HELIUM TERMS OF SERVICE
These Helium Terms of Service (this "Agreement") are entered into by Helium Software, LLC ("Helium Software") and the entity executing this Agreement ("You"). This Agreement governs Your use of the Helium payments and analytics service (the "Service"). BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. In consideration of the foregoing, the parties agree as follows:
- "Account" refers to the billing account for the Service.
- "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
- "Customer Data" means the data concerning the characteristics and activities of Visitors that is collected through use of the Helium API and then forwarded to the Servers. This data will be used to track Customer Payments and analyzed using our Processing Software.
- "Customer Payments" means the transactions, and related data, made by a Customer with the intent of purchasing a product or service from You.
- "Documentation" means any accompanying documentation made available to You by Helium Software for use with the Processing Software, including any documentation available online.
- "Helium API" means the Helium Tracking Code, which is installed on a Property for the purpose of collecting Customer Data and accepting Customer Payments, together with any fixes, updates and upgrades provided to You, and related API endpoints on Helium Software servers.
- "Processing Software" means the Helium Software server-side software and any upgrades, which facilitates and tracks the Customer Payments, analyzes the Customer Data, and generates the Reports.
- "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 under a single Property.
- "Property" means a group of web pages or apps that are linked to an Account and use the same Account. Each Property includes a default Profile that measures all pages within the Property.
- "Report" means the resulting analysis delivered, by request, to You from Helium Software.
- "Servers" means the servers controlled by Helium Software (or third-party vendors it works with) on which the Processing Software and Customer Data are stored.
- "Third Party" means any third party (i) to which You provide access to Your Account or (i) for which You use the Service to collect information on the third party's behalf.
- "Visitors" means visitors to Your Properties.
- The words "include" and "including" mean "including but not limited to."
2. Fees and Service.
Subject to Section 15, the Service is provided for the fee of 2% of the sum of all revenue from all Customer Payments processed through the Helium API. Helium Software may change its fees and payment policies for the Service from time to time including the addition of costs for geographic data, the importing of cost data from search engines, or other fees charged to Helium Software or its wholly-owned subsidiaries by third 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 those changes which will be posted at http://www.gethelium.com/account. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys' fees) incurred by Helium Software will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with Your AdWords account.
3. Member Account, Password, and Security.
To register for the Service, You must complete the registration process by providing Helium Software with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You will notify Helium Software immediately upon learning of any unauthorized use of Your Account or any other breach of security. Helium Software's (or its wholly-owned subsidiaries') support staff may, from time to time, log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues.
4. Nonexclusive License.
Subject to the terms and conditions of this Agreement, (a) Helium Software grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Helium API tracking code solely as necessary for You to use the Service on Your Properties or Third Party's Properties; and (b) You may remotely access and view Your Reports stored at https://gethelium.com/orders/. You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (vi) use data labeled as belonging to a third party in the Service for purposes other than generating, viewing, and downloading Reports. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service and Reports.
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
6. Information Rights and Publicity.
Helium Software and its wholly owned subsidiaries may retain and use information collected in Your use of the Service. Helium Software will not share Your Customer Data or any Third Party's Customer Data with any third parties unless Helium Software (i) has Your consent for any Customer Data or any Third Party's consent for the Third Party's Customer Data; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of Customer Data is reasonably necessary to protect the rights, property or safety of Helium Software, its users or the public; or (iii) provides Customer Data in certain limited circumstances to third parties to carry out tasks on Helium Software's behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by Helium Software. When this is done, it is subject to agreements that oblige those parties to process Customer Data only on Helium Software's instructions and in compliance with this Agreement and appropriate confidentiality and security measures.
We may share Customer Data, details about your Customer Payments, and your personal information with:
- Institutions (such as Stripe, Inc or Wells Fargo Bank, N.A.) whom we partner with to process credit card purchases.
- Service providers under contract who help with parts of our business operations such as fraud prevention, bill collection, marketing and technology services. Our contracts dictate that these service providers only use your information in connection with the services they perform for us and not for their own benefit.
- Credit bureaus to report account information, as permitted by law.
- Law enforcement, government officials, or other third parties when
- we are compelled to do so by a subpoena, court order or similar legal procedure
- we need to do so to comply with law or credit card rules
- we believe in good faith that the disclosure of personal information is necessary to prevent physical harm or financial loss, to report suspected illegal activity or to investigate violations of our User Agreement.
- Other third parties with your consent or direction to do so.
To the extent permitted by applicable law, You will indemnify, hold harmless and defend Helium Software and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against Helium Software or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by Helium Software 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, (iv) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (vi) violations of Your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software or Reports. Helium Software will provide You with written notice of any claim, suit or action from which You must indemnify Helium Software. You will cooperate as fully as reasonably required in the defense of any claim. Helium Software reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. Third Parties.
If You use the Service on behalf of the Third Party or a Third Party otherwise uses the Service through Your Account, whether or not You are authorized by Helium Software to do so, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement, (b) Helium Software may share with the Third Party any Customer Data that is specific to the Third Party's Properties, and (c) You will not disclose Third Party's Customer Data to any other party without the Third Party's consent.
10. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, HELIUM SOFTWARE MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
11. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, HELIUM SOFTWARE WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF HELIUM SOFTWARE OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. HELIUM SOFTWARE'S (AND ITS WHOLLY OWNED SUBSIDIARIES' TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $500 (USD).
12. Proprietary Rights Notice.
The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of Helium Software (and its wholly owned subsidiaries). All rights in and to the Software not expressly granted to You in this Agreement are reserved and retained by Helium Software and its licensors without restriction, including, Helium Software's (and its wholly owned subsidiaries') right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) 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 Helium Software; (f) 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 Helium Software (or its wholly owned subsidiaries) other than in the name of Helium Software (or its wholly owned subsidiaries, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
13. Term and Termination.
Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, Helium Software will stop providing, and You will stop accessing the Service; and You will delete all copies of the Helium API tracking code from all Properties and certify thereto in writing to Helium Software within 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.
14. Modifications to Terms of Service and Other Policies.
Helium Software may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service. You should look at the terms regularly. Helium Software will post notice of modifications to these terms at https://gethelium.com/account/ or policies referenced in these terms at the applicable URL for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified terms for the Service, You should discontinue Your use of the Service. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Helium Software, (ii) You accept updated terms online, or (iii) You continue to use the Service after Helium Software has posted updates to the Agreement or to any policy governing the Service.
15. Miscellaneous, Applicable Law and Venue.
Helium Software will be excused from performance in this Agreement 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 You and Helium Software 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 will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of Texas without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Texas law, rules, and regulations, Texas law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Williamson County, Texas. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do 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 Helium Software must be sent to: Helium Software LLC, 3571 Far West Blvd #24, Austin, TX 78731 USA, with a copy to Legal Department, 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 in this Agreement without Helium Software's prior written consent, and any such attempt is void. The relationship between Helium Software and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 12, 14, and 16.