Stats Insight - Terms of Service

Last Updated: 02-21-07

Stats Insight, Inc. ("Stats Insight") is pleased to provide Stats Insight ("Service") to the client ("Client") subject to these terms and conditions. These terms and conditions, the Stats Insight Service Order and any addenda attached to the Service Order are together the "Stats Insight Subscription Agreement" or the "Agreement." This Agreement is effective as of the date Client executes the Service Order ("Effective Date"). To the extent of any conflict among them, the Service Order supersedes these terms and conditions but these terms and conditions supersede any provisions of any purchase order drafted by Client and all related proposals and communications, written or oral. A printed version of this Agreement (with a revision date the same as or prior to the Effective Date) 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. Code
Promptly after a Service Order for the first site or an added site is received by Stats Insight, for each Service account to which Client subscribes, Stats Insight will deliver and license to Client for the term of this Agreement a unique account number and a copy of Stats Insight customer-side, HTML code ("HTML Code") for the use in connection with the website(s) specified in the Service Order. For the term of this Agreement, Stats Insight grants Client a limited right to copy HTML Code for insertion in Client's Pages. Stats Insight is not granting any other rights to the Code. Stats Insight retains ownership and all rights to the HTML Code, Stats Insight logos, trademark, software, and trade secrets.

2. Data & Statistics
Client will own the website traffic statistics reported by the Stats Insight Service and can copy, archive, backup, publish, distribute and use the Stats Insight Statistics for any legal purposes. Stats Insight has the right to publish Internet-wide statistics based upon raw data aggregated from several or all of its clients' accounts, including Client's Stats Insight Statistics, but Stats Insight does not have any right to publish the Stats Insight Statistics separately or any other specific information derived from Client's Stats Insight Statistics that would in any manner identify Client, Client's website(s) or Client's products or services.

3. Confidentiality
"Confidential Information" includes the 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 the event of a legally required disclosure, 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. Client is responsible for safeguarding the confidentiality of Client's password(s) and user name(s) issued to Client by Stats Insight, and for any use or misuse of Client's account resulting from any third party using a password or user name issued to Client. Client agrees to immediately notify Stats Insight of any unauthorized use of Client's account or any other breach of security known to Client.

4. Privacy
Stats Insight will not gather, request, record, require, or collect any Internet users' personally identifying information from Client or from its Pages as part of the Service. Client will not use the Service to track or collect personally identifiable information of Internet users. Stats Insight may use cookies and other anonymous identifiers and may create anonymous profiles associated with cookies or other anonymous identifiers, but Stats Insight will not associate any data gathered from Client's site with any personally identifying information from any source as part of the Service. Stats Insight will comply with all applicable privacy laws and Stats Insight's privacy policies stated at http://visitors.statsinsight.com/privacy-policy.html related to its collection of data from Client's site. Client understands that Stats Insight's privacy center enables individual Internet users to "opt out" of receiving Stats Insight cookies. Client 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 Client's websites. Client may notify visitors to its websites that it is using Stats Insight Service. Client may, if it chooses, include a link to Stats Insight's privacy policy within Client's own privacy policy.

5. Fees
Client will pay the fees set forth on the Service Order. Additional charges may apply if actual average daily visitor volumes exceed any limits set forth on the Service Order. However, the Client will not be subject to these fees until notified by Stats Insight, Inc and there is mutual consent to upgrade the Client’s subscription level. Client will also pay Stats Insight's collection costs (including attorneys' fees) in the event Client does not make required payments when due.

A. Set-up and Implementation Fees. Set-up fees and implementation fees are due at the time of signing of Service Order and are non-refundable. Set-up fees are typically applicable for custom Enterprise accounts or for custom services/development work mutually negotiated and agreed between Stats Insight and the Client.

B. Monthly Usage Charges. Clients who have not chosen the pre-paid usage payment option will pay a monthly usage fee for all accounts as set forth on the Service Order. Invoices will be emailed and tracked for payment electronically. Stats Insight is able to keep our usage fees low, by automating as much of the administrative and billing processes as possible. Your timely payments enable us to maintain our favorable pricing structure.

C. Prepaid Usage Fees. Prepaid usage fees are refundable and pro-rated to the end of the current month in which notification of termination is received. So, if notice is received in the second month of a three month prepayment period, then a refund for the third month is provided. There will be no refund for the balance associated with any time remaining in the second month.

D. Consulting and other Fees. Any consultation or implementation services will be charged at Stats Insight's then applicable daily rates, plus expenses. Any custom development will be sized, priced and mutually agreed between Stats Insight and the Client prior to any billable work begins.

6. Invoices and Payment Terms
Stats Insight will invoice Client for any applicable fees (including prepaid usage fees) according to the Service Order. Each month, Stats Insight will invoice Client for usage fees according to the Service Order of record. Should the Average Daily Visitors exceed the volumes of the Service Order of record, Stats Insight will bring this to the attention of the Client for discussion, negotiation and development of a revised Service Order. No additional charges will be levied on the Client until a new Service Order is established and mutually agreed upon

Any applicable set-up fees, implementation fees, prepaid usage fees or monthly service fees are due and payable on the invoice date. Late fees of 10% will be applicable 10 calendar days after the invoice date.

7. Term

A. Initial Term. The initial term of this Agreement for any account(s) commences on the Effective Date and continues until (a) the expiration of the Service term set forth on the Service Order ("End Date") or, (b) if Client is prepaying usage fees, the earlier to occur of (1) the End Date or (2) the first date that Stats Insight no longer possesses prepaid fees for the usage charges then being incurred.

B. Renewal Term. Subject to the payment of any required fees, at the end of the initial term of this Agreement, unless stated differently in a Service Order, this Agreement will automatically renew for successive yearly periods (subject to then current pricing and then current Stats Insight terms and conditions as posted at http://visitors.statsinsight.com/terms.html) as follows: (i) if Client is paying monthly service charges, then the Agreement will automatically renew unless either party gives written notice of its intention not to renew at least 90-days before the expiration of the then current term or (ii) if Client is paying prepaid usage fees, then the Agreement will automatically renew unless either party gives written notice of its intention not to renew prior to the date when 80% of the prepaid Total Views fees have been counted.

8. Termination

A. Termination by Client For Stats Insight's Breach. Client may terminate the Agreement immediately if Stats Insight breaches the data, confidentiality or privacy obligations of Sections 3, 4 and 5. Client may also terminate the Agreement upon 30-days notice for a service level breach set forth in Section 11 or for any other material breach by Stats Insight of this Agreement not covered by Sections 3, 4, 5 or 11, if such other material breach is not cured within the 30-day notice period.

B. Termination by Stats Insight For Client's Breach. Stats Insight may terminate the Agreement immediately if Client breaches the confidentiality or privacy obligations of Sections 4 and 5 or for Client's failure to pay any fees when due or upon 30-days notice if Client materially breaches any other provision of the Agreement and such material breach is not cured within such 30-day period. Without terminating the Agreement, Stats Insight also reserves the right to deny viewing access to Client's account at any time for Client's failure to pay any fees when due. If Stats Insight denies viewing access without terminating the Agreement, Stats Insight will continue the Service until the Agreement is terminated and Client will remain obligated to pay any fees related thereto.

C. No Other Termination Rights. The parties will have no other right to terminate this Agreement except as set forth above.

9. Effect of Termination
Upon any termination or expiration of this Agreement, Stats Insight will cease providing the Service, and Client will delete all copies of Stats Insight's HTML Code from all Pages. If Client has prepaid usage fees, then upon any termination by Client for Stats Insight's breach as set forth in Section 9.a above, Client will receive a refund of any unused portion of such prepaid usage fees. In the event of any termination by Stats Insight for Client's breach under Section 9.b, (a) Client will not be entitled to any refunds of any prepaid usage fees or any other fees and (b) any (i) outstanding balance for Service rendered through the date of termination, (ii) monthly minimum charges set forth in Section 6.b, and (iii) other unpaid payment obligations during the remainder of the original stated term in the Service Order will be immediately due and payable in full.

10. Service Levels
If the counting portion of the Service and/or the Statistics viewers are inoperable ("Downtime") more than 20% in any single calendar month, Client may terminate this Agreement as set forth in Section 9.a, provided that the notice of termination has been received by Stats Insight within 30 days after the end of the calendar month during which Downtime exceeded 10%. If Client elects to terminate the Agreement under this Section, such termination will be Client's sole and exclusive remedy with respect to any claims it may have relating to such Downtime for such month. For purposes of the foregoing, Downtime does not include, any inoperable time (1) caused by Client's exceeding the peak volume limits set forth on the Service Order, (2) caused by outages to any public Internet backbones, networks or servers, (3) caused by any failures of Client's equipment, systems or local access services, (4) for previously scheduled maintenance or (5) relating to events beyond Stats Insight's 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 Stats Insight or Client servers are located or co-located. Inaccuracy in aspects of the Client's Statistics is also excluded from Downtime.

11. Warranties, Disclaimers and Limitation of Liability and Damages
Stats Insight warrants that its Service will be provided in a timely and professional manner and will conform to its specifications in all material respects. Client acknowledges that (a) the Service cannot be 100% accurate at all times and (b) there will be ascertainable differences between the Statistics and website traffic data reported by other services or software programs. STATS INSIGHT'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 CLIENT TO STATS INSIGHT UNDER THIS AGREEMENT DURING THE SIX MONTHS PRECEDING THE CLAIM. CLIENT USES STATS INSIGHT'S SERVICES AND HTML CODE AT ITS OWN RISK. STATS INSIGHT'S SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

STATS INSIGHT DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES (A) OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THE SERVICES OR THE CLIENTS' STATISTICS WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) RELATING TO COOKIE ACCEPTANCE BY WEBSITE VISITORS. 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. IF STATS INSIGHT HAS AGREED TO ANY CUSTOMIZATION OF THE SERVICES OR TO DEVELOP ANY CLIENT REQUESTED SERVICES BEYOND THE SCOPE OF THE SERVICES AS PUBLICLY AVAILABLE, CLIENT'S SOLE REMEDY FOR STATS INSIGHT'S FAILURE TO PROVIDE THOSE CUSTOM OR REQUESTED SERVICES WILL BE TERMINATION OF THIS AGREEMENT. ANY STATS INSIGHT SERVICE OBLIGATIONS, WARRANTIES OR SERVICE LEVEL GUARANTIES INCLUDED IN THIS AGREEMENT ARE MADE TO CLIENT ONLY, AND NOT TO ANY CUSTOMER OF CLIENT'S AND ARE CONDITIONED UPON CLIENT'S USE OF THE MOST RECENT HTML CODE AND STATS INSIGHT SERVICES VERSION OFFERED BY STATS INSIGHT TO CLIENT FOR CLIENT'S USE.

12. Publicity
Stats Insight and Client each may refer generally to the existence of this Agreement and use the other's name in press releases, on websites and other promotional material, but will not reveal financial arrangements or other proprietary information contained in this Agreement.

13. Notices
All notices required under this Agreement from one party to the other must be in writing, by certified mail, courier, fax or e-mail and to the address 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 e-mail, (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 fax transmission or (iv) upon verification of receipt if by first class certified or registered mail, return receipt requested.

14. Disputes
This Agreement will be construed and enforced in accordance with the laws of the State of Nevada without regard to its conflict of laws principles. Exclusive venue for any dispute under this Agreement will be Santa Clara County, California.

15. Miscellaneous
If any term or provision of this Agreement is held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction, such provision will be construed as if it were written so as to effectuate to the greatest possible extent the parties' expressed intent, and in every case the remainder of these terms and conditions will not be affected thereby and will remain valid and enforceable. Typographical and clerical errors are subject to correction. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No joint venture, partnership, employment, or agency relationship exists between Client and Stats Insight as a result of this agreement or use of the Service.

16. Integrity
In order to maintain our system integrity and resources we expect our customers to act responsibly. When you use Stats Insight, Inc. services, in any form, you automatically agree to the following Conditions. We reserve the right to suspend or cancel a customer's access to any or all services we provided when we decide that the account has been inappropriately used. In short:

Any violation of policies which results in extra costs will be billed to the customer (i.e. transfer, space etc.).
If you have any questions or concerns with this policy or any of Stats Insight's services, please send your comments to support@statsinsight.com