Subscription Service Agreement

Webtrends Optimize and Accelerate Group Limited are each referred to herein as “Webtrends Optimize”.

Webtrends Optimize

Last Amended 15th October 2019

These Terms of Subscription Service (“Agreement”) are entered into by and between the entity or person placing an order or accessing the Solution as defined below (“Client”) and the Webtrends Optimize entity specified on the Quote or other order forms.

The “Effective Date” of this Agreement is the date that is the earlier of (a) the effective date of the first Quote referencing this Agreement and (b) Client’s initial access to the Solution through any Webtrends Optimize online registration, provisioning, or order process.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement in which case the term “Client” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement or use the Solution. If you receive free access or a trial or an evaluation subscription to the Solution, you are deemed a “Client” under this Agreement and are subject to its terms, including the restrictions and limitations in Section 7.4 (Trial Subscriptions) below. You may not use or access the Solution if you are a direct competitor of Webtrends Optimize or if you are accessing or using the Solution for the benefit of a direct competitor of Webtrends Optimize.

This Agreement permits Client to purchase a subscription to the Solution and related Managed Services from Webtrends Optimize pursuant to Quotes and sets forth the terms and conditions under which the Solution and Managed Services will be delivered. This Agreement shall govern Client’s initial purchase as well as any future purchases made by Client that reference this Agreement. This Agreement includes any and all Exhibits, referenced policies and attachments, and any and all Quotes and SOWs.

From time to time, Webtrends Optimize may modify this Agreement with ten (10) days’ notice to Client. Unless otherwise specified by Webtrends Optimize, changes become effective for existing Clients upon posting of the modified Agreement. If Client does not agree to such changes, Client must notify Webtrends Optimize of such disagreement within the ten (10) day notice period, and Webtrends Optimize (at its option and as Client’s exclusive remedy) may either: (i) permit Client to continue under the prior version of this Agreement until the next renewal of the current Order Term, after which the modified Agreement will apply (for example, if Client is on an annual Order Term, then the modified Agreement will apply starting from the beginning of Client’s next annual Order Term after it is posted) or (ii) terminate this Agreement and provide to Client a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term. Webtrends Optimize will use reasonable efforts to notify Client of the changes through Client’s Account, email, or other means. Client may be required to click to accept the modified Agreement before using the Solution in a renewal Order Term, and in any event continued use of the Solution during the renewal Order Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Order Term begins.

Each party expressly agrees that this Agreement is legally binding upon it.

1. DEFINITIONS AND INTERPRETATION –

1.1 Definitions – Capitalised terms not included in this Section are defined contextually in this Agreement.

1. “Account” means the online account and dashboard that Webtrends Optimize provides for Client to manage its use of the Solution.

2. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client, where “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting securities or other equivalent voting interests of an entity.

3. “Client Applications” means Client’s and its Affiliates’ online websites, mobile applications, and other properties that support the deployment of Tagging Methods. For clarity, Client Applications do not include Client’s accounts or content on Third Party Platforms.

4. “Client Content” means any visual elements, images, text, or other content provided by Client (a) for display as part of tests using the Webtrends Optimize Solution or (b) for display within another Solution (e.g., to customize Client’s accounts) as permitted by Webtrends Optimize and the functionality of the Solution.

5. “Client Data” means all data collected by or on behalf of Client through the Tagging Methods, as well as the results, reports, and data feeds based on such collected data that are provided to Client through the Solution (excluding any Webtrends Optimize report templates or other Webtrends Optimize Technology). If Client uploads any data directly into the Solution, that data is also included in Client Data.

6. “Client Materials” means any Client materials (including Solution Data or Client Content) reasonably required for Webtrends Optimize to perform the Professional Services.

7. “Contractors” means independent contractors and consultants who are not competitors of Webtrends Optimize.

8. “Deliverables” means any deliverables provided by Webtrends Optimize to Client in connection with the Managed Services.

9. “Design Deliverables” means any Deliverables provided by Webtrends Optimize as part of Digital Marketing Services that consist of and are expressly identified in the applicable SOW as visual design elements specific to Client (excluding any underlying Webtrends Optimize Technology).

10. “Digital Marketing Services” means strategic, advisory, design, and/or other consulting services related to digital marketing provided by Webtrends Optimize in connection with Client’s use of the Webtrends Optimize Solution.

11. “Documentation” means the applicable Solution descriptions and end user technical documentation made available with the Solution and currently available from the user interface (as may be modified from time to time by Webtrends Optimize in its sole discretion).

12. “Erase” means to render access to data infeasible when using simple non-invasive data recovery techniques.

13. “EU Data Protection Directive” means EU Data Protection Directive 95/46/EC (or successor).

14. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.

15. “Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including those related to data privacy and data transfer.

16. “Managed Service”– This provides everything from the “Self-Service” with Professional Services to deliver an end-to-end solution for the design, implementation, management and reporting of experiments.

17. “Order Term” means the subscription term specified for each Solution in the applicable Quote and, in the event that such Quote does not include a “start date”, the Order Term will commence on the date that Webtrends Optimize electronically confirms Client’s order to the applicable Solution.

18. “Permitted Users” means Client’s employees, Contractors, and Affiliates (and its Affiliates’ employees and Contractors).

19. “Prohibited Data” means any personal data that could be legally considered sensitive in any applicable jurisdiction, including government issued identification, individual medical or health information (including PHI), financial account numbers, credit or debit card numbers, authentication factors (including security codes, passwords, biometric information, and answers to security questions), and special categories of personal data as defined in Article 8 of the EU Data Protection Directive and or the General Data Protection Regulation.

20. “Protected Health Information” or “PHI” has the meaning defined in HIPAA.

21. “Purchased Units” means the specified event usage. Additional definitions related to the concept of “Purchased Units” are provided in Exhibit A (Purchased Units Definitions).

22. “Quote” means Webtrends Optimize-generated order documentation (including any Webtrends Optimize online registration, provisioning, or other order process) referencing this Agreement and mutually executed or electronically accepted by Client.

23. “Self-Service” – this provides unlimited access to the Webtrends Optimize platform, including the various types of projects you can build (tests, targets/personalisation’s, baselines, social proofing, etc.) and all of the various ways in which you can deliver this content (Web, Server, Mobile, REST API, etc.). It also includes access to our Asset hosting service, reporting dashboard, as well as both our visual editor & advanced coding editor.

24. “Solution” means the specific online software-as-a-service products ordered by Client as identified on the applicable Quote. The term “Solution” includes the related Tagging Methods and Documentation (but excludes Managed Services).

25. “Solution Data” means Client Data and Third Party Data.

26. “Statement of Work” or “SOW” means a statement of work for professional services executed by both parties describing the work to be performed, fees, and any applicable milestones, assumptions, and other technical specifications or related information.

27. “Tagging Methods” means the Webtrends Optimize code, tags, application programming interfaces (“APIs”), software development kits (“SDKs”), beacons, cookies, or other tracking, data collection, and content optimisation methods made available to Client for use with Client Applications.

28. “Third Party Data” means non-personally identifiable analytics data retrieved by or on behalf of Client from Third Party Platforms through Webtrends Optimize’ access to Client’s credentialed accounts.

29. “Third Party Platform” means a third party platform, website, or service (i) from which the Solution enable retrieval of Third Party Data or (ii) with which Solution Data may be shared. 2 Interpretation – In this Agreement, the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions. Further, headings in this Agreement are for convenience only and do not affect its interpretation

2. THE SOLUTION

2.1 Overview – Webtrends Optimize collects Client Data from Client Applications (and, if applicable, retrieves Third Party Data from Third Party Platforms) for analysis, testing and targeting and reporting. The Solution is provided on a subscription basis for specified Order Terms. Webtrends Optimize may make available optional add-ons or code, which are also included in the “Solution” under this Agreement and may be subject to supplementary terms specified by Webtrends Optimize.

2.2 Access and Use – Client may access and use the Solution specified on the applicable Quote during the applicable Order Terms solely for its own internal business purposes and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote. This includes the right for Client to copy Tagging Methods (for use with the Solution and related backup purposes) and to deploy Tagging Methods on Client Applications. For Tagging Methods provided in source code format, Client may make modifications as permitted in the Documentation, except that Client may not take any action that would subject the Tagging Methods to any third party terms, including any open source license terms. Use of the Solution is charged based on, or limited to, the Purchased Units. The Purchased Units will be specified in the applicable Quote and will expire at the end of the applicable Order Term. Client will pay overage fees for exceeding its Purchased Units as set forth in the applicable Quote and Exhibit A (Purchased Unit Definitions).

2.3 Permitted Users – Client may allow its Permitted Users to access and use the Solution, provided (i) Client remains responsible for compliance by each Permitted User with all of the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote, and (ii) any use of the Solution by a Permitted User is for the sole benefit of Client or its Affiliates. Only Client and its Permitted Users may access and use the Solution and use of the Solution by Client and its Permitted Users in the aggregate must be within the scope of use restrictions designated in the applicable Quote, including the specified number of Purchased Units. Client acknowledges that personal data of Permitted Users is used by Webtrends Optimize in accordance with Webtrends Optimize’ Privacy Statement located at https://www.webtrends-optimize.com/privacy/ and is processed and stored within the E.U.

2.4 Accounts – Each Permitted User shall receive a unique user ID, which may not be shared. Client shall require that all Permitted Users keep their authentication factors (such as user ID and user credentials) strictly confidential and not share such information. Client shall be responsible for any and all actions taken in Client’s Account by its Permitted Users and shall immediately notify Webtrends Optimize of any unauthorised access to or use of its Account.

2.5 General Restrictions – Client shall not (and shall not permit any third party to):

(a) rent, lease, provide access to, or sublicense any Solution to a third party (except for Permitted Users as authorised in Section 2.3), copy any Solution (other than Tagging Methods as permitted in Section 2.2), or use any Solution for time sharing, hosting, service bureau, or like purposes;

(b) reverse engineer, decompile, or disassemble any Solution, or otherwise seek to obtain the source code or non-public APIs to any Solution, except to the extent expressly permitted hereunder or by Law (and then only upon advance notice to Webtrends Optimize);

(c) modify any Solution or any Documentation, or create any derivative work from any of the foregoing, except for modifications to the Tagging Methods permitted in the Documentation;

(d) remove or obscure any proprietary or other notices contained in any Solution (including notices contained in any reports or data presented through the Solution);

(e) publicly disseminate performance metrics or benchmarking information regarding any Solution;

(f) attempt to gain unauthorised access to any Solution or other systems, networks, or data of Webtrends Optimize, or interfere with or disrupt the integrity or performance of any such Solution, systems, networks, or data;

(g) use or knowingly permit the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security or vulnerability of any Solution or other systems, networks, or data of Webtrends Optimize; or

(h) use any Solution to retrieve, store, or transmit any malware (e.g., viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs).

3. SOLUTION DATA

3.1 Collection of Client Data – The Tagging Methods are provided with a default set of data points for collection of Client Data. In addition, Client may configure the Tagging Methods to collect other specific data points in accordance with this Agreement. Client Data may be aggregated or individualised as configured by Client and as further described in the Documentation. Further, the default set of data points varies based on the particular Solution.

3.2 Rights in Solution Data; Right to Use Solution Data – As between the parties, Client shall retain all right, title, and interest (including any and all intellectual property rights) in the Client Data, and Webtrends Optimize claims no right, title or interest in Client’s Third Party Data. Subject to the terms of this Agreement, Client hereby grants to Webtrends Optimize a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and perform and display in Client’s Account the Solution Data solely to the extent necessary to provide the Solution to Client. Further, Webtrends Optimize may periodically access Client’s Account and Solution Data to improve, support, and operate the Solution (e.g., for quality assurance, benchmarking, technical support, or billing purposes).

3.3 Data Retention Policy – Webtrends Optimize retains Client Data in accordance with the Data Retention Policy attached as Exhibit B. Webtrends Optimize expressly disclaims all other obligations with respect to data storage or delivery, including storage or delivery of any raw data included in Client Data.

3.4 Client Obligations

(a) Generally. Client is solely responsible for the accuracy, content, and legality of all Solution Data and for its Client Applications. Client shall ensure that Client’s use of the Solution and all Solution Data is at all times compliant with Client’s and any applicable Third Party Platform’s privacy policies and all Laws governing data tracking across sites. Subject to Webtrends Optimize obligations in Section 3.5(b) regarding Third Party Terms, Client shall obtain all third party licenses, rights, clearances, consents and approvals that may be required for Client (and Webtrends Optimize on behalf of Client) to collect and use Solution Data and represents and warrants that such collection and use will not violate any Laws or any intellectual property, publicity, privacy, or other rights of any third party.

(b) Prohibited Data. The Webtrends Optimize Solution is not designed for processing of Prohibited Data and the default configurations of the Tagging Methods (as provided by Webtrends Optimize) do not collect Prohibited Data. Notwithstanding any other provision included herein, Client will not configure the Tagging Methods or use the Solution to collect, upload, retrieve, transmit, store, analyse, create, or deliver Prohibited Data and will not otherwise provide Prohibited Data to Webtrends Optimize. Client acknowledges that Webtrends Optimize is not a Business Associate or subcontractor (as those terms are defined in HIPAA). Notwithstanding anything to the contrary herein, Webtrends Optimize shall have no liability under this Agreement for Prohibited Data.

3.5 Third Party Platforms – If Client uses the Solution (i) to retrieve Third Party Data from a Third Party Platform (such as Facebook, Twitter, or iTunes) or (ii) to share Solution Data with a Third Party Platform (such as ExactTarget, Tableau, or Teradata), this Section 3.5 applies.

(a) Use of Third Party Platforms. Client is solely responsible for determining whether to use the Solution with Third Party Platforms, including whether to retrieve Third Party Data from Third Party Platforms or whether to share Solution Data with Third Party Platforms, whether directly or via the Solution. Webtrends Optimize shall have no responsibility for any Third Party Platforms, including for their availability, security, functionality, operation, or integrity, or for any use of Solution Data by Third Party Platforms. Client acknowledges that Third Party Platforms may impose quotas or other usage restrictions. From time to time, Webtrends Optimize may change which Third Party Platforms may be used with the Solution or discontinue integration with any Third Party Platforms.

(b) Authorisation. Webtrends Optimize may make available functionality that enables Client to access its own accounts on Third Party Platforms through the Solution. If Client enables use of Third Party Platforms, Client authorises Webtrends Optimize to access such Third Party Platforms, retrieve and use Third Party Data, or share Solution Data, as permitted in this Agreement. Each of Client and Webtrends Optimize is responsible for its own compliance with the applicable terms between such party and a Third Party Platform (e.g., account terms for Client and API integration terms for Webtrends Optimize) (“Third Party Terms”).

4. THE WEBTRENDS OPTIMIZE SOLUTION (i) enables Client to run A/B and multivariate tests, as well as targeting and personalisation of Client Content on Client Applications and (ii) measures and reports end users’ engagement with such Client Content and Client Applications. All data collected by the Webtrends Optimize Solution is described in the Documentation and constitutes Client Data. As between the parties, Client shall retain all right, title and interest (including any and all intellectual property rights) in and to any Client Content made available by Client for its tests using the Webtrends Optimize Solution. Client hereby grants Webtrends Optimize a non-exclusive, worldwide, royalty-free right and license to use, copy, store, transmit, modify, create derivative works of, publicly perform and display, and distribute any Client Content provided to Webtrends Optimize solely for purposes of providing the Webtrends Optimize Solution to Client pursuant to the applicable Quote or SOW. Client Content is included in Solution Data for purposes of Client’s obligations in Section 3 (Solution Data) and Section 13.2 (Indemnification by Client).

5. SOLUTION SECURITY AND DATA PROTECTION & PRIVACY

5.1 Solution Security – Webtrends Optimize agrees to use commercially reasonable technical and organisational measures designed to prevent unauthorised access, use, alteration, or disclosure of the Client Data, as further described in Exhibit C (Solution Security). Except to the extent caused by Webtrends Optimize’ breach of this Exhibit C, Webtrends Optimize shall have no responsibility for errors in transmission, unauthorised third-party access, or other causes beyond Webtrends Optimize’ control. Further, notwithstanding anything to the contrary herein, Webtrends Optimize is not responsible in any way for Solution Data after such Solution Data is transmitted, copied, extracted, or removed from Webtrends Optimize’ servers by Client or a Third Party Platform.

5.2 Protection of Personal Data – Subject to Section 3.4(b) (Prohibited Data), as part of its authorised use of the Solution, Client may configure the Tagging Methods to collect certain personal data from users of Client Applications. Without limiting its obligations in Section 5.1 (Solution Security), Webtrends Optimize agrees to process personal data only for the purpose of performing this Agreement and in accordance with Client’s instructions (as set forth in this Agreement, through the use of the selected regional option, and any applicable Order Form or SOW), and applicable Laws.

Further, for personal data that is subject to the EU Data Protection Directive and GDPR

The terms “controller”, “process”, “processor”, and “personal data” have the meanings given to them in the EU Data Protection Directive. The parties acknowledge that, pursuant to the EU Data Protection Directive and applicable data protection Laws, Client is the controller and Webtrends Optimize is the processor and data importer.

Webtrends Optimize will forward to Client all data subject access requests and any other requests from data subjects exercising their rights pursuant to Article 12 of the EU Data Protection Directive.

6. OWNERSHIP – This is a subscription agreement for access to and use of the Solution. Client acknowledges that it is obtaining only a limited right to the Solution and that irrespective of any use of the words “purchase”, “sale”, or like terms hereunder, no ownership rights are being conveyed to Client under this Agreement. Client agrees that Webtrends Optimize or its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Solution (including Tagging Methods, APIs, SDKs and Documentation), Deliverables (excluding Client Materials), all report templates and pre-existing content and materials of Webtrends Optimize, all related and underlying technology, documentation, work product, tools, designs, methodologies, processes, techniques, ideas, and know-how, and all derivative works, modifications, or improvements of any of the foregoing, as well as all comments, questions, suggestions, or other feedback relating to the Solution or Managed Services that Client submits to Webtrends Optimize (collectively, “Webtrends Optimize Technology”). Except for the limited right to access and use the Solution as expressly set forth in this Agreement, no rights in any Webtrends Optimize Technology are granted to Client. Further, Client acknowledges that the Solution is offered as an on-line, Software-as-a-Service (SaaS) solution, and that Client has no right to obtain a copy of any underlying code or technology in any Solution, other than Tagging Methods.

7. ORDER TERM, FEES & PAYMENT

7.1 Order Term and Renewals – Unless otherwise specified on the applicable Quote, each Order Term shall automatically renew for additional twelve (12) month periods unless either party gives the other written notice of termination at least ninety (90) days prior to expiration of the then-current Order Term.

7.2 Fees and Payment – All fees are as set forth in the applicable Quote or SOW and shall be paid by Client in accordance with the invoice schedule and in the currency set forth in the applicable Quote or SOW (and if none, within thirty (30) days of the date of applicable invoice and in invoice currency). Except as expressly set forth in Section 8.2 (Termination for Cause), Section 9.1 (Limited Warranty), Section 11.7 (Limited Professional Services Warranty), and Section 13.1 (Indemnification by Webtrends Optimize), all fees are non-refundable. The rates in the applicable Quote or SOW are valid for the Order Term set forth in such Quote or SOW. Client is required to pay any sales, use, Goods and Services Tax (GST), value-added, withholding, or similar taxes or levies, whether domestic or foreign (other than taxes based on the income of Webtrends Optimize), and all such taxes and levies are excluded from any rates or prices provided by Webtrends Optimize. All late invoice payments shall be subject to interest payable at 8% above the Bank of England base rate in line with UK governing law under the Late Payment of Commercial Debts (interest) Act 1998. Interest shall be added daily until the debt is settled in full. More information can be found here.

7.3 Suspension of Solution – If (a) Webtrends Optimize has sent Client a payment reminder for an overdue payment, and Client fails to pay the amount due within seven (7) days after receiving such payment reminder, or (b) Client has breached its obligations under Section 2.5 (General Restrictions) or Section 3.4 (Client Obligations), then, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Webtrends Optimize reserves the right to suspend Client’s access to the applicable Solution, content delivery and any related support, or Managed Services, without liability to Client, until payment has been made or the breach has been cured. Prior to suspending Client’s access for Client’s breach of Section 2.5 (General Restrictions) or Section 3.4 (Client Obligations), Webtrends Optimize will use reasonable efforts to provide Client with notice and a reasonable opportunity to cure, unless Webtrends Optimize reasonably determines that such breach may cause harm to other clients or threaten the security or integrity of a Solution, in which case suspension may be immediate.

7.4 Trial Subscriptions – If Client receives free access or a trial or evaluation subscription to the Solution (a “Trial Subscription”), then Client may use the Solution in accordance with the terms and conditions of this Agreement and the applicable Quote for the period designated in such Quote or otherwise by Webtrends Optimize (and if not designated, then for thirty (30) days) (“Trial Period”). Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a full subscription to the Solution. Client may not use a Trial Subscription for any other purpose, including for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire, and Client will have the option to purchase a full subscription to the Solution. If Client purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Solution unless otherwise specified in the Quote for the Trial Subscription. Webtrends Optimize has the right to terminate a Trial Subscription at any time for any reason. The Solution may have a mechanism that limits access to such Solution during the Trial Period and Webtrends Optimize may otherwise restrict certain product functionality during the Trial Period (including limiting Purchased Units or other usage as may be specified by Webtrends Optimize). Client shall not attempt to circumvent any such mechanism or restriction. Notwithstanding Section 3.3 (Data Retention Policy) or Exhibit B (Data Retention Policy), Webtrends Optimize has no obligation to retain Solution Data collected or retrieved with a Trial Subscription during or after the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE SOLUTION IS PROVIDED “AS IS” AND WEBTRENDS OPTIMIZE WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE QUOTE. 

8. TERM AND TERMINATION

8.1 Term – This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Order Terms.

8.2 Termination for Cause – Either party may terminate this Agreement (including all related Quotes) if the other party:

(a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice;

(b) ceases operation without a successor; or

(c) seeks protection under any bankruptcy, insolvency event, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

Upon termination by Client for Webtrends Optimize’ breach in accordance with this Section 8.2, Webtrends Optimize shall promptly refund to Client any such Solution fees already paid with respect to the terminated portion of the applicable Order Terms. Upon termination by Webtrends Optimize for Client’s breach, Client shall pay Webtrends Optimize for the total fees contractually committed for all Order Terms.

8.3 Effect of Termination – Upon any expiration or termination of this Agreement, Client shall:

(a) immediately cease any and all use of and access to its Account and the Solution (including any and all related Webtrends Optimize Technology);

(b) Erase any and all copies of the Documentation, any Webtrends Optimize-related passwords or access codes, and any other Webtrends Optimize’s Confidential Information in its possession; and

(c) remove all Tagging Methods from Client Applications and otherwise discontinue use thereof.

Upon request, Client shall certify to Webtrends Optimize in writing that it has fully complied with the foregoing requirements. Client acknowledges that, following termination, it shall have no further access to its Account or any Solution Data, and that Webtrends Optimize may delete Client’s Account and Erase any Solution Data in its possession at any time, except for backup copies kept for disaster recovery purposes or as required to comply with Laws. Neither party shall have any liability resulting solely from a permitted termination of this Agreement in accordance with its terms. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

8.4 Survival – The following Sections shall survive any expiration or termination of this Agreement: 2.5 (General Restrictions), 3.3 (Data Retention Policy), 6 (Ownership), 7.2 (Fees and Payment), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11.2 (Rights to Deliverables) (solely with respect to Design Deliverables, if applicable), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information), and 16 (General Terms).

9. WARRANTY AND DISCLAIMER

9.1 Limited Warranty – Webtrends Optimize warrants, for Client’s benefit only, that the Solution will operate in substantial conformity with the applicable Documentation. Webtrends Optimize’ sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty shall be, in Webtrends Optimize’ sole discretion and at no charge to Client, to use commercially reasonable efforts to correct the reported non-conformity or, if Webtrends Optimize determines (in its sole discretion) such remedy to be impracticable or fails to correct the non-conformity, either party may terminate the applicable Order Term and Client shall receive as its sole remedy a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term.

The limited warranty set forth in the first sentence of this Section 9.1 shall not apply:

(a) unless Client notifies Webtrends Optimize within thirty (30) days following the date on which Client first noticed the non-conformity;

(b) if the error was caused by misuse, unauthorised modifications, or third-party hardware, software or services; or

(c) to any use of the Solution provided on a no-charge basis (e.g., Trial Subscriptions).

9.2 Warranty Disclaimer – EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOLUTION AND ALL RESULTS AND REPORTS GENERATED THEREFROM AND ANY MANAGED SERVICES ARE PROVIDED “AS IS”. NEITHER WEBTRENDS OPTIMIZE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT (BUT FOR CLARITY THIS DISCLAIMER OF WARRANTIES OF NONINFRINGEMENT DOES NOT LIMIT WEBTRENDS OPTIMIZE’S INDEMNIFICATION OBLIGATIONS IN SECTION 13). WITHOUT LIMITING WEBTRENDS OPTIMIZE’S EXPRESS OBLIGATIONS IN SECTION 5 (SOLUTION SECURITY & PRIVACY), 9.1 (LIMITED WARRANTY) OR 10 (SUPPORT SERVICES; SLA), WEBTRENDS OPTIMIZE DOES NOT WARRANT THAT CLIENT’S USE OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL REVIEW THE SOLUTION DATA FOR ACCURACY, THAT IT WILL PRESERVE OR MAINTAIN THE SOLUTION DATA WITHOUT LOSS, OR THAT THE SOLUTION WILL MEET CLIENT’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE). WEBTRENDS OPTIMIZE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF WEBTRENDS OPTIMIZE (INCLUDING BUT NOT LIMITED TO ANY THIRD PARTY PLATFORM). CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF SUCH STATUTORY RIGHTS, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

10. SUPPORT SERVICES; SLA – During the applicable Order Terms, (a) Webtrends Optimize shall provide end user support in accordance with the support plan specified in the applicable Quote, and (b) the Solution shall be subject to the Service Level Agreement (“SLA”) attached hereto as Exhibit D.

11. MANAGED SERVICES

Webtrends Optimize Managed Service provides Professional Services to deliver an end-to-end solution for the design, implementation and reporting of experiments in addition to complete access to the Webtrends Optimize Solution.

11.1 Provision and Payment – Webtrends Optimize shall provide the services of an Optimisation Consultant and other Professional Services if purchased in the applicable Quote or SOW. This may include configuration, implementation, or training services and/or Digital Marketing Services. The scope of the Managed Services, and the fees for this shall be as set forth in an applicable Quote or SOW.

11.2 Rights to Deliverables – Client may use any Deliverables solely in support of its authorised use of the Solution, subject to the same terms and conditions that apply to such Solution and any additional terms in the applicable Quote or SOW. As an exception to the preceding sentence, for any Design Deliverables, effective upon full and final payment of all fees and expenses owing to Webtrends Optimize, Webtrends Optimize grants Client a non-exclusive, perpetual, worldwide, non-transferable, royalty-free license to use, reproduce, publicly display and perform, distribute, and create derivative works of the Design Deliverables for Client’s business purposes. While Client may continue to use the Design Deliverables after termination or expiration of this Agreement, such continued use is “AS IS”, with no warranty or other obligation from Webtrends Optimize.

11.3 Client Materials – Client shall provide Webtrends Optimize with access to Client Materials and hereby grants Webtrends Optimize a limited right to use Client Materials solely for the purpose of performing the Professional Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to Webtrends Optimize for such purpose.

11.4 Third Party Platforms and Data – For certain Services, the Client may provide Webtrends Optimize with access to certain data and materials (“Third Party Data”) accessed through Clients’ accounts (“Third Party Accounts”) with third party application platforms through which Client offers its Site to end-users (“Third Party Platforms”). “Site” means those websites, Third Party Platforms, applications or devices owned or controlled by Client or a third party for which Client wishes to, and has the authority to, use the Webtrends Optimize tracking code, Webtrends Optimize APIs, third party APIs, or any other collection methods to collect or upload data in connection with the Services. For these Services, Webtrends Optimize will need rights to access, upload and view the Third Party Data by using Client’s credentials to access Third Party Accounts. Client acknowledges and agrees that Services related to any Third Party Data or Third Party Platforms are conditioned and dependent upon the applicable Third Party Platform allowing access to Client’s Third Party Account and Third Party Data by Webtrends Optimize, as a service provider of Client. Client shall provide Webtrends Optimize with timely and appropriate access to its Third Party Account credentials and password (“Third Party Account Information”) to enable Webtrends Optimize to access Client’s account on Third Party Platforms. Client acknowledges and agrees that Webtrends Optimize’s provision of the Services related to any Third Party Data is conditioned upon Webtrends Optimize’s receipt of correct and accurate Third Party Account information from Client, and to the continuing practices, policies, APIs and/or terms of use of applicable Third Party Platform providers making data available in the format necessary to retrieve through the Services free of charge or restrictions.

11.5 Intellectual Property Rights – Client has and will retain sole and exclusive right, title and interest in and to all Client Confidential Information, Client Materials, Third Party Data, and Third Party Account Information (collectively, “Client Property”), including any and all intellectual property rights therein. Webtrends Optimize has and will retain sole and exclusive right, title and interest in, and to all Webtrends Optimize Confidential Information, Webtrends Optimize products, Webtrends Optimize service, and all Webtrends Optimize technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein, (collectively, “Webtrends Optimize Property”). However, Webtrends Optimize’ ownership rights do not extend to Client Property embedded or incorporated in the foregoing items.

11.6 Access – Client shall provide Webtrends Optimize with safe access to Client’s premises as reasonably required for Webtrends Optimize to perform the Services, if onsite performance of Services is needed and agreed to by Client. Webtrends Optimize personnel shall comply with the reasonable written rules and regulations of Client related to use of its premises, provided that such written rules and regulations are provided to Webtrends Optimize prior to commencement of the Services. Webtrends Optimize shall not be responsible for failures or delays in performing Services due to Client’s failure or delay to provide access to Client Materials or Client premises or due to Client-imposed or government-imposed security requirements. If Webtrends Optimize personnel are scheduled to be on a client’s site and this is cancelled by the Client within seven (7) days of the nominated date, then Client is responsible for any pre-booked, non-cancellable costs for travel and accommodation by Webtrends Optimize personnel.

11.7 Limited Professional Services Warranty – Webtrends Optimize warrants that the services will be of a professional quality and conform to generally prevailing industry standards. Client must give written notice of any material breach of the foregoing warranty within thirty (30) days from the date the service has completed. In such event, at Webtrends Optimize’s sole discretion, Webtrends Optimize shall either:

(a) use commercially reasonable efforts to re-perform the Professional Services in a manner that conforms to the foregoing warranty; or

(b) if Webtrends Optimize fails to re-perform or decides not to re-perform the Professional Services, refund to Client the portion of fees paid by Client to Webtrends Optimize for the nonconforming Professional Services.

The foregoing procedures shall constitute Webtrends Optimize’s sole liability (and Client’s sole and exclusive remedy) for any breach of the warranty in this Section 11.7.

12. LIMITATION OF REMEDIES AND DAMAGES

12.1 Consequential Damages Waiver – NEITHER PARTY (NOR ITS LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, ANY LOSS OF USE, OR INTERRUPTION OF BUSINESS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

12.2 Liability Cap – EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S AND ITS LICENSORS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO WEBTRENDS OPTIMIZE DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.

12.3 Excluded Claims – “Excluded Claims” means (a) amounts payable to third parties by Client pursuant to Section 13.2 (Indemnification by Client) or (b) any claim arising from Client’s breach of Section 2.5 (General Restrictions) or Section 3 (Solution Data).

12.4 Failure of Essential Purpose – The parties agree that the limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

13. INDEMNIFICATION

13.1 By Webtrends Optimize – Webtrends Optimize shall defend Client from and against any claim by a third party alleging that Webtrends Optimize’ proprietary technology used in the performance of the Solution, when used as authorized under this Agreement, actually infringes a U.S. or Great Britain (“GBR”) patent, U.S. or GBR copyright, or U.S. or GBR trademark, and shall indemnify and hold harmless Client from and against any damages and costs awarded against Client or agreed in settlement by Webtrends Optimize (including reasonable legal fees) resulting from such claim.

If Client’s use of any Solution is (or in Webtrends Optimize’s opinion is likely to be) enjoined, if required by settlement, or if Webtrends Optimize determines such actions are reasonably necessary to avoid material liability, Webtrends Optimize may, in its sole discretion:

(a) substitute substantially functionally similar products or services; 

(b) procure for Client the right to continue using the Solution; or

(c) if (a) and (b) are not commercially reasonable, terminate the Agreement and refund to Client any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Terms.

The foregoing indemnification obligation of Webtrends Optimize shall not apply:

(1) if the Solution is modified by any party other than Webtrends Optimize, but solely to the extent the alleged infringement is caused by such modification;

(2) if the Solution is combined with products or processes not provided by Webtrends Optimize, but solely to the extent the alleged infringement is caused by such combination;

(3) to any unauthorised use of the Solution;

(4) to any action arising as a result of Solution Data or any third-party deliverables or components contained within the Solution;

(5) to any release or version of the Tagging Methods other than the then-current release or version; or

(6) if Client settles or makes any admissions with respect to a claim without Webtrends Optimize’s prior written consent.

THIS SECTION 13.1 SETS FORTH WEBTRENDS OPTIMIZE’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM THAT WEBTRENDS OPTIMIZE’S PROPRIETARY TECHNOLOGY USED IN THE PERFORMANCE OF THE SOLUTION INFRINGES A U.S. OR GBR PATENT, U.S. OR GBR COPYRIGHT, OR U.S. OR GBR TRADEMARK.

13.2 By Client – Client shall defend Webtrends Optimize from and against any claim by a third party arising from or relating to:

(a) any Solution Data or Client Application; or

(b) any breach or alleged breach by Client of Section 3.4 (Client Obligations); or

(c) any service or product offered by Client through the Client Applications,

and shall indemnify and hold harmless Webtrends Optimize from and against any damages awarded against Webtrends Optimize or agreed in settlement by Client (including reasonable legal fees) resulting from such claim.

13.3 Indemnification Process – The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification:

(a) prompt written notice of a claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice);

(b) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the claim; and

(c) all reasonably necessary cooperation of the indemnified party.

The indemnified party may participate in the defence of any claim with counsel of its own choosing at its expense. The indemnifying party may not settle a claim without the indemnified party’s prior written consent unless such settlement unconditionally releases the indemnified party from all liability and does not require the indemnified party to take or refrain from taking any action (except with respect to use or non-use of the Solution or allegedly infringing materials).

14. CONFIDENTIAL INFORMATION – Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and non-technical, and financial information that it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limiting the foregoing, any Webtrends Optimize Technology, performance information relating to the Solution, and the terms and conditions of this Agreement and all Quotes and SOWs shall be deemed Confidential Information of Webtrends Optimize without any marking or further designation. Except as expressly authorised herein, the Receiving Party will:

(a) hold in confidence and not disclose any Confidential Information to third parties; and

(b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.

The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Webtrends Optimize, the subcontractors referenced in Section 16.10), provided that: (i) such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14; and (ii) the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:

(1) was rightfully in its possession or known to it prior to receipt of the Confidential Information;

(2) is or has become public knowledge through no fault of the Receiving Party;

(3) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or

(4) is independently developed by employees of the Receiving Party who had no access to such information.

The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

15. MARKETING – During the term of the Agreement, Webtrends Optimize may use Client’s name, logos, and trademarks to identify Client as a customer on Webtrends Optimize’s website, social media, and other marketing materials.

16. GENERAL TERMS

16.1 Assignment – This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement in connection with a merger, reorganisation, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities, provided that, in Client’s case, the assignee is not a competitor of Webtrends Optimize. Any attempt to transfer or assign this Agreement except as expressly authorised under this Section 16.1 will be null and void. 

16.2 Severability – If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

16.3 Governing Law – This agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this agreement or its formation (including any non-contractual disputes or claims), shall be governed by and construed in accordance with English law and both parties hereby submit to the personal jurisdiction of such courts.

16.4 Legal Fees and Costs – The prevailing party in any action to enforce this Agreement will be entitled to recover its legal fees and costs in connection with such action.

16.5 Notice – Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Quote or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee:

(a) if given by hand, immediately upon receipt;

(b) if given by overnight courier service, the first business day following dispatch; or

(c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

(d) if given by electronic mail, immediately upon receipt.

16.6 Amendments; Waivers – Except as otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorised representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorised representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

16.7 Entire Agreement – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

16.8 Updates – Client acknowledges that the Solution is an online, subscription-based product and that, in order to provide improved customer experience, Webtrends Optimize may make changes to the Solution (including the Tagging Methods), and Webtrends Optimize will update the applicable Documentation accordingly. The support, data retention, security, and SLA terms described in Section 10 (Support Services; SLA), Exhibit B (Data Retention Policy), Exhibit C (Solution Security), and Exhibit D (SLA) may be updated from time to time upon reasonable notice to Client to reflect process improvements or changing practices (but the updates will not materially decrease Webtrends Optimize’ obligations as compared to those reflected in such terms as of the Effective Date).

16.9 Force Majeure – Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. 

16.10 Subcontractors – Webtrends Optimize may use the services of subcontractors and permit them to exercise the rights granted to Webtrends Optimize in order to provide the Solution and Professional Services under this Agreement, provided that Webtrends Optimize remains responsible for:

(a) compliance of any such subcontractor with the terms of this Agreement; and

(b) the overall performance of the Solution as required under this Agreement.

16.11 Independent Contractors – The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

16.12 Export Control – In its use of the Solution, Client agrees to comply with all export and import laws and regulations of the U.S. and other applicable jurisdictions. Without limiting the foregoing,

(a) Client represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country;

(b) Client shall not (and shall not permit any of its users to) access or use the Solution in violation of any U.S. export embargo, prohibition or restriction; and

(c) Client shall not submit to the Solution any information that is controlled under the U.S. International Traffic in Arms Regulations.

16.13 Government End-Users – Elements of the Solution are commercial computer software. If the user or licensee of the Solution is an agency, department, or other entity of the U.S. Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Solution, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Solution were developed fully at private expense. All other use is prohibited.

16.14 No High Risk Use – The Solution and all components thereto are not fault-tolerant. The Solution and all components thereto are not designed or intended for use in any situation where failure or fault of any kind of the Solution or any component could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). Client is not licensed to use the Solution or any component thereof in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, and Class III medical devices under the Federal Food, Drug and Cosmetic Act. Client agrees not to use the Solution, or any component thereof, in or in connection with, any High Risk Use.

16.15 Counterparts – This Agreement may be executed in counterparts (including execution by electronic signature, pdf or other electronic transmission), each of which will be deemed an original and legally binding and all of which together will be considered one and the same agreement.

Exhibit A

Purchased Unit Definitions

Webtrends Optimize: 

Client’s right to access and use the Webtrends Optimize Solution either as a Self-service solution a Managed Service Solution or a combination of both in our Hybrid Solution is limited. Which option will be specified in the Quote or SOW.

The Client’s use of the Solution is limited to the testing, segmenting and targeting up to the number of Optimize Events as set forth in the Quote (“Number of Events”). An “Optimize Event” is incurred for each call to the Webtrends Optimize Solution that modifies or tracks the Client Application visitor’s environment in response to an Optimize testing and/or targeting scenario. Conversion events are counted. Webtrends Optimize shall have no obligation to return, and Client shall have no right to receive, any portion of the fees in the event that the actual usage by Client of Optimize Events is below the Number of Events figure. If during the Order Term, Client’s actual usage of the Webtrends Optimize Solution exceeds the Number of Events figure, Client shall either (a) purchase additional Optimize Events at the rate set forth in the Quote, or (b) pay Overage Fees to Webtrends Optimize. “Overage Fees” will be determined by multiplying the number of Optimize Events collected in increments of one thousand and any fractions thereof, in excess of the Number of Events figure by the Cumulative CPM. “Cumulative CPM” for Optimize Events means the cost per thousand Optimize Events as set forth in the Quote. Upon the expiration or earlier termination of the Order Term, the Number of Events shall expire. All additional Optimize Events purchased in the middle of any Order Term will be coterminous with the then current Order Term.

Exhibit B

Data Retention Policy

Webtrends Optimize shall retain Client Data in accordance with the following Data Retention Policy.

1. Data Retention for Webtrends Optimize Data

1.1 Standard Data Retention

Standard Data Retention is included with Client’s subscription to Webtrends Optimize. Data is retained for a rolling period of 12 months from the date the data was collected, after which time the Webtrends Optimize data will be erased and no longer available to Client. At the end of the contract term all data will be removed 30 days after the end of the contract or termination period whichever is the soonest without consideration of the date the data was collected.

1.2 Extended Data Retention

Extended Data Retention is available with Client’s subscription to Webtrends Optimize for an additional fee. This will be outlined on your quote where applicable. With Extended Data Retention, Webtrends Optimize data is retained for the agreed period of time from the date the data was collected, after which time the Webtrends Optimize data will be erased and no longer available to Client. At the end of the contract term all data will be removed 30 days after the end of the contract or termination period whichever is the soonest without consideration of the date the data was collected.

Exhibit C

Solution Security

1. Definitions

Capitalised terms not included in this Exhibit C (Solution Security) are defined in the Agreement.

(a) “Information Technology Resources” – means all Webtrends Optimize facilities, equipment, and systems used for delivering the Solution. 

(b) “Personnel” – means employees, temporary employees, subcontractors, and consultants of Webtrends Optimize, in each case with access to Client Data and/or Information Technology Resources.

2. Information Security Management

Webtrends Optimize information security management system is based on ISO 27001 and ISO 27002. Webtrends Optimize maintains a general Information Security Policy, updated annually, that explicitly addresses the confidentiality, integrity, and availability of Client Data and Information Technology Resources, and details employee’s responsibilities and managements’ role.

Comprehensive technical policies govern various aspects of Webtrends Optimize SaaS Operations and general corporate IT, which policies define security measures appropriate to the sensitivity of the data processed. These include specialised policies and procedures governing practices such as incident response process, change management, and backups.

Policies are approved by senior management, communicated to all Personnel to whom the policies apply, and clearly state the consequences of non-compliance. All employees must review, and sign Webtrends Optimize’s Information Security Policy during onboarding.

Webtrends Optimize’s IT Department coordinates all security and privacy activities within Webtrends Optimize. Responsibilities of these positions include:

  • Driving security initiatives
  • Policy creation and review
  • Security planning and program management
  • Reviewing effectiveness of the security program
  • Coordinating Webtrends Optimize’s security incident response plan
  • Performing annual security and privacy assessment and reviews

Implementation of security controls rests with the management of each relevant function. Webtrends Optimize separates its SaaS Solution production network and all associated functions from general corporate IT.

In support of teleworking, Webtrends Optimize deploys remote access with strong encryption and authentication mechanisms across the Internet (using a commercial VPN product with multi-factor authentication).

3. Human Resources

Webtrends Optimize has background checks performed on all employees at the time of hire (to the extent permitted by Law) and requires that non-disclosure and/or confidentiality agreements are signed by all Personnel. Webtrends Optimize’s policy prohibits employees from using Confidential Information (including Client Data) other than for legitimate business purposes, such as providing technical support, and this obligation continues after their employment ends.

Upon hire and annually thereafter, Webtrends Optimize provides employees with security and privacy training, which addresses handling of sensitive or confidential information and Client Data, employees’ responsibility for such data, risk of information sharing with unidentified callers, phishing attacks, and use of security tools such as anti-malware Solution.

Webtrends Optimize maintains a formal termination or change of employment process that, promptly upon termination or change of employment, requires return of any and all Webtrends Optimize and Client assets, disables or adjusts access rights, and reminds ex-employees of their remaining employment restrictions and contractual obligations.

4. Asset Management 

Webtrends Optimize logically separates Client Data from each individual Client. All Client Data is classified as highly confidential. Webtrends Optimize information classification affords Client Data the same or higher level of security as it does Webtrends Optimize’s own highly confidential information.

Webtrends Optimize’s decommissioning procedures are designed to prevent access to Client Data by unauthorised persons. Webtrends Optimize follows NIST Guidelines for Media Sanitisation (Special Pub 800-88) to destroy data. All printed Confidential Information, including Client Data, is disposed of in secured containers for shredding.

5. Access Control

Webtrends Optimize provides security-enabled identification, authentication, and authorisation mechanisms for Client access to its Solution and employee access to the backend infrastructure, and all passwords are securely hashed.

All Information Technology Resources used for the Solution are managed under the policies of the Webtrends Optimize SaaS Operations team, which is separate (both from a network domain perspective and from a staffing perspective) from corporate network resources. All access is limited to the least privilege needed and requires authentication. Access logs are reviewed at least quarterly.

6. Cryptography

All authenticated accesses to Webtrends Optimize Solution are over secure protocols such as HTTPS (HTTP over TLS) or SFTP (FTP over SSH). TLS transfers are terminated at the load balancer within the Webtrends Optimize production network.

For the initial data collection, Webtrends Optimize JavaScript code automatically detects the protocol used for the source page and uses the same (i.e., it defaults to HTTPS for secure pages and HTTP for non-secure pages). Clients may override these defaults to force the use of HTTPS for all pages.

7. Physical and Environmental Controls

Webtrends Optimize SaaS Solution infrastructure is physically separated from Webtrends Optimize corporate facilities. Webtrends Optimize SaaS Solution infrastructure uses an Infrastructure-as-a-Service (IaaS) provider. Webtrends Optimize maintains appropriate physical and environmental controls, such as electronic card access and video monitoring at all Webtrends Optimize facilities.

8. Operations Security

Webtrends Optimize maintains documented procedures that include at a minimum:

  • security control measures for all Information Technology Resources in the environment;
  • hardening – disabling of all non-essential processes and ports, removing all default users;
  • patches deployed promptly on all applicable Information Technology Resources per manufacturer recommendation, within 30 days for critical security patches;
  • change management procedures; and
  • incident detection and management.

Webtrends Optimize maintains Client Data within the Solution production environment on fully redundant or replicated storage systems, utilises a multi-tiered backup approach, and transfers backup to a secure cloud.

Webtrends Optimize maintains audit information and logs for all Information Technology Resources, applications and network access, monitors these logs for abnormal patterns and unauthorised access attempts, and maintains defined processes for security alerting, escalation and remediation. Logs are centralised in a limited-access system that prevents deletion and changes.

Webtrends Optimize deploys anti-malware software with automatic scanning and updates on all workstations; installs anti-malware software on all Windows external-facing web servers with weekly scans; and scans all deployed code for malware.

Internal audits of the environment are performed at least quarterly and include, at a minimum, intrusion detection and firewall configuration, access rights, and audit logs.

9. Communications Security

Webtrends Optimize follows guidance from the ISO/IEC 27002:2013 standard. Additionally, Webtrends Optimize employs industry standard practices and relies on over 15 years of experience in operating highly secure Solution for security controls such as firewalls, intrusion detection, change management and security policies.

Webtrends Optimize employs network security control measures over all Information Technology Resources used to create, transmit, or process Client Data, including the following controls:

  • Technology controls include, at a minimum, firewalls, security monitoring and alerting systems, intrusion detection systems (IDS); and
  • The environment is monitored and managed 24×7.

10. System Acquisition, Development and Maintenance

The Webtrends Optimize Solution production environment (including facilities, network and staff) is logically and physically separated from the Webtrends Optimize corporate and development environment.

Webtrends Optimize follows secure development industry standard practices, including the use of OWASP Secure Coding Guidelines, and performs code reviews and security testing for key functionality.

11. Third Party Relationships

Webtrends Optimize uses third party service providers in its provision of the Solution. Webtrends Optimize requires material service providers (such as data centres, cloud infrastructure and content delivery networks) to provide annual SOC 2 reports or ISO certifications, which Webtrends Optimize reviews for consistency with industry standards and Webtrends Optimize’s security practices.

12. Security Incident Management

Webtrends Optimize maintains a documented security incident response process for reporting, responding to, and managing any unauthorised access to, disclosure of, misuse of, and/or loss of Client Data, and uses commercially reasonable efforts to notify Client within 48 hours of any breach affecting their Client Data. Client agrees that Webtrends Optimize is not required to report unsuccessful security events, such as pings on Webtrends Optimize’s firewall, port scans, and failed log-on attempts.

13. Business Continuity and Disaster Recovery

Webtrends Optimize maintains and tests a business continuity plan (BCP) and disaster recovery (DR) plan that prioritises critical functions (such as data collection) supporting the delivery of its Solution to its clients. Under such plans, the disruption resulting from a complete site outage at a data collection centre would be limited to single geographic region and would only last for a few minutes while traffic gets automatically rerouted. The Webtrends Optimize Operations team performs a comprehensive annual risk assessment.

14. Compliance

Webtrends Optimize engages an independent third-party security firm annually to conduct a vulnerability scan of all external-facing (public) infrastructure devices and application penetration test of its Solution.

Webtrends Optimize does not allow clients to perform their own audits but will reasonably collaborate with Client for applicable audits required by regulators of Client. Any such audits are subject to reasonable confidentiality and security procedures and the results of such audits constitute Confidential Information of Webtrends Optimize.

Webtrends Optimize engages annually a nationally recognised accounting firm to perform a Service Organisation Controls (SOC) audit for Webtrends Optimize.

Exhibit D

Service Level Agreement (“SLA”)

This SLA sets forth the service level terms that apply to one or more of the following Solution to be provided to Client under the Agreement during the applicable order term set forth in a Quote Except as otherwise indicated, the defined terms in this SLA shall have the same meaning as in the Agreement.

User Interface Availability

Availability of the applicable Solution’s user interface will average at least 99.9%, as measured monthly, subject to the Exclusions set forth below. Violation must be measured and verified by Webtrends Optimize’s approved third party reporting agency.

Any single outage event will not exceed two (2) hours in length, subject to the Exclusions set forth below.

Data Collection Availability

The guaranteed uptime for data collection network will average at least 99.9%, as measured monthly, subject to the Exclusions set forth below. Violation must be measured or verified by Webtrends Optimize’s approved third party reporting agency.

No single data collection network outage will exceed one (1) hour, subject to the Exclusions set forth below.

Exclusion

The User Interface Availability SLA and the Data Collection Availability SLA do not apply to any interruption or unavailability (i) due to scheduled maintenance notified to Client by Webtrends Optimize at least twenty four (24) hours in advance (ii) due to unscheduled maintenance notified to Client by Webtrends Optimize (iii) caused by factors outside of Webtrends Optimize’s reasonable control, including any force majeure event, Internet access or related problems beyond the demarcation point of Webtrends Optimize’ servers; (iv) caused by network intrusions or denial of service attacks; (v) caused by any action or inaction of Client or any Client User; (vi) arising from Client’s equipment, software, or other technology, and/or third party equipment, software and/or technology (other than third party equipment within Webtrends Optimize’s reasonable control); and/or (vii) arising from Webtrends Optimize’s suspension and termination of Client’s right to use the Solution in accordance with this Agreement.

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