Terms of Subscription Service
LAST UPDATED: March 19, 2013
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. YOU SIGNIFY YOUR ACCEPTANCE TO THE TERMS OF 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. 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”, “YOUR”, OR “CLIENT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCEPT THIS AGREEMENT OR USE THE SERVICE. YOU MAY NOT USE OR ACCESS THE SERVICE IF YOU ARE OUR DIRECT COMPETITOR, OR ARE ACCESSING OR USING THE SERVICE FOR THE BENEFIT OF ONE OF OUR DIRECT COMPETITORS. 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 create an online account on the Service to manage your use of the Service (“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 related information confidential. You are solely responsible for any and all activity initialized through your Account. You shall 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 the 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. “Service” shall mean all Webtrends software-as-a-service products or services specified on the Webtrends quote provided to you, your purchase order documentation or similar purchase documentation that references this Agreement (“Order Document”), and includes any additional capacities, features or functionalities subsequently purchased by you that augment or enhance the Service (“Product Add-Ons”). Additional descriptions, limitations and terms applicable to each specific Service are included at the end of this Agreement. Service will commence on the date that Webtrends electronically confirms your order of the Service pursuant to this Agreement and the Order Document (“Delivery Date”). In connection with your use of the Service, subject to the terms and conditions of this Agreement, Webtrends hereby grants you a non-exclusive, limited license during the Term of this Agreement to: (a) place the Webtrends Data Collection Methods on Client Sites (defined below) for the sole purpose of collecting data for the Service; (b) use the Webtrends APIs for the sole purpose of collecting data for the Service; and (c) use the Documentation and make a reasonable number of copies of the Documentation for the sole purpose of using the Service. “Client Sites” means those websites, Third Party Platforms (defined below), applications or devices owned, licensed, operated or controlled by you or a third party on your behalf (i) for which you wish to, and have the authority to, use the Webtrends tracking code, Webtrends APIs or any other authorized collection methods (“Data Collection Methods”) to collect data for the Service; or (ii) for which you otherwise wish to, and have the authority to, retrieve 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 Data Collection Methods 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 Data Collection Method(s) and the result from processing of such collected data by the Service (“Client Data”); (2) data and materials from Third Party Platform providers or other third party services that you authorize retrieving 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 retrieved 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 Authenticated Data are collectively referred to herein as “Service Data”.
You and your employees, officers, directors or authorized contractors (each a “User”) shall not (and shall not permit any third party to): (a) 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; (b) 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; (c) remove, obscure or alter any proprietary notices or labels on the Service, or any component thereof, or on any Documentation; (d) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (e) disclose the results of any performance, functionality or other evaluation or benchmarking of the Service, provided however you may distribute Service Data and Third Party Data; (f) use the Service to retrieve, store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (g) use the Service to collect, retrieve, store or transmit infringing, libelous or otherwise unlawful or tortious material, or to collect, retrieve, store or transmit data in violation of third-party privacy rights or policies, or applicable privacy and data security laws, rules or regulations; or (h) attempt to gain unauthorized access to the Service or related systems or networks. Users must keep their specific username and password for the Service confidential. You shall: (i) be responsible for each User’s compliance with this Agreement; (ii) 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 (iii) 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 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.
The Service and all components thereto are not fault-tolerant. The 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”). You are 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. You agree not to use the Service or any component thereof in or in connection with any High Risk Use.
The Documentation, the Service and all components thereof including without limitation the Webtrends Data Collection Methods, 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 Service Data, including all worldwide intellectual property rights thereto, are your exclusive property.
Webtrends is the holder of various patents with respect to Webtrends’ technology. A list of Webtrends current patents is provided at: http://webtrends.com/terms-policies/product-legal-information/patents.
5. EVALUATION USE
This Section 5 applies only if you have accessed the Service for evaluation and trial purposes only. To the extent any terms in this Section 5 conflict with the Agreement, this Section 5 shall supersede such terms if your access and use of the Service is for evaluation and trial purposes. 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”). The Service provided to you for evaluation purposes employs a mechanism which restricts access to the applicable product 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 distribute, publish, disclose or otherwise reveal it. You shall not circumvent or defeat the restriction mechanism. Additional product functionality restrictions may apply during the Evaluation Period. Any Service Data and Third Party Data collected and analyzed by the Service or retrieved 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 used 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.
You shall pay to Webtrends the fees for the Service set forth in the Order Document (the “Service Fees”), in accordance with the billing and payment terms set forth in the Order Document and this Agreement. The Service Fees are non-refundable.
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 Order Document.
9. CLIENT DATA
Webtrends shall maintain industry-standard security controls over the resources Webtrends 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 provide you with access to the processed data included in Client Data as set forth in the Data Retention Policy posted at http://webtrends.com/terms-policies/product-legal-information/data-retention-policy. Notwithstanding any provision to the contrary stated herein, (a) Webtrends does not have any obligations to retain, store, deliver or provide access to any Client Data other than as expressly stated herein; (b) Webtrends will not deliver or provide you with access to the raw collected data included in Client Data, unless you have paid for additional functionality to access such data; and (c) Webtrends’ obligations to keep and store Client Data shall terminate with the expiration or termination of the applicable Service.
Webtrends may use Service Data to modify and improve the Service, Webtrends business, or Webtrends technology. However, Webtrends will only use data that has been “anonymized” to remove references to you and visitors to Client Sites. The Webtrends Data Collection Methods 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.
If you install, enable or authorize the integration of third party applications for use with the Service, you agree that, at your direction, Webtrends may provide access to Service Data to the authorized third party application providers, as required for the interoperations of such third party applications with the Service. Webtrends is not responsible for (i) any disclosure, modification or deletion of Service Data resulting from any such access by third party application providers you authorize to access the Service Data, or (ii) the security, functionality, operation or integrity of any third party application or API. You may transmit, copy, extract or otherwise remove Service Data from Webtrends Service servers using a feature included in the applicable Service, or using a third party or Client application, connector or API to interface with the Service. Webtrends is not responsible in any way for any Service Data once such Service Data is transmitted, copied, extracted and/or removed from Webtrends Service servers by Client or a third party authorized by Client.
10. THIRD PARTY PLATFORMS AND THIRD PARTY DATA
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, retrieve 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, unless you modify the access setting in your Account.
(3) For purpose of providing the Service, you hereby authorize Webtrends to (i) access your Third Party Account(s) and the Client Site on the Third Party Platform; (ii) access and retrieve Third Party Authenticated Data from the Third Party Platform via your Third Party Account(s); and (iii) take any and all reasonably necessary 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 Order Document. At no time during or after the Term shall you dispute the validity of the authorization granted to Webtrends hereunder.
11. SUPPORT & CONSULTING 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 to 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 consulting services such as implementation and training services, unless otherwise specified in the Order Document. Where Webtrends provides consulting services to you, such consulting services shall be provided in accordance with the terms and conditions set forth athttp://webtrends.com/terms-policies/product-legal-information/professional-services-terms-and-conditions unless otherwise agreed to by the parties in writing.
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 to 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 a refund of: (i) the subscription fees specified in the Order Document which are allocable to the thirty (30) day period prior to the date the warranty claim was made; and (ii) 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 (LIMITED WARRANTY) OF THIS AGREEMENT, THE SERVICE, THE WEBTRENDS DATA COLLECTION METHODS, SERVICE DATA, THIRD PARTY DATA AND DOCUMENTATION ARE PROVIDED “AS IS” AND WEBTRENDS, ITS SUPPLIERS AND LICENSORS MAKE NO OTHER 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 DATA COLLECTION METHODS, SERVICE DATA, THIRD PARTY 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 FORM THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. WEBTRENDS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE 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 ACCURACY 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.
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, EXEMPLARY, 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 IN ADVANCE. 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 FOREGOING LIMITATION IS CUMULATIVE WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.
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.
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, customer names, prospective customer names, the terms and pricing under this Agreement and the Order Document, 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 does not include 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.
The receiving party shall not use any Confidential Information of the disclosing party other than for the performance of its obligations or exercise of its rights under this Agreement, and shall disclose the Confidential Information of the disclosing party only to those of its employees, contractors and agents who have a need to know such Confidential Information for legitimate business purposes related to this Agreement. The receiving party shall protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving party protects its own confidential or proprietary information of a similar nature, and with no less than reasonable care.
Upon request of the disclosing party, the receiving party will delete the disclosing party’s Confidential Information, other than archival back-up copy.
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. All obligations of confidentiality under this Section shall survive any termination of this Agreement.
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: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) 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 will commence on the effective date of the Order Document, 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 order term specified in the Order Document (the initial term and each renewal term, if any, individually or collectively as applicable, 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, 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: (a) you or any User breaches the rights or limitations set forth in Section 3 (Restrictions) or 8 (Privacy) above; or (b) 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 materially 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’ material breach, you shall pay Webtrends for the actual Service Fees and any other fees related to the Service accrued 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 User, you will pay Webtrends for the total Service Fees, professional services fees, if applicable, and any Continuation Fees for the Service purchased by you under the Order Document 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 the Service and Documentation 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 Data Collection Methods from Client Sites. Upon request, you will certify to Webtrends in writing that you have fully complied with these requirements. Upon any termination of this Agreement and the Service, you must delete your Account, and if you have not deleted, Webtrends shall delete 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 at http://webtrends.com/terms-policies/product-legal-information/terms-of-service. We will use reasonable efforts to notify you of the changes, which may include posting an announcement on the Webtrends Service site, informing you through your Account, in-product notices or via email. Your continued use of the Service following Webtrends’ posting or notice 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 within sixty (60) days of the Delivery Date.
20. MISCELLANEOUS; APPLICABLE LAW AND VENUE
This Agreement, including the 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 (Modifications to Terms of Service and Other Policies) 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. 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 are 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 Webtrends’ 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, 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. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on Contracts for the International Sale of Goods shall 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 the 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. “Data controller” and “data processor” have the meanings assigned to them in the EU Data Protection Directive 95/46/EC”
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: (a) loss of profits; (b) loss of sales; (c) loss of turnover; (d) loss of, or loss of use of, any (i) software or (ii) data; (e) loss of use of any computer or other equipment or plant; (f) wasted management or other staff time; (g) losses or liabilities under or in relation to any other contract; or (h) 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 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 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. 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 WT EMEA Acquisitions Limited. Notwithstanding the foregoing, the Agreement may be varied without the consent of, and without reference to, Webtrends Inc.
22. SERVICE SCHEDULE TO WEBTRENDS TERMS OF SUBSCRIPTION SERVICE
The following terms apply to your purchase of a subscription to the specified Services below in addition to all of the terms and conditions contained in the Agreement. For the purposes of this Section 22, “Order Term” means the term of Service specified in an Order Document and each Order Term and renewal thereof the “Term”.
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, retrieving 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 Order Document and any Product Add-Ons purchased during the Term (“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 Webtrends Data Collection Methods used by the Service. Webtrends Essential Care support (as described in the support policy) and Standard Data Retention (as described in the Data Retention Policy) are included with Webtrends Analytics Service.
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 your actual Server Call usage is below the Server Call Entitlement for the Term. If during the Term your usage of Webtrends 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 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 Order Term will be co-terminus with the then current Order Term. All other Product Add-Ons purchased in the middle of any Order Term will be pro-rated for the remainder of the then current Order Term, and will be co-terminus with the then current Order 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 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 Order Document and any Product Add-Ons purchased during the Order Term (“Event Entitlement”); and (iv) accessing, viewing and downloading Service Data and Third Party Data, if any. “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 (as described in the support policy) and Standard Data Retention (as described in the Data Retention Policy) are included with the Webtrends Visitor Data Mart, Webtrends Segments and/or Webtrends Score Service.
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 your actual usage of Events is below the Event Entitlement for the Term. If during the Term your usage of Webtrends VMD, Segments and Score 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 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 Order Term will be co-terminus with the then current Order Term. All other Product Add-Ons purchased in the middle of any Order Term will be pro-rated for the remainder of the then current Order Term, and will be co-terminus with the then current Order Term.
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 Events as set forth in the applicable Order Document and any Product Add-Ons purchased during the Order Term (“Optimize Event Entitlement”); and (ii) the specific domains listed in the applicable Order Document and if none are listed, then Client Sites. “Optimize Event” is the unit of measurement for usage of Webtrends Optimize Service. 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 (as described in the support policy) and Data Retention for Optimize Report Data (as described in the Data Retention Policy) are included Webtrends Optimize Service purchase.
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 your actual usage of Optimize Events is below the Optimize Event Entitlement for the Term. If during the Term your usage of Optimize 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 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 Order Term will be co-terminus with the then current Order Term. All other Product Add-Ons purchased in the middle of any Order Term will be pro-rated for the remainder of the then current Order Term, and will be co-terminus with the then current Order Term.
If your subscription purchase includes Webtrends Streams (“Webtrends Streams”), your right to access and use Webtrends Streams is limited to (i) collecting, accessing and retrieving Streams Data, up to the number of Streams Events set forth in the Order Document (“Streams Event Entitlement”), and (ii) establishing the number of Concurrent Connections specified in the Order Document. Please see the Webtrends Streams Product Descriptions at http://trnd.me/TBMUSJ for the scope, deliverables, additional terms, and other specifics regarding your Webtrends Streams package.
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 your actual Streams Event usage is below the Streams Event Entitlement. If, during the Order Term, your actual usage of Webtrends Streams exceeds the Streams Event Entitlement, you shall either (i) purchase additional Streams Events, or (ii) pay Continuation Fees to Webtrends. "Continuation Fees" will be determined by multiplying the number of Streams Events collected in increments of one thousand, and any fractions thereof, in excess of the Streams Event Entitlement by the Cumulative CPM. "Cumulative CPM" for Streams Events means the cost per thousand Streams Events, as set forth in the Order Document. Upon the expiration or earlier termination of the Order Term, the Streams Event Entitlement shall expire. All additional Streams Events purchased in the middle of any Order Term will be co-terminus with the then current Order Term. All other Product Add-Ons purchased in the middle of any Order Term will be pro-rated for the remainder of the then current Order Term, and will be co-terminus with the then current Order Term.
The following definitions are used with respect to Webtrends Streams: “Streams Data” means the data collected via Webtrends Streams; “Concurrent Connection” a connection means a socket connection between Webtrends Streams and any Application, a Concurrent Connection is a usage limitation for Webtrends Streams, and means the number of connections between your computer network and the Webtrends Streams server which may occur concurrently; “Streams Event” is the unit of measurement for usage of Webtrends Streams. A Streams Event is counted against your Streams Event Entitlement when any event configured by or on behalf of you to be collected, is collected and delivered to the Webtrends Streams infrastructure, and then such event is consumed by any application, device, computer program, database, data visualization interface and/or algorithm (collectively, “Application”) that is owned, controlled or authorized by you. A Streams Event is counted against your Streams Event Entitlement when such Streams Event is consumed by any Application for each unique data stream. Notwithstanding anything to the contrary within the Agreement, Webtrends shall have no obligation to (i) keep and store Streams Data, (ii) store or deliver any raw data included in Streams Data even if you have purchased access to such data for another Service.