Terms of Service

Last updated on April 12, 2024.

These Terms of Service (the “Terms”) are a binding contract between the customer listed on the applicable Work Order (including any end-users, “Customer”) and Chartbeat, Inc. These Terms govern Customer’s use of the website(s), products, services and applications (the “Services”) offered by Chartbeat, Inc. (the “Chartbeat Services”) and/or by its affiliate, Tubular Labs, Inc. (“Tubular” and, such Services, the “Tubular Services”). Chartbeat, Inc. and Tubular are collectively referred to as “Chartbeat”. For any questions, comments, or concerns regarding these terms or the Services, please contact:

Chartbeat
Email: privacy@chartbeat.com
Address: 701 Tillery St, Unit 12-1019, Austin, TX 78702

Tubular
Email: privacy@tubularlabs.com
Address: 447 Sutter Street, Suite 405, San Francisco, CA 94108

Customer’s use of the Services in any way or, with respect to the Chartbeat Services, Customer’s implementation of any Chartbeat Services means that Customer agrees to all of these Terms, and these Terms will remain in effect while Customer uses the Services. These Terms include the provisions in this document as well as those in the Chartbeat Privacy Policy, the Chartbeat Data Processing Agreement, the Tubular Privacy Policy, the Tubular Data Processing Agreement and the API Terms of Use each as applicable, as well as any work orders, statements of work or other agreement governing the provision of the applicable Services (“Work Orders”).

Please read these Terms carefully. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT CUSTOMER’S AND CUSTOMER’S USERS’ USE OF AND ACCESS TO THE SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF CUSTOMER DOES NOT AGREE TO ALL OF THE FOLLOWING, CUSTOMER AND CUSTOMER’S USERS MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. EACH USER IS ENTERING INTO THESE TERMS ON BEHALF OF CUSTOMER AND REPRESENTS AND WARRANTS THAT IT IS AUTHORIZED TO BIND CUSTOMER TO THESE TERMS.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, CUSTOMER AGREES THAT DISPUTES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND CUSTOMER WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. Product Descriptions; Intellectual Property Rights

The products, services and applications offered by Chartbeat and Tubular are more particularly described here. The Services and all software and other technologies embodied in or used to provide the Services as well as all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Chartbeat and Tubular, as the case may be.

2. Modification

Chartbeat reserves the right to change the Terms at any time. In the event material changes are made, Chartbeat will place a notice on the applicable site, send Customer an email, and/or notify Customer by some other means. If Customer or Customer’s users disagree with any of these Terms, Chartbeat does not grant Customer or such user a license to use the Services. Customer’s and each user’s continued use of the Services after Chartbeat posts a new version of these Terms will be conclusively deemed to be acceptance by Customer of any such new version.

Except for changes by Chartbeat as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both Customer and Chartbeat.

3. Children’s Online Privacy Protection Act

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before knowingly collecting personally identifiable information online from children who are under 13 years of age. Chartbeat does not knowingly collect or solicit personally identifiable information from children under 16 years of age. If Chartbeat learns that it has collected personal information from a child under 16 years of age, Chartbeat will delete that information as quickly as possible. If Customer believes that a child under 16 years of age may have provided personal information to Chartbeat, Customer shall immediately contact Chartbeat at support@chartbeat.com for Chartbeat Services and support@tubularlabs.com for Tubular Services.

4. Access to the Services

Each Customer user will be required to sign up for an account, select a password and user name (“User ID”), and provide certain information or data, such as their contact information. Customer shall provide accurate, complete, and updated registration information about its users. Customer’s users may not select as a User ID a name that Customer does not have the right to use, or another person’s name with the intent to impersonate that person. Customer may not transfer user accounts to anyone else without Chartbeat’s prior written permission.

Additionally, users may be able to access certain parts or features of the Services by using their account credentials from other services (each, a “Third Party Account”), such as those offered by Okta, Google, Meta, or Microsoft. By using the Services through a Third Party Account, Customer and the applicable Customer user permits Chartbeat to access certain information from such account for use by the Services. Customer is ultimately in control of how much information is accessible and may exercise such control by adjusting the privacy settings on the user’s Third Party Account.

Customer’s users will not share their individual User ID, account, password, or API key (to the extent applicable) with anyone, including other Customer users, and must protect the security of their User ID, account, password, API key, and any other access tools or credentials. Customer is responsible for any activity associated with its users’ User ID and accounts.

5. Messaging

As part of the Services, Customer’s users may receive communications through the Services, including messages that Chartbeat sends users (for example, via email or SMS). When signing up for the Services, Customer users will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing Chartbeat with a wireless number, Customer and each of its applicable users confirms that Chartbeat is permitted to send information regarding Customer’s or such user’s account or transactions, which may include Chartbeat using automated dialing technology to text Customer and its applicable users at the wireless number(s) provided, and Customer and each applicable user agrees to receive communications from Chartbeat, and Customer represents and warrants that each person registered for the Services or for whom a wireless phone number is provided has consented to receive communications from Chartbeat. Customer agrees to indemnify and hold Chartbeat harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to Customer or Customer’s users breach of the foregoing.

6. Customer Restrictions

Except as expressly set forth in these Terms, Customer shall not (and shall not permit any user or third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Chartbeat product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Chartbeat may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading data, information, or other material provided by Customer onto the Services.  Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.

7. Customer Content

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. Customer shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content it accesses through the Services, and Customer shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by it, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Chartbeat’s) rights.

Subject to these Terms and except as provided herein, Chartbeat grants to Customer and each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without Chartbeat’s prior written permission. Although the Services may allow users to copy or download certain Content, all the restrictions in these Terms still apply.

1. User Submissions

Anything Customer or Customer’s users post, upload, share, store, or otherwise provide publicly about the Services such as through public social media accounts or third party review platforms (each, a “User Submission”) may be reposted on the Services. Customer is solely responsible for all User Submissions contributed to the Services. Customer represents that all User Submissions submitted by it are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.

Customer agrees that it will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.

2. Licenses

In order to display Customer’s User Submissions on the Services, and to allow other users to enjoy them (where applicable), Customer grants to Chartbeat certain rights in User Submissions. Please note that all of the following licenses are subject to the Chartbeat Privacy Policy and/or the Tubular Privacy Policy, as applicable, to the extent they relate to User Submissions that may contain personally-identifiable information.

By submitting User Submissions, Customer hereby does and shall grant to Chartbeat (i) a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Services and Chartbeat’s (and its successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after Customer’s termination of an account or the Services and (ii) a non-exclusive, royalty-free, limited license to use Customer’s name, logo and trademark(s) on Chartbeat’s website and in other marketing materials to identify it as a customer. Customer also hereby does and shall grant each user of the Services a non-exclusive, perpetual license to access its User Submissions through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after Customer’s termination of an account or the Services. For clarity, the foregoing license grants to Chartbeat and its users do not affect Customer’s other ownership or license rights in its User Submissions, including the right to grant additional licenses to its User Submissions, unless otherwise agreed in writing. Customer represents and warrants that it has all rights to grant such licenses to Chartbeat without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.

Certain features of the Services allow users to share information with others, including through social networks or other Third Party Accounts. When Content is authorized for sharing, Chartbeat will clearly identify the Content authorized to redistribute and the ways it may be redistributed, usually by providing a “share” button on or near the Content. If Customer shares information from the Services with others through Third Party Accounts, such as social networks, Customer authorizes Chartbeat to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers Customer shares information with or through for additional information about how they may use Customer’s information. If Customer redistributes Content, it must be able to edit or delete any Content it redistributes, and Customer must edit or delete it promptly upon Chartbeat’s request.

Finally, Customer understands and agrees that Chartbeat, in performing the required technical steps to provide the Services, may need to make changes to User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

8. Customer Responsibilities

Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and Customer accesses all such information and Content at its own risk, and Chartbeat is not liable for any errors or omissions in that information or Content or for any damages or loss Customer might suffer in connection with it. Customer hereby releases Chartbeat from all liability for Customer having acquired or not acquired Content through the Services.

Customer is responsible for all Content it contributes, in any manner, to the Services, and represents and warrants it has all rights necessary to do so, in the manner in which Customer contributes it. Customer is also responsible for obtaining the consent of other participants when using the Services to the extent required by applicable law, including, but not limited to, laws governing the monitoring or recording of conversations, cookies and other tracking technologies, and data privacy laws.

The Services may contain links or connections to third-party websites or services that are not owned or controlled by Chartbeat. When Customer accesses third-party websites or use third-party services, Customer accepts that there are risks in doing so, and that Chartbeat is not responsible for such risks.

Chartbeat has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that Customer interacts with through the Services. In addition, Chartbeat will not and cannot monitor, verify, censor or edit the content of any third-party site or service and use of such third-party services may be subject to the terms and conditions and privacy policy of each third-party website or service that Customer visits or utilizes. By using the Services, Customer releases and holds Chartbeat harmless from any and all liability arising from Customer’s use of any third-party website or service.

9. Service Changes

Chartbeat reserves the right to suspend or discontinue any part of the Services, introduce new features, impose limits on certain features or restrict access to parts or all of the Services. Chartbeat will endeavor to provide notice of material changes to the Services that would adversely affect Customer. Chartbeat reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges Customer contributed that Content in violation of these Terms), in its sole discretion, and without notice.

10. Chartbeat Services Terms

If Customer is a Chartbeat Services user, Customer agrees to configure the Services on its website(s) in accordance with Chartbeat’s Documentation. By loading the Chartbeat JavaScript on Customer’s website, it will be placing certain cookies (described in the Chartbeat Cookie page) on Customer’s users’ web browsers when those users visit such website. Customer agrees that it is responsible for such placement and for complying with any applicable laws associated therewith. Chartbeat is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Chartbeat Services or any damages resulting from Customer’s failure to implement the Chartbeat Software on Customer’s website(s) in accordance with Chartbeat’s requirements. Customer agrees to configure the Software on its website(s) in accordance with Chartbeat’s requirements, including by ensuring that URLs containing Personal Data (as defined in the Chartbeat Data Processing Agreement) of end users are not captured by the Services.

Customer must remove all Chartbeat scripts and materials from its website(s), and disable access to the Chartbeat API (as defined in the API Terms of Use), within ninety (90) days after termination.

11. Tubular Services Terms

Customer agrees that it may use the Tubular Services and any data generated or derived from the Tubular Services solely in support of its business operations related to the measurement and analysis of online video audience behavior and not for the benefit of any third party. Notwithstanding the foregoing, Customer may disclose data generated or derived from the Services internally, provided that Customer will not redistribute data or data derived from the Services for direct commercial gain. Customer agrees that it may not disclose data generated or derived from the Services with any third party unless Chartbeat has provided its prior written consent. For more information about redistributing data from the Services or to share such data with a third party, please reach out to the Customer Success Manager. Customer shall conspicuously credit Tubular as the source of any such data that is being disclosed using the phrase “Data provided by Tubular Labs” or a comparable attribution approved in writing by Tubular. Citation guidelines can be found here. In digital media, the attribution shall also include a hyperlink to www.tubularlabs.com.

Upon any termination of the Tubular Services, Customer agrees to delete all raw data generated therefrom and downloaded by Customer and Customer’s users no later than thirty (30) days after such termination and to promptly provide a written confirmation to Chartbeat of such deletion.

12. Payment

Except as otherwise set forth in an applicable Work Order, all fees shall be invoiced annually in advance and all invoices issued under these Terms are payable in U.S. dollars within thirty (30) days from the date of the invoice. All fees paid under these Terms or an applicable Work Order are non-refundable and past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.

Applicable taxes will be invoiced as a separate item or line item and may be billed at a later date. Customer shall pay sales, use, value added, goods and services, and all other similar taxes imposed by any federal, state, or local governmental entity for taxable items and/or any Services provided under these Terms or any applicable Work Order, excluding taxes based solely on Chartbeat’s income or property. Customer and Chartbeat shall cooperate in good faith to minimize taxes to the extent legally permissible. Each party shall provide and make available to the other party any resale certificates, treaty certification, and other exemption information reasonably requested by the other party. Notwithstanding the foregoing, provided Customer furnishes Chartbeat with a valid and timely tax exemption certificate, no sales, use, value added, goods and services, or other similar taxes will be billed.

13. Termination

Customer may terminate the Services only if Chartbeat materially breaches these Terms and fails to cure such breach within thirty (30) days after receiving written notice of such breach from Customer. Notwithstanding the foregoing, if Customer has previously subscribed to the legacy product known as Chartbeat for Everyone, Customer may terminate its use of that service only at any time. Additionally, please refer to the Chartbeat Privacy Policy or the Tubular Privacy Policy, as applicable, as well as the licenses above, to understand how Chartbeat treats information provided following termination.

Chartbeat is also free to terminate (or suspend access to) Customer’s use of the Services or any user account for any reason in its sole discretion, including Customer’s breach of these Terms. Chartbeat has the sole right to decide whether Customer is in violation of any of the restrictions set forth in these Terms. If Customer is not in violation of these Terms or the associated Work Order, and Chartbeat nonetheless terminates Customer’s use of the Services, Customer shall receive a prorated refund of fees paid in advance for the period following such termination.

Account termination may result in destruction of any Content associated with Customer or Customer’s users’ account(s).

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any of Customer’s payment or indemnification obligations, any limitations on Chartbeat’s liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes, including without limitation the arbitration agreement.

14. Mobile Applications

Customer acknowledges and agrees that the availability of the Chartbeat mobile application is dependent on the third party stores from which each user downloads the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which Customer must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. Customer agrees to comply with, and Customer’s license to use Chartbeat’s application is conditioned upon its compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Use, the more restrictive or conflicting terms and conditions in these Terms of Use apply.

1. Apple App Store Terms

These Terms apply to Customer’s use of all the Services, including Chartbeat’s iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:

(a) Both Customer and Chartbeat acknowledge that the Terms are concluded between Customer and Chartbeat only, and not with Apple, and that Apple is not responsible for the Application or the Content;

(b) The Application is licensed to Customer on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services, subject to all the terms and conditions of these Terms as they are applicable to the Services;

(c) Customer will only use the Application in connection with an Apple device that it owns or controls;

(d) Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;

(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, Customer may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Customer will be to refund to it the purchase price, if any, of the Application;

(f) Customer acknowledges and agrees that Chartbeat, and not Apple, is responsible for addressing any claims it or any third party may have in relation to the Application;

(g) Customer acknowledges and agrees that, in the event of any third-party claim that the Application or Customer’s possession and use of the Application infringes that third party’s intellectual property rights, Chartbeat, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

(h) Customer represents and warrants that it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that it is not listed on any U.S. Government list of prohibited or restricted parties;

(i) Both Customer and Chartbeat acknowledge and agree that, in Customer’s use of the Application, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

(j) Both Customer and Chartbeat acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon Customer’s acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.

15. Miscellaneous

1. Warranty Disclaimer. Chartbeat and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, including but not limited to Tubular, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Chartbeat and all such parties together, the “Chartbeat Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Chartbeat Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to Customer’s participation in, the Services. The Chartbeat Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY CHARTBEAT (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT DOES CHARTBEAT GUARANTEE ANY RESULTS, INCREASED TRAFFIC, OR USER ENGAGEMENT FOR CUSTOMER. CHARTBEAT MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. CUSTOMER IS RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM CUSTOMER’S WEBSITE’S END USERS.

2. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE CHARTBEAT PARTIES BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID AND/OR PAYABLE BY CUSTOMER TO CHARTBEAT IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND CHARTBEAT’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER IN THOSE STATES.

3. Indemnity.

Customer agrees to indemnify and hold the Chartbeat Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) Customer or Customer’s users’ use of the Services (including any actions taken by a third party using Customer accounts), and (b) Customer’s violation of these Terms. In the event of such a claim, suit, or action (“Claim”).  Chartbeat will attempt to provide notice of the Claim to the contact information provided by Customer in the Work Order (provided that failure to deliver such notice shall not eliminate or reduce Customer’s indemnification obligations hereunder). Chartbeat reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer.

Chartbeat agrees to indemnify and hold the Customer harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims that the Services infringe any third-party intellectual property or proprietary right. Chartbeat’s indemnification obligations hereunder shall be conditioned upon Customer providing Chartbeat with: (x) prompt written notice of any claim; (y) the right to assume sole control over the defense and settlement of any claim (provided that Customer may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at Chartbeat’s expense).  The foregoing obligations of Chartbeat do not apply with respect to the Services or any information, technology, materials, Content, User Submissions, or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Chartbeat (including without limitation any Content, User Submissions, or other information provided by Customer or Customer’s users), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Chartbeat, (iv) combined with other products, processes or materials not provided by Chartbeat (where the alleged losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.

If the Services or any part thereof becomes or, in Chartbeat’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Chartbeat may, at its option and expense, (1) obtain for Customer the right to continue using the Services or (2) replace or modify the infringing portions of the Services so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Chartbeat, then it may (3) terminate the applicable Order Form(s) and/or these Terms upon written notice to Customer and refund to Customer any unused fees for the Services that were pre-paid for the then-current term, pro-rated for the remainder thereof.

4. Assignment. Customer may not assign, delegate or transfer these Terms or its rights or obligations hereunder, or its Services account(s), in any way (by operation of law or otherwise) without Chartbeat’s prior written consent. Chartbeat may transfer, assign, or delegate these Terms and its rights and obligations without consent.

5. Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.

6. Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires Customer to arbitrate certain disputes and claims with Chartbeat and limits the manner in which Customer can seek relief from Chartbeat. Both Customer and Chartbeat acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Chartbeat’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon Customer’s acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.

(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Wilmington, Delaware. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.

(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Chartbeat will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Chartbeat will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that Customer’s claim is frivolous.

(c) Infringement. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

(d) Waiver of Jury Trial. CUSTOMER AND CHARTBEAT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Customer and Chartbeat are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Customer and Chartbeat over whether to vacate or enforce an arbitration award, CUSTOMER AND CHARTBEAT WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE ENTITY OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER ENTITY OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Chartbeat is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.

(f) Opt-out. Customer has the right to opt out of the provisions of this Section by sending written notice of its decision to opt out to the following address: 701 Tillery St, Unit 12-1019, Austin, TX 78702 postmarked within thirty (30) days of first accepting these Terms. Customer must include (i) its full legal name and address, (ii) the email address and/or telephone number associated with the applicable account, and (iii) a clear statement that Customer wants to opt out of these Terms’ arbitration agreement.

(g) Exclusive Venue. If Customer sends the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either Customer or Chartbeat to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both Customer and Chartbeat agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Wilmington Delaware, or the federal district in which that falls.

(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of Customer’s relationship with Chartbeat.

7. Miscellaneous. The failure of either Customer or Chartbeat to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. Customer and Chartbeat agree that these Terms are the complete and exclusive statement of the mutual understanding between Customer and Chartbeat, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Customer hereby acknowledges and agrees that it is not an employee, agent, partner, or joint venture of Chartbeat, and it does not have any authority of any kind to bind Chartbeat in any respect whatsoever.

Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, Customer and Chartbeat agree there are no third-party beneficiaries intended under these Terms.

APPENDIX A

Data Processing Addendum

Data Processing Addendum

This Data Processing Addendum (“DPA”) supplements the Software Services Agreement, or other similar agreement between the parties (the “Agreement”) entered into by and between entity (“Customer”) named in counterpart Work Orders, Addendums, Amendments or any other Agreements,  and Tubular Labs Inc. (“Company” or “Tubular Labs”). We may update this DPA from time to time, and we will provide reasonable notice of any such updates. Any terms not defined in this DPA shall have the meaning set forth in the Agreement. 

1. Definitions

1.1 “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

1.2 “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Customer’s Personal Data to enable Company to perform its obligations under this DPA or the Agreement, and who is either (1) listed in Exhibit B or (2) subsequently authorized under Section 4.2 of this DPA.

1.3 “Company Account Data” means personal data that relates to Company’s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer’s account and billing information of individuals that Customer has associated with its account. Company Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.

1.4 “Company Usage Data” means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.

1.5 “Data Exporter” means Customer.

1.6 “Data Importer” means Company.

1.7 “Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) the California Consumer Privacy Act, as amended by the California Privacy Rights Act of 2020 (“CCPA”), (ii) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”) and the EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”) (together, collectively, the “GDPR”), (iii) the Swiss Federal Act on Data Protection, (iv) the UK Data Protection Act 2018, (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003, (vi) the Virginia Consumer Data Protection Act (“VCDPA”), (vii) the Colorado Privacy Act (“CPA”), (viii) the Connecticut Data Privacy Act (“CTDPA”), and (ix) the Utah Consumer Privacy Act (“UCPA”); in each case, as updated, amended or replaced from time to time. The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing”, “processor,” “controller,” and “supervisory authority” shall have the meanings set forth in the GDPR.

1.8 “EU SCCs” means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time), as modified by Section 6.2 of this DPA.

1.9 “ex-EEA Transfer” means the transfer of Personal Data, which is processed in accordance with the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR.

1.10 “ex-UK Transfer” means the transfer of Personal Data covered by Chapter V of the UK GDPR, which is processed in accordance with the UK GDPR and the Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018.

1.11 “Services” shall have the meaning set forth in the Agreement.

1.12 “Standard Contractual Clauses” means the EU SCCs and the UK SCCs.

1.13 “UK SCCs” means the EU SCCs, as amended by the UK Addendum.

2. Relationship of the Parties; Processing of Data

2.1 The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and, except as expressly set forth in this DPA or the Agreement, Company is a processor. Customer shall, in its use of the Services, at all times process Personal Data, and provide instructions for the processing of Personal Data, in compliance with Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Company to be in breach of the Data Protection Laws. Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Company by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Company regarding the processing of such Personal Data. Customer shall not provide or make available to Company any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Company from all claims and losses in connection therewith.

2.2 Company shall not process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this DPA or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Company is subject; in such a case, the Company shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws. Customer hereby instructs Company to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services. The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this DPA. Following completion of the Services, at Customer’s choice, Company shall return or delete Customer’s Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Company shall take measures to block such Personal Data from any further processing (except to the extent necessary for its continued hosting or processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Company to Customer only upon Customer’s request.

2.3 CCPA. The Parties acknowledge and agree that the processing of personal information or personal data that is subject to the CCPA shall be carried out in accordance with the terms set forth in Exhibit E.

3. Confidentiality
Company shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Company’s confidentiality obligations in the Agreement. Customer agrees that Company may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.

4. Authorized Sub-Processors
4.1 Customer acknowledges and agrees that Company may (1) engage its Affiliates and the Authorized Sub-Processors listed at https://tubularlabs.com/listofsubprocessors/ (the “List”) to access and process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data. By way of this DPA, Customer provides general written authorization to Company to engage sub-processors as necessary to perform the Services.

4.2 A list of Company’s current Authorized Sub-Processors can be found on the List. Such List may be updated by Company from time to time. Company may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Customer agrees to subscribe to such notifications where available. At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Company will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Company within ten (10) days of receipt of the aforementioned notice by Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Company from offering the Services to Customer.

4.3 If Customer reasonably objects to an engagement in accordance with Section 4.2, and Company cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Company. Discontinuation shall not relieve Customer of any fees owed to Company under the Agreement.

4.4 If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Company, that third party will be deemed an Authorized Sub-Processor for the purposes of this DPA.

4.5 Company will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Company under this DPA with respect to the protection of Personal Data. In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Company, Company will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement.

4.6 If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Company of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Company to Customer pursuant to Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Company beforehand, and that such copies will be provided by the Company only upon request by Customer.

5. Security of Personal Data.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Company shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Exhibit C sets forth additional information about Company’s technical and organizational security measures.

6. Transfers of Personal Data
6.1 The parties agree that Company may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Company’s primary processing operations take place in the United States, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Company transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Company will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.

6.2 Ex-EEA Transfers. The parties agree that ex-EEA Transfers are made pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:

6.2.1 Module One (Controller to Controller) of the EU SCCs apply when Company is processing Personal Data as a controller pursuant to Section 9 of this DPA.

6.2.2 Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.

6.3 For each module, where applicable the following applies:

6.3.1 The optional docking clause in Clause 7 does not apply.;

6.3.2 In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of sub-processor changes shall be as set forth in Section 4.2 of this DPA;

6.3.3 In Clause 11, the optional language does not apply;

6.3.4 All square brackets in Clause 13 are hereby removed;

6.3.5 In Clause 17 (Option 1), the EU SCCs will be governed by Irish law;

6.3.6 In Clause 18(b), disputes will be resolved before the courts of Ireland;

6.3.7 Exhibit B to this DPA contains the information required in Annex I and Annex III of the EU SCCs;

6.3.8 Exhibit C to this DPA contains the information required in Annex II of the EU SCCs; and

6.3.9 By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes.

6.4 Ex-UK Transfers. The parties agree that ex-UK Transfers are made pursuant to the UK SCCs, which are deemed entered into and incorporated into this DPA by reference, and amended and completed in accordance with the UK Addendum, which is incorporated herein as Exhibit D of this DPA.

6.5 Transfers from Switzerland. The parties agree that transfers from Switzerland are made pursuant to the EU SCCs with the following modifications:

6.5.1 The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the EU SCCs shall be interpreted to include the Federal Act on Data Protection of 19 June 1992 (the “FADP,” and as revised as of 25 September 2020, the “Revised FADP”) with respect to data transfers subject to the FADP.

6.5.2 The terms of the EU SCCs shall be interpreted to protect the data of legal entities until the effective date of the Revised FADP.

6.5.3 Clause 13 of the EU SCCs is modified to provide that the Federal Data Protection and Information Commissioner (“FDPIC”) of Switzerland shall have authority over data transfers governed by the FADP and the appropriate EU supervisory authority shall have authority over data transfers governed by the GDPR. Subject to the foregoing, all other requirements of Clause 13 shall be observed.

6.5.4 The term “EU Member State” as utilized in the EU SCCs shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from exercising their rights in their place of habitual residence in accordance with Clause 18(c) of the EU SCCs.

6.6 Supplementary Measures. In respect of any ex-EEA Transfer or ex-UK Transfer, the following supplementary measures shall apply:

6.6.1 As of the date of this DPA, the Data Importer has not received any formal legal requests from any government intelligence or security service/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) Customer’s Personal Data (“Government Agency Requests”) ;

6.6.2 If, after the date of this DPA, the Data Importer receives any Government Agency Requests, Company shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Company may provide Customer’s basic contact information to the government agency. If compelled to disclose Customer’s Personal Data to a law enforcement or government agency, Company shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so. Company shall not voluntarily disclose Personal Data to any law enforcement or government agency. Data Exporter and Data Importer shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in the light of the such Government Agency Requests; and

6.6.3 The Data Exporter and Data Importer will meet regularly to consider whether:

(i) the protection afforded by the laws of the country of the Data Importer to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, whichever the case may be;

(ii) additional measures are reasonably necessary to enable the transfer to be compliant with the Data Protection Laws; and

(iii) it is still appropriate for Personal Data to be transferred to the relevant Data Importer, taking into account all relevant information available to the parties, together with guidance provided by the supervisory authorities.

6.6.4 If Data Protection Laws require the Data Exporter to execute the Standard Contractual Clauses applicable to a particular transfer of Personal Data to a Data Importer as a separate agreement, the Data Importer shall, on request of the Data Exporter, promptly execute such Standard Contractual Clauses incorporating such amendments as may reasonably be required by the Data Exporter to reflect the applicable appendices and annexes, the details of the transfer and the requirements of the relevant Data Protection Laws.

6.6.5 If either (i) any of the means of legitimizing transfers of Personal Data outside of the EEA or UK set forth in this DPA cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, then Data Importer may by notice to the Data Exporter, with effect from the date set out in such notice, amend or put in place alternative arrangements in respect of such transfers, as required by Data Protection Laws.

7. Rights of Data Subjects
7.1 Company shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of processing, withdrawal of consent to processing, and/or objection to being subject to processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Company receives a Data Subject Request in relation to Customer’s data, Company will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of processing, or withdrawal of consent to processing of any Personal Data are communicated to Company, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.

7.2 Company shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Company’s assistance and (ii) Company is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.

8. Actions and Access Requests; Audits
8.1 Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Customer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.

8.2 Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.

8.3 Company shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA, and retain such records for a period of three (3) years after the termination of the Agreement. Customer shall, with reasonable notice to Company, have the right to review, audit and copy such records at Company’s offices during regular business hours.

8.4 Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Company shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Company’s compliance with prevailing data security standards applicable to the processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Company’s data security infrastructure and procedures that is sufficient to demonstrate Company’s compliance with its obligations under Data Protection Laws, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Company’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Company for any time expended for on-site audits. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 8.9 of the EU SCCs shall be carried out in accordance with this Section 8.4.

8.5 Company shall immediately notify Customer if an instruction, in the Company’s opinion, infringes the Data Protection Laws or Supervisory Authority.

8.6 In the event of a Personal Data Breach, Company shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Company in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Company’s reasonable control).

8.7 In the event of a Personal Data Breach, Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.

8.8 The obligations described in Sections 8.6 and 8.7 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. Company’s obligation to report or respond to a Personal Data Breach under Sections 8.6 and 8.7 will not be construed as an acknowledgement by Company of any fault or liability with respect to the Personal Data Breach.

9. Company’s Role as a Controller. The parties acknowledge and agree that with respect to Company Account Data and Company Usage Data, Company is an independent controller, not a joint controller with Customer. Company will process Company Account Data and Company Usage Data as a controller (i) to manage the relationship with Customer; (ii) to carry out Company’s core business operations, such as accounting, audits, tax preparation and filing and compliance purposes; (iii) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Services, and to prevent harm to Customer; (iv) for identity verification purposes; (v) to comply with legal or regulatory obligations applicable to the processing and retention of Personal Data to which Company is subject; and (vi) as otherwise permitted under Data Protection Laws and in accordance with this DPA and the Agreement. Company may also process Company Usage Data as a controller to provide, optimize, and maintain the Services, to the extent permitted by Data Protection Laws. Any processing by the Company as a controller shall be in accordance with the Company’s privacy policy set forth at https://tubularlabs.com/privacy/.

10. Conflict. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable terms in the Standard Contractual Clauses; (2) the terms of this DPA; (3) the Agreement; and (4) the Company’s privacy policy. Any claims brought in connection with this DPA will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement.

Exhibit A
Details of Processing

Nature and Purpose of Processing: Company will process Customer’s Personal Data as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement and this DPA, and in accordance with Customer’s instructions as set forth in this DPA. The nature of processing includes, without limitation:

• Receiving data, including collection, accessing, retrieval, recording, and data entry
• Holding data, including storage, organization and structuring
• Using data, including analysis, consultation, testing, automated decision making and profiling
• Updating data, including correcting, adaptation, alteration, alignment and combination
• Protecting data, including restricting, encrypting, and security testing
• Sharing data, including disclosure, dissemination, allowing access or otherwise making available
• Returning data to the data exporter or data subject
• Erasing data, including destruction and deletion

Duration of Processing: Company will process Customer’s Personal Data as long as required (i) to provide the Services to Customer under the Agreement; (ii) for Company’s legitimate business needs; or (iii) by applicable law or regulation. Company Account Data and Company Usage Data will be processed and stored as set forth in Company’s privacy policy.

Categories of Data Subjects: Customer employees/authorized users of the Services

Categories of Personal Data: Company processes Personal Data contained in Company Account Data, Company Usage Data, and any Personal Data provided by Customer or collected by Company in order to provide the Services or as otherwise set forth in the Agreement or this DPA. Categories of Personal Data include name, location (including preferred time zone), email address, phone number, address, occupation, employer, job title, IP address, user-agent header (browser information).

Sensitive Data or Special Categories of Data: None. 

Exhibit B
The following includes the information required by Annex I and Annex III of the EU SCCs, and Table 1, Annex 1A, and Annex 1B of the UK Addendum.

1. The Parties

Data exporter(s): The Customer
Contact details: As designated by Customer in the Agreement or on any applicable order form.
Signature and date: By entering into the Agreement, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, as of the Effective Date of the Agreement.
Role (controller/processor): The Data Exporter’s role is set forth in Section 2 of this Addendum.

Data importer(s):
Name: Tubular Labs Inc.
Address: 153 Castro Street, #300 Mountain View, CA 94041 USA
Signature and date: By entering into the Agreement, Data Importer is deemed to have signed these Standard Contractual Clauses incorporated herein, as of the Effective Date of the Agreement.
Role (controller/processor): The Data Importer’s role is set forth in Section 2 of this Addendum.

2. Description of the Transfer

Data Subjects	As described in Exhibit A of the DPA
Categories of Personal Data	As described in Exhibit A of the DPA
Special Category Personal Data (if applicable)	As described in Exhibit A of the DPA
Nature of the Processing	As described in Exhibit A of the DPA
Purposes of Processing	As described in Exhibit A of the DPA
Duration of Processing and Retention (or the criteria to determine such period)	As described in Exhibit A of the DPA
Frequency of the transfer	As necessary to provide perform all obligations and rights with respect to Personal Data as provided in the Agreement or DPA
Recipients of Personal Data Transferred to the Data Importer	List of Authorized Sub-Processors available at: https://tubularlabs.com/listofsubprocessors/

3. Competent Supervisory Authority

The supervisory authority shall be the supervisory authority of the Data Exporter, as determined in accordance with Clause 13 of the EU SCCs. The supervisory authority for the purposes of the UK Addendum shall be the UK Information Commissioner’s Officer.

4. List of Authorized Sub-Processors List of Authorized Sub-Processors available at: https://tubularlabs.com/listofsubprocessors/

Exhibit C
Description of the Technical and Organisational Security Measures implemented by the Data Importer

The following includes the information required by Annex II of the EU SCCs and Annex II of the UK Addendum.
Tubular Labs employs a wide variety of technical and organizational security measures and dedicates significant effort towards maintaining data security. A short summary can be found below.

Confidentiality
Tubular protects the confidentiality of customer data in several ways:
● Tubular Labs’ customer data may not be shared without customer consent, except under certain limited circumstances as permitted under this DPA, or as required by law.
● Tubular Labs’ security and engineering team take measures to guard against external threats to data. Internal access to data (e.g., by employees) is regulated and subject to access controls.

Methods of De-Identification and Data Minimalization
● Tubular Labs aggregates publicly available data in a way that eliminates the possibility of identifying individual users by (i) aggregating data along broadly defined behavioral dimensions and (ii) adopting and further innovating on privacy-enhanced probabilistic data structures, which enables Tubular Labs to perform set operations across even very small audience segments without compromising the identity of individual users.

Third-party vendors
● Tubular Labs conducts third-party vendor assessments and keeps an updated list of subprocessors.

Encryption
● Data ingress: Tubular Labs supports encryption via HTTPS for user and authenticated data.
● Data egress: All Tubular Labs APIs support sending data via HTTPS.
● Encryption at rest: Where feasible, sensitive data is stored under encryption. Passwords and other highly sensitive information are hashed and salted.

Physical protection
● All Tubular Labs servers are hosted on Amazon Web Services, which in turn employs industry standard protections. More information from AWS can be found here.

Access
● Permissioning: We restrict access to all Tubular Labs servers to only those employees with a need to access. All servers employ role-based permissioning.
● Firewall: All servers are protected via VPN. Tubular Labs’ VPN employs role-based permissioning.

Testing and Monitoring
● Tubular Labs employs several systems for monitoring and detecting potential threats. These systems are evaluated on (at minimum) an annual basis to ensure accuracy and completeness.

Logs
● Permissions: Logs are kept of all permissions changes for at least 90 days.
● Data requests: Logs are kept for all API- and UI-based requests for data for at least 30 days.

Security training
● All employees receive security awareness training during their onboarding with Tubular Labs and on an annual basis.

Incident Response Policy
● Tubular Labs maintains an incident response policy.

Business Continuity Plan
● Tubular Labs maintains a business continuity plan.

Exhibit D
UK Addendum
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

Part 1: Tables

Table 1: Parties

Start Date	This UK Addendum shall have the same effective date as the DPA
The Parties	Exporter	Importer
Parties’ Details	Customer	Company
Key Contact	See Exhibit B of this DPA	See Exhibit B of this DPA

Table 2: Selected SCCs, Modules and Selected Clauses

EU SCCs

The Version of the Approved EU SCCs which this UK Addendum is appended to as defined in the DPA and completed by Section 6.2 and 6.3 of the DPA.

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this UK Addendum is set out in:

Annex 1A: List of Parties	As per Table 1 above
Annex 2B: Description of Transfer	See Exhibit B of this DPA
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data:	See Exhibit C of this DPA
Annex III: List of Sub processors (Modules 2 and 3 only):	See Exhibit B of this DPA

Table 4: Ending this UK Addendum when the Approved UK Addendum Changes

Ending this UK Addendum when the Approved UK Addendum changes

☒             Importer ☒             Exporter ☐             Neither Party

Entering into this UK Addendum:

1. Each party agrees to be bound by the terms and conditions set out in this UK Addendum, in exchange for the other party also agreeing to be bound by this UK Addendum.

2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making ex-UK Transfers, the Parties may enter into this UK Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this UK Addendum. Entering into this UK Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this UK Addendum

3. Where this UK Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

Last updated on April 12, 2024.