Terms of Use

By registering an account on the Performancing Metrics web site ("Site" or "Service"), a service provided by Performancing, Inc ("Performancing" or "Company"), you agree to be bound by all terms and conditions ("Terms") listed on this page (collectively, the "Agreement").

General

Performancing does not give any warranty or other assurance as to the operation, quality or functionality of the Site. Access to the Site may be interrupted, restricted or delayed for any reason. Performancing also does not give any warranty or other assurance as to the content of the material appearing on the Site, its accuracy, completeness, timelessness or fitness for any particular purpose.

To the full extent permissible by law, Performancing disclaims all responsibility for any damages or losses (including, without limitation, financial loss, damages for loss in business projects, loss of profits or other consequential losses) arising in contract, tort or otherwise from the use of or inability to use the Service or any material appearing on the Site, or from any action or decision taken as a result of using the Site or any such material.

The Site contains links to external sites. Performancing is not responsible for and has no control over the content of such sites. Information on the Site, or available via hypertext link from the Site, is made available without responsibility on the part of Performancing. Performancing disclaims all responsibility and liability (including for negligence) in relation to information on or accessible from the Site.

Unacceptable usage

You may not use the Service to track any of the following:

items that are embedded on external/third-party web sites (e.g. ads, widgets, etc)
typo-squatting domains
sites considered "spammy", per Performancing's judgment
sites containing viruses, trojans, or other harmful or illegal material

Privacy

Performancing values the privacy of its users. Performancing will not provide any information about its users and/or their traffic data to any third party company for any purpose, unless required to do so by law.

Visitor data tracked

When a visitor views a page on your site with the tracking code installed, the following data is sent to our tracking servers and logged to your account:

Page URL
Page title
Referrer
Web browser
Operating system
Hardware, if applicable (e.g. mobile phone model)
IP address
Language
Screen resolution

Account

You must register an account to use the Service. You agree not to share your account username and password with third parties, and to notify the Company immediately of any unauthorized usage.

Data

By using the Service, you agree to allow Performancing to collect and store data on your web site traffic. Performancing may randomly use your traffic data for internal feature development and bug fixing purposes. Otherwise, your data is treated as private and confidential, unless you elect to make it publicly accessible. Performancing also monitors the traffic levels of all registered sites on a regular basis, to ensure no site is putting an unnecessary burden on its resources.

Cancellation

Performancing may cancel or delete any account, for any reason, with or without notice - the exception being white label accounts, for which we will give you thirty (30) days notice. If you wish to cancel your account, you must notify Performancing by email to support@performancing.com. All information associated with the account, including the account itself as well as the historical data, will be permanently deleted.

Payments

Premium service is billed in advance on a monthly or yearly basis. All premium plans automatically recur at the interval you sign up for (monthly or yearly). You can cancel your subscription at any time by contacting us, however, Performancing does not offer refunds for any payments already made. Your access to the Service will be deactivated without notice for failure to pay any amount due within seven (7) calendar days of the due date.

License

Performancing hereby grants you a revocable, non-exclusive, non-transferable license to include the Company-provided JavaScript ("Script") in the HTML code for web page(s) that are properly registered for the Service and owned by you, solely for the purpose of accessing the Service and information available from the Service with respect to such web page(s). You shall not (i) use, reproduce, modify or create derivative works of the Script, or (ii) allow third party access to all or any portion of the Script or Service.

Representations and Warranties

You represent and warrant to Performancing that you own all right, title and interest in and to the URLs of your website, and you own or have rights to publish all of the content published on or 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. Performancing and/or its respective suppliers may make improvements and/or changes in the Service at any time, without obligation to notify any person or entity of such changes.

Performancing 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 made available as part of the Service will be correct, accurate, timely, or otherwise reliable. You specifically agree that Performancing shall not be responsible for unauthorized access to or alteration of your data.

Term and Termination

Either party may terminate this agreement at any time and for any reason. In addition, this agreement will terminate immediately, without notice, if you fail to comply with the terms of this Agreement or if you remove the Script from your web pages.

Upon any termination of this agreement, (i) Performancing will cease providing the Service to you; (ii) you will delete all copies of the Script from your web page(s); (iii) any outstanding balance payable by you to Performancing will become immediately due and payable; (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.

You understand that keeping the Script on your web site consumes bandwidth (and hence, money) of the Company for every page view on your web site. Failure to remove the Script from your web site upon termination may force Performancing to take drastic measures to gain your compliance. Such measures are determined on a case by case basis.

Disclaimer

THE SERVICE, THE SCRIPT AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY THE COMPANY EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SCRIPT, 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. THE COMPANY DOES NOT WARRANT THAT THE SERVICE, THE SCRIPT OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED.

Limitations of Liability

THE COMPANY 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 THE COMPANY 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.

THE COMPANY'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 OR YOUR USAGE OF THE SERVICE SHALL NOT EXCEED THE AGGREGATE FEES PAID BY YOU TO THE COMPANY FOR USE OF THE SERVICE.

Indemnification

You agree to indemnify, hold harmless and defend Performancing, at your expense, against any and all third party claims, actions, proceedings, and suits brought against Performancing 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 Performancing 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, or (iii) your unauthorized use of the Script code. In such a case, Performancing 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. Performancing reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

Modifications to this Agreement

Performancing 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 on this web site. 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 the Company, (ii) you accept updated terms online, or (iii) you continue to use the Service after the Company has posted updates to the Agreement or to any policy governing the Service. Any of the following constitute your continued usage of the Service: (i) viewing any page on the Site, or (ii) keeping the Script on any page of your web site, or (iii) logging in to your account, or (iv) viewing any of the data collected by the Service, whether viewed on the Site directly, or through another means, including, but not limited to, exported data files, and first- or third-party widgets.

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.

Miscellaneous

Performancing 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 Oregon without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Oregon law, rules, and regulations, Oregon law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Portland, Oregon. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. 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. Any notices to the Company must be sent by email to support@performancing.com, 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 the Company's prior written consent, and any such attempt is void. The relationship between Performancing 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.