ver. 12-18-03
CIIC, Inc. (CIIC) is pleased to provide Power Phlogger (PP) services to you (Customer) subject to these terms and conditions. These terms and conditions and the information provided during the on-line sign up process are together the "Agreement." To the extent of any conflict among them, the information provided during sign up process supersedes these terms and conditions but these terms and conditions supersede any provisions of any purchase order drafted by Customer and all related proposals and communications, written or oral. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
1. Service. CIIC will provide reporting to Customer of browser accesses to Customer's web pages (the Pages), up to a maximum of 1,000 unique Pages per account, including page views, unique visitors, repeat visitors, frequency of visits, peak-volume traffic periods (all available for time periods that may be specified by Customer) and all such other information that CIIC makes available to other Customers of the service (the Service).
2. Code. For each PP service account to which Customer subscribes, CIIC will deliver and license to Customer for the term of this Agreement a unique account number and a copy of PP customer-side, HTML code (the HTML Code). For the term of this Agreement, CIIC grants Customer a limited right to copy HTML Code for insertion in Customer's Pages. CIIC is not granting any other rights to the Code. CIIC retains ownership and all rights to the HTML Code, PP logos, trademark, software, and trade secrets.
3. Data and Statistics. CIIC will process and provide real-time reporting of web site statistics to Customer as part of the Service. Customer will own the statistics for its Web site(s) and can copy, archive, backup, publish, distribute and use the statistics for any legal purposes. CIIC will keep Customer's statistics confidential. Notwithstanding the foregoing, CIIC has the right to publish statistics based upon raw data aggregated from several or all of its Customers' accounts, including Customer's, but CIIC does not have any right to publish Customer's statistics separately or any other specific information about Customer's audience or Pages, or to publish any Internet-wide statistics that would in any manner identify Customer, Customer's Web site(s) or Customer's products or services.
4. Confidentiality. "Confidential Information" includes Customer's statistics 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 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. Customer is responsible for safeguarding the confidentiality of Customer's password(s) and user name(s) issued to Customer by CIIC, and for any use or misuse of Customer's account resulting from any third party using a password or user name issued to Customer. Customer agrees to immediately notify CIIC of any unauthorized use of Customer's account or any other breach of security known to Customer.
5. Privacy. CIIC will not gather, request, record, require, or collect any Internet users' personally identifying information from Customer or from its Pages. Customer agrees that it will not use the Service to track or collect personally identifiable information of Internet users. CIIC may use cookies and other anonymous identifiers and may create anonymous profiles associated with cookies or other anonymous identifiers, but CIIC will not associate any data gathered from Customer's site with any personally identifying information from any source. CIIC will comply with all applicable privacy laws related to its collection of data from Customer's site. Customer 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 Customer's websites. Customer may notify visitors to its web sites that it is using CIIC's PP service.
6. Fees. The applicable fees and the times for their payment are as set forth during the signup process. CIIC will invoice Customer for any applicable (i) set-up fees, (ii) implementation fees, and (iii) any other fees (including prepaid usage fees) at the times indicated during the signup process (which may be after a "free trial period" as indicated during the sign up process). Any fees are due and payable on the date invoiced. Set-up fees, implementation fees and any prepaid usage fees for the first 30 days of the term are non-refundable. At the end of any "free trial period" CIIC will automatically commence invoicing for service fees unless Customer has cancelled the Agreement before the end of the "free trial period".
7. Term. The initial term of this Agreement for any account(s) commences on the date of the on-line sign up process and continues for the period or periods indicated during the on-line sign up process unless terminated by either party pursuant to section 8.
8. Termination. CIIC reserves the right to terminate this Agreement and to deactivate or deny viewing access to Customer's account immediately for Customer's failure to pay. If CIIC denies viewing access but has not terminated the Agreement, CIIC will continue the Services until the Agreement is terminated without interruption and Customer will remain obligated to pay any fees related thereto. Either party may terminate this Agreement upon 30 days advance notice for any material breach of this Agreement not related to payment. Any error in the Service that is statistically insignificant, of short-term duration or capable of being subsequently corrected will not be considered a material breach. Upon termination or expiration of this Agreement, Customer will delete all copies of CIIC's HTML Code from all Pages or allow CIIC to do so at the Customer's option. Any outstanding balance for services rendered through the date of termination or any other payment obligations during the remainder of any unexpired term become will be immediately due and payable upon termination of this Agreement.
9. Disclaimers And Limitation Of Liability And Damages. Customer recognizes that, in the event of system failures or network failures or other causes beyond CIIC's control, Pages with HTML Code (unless such code is at the bottom of the Page) may not load fully in browsers for as long as such failure persists. CIIC'S LIABILITY FOR ALL CLAIMS OR INDEMNITIES ARISING OUT OF THESE TERMS & CONDITIONS, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO CIIC UNDER THIS AGREEMENT DURING THE SIX MONTHS PRECEDING THE CLAIM. CUSTOMER USES CIIC'S SERVICES AND HTML CODE AT ITS OWN RISK. CIIC'S SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CIIC DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICE OR THE CUSTOMERS' STATISTICS WILL BE UNINTERRUPTED OR ERROR FREE. 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, SUSPENSION, INTERRUPTION OR TERMINATION OF THE SERVICES, 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. ANY CIIC SERVICE OBLIGATIONS, WARRANTIES OR SERVICE LEVEL GUARANTIES INCLUDED IN THIS AGREEMENT ARE MADE TO CUSTOMER ONLY, AND NOT TO ANY CUSTOMER OF CUSTOMER'S AND ARE CONDITIONED UPON CUSTOMER'S USE OF THE MOST RECENT HTML CODE AND PP SERVICE VERSION OFFERED BY CIIC TO CUSTOMER FOR CUSTOMER'S USE.
10. Publicity. CIIC and Customer each may refer generally to the existence of this Agreement and use the other's name in press releases, on web sites and other promotional material, but will not reveal financial arrangements or other proprietary information contained in this Agreement.
11. Notices. All notices required under this Agreement from one party to the other must be in writing, by email and to the email addresses set forth on the applicable Service Order or to such other address as a party designates in writing. Notice will be deemed given (i) immediately if by email, (ii) one day after mailing if by nationally known courier service or three days if mailing by well recognized international courier service, (iii) upon confirmation of successful facsimile transmission or (iv) upon verification of receipt if by first class certified or registered mail, return receipt requested.
12. Disputes. This Agreement will be construed and enforced in accordance with the laws of the State of California without regard to its conflict of laws principles. Exclusive venue for any dispute under this Agreement will be Los Angeles County, California.