UPDATED as of May 2011: IMPORTANT – READ CAREFULLY

This Webtrends Terms of Subscription Service (the “Agreement”) constitutes a legal, binding agreement between Webtrends Inc. (“Webtrends”) and you, with respect to the Service defined in Section 2 below.

BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM, A QUOTE, A PURCHASE ORDER OR SIMILAR ORDER DOCUMENT THAT REFERENCES THIS AGREEMENT, OR BY USING THE SERVICE, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORTY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.

YOU MAY NOT USE OR ACCESS THE SERVICE IF YOU ARE OUR DIRECT COMPETITOR, OR ACCESSING OR USING THE SERVICE FOR THE BENEFIT OF ONE OF OUR DIRECT COMPETITIORS. IN ADDITION, YOU MAY NOT ACCESS OR USE THE SERVICE FOR PURPOSES OF MONITORING ITS AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

1. MEMBER ACCOUNT, PASSWORD, AND SECURITY

To register for the Service, you will be required to register and create an online account which will be used to manage your use of the Service hereunder (“Account”). All information required during the Account set-up process must be provided and be complete and accurate in all respects. You must keep your Account and password confidential. You are solely responsible for any and all activity initialized through your Account. You agree to immediately notify Webtrends of any unauthorized use of your Account. From time to time, Webtrends’ personnel will log in to the Service under your Account and access and use Service Data (defined below) and other information in your Account in order to provide, maintain, support or improve Service.

2. SUBSCRIPTION SERVICE

Subject to the terms and conditions of this Agreement and during the Term (as defined in Section 17 below), Webtrends shall provide you with access to and use of the Service via the Service login page. As used herein, “Service” shall mean all Webtrends online Web-based software as a service specified on the Webtrends generated order documentation (“Quote”) provided to you, or your purchase order documentation, and includes any additional capacities, features or functionalities subsequently purchased by you that augment or enhance the Service (“Product Add-Ons”). Additional descriptions and terms applicable to each specific Service are attached hereto as Service Schedule and incorporated herein. Service will commence on the date that Webtrends electronically confirms your order of the Service pursuant to this Agreement and the applicable Quote or similar order document (“Delivery Date”). Additional limitations applicable to the specific Service you purchased are further described in the Service Schedule included at the end of this Agreement. In connection with your use of the Service, Webtrends hereby grants a non-exclusive, limited license during the Term of this Agreement to: (i) place the Webtrends tracking code on Client Sites (defined below) for the sole purpose of collecting data for the Service; (ii) use the Webtrends APIs for the sole purpose of collecting data for the Service; and (iii) use the Documentation and make reasonable number of copies of the Documentation. Upon the expiration or early termination of this Agreement, the license granted to you to place such tracking code and use such Documentation automatically terminates. “Client Sites” means those websites, Third Party Platforms (defined below), applications or devices owned or controlled by you or a third party (a) for which you wish to, and have the authority to, use the Webtrends tracking code, Webtrends APIs or any other collection methods to collect data for the Service, or (b) for which you otherwise wish to, and have the authority to, upload data through the Service. “Documentation” means the user documentation published by Webtrends and made available to you in connection with the Service. Webtrends may make improvements and/or changes in the Service, including the tracking code and the Documentation, from time to time in its sole discretion.  In connection with your use of the Service, the following data may be included in your Service subscription: (1) data collected for your Account via the Webtrends tracking code or Webtrends APIs (“Client Data”); (2) data and materials from Third Party Platform providers or other third party services that you authorize uploading onto your Account through the use of your credentials for such Third Party Platform  (“Third Party Authenticated Data”); and (3) data and materials from Third Party Platform providers or other third party services that are uploaded onto the Service using methods provided by such third party, such as third party APIs (“Third Party Available Data”).  “Third Party Platform” means a third party application platform through which you offer your Client Site to end users.  Third Party Authenticated Data and Third Party Available Data are collectively referred to herein as “Third Party Data”.  Client Data and all Third Party Data are collectively referred to herein as “Service Data”.

3. RESTRICTIONS

You or any of your employees, officers, directors or authorized contractors (each a “User”) shall not: (i) use the Service or any portion thereof to provide services to any third party or for the benefit of any third party (whether by means of a service bureau, by “mirroring” or “framing” any part of the Service, or otherwise) or make the Service available to anyone other than Users; (ii) copy, modify, create a derivative work of or gain unauthorized access to the Service, including without limitation for the purpose of developing a similar or competitive product or service; (iii) remove, obscure or alter any proprietary notices or labels on the Service, or any component thereof, or any Documentation; (iv) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (v) disclose the results of any performance, functional or other evaluation or benchmarking of the Service, provided however you may distribute Service Data; (vi) use the Service to upload, store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (vii) use the Service to collect, upload, store or transmit infringing, libelous or otherwise unlawful or tortuous material, or to collect, upload, store or transmit data in violation of third-party privacy rights or policies, or applicable privacy and data security laws, rules or regulations; or (viii) attempt to gain unauthorized access to the Service or related systems or networks. You shall: (a) be responsible for each User’s compliance with this Agreement; (b) be solely responsible for the integrity and legality of Service Data, use of the Service Data, and of the means by which you acquired Service Data; and (c) use the Service only in accordance with the applicable Documentation and applicable laws and government regulations. You also acknowledge and consent to Webtrends’ use of our own products to collect and analyze data regarding your and Users’ access and use of the Service, to improve the Service and Webtrends technology and to optimize your access to and use of the Service.

Service and all components thereto are not fault-tolerant. Service and all components thereto are not designed or intended for use in any situation where failure or fault of any kind of the Service or any component could lead to death or serious bodily injury of any person or to severe physical or environmental damage (“High Risk Use”). Client is not licensed to use the Service or any component of the Service in or in conjunction with High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes for example the following: aircraft or other modes of human mass transportation; nuclear or chemical facilities; and Class III medical devices under the Federal Food, Drug and Cosmetic Act. Client agrees not to use the Service or any component thereof in or in connection with any High Risk Use.

4. TITLE

The Documentation, the Service and all components thereof including without limitation the Webtrends tracking code, the structure, organization and design of the features and functionalities of the Service, Webtrends’ Confidential Information, Webtrends APIs, any other Webtrends information and materials and all worldwide intellectual property rights in the foregoing are the exclusive property of Webtrends, its licensors and/or its suppliers. Webtrends, its licensors and/or its suppliers reserve all rights not expressly granted to you in this Agreement. As between Webtrends and you, all Client Data and Third Party Authenticated Data including all worldwide intellectual property rights thereto, are your exclusive property.

5. EVALUATION USE

In the event that you have accessed the Service for evaluation and trial purposes only, the terms of this paragraph shall apply in addition to all the other terms of this Agreement. Your right to use the Service commences when Webtrends provides your evaluation login and, unless you and Webtrends agree to a different period, automatically terminates in fourteen (14) days (the “Evaluation Period”). Service provided to you for evaluation purposes will automatically disable itself at the end of the Evaluation Period, as it employs a restriction mechanism which restricts the program to a limited period of time. This restriction mechanism and the manner in which it enforces the restriction are maintained in confidence by Webtrends as a trade secret, and you may not publish, disclose or reveal it. You agree to not do anything to circumvent or defeat the restriction mechanism. Additional product functionality restrictions may apply during the Evaluation Period. Any Service Data collected and analyzed by the Service or uploaded to the Service, and any customization made to your Account during the Evaluation Period will be permanently lost unless you purchase a subscription to the same Service as those covered during the Evaluation Period. NOTWITHSTANDING ANY OTHER PROVISIONS INCLUDED IN THIS AGREEMENT, DURING THE EVALUATION PERIOD, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY.

6. FEES

You shall pay to Webtrends the fees for the Service set forth on all applicable Quote(s) or other similar order document (the “Service Fees”). The Service Fees are non-refundable. Additional terms applicable to Service Fees for the specific Service you purchased are further described in the Service Schedule included at the end of this Agreement.

7. PAYMENT TERMS

Sales and use tax, VAT or GST are your sole responsibility, and you hereby acknowledge and agree that the Service Fees are exclusive of all such taxes. WEBTRENDS RESERVES THE RIGHT TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE IN THE EVENT OF YOUR FAILURE TO MAKE ANY PAYMENT TO WEBTRENDS WITHIN THIRTY (30) DAYS AFTER SUCH PAYMENT IS DUE. WEBTRENDS WILL ALSO TERMINATE YOUR ACCESS TO THE SERVICE UPON THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. YOU AGREE AND ACKNOWLEDGE THAT WEBTRENDS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM SUCH SUSPENSION OR TERMINATION OF YOUR ACCESS TO THE SERVICE, WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, EVEN IF WEBTRENDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Unless otherwise stated, all fees are quoted in the currency specified in the applicable Quote or similar order document. You are responsible for paying all fees associated with using the Service.

8. PRIVACY

By accessing or using the Service, you grant Webtrends the right to collect, upload, store, use, distribute, copy, modify and process Service Data subject to the terms of this Agreement. You shall ensure that, during your and all Users’ use of the Service, each of the Client Sites shall have a privacy policy that clearly and conspicuously notifies visitors to and users of the Client Site that such Client Site is tracked and analyzed by an analytics and optimization service, and informs visitors and users of the methods by which their usage information is being collected and the way in which such information is being used. You shall ensure that the collection, storage, processing, and/or uploading of all Service Data as provided in this Agreement will at all times comply with: (a) your own policies regarding privacy and protection of user information; (b) all applicable third-party terms and privacy policies, including all applicable Third Party Platform terms, and (c) all applicable laws, rules and regulations including those related to processing, storage, use, reuse, disclosure, security, protection and handling of visitor or user information and data. Notwithstanding any other provision included herein, you agree not to use the Service to collect, upload, transmit, store, deliver or provide Webtrends with access to any personally identifiable information that could be legally considered private or sensitive in any applicable jurisdiction, including, without limitation, government issued ID numbers, individual health information, individual financial information, individual’s last name and first name or first initial, birth dates, bank account numbers, security codes, passwords, credit or debit card numbers, and sensitive personal data under the Directive 95/46/EC. You agree to indemnify Webtrends, its directors, officers, employees and authorized agents from all losses (including reasonable attorneys’ fees), actions or claims brought by a third party to the extent that such losses, actions or claims arise out of your or any User’s breach of this Section 8 or Section 3 above, or any Service Data.

9. CLIENT DATA

Webtrends shall maintain industry-standard security controls over resources it maintains to provide the Service, which controls are intended to protect the confidentiality, privacy, integrity and availability of Client Data. During the Term of this Agreement, Webtrends shall keep and store the processed data included in Client Data as set forth in the Data Retention Policy posted at https://ondemand.Webtrends.com/dataretentionpolicy.asp. Notwithstanding any provision to the contrary stated herein, (i) Webtrends does not have any obligations to retain, store, deliver or provide access to any Client Data other than as expressly stated herein; (ii) Webtrends will not deliver or provide you with access to the raw collected data included in Client Data, unless you have paid for an additional functionality to access such data; and (iii) Webtrends’ obligations to keep and store Client Data shall terminate with the expiration or earlier termination of the applicable Service.

Webtrends is not responsible in any way for any Client Data once such Client Data is transmitted, copied, extracted and/or removed from Webtrends Service servers by you or a third party authorized by you.

Webtrends may use Client Data to modify and improve the Service, Webtrends business, Webtrends technology or provide additional services. However, Webtrends will not use any particular data that is identifiable to you (i.e. it has not been “anonymized” to remove references to you). The Webtrends tracking code and the Service may contain or be distributed with third-party software covered by an open source software license or other third party software license, and the terms and conditions of this license do not apply to such third-party software. Webtrends does not incorporate into the Service any third party product, software or other materials for which the intellectual property rights are not owned solely by Webtrends or for which Webtrends has not properly obtained a license to the intellectual property rights from such third party.

10. THIRD PARTY PLATFORMS AND THIRD PARTY DATA          

If you so choose within the Service, Webtrends may allow you to access, upload and view certain Third Party Authenticated Data  from your existing accounts with Third Party Platforms (“Third Party Accounts”).  Access to Third Party Accounts and upload of your Third Party Authenticated Data to your Account requires your Third Party Account credentials and password (“Third Party Account Information”).  You acknowledge that your relationship with the Third Party Platform and your Third Party Authenticated Data will be governed by the Third Party Platform’s terms, and you agree to comply with and be solely responsible for (a) all applicable laws, rules and regulations regarding your Third Party Authenticated Data and (b) all applicable terms of use and guidelines required by Third Party Platform.  If you so choose within the Service, Webtrends may allow you to access, upload and view certain Third Party Available Data.  Your access, upload and view of such Third Party Available Data are at your sole option, and you may choose to opt-out at any time during the Term.   Webtrends may at any time in its sole discretion, including upon the request of the Third Party Platform provider, terminate your access to the Third Party Platform via the Service, and any access, upload and viewing of Third Party Data via the Service.

In order to assist your ability to access your Third Party Accounts, Webtrends may permit you to store your Third Party Account Information on the Service and/or to use a Webtrends service to log in to your Third Party Account.  To the extent these features are available, the following additional terms will apply:

(1)   You will provide Webtrends with timely and complete access to your Third Party Account Information to enable Webtrends to access your Client Site on Third Party Platforms via your Third Party Account. You hereby authorize Webtrends to collect, store, use, distribute, copy, modify and process any Third Party Authenticated Data accessed via your Third Party Account solely in order to provide the Service.  You will notify Webtrends prior to any changes to your Third Party Account Information and will promptly provide updated Third Party Account Information to Webtrends so that access to your Third Party Accounts will not be interrupted. You acknowledge that Webtrends’ provision of the Service is conditioned upon Webtrends’ receipt of correct and accurate Third Party Account Information from you.   Notwithstanding anything herein to the contrary, Webtrends does not have any obligations to retain, store, or deliver any information relating to your Third Party Account, or to provide access to any Third Party Accounts or Third Party Platform.

(2)   You acknowledge and agree that once you choose to access, upload and view your Third Party Authenticated Data using the Service, all other Users of the Service will have access to such Third Party Authenticated Data.

(3)   You hereby appoint Webtrends, and Webtrends hereby accepts such appointment, to act as your agent for the sole purpose of (a) accessing your Third Party Account(s) and the Client Site on the Third Party Platform, (b) accessing and retrieving Third Party Authenticated Data from the Third Party Platform via your Third Party Account(s), and (c) taking any and all action with respect to your Third Party Account(s) as Webtrends deems appropriate in its reasonable discretion in providing the Service.

(4)   Upon the request by Third Party Platform for verification of your authorization of Webtrends to act as your agent, Webtrends may provide a copy of this Agreement, provided that Webtrends redacts the financial terms contained in the applicable Quote.  At no time during or after the term of this Agreement shall you dispute the validity of the authorization granted to Webtrends hereunder.

 

11. SERVICES

Your purchase of the Service includes basic support for the Service provided in accordance with Webtrends’ then prevailing policy applicable to the specific Service subscribed by you. You may purchase upgraded support for an additional fee. Technical support for the Service begins on the Delivery Date. Your subscription to the Service does not include any professional services, including consulting, implementation and training services, unless otherwise specified in the Quote or other order document. Webtrends may provide professional services to you from time to time. Unless otherwise agreed by you and Webtrends in writing, such professional services shall be provided in accordance with the terms and conditions set forth on Webtrends’ website here.

12. LIMITED WARRANTY

Subject to the terms and conditions of this Agreement and during the Term, Webtrends warrants to you that (a) it has the right to provide you with a subscription in the Service in accordance with the terms and conditions of this Agreement, and (b) it will provide the Service to you in a professional manner as measured by current industry standards. Webtrends’ sole liability (and your sole and exclusive remedy) for any breach of the warranty in subsection (b) shall be, in Webtrends’ sole discretion and at no charge to you, to use commercially reasonable efforts to provide you with an error correction or work-around that corrects the reported non-conformity, or if Webtrends determines such remedies to be impracticable, to allow you to terminate this Agreement and receive as your sole remedy a refund of: (x) the subscription fees specified in the applicable Quote(s) which are allocable to the thirty (30) day period prior to the date the warranty claim was made and (y) any fees you have pre-paid for use of the Service that you have not received as of the date of the warranty claim.  Webtrends is not responsible for and shall have no warranty obligations with respect to any Service or any component of the Service that has been modified in any way by anyone other than Webtrends.

13. WARRANTY DISCLAIMER

OTHER THAN AS EXPRESSLY SPECIFIED IN SECTION 12 OF THIS AGREEMENT, THE SERVICE, THE WEBTRENDS TRACKING CODE, THE WEBTRENDS APIs, SERVICEDATA AND DOCUMENTATION ARE PROVIDED “AS IS.” WEBTRENDS, ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTIES SHALL ARISE BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. WEBTRENDS, ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE, THE WEBTRENDS TRACKING CODE, WEBTRENDS APIs, SERVICE DATA, OR DOCUMENTATION WILL MEET YOUR NEEDS OR OTHER REQUIREMENTS OR EXPECTATIONS, OR BE FREE FROM ERRORS, OR THAT ERRORS WILL BE FIXED OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR TIMELY. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMS THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. WEBTRENDS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICES FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF WEBTRENDS.

Notwithstanding anything herein to the contrary, none of Webtrends’ representations, warranties or obligations under this Agreement shall apply with respect to Third Party Data.  WEBTRENDS MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY DATA, INCLUDING THE ACCURANCY OR LEGALITY OF ANY THIRD PARTY DATA.  ALL SERVICES WITH RESPECT TO THIRD PARTY PLATFORMS AND THIRD PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND MAY BE DISCONTINUED AT ANY TIME BY WEBTRENDS.

14. LIMITATION OF LIABILITY

WEBTRENDS, ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU, ANY USERS OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST DATA), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF ANY REMEDY. WEBTRENDS’ CUMULATIVE LIABILITY FOR ANY AND ALL LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU TO WEBTRENDS FOR USE OF THE SERVICE UNDER THIS AGREEMENT DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO LIABILITY.

The parties agree that the limitations specified in this Section 14 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

15. CONFIDENTIALITY

Each party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Webtrends’ Confidential Information shall include but not be limited to: the Service, formulas, methods, know-how, processes, designs, new products, developmental work, marketing requirements, marketing plans, licensee names, prospective licensee names, the terms and pricing under this Agreement and the results of any comparative or other benchmarking tests with respect to the Service, in each case regardless of whether such information is identified as confidential. Confidential Information includes all information received from third parties that the disclosing party is obligated to treat as confidential and oral information that is identified by the disclosing party as confidential. This obligation of confidentiality does not apply to any information that is or becomes a part of the public domain through no act or omission by the receiving party, was in the receiving party’s lawful possession prior to the disclosure without any restriction on disclosure or is independently developed by the receiving party without use of or reference to such Confidential Information. If the receiving party is required to disclose such Confidential Information to any court or government authority, then the receiving party hereby agrees to provide the disclosing party with sufficient written notice prior to the receiving party’s disclosure. Such obligations of confidentiality shall survive any termination of this Agreement.

Each party agrees not to make Confidential Information available in any form to any third party except to such party’s employees, contractors, agents or service providers who are required to know to allow such party to exercise its rights or perform obligations under this Agreement or to use the Confidential Information for any purpose other than in the performance of this Agreement. Each party agrees not to disclose the results of any performance tests of the Webtrends Service to any third party. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by such party’s employees or agents in breach of this Agreement. Upon request of the disclosing party, the receiving party will destroy the disclosing party’s Confidential Information, other than archival back-up copy.

16. U.S. GOVERNMENT END USE PROVISIONS

Webtrends provides the Service for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Webtrends to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing: (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (ii) you shall not permit any user to access or use the Service in violation of any U.S. export embargo, prohibition or restriction.

17. TERM AND TERMINATION

This Agreement and the Service will commence upon the Delivery Date and, unless earlier terminated for breach as specified in this paragraph, will remain effective for the contract term specified in the applicable Quote or other similar ordering document (together with all renewal terms, if any, the “Term”). Upon the expiration of the Term, this Agreement and the Service will automatically renew for successive twelve (12) month Terms, unless either party provides the other party with at least thirty (30) days’ prior written notice of its decision not to renew, before the expiration of the then current Term. This automatic renewal of the Agreement and the Service will be for the same Service package, capacity and functionality levels purchased for the then current Term, including all Product Add-Ons purchased during such Term. Webtrends shall invoice Customer for the Service Fee for the renewal Term based on the same payment and billing terms as the then current Term, and shall provide prior written notice of any increase in the Service Fees applicable to the renewal Term.

Webtrends may terminate this Agreement effective immediately upon written notice to you if: (i) you or any User breaches the licensed rights or limitations set forth in Section 3 or 8 above; or (ii) you or any User breaches any other provision of this Agreement (including without limitation the payment obligation) and does not cure the breach within thirty (30) days after receiving written notice thereof from Webtrends. You may terminate this Agreement effective immediately upon written notice if Webtrends breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice from you.

Upon termination by you for Webtrends’ breach, you shall pay Webtrends for the actual Service Fees and any other fees related to the Service incurred by you prior to the date of the breach and you shall have no further payment obligation to Webtrends. Upon termination by Webtrends for breach by you or any Client User, you will pay Webtrends for the total Service Fees, professional services fees, if applicable, and any Continuation Fees purchased by you under all applicable Quotes or other similar order documentation during the then current Term. Upon termination of this Agreement for any reason: (i) all rights granted herein will immediately cease to exist and you must promptly discontinue all further use of and Webtrends will terminate all access to the Service by you or any User; and (ii) you must destroy all tangible copies of the Documentation and erase all electronic versions thereof and remove all Webtrends tracking code from Client Sites. Upon request, you will certify to Webtrends in writing that you have fully complied with the requirement in the foregoing sentence. Upon any termination of this Agreement and the Service, you must login at http://ondemand.Webtrends.com/, click on “Delete Account” and delete your Account. This will delete all profiles within your Account.

18. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES

Webtrends reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service or any policy governing the Service at any time by posting the new agreement to the Webtrends Service site located here. You are responsible for regularly reviewing the site. Your continued use of the Service following Webtrends’ posting of the change(s) will constitute your acceptance of such change(s).

19. CLIENT REFERENCE

You hereby grant Webtrends the right to use your trade name, your corporate logo and identify you as a customer of Webtrends in connection with Webtrends’ promotional materials, website, blog and other social media communications. Each party agrees to mutually create and issue a press release announcing your use of the Service to continually improve your customers’ satisfaction and online experience within sixty (60) days of the Delivery Date.

20. MISCELLANEOUS; APPLICABLE LAW AND VENUE

This Agreement, including all Quotes or similar order documents, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Other than as specified in Section 18 above, no other modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or in any other order documentation of yours shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void. Webtrends shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control including without limitation any force majeure event, problems with Internet access or problems that result from your or third-party actions or inactions or that result from your or third-party equipment, software or technology (other than third-party equipment within our direct control). If any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible consistent with the original intent of the parties, and the other provisions of this Agreement will remain in force. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part, by you whether voluntary or by operation of law, and any such attempted assignment shall be void and of no effect. Notwithstanding the foregoing sentence, a party may assign this Agreement in connection with a merger, reorganization, acquisition or sale of all or substantially all of its assets as long as, in your case, the surviving entity is not a competitor of Webtrends. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective heirs, successors, permitted assigns and legal representatives. This Agreement shall be governed by and construed under the laws of the State of Oregon, exclusive of its choice of law rules, as such law applies to agreements between Oregon residents entered into and to be performed within Oregon, except as governed by federal law. Any controversy or claim arising out of or in any way connected with this Agreement or the alleged breach thereof shall be brought in the state and federal courts located in the State of Oregon. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph. If any term of this Agreement is inconsistent with any provision of the Uniform Computer Information Transactions Act (“UCITA”), as UCITA may be enacted in the state whose law applies, such term shall be enforced to the fullest extent allowed by law. UCITA shall not apply to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

21. IF YOU ARE A CLIENT IN EUROPE, THE MIDDLE EAST OR AFRICA, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FOLLOWING TERMS APPLY TO YOU:

A. Webtrends under this Agreement is WT EMEA Acquisition Limited with its registered offices at Mallard Court, Market Square, Staines, Middlesex TW 18 4RH United Kingdom. All references to “Webtrends” or Webtrends Inc. shall refer to WT EMEA Acquisition Limited.

B. If the laws of country in which you are located require that contracts be in the local language in order to be enforceable, the version of this Agreement that shall govern is the translated version of this Agreement in the local language that is produced by Webtrends within a reasonable time following your written request to Webtrends.

C. Section 8 (Privacy) above is modified by adding the following: “You hereby appoint Webtrends as data processor of Service Data. Webtrends will not assume any responsibility for determining the purposes for which and the manner in which Service Data is processed, and You will comply with those applicable legal obligations as a data controller.”

D. Section 14 (Limitation of Liability) above shall not apply and instead the following shall apply:

“14. LIMITATION OF LIABILITY

14.1 Subject to Section 14.3, in no event shall either party be liable under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any: (i) loss of profits; (ii) loss of sales; (iii) loss of turnover; (iv) loss of, or loss of use of, any (a) software or (b) data; (v) loss of use of any computer or other equipment or plant; (vi) wasted management or other staff time; (vii) losses or liabilities under or in relation to any other contract; or (viii) indirect, special or consequential loss or damage.

14.2 Subject to Sections 14.1 and 14.3, Webtrends’ aggregate liability arising from or in connection with this Agreement (and whether the liability arises because of breach of contract, negligence, misrepresentation or for any other reason) shall not exceed 1.25 times the amounts paid or payable (having been invoiced but not yet paid) by you for the license to use the Service.

14.3 Notwithstanding anything to the contrary in this Agreement, neither party excludes or limits its liability in respect of death or personal injury caused by the negligence of that party, its servants or agents, breach of any condition as to title or quiet enjoyment implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982, or liability for fraudulent misrepresentation or such other liability which cannot under applicable law be excluded or limited by Agreement.”

E. Section 20 (Miscellaneous; Applicable Law and Venue) shall not apply and instead the following shall apply:

“20. MISCELLANEOUS; APPLICABLE LAW AND VENUE

1. Webtrends shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control, including without limitation, any force majeure event, or problems with Internet access, that result from your or third party actions or inactions or that result from your or third party equipment, software or technology (other than third party equipment within our direct control).

2. This Agreement, including all applicable Quotes or similar order documents, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals representations written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or in any other order documentation of yours shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void. This section shall not exclude the liability of a party for fraud or fraudulent misrepresentation or concealment or any resulting right to rescind this Agreement.

3. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible consistent with the original intent of the parties, and the other provisions of this Agreement will remain in force.

4. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

5. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prevents either party from seeking injunctive relief in the appropriate or applicable forum.”

F. THIRD-PARTY RIGHTS. Nothing in this Agreement is intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce a term contained in this Agreement under the Contracts (Rights of Third Parties) Act 1999, except that Webtrends Inc. shall have the benefit of and the right to enforce all provisions of this agreement which benefit and are enforceable by Webtrends. Notwithstanding this, the Agreement may be varied without the consent of, and without reference to, Webtrends Inc.

22. IF YOU ARE A CLIENT IN JAPAN, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FOLLOWING TERMS APPLY TO YOU:

A. Webtrends under this Agreement is Webtrends Japan KK. All references to “Webtrends”, the licensor of Webtrends software, or Webtrends Inc. (or a subsidiary of Webtrends Inc.) shall refer to Webtrends Japan KK.

B. If the laws of country in which you are located require that contracts be in the local language in order to be enforceable, the version of this Agreement that shall govern is the translated version of this Agreement in the local language that is produced by Webtrends within a reasonable time following your written request to Webtrends.

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Service Schedule to Webtrends Terms of Subscription Service

The following terms apply to your purchase of a subscription in the Service in addition to all of the terms and conditions contained in the Agreement.

Webtrends Analytics

If your subscription purchase includes Webtrends Analytics Service, your right to access and use Webtrends Analytics Service is limited to: (i) collection and analysis of Client Data (ii) accessing, uploading and/or viewing of Third Party Data, if such feature is made available by Webtrends, (iii) collecting the number of Server Calls subject to the total number of Server Calls you may collect during the Term, such total number as set forth in the applicable Quote or similar order document (“Server Call Entitlement”); and (iv) accessing, viewing and downloading Service Data. “Server Call” is the unit of measurement for usage of Webtrends Analytics Service. A Server Call is incurred when a request is sent to the data collection servers for Webtrends Analytics Service, whether such request is sent by the Webtrends tag, Webtrends API or some other data collection methods used by the Service. Webtrends Essential Care support and Standard Data Retention are included.

Webtrends shall have no obligation to return and you shall have no right to receive any portion of the Service Fees in the event that the actual usage by you of Server Calls is below the Server Call Entitlement for the Term. If during the Term the actual usage of Analytics Service exceeds the Server Call Entitlement for the Term, you shall either: (a) purchase additional Server Calls; or (b) pay Continuation Fees to Webtrends. “Continuation Fees” will be determined by multiplying the number of Server Calls collected in increments of one thousand and any fractions thereof, in excess of the Server Call Entitlement by the applicable Cumulative CPM for the relevant Term. “Cumulative CPM” for Server Calls means the cost per thousand Server Calls as set forth in the applicable Quote or similar order document. You will be solely responsible for monitoring your Server Call usage, and Webtrends will have no obligation to notify you when you are approaching or exceeding your Server Call Entitlement. Upon the expiration or earlier termination of the Term, the Server Call Entitlement shall expire. All additional Server Calls purchased in the middle of any term will be co-terminus with the then current term. All other Product Add-Ons purchased in the middle of any term will be pro-rated for the remainder of the then-current term, and will be co-terminus with the then-current term.

Webtrends Visitor Data Mart; Webtrends Segments; Webtrends Score

If your subscription purchase includes Webtrends Visitor Data Mart (“VDM”), Webtrends Segments and/or Webtrends Score Service, your right to access and use such Service(s) is limited to: (i) analyzing the data collected from Client Sites, (ii) analyzing the data collected via Webtrends APIs or any other data collection methods and sent to the data collection servers for the Service; (iii) tracking and loading the number of Events subject to the total number of Events you may track and load in the VDM database during the Term, such total number as set forth in the applicable Quote or similar order document (“Event Entitlement”); and (iv) accessing, viewing and downloading Service Data. “Event” is the unit of measurement for usage of Webtrends VMD, Segments and Score Service. An Event is incurred when a visitor activity or a transaction, as defined by you, are tracked and loaded in the Webtrends VDM database. Webtrends Essential Care support and Standard Data Retention are included.

Webtrends shall have no obligation to return and you shall have no right to receive any portion of the Service Fees in the event that the actual usage by you of Events is below the Event Entitlement for the Term. If during the Term the actual usage of Service exceeds the Event Entitlement for the Term, you shall either: (a) purchase additional Events; or (b) pay Continuation Fees to Webtrends. “Continuation Fees” will be determined by multiplying the number of Events collected in increments of one thousand and any fractions thereof, in excess of the Event Entitlement by the applicable Cumulative CPM for the relevant Term. “Cumulative CPM” for Events means the cost per thousand Events as set forth in the applicable Quote or similar order document. You will be solely responsible for monitoring your Event usage, and Webtrends will have no obligation to notify you when you are approaching or exceeding your Event Entitlement. Upon the expiration or earlier termination of the Term, the Event Entitlement shall expire. All additional Events purchased in the middle of any term will be co-terminus with the then current term. All other Product Add-Ons purchased in the middle of any term will be pro-rated for the remainder of the then-current term, and will be co-terminus with the then-current term.

Webtrends Optimize

If your subscription purchase includes Webtrends Optimize Service, your right to access and use Webtrends Optimize Service is limited to: (i) testing, segmenting and targeting (applicable only if your purchase includes the Optimize targeting functionality) the total number of Optimize Event Entitlement as set forth in the applicable Quote or similar order document; and (ii) the specific domains listed in the applicable Quote or similar order document and if none are listed, then “Client Sites.” “Optimize Event” is the unit of measurement for usage of Webtrends Optimize. An Optimize Event is incurred for each call to the Optimize Service that modifies or tracks the Client Site visitor’s environment in response to an Optimize testing and/or targeting scenario. Conversion events are counted. Webtrends Optimize support and Optimize standard data retention are included.

Webtrends shall have no obligation to return and you shall have no right to receive any portion of the Service Fees in the event that the actual usage by you of Optimize Events is below the Optimize Event Entitlement for the Term. If during the Term the actual usage of Service exceeds the Optimize Event Entitlement for the Term, you shall either: (a) purchase additional Optimize Events; or (b) pay Continuation Fees to Webtrends. “Continuation Fees” will be determined by multiplying the number of Optimize Events collected in increments of one thousand and any fractions thereof, in excess of the Optimize Event Entitlement by the applicable Cumulative CPM for the relevant Term. “Cumulative CPM” for Optimize Events means the cost per thousand Optimize Events as set forth in the applicable Quote or similar order document. You will be solely responsible for monitoring your Optimize Event usage, and Webtrends will have no obligation to notify you when you are approaching or exceeding your Optimize Event Entitlement. Upon the expiration or earlier termination of the Term, the Optimize Event Entitlement shall expire. All additional Optimize Events purchased in the middle of any term will be co-terminus with the then current term. All other Product Add-Ons purchased in the middle of any term will be pro-rated for the remainder of the then-current term, and will be co-terminus with the then-current term.