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UNLESS OTHERWISE AGREED UPON, BY LOGGING INTO A MANTICORE TECHNOLOGY CORPORATION ACCOUNT OR USING ANY OF THE SERVICES PROVIDED BY MANTICORE TECHNOLOGY CORPORATION ON THIS WEBSITE, YOU INDICATE YOUR AGREEMENT TO ABIDE BY ALL TERMS AND CONDITIONS STATED BELOW. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS AND CONDITIONS, DO NOT LOG INTO A MANTICORE TECHNOLGY CORPORATION ACCOUNT AND DO NOT ATTEMPT TO USE ANY OF THE SERVICES PROVIDED BY MANTICORE TECHNOLOGY CORPORATION ON THIS WEBSITE. Copyright Notice Copyright © 2000-2002 Manticore Technology Corporation. All rights reserved. Permission to use all documents and related graphics and any other material from this World Wide Web site is subject to these Terms and Conditions. “Manticore Technology”, “Virtual Traffic Master”, “Virtual Touchstone”, “Virtual Commerce Master” and related logos are trademarks of Manticore Technology Corporation. MANTICORE TECHNOLOGY CORPORATION TERMS OF SERVICE The following are the terms and conditions for the granting of a license to use the Manticore Technology Corporation (“Developer”) software services, including but not limited to, those provided by Virtual Traffic Master, Virtual Commerce Master, and Virtual Touchstone ("Service"). The limited license to use the Service is offered to you (“Client”) conditioned on your acceptance, without modification, of the terms, conditions, and notices contained herein, as they may be modified from time to time at the sole ...



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n all of the data and statistics from its HTML documents that are gathered, analyzed, and reported through the Service reporting interface. Client may copy, archive, backup, publish, distribute and use said data and 1 statistics for any legal purposes. Developer will keep all Client data and statistics confidential unless otherwise agreed upon in writing. Notwithstanding the foregoing, Developer has the right to publish Internet-wide statistics based upon raw data aggregated from several or all of its accounts in any manner that does not identify the Client as the source of such data. 5. ACCEPTABLE USE None of the HTML documents that Client submits to Developer for monitoring may contain any: • hate propaganda or material that encourages or promotes illegal activity or violence; • content that violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including but not limited to copyrights, trademark rights, patents, or any other third party intellectual property, contract, privacy, or publicity rights; • material that violates any local, state, or national law or regulation; • misrepresentations or material that is threatening, abusive, harassing, defamatory, obscene, profane, indecent, or otherwise objectionable, offensive, or harmful; or • other material that Developer, in its sole discretion, deems inappropriate, including any violations of standards posted on Developer’s website or sent to Client by email; 6. MEMBER ACCOUNT, PASSWORD, AND SECURITY Upon registration of the license of Client to use the Service by an authorized representative of Developer, Client will receive a master username and password to a unique account. The master username is used to manage the entire account, including but not limited to, the creation of additional sites, campaigns, users, emails, and billing information. Client is responsible for maintaining the confidentiality of the password and the account, and is fully responsible for all activities that occur under the account, including the confidentiality of passwords of other users created in the account. Client agrees (a) to notify Developer immediately of any unauthorized use of an account or any other breach of security, and (b) to ensure that account users exit from account at the end of each session. Developer shall not be liable for, and Client will hold Developer harmless from, any loss or damage resulting from or related to Client's failure to comply with Client’s duty to maintain security and privacy for its account. 7. FEES Client will pay Developer in accordance with the pricing schedule (“Fees”) agreed upon at the inception of the Client account. Fee information for each Client account is available in the account management section of the individual account. Unless otherwise stated, account Fees apply individually to each website monitored within an account. For accounts in which no fixed contract (month to month pricing) is established, Developer may change at will the Fees for the licensing of the Service. Changes to Fees shall be effective after Developer provides Client with at least fourteen (14) days notice by posting the changes in the account management section of each account. Unless otherwise stated, all Fees are quoted in U.S. Dollars. All Fees are exclusive of any tax, levy customs duty, import tax or similar governmental charge that may be assessed by any jurisdiction. All such taxes and charges are the responsibility of, and to be paid by, Client as they become due. Client is responsible for paying all Fees associated with using the licensed Service. Developer will generate via email, invoices at the beginning of the license term and at the beginning of each billing period thereafter. The invoice will contain a monthly service fee equal to the minimum amount that can be billed monthly for each account. The monthly service fee pays for a pre-defined minimum usage threshold for each site. The monthly service fee is non-refundable. At the beginning of each subsequent billing period, additional charges may be applied to cover usage above the pre-defined minimum usage threshold for the previous billing period. If Client pays by credit card, Developer will debit Client’s credit card at the beginning of each billing period. If Client pays by other means, Developer will generate invoices at the beginning of the license terms, at the beginning of each billing period, and approximately one month in advance of the start of any term renewal or subsequent billing period. Each of said invoices shall be due within 30 days of its receipt by Client. Client's account will be delinquent (in arrears) if payment in full is not received by the due date. If Client believes that an invoice is incorrect, Client must notify Developer in writing within 90 days of the transaction date of the item in question, or Client is deemed to have waived any right to receive an adjustment or credit or be otherwise compensated therefor. 2 Developer reserves the right to deactivate accounts or to restrict or prohibit viewer access to statistics for Client's failure to pay timely or for any denial by credit card companies. Any outstanding balance becomes immediately due and payable upon termination of this agreement for any reason and Client shall be responsible to pay any reasonable collection expenses (including attorneys' fees) incurred by Developer. If Client provides the Developer with a credit card that expires during the term of this Agreement, Developer reserves the right to charge any renewal card issued to Client as a replacement. Client agrees to provide Developer with complete and accurate billing and contact information. This information includes Client’s legal company name, street address, principal place of business, type of organization, state of incorporation and organization, an e-mail address suitable to receive notices and invoices, and name and telephone number of an authorized billing contact. Client agrees to update all such information within 30 days of any change. If the contact information Client provides is false or fraudulent, Developer reserves the right to terminate Client access to the Service in addition to any other legal remedies. 8. TERM Developer, at its sole discretion, may terminate the Client's license to use the Service at any time and for any reason. Client will be obligated to continue this Agreement for the term as contractually specified at account inception. At the end of any agreed license term, this Agreement will renew automatically for successive, like terms (subject to then current pricing and then current Service terms and conditions) unless terminated by either party by giving written notice of termination at least 60 days before the expiration of the then current term. Developer reserves the right to terminate this Agreement and to deactivate or deny viewing access to Client account immediately upon Client's failure to pay any Fees when due. If Developer denies viewing access but has not terminated the Agreement, Developer will continue to provide the Service without interruption until the Agreement is terminated and Client will remain obligated to pay all related fees. Upon termination or expiration of this Agreement, Client will delete all copies of the Data Collection Tag from all HTML documents. Any outstanding balance for Client's use of the services rendered through the date of termination, and any other payment obligations during the remainder of any unexpired contractual term or renewal term, will be immediately due and payable upon termination or expiration of this Agreement. 9. PRIVACY Client is responsible for updating any privacy policy, legal notice, posting, statement, or other information relating to privacy and data collection (“Privacy Policy”) in regards to Clients use of Service. If Client does not have a Privacy Policy at the time of account inception, then Client assumes responsibility for creating and publicly posting a Privacy Policy. Client Privacy Policy should inform Client website visitors of Clients use of both non-personally identifying information and personally identifying information that may be transmitted to and from, or stored in, the Service. Developer assumes no responsibility or liability for contradictions or inaccuracies in any Privacy Policy published by Client, or the failure of Client to make the use of Service known to its site visitors. Developer maintains a separate Privacy Policy, independent of any Client Privacy Policy, at that details information usage by Developer for Developer’s website visitors. Developer also maintains a document at (“Consumer Privacy Statement”) that provides consumer information relevant to privacy as it relates to the Service, and provides an option for visitors to opt-out of Service tracking. Client recognizes that if a visitor chooses to opt- out of tracking, Developer will no longer monitor that particular visitor and that this may affect the accuracy of the Service. Developer may change the content of its Privacy Policy and Consumer Privacy Statement from time to time and changes to these documents are effective immediately upon posting to the Developer’s website. 10. DISCLAIMER OF WARRANTY Client recognizes that, in the event of system failures or network failures or other causes beyond Developer’s control, pages with Data Collection Tags on them may not load in browsers for as long as such failure persists. THE LICENSE TO USE THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY DEVELOPER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, 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. DEVELOPER DOES NOT WARRANT THAT THE SERVICE WILL MEET CLIENT NEEDS OR THAT IT WILL BE FREE FROM ERRORS, NOR DOES IT WARRANT THAT THE OPERATIONS OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING 3 EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND PROVIDE THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE USE OF THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO SOME PORTIONS OF THIS DISCLAIMER MAY NOT APPLY TO CLIENT. ANY DEVEOLPER OBLIGATIONS, WARRANTIES OR SERVICE LEVEL GUARANTIES INCLUDED IN THIS AGREEMENT ARE MADE TO CLIENT ONLY, AND NOT TO ANY CUSTOMER OF CLIENT, AND ARE CONDITIONED AT ALL TIMES UPON CLEINT'S USE OF THE MOST RECENT DATA COLLECTION TAG AS PROVIDED TO CLIENT BY DEVELOPER. 11. LIMITATION OF LIABILITY IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, DEPRECIATION OF STOCK PRICE, BUSINESS INTERRUPTION, OR OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THESE TERMS & CONDITIONS OR THE USE, INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT AND DEVELOPER AGREE TO DEFEND, INDEMNIFY AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITY COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES) ARISING FROM VIOLATION OF THIS AGREEMENT OR ANY THIRD-PARTY'S RIGHTS, INCLUDING BUT NOT LIMITED TO INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS OR ANY CLAIM BY ANY THIRD PARTY OBTAINING THE SERVICE FROM CLIENT OR DEVELOPER. THIS OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. CLIENT’S OR DEVELOPER’S LIABILITY FOR ALL CLAIMS OR INDEMNITIES ARISING OUT OF THESE TERMS & CONDITIONS, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO DEVELOPER UNDER THIS AGREEMENT. CLIENT USES THE SERVICE AT ITS OWN RISK. 12. PROPRIETARY RIGHTS Title, ownership rights, and intellectual property rights, including copyright, in and to the software and related documentation provided by Developer for Client's use in connection with the Service, and any derivative works or modifications based thereon, shall remain the sole and exclusive property of Developer. All components of the Service, and the intellectual property operating it, is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content, and code accessed through the Service is, and shall remain, the sole and exclusive property of Developer and may be protected by applicable copyright or other law. This License gives Client no rights to such content or code. 13. MODIFICATION TO TERMS OF SERVICE AND OTHER POLICIES Developer reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify Client by posting an updated version of this Agreement on the Developer website at Client is responsible for regularly reviewing the website for any such changes. Continued use of the Service after any such changes shall constitute Client’s consent to such changes. 14. NOTICES All notices required under this Agreement from one party to the other, except those to be provided by Developer by posting on its website, must be in writing, and must be delivered by courier, by facsimile transmission, or by email, to the respective address the other party designates in writing. Notice will be deemed given (i) upon transmission if by email or facsimile transmission, (ii) one day after mailing if by an established domestic overnight courier service, or (iii) if the addressee is in a country other than that of the sender, three days after mailing, if mailed by an established international courier service. 15. SPECIAL ADMONITIONS FOR INTERNATIONAL USE Recognizing the global nature of the Internet, Client agrees to comply with all local rules regarding online conduct and acceptable Content. Specifically, Client agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or from the country in which Client resides and to comply with any other local laws affecting the transmission or posting of Content or affecting the privacy of persons. 4 16. MISCELLANEOUS This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under Texas law as such law applies to agreements between Texas residents entered into and to be performed within Texas, except as governed by Federal law. U.S. Government Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Manufacturer and Developer is Manticore Technology Corporation, 3925 West Braker Lane, Suite 330, Austin, TX 78759, U.S.A. 5