to the Servers and analyzed by the Processing Software.
• Documentation means any accompanying proprietary documentation made available to You by the Service for use with the Processing Software, including any documentation available online or otherwise. 
• Event is the unit of measurement for usage of the Service. One (1) event equals one (1) desktop or mobile page view or action sent to PercentMobile for tracking, processing, data warehousing, and reporting. An Event is used when the PercentMobile service is executed on a web page, page view, or by direct call/post.
• Processing Software means the proprietary Service Software and any all upgrades to such, which analyzes the Traffic Data and generates the Reports using various mobile-specific databases, algorithms, and business rules..
• Profile means the collection of settings that together determine the information to be included in, or excluded from, a particular Report. For example, a Profile could be established to view a small portion of a Web site as a unique Report. There can be multiple Profiles established for a single Web site.
• Report means the resulting analysis shown at analytics.percentmobile.com (or such other URL the Company may provide from time to time) for an individual profile. The number of charts, graphs, and statistics contained in a Report varies with the edition of the Service.
• Tracking Code means the proprietary PercentMobile Site Tracking Code and/or Tracking Code, which is installed on a desktop or mobile web page (or sent via other implementations) for the purpose of collecting Traffic or Visitor Data, together with any fixes, updates and upgrades provided to you (collectively, the "Tracking Code"). "Tracking Site ID" means the unique identifer for a specifiic Tracking Code.
• Servers means the servers controlled by the Company (or its wholly owned subsidiaries) upon which the Software and Customer Data are stored.
• Site means a group of web pages that are linked to an Account and use the same "Tracking Site ID". Each Site tracked results in the generation of a Default Report  that evaluates events within the Site. Additional reports can be established under a Site to evaluate specific aspects of a Site's mobile traffic.
• Software means the Tracking Code, Processing, Data Warehousing, and Reporting UI Software."Subscription Fee" is the price to have access to specific account, product and/or service.
• Subscription Period is the span of time during which an account type and/or service is made available. 

II. Account

To register for the Service and create an account, you must complete the registration process by providing PercentMobile with complete and accurate information as prompted by the registration form, including e-mail address and password. You shall protect your password and take full responsibility for your own and third party activities that occur under your account. You agree to notify PercentMobile immediately of any unauthorized use of your account or any other breach of security.

From time to time, PercentMobile may find it necessary to access your account. For instance, PercentMobile may access your account for support, maintenance or security-related reasons. In such event, PercentMobile will, if possible, provide you notice of its intent [to use your username and password] to do so. Regardless of whether such notice is provided, you acknowledge and consent to such access.
 

III. Account Types

PercentMobile offers two (2) types of accounts:

Starter Edition Accounts

Starter Edition Accounts are provided without charge to You for up to 100,000 events per month per account. If your Starter Edition Account exceeds 100,000 events per month for 3 consecutive months service can be suspended at our discretion. We will make every effort to contact you first if this is the case. Feature and event limit upgrades are available for monthly subscription. A valid credit card is required to subscribe to upgrades provided by the Service.

Professional Edition Accounts

Professional Edition Accounts are provided without charge to You for a 30-day trial period starting from the date of Account activation for up to 100,000 events.  If  the number of events exceeds 100,000 events during the 30-day trial period service can be suspended at our discretion. We will make every effort to contact you first if this is the case. Please contact us if you require a trial period with a higher number of events. Pricing for the Professional Edition is provided to you during the trial period based on Your requirements. When the Professional Edition  trial period ends have several options; 1.) Discontunue use of the PercentMobile service, 2.) Request an extension to the trail period. Extensions are provided on a case-by-case basis, or  3.) Enter into a monthly Professional Edition account plan. Exceeding the number of events provided in your plan will result in either a prorated overage charge based on your plan's current cost per point, or an automatic plan upgrade. We will always choose the cheaper option.

You will be entitled to receive the Service only during the Subscription Period specified in your Account. Monthly fee-based subscriptions if applicable will automatically renew on a month-to-month basis until cancelled by you. Each month during the Subscription Period, you will be entitled to access only the reports as provided within your PercentMobile account area.

The Company may change its fees and payment policies for the Service from time to time including but not limited to fees charged to the Company or its wholly-owned subsidiaries by 3rd party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon Your acceptance of such changes which will be posted at www.percentmobile.com (or such other URL the Company may provide from time to time). Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by the Company will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your PercentMobile account.
 

IV. Representations and Warranties; Disclaimers

You represent and warrant to PercentMobile that you own all right, title and interest in and to the data you send to us from your website, and/or you own or the have rights to send all of the data transmitted through your website and the user interface of your website.

The information, reports and services included in or available through the Service may include inaccuracies or typographical errors. Changes are periodically added to the information herein. PercentMobile and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, without obligation to notify any person or entity of such changes.

PercentMobile or TigTags Corporation does not represent or warrant that (i) the Service will be error-free or accessible at all times, (ii) defects will be corrected, (iii) the Service or the server that makes it available, are free of viruses or other harmful component, or (iv) the use or the results of the use of the Service or the materials and Reports made available as part of the Service will be correct, accurate, timely, or otherwise reliable. You specifically agree that PercentMobile shall not be responsible for unauthorized access to or alteration of your data.

THE SERVICE, AND REPORTS ARE [PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY PERCENTMOBILE OR TIGTAGS CORPORATION EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF 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. PERCENTMOBILE DOES NOT WARRANT THAT THE SERVICE, OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE 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 SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

V. Service Levels

PercentMobile does not guarantee, and shall have no liability for, any Service down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance, or (iv) relating to events beyond PercentMobiles' control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where PercentMobile or your servers are located or co-located.

VI. Limitations of Liability

PERCENTMOBILE AND TIGTAGS CORPORATION 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 SERVICE), 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 PERCENTMOBILE 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 LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.

PERCENTMOBILES' 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 PERCENTMOBILE FOR USE OF THE SERVICE.

PercentMobile and TigTags Corporation total 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 PercentMobile for use of this service.

VII. Indemnification

You agree to indemnify, hold harmless and defend the Company and its wholly owned subsidiaries, at Your expense, any and all third-party claims, actions, proceedings, and suits brought against the Company 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 and other litigation expenses) incurred by the Company 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 Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your Brand Features. In such a case, the Company will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.

VIII. Proprietary Rights

The Service, which includes but is not limited to the Tracking Code and the PercentMobile Software and all intellectual property rights in the Service are, and shall remain, the property of TigTags Corporation (and its wholly owned subsidiaries). All rights in and to the Processing Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by the Company and its licensors without restriction, including, without limitation, the Company (and its wholly owned subsidiaries') right to sole ownership of the Company Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of the Company; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with the Company (or its wholly owned subsidiaries) other than in the name of the Company (or its wholly owned subsidiaries, as the case may be); or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.

IX. Confidentiality, Data Protection, and Information Rights

PercentMobile will not share personally identifiable information associated with You, your Site, or Your Customer Data with any third parties unless PercentMobile (i) has Your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of the Company, the Service, its users, or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on behalf of the Service (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by the Service. When this is done, it is subject to agreements that oblige those parties to process such information only on the instructions of the Company and in compliance with this Agreement and appropriate confidentiality and security measures. PercentMobile may retain and use in aggregate various traffic and device information collected in Your use of the Service in order to improve the quality of the service or report on trends. PercentMobile will treat all information provided by You, or obtained through PercentMobile's performance of the service, as confidential and shall use such information only for the purpose of performing the services to be provided as specificed above.

X. U.S. Government Rights

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government‘s rights in PercentMobile Technology, including its rights to use, modify, reproduce, release, perform, display or disclose the PercentMobile Technology, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

XI. Modifications to Terms of Service and Other Policies

PercentMobile reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement to the PercentMobile Website located at http://www.percentmobile.com/ (or such other URL as PercentMobile may provide). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of PercentMobile, (ii) you accept updated terms online, or (iii) you continue to use the Service after PercentMobile has posted updates to the Agreement or to any policy governing the Service.

XII. Compliance

You will not use the Service 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.

XIII. Miscellaneous; Applicable Law and Venue

PercentMobile shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) 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 affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the state of New York without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and New York law, rules, and regulations, New York law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in New York, New York. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to PercentMobile must be sent to: PercentMobile c/o TigTags Corporation 606 Johnson Ave, Suite 25, Bohemia, NY, 11716 via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of your rights hereunder without PercentMobiles' prior written consent, and any such attempt is void. The relationship between PercentMobile 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.

XIV. Term and Termination

Either party to the Agreement may terminate the Agreement at any time and for any reason.

Upon any termination or expiration of this Agreement, the Company will cease providing the Service, and You will delete all copies of the PercentMobile Tracking Code from all Pages and/or code and certify thereto in writing to the Company within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical report data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.

XV. Special Admonitions for International Use

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.

Last updated on: 16 December 2010