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By using the Traffic Vista services (hereinafter
the "Services," defined further below), you signify your agreement to the terms
and conditions contained in this Traffic Vista Agreement (hereinafter, the
"Agreement"). This Agreement is between you, your organization (if you are
entering into this Agreement on behalf of an organization), collectively
referred to herein as "you" or "your" (and appropriate formatives), the Traffic
Vista service provider offering these services to you, if any, (the "Primary
Service Provider") and the backend service provider VodaHost Domains, Inc. (the
"Backend Service Provider").
1. The Services are provided free for the first month (the "Trial Month").
UNLESS YOU TERMINATE THE SERVICES AS DESCRIBED BELOW PRIOR TO THE END OF THE
TRIAL MONTH, YOU WILL BE BILLED FOR SUBSEQUENT MONTHS. Billing for subsequent
months will not be prorated for partial months. In other words, if you begin use
of the Services on July 6, you have to terminate the Services by August 5 in
order to avoid being billed for the month starting August 6. Bills will be
charged against the credit card or credit account you have on file with the
Primary and/or Backend Service Provider. Additional terms and conditions
regarding billing and credit card charges can be found below.
VodaHost Domains
2. These terms and conditions may be modified from time to time. Modifications
made to this Agreement will become effective 30 days after the modifications are
posted. This Agreement shall be posted through the interface which you use to
configure and/or otherwise order the Services (the "Services Interface"). You
agree that you will check the terms and conditions periodically and that, if you
no longer agree to the terms and conditions of this Agreement, that you will
stop using the Services and that you will terminate the Services as described
below in paragraph 9.
VodaHost Domains
3. The Services consist of the Traffic Vista Accounts with the specific
configuration which you selected or are going to select through the Services
Interface. You acknowledge and understand that important service limitations
(including selection of the specific domains for which internet traffic data
will be collected and the volume of data that will be collected), pricing
(including pricing for optional Services), the term of the Service, payment
terms, and other conditions relating to the Services are conveyed through the
Services Interface and are hereby incorporated into this Agreement.
VodaHost Domains
4. You agree that you may only use the Services to collect internet traffic
information for specified Internet locations with respect to which you are the
legal owner or with respect to which you have the express permission of the
legal owner (the "Selected Domain(s)"). If you are the legal owner of or have
express permission of the legal owner of the Selected Domains, then you agree
that you shall not make any untrue or misleading statements regarding the
information obtained through use of the Services.
VodaHost Domains
5. The Services are sold by the volume of page-views per month experienced by
the Selected Domains. If you do not select the "auto-upgrade" feature through
the Services Interface, then you will not receive reporting with respect to
traffic which exceeds the traffic threshold you select. If you select the
"auto-upgrade" feature, then your Service level will be automatically upgraded
to provide reporting on the volume of traffic experienced by the Selected
Domains. The "auto-upgrade" feature is NOT also an "auto-downgrade" feature.
VodaHost Domains
6. To use the Services, you must include a code snippet on the websites for the
Selected Domains or you must use VodaHost Domains's redirector (URL Frame and
URL Redirect). Be aware that if you allow others to use your code snippet, the
resulting traffic may increase the amount you are billed for this Service.
Additional information regarding the code snippet is available through the
Services Interface. The code snippet is provided AS IS and WITH ALL FAULTS.
VodaHost Domains makes NO WARRANTIES regarding the code snippet.
VodaHost Domains
7. To use Microsoft's Pivot Table® (which provides powerful ways to analyze your
data), you must also use Microsoft's Internet Explorer®. Times listed in the
Services are Pacific Standard Time. A "unique visitor" in the reporting is a
unique IP number over a one hour period (a unique IP number over two hours is
counted as two unique visitors).
VodaHost Domains
8. You are hereby informed that, if you use a credit card to pay for the
Services, that the charge for the Services will appear as follows: "Domain Name
Registration" and/or "I-Net Sftwr Srvc & Sale." You agree that, prior to
contacting your credit card company in relation to such charges, that you will
first contact the Primary Service Provider to verify the charges and the manner
of billing. You agree that any chargeback by a credit card company (or similar
action by another payment provider) of a charge related to the Services, for
whatever reason, is a material breach of this Agreement and is grounds for
termination. You further agree that, upon a chargeback by you, you agree and
acknowledge that VodaHost Domains may suspend your access to any account you
have with VodaHost Domains and that all right, title, interest in, and use of
any domain name registration(s) and/or websites, email, or other data hosted on
VodaHost Domains systems shall be assumed by VodaHost Domains. We will reinstate
your rights solely at our discretion, and subject to our receipt of the fee owed
and our then-current reinstatement fee, currently set at US$200.
VodaHost Domains
9. You agree that the Services shall be provided for the term you selected
through the Services Interface or, if the Services are provided as a promotion
(such as a free Traffic Vista account in conjunction with another service), for
the term specified in the promotion. Unless you terminate the Services THROUGH
THE SERVICES INTERFACE prior to the end of the then extant Services term
(typically one month), you agree that the Services may be renewed for another
term of equal duration to the immediately preceding term and that the resulting
fees shall be charged to the credit card associated with your account. You agree
to hereby waive any requirement which might otherwise be imposed by law which
would require that either the Primary Service Provider or the Backend Service
Provider obtain your affirmative consent for on-going billings and that your
continuing consent to be billed for such renewal(s) may be presumed until such
time as you terminate the Services through the Services Interface. You agree
that attempts to terminate the Services other than through the Services
Interface (such as by sending an email to a general email address of either the
Primary Service Provider or the Backend Service Provider) are not reliable means
of communication and that such a termination attempt shall not binding until
accepted and acknowledged by either the Primary Service Provider or the Backend
Service Provider. In relation to renewals, you further agree that it is your
obligation to keep the credit card information associated with your account
current and that neither the Primary Service Provider nor the Backend Service
Provider shall be obligated to contact you to update such information in the
event that the charges are denied.
VodaHost Domains
10. Your use of the Services may be suspended and/or this Agreement may be
terminated if either the Primary Service Provider or the Backend Service
Provider determines that you are violating the terms and conditions of this
Agreement or any other agreement entered into by you and either the Primary
Service Provider or the Backend Service Provider. In the event of termination or
suspension of Services under such circumstances, you agree that no pre-paid fees
will be refunded to you.
VodaHost Domains
11. Either the Primary Service Provider or the Backend Service Provider may
elect to terminate this Agreement without cause and discontinue the Services
upon 30 days notice, whereupon any pre-paid fees for an unused portion of a
service term shall be refunded to you within a reasonable period of time. If the
Services are provided as part of a promotional offer, this Agreement and the
Services may be terminated at any time by either the Primary or Backend Service
Provider, with or without notice. You further agree that, within 30 days of your
initial enrollment to receive the Services, either the Primary Service Provider
or the Backend Service Provider may elect to terminate this Agreement without
cause and that, in such event, the termination shall take effect immediately and
that any pre-paid fees for an unused portion of your service term shall be
refunded to you within a reasonable period of time.
VodaHost Domains
12. The Services are provided through an infrastructure which is shared by all
users of the Services. Your use of the Services may be throttled or suspended
indefinitely if your use of the Services degrades the ability of either the
Primary Service Provider or the Backend Service Provider to provide the Services
to other users of the Services. You agree that the Service Provider(s) may, but
are not required to, suspend Services for Selected Domains should the volume of
traffic information exceed the user's selections made through the Service
Interface.
VodaHost Domains
13. You acknowledge that email and/or online communication systems (chat,
account notices, etc.) will be the primary means of communication between
yourself and the Primary Service Provider and/or the Backend Service Provider.
You acknowledge that it is your responsibility to maintain a current email
address and physical mailing address in your contact information. You further
agree that you will regularly login to your account to obtain any notices posted
through the Services Interface. You agree that your failure to respond to a
communication from either the Primary Service Provider or the Backend Service
Provider may result in suspension or cancellation of Services without any refund
of pre-paid fees, if any.
VodaHost Domains
14. You acknowledge that neither the Primary Service Provider nor Backend
Service Provider are obligated to return any data to you upon termination of
this Agreement. You acknowledge that it is your responsibility to export,
download, make copies of, and/or backup all data residing on the servers and
other equipment which provide the Services. You will typically be allowed to
export or download data for the preceding six months, but download your data
more frequently to ensure that you do not loose any.
VodaHost Domains
15. You acknowledge that any loss of configuration data which occurs due to an
interruption in the Services, regardless of the cause of the interruption, shall
not be the responsibility of the Primary Service Provider or Backend Service
Provider and that you may, following an interruption in the Services, be
required to reconfigure the data in your Traffic Vista account which provides
the Services.
VodaHost Domains
16. You agree that any personally identifying information provided by you shall
be used by the Primary Service Provider according to the privacy policy of the
Primary Service Provider, if any, and by the of the Backend Service Provider
according to the privacy policy posted here.
VodaHost Domains
17. You represent and warrant that you will not allow any unauthorized third
party to access the account which you use to access the Services.
VodaHost Domains
18. EXCLUSIVE REMEDIES FOR UNPLANNED SERVICE INTERRUPTIONS: You agree that any
unplanned or unannounced interruptions in the Services shall not require a
remedy unless such unplanned or unannounced interruptions exceed 24 hours in any
30 day period, in which case you agree that the exclusive remedy shall be a
credit toward 24 hours of Traffic Vista for each 24 hour period of unplanned or
unannounced interruptions, and that such credit shall exclusively be applied
against the fees owed for your next period of monitoring, if any, or shall be
exclusively be accomplished by adjusting the end of your then-current Service
term. You agree that there shall be no remedy or credit for Service
interruptions which may occur during the Trial Month.
VodaHost Domains
19. LIMITATION OF LIABILITY: YOU AGREE THAT NEITHER THE PRIMARY SERVICE PROVIDER
NOR BACKEND SERVICE PROVIDER WILL BE LIABLE FOR ANY (A) SUSPENSION OR LOSS OF
THE SERVICES, EXCEPT TO THE LIMITED EXTENT THAT A REMEDY IS PROVIDED UNDER THIS
AGREEMENT; (B) INTERRUPTION OF BUSINESS; (C) ACCESS DELAYS OR ACCESS
INTERRUPTIONS TO THE SERVICES; (D) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD;
(E) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER
MODIFICATION; (F) EVENTS BEYOND THE CONTROL OF THE PRIMARY SERVICE PROVIDER OR
BACKEND SERVICE PROVIDER; (G) THE PROCESSING OF YOUR APPLICATION FOR THE
SERVICES; OR (H) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE
OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. YOU FURTHER AGREE THAT NEITHER THE
PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE PROVIDER WILL BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER OR NOT EITHER THE
PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY
OF EITHER THE PRIMARY SERVICE PROVIDER OR THE BACKEND SERVICE PROVIDER EXCEED
THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES FOR A ONE-MONTH PERIOD, BUT IN NO
EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). YOU AGREE THAT NEITHER SERVICE
PROVIDE SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY WHATSOEVER DURING THE
TRIAL MONTH. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, THE LIABILITY
OF THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER SHALL BE LIMITED
TO THE MAXIMUM EXTENT PERMITTED BY LAW.
VodaHost Domains
20. INDEMNIFICATION: YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD THE PRIMARY
SERVICE PROVIDER AND BACKEND SERVICE PROVIDER, THEIR CONTRACTORS, AGENTS,
EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES HARMLESS FROM ALL LIABILITIES,
CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES AND COURT COSTS, FOR THIRD PARTY
CLAIMS RELATING TO YOUR USE OF THE SERVICES OR ARISING UNDER THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, INFRINGEMENT BY YOU OR SOMEONE ELSE USING YOUR
COMPUTER, OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY PERSON
OR ENTITY, OR FROM THE VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT.
WHEN EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER MAY BE
INVOLVED IN A SUIT INVOLVING A THIRD PARTY AND WHICH IS RELATED TO THE SERVICES
UNDER THIS AGREEMENT, EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE
PROVIDER MAY SEEK WRITTEN ASSURANCES FROM YOU IN WHICH YOU PROMISE TO INDEMNIFY
AND HOLD SUCH PARTIES HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED IN THIS
PARAGRAPH. SUCH WRITTEN ASSURANCES MAY INCLUDE THE POSTING OF PERFORMANCE BONDS
OR OTHER GUARANTEES. YOUR FAILURE TO PROVIDE SUCH ASSURANCES MAY BE CONSIDERED A
BREACH OF THIS AGREEMENT BY YOU.
VodaHost Domains
21. You agree that the Backend Service Provider shall not be liable for the
actions, inactions, negligence, or intentional misconduct of the Primary Service
Provider. You acknowledge and agree that neither the Primary Service Provider
nor the Backend Service Provider are agents for one another.
VodaHost Domains
22. DISCLAIMER OF WARRANTIES: NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND
SERVICE PROVIDER MAKE ANY REPRESENTATIONS NOR WARRANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE
OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK
AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM
OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EITHER THE
PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER SHALL CREATE ANY WARRANTY
NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
VodaHost Domains
23. GOVERNING LAW: this Agreement, your rights and obligations and all actions
contemplated by this Agreement shall be governed by the laws of the United
States of America and the State of Washington, as if the Agreement was a
contract wholly entered into and wholly performed within the State of
Washington. You agree that any action to enforce this Agreement or any matter
relating to your use of the Services shall be brought exclusively in the United
States District Court for the Western District of Washington, or if there is no
jurisdiction in such court, then in a state court in King County, Washington
state. You consent to the personal and subject matter jurisdiction of any state
or Federal court in King County, Washington state in relation to any dispute
arising under this Agreement. You agree that service of process on you by either
the Primary Service Provider or Backend Service Provider in relation to any
dispute arising under this Agreement may be served upon you by first class mail
to the address listed by you in your contact information or by electronically
transmitting a true copy of the papers to the email address listed by you in
your contact information. |
