Terms of Service

This Terms of Use Agreement (the “Terms of Use“) applies to monibeat.com and all other websites, features, and online services that are owned or controlled by MoniBeat, its affiliates, or agents (“MoniBeat”, “us”, “we”, or “our”) and that post or include a link to these Terms of Use (collectively, the “Website”), whether accessed via computer, mobile device, or otherwise.

Important

PLEASE READ THESE TERMS OF USE CAREFULLY. THE WEBSITE AND THE INFORMATION ON IT ARE CONTROLLED BY MONIBEAT. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY BROWSING THE WEBSITE, REGISTERING FOR AN ACCOUNT, AND/OR CLICKING ON THE “I ACCEPT” BUTTON, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MONIBEAT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

PLEASE BE AWARE THAT IF YOU ARE A RESIDENT OF THE UNITED STATES, SECTION 13 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT. USERS IN THE UNITED KINGDOM SHOULD PRINT A COPY OF THESE TERMS OF USE OR SAVE A LOCAL COPY TO YOUR COMPUTER OR DEVICE FOR FUTURE REFERENCE.

Your use of, and participation in, certain online services or features of the Website, may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental services or features. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such services or features. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY MONIBEAT IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, MoniBeat will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new Users of the Website and the Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 below). MoniBeat may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. Use of the Services and MoniBeat Properties

The Website, the Services, the Software (defined in Section 1.1 below), and the information and content available on or through the Website, the Software, and the Services (as these terms are defined herein) (each, a “MoniBeat Property” and collectively, the “MoniBeat Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, MoniBeat grants you a limited license to reproduce portions of MoniBeat Properties for the sole purpose of using the Services for your personal or internal business purposes, such as monitoring the uptime and performance of your websites or applications. Unless otherwise specified by MoniBeat in a separate license, your right to use any and all MoniBeat Properties is subject to the Agreement.

1.1 MoniBeat Software

Use of any software and associated documentation that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download, or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will MoniBeat provide you with any tangible copy of our Software. MoniBeat shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating, or problem resolution of any Software (including any new releases); or (b) delivery, correction, or updating of documentation. For the purposes of this section, tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, MoniBeat grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement, such as monitoring website uptime. Some Software may be offered under an open-source license that we will make available to you. There may be provisions in the open-source license that expressly override some of these terms.

1.2 Updates

You understand that MoniBeat Properties are evolving. As a result, MoniBeat may require you to accept updates to MoniBeat Properties that you have installed on your computer or mobile device. You acknowledge and agree that MoniBeat may update MoniBeat Properties with or without notifying you. You may need to update third-party software from time to time in order to use MoniBeat Properties.

1.3 Certain Restrictions

The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit MoniBeat Properties or any portion of MoniBeat Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other MoniBeat Properties (including images, text, page layout, or form) of MoniBeat; (c) you shall not use any metatags or other “hidden text” using MoniBeat’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of MoniBeat Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access MoniBeat Properties in order to build a similar or competitive website, application, or service; (g) except as expressly stated herein, no part of MoniBeat Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in MoniBeat Properties. Any future release, update, or other addition to MoniBeat Properties shall be subject to the Agreement. MoniBeat, its suppliers, and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any MoniBeat Property terminates the licenses granted by MoniBeat pursuant to the Agreement.

1.4 Third-Party Materials

As a part of MoniBeat Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for MoniBeat to monitor such materials and that you access these materials at your own risk.

2. Registration

2.1 Registering Your Account

In order to access certain features of MoniBeat Properties, such as uptime monitoring or performance alerts, you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the User has connected to the Website (each such account, a “Third-Party Account”).

2.2 Access Through a SNS

If you access the MoniBeat Properties through an SNS as part of the functionality of the Website and/or the Services, you may link your Account with Third-Party Accounts by allowing MoniBeat to access your Third-Party Account as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to MoniBeat and/or grant MoniBeat access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating MoniBeat to pay any fees or making MoniBeat subject to any usage limitations imposed by such third-party service providers.

2.3 Registration Data

In registering an account on the Website, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You represent that you are (l) at least sixteen (16) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using MoniBeat Properties under the laws of the United States, your place of residence, or any other applicable jurisdiction.

2.4 Your Account

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of MoniBeat.

2.5 Necessary Equipment and Software

You must provide all equipment and software necessary to connect to MoniBeat Properties, including but not limited to, a mobile device that is suitable to connect with and use MoniBeat Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing MoniBeat Properties.

3. Ownership

3.1 MoniBeat Properties

You agree that MoniBeat and its suppliers own all rights, title, and interest in MoniBeat Properties (including but not limited to, any titles, computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation).

3.2 Trademarks

MoniBeat Logo and all related graphics, logos, service marks, and trade names used on or in connection with any MoniBeat Properties or in connection with the Services are the trademarks of MoniBeat and may not be used without permission in connection with your or any third-party products or services.

3.3 Other Content

You agree that you have no right, title, or interest in or to any Content that appears on or in MoniBeat Properties.

3.4 Feedback

You agree that submission of any ideas, suggestions, documents, and/or proposals to MoniBeat through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that MoniBeat has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.

4. User Conduct

As a condition of use, you agree not to use MoniBeat Properties for any purpose that is prohibited by the Terms of Use or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) upload, post, e-mail, transmit, or otherwise make available any Content on or through MoniBeat Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk, or bulk e-mail; (iv) involves commercial activities and/or sales without MoniBeat’s prior written consent; (v) impersonates any person or entity, including any employee or representative of MoniBeat; (vi) interferes with or attempts to interfere with the proper functioning of MoniBeat Properties or uses MoniBeat Properties in any way not expressly permitted by the Terms of Use; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against MoniBeat Properties.

5. Third-Party Services

5.1 Third-Party Websites

MoniBeat Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left MoniBeat Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of MoniBeat.

6. Indemnification

You agree to indemnify and hold MoniBeat, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “MoniBeat Party” and collectively, the “MoniBeat Parties”) harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any MoniBeat Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules, or regulations.

7. Disclaimer of Warranties and Conditions

7.1 As Is

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF MONIBEAT PROPERTIES IS AT YOUR SOLE RISK, AND MONIBEAT PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.

8. Limitation of Liability

8.1 Disclaimer of Certain Damages

YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MONIBEAT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

8.2 Cap on Liability

UNDER NO CIRCUMSTANCES WILL MONIBEAT PARTIES BE-LiABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO MoniBeat by you during the one-month period prior to the act, omission, or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.

9. Procedure for Making Claims of Copyright Infringement

It is MoniBeat’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to MoniBeat by the copyright owner or the copyright owner’s legal agent.

10. Remedies

10.1 Violations

If MoniBeat becomes aware of any possible violations by you of the Agreement, MoniBeat reserves the right to investigate such violations.

10.2 Breach

In the event that MoniBeat determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for MoniBeat Properties, MoniBeat reserves the right to take appropriate action.

11. Term and Termination

11.1 Term

The Agreement commences on the date when you accept them and remains in full force and effect while you use MoniBeat Properties, unless terminated earlier in accordance with the Agreement.

11.2 Termination of Services by MoniBeat

If you have materially breached any provision of the Agreement or if MoniBeat is required to do so by law, MoniBeat has the right to, immediately and without notice, suspend or terminate any Services provided to you.

12. International Users

MoniBeat Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.

13. Dispute Resolution in the United States

13.1 Applicability of Arbitration Agreement

You agree that any dispute or claim relating in any way to your access or use of the Website or Services, or any aspect of your relationship with MoniBeat, will be resolved by binding arbitration, rather than in court.

13.2 Arbitration Rules and Forum

To begin an arbitration proceeding, you must send an email to legal@monibeat.com and send a letter requesting arbitration and describing your claim to our registered agent.

14. General Provisions

14.1 Electronic Communications

The communications between you and MoniBeat may take place via electronic means.

14.2 Governing Law

The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act.