Terms of Use

Terms of Use (“Agreement”)

Welcome to the CampaignAlyzer website (“CA Website”), a website owned and operated by Gmetrics Inc, a California corporation (“We”, “Gmetrics” or the “Company”). The CA Website provides online access to the CampaignAlyzer System (“System”) to the Company’s customers and clients (“you” and along with any and all persons authorized to use or access the System, “Users”). Please read these Terms of Use carefully before accessing or using the System or any services offered by or through the System.
The following are various terms and conditions related to use of the CA Website, the System and the services offered by the Company by and through the System. The term “Service” as used hereinafter in these Terms of Use shall include the System and the services, including any content, offered by or through the System. Please read these Terms of Use carefully before using the Service.

By clicking the “I accept” button and completing the registration process or by accessing or using the Service you agree to the terms of: (aa) this Agreement, (bb) the Privacy Policy, (cc) any Subscription Agreement (as defined below), (dd) all applicable laws and regulations and (ee) such additional terms and conditions applicable to certain of the Services (including fee or subscription-based Services and any free Services) as may be posted, or set forth in a separate agreement. All terms and conditions set forth in the preceding subparagraphs (aa) through (ee) of this paragraph, as such terms and conditions may be modified from time to time, may hereinafter be jointly and separately referred to as the “User Agreements”). IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained in the User Agreements. If you do not accept and agree to be bound by any of the terms of the User Agreements, you are not authorized to access or otherwise use the Service.

Account

To register for the Service and create an account (“Account”) that will provide access to the Service (the terms and conditions of any such Account shall be referred to as a “Subscription Agreement”), you must complete the registration process by providing the Company with complete and accurate information as prompted by the registration form.

From time to time, the Company may find it necessary to access your Account. For instance, the Company may access your Account for support, maintenance or security-related reasons. In such event, the Company will, if reasonably practicable, provide you notice of its intent to access your Account and the information to be accessed. Regardless of whether such notice is provided, you acknowledge and consent to such access.

Right to Access and Use of Service

Upon the creation of an Account and subject to the terms of the User Agreements, the Company grants you a royalty-free, nonexclusive, nontransferable, worldwide limited term right to use the Service described in the Subscription Agreement for up to the number of Users or nodes that may be identified in the Subscription Agreement, solely for your internal business use. Unless otherwise explicitly set forth in any User Agreement, no software will be delivered to you as part of the Service. All rights not expressly granted in this paragraph or User Agreements are expressly reserved to the Company.

Account Passwords and Security

We may require each User to have a unique user name and password combination in order to use the Service or any portion thereof, and may also, from time to time, provide users with additional codes or passwords necessary to access and use certain features or functions of the Services. Please read our Privacy Policy, which describes the personally identifiable information (“Personal Information”) we may collect, use, disclose, manage and store. As part of any registration process you may be asked to choose a user name and password (or we may assign an initial password which we will give you the option to change). Your user name and password are personal to you and you may not allow any others to use your user name or password under any circumstances. We are not liable for any harm caused or related to the theft or misappropriation of your user name or password, disclosure of your user name or password, or your authorization of anyone else to use your user name or password. However, you could be held liable for losses incurred by the Company or another party due to someone else using your Account or password. You may not use anyone else’s Account at any time, without the permission of the Account holder. You agree to notify us immediately if you become aware of or believe there is or may have been any unauthorized use of your user name or password or any other need to deactivate your user name or password due to security concerns.

PASSWORDS ARE ISSUED ON A PERSONAL BASIS. ACCORDINGLY, ALL CONTENT OR INSTRUCTIONS TRANSMITTED BY OR RECEIVED FROM ANYONE PRESENTING YOUR PASSWORD TO THE SERVICE WILL BE DEEMED BINDING ON YOU. You agree that you are solely responsible and liable for all actions taken via your password, whether or not made with your knowledge or authority. You agree to guard your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the Service for which you will be legally responsible.

You agree not to access or use the Service in any manner that could damage, disable, overburden, or impair any Accounts with the Company, computer systems or networks. You agree not to attempt to gain unauthorized access to any parts of the Service or any Accounts with the Company, computer systems or networks. You agree not to interfere or attempt to interfere with the proper working of the Service or any Accounts with the Company, computer systems or networks. You agree not to use any robot, spider, scraper or other means, whether automated or not, to access the Service or any Accounts with the Company, computer systems or networks without the Company’s express written permission.

Links to/from Third Party Websites

Links to other websites: The CA Website may contain hyperlinks to other sites owned and operated by the Company and/or third parties. Such hyperlinks are provided only for ready reference, ease of use, commerce and other such uses as may be desired by you. We do not control to third party websites and cannot be held responsible for their content or accuracy and do not endorse these sites unless we explicitly so state. We accept no liability for any information, products, advertisements, content, services or software accessible through such third party websites or for any action or inaction as a result of linking to any such website. Any such websites are likely to set forth specific terms of use and privacy policies that you should review. The Company shall not be responsible or liable, directly or indirectly, for any damages or losses of any kind or nature caused or alleged to be caused by or in connection with the use of or reliance on such hyperlinks or content, products, services or other materials available on or through any such website.

Links from other Websites to this Site: Unless specifically authorized in writing by the Company in writing, you may not connect “deep links” to the CA Website, i.e, create links to this CA Website that bypass the home page or other parts of the CA Website. You may not mirror or frame the home page or any other pages of this CA Website on any other web site or web page or otherwise.

Payment, Refunds, Upgrading and Downgrading Terms

1. The Service is billed in advance on an annually basis and is non-refundable. There will be no refunds or credits for partial months of service.
2. For any upgrade or downgrade in plan level, your credit card will automatically be charged the new rate on your next billing cycle.
3. Downgrading your Service may cause the loss of content, features, or capacity of your Account. The Company does not accept any liability for such loss.

Account Cancellation

1. The only accepted method for canceling your Account is via the System Account settings. An email or phone request to cancel your Account is not considered cancellation. You can cancel your Account at any time when you are logged into your CampaignAlyzer Account by going to your Account settings and clicking on the cancellation link.
2. If you cancel your Account before the end of your subscription period, your cancellation will take effect immediately and you will not be charged again.

Fees

As a condition of your use of and access to the Service, you agree to pay all applicable fees as described on the CA Website and or the Subscription Agreement. Service may be priced based on features.

We may change the fees for our Service at any time and from time to time effective immediately upon posting on the CA Website, provided that, no fee change will be effective as to Service orders accepted by the Company prior to the effective date of such change.

Unless otherwise stated, all fees are stated in U.S. Dollars. Unless otherwise provided in your Subscription Agreement, all fees are payable annually in advance. We reserve the right to deactivate your access to the Service for failure to pay applicable fees as to any Service. If you provide us with a credit card that expires during the term of this Agreement, we reserve the right to charge any renewal card issued to you as a replacement.

Privacy

The Company is committed to protecting your privacy, as well as that of the visitors (“Visitors”) to your website, and any information that the System gathers.

You will not use the Service to track or collect personally identifiable information of Visitors, nor will you associate any data gathered from your website with any personally identifying information from any source as part of your use of the Service. You will implement and abide by an appropriate privacy policy and will comply with all applicable laws relating to the

collection of information from Visitors.
For further information regarding the privacy policy of the Company, please review the privacy policy set forth at this link.

Confidentiality

Each Party to this Agreement shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information, except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without such other Party’s prior written consent. Each Party shall take reasonable measures to prevent the disclosure and unauthorized use of Confidential Information of the other Party.

The term “Confidential Information” shall mean any information disclosed by one Party to the other Party in connection with this Agreement which is disclosed in writing or orally and is identified as “Confidential” or which a Party should reasonably believe is treated as confidential by such other Party, and any other information disclosed by the Company that relates to the Service. You acknowledge that the pricing of the Company and the Service, and the Company IP (as defined hereinafter), and System access codes are the Confidential Information of the Company. Nevertheless “Confidential Information” shall not include information that the receiving Party can demonstrate: (i) becomes known to the receiving Party, without restriction, from a third party without breach of this Agreement or any other obligation of confidentiality; (ii) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the receiving Party; (iii) was rightfully known to the receiving Party as demonstrated by prior written records at the time of disclosure; or (iv) is disclosed by agreement of the Parties or pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving Party shall provide prompt notice thereof to the other Party and shall use commercially reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information.

Notwithstanding the above, either Party may disclose Confidential Information: (1) to its employees, contractors or agents who have a need to know and are subject to substantially similar obligations of confidentiality as set forth herein; and (2) if required by law (including a court order or subpoena), provided, the receiving Party promptly notifies the disclosing Party with sufficient notice to allow disclosing Party time to review and challenge the potential disclosure.

Company Property Rights

The Service, CA Website and any and all technology, software and/or content related thereto (including without limitation any associated Company provided documentation, hardware, websites, passwords, components and/or tools) and any derivatives, improvements, enhancements or extensions of any of the foregoing (individually and collectively the preceding shall be referred to as “Company IP”) are the sole and exclusive property of the Company or its third party licensors. These ownership rights include copyrights, patent, trademark, trade secret and moral rights, and all other intellectual property and proprietary rights (individually and collectively “IP Rights”). No ownership interest in any Service is transferred to you, whether as a result of downloading such Service or otherwise. You agree that you will take no action inconsistent with the Company’s IP Rights. In addition you agree that the Company has the right to use in its sole discretion, feedback, suggestions or recommendations (individually and collectively “Input”) you may provide, without notice to, payment to or further consent from you and that such Input shall not be considered your Confidential Information pursuant to this Agreement. You agree not to disclose such Input to any third party without the express written consent of the Company.

Further Restrictions on Users

You may not redistribute or otherwise made available the Service to third parties. You may not use any Service in any other manner or for any other purpose without the prior written permission of the Company. In addition, you shall not: (i) use, or allow the use of, the Service or any Company IP, except pursuant to the limited rights expressly granted in this Agreement; (ii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (iii) “frame” or “mirror” any Service content on any other server or wireless or Internet-based device; (iv) use the Service in any manner that is inconsistent with user documentation, if any, supplied to you by the Company or inconsistent with the User Agreements or your standard security procedures, if any, accessible through your user interface; (v) attempt to reverse engineer, hack into, modify, copy or compromise any aspect of the Service or Company IP, or attempt to access data of any other customer or Account; (vi) remove, obscure or alter any legal notices, including notices of IP Rights appearing in or on any materials delivered to or accessed by you related to the Service or the CA Website; or (vii) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children or violative of third party privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.

Indemnification

You agree to indemnify, hold harmless and defend the Company, at your expense, against any and all third party claims, actions, proceedings, and suits brought against the Company or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Company or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Service or (iii) any reasonable costs and attorneys’ fees required for the Company to respond to a subpoena, court order or other official government inquiry regarding your use of the Service. In such a case, the Company will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. The Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you. Notwithstanding anything to the contrary herein, no resolution or settlement of any matter subject to indemnification by you shall be undertaken or accomplished without the advance written consent of the Company, which shall the absolute discretion to withhold if, in the absolute discretion of the Company, there are any adverse consequences for the Company arising out of or related to any such resolution or settlement.

Representation and Warranties; Disclaimers

THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE SERVICE OR THE CA WEBSITE. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SERVICE. THE COMPANY DOES NOT WARRANT THAT (A) THE SERVICE AND/OR THE CA WEBSITE WILL MEET YOUR REQUIREMENTS; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE AND/OR WEBSITE WILL BE ACCURATE, RELIABLE OR COMPLETE; (C) THE QUALITY OF ANY SERVICE PURCHASED OR OBTAINED BY YOU ON OR THROUGH THE CA WEBSITE WILL MEET YOUR EXPECTATIONS; (E) THE FUNCTIONS PERFORMED BY THE SERVICE AND/OR THE CA WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (F) THAT DEFECTS IN THE SERVICE AND/OR CA WEBSITE WILL BE CORRECTED, OR (G)THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

THE SERVICE AND CA WEBSITE ARE EACH PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

You represent and warrant to the Company that (i) you own all right, title and interest in and to the URLs of your website, and (ii) you have rights to tag campaign links to your website and otherwise use any and all of the Service you choose to use.

You specifically agree that the Company shall not be responsible for unauthorized access to or alteration of your data.

In addition to the foregoing, the Company does not guarantee, and shall have no liability for, any Service and/or CA Website down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance, or (iv) relating to events beyond the Company’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 the Company’s or your servers are located or co-located.

Limitation of Liability

IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU OR ANY OTHER PERSON, INCLUDING BUT NOT LIMITED TO OTHER AUTHORIZED USERS, FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES ARISING OUT OF (I) THE USE OF OR INABILITY TO USE THE SERVICE AND/OR THE CA WEBSITE, (II) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SERVICE AND/OR CA WEBSITE; (III) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AND/OR CA WEBSITE, (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (V) LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY OR (VI) ANY OTHER MATTER RELATING TO OR ARISING OUT OF THE SERVICE AND/OR CA WEBSITE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SERVICE AND/OR THE CA WEBSITE, OR WITH THE USER AGREEMENTS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OR ACCESSING THE SITE, THE SERVICE.

Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW SOME OR MORE OF THE DISCLAIMERS OR LIMITATIONS OF LIABILITY SET FORTH IN THE PRECEDING PARAGRAPHS. TO THE EXTENT THAT ANY ARE HELD TO BE LEGALLY INVALID, SUCH INVALID PART OR PROVISION MAY BE MODIFIED TO MAKE SUCH PART OR PROVISION AS MODIFIED LEGAL AND ENFORCEABLE BUT IN NO EVENT AND IRRESPECTIVE OF THE CAUSE OR FORM OF ACTION OR CLAIM, SHALL ANY DAMAGES LIMITATIONS DEEMED INVALID, BE REVISED OR MODIFIED TO ALLOW THE AGGREGATE LIABILITY OF THE COMPANY FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE AND/OR CA WEBSITE TO EXCEED THE FEES PAID UNDER THIS AGREEMENT FOR THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. REGARDLESS OF THE CAUSE OR FORM OF ACTION OR CLAIM, YOU MAY BRING NO ACTION ARISING FROM OR RELATED TO THE USER AGREEMENTS AND/OR SERVICES MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ARISES.

Term and Termination

The Initial Term of this Agreement is specified in the Subscription Agreement (the “Initial Term”). Unless stated otherwise in the Subscription Agreement, this Agreement and the related Subscription Agreement will automatically renew for successive terms of equal length as the Initial Term (each a “Renewal Term”) unless you provide to the Company a notice of non-renewal at least five (5) days prior to the end of the then current term.

The Company may terminate or suspend your access to all or any part of the Services, including any content, as it may deem appropriate in response to actual or suspected violations of the User Agreements if the Company reasonably concludes that you are in material breach of the User Agreements, using the Services to engage in illegal activity or otherwise causing immediate, material and ongoing harm to the Company or others. The Company also reserves the right to modify, interrupt, limit, suspend or discontinue, temporarily or permanently, the Services or any access to the Services, in whole or in part, as the Company deems necessary for purposes of maintenance, upgrades and the like, to maintain the Services or to comply with applicable law. The Company shall not be liable to you or to any third party for any such modifications, suspensions or discontinuances of the Services and shall have no obligation to refund any fees paid pursuant to any Subscription Account or Subscription Agreement, or User Agreements.

In addition the Company may terminate the provision of the Service at any time and for any reason. Upon any expiration or termination of any User Agreement, (i) we will cease providing the Service; (ii) any outstanding balance payable by you to the Company will become immediately due and payable; (iii) you will not be entitled to any refunds of any usage fees or any other fees; (iv) all of your historical data will no longer be available to you and (v) any and all obligations of User which have accrued as of the date of such expiration or termination as well as any provision required for the interpretation of the User Agreements or necessary for the full observation and performance arising prior to the date of expiration or termination, shall survive.

Modifications to the User Agreements, including these Terms of Service

The Company reserves the right to modify the CA Website, add or delete Services or make modifications to the User Agreements from time to time (each and all of the foregoing changes a “Modification”). You may be advised of any such Modifications either by notice set forth in the CA Website or by any other means deemed reasonably likely to provide notice to you of such Modifications. You are responsible for regularly reviewing the User Agreements for any Modifications. Your use of the CA Website and/or Service following any such Modifications constitutes your agreement to follow and be bound by the User Agreements as modified. The last date these Terms of Use were revised is set forth below.

Compliance

You will not use the Service in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.

Privacy Policy

The Company is concerned about your privacy and has developed a policy to address privacy concerns. For more information, please see the Company’s Privacy Policy. You understand that the Company may collect, use, process, possess, and otherwise store your personal information and utilization data and may share such data with third party service providers for the purpose of improving or providing services subject to the Company’s Privacy Policy.

Waiver and Severability

The failure of the Company to exercise or enforce any rights or provisions in the User Agreements shall not constitute a waiver of such right or provision. If any part or provision of the User Agreements is found to be unenforceable, such part or provision may be modified to make the User Agreements as modified legal and enforceable. The balance of the User Agreements shall not be affected.

Applicable Laws

All matters relating to your access to, and use of, the Service shall be governed by U.S. federal law or the laws of the State of California. Any legal action or proceeding relating to your access to, or use of, the Service shall be instituted solely in a state or federal court in Santa Clara County, California. You and the Company agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

Entire Agreement/No Waiver

The User Agreements constitute the entire agreement between you and the Company with respect to the subject matter set forth therein. No other promises, representations, or prior agreements shall be enforceable against the Company related to such subject matter. No waiver by the Company of any breach or default of the User Agreements shall be deemed to be a waiver of any preceding or subsequent breach or default.

Trademarks of Company

CampaignAlyzer is registered trademark of the Company and/or its affiliates. Other names appearing on the Service may be trademarks of their respective owners.