Terms of Service
The following are the terms and conditions for use of the
SiteEyes Web Analytics service described herein (the "Service")
between Expert Internet Services and you (either an individual or a legal
entity that you represent as an authorized employee or agent)
("You"). Please read them carefully. BY CLICKING
THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION
PROCESS AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU
ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND
BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE ("AGREEMENT").
The Service is offered to you conditioned on your acceptance
without modification of the terms, conditions, and notices
contained herein.
1. DEFINITIONS
"Account" refers to the billing account for the
Service. All Profiles linked to a single Site will have
their Page Views aggregated prior to determining the charge
for the Service for that Site.
"Customer Data" means the data concerning the
characteristics and activities of visitors to your website
that is collected through use of the statistics.js file and then forwarded
to the Servers and analyzed by the Processing Software.
"Documentation" means any accompanying proprietary
documentation made available to You by Expert Internet Services for use with
the Processing Software, including any documentation available
online or otherwise.
"Page View" is the unit of measurement for usage
of the Service. A Page View is used when the statistics.js file is executed
on a web page accessed by a visitor, and processed as part
of a Profile. A Page View will be incurred for each instance
of the statistics.js file on the web page, and for each Profile receiving
information from the statistics.js file for such web page.
"Processing Software" means the proprietary SiteEyes Web Analytics Software and any all upgrades to such, which analyzes
the Customer Data and generates the Reports.
"Profile" means the collection of settings that
together determine the information to be included in, or
excluded from, a particular Report. For example, a Profile
could be established to view a small portion of a web site
as a unique Report. There can be multiple Profiles established
under a single Site.
"Report" means the resulting analysis shown at
www.SiteEyes.com (or such other URL SiteEyes may provide
from time to time) for an individual profile. The number
of charts, graphs, and statistics contained in a Report
varies with the edition of the Service.
"statistics.js file" means the proprietary SiteEyes Web Analytics
Tracking Code, which is installed on a web page for the
purpose of collecting Customer Data, together with any fixes,
updates and upgrades provided to you (collectively, the
"statistics.js file").
"Servers" means the servers controlled by Expert Internet Services
(or its wholly owned subsidiaries) upon which the Processing
Software and Customer Data are stored.
"Site" means a group of web pages that are linked
to an Account and use the same statistics.js file. Each Site consists of
a default Profile that measures all pages within the Site.
Additional Profiles can be established under a Site to evaluate
subsections of a Site in greater detail.
"Software" means the statistics.js file and the Processing Software.
2. FEES AND SERVICES . Subject to Section 15 herein, the
Service is provided without charge to You for up to 5 million
pageviews per month per account, and if You have an active
Adwords campaign in good standing, the Service is provided
without charge to You without a pageview limitation.
Expert Internet Services may change its fees and payment policies for the
Service from time to time including but not limited to the
addition of costs for geographic data, the importing of
cost data from search engines, or other fees charged to
Expert Internet Services or its wholly-owned subsidiaries by 3rd party vendors
for the inclusion of data in the Service reports. The changes
to the fees or payment policies are effective upon Your
acceptance of such changes which will be posted at www.SiteEyes.com
(or such other URL Expert Internet Services may provide from time to time).
Unless otherwise stated, all fees are quoted in U.S. Dollars.
Any outstanding balance becomes immediately due and payable
upon termination of this Agreement for any reason and any
collection expenses (including attorneys' fees) incurred
by Expert Internet Services will be included in the amount owed, and may be
charged to the credit card or other billing mechanism associated
with your Adwords account.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY . To register
for the Service, You must complete the registration process
by providing Expert Internet Services with current, complete and accurate
information as prompted by the registration form, including
Your e-mail address (username) and password. You shall protect
your passwords and take full responsibility for Your own,
and third party, use of Your accounts. You are solely responsible
for any and all activities that occur under Your Account.
You agree to notify Expert Internet Services immediately upon learning of
any unauthorized use of Your Account or any other breach
of security. From time to time, Expert Internet Services's (or its wholly-owned
subsidiaries') support staff may log in to the Service under
Your customer password in order to maintain or improve service,
including to provide You assistance with technical or billing
issues. You hereby acknowledge and consent to such access.
4. NONEXCLUSIVE LICENSE . Expert Internet Services hereby grants You a limited,
revocable, non-exclusive, non-sublicensable license to install,
copy and use the statistics.js file solely as necessary to use the Service
for one or more web pages that You own and control (collectively,
the "Website"). Subject to the terms and conditions
of this Agreement, You may remotely access, view and download
Your Reports stored at www.SiteEyes.com (or such
other URL Expert Internet Services may provide from time to time). Your license
of, use of and access to the Software and the Service (which
may include, without limitation, the Software, Documentation
and the Reports) is conditioned upon Your compliance with
the terms and conditions of the Agreement, including the
following:
You will not nor will You allow any third party to (i)
copy, modify, adapt, translate or otherwise create derivative
works of the Software or the Documentation; (ii) reverse
engineer, de-compile, disassemble or otherwise attempt to
discover the source code of the Software, except as expressly
permitted by the law in effect in the jurisdiction in which
You are located; (iii) rent, lease, sell, assign or otherwise
transfer rights in or to the statistics.js file, the Processing Software,
the Documentation or the Service; (iv) remove any proprietary
notices or labels on the Software or placed by the Service;
or (v) use, post, transmit or introduce any device, software
or routine which interferes or attempts to interfere with
the operation of the Service or the Software. You will use
the Software, Service and Reports solely for Your own internal
use, and will not make the Software or Service available
for timesharing, application service provider or service
bureau use. You will comply with all applicable laws and
regulations in Your use of and access to the Documentation,
Software, Service and Reports.
This license will terminate immediately if You fail to
comply with the terms of this Agreement. Upon such termination,
You must destroy all originals and copies of the statistics.js file in
Your possession and so certify in writing to Expert Internet Services within
three (3) business days of termination and cease any further
use of the Service without the express written consent of
Expert Internet Services.
5. CONFIDENTIALITY . "Confidential Information"
includes any proprietary data and any other information
disclosed by one party to the other in writing and marked
"confidential" or disclosed orally and, within
five business days, reduced to writing and marked "confidential".
Notwithstanding the foregoing, Confidential Information
will not include any information that is or becomes known
to the general public, which is already in the receiving
party's possession prior to disclosure by a party or which
is independently developed by the receiving party without
the use of Confidential Information. Neither party will
use or disclose the other party's Confidential Information
without the other's prior written consent except for the
purpose of performing its obligations under this Agreement
or if required by law, regulation or court order. In which
case, the party being compelled to disclose Confidential
Information will give the other party as much notice as
is reasonably practicable prior to disclosing such information.
Upon termination of this Agreement, the parties will promptly
either return or destroy all Confidential Information and,
upon request, provide written certification of such. You
are responsible for safeguarding the confidentiality of
Your password(s) and user name(s) issued to You by Expert Internet Services,
and for any use or misuse of Your account resulting from
any third party using a password or user name issued to
You. You agree to immediately notify Expert Internet Services of any unauthorized
use of Your account or any other breach of security known
to You.
6. INFORMATION RIGHTS AND PUBLICITY . Expert Internet Services and its wholly
owned subsidiaries may retain and use, subject to the terms
of its Privacy Policy (located at http://www.SiteEyes.com/privacy.html
, or such other URL as Expert Internet Services may provide from time to time),
information collected in Your use of the Service. Expert Internet Services
will not share information associated with You or your Site
with any third parties unless Expert Internet Services (i) has Your consent;
(ii) concludes that it is required by law or has a good
faith belief that access, preservation or disclosure of
such information is reasonably necessary to protect the
rights, property or safety of Expert Internet Services, its users or the public;
or (iii) provides such information in certain limited circumstances
to third parties to carry out tasks on Expert Internet Services's behalf (e.g.,
billing or data storage) with strict restrictions that prevent
the data from being used or shared except as directed by
Expert Internet Services . When this is done, it is subject to agreements
that oblige those parties to process such information only
on Expert Internet Services's instructions and in compliance with this Agreement
and appropriate confidentiality and security measures. Unless
You notify Expert Internet Services otherwise in writing, You hereby grant
to Expert Internet Services and its wholly owned subsidiaries a limited license
to use Your trade names, trademarks, service marks, logos,
domain names and other distinctive brand features ("Brand
Features") in presentations, marketing materials, customer
lists, and financial reports. Further, Unless You notify
Expert Internet Services otherwise in writing, Expert Internet Services and its wholly owned
subsidiaries retain the right to identify You as a valued
customer and optionally issue a press release that, at a
minimum, discloses You have licensed the Product and that
the Product is Your preferred web analytics package.
7. PRIVACY . You will not (and will not allow any third
party to) use the Service to track or collect personally
identifiable information of Internet users, nor will You
(or will You allow any third party to) associate any data
gathered from Your website(s) (or such third parties' website(s))
with any personally identifying information from any source
as part of Your use (or such third parties' use) of the
Service. You will have and abide by an appropriate privacy
policy and will comply with all applicable laws relating
to the collection of information from visitors to Your websites.
You must post a privacy policy and that policy must provide
notice of your use of a cookie that collects anonymous traffic
data.
8. INDEMNIFICATION . You agree to indemnify, hold harmless
and defend Expert Internet Services and its wholly owned subsidiaries, at
Your expense, any and all third-party claims, actions, proceedings,
and suits brought against Expert Internet Services or any of its officers,
directors, employees, agents or affiliates, and all related
liabilities, damages, settlements, penalties, fines, costs
or expenses (including, without limitation, reasonable attorneys'
fees and other litigation expenses) incurred by Expert Internet Services or
any of its officers, directors, employees, agents or affiliates,
arising out of or relating to (i) Your breach of any term
or condition of this Agreement, (ii) Your use of the Service,
(iii) Your violations of applicable laws, rules or regulations
in connection with the Service, or (iv) Your Brand Features.
In such a case, Expert Internet Services will provide You with written notice
of such claim, suit or action. You shall cooperate as fully
as reasonably required in the defense of any claim. Expert Internet Services
reserves the right, at its own expense, to assume the exclusive
defense and control of any matter subject to indemnification
by You.
9. THIRD PARTIES. If You provide access to Your Account
or any portion thereof to any third party or use the Service
to collect information on behalf of any third party ("Third
Party"), whether or not You are authorized to do so
by Expert Internet Services or its wholly owned subsidiaries, the terms of
this Section 9 shall apply to You.
If You use the Service on behalf of any Third Party, You
represent and warrant that (a) You are authorized to act
on behalf of, and bind to this Agreement, that Third Party
, (b) as between the Third Party and You, the Third Party
owns any rights to Customer Data in the applicable account,
and (c) You shall not disclose Third Party's Customer Data
to any other party without the Third Party's consent.
You shall ensure that each Third Party is bound by and
abides by the terms of this Agreement. Expert Internet Services and its wholly
owned subsidiaries make no representations or warranties
for the direct or indirect benefit of any Third Party. With
respect to Third Parties, You shall take all measures necessary
to disclaim any and all representations or warranties that
may pertain to Expert Internet Services and its wholly owned subsidiaries,
the Service, the Software or the Reports, or use thereof.
You agree to indemnify, hold harmless and defend Expert Internet Services
and its wholly owned subsidiaries, at Your expense, against
any and all third-party claims, actions, proceedings, and
suits brought against Expert Internet Services or any of its officers, directors,
employees, agents or affiliates, and all related liabilities,
damages, settlements, penalties, fines, costs or expenses
(including, without limitation, reasonable attorneys' fees
and other litigation expenses) incurred by Expert Internet Services, or any
of its officers, directors, employees, agents or affiliates,
arising out of or relating to (a) any representations and
warranties made by You concerning any aspect of the Service,
the Software or Reports to Third Parties; (b) any claims
made by or on behalf of any Third Party pertaining directly
or indirectly to Your use of the Service, the Software or
Reports; (c) violations of Your obligations of privacy to
any Third Party; and (d) any claims with respect to acts
or omissions of Third Parties in connection with the Services,
the Software or Reports.
10. DISCLAIMER OF WARRANTIES . The information and services
included in or available through the Service, including
the Reports, may include inaccuracies or typographical errors.
Changes are periodically added to the information herein.
Expert Internet Services and/or its respective suppliers may make improvements
and/or changes in the Service or Software at any time, with
or without notice. Expert Internet Services does not represent or warrant
that the Service will be uninterrupted or error-free, that
defects will be corrected, or that the Service, the Software
or any other software on the Server are free of viruses
or other harmful components. Expert Internet Services does not warrant or
represent that the use of the Service or the Reports will
be correct, accurate, timely or otherwise reliable. You
specifically agree that Expert Internet Services and its wholly owned subsidiaries
shall not be responsible for unauthorized access to or alteration
of the Customer Data or data from Your Website.
THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED "AS
IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS
MADE BY Expert Internet Services AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER
EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE,
THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES
OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY,
OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES
CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
TRADE USAGE. Expert Internet Services DOES NOT WARRANT THAT THE SERVICE, THE
SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM
ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED.
THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL
PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING
THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW
EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY
NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY . Expert Internet Services AND ITS WHOLLY OWNED
SUBSIDIARIES WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY
CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA
COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER
BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE,
STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY
DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF Expert Internet Services
AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED
IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE
OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE
LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH
MAY NOT APPLY TO YOU.
Expert Internet Services's (and its wholly owned subsidiaries') total cumulative
liability to You or any other party for any loss or damages
resulting from any claims, demands, or actions arising out
of or relating to this Agreement shall not exceed U.S. $500.
12. SERVICE LEVELS . Expert Internet Services does not guarantee the Service
will be operable at all times or during any down time (1)
caused by outages to any public Internet backbones, networks
or servers, (2) caused by any failures of Your equipment,
systems or local access services, (3) for previously scheduled
maintenance or (4) relating to events beyond Expert Internet Services's (or
its wholly owned subsidiaries') control such as strikes,
riots, insurrection, fires, floods, explosions, war, governmental
action, labor conditions, earthquakes, natural disasters,
or interruptions in Internet services to an area where Expert Internet Services
(or its wholly owned subsidiaries) or Your servers are located
or co-located. Complete accuracy in all aspects of Your
Statistics at all times also is not guaranteed.
13. PROPRIETARY RIGHTS NOTICE . The Service, which includes
but is not limited to the statistics.js file and the SiteEyes Web Analytics Software
and all intellectual property rights in the Service are,
and shall remain, the property of Expert Internet Services (and its wholly
owned subsidiaries). All rights in and to the Processing
Software not expressly granted to You in this Agreement
are hereby expressly reserved and retained by Expert Internet Services and
its licensors without restriction, including, without limitation,
Expert Internet Services's (and its wholly owned subsidiaries') right to sole
ownership of the SiteEyes Web Analytics Software and Documentation.
Without limiting the generality of the foregoing, You agree
not to (and to not allow any third party to): (a) sublicense,
distribute, or use the Service outside of the scope of the
License granted herein; (b) copy, modify, adapt, translate,
prepare derivative works from, reverse engineer, disassemble,
or decompile the Processing Software or otherwise attempt
to discover any source code or trade secrets related to
the Service; (c) use the trademarks, trade names, service
marks, logos, domain names and other distinctive brand features
or any copyright or other proprietary rights associated
with the Service for any purpose without the express written
consent of Expert Internet Services; (d) register, attempt to register, or
assist anyone else to register any trademark, trade name,
serve marks, logos, domain names and other distinctive brand
features, copyright or other proprietary rights associated
with Expert Internet Services (or its wholly owned subsidiaries) other than
in the name of Expert Internet Services (or its wholly owned subsidiaries,
as the case may be); or (e) remove, obscure, or alter any
notice of copyright, trademark, or other proprietary right
appearing in or on any item included with the Service.
14. U.S. GOVERNMENT RIGHTS . If the use of the Service
is being acquired by or on behalf of the U.S. Government
or by a U.S. Government prime contractor or subcontractor
(at any tier), in accordance with 48 C.F.R. 227.7202-4 (for
Department of Defense (DOD) acquisitions) and 48 C.F.R.
2.101 and 12.212 (for non-DOD acquisitions), the Government's
rights in the Software, including its rights to use, modify,
reproduce, release, perform, display or disclose the Software
or Documentation, will be subject in all respects to the
commercial license rights and restrictions provided in this
Agreement.
15. TERM and TERMINATION . Either party to the Agreement
may terminate it at any time and for any reason.
Upon any termination or expiration of this Agreement, Expert Internet Services
will cease providing the Service, and You will delete all
copies of SiteEyes Web Analytics's statistics.js file code from all Pages and
certify thereto in writing to Expert Internet Services within three (3) business
days of such termination. In the event of any termination
(a) You will not be entitled to any refunds of any usage
fees or any other fees, and (b) any (i) outstanding balance
for Service rendered through the date of termination, and
(ii) other unpaid payment obligations during the remainder
of the Initial Term will be immediately due and payable
in full and (c) all of Your historical report data will
no longer be available to You unless a purchase or professional
services agreement for the exchange and transfer of such
data is entered into as a component of termination.
16. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
. Expert Internet Services reserves the right to change
or modify any of the terms and conditions contained in this
Agreement or any policy governing the Service, at any time,
by posting the new agreement to the site located at www.ExpertInternetServices.com
(or such other URL as Expert Internet Services may provide). You are responsible
for regularly reviewing the policy. No amendment to or modification
of this Agreement will be binding unless (i) in writing
and signed by a duly authorized representative of Expert Internet Services,
(ii) You accept updated terms online, or (iii) You continue
to use the Service after Expert Internet Services has posted updates to the
Agreement or to any policy governing the Service.
17. MISCELLANEOUS; APPLICABLE LAW AND VENUE . Expert Internet Services shall
be excused from performance hereunder to the extent that
performance is prevented, delayed or obstructed by causes
beyond its reasonable control. This Agreement (including
any amendment agreed upon by the parties in writing) represents
the complete agreement between us concerning its subject
matter, and supersedes all prior agreements and representations
between the parties. If any provision of this Agreement
is held to be unenforceable for any reason, such provision
shall be reformed to the extent necessary to make it enforceable
to the maximum extent permissible so as to affect the intent
of the parties, and the remainder of this Agreement shall
continue in full force and effect. This Agreement shall
be governed by and construed under the laws of the state
of California without reference to its conflict of law principles.
In the event of any conflicts between foreign law, rules,
and regulations, and California law, rules, and regulations,
California law, rules and regulations shall prevail and
govern. Each party agrees to submit to the exclusive and
personal jurisdiction of the courts located in Santa Clara
County , California . The United Nations Convention on Contracts
for the International Sale of Goods and the Uniform Computer
Information Transactions Act shall not apply to this Agreement.
The Software is controlled by U.S. Export Regulations, and
it may be not be exported to or used by embargoed countries
or individuals. Any notices to Expert Internet Services must be sent to: Expert Internet Services, 1600 Amphitheatre Parkway, Mountain View , CA 94043
, USA , with a copy to Legal Department, via first class
or air mail or overnight courier, and are deemed given upon
receipt. A waiver of any default is not a waiver of any
subsequent default. You may not assign or otherwise transfer
any of Your rights hereunder without Expert Internet Services's prior written
consent, and any such attempt is void. The relationship
between Expert Internet Services and You is not one of a legal partnership
relationship, but is one of independent contractors. This
Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties
hereto. The following sections of this Agreement will survive
any termination thereof: 1, 4, 5, 6 (except the last two
sentences), 7, 8, 9, 10, 11, 13, 15, and 17.
