BY ACCESSING, VIEWING, REGISTERING, DOWNLOADING, UPLOADING OR USING THE MATERIALS, CONTENT, APPLICATION, PRODUCT OR SERVICE ON THE WEBTRENDS DEVELOPER NETWORK (defined below), YOU IREREVOCABLY AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS (THE “AGREEMENT” OR “TERMS”), AND YOU REPRESENT AND WARRANT THAT YOU HAVE ALL AUTHORITY NECESSARY TO BIND YOURSELF (AND, IF YOU ARE EMPLOYED BY OR OTHERWISE REPRESNET ANY CORPORATION OR OTHER LEGAL ENTITY, YOU BIND THAT ENTITY) TO THESE TERMS.
If you do not agree to these Terms or do not have the required authority, then you may not use the WebTrends Developer Network and you should exit immediately.
1. DEFINITIONS. The following definitions apply in this Agreement:
• “Application(s)” means the applications, tools, sample code (in object or source code form) and instructions, such as, APIs, related documentation, data, content and services available from WebTrends through the WebTrends Developer Network.
• “Credential(s)” means any form of a unique identifier issued by us that gives you access to certain Applications.
• “Developer Product” means any application, product or service developed by you that is based upon, incorporates, references or interacts any WebTrends products, service or data collected by such products or service, including without limitation, any Application.
• “WebTrends Developer Network” or “Network” means the WebTrends interactive developer online services available by registration, including without limitation, web sites, content, message boards, blogs, chat services, FAQs, upload and download areas, documentation, sample code, Applications, services and software products provided by WebTrends.
• “We,” “us” or “WebTrends” means WebTrends, Inc. and its corporate affiliates.
• "You” and “your” means both you and such person or entity on whose behalf you act, if any.
2. TERMS AND USAGE RULES. We may modify these Terms at any time without notice. You shall assume all responsibility for reviewing this Agreement periodically so that you will be apprised of any changes. If you continue to use the WebTrends Developer Network or any Application available through the Developer Network after we post or provide notice about changes to these Terms, you are signifying your acceptance of the new terms. If you disagree with any changes to this Agreement, you must discontinue your use of the WebTrends Developer Network and all rights and licenses granted to you under this Agreement terminate immediately. Each Application and certain services or features on the WebTrends Developer Network may be subject to additional terms, licenses, documentation, usage rules and restrictions (“Usage Rule(s)”), which will be binding on you if you elect to use such services. If you do not agree to the Usage Rules of a particular Application or service on the WebTrends Developer Network, then do not use such Application or service.
3. THE NETWORK. We may change, suspend, or discontinue all or any aspect of the WebTrends Developer Network and/or any Application, including without limitation, any fees charged, its availability, at any time, with or without prior notice.
4. REGISTRATION. We may require that you register with us or through one of our affiliates to gain access to certain features and services of the WebTrends Developer Network, or to obtain an Application or Credential. You may create a single account only, unless we expressly grant you permission to create multiple accounts. You must provide accurate identification, contact, and other information required as part of the registration process. You may not create any script or other automated tool that attempts to create multiple developer accounts. We may in our sole discretion reject any registration for any reason. You are solely and entirely responsible for all accessing, viewing, downloading, uploading or using of any materials, content, Applications, product or services on the Network under your registration or your Credential.
5. USAGE DATA. WebTrends' servers record information when you visit our websites or when Applications and/or Credentials call or invoke WebTrends services. This information may include, without limitation, the URL, IP address, browser type, Credential and access times and dates. We may use this information to promote, operate, and improve WebTrends services and products, including the WebTrends Developer Network.
6. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Applications and all other content, software, services and material offered on or through the WebTrends Developer Network, including without limitation, all Applications and Beta Products, shall remain in WebTrends, its licensors and/or other providers (“IP Rights”). The IP Rights are protected by copyright, patent, trade secret and other intellectual property laws and by international treaties. You shall not take any action to jeopardize, limit or interfere in any manner with these IP Rights. You acknowledge and agree that you obtain no intellectual property rights or licenses by this Agreement except for those licenses expressly granted in this Agreement.
7. LICENSE. Subject to the terms of this Agreement, we give you a limited, non-transferable right to use the Network solely for the limited purpose of furthering your development efforts and your ability to learn about or share information about the Applications and other WebTrends products and services. This license is non-exclusive and revocable. You may not sub-license or resell this right to any other person or entity. You shall not distribute any Application or code provided by WebTrends in any manner. You shall not use the Network in a manner that exceeds the limitations set forth in this Agreement and/or in the applicable Usage Rules. We and our licensors reserve all rights not expressly granted to you.
You will permit us reasonable access to your Developer Product for purposes of monitoring compliance with this agreement. If a Developer Product can only be accessed through accounts that are not generally made available to the public without charge, on request you will provide us with at least one free account in order to facilitate our ability to access the Developer Product.
Where Developer Product seeks permission from a user to access user information from WebTrends On Demand service, the Developer Product must provide a link to a website location as we may specify from time to time, with a clear indication that users can go to that WebTrends site to revoke such permission at any time. If users must take additional steps to disable the Developer Product’s access to user information, then the Developer Product must clearly indicate to users the additional steps required to disable access.
8. GENERAL RESTRICTIONS. You may not use or allow or assist anyone to use the WebTrends Developer Network in any way that (a) violates the terms of this Agreement and any applicable Usage Rule; (b) violates the rights of others; (c) facilitates the generation of SPIM, SPAM, or other bulk unsolicited communications; (d) removes or alters any trademark, trade name, service mark, domain name, logo, copyright or other proprietary notices, legends, symbols or labels or any other distinctive brand features from any Application or from any other content, materials, applications or service on the WebTrends Developer Network; (e) encumbers, sells, rents, leases, sublicenses, or otherwise transfer rights to the Applications or any other aspect of the WebTrends Developer Network; (f) attempts to decompile, disassemble, reverse engineer, or derive the source code for any software product provided by us to you in object code format only; (g) causes or enables the distribution of any viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, adware, spyware or other computer programming routines designed or intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) facilitates illegal or any other activity determined by us in our sole discretion and judgment to be an inappropriate use of the WebTrends Developer Network or Application; (i) misleads or attempts to mislead users; (j) interferes with the rights of others to use the WebTrends Developer Network or any Application or other WebTrends products or service; (k) use the Applications or any aspect of WebTrends Developer Network as a means to engage in conduct that reflects poorly upon, disparages or devalues WebTrends' reputation or goodwill, as determined in our sole discretion; or (l) use the WebTrends Developer Network with any other content , materials, product or service that falsely expresses or implies that such content, content, materials, product or service is sponsored, endorsed or provided by WebTrends. WebTrends reserves the right, in its sole discretion, to determine whether your use of the Network is in accordance with these Terms.
9. BETA TESTIING. We may offer certain Applications, software and/or sample code which are still under beta testing (“Beta Product”) for you to download, access or use in object code form. Such Beta Product will be subject to the terms of the license agreements that accompany them, if any, as well as any terms set forth herein. You agree that you will abide by all such license terms if you download, access and/or use any Beta Product. If you do not agree, then do not download or use any Beta Product. If you choose to download, access and/or use any Beta Product, your participation and use of such Beta Product is subject to the following additional terms: (a) you understand that the overall design of the Beta Product could change, and WebTrends reserves the right to change or withdraw the Beta Product, discontinue the Beta Product license, or release the Beta Product as a final version at any time in its sole discretion, (b) you agree to report all problems, issues, ideas, feedback and suggestions for the Beta Product (“Beta Test Results”) to WebTrends during your use of the Beta Product, (c) you agree not to speak to the press (including Internet press, blogs, twitter or other communication channels) regarding the Beta Product, without our prior written consent, (d) you hereby assign all right, title and interest in and to such Beta Test Results to us, and acknowledge that we will be entitled to use, implement and exploit such Beta Test Results in any manner without restriction and without any obligation of confidentiality, attribution or compensation or other duty to account; and (e) as Beta Product is a pre-release, beta version, you are fully responsible for any and all damages that may result to any failure of the Beta Product. Beta Product is provided AS IS without any warranties, express or implied.
10. SUBMISSIONS; FORUM POSTS. By posting, adding, uploading any content, materials, comments, postings to forums and message boards, suggestions, ideas, complaints or other feedback or your Developer Product on the Network (collectively, “Submissions”), you grant us and our licensors, suppliers, licensees and all other members of the WebTrends Development Network a worldwide, perpetual, irrevocable, non-exclusive right and license, with the right to sublicense, in any manner whatsoever, for no compensation, to (a) use, copy, distribute, publish, transcode, display, modify and otherwise create derivative works of your Submission, (b) display advertising on or in close association with your Submission, and (c) publish your name in connection with your Submission. If you do not agree to the foregoing license in your Submissions, including without limitation, you Developer Product, you should not post or upload any Submissions on the WebTrends Developer Network. For every Submission you make, you must have all rights necessary for you to grant the permissions in this Section 10. Notwithstanding the foregoing, we shall not be obligated to take action based upon any Submission provided by you.
In addition to all other restrictions set forth in this Agreement, you shall not post or transmit through the WebTrends Developer Network any Submission, or otherwise engage in any conduct that:
• is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or contains explicit or graphic descriptions, or accounts of, sexual acts;
• victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; or
• impersonates any person, business or entity, including WebTrends and its employees and agents.
You understand and agree that WebTrends may be independently creating application, content and other products or services (“WebTrends Development”) that may be similar to your Developer Product, and nothing in this Agreement will be construed as restricting or preventing WebTrends in any way from creating and fully exploiting such WebTrends Development. You may from time to time elect, in your sole discretion, to provide suggestions, comments, improvements, ideas or other feedback or materials to us related to the WebTrends Development or any other WebTrends products or services (collectively, “Feedback”). Notwithstanding any other provision to the contrary stated in this Agreement, if you elect to provide us any such Feedback, you assign and agree to assign all right, title and interest in and to such Feedback to us, and acknowledge that we will be entitled to use, implement and exploit such Feedback in any manner without restriction and without any obligation of confidentiality, attribution or compensation or other duty to account.
11. NO DUTY TO MONITOR. You agree that we are not liable for content that is provided by others on the Network. We have no duty to pre-screen content, but we have the right to refuse to post or to edit submitted content. We reserve the right to remove content for any reason, but we are not responsible for any failure or delay in removing such material.
12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. We respect the intellectual property of others. If you believe that your work has been copied and is accessible on the Network in a way that constitutes copyright infringement, please follow the instructions at http://about.aol.com/aolnetwork/copyright_infringement on how to contact us to report possible copyright infringement.
13. THIRD PARTY SITES; ADVERTISERS. The WebTrends Developer Network may include links to third party websites, including links provided as automated search results. Some of these sites may contain materials that are objectionable, unlawful, or inaccurate. These links do not mean that we endorse these third party sites or services. You acknowledge and agree that we are not responsible or liable for any content or other materials on these third party sites. Any dealings that you have with advertisers found on the WebTrends Developer Network are between you and the advertiser and you acknowledge and agree that we are not liable for any loss or claim you may have against an advertiser.
14. YOUR REPRESENTATIONS AND WARRANTIES. You warrant to us that: (a) you have the full legal power and authority to enter into this Agreement; (b) you own and/or have obtained the necessary legal rights to provide all content, materials, code and documentation contained in your Submissions, including all intellectual property rights therein; (c) you will abide by these Terms and all applicable Usage Rules; and (d) your use of the WebTrends Developer Network and the Applications (i) shall not be used in any commercially unreasonable manner; (ii) shall not infringe any intellectual property rights of any third party including without limitation, any right of privacy, publicity, copyright, trademark, or patent; and (iii) shall comply with all applicable laws, rules and regulations, including without limitation, consumer protection, data security, and privacy laws.
15. RIGHT TO INVESTIGATE; RIGHT TO AUDIT. You understand and agree that we reserve the right to use whatever technical and legal remedies available to us to prevent abuses to the WebTrends Developer Network and the Applications. We reserve the right to investigate or monitor in our own discretion and by any means we deem appropriate (a) your compliance with this Agreement and (b) any activity or conduct that we believe violates the terms of this Agreement. In addition to any other rights that we may have in this section and in the Agreement, we reserve the right to request an audit to investigate compliance with this Agreement.
16. NON-ASSERT. In consideration of the licenses granted herein, and other consideration provided by us to you under this Agreement, you covenant not to sue or otherwise assert any patent rights against us or any of our affiliates, suppliers or licensees for any alleged patent infringement during the term of this Agreement by any product or service that uses any Application.
17. WEBTRENDS'S DISCLAIMER OF WARRANTY. THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS AND BETA PRODUCTS ARE PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. YOU ARE USING THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS AND BETA PRODUCTS AT YOUR OWN RISK. WE, OUR LICENSORS AND OTHER PROVIDERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS OR BETA PRODUCT IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS OR BETA PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT ERRORS IN THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS OR BETA PRODUCT WILL BE CORRECTED. WE DISCLAIM THE IMPLIED WARRANTIES THAT THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS, AND BETA PRODUCTS ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. YOU BEAR THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND YOU ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
18. LIMITATION OF LIABILITY. WE, OUR LICENSORS AND PROVIDERS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS AND BETA PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR PARENT, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "WEBTRENDS GROUP") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE WEBTRENDS DEVELOPER NETWORK, APPLICATIONS OR BETA PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF THE WEBTRENDS GROUP FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE FOLLOWING AMOUNTS:
(A) ONE HUNDRED DOLLARS (US $100) FOR ANY SPECIFIC APPLICATION PROVIDED AT NO CHARGE, IN WHICH THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT; OR
(B) FOR ANY APPLICATION PROVIDED FOR A FEE, NOT MORE THAN THE TOTAL AMOUNT PAID DURING A ONE-YEAR PERIOD FOR THE SPECIFIC APPLICATION AT ISSUE.
19. ACKNOWLEDGEMENT. The disclaimer of warranty, and limitation of damages set forth above are essential elements of the basis of the bargain between us and you. You agree that we would not be able to provide the Applications on an economic basis without such limitations.
20. YOUR INDEMNITY. You shall indemnify, hold harmless and, at our request, defend us and/or our licensors, officers, directors, employees, affiliates, agents and representatives from and against any and all claims, liabilities, losses, damages, expenses and costs (including attorneys' fees and costs) relating to your breach of any provision under this Agreement or otherwise arising out of your use of the WebTrends Developer Network and Applications, including, but not limited to, any claim related to infringement or misappropriation of intellectual property rights, which includes but is not limited to, infringement by your Developer Product and/or any content contained therein (except to the extent such a claim is based solely on an unaltered Application). We shall give you prompt notice of any such claim made against us, and you and WebTrends shall cooperate in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that we must approve the terms of any settlement or compromise, and such approval shall not be unreasonably withheld.
21. TERM, TERMINATION. Unless otherwise provided in a separate agreement between you and us, (a) we may terminate this Agreement at any time, in our discretion, and with or without notice to you; and (b) you may terminate this Agreement by ceasing use of the Applications, including without limitation by removing any and all code from your Developer Products enabling your use of the Applications. You agree that once the Agreement is terminated, your right to use the Network and all Applications is terminated immediately. Cancellation terms for any Application or other service on the Network subject to a fee will be set forth in the applicable Usage Rule.
22. ELECTRONIC NOTICES. YOU AGREE TO TRANSACT WITH US ELECTRONICALLY. WE MAY PROVIDE NOTICES TO YOU ELECTRONICALLY (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the WebTrends Developer Network.
23. INJUNCTIVE RELIEF. You acknowledge and agree that, notwithstanding any other provisions of this Agreement, your breach or threatened breach of this Agreement may cause us irreparable damage for which recovery of money damages might be inadequate and that we, therefore, may seek timely injunctive relief to protect our rights under this Agreement in addition to any and all other remedies available at law or in equity.
24. NO SUPPORT BY WEBTRENDS. We have no obligation to provide support services for the Applications, Beta Products or the WebTrends Developer Network, although we may do so in our sole discretion. We are under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements of the Applications, Beta Products or the WebTrends Developer Network. This Agreement does not grant you any right to any version enhancement update, or to a continuous availability of the Applications or the Beta Products.
25. SURVIVAL. Sections 2, 6, 10, 11, 14, 17 through 27 shall survive expiration or termination of this Agreement. We shall not be liable to you for damages of any sort resulting from terminating this Agreement.
26. JURISDICTION; VENUE. You agree that the laws of the State of Oregon govern this Agreement and any claim or dispute that you may have against us, without regard to Oregon’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in Multnomah County, in the State of Oregon and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
27. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between you and us concerning the subject matter of this Agreement and the documents referenced in this Agreement, which may only be modified by us. (b) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (c) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent as nearly as practicable, and the remaining portions remain in full force and effect, or we may at its option instead terminate this Agreement. (d) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (f) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity at its sole discretion. (g) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (h) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (i) Your use of the Applications and participation in the WebTrends Developer Network do not create any partnership, joint venture or agency relationship between you and us. (j) Neither you nor WebTrends has the power to direct or control the day to day activities of the other or to create or assume any obligation on behalf of the other.