Effective: January 27, 2016
The Site is operated by HitTail Inc., d/b/a HitTail, Palo Alto, CA.
1. DESCRIPTION OF SERVICES
HitTail provides its users ("You"), for use, access to data on your website's search engine traffic and provides keyword recommendations delivered via the HitTail interface and email.
2. USE OF SERVICES
In consideration of your use of HitTail, you represent that you are of legal age to form a binding contract, are not a minor under the age of 13, and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. In order to access certain services, you may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or continued use of the services offered by HitTail. All personal information (which could include email address, URL, HitTail account password, and any optional information you chose to give to us) must always be promptly updated as soon as it stops being true, complete, accurate, or current. HitTail is not responsible for any errors that occurs because of your failure to update this information.
You are responsible for maintaining the confidentiality of your HitTail account password, and if applicable your Google AdWords and Google Search Console accounts passwords, and are responsible for all activities that occur under your account. You agree to immediately notify HitTail of any unauthorized use of your password or account or any other breach of security. HitTail cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2. HitTail reserves the right to refuse service to anyone at any time without notice for any reason.
CONDUCT OF USERS
As a condition for accessing and using the Site and the Service, you agree that you will not:
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
Post or catalyze any inappropriate, defamatory, infringing, obscene, or unlawful content;
Post comments, email other users or transmit or any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of such rights or have the permission of the owner to post such content;
Post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these Terms of Service or any applicable policies or guidelines;
Use HitTail services in the use of creating email spam (unsolicited email messages), link spam (including unwanted blog comments), splogs (nonsensical or useless websites), screen-scrapes (webpages consisting entirely of keywords and no other useful content) or similar online cybergraffiti that violates the Terms of Service of other blogging software and/or search engines;
Download any file posted by another that you know, or reasonably should know, that cannot be legally distributed in such manner;
Impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
Restrict or inhibit any other user from using HitTail Inc. services;
Use HitTail services for any illegal or unauthorized purpose such as reselling your data;
Remove any copyright, trademark or other proprietary rights notices contained in or on HitTail services;
Interfere with or disrupt HitTail services or servers or networks connected to HitTail services, or disobey any requirements, procedures, policies or regulations of networks connected to HitTail services;
Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of HitTail services or collect information about users for any unauthorized purpose;
Imply that your opinion, website, service, and/or product is sponsored or endorsed by HitTail Inc.;
Create or edit user accounts by automated means or under false or fraudulent pretenses;
Promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual;
Transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
Engage in any conduct or to post or share any content that would interrupt, destroy, limit or more generally harm the Site and/or the Service or enable you to gain unauthorized access to the Site, including by using viruses, malicious computer code, programs or files;
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.
In case of any violation of the above, HitTail reserves the right to cancel and/or to block you from accessing the Site as well as to disclose any information as necessary to satisfy any law, regulation, governmental request or partner request, at its sole discretion.
You understand that the technical processing and transmission of HitTail Inc. services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
We make every effort to protect your personal identifiable information. All secure orders and confidential information are processed through Secure Sockets Layer (SSL) technology via secure server.
4. PROPRIETARY RIGHTS
You acknowledge and agree that HitTail and any necessary software used in connection with HitTail services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through HitTail services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by HitTail or advertisers, you agree not to modify, rent, lease, loan, sell, distribute, reverse engineer or create derivative works based on HitTail services, the Software, or the data collected on your behalf, in whole or in part.
HitTail claims no ownership or control over any Data collected, posted or displayed by you on or through HitTail. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to all Data collected on behalf of your website(s) through HitTail and you are responsible for protecting those rights, as appropriate. These rights are limited per Section 8 of the Terms and Conditions.
By submitting to the HitTail forum or the HitTail blog, which are intended to be available to the general public, you grant HitTail a worldwide, non-exclusive, royalty-free license to reproduce, modify, adapt, publish, and otherwise use, with or without attribution such posts on the HitTail forum solely for the purpose of displaying, distributing and promoting HitTail services. This license terminates when such content is deleted from the HitTail service to which you originally submitted. HitTail reserves the right to syndicate your HitTail forum posts displayed by you and use that content in connection with any of the services offered by HitTail.
You agree to hold harmless and indemnify HitTail, and its parent, affiliates, officers, agents, employees, advertisers or partners, from and against any claim by a third party arising from or in any way related to your use of HitTail services, violation of these Terms of Service or any other actions connected with use of HitTail services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, HitTail will provide you with written notice of such claim, suit or action.
6. LIMITATION OF LIABILITY
You expressly understand and agree that HitTail, its parent, affiliates, officers, agents, employees, advertisers or partners, shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if HitTail has been advised of the possibility of such damages) resulting from: (i) the use or the inability to use HitTail services; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from HitTail services; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on HitTail services; or (v) any other matter relating to HitTail services.
HITTAIL'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO HITTAIL FOR USE OF THE SERVICE.
Even if HitTail, its parent, affiliates, officers, agents, employees, advertisers or partners have been advised of the possibility of such damages, certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
You expressly understand and agree that:
Your use of HitTail services is at your sole risk. HitTail services are provided on an "as is" and "as available" basis. HitTail expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
Although we use our best efforts and all available means to ensure the confidentiality of your personal data, we may not be held liable in the case of a breach of said confidentiality, regardless of its cause (including, but not limited to, technical difficulty, intrusion into our data processing system, or human mistake).
HitTail makes no warranty that (i) HitTail services will meet your requirements, (ii) HitTail services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of HitTail services will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through HitTail services will meet your expectations, and (v) any errors in the software will be corrected.
Any material downloaded or otherwise obtained through the use of HitTail services is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you from HitTail or through or from HitTail services shall create any warranty not expressly stated in the Terms of Service.
While HitTail prohibits the above conduct in connection with HitTail, you understand and agree that HitTail may or may not pre-screen its services and forum but shall have the right (yet not the obligation) in its sole discretion to pre-screen, refuse or move any Data captured in HitTail or posts made to the discussion forum or blog. You also understand and agree that you nonetheless may be exposed to such conduct and/or content and that you use HitTail at your own risk.
THIRD-PARTY CONTENT - LINKS
HitTail services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because HitTail has no control over such sites and resources, you acknowledge and agree that HitTail is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. These resources, content and services are provided to you "as is" to facilitate your web browsing. You further acknowledge and agree that HitTail shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
As such, you acknowledge that we may not be held liable with respect to third-party resources, such as Google AdWords, Google Search Console, Stripe or PayPal, and you agree to contact the appropriate third party with any claim or request you may have. We may not be held liable with respect to the content, advertisements, products, services or any other data or information available on or from those external sites or sources. Furthermore, you understand that we may not be held liable for any damages or loss arising from or connected with the use of or the reliance on the contents, goods, or services available on those external sites or sources.
8. POLICIES REGARDING COPYRIGHT, TRADEMARKS, AND BRAND IDENTITY
It is our policy to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act or other applicable law.
You are free to incorporate HitTail's trade names, trademarks, service marks, logos, domain names, and other distinctive brand identities in reviewing the HitTail service provided that you reproduce them accurately and in good faith of portraying the service to meet with HitTail's approval. HitTail also requires that you attribute each instance properly, for instance, with a URL to the HitTail website (https://www.hittail.com).
By posting to the HitTail forum, you authorize HitTail to use your trademarks, service marks, trade names, proprietary logos, domain names and any other source or business identifiers in connection with HitTail's authorized distribution of the post.
HitTail grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single website; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to HitTail services. You agree not to access HitTail by any means other than through the interface that is provided by HitTail for use in accessing HitTail services.
10. FEES; USAGE
For monthly Subscribers your service begins on the date you subscribe and automatically renews on that date each month. For annual subscribers your service begins on the date you subscribe and automatically renews one year from your registration date. As a condition of your use of and access to the Service, you agree to pay all applicable fees as described on HitTail's website. Service is priced based on feature set and usage, which means the number of keywords delivered and the number of visits recorded to a registered website(s) for a specified usage period. Website Visits do not include internal page-to-page visits from within the site's domain. We also do not count multiple visits to the same page from the same source (referrer) within one browser session. We only count the initial referral as a visit. HitTail displays your monthly keywords count and monthly visits count on the Plan & Usage page. This value is used to determine which Service level you qualify for.
With respect to such usage, you are responsible for monitoring the volume of keywords delivered and monthly website visits recorded for your HitTail account.
If you are a monthly subscriber, and if the monthly volume of keywords delivered and website visits recorded for your HitTail account exceeds the maximum allowed at your Service level, we will upgrade your HitTail account to the appropriate Service level at the end of that month. If you are a monthly subscriber, and if the monthly volume of keywords delivered and website visits recorded for your HitTail account can be covered by a lower Service level, we will downgrade your HitTail account to the appropriate Service level at the end of that month.
If you are an annual subscriber, and if the volume of keywords delivered and website visits recorded for your HitTail account exceeds the maximum allowed at your Service level, we will upgrade your HitTail account to the appropriate Service level at the end of your twelve month subscription period. If you are an annual subscriber, and if the volume of keywords delivered and website visits recorded for your HitTail account can be covered by a lower Service level, we will downgrade your HitTail account to the appropriate Service level at the end of your twelve month subscription period.
Prior to upgrading or downgrading your Service level, we will notify you about the changes via email provided in your HitTail account. You may contact us via email to request a change in the Service you are receiving and your account will be reinstated once you have paid applicable fees for the new Service.
We may change the fees for our Service at any time and from time to time effective immediately upon posting on our website, provided that, no fee change will be effective as to Service orders accepted by HitTail prior to the effective date of such change.
Unless otherwise stated, all fees are stated in U.S. Dollars. All fees are payable monthly/annually in advance. We reserve the right to deactivate your access to the Service for failure to pay applicable fees.
11. NO RESALE OF SERVICE OR DATA COLLECTED ON YOUR BEHALF
You agree not to reproduce, duplicate, copy, sell, trade, reverse engineer, or resell any portion of HitTail services or data collected on your behalf, use of HitTail services, or access to HitTail services.
12. MODIFICATIONS, TERMINATIONS
HitTail reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the HitTail service (or any part thereof) with or without notice. You agree that HitTail shall not be liable to you or to any third party for any modification, suspension or discontinuance of HitTail services.
PAYMENT, REFUNDS, UPGRADING AND DOWNGRADING TERMS
The Service is billed in advance on a monthly or annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. You may contact customer service to request a refund for extenuating circumstances.
For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.
Downgrading your Service may cause the loss of Content, features, or capacity of your Account. HitTail does not accept any liability for such loss.
You can cancel your HitTail account at any time when you are logged into your HitTail account by going to your account preferences: Account -> Plans & Usage -> click on the "cancel your account" link and follow further instructions.
You may also cancel your subscription by logging into the PayPal account that you used to sign up for HitTail and process a subscription cancellation. As soon as we get notification of your cancellation from PayPal, you will no longer be able to access the paid features. If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again.
You understand that HitTail may terminate your account as per Section 7, Fees, Usage.
You also understand that failure to comply with HitTail's Terms of Service agreement will result in an immediate termination of your account, without warning.
For HitTail Basic Subscribers, HitTail may at any time and for any reason, including a period of account inactivity, terminate your access to HitTail services, terminate this Terms of Service, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system. Except as set forth above or if HitTail has previously canceled or terminated your use of HitTail services (in which case subsequent notice by HitTail shall not be required), if you have provided an alternate email address, HitTail will notify you via email of any such termination or cancellation, which shall be effective immediately upon HitTail's delivery of such notice. Sections 13 through 18 of the Terms of Service (including the section regarding limitation of liability), shall survive expiration or termination.
13. ADVERTISEMENTS; DISTRIBUTORS; AFFILIATES
HitTail may choose to implement advertising on the HitTail website and/or in the HitTail service at a later date. HitTail reserves the right to determine the manner, mode and extent of advertising on its services which will be subject to change. You agree that HitTail shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of you clicking on such advertisement or as the result of the presence of such advertisers on HitTail's services.
HitTail may choose to enter into a relationship for the purpose of re-selling third-party services. HitTail reserves the right to determine the manner, mode and extent of such services which will be subject to change. You agree that HitTail shall not be responsible or liable for any loss or damage of any sort incurred by you electing to sign up for a third-party service offered through HitTail.
14. SERVICE LEVELS
HitTail periodically schedules system downtime for maintenance and other purposes and will make all best efforts to notify you in advance. Unplanned system outages also may occur. HitTail 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 HitTail's control such as, but not limited to, strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where HitTail or your servers are located or co-located.
15. NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this Terms of Service, there shall be no third party beneficiaries to the Terms of Service.
16. GENERAL INFORMATION
HitTail services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because HitTail has no control over such sites and resources, you acknowledge and agree that HitTail is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that HitTail shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
Notices. HitTail may send you notices via email, or display on the Site links to said notices. HitTail may use this method, for instance, to inform you of future revisions to the Terms of Service.
Entire Agreement. The Terms of Service constitute the entire agreement between you and HitTail and govern your use of HitTail's services, superseding any prior agreements between you and HitTail. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other HitTail services, affiliate services, third-party content or third-party software.
Choice of Law and Forum. The Terms of Service and the relationship between you and HitTail shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and HitTail agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Palo Alto, California.
Choice of Language. The terms of Service and any official communication between you and HitTail shall be in English without regard to any content on the HitTail website in other languages. Any English content on the website supersedes any similar content on the HitTail website in other languages.
Waiver and Severability of Terms. The failure of HitTail to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of HitTail services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section headings in the Terms of Service are for convenience only and have no legal or contractual effect.