PamLytics for Skype

Terms of Use

The following are the terms and conditions for the use of the PamLytics service (the “Service”) between Scendix Software-Vertriebsgesellschaft mbH, (“Scendix”) and you (either an individual or a legal entity that you represent as an authorized employee or agent) (“You” and the phrase “Your” shall be construed accordingly). Please read them carefully.

1. DEFINITIONS

In this Agreement, the following words have the meanings set out below:
“Account” refers to Your billing account for the Service;
“Customer Data” means the data concerning the characteristics and activities (transactional data) of Skype users collected through use of PamLytics and then forwarded to the Servers and analyzed by the Processing Software;
“Documentation” means any accompanying proprietary documentation made available to You by Scendix for use with the Service, including any documentation available online or otherwise;
“PLTA” means the proprietary PamLytics Tracking Application, which is provided by Scendix and installed by you on a local computer for the purpose of collecting Customer Data, together with any fixes, updates and upgrades provided to you (collectively, “PLTA”);
“Party” means a party to this Agreement and shall be a reference to wither You or Scendix, as the context requires and “Parties” shall mean both Scendix and You collectively;
“Processing Software” means the proprietary PamLytics software and all upgrades to such, which is hosted by Scendix on the Servers and which 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 Customer Data as a unique Report. There can be multiple Profiles established under a single Account;
“Report” means the resulting analysis shown at https://portal.pamlytics.com (or such other URL Scendix may provide from time to time) for an individual Profile. The number of charts, graphs, and statistics contained in a Report may vary with the edition of the Service;
“Section” means any section of this Agreement;
“Servers” means the servers controlled by Scendix (or its wholly owned subsidiaries) upon which the Processing Software and Customer Data are stored;
“Software” means the PLTA and the Processing Software.

2. FEES AND SERVICES

2.1 Scendix may change its fees and payment policies for the Service from time to time. Scendix shall provide You notice of the changes to the fees or payment policies at https://portal.pamlytics.com (or such other URL as Scendix may nominate for this use from time to time) and your continued use of the Services following such notification shall be deemed to be acceptance of such change.

3. MEMBER ACCOUNT, PASSWORD, AND SECURITY

3.1 To register for the Service, You must complete the registration process by providing Scendix with current, complete and accurate information as prompted by the registration form, including Your e-mail address (user name) and password.
3.2 You shall protect the confidentiality of the passwords and user names issued to you by Scendix and take full responsibility for Your own, and third party, use of Your password or Account. You are solely responsible for any and all activities (including misuse) that occur under Your password or Account. You agree to notify Scendix immediately upon learning of any unauthorised use of Your Account or any other breach of security known to You. From time to time, Scendix’s (or its wholly-owned subsidiaries’) support staff may log in to the Service under Your username in order to maintain or improve the Service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.

4. NON EXCLUSIVE LICENCE

4.1 Scendix hereby grants You a limited, revocable, non-exclusive, non-transferable licence (without the right to sub-licence) to install, copy and use the PLTA solely to the extent necessary to use the Service for one or more computers that You own and control (collectively, the “Computer(s)”). Scendix also grants you the right to remotely access, view and download Your Reports stored at https://portal.pamlytics.com (or such other URL as Scendix may nominate for this use from time to time). Your licence of the PLTA and your use of and access to the Service (which includes, without limitation, the Software, Documentation and the Reports) is conditional upon Your compliance with the terms and conditions of the Agreement.
4.2 You will not nor will You allow any third party to
(i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation;
(ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except to the extent applicable laws specifically prohibit such restriction
(iii) rent, sublicense, lease, sell, assign or otherwise transfer rights (or purport to do any of the same) in or to the PLTA, the Processing Software, the Documentation or the Service;
(iv) remove any proprietary notices or labels on the Software or which are otherwise placed by the Service; or
(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. Subject to Section 4.3, You will use the Software, Service and Reports solely for Your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply (and shall ensure that any third parties to whom You grant access to the reporting functions of the Software comply) with all applicable laws and regulations relating to the use of and access to the Documentation, Software, Service and Reports.
4.3 You may not provide access to the Software to third parties. However, You may (at Your own risk) provide access to the reporting functions of the Software to third parties (a “Third Party”) as long as You do not directly or indirectly charge a service fee for granting such access and provided that You remain responsible for such Third Parties’ use of any information or other material You provide.
4.4 The licence granted above and your right of use of the Service will terminate immediately if You fail to comply with the terms of this Agreement and the provisions of Section 13 will apply.

5. CONFIDENTIALITY

5.1 For the purposes of this Agreement, “Confidential Information” includes any proprietary data and any other information disclosed by one Party to the other (whether directly or indirectly and in any form) and which is either marked “confidential” or is by its nature confidential. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public (other than due to wrongful use or disclosure by either Party), 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.
5.2 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. A Party so compelled to disclose Confidential Information will give the other Party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement (and without prejudice to the other provisions of Section 13) the Parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.

6. PRIVACY

6.1 You will not associate (or permit any third party to associate) any data gathered from computer(s) (or such third parties’ computer(s)) with any personally identifying information from any source as part of Your use (or such third parties’ use) of the Service. You will comply with all applicable data protection and privacy laws relating to Your use of the Service and the collection of information from Skype users connected to the Service. Scendix will not associate your IP address with any other data held by Scendix. By using this Service, you consent to the processing of data about You by Scendix in the manner and for the purposes set out above.
6.2 You agree that Scendix and its wholly owned subsidiaries may retain and use, subject to the terms of its Privacy Policy (located at http://www.pamlytics.com/privacy (or such other URL as Scendix may nominate for this use from time to time), information collected in Your use of the Service (including without limitation Customer Data) for the purpose of providing analytics and tracking services to You. Scendix will not share such information with any third parties unless Scendix
(i) has Your consent;
(ii) concludes that it is required by law or has a good faith belief that such disclosure is reasonably necessary to protect the rights, property or safety of Scendix, its users or the public; or
(iii) provides such information in certain limited circumstances to third parties to carry out tasks on Scendix’s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by Scendix. When this is done, it is subject to agreements that oblige those parties to process such information only on Scendix’s instructions and in compliance with this Agreement and appropriate confidentiality and security measures.

7. INDEMNIFICATION

You agree to indemnify Scendix and, its agents, affiliates, directors, officers, employees and partners against any loss, liability or cost arising out of
(i) Your violations of any applicable laws, rules or regulations in connection with Your use of the Service;
(ii) any breach of the provisions of this Agreement by any third party to whom You provide access to Your Account or the reporting functions of the Software; and
(iii) any claim against Scendix made by any such third party in connection with the third party’s access to Your Account or the Service.

8. USE BY THIRD PARTIES

8.1 If You provide access to Your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party, whether or not You are authorized to do so by Scendix or its wholly owned subsidiaries, the terms of this Section 10 shall apply.
8.2 If You use the Service on behalf of any third party, you hereby represent and warrant to Scendix that (a) You are fully authorised to act on behalf of such third party and to bind such third party to this Agreement; and (b) as between that third party and You, such third party owns all right, title and interest in and to the Customer Data in any relevant Account(s).
8.3 Without prejudice to Section 10.2, You shall ensure that each such third party complies with the terms of this Agreement as if it were a party hereto in substitution for You. Any information of any such third party that is considered confidential shall be treated as confidential by You and shall not be disclosed to any other third party. Without prejudice to the foregoing, You agree that You shall not disclose any Customer Data belonging to any third party on whose behalf You use the Service without the prior written consent of such third party.

9. DISCLAIMER OF WARRANTIES

Scendix may make improvements and/or changes in the Service or Software at any time, with or without notice. The Service, the Software and the Reports are provided “as is” and Scendix gives no warranties with respect to any of them. Without limiting the generality of the foregoing, Scendix does not represent or warrant that: (i) the use of the Service or the Software will meet your requirements or be uninterrupted, secure or error-free, (ii) that defects will be corrected, (iii) that the Service, the Software or any other software on the Server are free of viruses or other harmful components, or (iv) that the use of the Service and any information available through the Service (including the Reports) will be correct, accurate, timely or otherwise reliable. No conditions, warranties or other terms including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Services except to the extent that they are expressly set out in this Agreement.

10. LIMITATION OF LIABILITY

10.1 Nothing in this Agreement shall exclude or limit either Party’s liability for:
(a) death or personal injury resulting from the negligence of either Party or their servants, agents or employees;
(b) fraud or fraudulent misrepresentation;
(c) breach of any implied condition as to title or quiet enjoyment; or
(d) misuse of confidential information.
10.2 Nothing in this Agreement shall exclude or limit either Party’s liability: for breach of Section 5 (Confidentiality), under the indemnities in Section 7, or for infringement of the other Party’s intellectual property rights.
10.3 Subject to Sections 10.1 and 10.2, neither Party shall be liable in contract, tort (including, without limitation, negligence) or otherwise arising out of or in connection with this Agreement for:
(a) any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings or cost of substitute services);
(b) any loss of goodwill or reputation; (c) any special, indirect or consequential losses; whether or not such losses were within the contemplation of the Parties at the date of this Agreement.
10.4 Subject to Sections 10.1 and 10.2, You agree that Scendix and its wholly owned subsidiaries shall not be responsible for or have any liability in relation to unauthorised access to or alteration of the Customer Data.
10.5 Scendix shall have no liability for any error, defect, failure or delay in the Services. Without prejudice to the generality of the foregoing, Scendix shall have no liability for any failure or delay in the Services:
(1) caused by outages to any public internet backbones, networks or servers,
(2) caused by any failures of Your equipment, systems or local access services, or
(3) due to previously scheduled maintenance.
10.6 Subject to Sections 10.1 and 10.2, Scendix’s (and its wholly owned subsidiaries’) total cumulative liability (whether in contract, tort (including negligence) or otherwise) to You under or in connection with this Agreement shall not exceed $371.74 or, if greater, the amount paid or payable by You to Scendix under this Agreement.

11. PROPRIETARY RIGHTS NOTICE

11.1 PamConsult GmbH (of which Scendix is a wholly owned subsidiary) shall own all right, title and interest, including without limitation all intellectual property rights in the Service, (and any derivative works or enhancements thereof) which includes but is not limited to the Software and the Documentation, All rights in and to the Service (including the Software and the Documentation) not expressly granted to You in this Agreement are hereby expressly reserved and retained by Scendix and its licensors.
11.2 Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to)
(a) use the trade marks, service marks, trade or business names, logos, domain names, other distinctive brand features or any other copyrighted material or other proprietary rights owned by PamConsult GmbH and which are associated with the Service without the express written consent of Scendix;
(b) register, attempt to register or assist any third party to register or attempt to register any trade mark, service mark, trade or business name, logo, domain name, other distinctive brand feature or any other copyrighted material or proprietary right associated with the Service or with Scendix, otherwise than in the name of Scendix and with Scendix express prior written consent;
(c) remove, obscure or alter any notice of copyright, trade mark or other proprietary right notice appearing in or on any item included with the Service.

12. TERM and TERMINATION

12.1 This Agreement shall commence on the date when you accept these terms and conditions as specified above and shall remain in force unless terminated by either Party at any time, for any reason.
12.2 Upon any termination or expiration of this Agreement:
a) Scendix will cease providing the Service, and You will delete all copies of the PLTA in your possession and certify to Scendix within three (3) business days of such termination that you have carried out such deletion. Failure to remove the PLTA from computers within three (3) business days of termination and to so certify will result in Scendix’s continued billing for the Service until such time that the PLTA is removed from computers; and
b) You will not be entitled to any refunds of any usage fees or any other fees; and
c) any
(i) outstanding balance for any part of the Service rendered through the date of termination, and
(ii) other unpaid payment obligations during the remainder of the term of this Agreement will be immediately due and payable in full; and
d) all of Your historical report data will no longer be available to You unless You and Scendix enter into a written agreement for the exchange and transfer of such data.

13. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES

Scendix reserves the right to change or modify any of the terms and conditions contained in this Agreement (or any policy referred to in this Agreement which governs the Service), at any time, by posting the new agreement to the site located at http://www.pamlytics.com (or such other URL as Scendix may nominate for this use from time to time) and notifying you of such amendment. If you continue to use the Service following such notification, you will be deemed to have accepted such change or modification.

14. MISCELLANEOUS; APPLICABLE LAW AND VENUE

Other than in respect of payment obligations, neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control (including but not limited to acts of god, war, terrorism, civil commotion, acts of government, court order, changes to any applicable laws, internet or telecommunications disturbances, industrial dispute or any failure or delay by the other Party to fulfil its obligations under this Agreement).
This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes all previous contracts, representations or arrangements of any kind between the Parties relating to its subject matter. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement. You shall not assign or otherwise transfer Your rights or delegate Your obligations under this Agreement, in whole or in part, without the prior written consent of Scendix which shall not be unreasonably withheld or delayed. Scendix may sub-contract or assign or transfer any of its obligations or rights under this Agreement in whole or in part at its sole discretion.
This Agreement shall 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: 3, 4.2, 5, 7, 8 and 10 to 14 inclusive. Nothing in this Agreement shall create or confer any rights or other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person other than the Parties to this Agreement.
Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the Parties or as constituting either Party as the agent of the other Party for any purpose whatsoever and neither Party shall have the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party in any way or for any purpose. Any notices to Scendix must be sent via first class post, air mail or courier service, to the legal department at Scendix Software-Vertriebsgesellschaft mbH, Am Hornsgehege 6-8, 29574 Ebstorf, Germany – and shall be only be deemed to have been given upon actual receipt. Notice to you is acceptable by sending emails to your specified email address and is deemed received when sent.
This Agreement shall be governed by and construed in accordance with German law and the Parties hereby submit to the exclusive jurisdiction of the German courts in respect of any dispute or matter arising out of or connected with this Agreement. Neither the UN-treaty (CISG) nor any other existing or future bilateral or international treaties, even if implemented into German law, shall be applicable. Any translation of the English language, German law version of this Agreement (the “Original Agreement”) is provided for convenience only and You agree that in the event of a conflict between the translated version and the Original Agreement, the provisions of the Original Agreement shall prevail.